ORDER
S.N. Kapoor, J. (Member)
1. In this appeal two questions need our consideration–one relates to the question of withdrawal of the fixed deposit on 23.11.1979 and the other question relates to limitation.
2. Insofar as the question of withdrawal of the fixed deposit is concerned, the appellant by showing his passport has established that he was not present in India and consequently he could not have received the amount of this fixed deposit as alleged by the appellant Bank. No document has been shown to prove that the amount was paid to any person authorized by him. Consequently, we do not see any reason to differ from the view taken by the State Commission in this regard.
3. As regards the question of limitation, according to the complainant the FCNR account was opened on August 17, 1979 by depositing US $ 5,000/- for a period of 63 months maturing on 16.9.1984. However, the FDR was kept with the Bank itself for safe custody. In the year 1984 RBI allowed such deposit to be continued for another 6 years carrying the interest @ 13% p.a. The complainant/respondent accordingly instructed the appellant Bank to keep the amount deposited for another 6 years ending on 17.11.1990. In February and June, 1985 and again in April, 1986, he made inquiries from the Bank but failed to elicit reply. In 1986 the complainant went to the office of the appellant and an official of Bank assured him that the balance of US $ 7,939.56 had been placed in FCNR for a period of 6 years carrying rate of interest (c) 13% p.a. In September, 1990, the complainant instructed in writing to keep the entire amount by another 3 years under fixed deposit ending on 17.11.1993. The complainant returned to India on 6.1.1992, Despite personal visits and requests and letters the complainant was neither given photocopy of FCNR account nor any document of renewal. Several letters sent did not elicit any desired result excepting that he was informed that as per photocopy of the foreign currency sale/purchase register there was an entry of withdrawal of US $ 5,000/ – in the name of respondent. Appellant took up the matter with the RBI and ultimately filed a complaint on 28.9.1994. It is evident from the case narrated that the complainant does not claim to have any photocopy of FCNR deposit receipt except that on 17.8.1979. He did not produce any letter to indicate that he got it extended. It appears further that in case he made inquiries in February, June 1985 and April 1986, neither letter was sent nor any receipt, etc. was taken. He claims to have met some official whose name has not been disclosed. He claims to have instructed the Bank to keep the entire amount for another 3 years under the fixed deposit but no such letter has been produced on record. The fact that he did not insist to obtain the photocopy of the FCNR showing a balance of Rs. 7,939.56 has been put in FCNR is the matter which needs our serious consideration. On one side there is a presumption of continuity, on the other side by conduct the complainant by not insisting to get a copy of the fixed deposit. As aforesaid a big hurdle in his case is, he is literate person who claimed to have deposited an amount in fixed deposit; he has not produced any letter indicating confirmation about the further depositing the amount up to 17.11.1990. Though the complainant claims that in September, 1990 he instructed in writing for extending the period of deposit but no writing has been produced. He again claims to have written a letter with reference to FCNR on 17.8.1979 for US $ 5,000/ -. If some official of the Bank has informed him that the balance was of US $ 793.56 in FCNR for a period of 6 years. It may be further mentioned that the notice Annex. I dated 30.4.1994 does not refer to sending of any letter for the purpose of renewal. But this by itself would not militate against the presumption of continuity in absence of proof of payment.
4. On the point of limitation it is submitted by the appellant’s Counsel that since the complainant claims to have made inquiry for the first time in the year 1986 and since he did not bother to seek confirmation on any point of time before 6.1.1992, the cause of action arose in the year 1986 itself. However, it is submitted by learned Counsel for the respondent that since there was an assurance from an official of the Bank we are not inclined to accept this proposition. For the first time on 15.10.1992 when the Bank informed in writing in response to its letters sent to the Bank and to the RBI, he came to know about definite stand of the Bank. The period would start running for the purpose of cause of action on 15.10.1992 is the submission of the learned Counsel of the complainant. The complaint was filed on 28.9.1994. It is within two years expiring on 18.12.1994. Since the complaint was filed on 28.9.1994 it was within a period of 2 years in terms of Section 24-A. It was also submitted that in terms of Supreme Court judgment there was no period of limitation for filing a complaint before insertion of Section 24A with effect from 18.6.1993. In the aforesaid factual background, and presumption of continuity, in view of impossibility of payment of the amount to the complainant personally for he did not come as per his passport and lack of authorization by him in favour of any body else to receive the payment even if it was not got extended or received the amount was lying in trust with the Bank and they could not refuse its payment. If the FDR was encashed it could only be with a connivance of one or the other official of the Bank and the” Bank cannot absolve itself from the liability on the basis of an entry–in a register not in ledger of the Bank–shown without there being any authority of the complaint. For the aforesaid reasons we do not find any force in this appeal and dismissed it accordingly.