JUSTICE SHRI. K.R. UDAYABHANU : PRESIDENT
Appeal 109/11 is filed over the order in CC.256/09 and Appeal 110/09 is filed over the order in CC.5/10 in the file of CDRF, Alappuzha. Both complaints stands dismissed on the ground that the complaints have been filed beyond the period of limitation.
2. The dispute in CC.256/09 is with respect to the allegation that the 4 cheques in favour of the complainant amounting to Rs.7.lakhs has not been credited in his cash credit account. It is the case that as per the power of attorney executed in favour of the opposite party bank, the Cochin Port Trust for whom contracts works were executed by the complainant were to forward the cheques to the opposite party bank and the opposite party bank is to get it encashed and credit the proceeds in the cash credit account. According to the complainant the above cheques were also encashed but not credited in his account and when the final cheque after the execution of the contract works was sent to the bank and when the complainant approached the bank to collect the balance outstanding he was told that his account has become Non Performing Assets (NPA) from 31.3.99. On application filed under the Right to Information Act the complainant came to know that the above cheques were infact encashed by the opposite party bank but not credited in the cash credit account. If so credited the account would not have become NPA. The bank in the meantime proceeded against him under the Sarfeasi Act. The matter is now pending before the Debt Recovery Tribunal (DRT). The complaint is filed seeking compensation.
3. In CC.5/10 the matter in dispute is with respect to the bank guarantee for Rs.6000/- with respect to the contract works. The amount was not released on the ground that there is a general lien and hence the amount has been re-invested for a further period of 72 months.
4. The opposite party bank in CC.256/09 has contended that the case is barred by limitation. The further allegation that the cheques were encahsed etc is denied.
5. The evidence adduced consisted of the testimony of PW1, Exts.A1 to A6, X1, B1 to B6 in CC 256/09. The evidence in CC 5/10 consisted of Exts. A1 to A3, B1 and B2.
6. The Forum has dismissed both the complaints on the ground that the complaints as barred by limitation.
7. We find that the Forum has not considered the issues raised in the complaint and has only adjudged the matter as to the bar of limitation. It is the specific case of the complainant that he came to know of the alleged deficiency (fraud committed by the bank) only when the copy of the ledger/Ext.A3 was received by him on 2.8.2008 in response to his application under the Right to Information Act. Subsequently he moved the payee bank and as per Ext.A4 letter in response to the petition under the RTI Act he came to know that the above cheques were encashed by the bank and that the same were not credited into his account. We find that the opposite parties have not filed even a proof affidavit. The proof affidavit filed was withdrawn as the Manager of the opposite party bank did not appear before the Forum to stand cross-examination. We find that the Forum has not considered the evidence adduced in the matter in the proper perspective. In CC.5/10 in fact even the bank has no such contention that the matter is barred by limitation. In view of the fact that the entire evidence has been adduced it is only proper for the Forum to answer the issues raised in the matter. In the circumstances, the order dismissing the complaint on the ground that the matter is barred by limitation is set aside. The Forum is directed to consider the entire matter afresh and adjudge all the issues raised by the complainant in both the cases. The parties will be at liberty to adduce further evidence if they so desire. The matter stands posted before the Forum on 19.12.2011.
In the result the appeal is allowed as above.
Office will forward the LCR along with a copy of this order to the Forum.