REPORTABLE

IN THE SUPREME COURT OF INDIA      CIVIL APPELLATE JURISDICTION

    CIVIL APPEAL NO. 2067 OF 2002

State Bank of India           ... Appellant

Versus

M/s B.S. Agricultural Industries (I)             ...Respondent

J U D G E M E N T

R.M. Lodha, J.

In this appeal by special  leave an order passed by the

National  Consumer  Disputes  Redressal  commission  (hereinafter

referred to as  ‘National Commission’)  on October 1, 2001 is under

challenge.   The District  Consumer Disputes Redressal  Forum, Ist,

Agra  (hereinafter referred to as ‘District Forum’)  vide its order dated

November  16,  2000   allowed  the  complaint  filed  by  the  present

respondent  (for short, ‘the Complainant’)  and directed the  present

appellant   (for  short,  ‘the Bank’)   to   pay  to the complainant  Rs.

2,47,154/- with  interest @ 15% per annum from April 21, 1994 and

Rs. 5,000/-  towards compensation.  The  Bank challenged this order

in appeal before the State Commission for Redressal of Consumer

Disputes,   Uttar  Pradesh,  Lucknow (for  short,  ‘State Commission’)

but  without  any  success.  The  National  Commission  upheld  the

concurrent orders of  consumer fora  to which the Bank is aggrieved.

2. The complainant  filed a complaint  against  the Bank on

May 5, 1997 claiming an amount of Rs. 2,47,154/- for deficiency in

service   alongwith  interest  @  12%  p.a.,  litigation  expenses  and

compensation.  The  complainant averred; that  it has been carrying

on business of manufacturing  and supply of  engines and  pump

sets all over India through  their dealers and distributors; that it  sent

to the Bank seven bills  amounting to Rs. 2,47,154/-  drawn on  M/s

Unique Agro Service,  P.O. Heria,  District Midnapore (W.B.) together

with GR’s of transporters  for collection of payment and remittance of

proceeds to the complainant;  that it  instructed the Bank to deliver

the bills  and GR’s  against  payment  to the drawee  (M/s Unique

Agro Service)  and charge  interest @ 24% per annum from  May 22,

1994 (if the documents are not retired by the drawee from the Bank

within 30 days of the presentation of the bills);  that the Bank was

also instructed to return the bills  and  GR’s   if  the drawee did   not

retire the bills within  45 days of the  presentation of the bills i.e. upto

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June  7,  1994 and that  despite  repeated  letters  dated   March  15,

1995,  May 4, 1996, March 1, 1997 and March 20, 1997 and  legal

notice  dated April 3, 1997,  the Bank has neither  sent the amount of

Rs. 2,47,154/- nor returned the said bills and GR’s necessitating the

complaint before the District Forum, Agra.

3.   The complainant admitted in the complaint   that vide

letter  dated March 28, 1995,  the Bank informed it  that they have

returned  the  bills  and  GR’s   to  B.M  Konar   (complainant’s  sales

manager) on May 10, 1994.  However, according to the complainant

on May 4, 1996,  a letter was sent to the Bank asking them under

what authority they delivered the documents to B.M. Konar and  the

Bank was asked  to  send either a demand draft  for Rs. 2,47,154/-

together with interest or return the documents without further delay.

The complainant is stated to have again sent the reminder  to the

Bank  on March 1,  1997 to  which Bank  asked the  complainant  to

arrange  to  forward  a  copy  of  the   letter  dated  May  4,  1996  for

necessary action.   

4. The bank resisted the complaint on diverse grounds, inter

alia,  (i) that the complainant  was not a consumer within the meaning

of Consumer Protection Act, 1986 (for short,  ‘Act, 1986’);  (ii)  that

the   complaint  was  clearly  time  barred  and beyond the  period  of

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limitation; (iii) that the bills and GR’s  were returned to B.M. Konar,

the  Sales  Manager   of  the  complainant  firm;  (iv)  that  the  drawee

( M/s Unique  Agro Service)  had accepted the liability of payment of

the bills to the complainant  vide letter dated May 11, 1994  and also

deposited  a cheque to the complainant in that regard.

5. The District  Forum framed two points for determination;

(one)  whether there is any  deficiency on the part of the  opposite

party   and  (two)  whether  B.M.  Konar  was  authorized  agent   in

collecting the bills and GR’s  from the Bank?    Pertinently, despite

the specific plea having been  raised by the Bank that the complaint

was time barred,  point for determination in this regard was neither

framed nor considered.

6. The  District  Forum  held  that  there  was  deficiency  in

service by the Bank and that the Bank was liable to compensate  the

complainant  and  consequently,  directed  the  Bank  to  pay  to  the

complainant   a  sum  of  Rs.  2,47,154/-  with   interest  @  15%  per

annum from April  21, 1994 and Rs. 5,000/- as compensation.  As

stated earlier, the State Commission affirmed the order of the District

Forum and the National Commission also did not interfere with the

concurrent orders of the consumer fora.

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7. Section  24A of the Act, 1986 prescribes  limitation period

for admission of a complaint by the consumer fora  thus:

“24A. Limitation period  – (1) The District Forum, the State  Commission or the National Commission shall not admit a complaint unless it is filed within two  years  from  the  date  on  which  the  cause  of action has arisen.

(2) Notwithstanding  anything  contained  in   sub- section  (1),  a  complaint  may be entertained  after the  period  specified  in  sub-section  (1),  if  the complainant satisfies the District  Forum, the State Commission  or  the  National  Commission,  as  the case may be, that he had sufficient cause for not filing the complaint within such period:

Provided  that  no  such  complaint  shall  be entertained  unless  the  National  Commission,  the State  Commission  or  the  District  Forum,  as  the case  may  be,  records  its  reasons  for  condoning such delay.”

8. It  would be seen from the aforesaid provision that  it  is

peremptory in nature and requires consumer forum to see before it

admits the complaint  that  it has been filed within two years from the

date of accrual of cause of action.  The consumer forum, however,

for the reasons to be recorded in writing may condone the delay in

filing the complaint if sufficient cause is shown.   The  expression,

‘shall not admit a complaint’   occurring in  Section 24A is sort of a

legislative command to the consumer forum to examine on its own

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whether  the   complaint  has  been  filed  within  limitation  period

prescribed thereunder.  As a matter of law, the consumer forum must

deal with the complaint on merits only if the complaint has been filed

within two years from the date of accrual of cause of action and if

beyond the said period,  the sufficient  cause has been shown and

delay condoned for the reasons recorded in writing.  In other words, it

is the duty of the consumer forum to take notice of Section 24A and

give effect  to  it.   If  the  complaint  is  barred  by time  and  yet,  the

consumer forum decides the complaint on merits, the forum would be

committing an illegality and, therefore,  the aggrieved party would be

entitled to have such order set aside.  

9. In Union of India and Another  v. British India Corporation

Ltd. and Others,  (2003) 9 SCC 50, while dealing  with an aspect of

limitation for an application for refund  prescribed in Business Profits

Tax Act, 1947, this Court held that the question of limitation was a

mandate  to  the forum and,  irrespective of  the fact  whether  it  was

raised or not, the forum must consider and apply it.

10. In Haryana Urban Development Authority  v.  B.K. Sood,

(2006) 1 SCC 164,  this Court while dealing with the same provision

viz., Section 24A of the Act, 1986 held:

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“10. Section 24-A of the Consumer Protection Act, 1986  (referred  to  as  the  Act  hereafter)  expressly casts  a  duty  on  the  Commission  admitting  a complaint,  to  dismiss  a  complaint  unless  the complainant satisfies the District  Forum, the State Commission  or  the  National  Commission,  as  the case  may be,  that  the  complainant  had  sufficient cause for not filing the complaint within the period of two  years  from  the  date  on  which  the  cause  of action had arisen. 11. The section debars any fora set up under the Act,  admitting a complaint  unless the complaint is filed  within  two years  from the  date  of  which  the cause  of  action  has  arisen.  Neither  the  National Commission  nor  the  State  Commission  had considered the preliminary objections raised by the appellant  that  the  claim  of  the  respondent  was barred by time. According to the complaint filed by the  respondent,  the  cause  of  action  arose  when, according  to  the  respondent,  possession  was received of the booth site and it was allegedly found that an area less than the area advertised had been given.  This  happened  in  January  1987. Furthermore,  the  bhatties  which  were  alleged  to have caused loss and damage to the respondent, as  stated  in  the  complaint,  had  been  installed before 1989 and removed in 1994.  The complaint before  the  State  Commission  was  filed  by  the respondent  in  1997,  ten  years  after  the  taking  of possession, eight years after the cause of alleged damage  commenced  and  three  years  after  that cause ceased. There was not even any prayer by the respondent  in his complaint  for condoning the delay. 12. Therefore,  the claim of the respondent  on the basis of the allegations contained in the complaint was  clearly  barred  by  limitation  as  the  two-year period prescribed by Section 24-A of  the Act had expired much before the complaint was admitted by the State Commission. This finding is sufficient for allowing the appeal.”

11. In a recent case of  Gannmani Anasuya and Others v.

Parvatini Amarendra Chowdhary and Others, (2007) 10  SCC 296,

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this Court highlighted  with reference to Section 3 of the Limitation

Act that it is for the court  to determine the question as to whether the

suit  is barred by limitation or not irrespective of the fact that as to

whether  such  a  plea  has  been  raised  by  the  parties;  such  a

jurisdictional fact need not be even pleaded.

12. Insofaras  the  present  case  is  concerned,  at  the  first

available opportunity  in the written statement itself the Bank raised

the plea that the complaint was barred by limitation.  However,  the

objection with regard to limitation went unnoticed by all the three fora,

namely,  District  Forum,  State  Commission  and   National

Commission.   Since the question relating to limitation goes to the

root of the matter and may render the order illegal,  we would now

see whether the complaint was filed within time  i.e., within two years

of accrual of  cause of action.  

13. In this regard,  the letter dated April 21, 1994  with  which

bills and GR’s were sent by the complainant  to the Bank assumes

significance.  We reproduce the said letter  as it is ;

“M/s B.S. Agriculture Industries (India)  12/15 AA NAWAL GANJ AGRA -6

Ref. No. BA/659/94-95/30   Registered         Dated:- 21.4.94

The Agent,  State Bank of India  Khejuri Branch Post. Khjuri Distt. Midnapur

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Dear Sir,

Sub.:Our Invoice No. 17  Date  21.4.94     for Rs.   41,906.48     18               ,,    Rs.  42,438.96

                                                     19              ,,                   Rs.  39,645.60                                                        20              ,,                  Rs.  40,537.44                                                        21              ,,                  Rs.  23,093.04                                                        22              ,,                  Rs.  30,755.52                                                        23              ,,                  Rs. 28,776.96                                                                                                  __________                                                                     TOTAL             Rs.2,47,154.00                                                                                                  __________

Drawn on M/s Unique Agro Service                                      P.O. Heria, Distt. Midnapur- 721 430 (W.B.)

Enclosed  please  find  herewith  our  invoice  referred  above alongwith GR. No. 8680, 81, 82, 83, 84, 85, 86 ………….. Dated 21.4.94.  Please deliver these documents to the party on collection of Rs. TWO LAC FORTY SEVEN THOUSAND ONE HUNDRED FIFTY FOUR ONLY.

Plus your collection charge and remit the proceeds to us by Demand Draft Payable at Agra under Regd. Post only.

Thanking you for your kind co-operation.

                                                          Yours faithfully,

                                               For B.S. Agriculture Ind.(India)

Partner

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Instructions

1. Please collect your charges from drawee. 2. Please return the document if not honoured by dt. 07.06.94. 3. Please charge interest @ 24% PA  from dt. 22.05.94 4. PLEASE COLLECT “C” FORM  IF THE PARTY IS UNABLE TO

FURNISH “C” FORM PLEASE  COLLECT  6% EXTRA ON COST OF GOODS.

IF  THE  DOCUMENT  RETIRED  WITHIN   15  DAY FROM BILL DATE DISCOUNT WILL BE ALLOWED 5% AND WITHIN 20 DAYS @ 3% AND WITHIN 30 DAYS @ 1%

Copy to:- M/s Unique Agro Service                     Heria, Distt. Mindnapur (W.B.)

With a request to kindly retire the documents on presentation by the bank and oblige us with your  kind intimation of date when the bill is paid by you.   CC TO PARTY ENCLOSE – AS ABOVE.”

14. The said letter  clearly instructs the Bank to return the

documents if not honoured by drawee by June 7, 1994. Obviously,

the cause of action accrued to the complainant  on June 7, 1994

when it  did not receive the demand  draft for Rs. 2,47,154/-  nor

received the documents.     The limitation, thus,  began to run from

June 7, 1994.  The complaint ought to have been filed   within two

years therefrom which in fact was not done as  the complaint was

filed  much  thereafter  i.e.,  on  May 5,  1997.   The  complaint  was

apparently  time  barred.   Learned  counsel   for  the  complainant

would,  however, submit that the complainant sent various letters to

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the Bank and  vide their   reply dated March 11,  1997,  the Bank

asked the complainant to forward a copy of the letter dated May 4,

1996 for necessary action.  It was thus contended by the learned

counsel for the complainant that complaint filed on May 5, 1997 was

within time.  We are afraid  the  letters dated March 15, 1995,  May

4, 1996 and March 1, 1997 sent by the complainant to the Bank

and the Bank’s  reply dated March 11, 1997 are   of no help to the

complainant.    The Bank has not by their  reply dated March 11,

1997   acknowledged  its  liability.   The  Bank  only   wanted  the

complainant  to  send a copy of  the letter  dated  May 4,  1996 for

necessary action.    By no stretch  of imagination, it can be  said

that  the  limitation  came to   be  extended  by Bank’s  reply  dated

March 11, 1997.   As a matter of fact, the Bank had communicated

to the complainant  long back vide its letter dated March 28, 1995

that the  bills have been returned to B.M. Konar (Sales Manager of

the  complainant firm) on May 10, 1994 and  the matter should  be

taken up with him (B.M. Konar).    The complaint  filed on May 5,

1997 is even beyond two years therefrom.  There is no application

for  condonation  of  delay  nor  any  sufficient  cause  shown  and,

therefore,  the  question  of   condonation  of  delay   in  filing  the

complaint does not arise.

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15. On its plain averments, the complaint is barred by time

and ought to have been dismissed as such but curiously this aspect

was not examined by any of the consumer fora although specific

plea to this effect was taken by the Bank.

16. Since the complaint is barred by time and liable to be

dismissed on that  count, it would be unnecessary to examine the

other grounds of challenge.

17. By way of foot note, we may observe that the learned

counsel sought to raise an equitable plea  that  the bank was under

an obligation  to protect the interest of the complainant and in this

regard placed reliance upon the decision of this Court in Sumatidevi

M.  Dhanwatay  v.  Union  of  India  &  Ors.,  2004  (4)  SCALE  607.

Firstly,  the cited  judgment  has no application  to  the present  fact

situation.  Secondly,  and more importantly, the  complaint having

been held time barred, this plea is not of much significance.

18. In the result, the appeal is allowed, and the decision of

the   National  Commission  dated  October  1,  2001,  affirming  the

orders of State Commission and  District Forum,  is set aside.   The  

complaint stands dismissed as time barred.  The parties shall bear

their own costs.

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……………………..J (D.K. Jain)    

……………………..J (R.M. Lodha)    

New Delhi, March  20, 2009.

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