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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO.123 OF 2012
Sapient Corporation Employees Provident Fund Trust, DLF Cyber Greens, DLF Phase-
III, Sector -25 A, Gurgaon 122 001 (Through Shri Amit Khera, Trustee and Director
Legal)
….Complainant
Versus
1. HDFC Bank Ltd., a Scheduled Commercial Bank carrying on banking business in the private sector and having its Registered Office at HDFC Bank House, Senapati Bapt Marg, Lower Parel, Mumbai- 400013 Maharashtra (Through its Managing Director Sh. Aditya Puri)
2. M/s. HDFC Bank Ltd. K.G. Marg Branch situated at G-3/4, Surya Kiran Building, 19 K.G. Marg, New Delhi-110001 (Through its Manager Ms. Varna Bhattacharjee)
3. Mr. Anand Somiach, Manager (FIG Delhi), HDFC Bank, 3rd Floor B-6/3, DDA Commercial Complex Safdarjung Enclave, Opp. Deer Park New Delhi -110029
....Opposite Parties
BEFOREHON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER
For the Complainant : Mr. Pradeep K. Dubey, Advocate
For the Opposite parties : Mr. Rishab Raj Jain, Advocate
PRONOUNCED ON: 01.11.2012
ORDER
PER MR.VINAY KUMAR, MEMBER
Consumer Complaint No.123 of 2012 is filed by M/s. Sapient Corporation Employees
Provident Fund Trust (hereinafter referred to as the Complainant), against the HDFC
bank Ltd. The Complainant has also impleaded two Managers of the Bank as OPs 2
and 3. According to the Complainant, the short point for consideration is whether the
OP-Bank has committed any deficiency of service in terms of the provisions of the
Consumer Protection Act, 1986, by debiting the account of the Complainant. It is
alleged that the demand of recovery was against the Sapient Corporation not against
the Complainant i.e. Sapient Corporation Employees Provident Fund Trust, which is a
separate legal entity.
2. Brief facts of the case, as per the Complaint petition, are—
"that on 21.08.2010 Opposite Party No.1, through O.P. No.2,
informed the officials of the Company and followed it up by an email to
the Company, informing that they are in receipt of an order/notice dated
20.08.2010 from the Employee Provident Fund Organization (EPFO) for
the recovery of Rs.1,47,52,766/- (Rupees One Crore Forty Seven Lac
Fifty Two Thousand Seven Hundred Sixty Six only) against the Company
and for prohibiting from making any payments out of the amount lying in
the credit of M/s. Sapient Corporation Pvt. Ltd. (Company). It was further
informed that they had put on hold on the account of the complainant to
the tune of said amount and if the company wishes to make the account
operational, then it should bring the stay order by 12:00 noon of
23.08.2010.”
3. Allegedly, the OPs were advised that no debit should be made to the account of
the trust since it was a different entity under the law from the Company. The officials of
the Company sent a reply e-mail to the OP-Bank in this behalf. However, on 25.8.2010
the OPs informed the Company that they have already issued a demand draft on
23.8.2010 in compliance with the notice of the Employees Provident Fund Organization
dated 20.8.2010.
4. It is alleged that the OPs have acted with wilful negligence in wrongly paying out
an amount of Rs.1,47,52,766/- (Rupees One Crore forty seven lakh fifty two thousand
seven hundred sixty six only), without any authority or mandate, from the account of the
Complainant and are therefore guilty of deficiency in service and hence are liable to
refund the said amount along with interest and damages together with legal expenses
and costs of this complaint. Accordingly, the Complaint Petition seeks the following
reliefs:-
“a. ORIGINAL AMOUNT Rs. 1,47,52,766 (Rupees
One Crore forty seven lakh fifty two thousand seven hundred sixty
six only).
b. INTEREST @ 36% per annum from the date of debiting the
account of the complainant i.e. 23.08.2010 till the date of
realisation.
c. DAMAGES on account of deficiency in service causing
harassment misery, hardships and agony etc. being
Rs.50,00,000/- (Rupees Fifty Lac Only).
d. LEGAL Expenses incurred by the Complainant, computed at
Rs.1,10,000/- (Rupees One Lac ten thousand only.)”
5. We have perused the records and heard the counsels for the two parties. A perusal
of the records as submitted by the Complainant and the facts as stated in the Complaint
Petition shows that the Bank had received order no.HR/GGN/COMP-I/26147/5466
dated 20.08.2010 from the Assistant Provident Fund Commissioner, Gurgaon. It clearly
mentioned the account no. as C/A- 00031110000846 which is the number of the
account held by the complainant Trust with the OP Bank directed the Bank to pay a sum
of Rs.14752766/- (Rupees one Crore forty seven lakhs fifty two thousand seven
hundred and sixty six) only to the credit of the regional Provident Fund Commissioner
through a demand draft. The order also directed the Bank as follows:-
“It may further be noted that no payments out of future
receipts in the account /accounts or any interest accuring or
becoming payable in the accounts or Fixed Deposit Receipts of
the defaulting establishments may be made in favour of anybody
till the balance payable towards PF damages stand fully liquidated
and this order of attachment stands withdrawn.
Evidence of the above payments or payments having been
made in compliance of this order may be produced before the
undersigned immediately.
It may be noted that in the event of non-compliance of the
requirements of this order the undersigned will have no other
alternative but to deem you personally to be the Employer in
default to the extent of Rs.14752766/- (Rupees one Crore forty
seven lakhs fifty two thousand seven hundred and sixty six only),
under the provisions of the clause (x) of the sub-section 3 of
Section 8F of the Act and further action to recover the said amount
as if the same is arrears due from you will be initiated in
accordance with the relevant provisions of the E.P.F. & M.P. Act,
1952.”
Copies of e-mails produced on record by the Complainant show—
a. that the OP/bank had informed the complainant about the order of APFC,
Gurgaon on the very next day i.e. on 21/8/2010, stating categorically that it
would wait for stay or revocation of the order till 1200 hrs on 23/8/2010
and thereafter “would be debiting the a/c with the recovery amount and
remitting the funds to the authorities.”
b. Admittedly, the notice for payment of the above amount was received by
the Sapient on 11.8.2010 in which 15 days time, from the date of receipt,
was given to make the payment. But, the reply sent to the Bank does not
show if any action to either pay or to obtain stay/revocation of the order
had been taken in the 10 days preceding the complainant’s reply of
21.10.2010. It only says “We are in a process of challenging the said order
by filing an appeal with EPFAT (Employees Provident Fund Appellate
Tribunal on 25.8.10 i.e. Wednesday (since Monday/Tuesday courts being
closed due to festivals.”(Page 34 of the Paperbook).
c. The reply of 21.8.2010 from the Complainant to the OP/bank states
that “The RPFC letter of 20.8.10 does not specify any deadline for the
bank to make the payment.” Therefore, the complainant had advised the
bank not to make any payment on 23.8.2010. This is factually not true.
The relevant part of the APFC order, reproduced earlier in this order,
would show that the bank, under the threat of legal action, had been
directed by the authority that “Evidence of above payment or payments having been made in compliance of this order may be produced before the undersigned immediately.”
6. In para 10, the Complaint petition says that “ the Opposite Parties have acted with
wilful negligence in wrongly debiting an amount of Rs 1,47,52,766 (Rupees
one crore forty seven lac fifty two thousand seven hundred sixty six only), without any
authority or mandate, in account of the Complainant and are therefore guilty of
deficiency in service”. But, neither the complaint petition nor the counsel for the
complainant have made any attempt to explain how does action in compliance with the
direction of a statutory authority become wilful negligence and deficiency in service.
7. We find that a copy of the Legal Notice issued by the complainant, before filing the
consumer complaint, has been annexed as Annexure C-14. In para 3 it says “That the
account of my above client was debited by you inspite of clear instructions from my
client not to effect the debit specifically bringing to your notice that the said orders of
recovery caused by the EPFO are without any basis, without authority and hence
against law.” Subsequently, in para 8 the Legal Notice says “That now, through this
notice my client wishes to inform you that in an appeal preferred by the Company
challenging the alleged recovery before the EPF Appellate Tribunal (EPFAT), the
appeal has been allowed against the RPFC, Gurgaon and needless to say this has
vindicated the stand of my client.” From this it is clear that the complainant knew that
his remedy against the order of recovery, lay in challenging its legality before the
appellate authority. It did eventually file an appeal. The Appellate Authority allowed the
appeal and set aside the recovery order.
8. The question that arises here is whether the fact of appeal being allowed by the
EPFAT in 2011 will render compliance in 2010 by the OP/bank with the order of the
EPFO, an act of deficiency in service. Section 2(1)(g) of the Consumer Protection Act,
1986 has defined “deficiency” to mean—
“any fault, imperfection, shortcoming or inadequacy in the quality,
nature and manner of performance which is required to be
maintained by or under any law for the time being in force or has
been undertaken to be performed by a person in pursuance of a
contract or otherwise in relation to any service;”
It is not the case of the complainant that the act of the bank in paying the amount, in
compliance with the orders of a statutory authority and after giving the complainant due
notice of the same, amounts to a deficiency of service. The allegation in the complaint
petition is that the payment has been made by the OPs, despite request and advice of
the complainant not to make it. In support, the complainant has relied upon the decision
of this Commission in Saraswati Co-Op Bank Ltd Vs. Dean Leslie Roy 1 (2008) CPJ 163 (NC), wherein it was held that unauthorised debit in complainant’s SB account,
without his consent, amounted to deficiency of service. Facts of the case cited are that
the Directorate of Enforcement had imposed a penalty of Rs 50,000 on the complainant.
But the OP/Bank had remitted an amount of Rs 2.5 lakhs, debiting it to the account of
the complainant. Allegedly, this was done on oral instructions of the complainant. The
National Commission held that in the absence of the name of the Bank officer who had
allegedly received the oral instruction and the date thereof, there was no reason to
disbelieve the complainant that no such instruction was given. The facts of the case
before us are on an entirely different footing. The OP bank has paid the amount, in spite
of the advice of the complainant not to pay. Therefore, the question is not whether there
was any instruction from the complainant to pay. The question is whether the action of
the OP bank in not implementing the complainant’s direction to disobey specific, written
directions of a statutory authority, would amount to a deficiency of service, as defined
under the Act.
9. In view of the detailed consideration of the facts and circumstances of the case
before us, we hold that the action taken by OP bank was proper, legal and after
reasonable notice to the complainant. It does not amount to a deficiency of service and
no cause of action would arise from it. We therefore reject the contention of the
complainant that the cause of action first arose when the bank informed the company
on 21.8.2010 about the communication received from the EPFO and arose again when
the OP debited the account of the complainant on 23.8.2010. The complaint petition is
accordingly held to be devoid of any merit.
10. We also deem it necessary to consider whether this complaint would attract the
provision in Section 26 of the Consumer Protection Act, 1986. This provision requires
the consumer fora to dismiss a complaint if it is found to be frivolous or vexatious in
nature. In other words, we need to see whether the complaint lacks seriousness and is
filed without sufficient cause or without sufficient grounds. Significance of this provision
lies in the fact that the Consumer protection Act, 1986 is a social legislation to provide
economic justice and to protect the consumer from exploitation. For this reason, no
court fees are payable for filing a complaint, as required in civil suits. Consumer
Protection Rules, 1987 prescribes a maximum fee of Rs 5000 for making a complaint,
involving total value above Rs one crore. Therefore simultaneously, there is need to
guard against possibility of such absence of court fee being misused for pursuing false
and frivolous litigation in the consumer fora. In this context, the following facts acquire
special significance—
a. The complaint is filed after the complainant had already won his appeal in
the EPFAT against the recovery of Rs 1,47,52,766 (Rupees
one crore forty seven lac fifty two thousand seven hundred sixty six only)
made as per order of the EPFO, Gurgaon.
b. The complaint does not disclose whether consequent action, in pursuance
of the order of EPFAT, for obtaining refund of the excess/wrong recovery
has been initiated by the complainant Trust or by the company. If not,
why?
c. If refund is already claimed or received from the EPFO as per the order of
EPFAT, the complaint makes no attempt to explain what is that other loss
which is sought to be recovered from the OP bank, as the appeal before
the EPFAT also included claim for interest.
11. We therefore, hold that the complaint is not only without merit but
also frivolous and vexatious in nature. It has been filed with a very
palpable purpose to harass the OP bank. Consequently, Consumer
Complaint No. 123 of 2012 is dismissed for want of merit as well as for
being vexatious and frivolous in nature. We therefore, deem it just and
proper to impose cost of Rs.25,000 on the complainant. The same shall
be paid to the OP/HDFC Bank within a period of three months. Failing this,
the amount shall also carry interest at 10% for the duration of delay.
.……………Sd/-……………
(J. M. MALIK, J.)PRESIDING MEMBER
…………Sd/-……………….
(VINAY KUMAR)S./- MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
Revision Petition No. 3994 OF 2012
(from the order dated 20.07.2012 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in First Appeal no. 683 of 2011)
Mr Jajula Veeranjaneyulu Son of Shri J Gandhi Veeraiah Opp: to Old Police Station Karempudi Post & Mandal Guntur District Andhra Pradesh
Petitioner
Versus
State Bank of India Represented by its Branch Manager Karempudi Post & Mandal Guntur District Andhra Pradesh
Respondent
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR MEMBER
For the Petitioner Mr P Prabhakar, Advocate
Pronounced on 22 nd November 2012
O R D E R
JUSTICE J M MALIK, PRESIDING MEMBER
1. The whole controversy centres around the question
whether Jajula Veeranjaneyulu complainant/petitioner had withdrawn a sum of
Rs.1,50,000/- from the Bank ?
2. The complainant/petitioner had opened a Savings Bank Account with the State
Bank of India the opposite party/ respondent under savings bank account no.
11509282941 on 08.12.2008. The complainant was having a credit balance of
Rs.1,87,530.12 paise in his account. Thereafter on enquiry it transpired that an amount
of Rs.1,50,000/- was transferred from his account to another account bearing no.
030344251858 which is the joint account of Mr. K S M Prasad, (who committed suicide
on 08.01.2009), cashier’s wife and her brother at Guntur, Andhra Pradesh. The grouse
of the complainant/petitioner is that he never authorised any person much less the
opposite party/respondent to transfer the amount from his account. He also lodged a
complaint on 19.01.2009 in this context. However, the opposite party/respondent
insisted that the amount was withdrawn by the complainant/petitioner himself and not by
somebody else.
3. Ultimately, the complainant filed a complaint before the District Forum. The District
Forum allowed the complaint and directed the opposite party/respondent to pay
Rs.1,50,000/- together with interest as applicable in the case of savings banks account
from time to time. It also awarded Rs.5,000/- towards compensation and Rs.1,000/-
towards costs.
4. Aggrieved by that order, the State Bank of India preferred an appeal before the
State Commission. The State Commission allowed the appeal and dismissed the
complaint. Aggrieved by the order of the State Commission the complainant/petitioner
filed the present revision petition.
5. We have heard the learned counsel for the petitioner. He vehemently argued that
the petitioner never authorised any person to withdraw the said amount. He argued that
the deficiency of the petitioner stands proved and therefore, the order passed by the
District Forum should be restored. He pointed out that Mr Suresh Kumar, Chief
Manager of the State Bank of India was appointed as an Inquiry Officer (in short, ‘the
IO’) and after receipt of the complaint filed by the complainant, the IO came to the
conclusion that the above transactions with regard to withdrawal of the amount he was
unable to give his opinion whether the said transaction was genuine or not.
6. The record also goes to show that the OP/petitioner sent all the withdrawal forms
together with the account opening form and the complaint dated 19.01.2009 of the
complainant to the examiner of Questioned Documents, Government of
India, Hyderabad. The Government expert came to the conclusion that the signature of
the withdrawal forms and account opening form and the letter dated 19.01.2009 were
signed by the one and the same person, i.e., the complainant himself. Due to this
signature, the amount of Rs.1,50,000/- was withdrawn from his account.
7. This piece of evidence towers upon the rest. It is pertinent to note that the
complainant did not produce any evidence in rebuttal and no expert evidence from the
side of the complainant saw the light of the day In view of this solid and unflappable
evidence the case of the complainant pales into insignificance. The case of the
OP/respondent is supported by cogent and plausible evidence. The order passed by the
State Commission suffers from no flaw.
8. It is thus clear that the petitioner has no bone to pluck with the respondent. The
revision petition is ill founded and therefore dismissed at the time of admission.
………………Sd/-…………
J. M. Malik, J]
Presiding Member
……………….Sd/-………………
Vinay Kumar ]
Satish Member
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 51 OF 1999
M/s. Packer Sea Food (Pvt) Limited Through its Managing Director Shri C.P.Azariah Samuel Raj Having its registered office at College Road, Nagercoil-1, Kanyakumari District And having factory At 74/2 Kulasekarapuram Village, Vazukamparai, Agastheeswaram Taluk,Kanyakumari District
….Complainant
Versus
1. The Tamilnadu Industrial Investment Corporation Ltd., 27 Whites Road,Madras: 600 014 2. The Branch Manager, Tamilnadu Industrial Investment Corporation Ltd,37 Cape Road, Nagercoil- 629 001
.....Opposite parties
BEFOREHON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER For the Complainant : Mr. M.L. Mahajan, Advocate For the Opposite parties : Mr. K.P. Toms, Advocate
PRONOUNCED ON:02.01.2013.ORDER
PER MR.VINAY KUMAR, MEMBER
M/S Packer Sea Food Private Limited has filed this complaint against the Tamil
Nadu Investment Corporation. The complaint arises from alleged delay in disbursal and
part non-disbursal of a loan of Rs.70 lakhs, sanctioned by the OPs to the Complainant
for setting up a marine products processing unit.
2. The case of the Complainant is that the loan was sanctioned on 20.10.1993 but
only Rs.15.3 lakhs had been disbursed till 18.3.1994. By the time the complaint was
filed, only Rs.44.83 lakhs had been released and remaining balance of Rs.25.17 lakhs
and subsidy were never released. This was inspite of the fact that the Principal, Govt.
College of Engineering, Tirunelveli, appointed by the OPs to evaluate the plant and
machinery, had reported that the building was worth Rs.41.58 lakhs, excluding cost of
the land.
3. The complaint petition gives details of alleged “dillydallying attitude” of the OPs,
which eventually forced him to write to the Complainant on 7.2.1996 stating that it was
left with no alternative but to seek funding facilities from another source. This letter
(Annexure P-49) stated:-
“Therefore this is to require you to release the documents that we have deposited with you as additional collateral security to enable us tohypothicate with other financiers. It is also noted that you yourself and the corporation alone shall be liable for losses, and other damages that we have incurred on account of “Dilly-dallying” tactics adopted by you for the past 1 ½ years in the disbursement to our project. Since our project is nearing completion we have been driven to this extreme step as you have been dragging the matter unnecessarly and purposely for reasons best known to yourself.”
4. According to the Complainant, the project has suffered delay of 2½ years due to
failure of the OPs to make timely and sufficient disbursal of the sanctioned loan. Even
after arrangements were made to raise necessary funding from another source, the
NOC was not released by the OPs. Therefore, the Complainant has sought the following
reliefs against the OPs, for loss caused by their negligence, delay and failure to provide
proper service—
“ (i) Interest on delayed completion Rs.25.74
(ii) Cost escalation Rs.95.99
(iii) interest arising out of non-release of sanctioned
amount by respondent Rs.2.97
(iv) interest loan on account of delayed claim of
subsidy amount Rs.1.94
(v) EB minimum charges payable for the delayed
Period Rs.13.50
(vi) mental agony suffered because of the aforesaid
causes Rs.10.00
(vii) loss of profit including contacting other persons
for arranging loans/lacs Rs.50.00”
5. During the course of these proceedings, the Commission identified six issues for
decision and directed on 6.9.2010 that—
“The complainant shall submit brief written arguments on the six issues, which are required to be decided in this complaint with reference to the evidence on each head and the quantum of claim on each head, copy of the same be furnished to the counsel for the opposite party within four weeks. Thereafter, counsel for the opposite party shall file item-wise reply on each issue and furnish a copy of the same to the counsel for the complainant within four weeks. Parties are at liberty to add issues to be decided”.
Accordingly, a brief written argument was filed by the Complainant on 9.11.2010. In
this, the following issues/heads are listed:-
“a. Interest on Rs.25 lack taken from private party.
b. Increase of cost or propitiate escalation cost.
c. Delay in release the subsidy by TIIC its actual cost/effect.
d. Minimum Electricity Charges (EB)
e. Business loss
f. Mental Agony”
6. Per contra, the case of the OPs is that it is a corporation set up by the
government of Tamil Nadu with branches all over the States and with the avowed
objective of “extending financial assistance to various entrepreneurs in the State
of Tamilnadu for development of industries in the State”. The loan to the Complainant
was sanctioned on 20.10.1993 with clear terms and conditions, which were accepted by
it on 17.1.1994. As per Clause 43 therein, collateral security for the loan was required to
be provided by the Complainant. Delay in this, led to delay in disbursal of loan. OPs
have further alleged that:-
a) The Complainant sought sanction for purchase of two generator sets and an
additional Plate Freezer from suppliers different from the ones originally purposed.
b) The procedure for payment required the advance amount to be paid to the supplier
through the opposite parties. Therefore, details were sought from the Complainant for
change of suppliers of generator sets and motors.
d) As per norms of disbursement release of loan amount for purchase of assets not
envisaged in the scheme, was not permissible. Such purchases could be made from
contingency. But, contingency itself could be utilized after implementation of the full
project. All equipments considered necessary for the project, should have been included
by the complainant in the original project itself.
e) Inspection of the factory building by the regional office of OPs revealed that the
Complainant had not purchased any machinery as per the bills submitted.
f) The machineries were erected in the factory premises by a fabricator, who was not
a supplier as per the sanctioned scheme.
g) Principal Government College of Engineering Tirunelveli had valued the building at
Rs.39,56,245/- and the machinery at Rs.21,60,000/-. The valuation of machinery here
was questioned by the OPs in their letter of 7.3.1994.
h) If the borrower requests for change of equipment suppliers, the OPs have to verify
the capacity, market reputation and comparative cost of the proposed supplier. In the
case of generator sets, the change of supplier was agreed by the OPs within a month,
but the supply could not be effected as the Complainant did not accept the condition of
payment after delivery of the generator sets.
i) When the Complainant asked for NOC to raise working capital from another
financier, there was an overdue of Rs 17 lakhs in his loan account. Therefore, the
Complainant was asked to clear the overdue for issue of the NOC.
j) Even after the loan account between the two parties was settled, the Marine
Products Export Development Authority, Govt. of India informed that invoices/bills and
receipts submitted by the Complainants to the OPs are fabricated and false.
7. We have carefully considered the pleadings and evidence brought on record
by the two sides and heard their counsels, Mr M L Mahajan for the complainant and Mr
K P Toms for the OPs. Mr Mahajan drew our attention to the sixteen page document
(signed by the lender/OPs on 28.10.1993) containing the details of sanction of this term
loan of Rs 70 lakhs (Annexure P-2). It projects total cost of the venture as Rs 155 lakhs,
to be funded in the following manner—
Loan from the OP Rs 70 Lakhs
Subsidy/State capital Rs 15 lakhs
Capital Rs 50 lakhs
Unsecured loans Rs 20 lakhs
The loan of 70 lakhs was sanctioned for construction of the factory building and
purchase of machinery required for the project. It was to be repaid in 24 instalments,
after a moratorium of 24 months from the date of the first disbursal. As per the terms, the
disbursal for civil works and equipment was to be made after inspection and valuation.
For this, a valuer was appointed by the OPs. Learned counsel pointed out that
the valuer (Government College of Engineering,Tirunnelveli) submitted reports to the
OPs, from time to time. Their reports from 3.11.1993 to 6.3.1994 (i.e. before the first
disbursal by the OPs) show that an investment of Rs 44.95 lakhs in land & building
and Rs 3.86 lakhs in machinery had already been made by the complainant.
8. Mr M L Mahajan, learned counsel for the complainant, argued that the total
amount released by the OPs was only Rs 44.83 lakhs. No release was made after
March 1995. Therefore, the balance of Rs 25.17 lakhs had to be raised from private
sources at very high rates of interest, to ensure completion of the project.
9. In reply, Mr K P Toms, learned counsel for the OPs filed additional written
arguments on 24.9.2012 with records of disbursement to show that as on 29.3.2005, in
all Rs 44.83 lakhs towards the term loan and Rs 9.51 lakhs towards subsidy had been
released to the complainant. Learned counsel argued that subsidy and the term
loan together constituted only 55% of the project cost. Therefore, the commitment of the
OPs was limited to funding 55% of the asset created under the project. The borrower
had created assets worth Rs 89.36 lakhs only. The OPs were required to release only
55% thereof i.e. Rs 49.15 lakhs. Accordingly, actual release fell short by Rs 4.32 lakhs
only which was retained by the OPs towards cost of the machinery supplied by M/S
Rank Engineering Works. In this context, Mr K P Toms referred to the written response
filed by the OP in this Commission on 17.5.1999. Para 23 therein states—
“With regard to paragraph 11 of the complaint, the statement issued by the banker for the account of M/s Rank Engineering Works did not a have any authenticity. M/s. Lakshmi Vilas Bank, Nagercoil said to have issued statement of account for the company M/s Rank Engineering Works which was having its factory and office at Chennai. The payments made to the said engineering company were sent to office at Chennai only. Therefore, the statement issued by a bank at Nagercoil caused suspicion on the genuiness of the statement. Besides this, the complainant reported to have paid Rs.21.60 lakhs but the said engineering company has received Rs.4 lakhs only. Further with regard to the allegation of demanding interest, it is stated that the complainant had to pay the interest accrued to the account and therefore, the second opposite party demanded the interest from the complainant.”
10. This claim, made on behalf of the OPs, was challenged by Mr Mahajan, counsel
for the complainant. He drew our attention to the report of 10.3.1995 submitted by
the valuer, Government College of Engineering, appointed by the OP/Tamil Nadu
Industrial Investment Corporation itself. The three items of equipment having, total value
of Rs 21.60, lakhs figure as the last three items in the report signed by two senior
lecturers of the Engineering Department of the College. When confronted with this piece
of evidence on record, learned counsel for the OPs very gracefully concede that he had
no answer for the same. It is therefore, clear that the OPs have not verified their facts
before filing the written response of 17.5.1999 and written arguments on 17.9.2012. At
this stage, we do not wish to make any further observation on this point.
11. The evidence brought on record shows that the first three disbursals were made in
March 1994. In September 1994 the complainant was informed that further disbursal of
the loan was decided by the OPs to be “withheld”. Thus, no release of loan or subsidy
was made until 29.3.1995. Rs 25.17 lakhs of loan and Rs 5.94 lakhs of subsidy i.e.
31.11 lakhs out of the commitment of Rs 85 lakhs, was never disbursed. The final
position is confirmed by the counsel for the OPs in the statement produced before us on
24.9.2012. The allegations of delay in disbursal and non-disbursal of the loan and
subsidy are to be seen in this factual background.
12. In the affidavit evidence filed on behalf of the OPs, delay is attributed mainly to the
decision of the complainant to purchase generator sets and Plate Freezer from suppliers
different from the ones ‘originally proposed’. The request was agreed by the OPs, in so
far as the generators were concerned. But, there is no explanation why no advance was
released in favour of the supplier. Nor is there an explanation why the condition of
supply before payment was imposed when, as admitted in the affidavit evidence of the
OPs, payment of advance to the suppliers was permissible, subject to the same being
routed through the OPs. More importantly, there is no explanation for the resultant
delay. Details in para 17 of the affidavit evidence of the complainant show that it was
over three months.
13. As noted earlier, the stoppage of further disbursals was communicated to the
complainant on 15.9.1994. This was preceded by inspection by the Regional Office of
the OPs. As per the affidavit evidence of the OPs, “The inspection revealed that the
complainant had not purchased any machinery as per the bills admitted.” However, the
letter of 15.9.1994 (produced on record as Annexure P-9), which is a cryptic
one para letter, gives no idea whatsoever of the reason for stoppage of further
disbursements. But, a reading the affidavit evidence of the OPs, filed on 7.5.2008
together with the objections filed by the complainant on 5.10.1999, gives a clear idea of
the underlying reason. As per the complainant, it preferred to buy the generators from
another supplier as it had quoted rates 20% lower than the one chosen by the OPs
(Para26). The OPs do not respond to the question of rate difference but admit that “On
16.3.1994 the complainant requested for change of machinery supplier from
M/s Mahanarayanee Investment and Trading Co.P. Ltd., Madurai to M/s Parry
Engineering and Exports Limited for the purchase of 2 Generator set for which the
second opposite party requested vide their letter dated 17.3.1994 the complainant to
submit the original proforma invoice so as to take a decision on change of supplier.
While it was so, on 29.3.94, the second opposite party issued a commitment letter to M/s
Air Power India Ltd. guaranteeing payment subject to conditions on supply of machinery.
A DD for Rs 6,13,000/- was forwarded to the said supplier as advance out of term
loan against subsidy eligibility................Also, in another letter dated 6.6.94, the
complainant reiterated the stand to purchase 2 Gensets from M/s Parry & Co., instead of
M/s Mahanarayanee Investments and Trading Co. P.Ltd.”(Para 15). This is a clear
admission that the OPs were in a hurry to procure the equipment, even before taking a
final view on the request of the complainant to change the supplier.
14. Following conclusions emerge from the detailed consideration above—
a. Report of the valuer shows that even before the first disbursal by the
OP, investment of Rs 44.95 lakhs in the building and Rs 3.86 lakhs in machinery
had been made by the complainant.
b. Most of the machinery and equipment have been procured subsequent to the
sanction of the loan by the OPs. Therefore, its value, as assessed by
thevaluer rose from 3.86 lakhs in November 1993 to 49.71 lakhs in March 1995.
c. The OPs disbursed part of the loan and subsidy but with long delays between
disbursals. Admittedly, Rs 25.17 lakhs of the term loan and Rs 5.49 lakhs of
subsidy remained undisbursed.
d. Delay in disbursal is sought to be explained on the ground that the purchased
machinery (though reflected in the evaluation report of 7.7.1994) was not found in
the factory during subsequent inspection by the OPs. But, it is also admitted
that Rs 16.88 lakhs were released in March 1995, based on the valuation report
of 10.3.1995. There is no explanation as to what happened in between to satisfy
the OPs that the ‘missing machinery’ was not physically missing. We are
therefore, of the view that the delay on this account cannot be treated as bona
fide conduct on the part of the OPs.
e. The logic of proportionate release (i.e. OP’s commitment of loan as 55% of the
project cost) is an unconvincing attempt to justify the delay. It has merely
remained an attempt to take the focus away from the inexplicable delay caused
by the conduct of the OPs. This delay was a negation of their own avowed
objective of extending financial assistance to entrepreneurs in Tamil Nadu for
development of industries in the State.
f. The delay in procurement of generator sets has not been objectively explained.
On the contrary, OPs’ own evidence shows that it was caused by their attempt to
procure it from a supplier of their choice (though, as revealed by the Complainant,
at a higher cost), against the requirement of the complainant. In this case too, the
delay cannot be called bona fide.
g. In so far as the time taken in release of ‘No Objection Certificate’ to the borrower
is concerned, we agree with the OPs that it could not have been issued before
clearance of the outstanding amount by the complainant.
15. The OPs have sought to rely upon the decision of H’ble Supreme Court of India
in Karnataka State Industrial Industrial Investment and Development Corpn. Ltd.,
(2005) 4 SCC 456. In this case, the respondent had taken a loan of Rs 116.30 lakhs
from the Karnataka State Industrial Investment and Development Corpn (KSIIDC) in
1991. The borrower committed defaults in repayment. Therefore, the KSIIDC took over
the unit in 1996 and sold it for Rs 171 lakhs in 1998 to a third party. The borrower filed a
writ petition in the High Court praying for declaring the sale null and void. The High
Court decided that borrower should be given an opportunity to make an offer to
purchase on the same terms as agreed by the KSIIDC with the buyer. The decision of
the learned single judge was challenged by the buyer in a writ appeal. The
Division Bench ordered the KSIIDC to re do the entire sale process and to give the
borrower an opportunity to bring a better offer. Hon’ble Supreme Court held that the
KSIIDC had acted in a bona fide manner and set aside the direction to it to redo the
entire sale process. Facts in the case before us are entirely different. Therefore, in our
view the case of the OP/Tamilnadu Industrial Investment Corporation gets no support
from this decision.
16. In the result, we hold that the complainant has fully succeeded in establishing that
the delay in disbursal of the term loan with subsidy as well as part non-release of the
same after March 1995, was without any justifiable cause. This failure to provide proper
service to their borrower, amounted to ‘deficiency of service’ on the part of the OPs,
within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. We are
therefore of the view that the complainant is entitled to be compensated for the same.
17. The consequential cost of delay in disbursal and of non-disbursal itself, has been
quantified by the complainant, as directed by this Commission. As per written
submission of the complainant, the value of total assets had risen to Rs.203.84 lakhs in
May 1996 and Rs.274.39 lakhs by May 1997. We do not consider it necessary to go
into it. Because, whatever the actual growth of the Unit set up by the complainant, the
liability of the OPs in the context of the Consumer Complaint, will not travel beyond the
consequences of delay in disbursement of the total agreed quantum of loan and subsidy
as well as of non- disbursal of a part thereof.
18. The effect of this delay has been quantified by the Complainant in six heads, as
per the direction of this Commission, mentioned earlier in this order. Expectedly, it has
not been challenged by the OPs. Towards the non-released sums of loan and subsidy
interest, Rs.13.16 lakhs has been claimed at 36% per annum. We consider it proper to
limit it to 18%. Cost escalation for building and machinery, calculated at 12 and 10%
respectively, are considered reasonable and acceptable. This comes to Rs.11.75 lakhs.
Similarly, business loss at 10% for five months is considered reasonable and therefore
the claimed amount of Rs.6.45 lakhs is allowed. However, we do deem it proper to
allow the minimum electricity charge claimed by the Complainant, as it would have
been payable, in any case. Finally, there is no case for allowing further compensation
of Rs.25 lakhs claimed towards mental pain and agony, as interest on delay in releases
cost escalation as well as business loss have separately been allowed.
19. Accordingly, the total compensation payable under all admissible heads is rounded
off to Rs.25 lakhs. Cost of Rs one lakh is also awarded in favour of the
Complainant. The OP/Tamilnadu Industrial Investment Corporation Limited, is directed
to pay this amount of Rs.26 lakhs to the complainant, together with interest at 9% per
annum, from the date of the complaint. The entire amount shall be paid within a period
of three months, failing which the period of delay shall carry additional interest of 2% per
annum.
.…………………………(J. M. MALIK, J.)
PRESIDING MEMBER
…………………………. (VINA
Y KUMAR) MEMBER
s./-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.3990 OF 2011(From the order dated 5.10.2011 in First Appeal No.102/2010 of the
Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupathi)
Mudivarthi Radha Krishna S/o Raghavender Rao D.No. 27-2-56, Balaji Nagar,
Nellore
… Petitioner
Versus
The Branch Manager, Andhra Bank Plot No.15, Ward No.21, Balajinagar, Nellore Distt. Nellore
… Respondent
BEFORE: HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER
For the Petitioner : Mr. C.P. Suresh, Advocate
PRONOUNCED ON: 13 TH JANUARY, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed by the petitioner, who is the original
complainant, against the order dated 5.10.2011 passed by the Andhra Pradesh State
Consumer Disputes Redressal Commission, Circuit Bench Tirupathi (‘State
Commission’ for short) by which the State Commission allowed the appeal filed by the
respondent/opposite party challenging the order dated 20.11.2009 passed by the
District Consumer Disputes Redressal Forum, Nellore by which the District Forum had
partly allowed the complaint of the petitioner and directed the respondent to pay
Rs.50,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of
the complaint. Vide its impugned order the State Commission the State Commission set
aside the order of the District Forum and dismissed the complaint with cost computed at
Rs.2,000/- payable by the petitioner. It is in these circumstances, that the present
revision petition has been filed.
2. We have heard Mr. C.P. Suresh, Advocate appearing for the petitioner and
perused the record.
3. The only point for consideration before us in this case is as to whether the
respondent Bank committed any deficiency in service in the collection of
the cheque deposited by the petitioner with it. It is not under dispute that the petitioner
presented the cheque in question dated 20.6.2007 for Rs.50,000/- with the respondent
Bank on 17.12.2007. The cheque was valid upto 20.12.2007 and it was an
outstation cheque drawn on Allahabad Bank, Hyderabad. The State Commission while
reversing the finding of the District Forum held that if there was any delay, it was the
complainant who was guilty of delay in presentation of cheque just three days prior to
the expiry of the cheque. More so, when it was an outstation cheque, he ought to have
presented the same well in advance to enable the OP Bank to collect the amount. The
complainant cannot present the cheque at the 11th hour and then complain that there
was delay which would constitute deficiency in service. In addition to this, the State
Commission has also recorded the following reason in support of the impugned order: -“We may also state that the complaint for the reasons not
known did not implead Allahabad Bank, Himayatnagar, Hyderabad as a party which had returned the cheque on the ground that it was stale. Appellant could prove by irrefutable documentary evidence on the day when the complainant had presented the cheque it has sent on the very same day for collection of amount to Hyderabad. Subsequent events were not in the hands of appellant bank in order to find out nor any deficiency in service attributable to Allahabad Bank at Hyderabad. Importantly, he has suppressed the document which viz. , cheque return memo, obviously he was afraid that entire case falls two ground. Considering the circumstances, we are unable to fix liability on the appellant bank nor we can say that there was deficiency in service on its part. The complainant is guilty of his own acts by presenting the chequejust three days before expiry. We do not subscribe to the view expressed by the Distt. Forum in this regard.”
4. We agree with the view taken by the State Commission. Admittedly only three
days’ time was left before the expiry of the cheque which was an outstation cheque,
when it was presented by the petitioner before the respondent Bank. The petitioner
should have known that he himself was to be blamed for such extraordinary delay in
presentation of thischeque and as such he had subjected himself to grave risk and if the
validity period expired before the cheque could reach the payee bank which was at
Hyderabad, the petitioner himself is to be blamed for this delay. The respondent Bank
could not be held responsible for the same since it had dispatched the cheque well on
time after its presentation for collection. Regarding the non-joinder of the payee
Allahabad Bank, Hyderabad with a view to prove the allegation regarding the delay on
the part of the respondent Bank, learned counsel submitted that only an oral request
was made to this effect before the District Forum and as such it was not possible to
produce any formal order of the District Forum regarding refusal to accept such request.
We are not convinced with the explanation. The District Forum apparently did not
appreciate the factual position properly while holding the respondent Bank deficient in
service. In the circumstances, we do not find any reason to interfere with the impugned
order which is based on the undisputed facts and the correct legal position.
5. Consequently, the revision petition fails. There shall be no order as to cost.…………………………..
(K.S. CHAUDHARI)PRESIDING MEMBER
…………………………..(SURESH CHANDRA)
MEMBERRaj/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO.2544OF 2011(From the order dated 03.05.2011 in First Appeal No.A/10/1027 of the Maharashtra
State Consumer Disputes Redressal Commission, Mumbai)
Mr. Deepak Jayendra Mehata R/At no.5 B-3 Narendra Complex SP Road Dhar Khadi Cross Vaishali Nagar Dahisar (E) Mumbai Maharashtra.
...... PETITIONER
Versus
1. The Chairman HDFC Bank Ltd Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Road, Andheri (E) Mumbai Maharastra.
2. The Branch Manager HDFC Bank Ltd. Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Raod Andheri (E) Maharashtra.
3. The Manager/Director M/s OM Sai Motors Pvt. Ltd. Jyoti Plaza, S.V. Road, Kandivali (W), Mumbai-400067, Maharashtra.
....... RESPONDENTS
BEFORE:
HON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON'BLE MR.SURESH CHANDRA, MEMBER
For the Petitioner : Ms. Jayshree Satpute, Advocate
For the Respondents : Mr.Rishab Raj Jain, Adv. for R1& R2
Mrs. Bindu Jain, Adv. for R3
PRONOUNCED ON: 14 th January, 2013
ORDER
PER SURESH CHANDRA, MEMBER
This revision petition has been filed against the order dated 03.05.2011 passed
by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (‘the
State Commission’, for short) by which the State Commission allowed the appeal of the
petitioner only against OP no.3/respondent no.3 and remitted the matter back to the
District Forum as against OP no.3 only and dropped the complaint against OPs no.1
and 2/respondent nos.1 and 2. The impugned order reads as under:-
“(i) Appeal is allowed only against Respondent/original Opponent No.3.
(ii) Impugned order as against Respondent/Original Opponent Nos.1 &2 stands confirmed.
(iii) The Consumer Complaint No.188/2008 is remitted back to the Forum as against Respondent/original Opponent no.3 only, in the light of the observations made in the body of the order.
(iv) Both parties, i.e. Appellant/original Complainant and Respondent/original Opponent No.3 shall appear before the Forum on 03.06.2011.
(v) The Forum shall give opportunity, if so desires by the Appellant/original Complainant to correct the description of original Opponent No.3. If such application is made, that should be decided on merit after hearing Opponent no.3.
(vi) The Forum shall also give proper opportunity to the parties before it, i.e. Complainant and Opponent No.3 to lead their respective evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter them, settle the dispute according to law.
(vii) In the given circumstances, both the parties in appeal shall bear their own costs.
(viii) Appeal stands disposed of accordingly.”
2. Briefly stated, it is the case of the petitioner, who was original complainant before
the District Forum, that he had purchased a Tata Indigo car in the month of August,
2005 from M/s Om Sai Motors Pvt. Ltd., Kandivali (W), Mumbai, respondent no.3
herein. While an amount of Rs.1,40,000/- against the total purchase price of the car is
alleged to have been paid by the complainant-petitioner to the agent of respondent
no.3, he also applied for car loan of Rs.4,51,000/- from the HDFC Bank Ltd. who are
respondents no.1 and 2 in this petition and were OPs in the same order before the
District Forum. The loan amount sanctioned by the respondent bank to purchase the
said car is alleged to have been directly released by the respondent bank to
respondent no.3. It is the case of the petitioner that respondent no.3 failed to deliver the
possession of the vehicle purchased. It is also alleged by the petitioner that instead of
making delivery of the said car to him, the respondent no.3 had given delivery thereof to
another person called ‘Deepak Devendra Mehta’. Alleging deficiency in service on the
part of the respondent no.3/OP no.3, the petitioner filed a consumer complaint before
the District Forum in which the Chairman of the HDFC Bank was shown as OP no.1 and
the Branch Manager of the Bank was made as OP no.2 in addition to the
Manager/Director of M/s Om Sai Motors Pvt. Ltd. being included as OP No.3. On
notice, OPs appeared before the District Forum. The financial help provided by the
HDFC Bank for purchase of the car through a car loan was admitted by the HDFC Bank
but the respondent no.3 submitted that they had no dealing with the petitioner and they
had dealing with one Mr.Deepak Devendra Mehta to whom the car had been
delivered. Vide its impugned order dated 31.07.2010, the District Forum came to the
conclusion that the facts of this case showed that this is not a complaint which can be
tried by a Consumer Forum in a summary trial under the Consumer Protection Act,
1986 and as such held that the complaint is not maintainable before it and that the
complainant should have preferred a Forum of conventional Court to thrash out the
complicated issues by appropriate legal proceedings. Accordingly, the District Forum
dismissed the complaint.
3. As stated above, vide its impugned order the State Commission remanded the
matter to the District Forum for giving an opportunity to the parties for leading evidence
and to settle the dispute according to law after hearing the parties. Since the State
Commission, while remitting the matter back to the District Forum, dropped the
complaint against respondents no.1 and 2 who had been made OPs no.1 and 2 by the
complainant before the District Forum, the petitioner has now challenged this order
before us.
4. We have heard Ms. Jayshree Satpute, Advocate for the petitioner, Mr. Rishab Raj
Jain, Advocate for the respondent no.1 and 2 and Mrs.Bindu Jain, Advocate for the
respondent no.3.
5. It is contended by the learned counsel for the petitioner that the State Commission
has committed grave mistake in observing in its impugned order that the petitioner did
not have any grievance against the respondent bank and hence reached the conclusion
that the respondent no.1 and 2 were impleaded unnecessarily as the opponents. She
submitted that the District Forum without reaching a final conclusion in respect of the
complaint in question had simply observed that in view of the complicated nature of
issue involved the same was not maintainable before the Consumer Forum and hence
dismissed the complaint by its order by which the petitioner was directed to approach a
Civil Court competent to take cognizance of the dispute. It is the contention of the
learned counsel that since the State Commission has not looked into the merits of the
case, it would be wrong on its part to dismiss the complaint against therespondents no.1
and 2/OPs no.1 and 2. In any case, it was not correct on the part of the State
Commission to hold that since the consumer dispute was in respect of non- delivery of
the vehicle by the dealer , i.e., the respondent no.3 to the petitioner/complainant, the
presence of the bank/financial institution could be dispensed with. She submitted that
once the evidence is led by the concerned parties, the presence of the respondent
bank who was included as opposite party would be absolutely essential. She, therefore,
pleaded that the impugned order of the State Commission be set aside and the matter
be remanded back to the State Commission for deciding it on merits by retaining
the respondents no.1 and 2 as parties to the case.
6. Learned counsel for the respondent no.3 has also submitted that the matter be
remanded to the State Commission and not to the District Forum.
7. Learned counsel for the respondent bank has reiterated that the grievance of the
complainant is mainly against the persons, namely, Mr. Vilas P. Sawant, Mr. Sandeep
Kandalkar and Mr. Ajay Sawant who, according to the complainant had induced him to
deal with them and in that process he was cheated by them. He submitted that the role
of the bank was limited to grant of a car loan and recovery thereof from the petitioner
and as such the order of the State Commission dismissing the complaint against the
respondent bank is correct and needs to be confirmed.
8. We have carefully considered the rival contentions raised before us. The limited
issue which has arisen for our consideration in this case is as to whether the impugned
order of the State Commission dropping the names of respondents no.1 and 2 thereby
dismissing the complaint against these two respondents while remitting the matter for a
fresh trial to the District Forum is correct in the eye of law. It is not in dispute that the
petitioner had taken a car loan from the respondent bank. It is also not in dispute that
the respondent bank was getting the payment of EMIs for some time in repayment of
the said loan. According to the petitioner, the respondent bank released the amount of
car loan directly to the dealer. We do not see any denial to this aspect, which in any
case is presumed to be true as per the general practice in which the car loan usually is
released to the dealer of the car (which in this case would be respondent no.3). This
being the situation, the respondent bank needs to specifically point out and produce
documentary evidence in support thereof as to how and to whom the cheque on
account of the car loan was released by the respondent bank. Such documents would
invariably indicate the correct name of the person on whose behalf the amount was
being released by the respondent bank to the dealer. This aspect has not been dealt
with by the State Commission and there is no observation in this regard. In the
circumstances, when the State Commission thought it appropriate to remand the matter
to the District Forum for a fresh trial after considering the evidence to be adduced by
the respondent no.3 and the petitioner in support of their contentions and take a
decision on merits after hearing the parties, it is not understood as to how the presence
of the respondent bank could be dispensed with by dismissing the complaint against the
bank. In that view of the matter and to this extent, the impugned order of the State
Commission cannot be sustained in the eye of law being not based on any acceptable
evidence before it.
9. It is noted from the revision petition that the District Forum had dismissed the
complaint as not being maintainable under the Consumer Protection Act simply
because in its opinion it felt that the dispute involved complicated questions of law and
facts. It is further seen from paras 3 (II), (III) and (IV) of the revision petition that the
respondent bank failed to produce certain documents as per the direction given by the
District Forum and as such the District Forum did not reach any conclusion based on
evidence or merits of the case but only on its impression that because of the nature of
the dispute and complications involved, the complaint was not maintainable. In the
circumstances, when the petitioner has alleged non- delivery of the vehicle by the
respondent no.3 to him for which the loan amount had been released directly by the
respondent bank to the respondent no.3-dealer, it is necessary that the respondent
bank clarifies this position in respect of the person on whose behalf the car loan
cheque was released to the dealer/respondent no.3 before he could be held liable for
deficiency in service in respect of non delivery of the car to the petitioner. In other
words, the presence of the respondent bank is absolutely essential for reaching any
conclusion or taking a final view on the complaint in question. The observations of the
State Commission to the effect that the main grievance of the petitioner being against
the respondent no.3, the respondent bank has no role to play is incorrect and not based
on proper appreciation of the submissions made in the complaint and the written
statement of the parties.
10. In view of the above, we do not find any fault with the order of the State
Commission to remand the matter back to the District Forum for recording evidence and
hearing the parties afresh but we do not agree with the impugned order regarding the
dismissal of the complaint against the respondents no.1 and 2 thereby exempting them
from appearing and leading the evidence before the District Forum. We, therefore,
accept the revision petition partly and set aside the impugned order to the extent that it
dismisses the complaint against the respondent no.1 and 2. Rest of the impugned
order is upheld. Consequently, the District Forum is directed to give proper opportunity
to the petitioner and all the respondents who were OPs before the District Forum to lead
their respective evidence and thereafter settle the dispute after hearing the parties in
accordance with the provisions of law. We make it clear that the petitioner and the
respondents would be at liberty to lead their evidence with reference to the allegations
of deficiency in service made in the original complaint and the District Forum shall take
a decision on merits without being influenced by any of the observations made by the
State Commission in its impugned order.
11. The revision petition thus stands partly allowed and disposed of in terms of the
aforesaid directions with the parties bearing their own costs.
……………Sd/-….……………
(K. S. CHAUDHARI, J.)
PRESIDING MEMBER
…………Sd/-…….……………
(SURESH CHANDRA)
bs MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2945 OF 2011(From the order dated 21.06.2011 in Appeal No.789/11 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
PCARDB Through its CEO
Cooperatives Bhawan, Panchkula
Sector -2, District Panchkula … Petitioner/OP
Versus 1. Shri Satbir Singh … Respondent/Complainant
S/o Shri Devi Ram
R/o Village Kharkhari, Tehsil Bawal,
Bawal, District Rewari,
Haryana
2. Shri Om Prakash
PCARDB
Branch Manager, Bawal
District Rewari, Haryana … Respondents/OP
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioners in both the matters
: Mr. Rishi Malhotra, Advocate
For the Res. No.1in both the matters
For the Res. No. 2 :
in both the matters
: Ms. Girija Wadhwa, Advocate
Mr. Dinesh Chander Yadav & Mr
Mr. A.S. Rish, Advocates
PRONOUNCED ON 17 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed against the order dated 21.6.2011 passed by
the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the
State Commission’) in Appeal No. 789 of 2011 – PCARDB Vs. Satbir Singh & Ors. by
which while dismissing appeal, order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant/Respondent No. 1 had raised a loan
of Rs.4,00,000/- from petitioner/opposite party in order to run his soap manufacturing
unit. The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable
property of the complainant and loan amount was to be disbursed to the complainant in
three instalments. First instalment of Rs. 1,75,000/- was disbursed on 13.3.2009 and
second instalment of Rs.1,00,000/- was disbursed on 30.3.2009 to the complainant, but
the third instalment of Rs.1,25,000/- was withheld by opposite party. Complainant
served notice on the opposite party for release of third instalment, but opposite party
vide its order dated 19.8.2009 informed that for want of utilization certificate of two
instalments, third instalment of loan could not be disbursed. In such circumstances,
complainant alleging deficiency on the part of opposite parties filed complaint. Opposite
parties filed written statement and took the plea that complainant did not properly utilize
first two instalments so the third instalment could not be validly released, hence,
complaint may be dismissed. Learned District Forum vide order dated 27.4.2011
allowed complaint and directed opposite party to release third instalment of
Rs.1,25,000/- to the complainant within a period of one month and further awarded
Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before
the State Commission and the learned State Commission vide its impugned order
dismissed appeal.
3. Heard Learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioner submitted that third instalment of loan could
not have been released in the absence of utilisation certificates as per rules and further
submitted that utilisation certificate issued by the Branch Manager and Field Officer was
false and petitioner has not committed any deficiency in not releasing third instalment,
hence, revision petition be accepted and order of learned State Commission and District
Forum may be set aside. On the other hand, learned Counsel for the
respondent-1/complainant submitted that proper utilisation certificate was given by
concerned officers of opposite party and order passed by learned State Commission is
in accordance with law, hence, petition be dismissed.
5. Perusal of record reveals that Branch Manager and Field Officer of the opposite
party had issued utilisation certificate dated 30.4.2009 to the complainant in which it
was specifically mentioned that complainant had utilised earlier two instalments of loan
amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the
Branch Manager and Field Officer of the Petitioner Bank. It appears that another
Branch Manager also inspected the site on 30.4.2009 and submitted his report on
2.5.2009 in which it was mentioned that he visited the site of the complainant on
30.4.2009 for checking utilisation of loan amount and found that borrower (complainant)
has not purchased the material according to the bills and only temporary arrangement
was made by the borrower for the eyewash. It was further observed in the report that
borrower manipulated reports with the help of Field Officer, Om Prakash and Branch
Manager, Om Prakash and both the officers issued false loan utilisation certificate. It is
not clear whether there were two Branch Managers of the Petitioner Branch at Bawal
and what was the occasion for second Branch Manager to inspect the site after two
days when Field Officer and Branch Manager had already reported about utilisation of
loan instalments. Second report of Branch Manager also speaks about temporary
arrangement of material. In such circumstances, it appears that amount of earlier two
instalments had been utilised by the complainant and the third instalment of loan was
not released by the Petitioner Bank which amounted to deficiency in service and
learned State Commission has not committed any error in dismissing appeal of the
petitioner.
6. Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary
action against the defaulting Field Officer and Branch Manager for giving false utilisation
certificates and in such circumstances, it may be held that utilisation certificates
procured from the Field Officer and the Branch Manager were not true. This argument
is devoid of force as no such plea has been taken by the petitioner in the written
statement filed before the learned District Forum and only revision petition discloses this
fact that charge sheet dated 30.4.2010 has been issued to the delinquent
officials. Complainant is not concerned with this charge sheet and this fact should have
been brought to the notice of District Forum and necessary documents should have
been filed along with written statement before the District Forum which passed the
judgment after one year of the alleged charge sheet. In such circumstances,
cognizance of charge sheet cannot be taken for setting aside impugned order.
7. Perusal of record reveals that out of Rs.4,00,000/- sanctioned loan, Rs.2,75,000/-
had been disbursed to the complainant and only loan of Rs.1,25,000/- was withheld and
for this deficiency, learned District Forum has awarded damages to the tune of
Rs.1,00,000/- which has been upheld by the learned State Commission. It appears that
this amount of damages is on very higher side. In such circumstances, we deem it
proper to reduce the amount of compensation to the tune of Rs.40,000/- instead of
Rs.1,00,000/-.
8. Consequently, revision petition filed by the petitioner is allowed in part and order
of learned State Commission dated 21.6.2011 and order of District Forum dated
27.4.2011 are modified to the extent that complainant/respondent is entitled to get
damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum. There
shall be no order as to costs.Sd/-
..…………………………
( V.B. GUPTA, J)
PRESIDING MEMBER
Sd/-
..……………………………
( K.S. CHAUDHARI, J)
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2382 OF 2012(From the order dated 17.2.2012 in Appeal No.860/11 of the Haryana State Consumer
Disputes Redressal Commission, Panchkula)
State Bank of India
Through Chief Manager,
Branch Rewari Bajaria
Rewari, Haryana … Petitioner/OP
Versus Om Prakash Saini
S/o Shri Shyam Lal
R/o House No. 1008,
Sector-3, Part-2,
District Rewari,
Haryana … Respondents/Complainant
BEFORE
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MR. JUSTICE K.S. CHAUDHARI, MEMBER
For the Petitioner : Mr. Gautam Gupta, Advocate
For the Respondent : In person
PRONOUNCED ON 18 th January, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 17.02.2012 passed by the Haryana State Consumer Disputes Redressal
Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 860 of 2011 –
State Bank of India Vs. Om Prakash Saini by which appeal of the petitioner was
dismissed and order of District Forum allowing complaint was upheld.
2. Brief facts of the case are that complainant filed complaint before the District
Forum alleging that he was holding saving bank account with the petitioner/OP. On
23.5.2010, complainant went to ATM of OP to withdraw Rs.5,000/-. Rupees 5,000/-
could not be withdrawn due to defect in the ATM machine, but received a slip showing
deduction of Rs.5,000/- from his account. Complainant immediately contacted opposite
party on its toll free no. 1800112211. Opposite party assured that complainant would
get the money back. Complainant also demanded video footage of the transaction at
the relevant time but that was not supplied. Rupees 5,000/- was also not returned to
him and in such circumstances alleging deficiency of service, filed complaint before the
District Forum for refund of amount. Opposite party filed written submissions and
submitted that ATM machine clearly shows withdrawal of sum of Rs.5,000/- on
23.5.2010 and complainant was given intimation of this fact along with copy of ATM
record and prayed for dismissal of complaint. Learned District Forum after hearing both
the parties accepted complaint and directed opposite party to refund Rs.5,000/- as
compensation and Rs.1100/- as litigation expenses. Opposite party/petitioner filed
appeal before the State Commission which was dismissed by the learned State
Commission against which this revision petition has been filed.
3. Learned Counsel for the petitioner submitted that J.P. Roll contained various
other transactions effected on 23.5.2010 and many persons had withdrawn money, but
none other except the complainant, complained. Had there been any defect in the ATM
machine, more complaints would have been received and in such circumstances,
learned State Commission has committed error in dismissing appeal, hence, the
revision petition be accepted and order of learned State Commission may be set aside
and complaint be dismissed. On the other hand, General Power of Attorney Holder of
Respondent submitted that order passed by learned State Commission is in accordance
with law and as the petitioner has not supplied video footage, petition is liable to be
dismissed.
4. Complainant has supported his claim only by his affidavit, but has not adduced
any other evidence to substantiate his claim before the District Forum. Learned District
Forum observed that “The first and foremost question before this Forum is whether
affidavit of the complainant should be relied upon or the slip of the ATM
Machine? Normally, machine does not lie but man may do so. But it also varies from
man to man. Every person cannot be presumed to be a liar. It is reliability and
trustworthiness of the person which matters. Some time machine may fail. There may
be unexplainable number of reasons for the same. After perusal of the record and after
hearing the complainant himself, our judicial conscience is completely satisfied that the
complainant is a reliable and trustworthiness person”.
5. Learned District Forum held complainant reliable and trustworthiness only on
account of judicial conscience on the ground that there was no reason for the
complainant to tell a lie only for a sum of Rs.5,000/-. It is true that normally a person
would not tell a lie but in civil matters complainant was obliged to prove his claim by
preponderance of evidence. Complainant should have called for the statement of the
opposite party showing opening balance in ATM machine on 23.5.2010 and closing
balance on that day along with amount withdrawn which should have proved that
Rs.5,000/- were not received by the complainant and he got only a slip showing receipt
of the money. When many other persons had withdrawn money from that ATM on that
day and none complained for not receiving money it cannot be presumed that
complainant did not receive Rs.5,000/- from the ATM machine. Complainant has not
proved any written protest made to the bank authorities immediately and has based his
claim only on the basis of information given on toll-free number of the opposite party.
6. Exactly what message was given is also not on record. Learned District Forum
allowed the complaint mainly on the ground that video footage were not furnished to the
complainant by the opposite party and the learned State Commission also observed the
same fact in the impugned order. In this case, video footage had no relevance at all
because this is not the case of the complainant that he did not go to operate ATM
machine of opposite party. Opposite party has also mentioned in its written statement
that camera is fixed only on the face of the user and not on the keys of the ATM and the
delivery window. In such circumstances, non-supply of video footage had no bearing on
the claim of the complainant and on this deficiency claim could not have been allowed
by the learned District Forum and upheld by the learned State Commission.
7. Consequently, petition filed by the petitioner/OP is allowed against the
respondent and impugned order dated 17.2.2012 passed by the learned State
Commission in F.A. No. 860 of 2011 is set aside and complaint of the complainant is
dismissed. Parties to bear their own cost.
..………………Sd/-…………
( V.B. GUPTA, J)
PRESIDING MEMBER
..……………Sd/-………………
( K.S. CHAUDHARI, J)
MEMBERK
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI
REVISION PETITION NO. 2300 OF 2012
(Against the order dated 07.03.2012 in Appeal No. 905 of 2010of the State Commission Gujarat)
1. Amitaben Dilipkumar Shah ........ PetitionersL.R. of Late Dilipkumar Rasiklal Shah 2. Apexa Dilipkumar ShahL.R. of Late Dilipkumar Rasiklal Shah 3. Smruti Dilipkumar ShahL.R. of Late Dilipkumar Rasiklal Shah 4. Pratik Dilipkumar ShahL.R. of Late Dilipkumar Rasiklal Shah (all residents of 502, Nandishwardeep ApartmentParle Point, Surat)
Vs.
Varachha Co.op Bank Ltd. ......... RespondentEffil TowerL.H.Road, Surat, GujaratThrough its Chief Manager / Branch Manager
BEFORE:
HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER
For the Petitioners : Dr.Bipin K Dwivedi, Advocate
For the Respondent : Mr.Sanjay Mehta, Advocate
Dated : 30 th January, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
Petitioners are legal heirs of complainant
Late Shri Dilip Kumar Rasiklal Shah. They have preferred this revision petition against
the impugned order of Gujarat State Consumer Disputes Redressal Commission ( in
short, ‘the State Commission’) whereby State Commission allowed the appeal preferred
by the respondent bank herein against the order of District Consumer
Disputes Redressal Forum ( Additional) of Surat which reads thus:
“1. The complaint by the complainant is allowed as under.
2. The opponent in the case has allowed a withdrawl of Rs.1,68,450/- vide cheque no.7780 in the frozen Account No.4226. The said amount shall be credited in the Deceased Complainant’s Account with interest as per rules and regulations of the bank effective Dt.09.08.2005.
3. The opponents in the matter shall pay to complainants in all sum of Rs.10,000/- (in words Rupees Ten Thousand only) towards cost of the complaint and mental physical torture.
4. The complainants as per relief prayed under complaint para -5 is not entitled to any additional relief.
5. The opponent shall bear the cost of suit himself.
6. The opponent shall comply the order within 30 days of this order”.
2. Briefly put, the facts relevant for disposal of this revision petition are that late
complainant filed consumer complaint against the respondent – opposite party claiming
that he had an account bearing no.4226 with the opposite party, namely, Varachha Co-
op Bank Ltd, Varachha Road, Surat. That on 04.12.2004 complainant gave written
instructions to the respondent– bank stating that he had lost certain cheques, as such
no payment be made against those cheques from his aforesaid bank account without
his written consent. That therespondent bank recorded the numbers of the lost cheques
in their register. Despite that, bank allowed withdrawl of Rs.1,68,450/- from the bank
account no. 4226 of the complainant against one of those lost cheques bearing no.
7780 without informing or obtaining consent from the complainant.
3. The respondent – bank contested the complaint by filing a written submissions
denying the allegations.
4. The District Forum after hearing the parties and on the basis of the evidence
produced came to the conclusion that the opposite party bank had encashed the
cheque regarding which stop payment instructions were issued from the bank account
no. 4226 of the complainant without seeking consent from him. This according to the
District Forum amounted to deficiency in service. As such, District Forum allowed the
complaint and passed the order reproduced above.
5. Feeling aggrieved by the order of the District Forum, the respondent bank
preferred an appeal before the State Commission and the State Commission concluded
that the instructions issued by the deceased – complainant to the bank vide letter dated
14.02.2004 were unclear and vague and as such there was no deficiency in service on
the part of the bank. Accordingly, the State Commission accepted the appeal and set
aside the order of the District Forum and also dismissed the complaint.
6. Learned Shri Bipin K Dwivedi, Advocate for the petitioner has contended that
order of the State Commission is perverse and against the facts. He argued that State
Commission was not justified in setting aside the well reasoned order of the District
Forum holding deficiency in service on the part of the respondent bank despite the fact
that petitioner had not only given clear instructions not to encash certain cheques
without his consent from his account which were claimed to have been lost particularly
when numbers of those cheques were got entered in the “unused cheques register”
maintained by the respondent – bank. In support of this contention, learned counsel for
the petitioner has drawn our attention to the petitioner’s letter dated 14.02.2004 as also
the photocopy of the relevant entry in the unused cheques register maintained by the
respondent bank. It is further contended that the State Commission has committed a
grave error in holding that in a business city like Surat, the bank is not supposed to
seek confirmation from the customer before encashing the cheque irrespective of the
customer having requested the bank not to allow operation of the bank
account. Learned counsel thus urged us to accept the revision petition and set aside
the impugned order of the State Commission accepting the appeal against the order of
the District Forum.
7. Shri Sanjay Mehta, Advocate, learned counsel for the respondent bank on the
contrary has argued in support of the order of the State Commission. He has drawn our
attention to the letter dated 14.02.2004 addressed by late complainant to the bank and
submitted that the letter in question is vague inasmuch as it does not mention a specific
account number in the subject and at the bottom of letter, there are five account
numbers mentioned under a note asking upto date statement of account. It is contended
that from this letter no instructions regarding stop payment of any cheque is perceived
and as such bank was not at fault in enashing the cheque which was presented in the
year 2005. Learned counsel for the respondent bank further contended that mere entry
of the cheque number in the unused cheque register relates to A/c No 0503/4226 by
itself does not mean that there were any instructions not to make payment against the
cheques detailed therein. Learned counsel for the respondent further contended that
whenever a duly signed cheque is presented for encashment before the bank, the bank
is under a legal obligation to encash the cheque failing which the bank would risk legal
proceedings by the beneficiary of the cheque issued by the account holder. Thus it is
contended that impugned order does not suffer from legal or factual infirmity which may
call for interference by this Commission in its revisionaljurisdiction, scope of which is
limited.
8. In order to appreciate the rival contentions, it would be useful to have a look on
the relevant portion of the impugned order of the State Commission
which interalia reads thus:
“Now, it is also necessary to be decided that whether the responsibility of blame to be poured out on the Bank of any dispute between the Deceased Complainant and with his professional friends. And any refund’s cheque number 775629 drawn on State Bank of Saurashtra for Rs. 1,68,476 by the Surat Municipal Corporation and that was collected by the Architeet Parikshitlal Talati and that cheque was to be given to Deceased Complainant instead of that, has given to MansukhlalSanghani and that cheque was deposited in the Account No.4226 of Deceased Complainant and thereafter, that amount was withdrawn from the Account Number 4226 and while the aforesaid cheque deposited in the account of Deceased Complainant at the relevant time may have presented that cheque in the Bank to obtain amount with the signature of Deceased Complainant, so obviously information have to Deceased Complainant as to whose name that cheque is wrote and hence, the Deceased Complainant could have stopped payment of that cheque instead of unclear and vague language in the letter dated 14.02.2004. And to be obtained written consent of deceased person for each and every cheque which may submit and arrangement of bank may disturb if every account holder may write letter according to that and it seems that now the responsibility is being poured out on the bank in any dispute in respect of refund amount obtained from the Corporation. And the learned Forum has recorded in their judgment that the Bank could have demanded more clarity regarding that letter for the aim of better services to be provided to the Deceased Complainant. But that responsibility is not of the bank and account holder is bound to inform amount of cheque, date, number, account number in which person’s favour which has wrote, and hence Learned Forum’s Judgment is not proper and justified and therei interfere is required, so the appeal is granted and final order is being passed”.
9. On perusal of above, we find that the State Commission has accepted the appeal
against the order of the District Forum mainly for the reason that the instructions dated
14.02.2004 given by the complainant to the respondent bank was vague and it could not
be treated as clear instructions of ‘stop payment’. On careful consideration of record, we
find that aforesaid conclusion of the State Commission is erroneous as the State
Commission while arriving at the conclusion has ignored the fact that the numbers of
cheques stated to have been misplaced vide instructions dated 14.02.2004 were
recorded by the respondent bank in the unused cheque register officially maintained in
this regard. Photocopy of the unused cheque register maintained by the respondent
bank is available on record. On perusal of the aforesaid photocopy, we find that on
14.02.2004, the entry regarding seven unused cheques pertaining to the bank account
no.4226 of the complainant including cheque no.7780, which is the bone of contention
in this revision, was actually made by the respondent bank in the unused cheque
register pursuant to the instructions dated 14.02.2004 of the complainant. From this, it
is obvious that the respondent bank actually understood the instructions given by the
complainant and it is because of the said reason, the entries pertaining to unused
cheques was made in the unused cheque register. That being the case, the respondent
bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the
complainant addressed to the respondent bank. From the above referred entry in the
unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully
aware that as per the instructions of the complainant, the cheques entered in the
unused cheque register were not to be encashed without first referring to the
complainant. Admittedly, the respondent bank encashed one of those cheques bearing
no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without
referring to and seeking instructions from the complainant. This in our view obviously
amount to deficiency in service. The State Commission has allowed the appeal of the
respondent bank against the order of the District Forum without taking into account the
entries made in the relevant unused cheque register maintained in the bank. Thus in
our view, the order of the State Commission suffers from material irregularity and is
unsustainable. Accordingly, we accept the revision petition and set aside the impugned
order of the State Commission and restore the order of the District Forum. No order as
to costs.
………………………… (AJIT BHARIHOKE,J)
PRESIDING MEMBER
………………………… (SURESH CHANDRA) MEMBER
Am/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3844 OF 2012 ( From order dated 18.6.2012 in First Appeal No. A/12/113 of the Maharashtra State Consumer Disputes Redressal Commission , Mumbai)
Balkrishna Ramchandra Tavse R/o Ramchandra Bunglow, Sawat Plot, South Shivaji Nagar, Sangli
… Petitioner (s) Versus
1. Liquidator The Ichalkaranji Urban Co-op Bank Ltd. 7/129, Rajwada Road, Ichalkaranji 2. Mahavir Annaso Alse Manager, The Ichalkaranji Urban Co-op Bank Ltd. 7.129 Rajwada Road, Ichalkaranji 3. General Manager, Deposit Insurance Credit Guarantee Head Office Reserve Bank of India Bldg. 2nd Floor, Mumbai Central Post Office, P. Box. 4571, Mumbai
… Respondent (s)
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner (s) : Mr. Pramod Kumar Singh, Advocate
Pronounced on : 1 St February, 2013
O R D E R
1. Shri Balkrishna Ramchandra Tavse, complainant/petitioner was the Managing
Director of Ichalkaranji Urban Co-op Bank Ltd.. He resigned from the said post on
24.4.2006. The petitioner deposited various amounts with the Ichalkaranji Urban Co-op
Bank Ltd. while he was in service. Those amounts were deposited from 24.4.2007 to
1.2.2008 in intervals. The total amount deposited by the petitioner came to
Rs.11,52,000/-. All those amounts were deposited in Fixed account with different rate of
interest.
2. On the day he resigned from the bank i.e. on 16.4.2008 itself, the complainant raised
a loan against the said deposits amounting to Rs.10 Lakh. As per the rules, the loan
against the Fixed Deposits was permissible upto the limit of 75% and in exception
circumstances, upto the limit of 90% of the loan. The petitioner also moved an application
to the bank with the request to adjust the loan amount against his Fixed
Deposits. Thereafter, the bank went into liquidation and the liquidator was appointed.
3. The petitioner filed a complaint before the District Forum with the following prayers:-
“a) the present Revision Petition may kindly be allowed;
b) the order passed in consumer Appeal No. A/12/113 of 2012 passed by the Learned Maharashtra State Consumer Disputes RedressalCommission, Mumbai, may kindly be quashed and set aside and allow the present Revision Petition of the Petitioner by quashing and set aside the Judgment and order passed in the Consumer Complaint Application No. 328 of 2011 on 12.12.2011l;
c) the Respondent Bank be directed to adjust the amount of Fixed Deposit Receipts on the dates as and when they matured and correct the loan account of the Petitioner and submit the revised claim to the DICGCI for sanction.
d) the DICGCI be directed to sanction the revised claim of the Petitioner after adjusting the amount of Fixed Deposit Receipts on the dates as and when they matured.
e) the cost of this petition of Rs.50,000/- be provided to the Petitioner.
f) the Respondent Bank be directed to pay Rs.50,000/- towards compensation for mental psychological harassment to the Petitioner.
g) Pass any other order and/or directions as this Hon’ble Commission may deem fit and proper.”
4. The District Forum dismissed the complaint. Aggrieved by the order of the District
Forum, the complainant approached the State Commission, which, too, dismissed the
appeal.
5. We have heard the learned counsel for the petitioner. First of all, he failed to show
that the petitioner was empowered to sanction the loan of 90% tohimself. The petitioner
could not cite any such rule. He, however, submits that the General Manager was
authorized to sanction the loan but it is apparent that he is not empowered to grant and
sanction in his own favour and that is to be sanctioned by some other authority.
6. Secondly, the fact that he had resigned from the Bank on the same day casts a flim of
doubt over his bona fides and there is no evidence to show that there was a meeting of
Managing Committee so as to sanction the loan as against the said Fixed Deposits.
7. Furthermore, 90% loan was permissible under exceptional circumstances. There is
nothing on record to demonstrate as to what were the exceptional circumstances for the
complainant to raise loan beyond 75%.
8. It is apparent that being the Managing Director, he was aware that the bank was
about to go in liquidation. He tried to save his own skin and left the public in lurch. He
cannot be given special status than the other creditors of the bank. He will get the amount
according to is proportionate share. If the complaint made by the complainant is permitted,
it would prejudice the interest of other creditors irretrievably.
9. Again, no permission under Section 107 of the Maharashtra Cooperative Societies
Act, 1960 was granted in favour of the complainant/petitioner. The State Commission
rightly held “It is well established principle of law that whenever bank is under liquidation,
liquidator is supposed to liquidate the assets of the said corporate body and, thereafter, he
has to distribute those assets on pro rate basis so that every creditor should get due share
from the assets of the society. If this is not done and if some of the creditors like the
complainant herein are preferred and they are paid without following the procedure of
liquidation, other creditors’ interest will be pre-judiciously affected and that will be contrary
to the spirit of law. Complainant, thus, as appears, is interested in carrying out illegal
process of liquidating his assets. This is not permissible under the law. In fact for such a
complaint there is no permission granted of the Co-operative Societies Registrar. Under
Section 107 of the Maharashtra Co-operative Societies Act, 1960 permission is very
specific. In the present complaint such provision has been overlooked by the
complainant. What we find that very approach of the complainant is fraudulent in
prosecuting the matter. Co-operative Societies Act cannot be by-passed to
the deteriment and to the prejudice of all other creditors like the complainant. Therefore on
careful reading of the letter dated 05.10.2011, we are of the opinion that the Registrar has
not granted permission to file legal proceeding as against liquidator in any court of law and
much more so before the Consumer Forum. In view of this complaint is not tenable and it
has been rightly dismissed by the District Consumer Disputes Redressal Forum. Appeal is
also without any merits. It is hereby rejected.”
10. It is thus clear that the complainant has made vein attempt to pull the wool over the
eyes of law.
11. The revision petition is therefore dismissed.
.…..…………Sd/-………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..………Sd/-…………………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1814 OF 2012
( From order dated 14.02.2012 in First Appeal No. 751 of 2010 of the Punjab State Consumer Disputes Redressal Commission , Chandigarh)
State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager
… Petitioner (s)
Versus
Meena Walia W/o Satish Walia Earlier residents of Mohalla Shorian Near Madir Janki Dass Present R/o 12 Karol Bagh, Jalandhar Road Kapurthala
… Respondent (s)
REVISION PETITION NO. 1815 OF 2012
( From order dated 14.02.2012 in First Appeal No. 752 of 2010 of the Punjab State Consumer Disputes Redressal Commission , Chandigarh)
State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager
… Petitioner (s)Versus
Dr. Jagtar Singh S/o Garib Dass 1183, Urban Estate Kapurthala
… Respondent (s)
REVISION PETITION NO. 1816 OF 2012
( From order dated 14.02.2012 in First Appeal No. 753 of 2010 of the Punjab State Consumer Disputes Redressal Commission , Chandigarh)
State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager
… Petitioner (s)Versus
1. Ramesh Chander S/o Vishwa Mitter Kumar 11, Karol Bagh Jalandhar Road, Kapurthala
2. Sheetal Rattan W/o Sh. Ramesh Chander 11, Karol Bagh, Jalandhar Road, Kapurthala
… Respondent (s)
REVISION PETITION NO. 1817 OF 2012
( From order dated 14.02.2012 in First Appeal No. 754 of 2010 of the Punjab State Consumer Disputes Redressal Commission , Chandigarh)
State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager
… Petitioner (s)Versus
1. Deepak Rattan S/o Sh. Satpal 8, Link Road, Kapurthala 2. Monica Rattan W/o Sh. Deepak Rattan 8, Link Road, Kapurthala
… Respondent (s)
REVISION PETITION NO. 1818 OF 2012
( From order dated 14.02.2012 in First Appeal No. 755 of 2010 of the Punjab State Consumer Disputes Redressal Commission , Chandigarh)
State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager
… Petitioner (s)
Versus
Munish Rattan, S/o Sh. Satpal Previously residing at 8, Link Road Now residing at 42 Urban Estate Kapurthala
… Respondent (s)
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner (s) : Mr. Rajiv Kapur, Advocate
For the Respondent(s) : Mr. R. K. Kapoor, Advocate
Pronounced on : 1 St February, 2013
O R D E R
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. This order shall decide the above detailed five revision petitions, which entatil similar
facts and questions of law.
2. The complainants, namely, Meena Walia, Dr. Jagtar Singh,
Ramesh Chander and Sheetal, Deepak Rattan and Monica Rattan, Munish Rattan obtained
separate house loans in the year 2004-05 from the State Bank of India through its Chief
Manager, Railway Road, Kapurthala. The opposite party/petitioner/bank had given two
options to the respondents-complainants for the repayment of the loan amount, firstly, the
loan was to carry floating rate of interest which could vary from time to time as per the
instructions of the Government and R.B.I. and the second was to opt for fixed rate of
interest, which was 1% more than the prevalent rate on house loan interest at that
time. The complainants opted for the second option. All the complainants paid
the instalments regularly. The grievance of the complainants was that the opposite party
had illegally changed the rate of interest from 8% per annum to 8.5%, 8.75%,
9.25%, 9.75% and to 14.5% without any intimation to the complainants. The complainants
had made an application in the year 2007 before the Bank for not changing the fixed rate of
interest as agreed between the parties. A protest note was also sent to the opposite party-
Bank. The grievance of the complainants is that excess rate of interest was charged from
them.
3. On the other hand, the bank submitted that they are authorized to charge the
enhanced rate of rent as per memorandum of term loan of agreement. Relevant part of
which is Clause 2(b) and Clause 2(o). It was also submitted that vide letter dated
15.5.2009, the bank had intimated the complainants that it shall reset fixed rate of interest
in the end of every two years.
4. Separate complaints were filed before the District Forum, which allowed the
complaints. Vide order dated 6.4.2010, the District Forum directed the bank to charge
Fixed deposits rate of interest as mutually agreed between the parties and adjust the
amount of excess interest already charged by Bank.
5. Aggrieved by that order, the Bank filed 5 different appeals before the State
Commission. The State Commission vide its order dated 14.2.2012 dismissed the
appeal. Paras 26 and 27 of the impugned order are reproduced hereunder:
“26. In view of the above discussion, we are of the view that the orders under appeals are legal and valid and there is no infirmity in the same. There is no ground to interfere in the impugned orders and the same are affirmed and upheld. The appeals of the appellant are dismissed with costs of Rs.10,000/- each, which was paid to the each respondent within one month from the receipt of the copy of the order.
27. The said amount of Rs.10,000/- in each appeal be recovered from the official of the appellant, who tried his best to obtain the signatures of the respondent/consumer on the blank documents to cheat the respondent/consumer. The act of the official was also against the ethics of the policies of the R.B.I.”
6. Thereafter, they filed the above detailed revision petitions.
7. We have heard the learned counsel for the parties at length. Relevant portion of the
order dated 4.7.2012 of this Commission is reproduced hereunder:-
“The counsel for the petitioner is further directed to file an affidavit of authorized officer as to how the rate of interest stood increased from 8% to 14.5% with certain intervals along with circulation issued by RBI.”
More than 6 months have elapsed but the learned counsel for the petitioner did not
file the affidavit and the circulars issued by R.B.I.
8. Both the parties were heard. This is an undisputable fact that in the year 2004-05, the
parties entered into an agreement. The complainants selected the second option for
payment of interest. Consequently, the petitioner is entitled to charge 8% plus 1%. Both
the counsel agreed to that proposal. It may be also mentioned here that State Bank of
India could not produce any agreement wherein it was stated that after the lapse of two
years, the rate of interest would change or it would be taken as per R.B.I. guidelines. The
bank cannot change it unilaterally. The consent of the other party is required. It should be
given an opportunity to ponder over the new rates. The bank cannot enhance it
arbitrarily. Furthermore, no circular form R.B.I. saw the light of the day. No affidavit was
filed by the petitioner in support of his case. Consequently, we hold that the petitioner is
entitled to get the interest @8% plus 1%, meaning thereby the total rate of interest is @ 9%
from the date of paying of the loan till its realization.
9. Now, we advert to the second question raised by the parties which pertains
to para No. 26 and 27 of the order passed by the State Commission. The costs imposed by
the State Commission are upheld but the same would not be recovered from the officers of
the petitioner. Generally, it is seen that the public on its own accord signs the blank
documents. They have no time to go through the entire documents. They repose faith in
the bankers. On the contrary, it is the duty of the customer to read over all the documents
and thereafter it should fix the signatures. Nobody can compel any person to sign a blank
paper without reading it. One is supposed to have sign the papers with open eyes and at
his own peril. Consequently, para 27 only is set aside. The amount be recovered from
Bank itself but not from their officers.
10. All the five revision petitions stand disposed of. The bank is further directed to deduct
9% of the interest and return the money as well as costs to the complainants within 45 days
as ordered by the lower court otherwise it will carry interest @12% till its realization. No
costs.
.…..……………Sd/-……………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………Sd/-………………
(VINAY KUMAR)
MEMBER
Naresh/reserved
NATIONAL CONSUMER DISPUTES RERESSAL COMMISSIONNEW DELHI CONSUMER COMPLAINT NO. 74 OF 2012 Shiv Shankar Lal GuptaS/o Shri Bhagwan Lal GuptaR/o Flat No. 804,“Umrao Kamal Raj” Apartment8, Sardar Patel Marg, C-Scheme,Jaipur … Complainant Versus 1. Kotak Mahindra Bank Ltd. Through its Managing Director Registered office 36-38A, Nariman Bhawan, 227, Nariman Point, Mumbai- 400021 2. National Head, (Saral Auto Loan Jaipur) Kotak Mahindra Bank Ltd. First Floor, Krishna Tower, 57, Sardar Patel Marg, C-Scheme, Jaipur 3.Kotak Mahindra Bank Ltd. Through its Associate Vice President & Authorised Officer, First Floor, 6, Vaishali Enclave, Adjoining to Gulab Rewari Sweets, Peetampura, New Delhi – 110034 … Opposite Parties BEFORE: HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE MR. VINAY KUMAR, MEMBER For the Complainant : Mr. Rajendra K. Salecha, Advocate Pronounced on : 1 st February, 2013 ORDER JUSTICE J. M. MALIK, PRESIDING MEMBER
1. We have heard the learned counsel for the complainant at a considerable
length. To our mind, at least two questions have to be answered at the stage of
admission of this case. First of all, whether the petitioner is a ‘consumer’? Lastly, in
view of the Securitisation and Reconstruction of Financial Assets and Enforcement of
Security Interest Act, 2002, whether this Commission has jurisdiction to try this case?
2. The facts of the case are these. Shiv Shankar Lal Gupta, the complainant in this
case is a promoter of Clarity Gold Mint Ltd., a unit falling under SME Sector for the
purpose of setting up of its project of mint of gold and silver coins and manufacturing of
semi precious and precious stones studded jewellery. The complainant on account of
his requirement approached the Kotak Mahindra Bank, opposite party in this case, at its
Jaipur Branch for grant of loan interalia against the collateral security of immovable
property situated at plot No. 4 Sardar Patel Marg, C-Scheme, Jaipur.
3. The opposite party-bank vide its letter dated 25.9.2008 conveyed the sanction of
term loan of Rs.500 lakh to the complainant carrying rate of interest i.e. flat rate of
9.18% which was to be repaid within a period of 60 months. The complainant had to
mortgage his property in favour of opposite party bank. The petitioner spent Rs. 5 lakh
and registration charges in the sum of Rs.25,000/-. The opposite party paid back
Rs.16.40 lakh per month during the period from 1.12.2008 to 23.1.2010 i.e. in aggregate
Rs.196.80 lakh. He further paid Rs.87 lakh during the period from 24.1.2010 to
28.7.2010. The amount of Rs.283.80 lakh stood deposited. The disbursement of
Rs.500 lakh took place on 24.10.2008.
4. In the meantime, the complainant received communication dated 8.9.2010
christened as notice under Section 13(2) of the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002 from opposite party No.
3. In the meantime, credit facility from State Bank of Indore which stands
mortgaged into State Bank of India were obtained and second charge of the same
property was extended or which the opposite party, bank having the first charge. The
State Bank of India opposite party eluded to be straight about issuing No Objection
Letter for sale of the immovable property. The complainant filed a writ petition before
the High Court.
5. The complainant being 80 years old wants to get out of the debts and liability
owed by the complainant and other institutions by disposal of the said property. The
opposite parties have charged more interest than it was agreed between the
parties. The complainant had made payment of Rs.4,16,81,775/- to the opposite
party. After the said payment, further payment of Rs.11,03,531/- was also to be
made. It also came to the notice of the complainant that the exorbitant charge in the
name of pre closure charges being Rs.16,14,361.44 was levied which the opposite
party bank made the demand under Section 13(2) of the SARFAESI Act, 2002 intending
to seek payment before end of the tenure of the loan i.e. 60 months which was to expire
only in September, 2014. It is stated that statement of account filed by the petitioner is
not correct. The petitioner sent a notice dated 16.8.2011 through its counsel where it
was stated that there was over charge of interest being 41.96 lakh and the bank is
under an obligation to refund the said amount alonwith interest @15% per annum from
4.11.2011. The opposite party bank replied that the statement of account was
correct. A notice was sent again and similar kind of reply was received. It is contended
that the judgment of the Bombay High Court in respect of this case is not applicable.
6. The present compliant was filed with the following prayers. “(a) award principal amount of Rs.1,77,91,718/- (Rupees One Crore Seventy Lac Ninety One Thousand Seven Hundred Eighteen) towards the loss and damages suffered by the complainant on various counts as mentioned herein above.(b) award interest in favour of the complainant and against the Respondents the rate of 15% per annum on the aforesaid principal amount of Rs.1,77,91,718/- (Rupees One Crore Seventy Seven Lac Ninety One Thousand Seven Hundred Eighteen) from the date of filing of this complaint upto the date of actual and final payments by the Respondents and realization thereof by the complainant.(c) award a sum of Rs.2.50 lac towards the fees of the Advocate for contesting the present complaint.(d) award other litigation expenses as may be deemed just and expedient in the facts and circumstances of the present case.(e) award any other relief/s, as may be deemed just and expedient in the facts and circumstances of the present case so as to give full relief to the complaints.”
7. We have heard learned counsel for the complainant. He has reiterated the above
said pleadings. He argued that the house of the petitioner had been mortgaged and this
fact brings the complainant in the category of consumer as the question of house will
bring the case under the term earning his livelihood by means of self employment.
8. We are unable to clap any significance to these arguments. All his assumptions
are all wet. The definition of consumer clearly specifically and unequivocally makes it
clear that it does not include a person who avails of such services for any commercial
purpose. The
facts of the complainant itself speaks for themselves. By no stretch of imagination, it
can be held that the above said loan was obtained by the complainant exclusively for
the purpose of earning his livelihood by means of self-employment. One even with half
an eye can see that this is a commercial transaction/loan simplicitor. The property
which has been mortgaged for obtaining the loan for commercial purpose has got no
connection with this aspect.
9. This is an indisputable fact that against the petitioner a case is pending under the
SARFAESI Act, 2002.n The law puts a crimp in invoking the jurisdiction of Consumer
Commission.
10. Section 34 of the Secuiritisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 reads as under:-“34. Civil Court not to have jurisdiction.-No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.
11. The civil court mentioned here also includes Tribunals and Commissions dealing
with civil matters. There lies a rub and we cannot entertain this complaint.
12. The complaint is therefore, dismissed. It has become necessary to discourage the
institution of such like frivolous complaints. These entail too much precious time of
National Commission. We, therefore, impose costs in the sum of Rs.10,000/- to be
deposited with the Consumer Welfare Fund established by the Central Government
under Section 12(3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the
Central Excise Act, 1944 within three months from today, failing which it will carry
interest @9% per annum till its realization. Learned Registrar of this Commission shall
see compliance of the order under Section 25 of the Consumer Protection Act, 1986...………………Sd/-…..………
(J.M. MALIK, J.) PRESIDING MEMBER
……………….…Sd/-………… (VINAY KUMAR)
MEMBERNaresh/
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3196 OF 2012 (From the order dated 13.06.2012 in Appeal No.450/08 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)
Bhudargad Taluka Co-Op. Credit Society Ltd.,
Mumbai. Now known as Ashtabhuja
Nagari Sahakari Path Sanstha Maryadit, Mumbai
Through its Chairman
Mr. Shripatrao R. Divekar
212, Mahamadi Building, Dr. Ambedkar Road,
Lalbaug, Mumbai – 400 012
Maharashtra … Petitioner/OP
Versus Shri Rajaram Bandu Khedekar
Power of Attorney Holder of
Mr. Bandu Khedekar and Prakash Khedeka
108, Parel Sahayadri CHS Ltd.,
Kasturba Gandhi Nagar
Maharashtra … Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner: Mr. D.A. Taur & Mr. Amol V. Deshmukh, Advocates
PRONOUNCED ON 1 st February, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, MEMBER
This revision petition has been filed by the petitioner against the impugned order
dated 13.6.2012 passed by the Maharashtra State Consumer
Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal
No. 450/08 – Rajaram Bandu Khedekar & Anr. Vs. Bhudargad Taluka Co-op. Credit
Society Ltd. by which while allowing appeal of the complainant, partly upheld order of
District Forum and modified it pertaining to rate of interest.
2. Brief facts of the case are that complainant/respondent filed complaint before the
District Forum for refund of fixed deposit amounts kept by OP/petitioner who denied to
return money after maturity. OP contested complaint and learned District Forum while
allowing complaint directed OP to return amount at Sr. Nos. 1 to 12 with interest at the
rate of 6% p.a. and further directed complainant to return excess amount of interest
received by him and further directed OP to return Rs.1,00,000/- against Item Nos. 13 &
14 along with 6% p.a. interest. Complainant filed appeal against the order of District
Forum and learned State Commission vide impugned order modified rate of interest and
directed OP to refund amount of FDRs at Sr. Nos. 1 to 12 together with interest @ 17%
p.a. for first year and 12% p.a. on renewal till realising and further directed to return
Rs.1,00,000/- against FDRs at Sr. Nos. 13 & 14 with interest @ 12% p.a. from
20.7.2006.
3. Heard learned Counsel for the petitioner at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that learned State Commission has
committed error in awarding 17% and 12% interest p.a. against the rules as deposits
were not renewed by the Board of Directors, hence, petition may be admitted.
5. Perusal of record reveals that complainant deposited amount from 1999 to 2001
with the OP and amount of FDR from Sr.No. 1 to 12 was to be returned after one year
and amount of FDR at Sr. Nos. 13 & 14 was to be returned after 5 years. It appears
that amount was not returned on the maturity due to financial crunch and FDRs were
renewed from time to time by management.
6. Admittedly, deposits were made @ 17% p.a. for the first year. As per F1.13 of
the model bye-laws of the Society, after the expiry of period of fixed deposit if the Board
of Directors do not accept the deposits for further renewed period, interest was payable
at the rate applicable to saving account. Admittedly, Manager of the OP renewed the
FDRs for many years on account of financial crunch and in such circumstances it
cannot be believed that deposits were not renewed by Board of Directors. Learned
Counsel for the petitioner could not place any letter issued by Board of Directors to the
complainant depicting non-acceptance of deposits and direction to receive money. In
such circumstances, only because some action has been taken against the Manager of
the Petitioner, it cannot be inferred that FDRs were renewed in connivance with the
Manager against bye-laws but it appears that FDRs were renewed on account of
financial crunch and in such circumstances, complainant was entitled to receive higher
rate of interest than the rate of interest applicable to saving account. Learned State
Commission has not committed any error in allowing higher rate of interest. I do not find
any infirmity, illegality, material irregularity or jurisdictional error in the impugned order
and revision petition is liable to be dismissed at admission stage.
7. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2195 OF 2011 (Against the order dated 21.12.2010 in Appeal No.FA-09/594 of the State Commission, Delhi) G.D.Grover C-54, Sudarshan Park, New Delhi -110015
…..PetitionerVersus
IDBI 1 Red Cross Road, Near Parliament New Delhi …..Respondent
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER HON’BLE MR.VINAY KUMAR, MEMBER
For the Petitioner: In person
For the Respondent: Mr. Sumnesh Kumar, Advocate
PRONOUNCED ON: 06-03-2013 ORDER
PER MR. VINAY KUMAR, MEMBER
1. The consumer complaint was first decided on 3.7.2007. It was remanded by the
State Commission for fresh consideration. The District Forum decided it again on
8.7.2009. Appeal of the Complainant against it, was decided by the State Commission
on 21.12.2010. The complaint has been dismissed by both. The RP/Complainant is now
before us against the two concurrent orders.
2. This Commission had first provided the petitioner the assistance of an amicus
curie on his request. Later, he chose to argue his case in person. Mr Sumnesh Kumar,
Advocate has been heard on behalf of the RP/OP. We have also perused the records,
including the written submissions of the two sides.
3. Facts, as seen from the record are that the revision petitioner and some other
members of his family had subscribed to a deep discount bond floated by the
respondent/OP, IDBI. These were 25 year bonds issued in 1992, for Rs 2700 each, with
face value of Rs 1 lakh as on 31.3.2017. But, the IDBI had the option to redeem them
earlier, at the end of every five years. The genesis of the present dispute lies in the
decision of the IDBI to redeem the bonds after 10 years, cutting their run by 15 years. In
a letter of 28.2.2006, the OP informed the complainant that the bonds are redeemed
and no further interest would be paid beyond 31.3.2002.Under the IDBI scheme, as
originally issued in 1992, each bond would have grown to Rs !2,000 at the end of 10
years and Rs 25,000 at the end of 15 years. Therefore, on 23.12.2008, in the course of
the proceedings before the District Forum, the complainant was paid at the rate
of Rs 25,000 per bond, which he received under protest.
4. The District Forum dismissed the complaint on 8.7.2009, holding that—
“We have gone through the bonds which are admitted by both the parties. On perusal of bonds, it is clear that the end of 15 years from 31.3.1992, the bond holder will get Rs.25,000/- each. In these bonds, there are no terms & condition or any clause has been made in these bonds that in case amount is not paid after stipulated period, O.P. shall pay any interest.
Admittedly the amount of the bond of Rs.25,000/- each has been paid in December, 2008 when the Complainant surrendered the bonds and since there is no determination or any condition in the bonds which has an agreement between Complainant and Opposite Party with regard to the payment of the interest. Even if the payment is not made after the stipulated period, the Complainant is not entitled to claim any interest. Hence, the Complaint is dismissed.”
5. The complainant’s appeal is also dismissed by the State Commission for the
following reason—
“As is evident from the history of the case noted above, this complaint was filed on 17.10.2006 with the grievance that the respondent vide letter dated 28.2.2006 intimated that the company had decided to redeem the bonds w.e.f. 30.2.2001 and wanted to pay only Rs.12,000/- while the amount becomes Rs.25,000/- on 31.3.2007. The appellant has since been paid Rs.25,000/- each against these bonds in December 2008 when he surrendered those bonds which he had purchased on payment of Rs.2700/- each in 1992. As already held by this Commission in order dated 5.8.2008, the formula applicable for determining liability is reproduced above which specifically states deemed face value of the bond in case of redemption, which is Rs.12,000/- at the end of 10 years and Rs.25,000/- at the end of 15 years and that is also referred to and relied upon by the appellant himself in his complaint as well as this appeal. This formula specifically stipulates that on receiving the amount specified therein, liability of the respondent under the bond will stand extinguished fully. There is no term or condition or stipulation anywhere that on payment made anywhere in between those specified period, the investor is entitled to anything above or more than the specified deemed face value of the bond. There is no infirmity or illegality in the impugned order. The appellant’s own calculation as to how the amount become due per month during the period of every five years does not help him as it is nowhere his case that the respondent has agreed to make payment as per his calculation, and in absence of any agreement between the parties or law on the point, the respondent cannot be saddled with any such liability. In any case, his original complaint stands satisfied when he received payment of Rs.25,000/- each against bonds, as claimed in his complaint.”
6. While assailing the order of the fora below, the revision petitioner states
that “payment for delayed period not mentioned in the terms and conditions while
issuing the bonds by IDBI which is a hidden point by all means, therefore, in the event
of missing the important clause, the benefit goes to the investor and the law of justice
takes place...” Thus, the petitioner is aware that there was nothing in the terms and
conditions requiring the IDBI to pay interest for delays in payment of the bond. However,
he relies upon award of 10% interest in the first order of the District Forum passed on
3.7.2007. What he has chosen to ignore is that the question of payment of interest from
2002 became redundant when the complainant was paid at the rate of Rs 25,000 per
bond, which was the cumulative value of the bond in 2007.
7. The revision petition also raises a question why IDBI has not paid interest for the
delay of 21 months from March 2007 to December 2008. We do not see any merit in
this contention as admittedly he had received the letter of 28.2.2006 informing him
about redemption of the bonds and stoppage of any further liability to pay interest. In his
written submission before us, he does not stop at 2007 and even goes further. He has
placed on record his computation for the entire original duration of 25 years for the life
of the bonds. In the light of the fact that the respodent/IDBI had already chosen to
exercise its right to redeem the bonds at the end of 10 years, this 25 year computation
is nothing more than an exercise in futility.
8. It is argued on behalf of the respondent/IDBI that the complainant cannot claim
that no individual intimation of recall of the bonds was given to him. The notice was sent
to him under certificate of posting. Yet the respondent had paid the value of the bonds
as of 2007.
9. In the light of the details examined above we find that the revision petitioner has
failed to make out any case against the impugned order. The revision petition is
consequently dismissed for want of merit. No orders as to costs.
………Sd/-…………… (J. M. MALIK,J.) (PRESIDING MEMBER)
……………Sd/-….……………
(VINAY KUMAR) MEMBER
SB/-s
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 1879 of 2011
(From the order dated 07.04.2011 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in Appeal no. 1198 of 2010)
Kulwant Singh Son of Nagahla Singh Resident of V P O Ramgarh Chandigarh Road Ludhiana 141123
Petitioner
Versus
1. Indian Overseas Bank Through its Chairman/Managing Director Central Office P B no. 3761 763 Anna Salai Chennai 600002
2. Chief Regional Manager Indian Overseas Bank Regional office: 550/1 College Road Ludhiana
3. Chief Manager Indian Overseas Bank Brown Road Branch Ludhiana
Respondent (s)
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner IN PERSON
For the Respondent Mr A P Mukundan, Advocate
Pronounced on 11 th March 2013
ORDERREKHA GUPTA
This revision petition is filed against the order dated 7 th April 2011 passed by the
Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the
State Commission’) in appeal no.1198 of 2010.
2. The petitioner/complainant has stated that the petitioner is an enlisted contractor.
He had been granted a contract by the Irrigation Department of the Madhya Pradesh
Government. A dispute arose between the petitioner and the State of Madhya Pradesh.
The petitioner moved the matter before arbitration. The same was decided on
19.07.1994 in his favour by the M P Madhyasham Adhikaran Adhiniyam (Madhya
Pradesh Arbitration Tribunal), modified on the basis of application dated 30.08.1984
vide order dated 12.07.1995. The petitioner filed an execution petition before the District
Judge, Bhopal for recovery of the decretal amount. In the meanwhile, the State of
Madhya Pradesh filed a revision petition in the Hon’ble High Court of Madhya Pradesh.
The same was dismissed vide order dated 22.10.2003. The Hon’ble District Judge,
Bhopal had directed the petitioner to furnish bank guarantee to the tune of
Rs.1,37,000/-. The petitioner who had Fixed Deposits with the respondent no. 3,
approached the Bank which furnished the Bank guarantee to the tune of Rs.1,37,000/-
vide deed dated 08.11.1997. The Bank guarantee was valid till 08.05.1998. FDR of the
petitioner was being renewed from time to time. FDR was renewed on 06.11.1995 for
Rs.1,04,550/- vide FDR bearing no. 0305394/RDP/740/95, interest @ 12.5% per annum
compounded quarterly. The maturity date was 05.02.1998. The respondents were
bound to return the FDR to the petitioner after 05.02.1998. Instead, the respondent with-
held it as a surety for the Bank guarantee furnished by it. The respondents had been
renewing the FDR on their own without instructions or permission of the petitioner. They
had been crediting interest in his account on the basis of simple interest, annually,
whereas they were liable to pay interest, compounded, quarterly. The Bank had been
calling for the original Bank guarantee before the FDR could be released. The Bank
guarantee was in the record of the District Judge, Bhopal. The same could not be
delivered to the Bank. Ultimately, the complainant procured the original Bank guarantee
from the Court at Bhopal and delivered the same to the respondent no. 3. But instead of
returning the FDR, the respondent no. 1 demanded the release order of the Court
before any step could be taken to return the FDR. Finally, the petitioner obtained the
release order as well.
3. The respondents on the other hand has stated as under:
4. The petitioner had not invested any money with the respondent and rather he
furnished 2 FDRs no. 1012/97 dated 07.11.1997 for Rs.5,000/- and 740/952 dated
06.11.1993 for Rs.1,04,550/- assessed as Rs.1,32,381/- as per present value of that
time. There was no condition of interest at the rate of 12.5% per annum compounding
quarterly on the said FDRs. The respondent Bank was liable to pay interest on the said
amount as per rules.
5. The respondent Bank has rightly taken the FDRs as surety for the Bank
guarantee and same was released as per the request made by the petitioner along with
interest calculated upto date. The respondent bank has been crediting interest in the
account of the petitioner as per the rules and regulations of the Bank and Reserve Bank
of India.
6. It is wrong that the petitioner received the amount of Rs.2,33,433/- under protest.
7. The District Consumer Disputes Redressal Forum, Ludhiana (in short, ‘the District
Forum’) vide its order dated 11.09.2008 has stated as follows:
8. That the respondent justified the retention of the Bank guarantee, on the grounds
that the petitioner/complainant failed to return the original bank guarantee obtained by
him in favour of the court of District Judge, Bhopal and that he also failed to bring the
discharge letter from the beneficiary, i.e., the court of District Judge, Bhopal. Such
discharge letter was required from the District Judge, being Government agency, as
bank guarantee could have been utilised by the court of District Judge, Bhopal, upto 30
years from the date of expiry of bank guarantee. It was also contended that rate of
interest was rightly calculated and paid as per norms and instructions of the Reserve
Bank of India, with which opposite party bank is bound.
9. The respondent in support, have taken defence of section 28 of the Indian
Contract Act, as amended on 08.01.1997. Implication of that provision of section 28 of
the Indian Contract Act was brought to the notice, of its branches, by respondent no. 1 –
Bank. It was circulated, to the branches, to eliminate all the Bank guarantee (LGs) on
receipt of original LGs from the beneficiary duly cancelled on receipt of discharge letter
from the beneficiary addressed to the bank.
10. Attention, by respondent, was also invited to another circular dated 15.02.2000 of
respondent no. 1 addressed to all its branches, intimating that Bank guarantee (LGs)
should be eliminated only after receiving original LGs or discharge letter from the
beneficiary or after expiry of normal limitation period of 3 years for non-Government
beneficiary and 30 years for Government beneficiary, from the date of expiry of LGs.
11. The District Forum dismissed the complaint stating that “insistence of opposite
party to seek discharge receipt from the beneficiary of bank guarantee and its return in
original, in the circumstances of the case, was justified”. We cannot as such accuse the
respondent of not rendering proper services to the complainant. Consequently, we find
no merit in the complaint and, therefore, the same stands dismissed.
12. Aggrieved by the order of the District Forum the petitioner filed an appeal before
the State Commission. The State Commission also found that there was no dispute
that the bank guarantee was issued to the District Judge Bhopal, as such without the
discharge voucher the respondent could only pay the maturity amount to the petitioner
after the period of 30 years. The State Commission did not find any infirmity in the order
of the District Forum and as the respondent had already paid the interest on the FDRs
amount as per the rates of interest which were applicable from time to time when the
amount of the petitioner remained deposited with respondent no. 3. The State
Commission also came to the conclusion that the appeal of the petitioner was meritless
and as such the same was dismissed without any other costs.
13. We have heard the petitioner who is present in person and also the learned
counsel for the respondent.
14. The admitted aspect of the case are that the petitioner obtained bank guarantee
from the respondent no 3 in favour of the court of District Judge, Bhopal to the tune of
Rs.1,37,000/- vide deed dated 08.11.1997 and the guarantee was
valid upto 08.05.1998. Before issuing the bank guarantee, respondent no. 3 obtained
from the petitioner, the original fixed receipt dated 06.11.1995 for Rs.1,04,550/- carrying
12.5% interest with maturity date of 05.02.1998. FDR was returned and the amount
was released on 01.11.2006.
15. The complainant has placed on record many letters for release of the FDRs. But
action of the respondent in not returning the Bank guarantee of the petitioner on his
demand initially is justified because he was required to obtain discharge letter from the
court of District Judge, Bhopal as well as original Bank guarantee duly
cancelled. Because, despite Bank guarantee being for a particular period upto a
particular date, it should have been enforced by the court of District Judge,
Bhopal upto 30 years. When the petitioner, as per his admission produced the original
Bank guarantee and returned to the respondent no. 3 and also discharge certificate
from them, the FDR should have been released in his favour.
16. After 05.02.1998 on which date, this FDR would have matured, it was being
renewed from time to time by the opposite party. We may state that it was in the interest
and benefit of the complainant. Otherwise, he would not have been entitled for further
interest on the amount of FDR, on its maturity on 05.02.1998. It is also a matter of
common knowledge that the bank would be liable to pay interest on the amount of FDR,
as prevalent on the date of renewal, as per instructions of the Reserved Bank of India.
The respondent has brought on record, copy of ledger account of the term deposit of
the complainant Ex. R 2 to Ex R 7, specifying what rate of interest was given to the
complainant on his FDR amount. Sometimes on renewal, interest was paid @ 8.50%,
6.75%, 5% or 4.75% per annum. Had the respondent bank not renewed the FDR, then
the complainant would not have been competent to seek interest on the amount of FDR
after its maturity on 05.02.1998. We cannot consider in these circumstances,
that unilaterally, alterations in case of term deposit, regarding interest were made by the
respondent bank.
17. The grouse of the petitioner is that the Bank guarantee was issued by respondent
no. 3 for six months on 08.11.1997 and the period of the Bank guarantee was not
extended by respondent no. 3 nor any request was made by the petitioner for the
extension of the period of Bank guarantee, as such the petitioner was entitled for the
maturity amount of the FDRs on 09.05.1998.
18. The petitioner could not produce any evidence or circulars of the respondent
Bank or the Reserve Bank of India that the petitioner was entitled for the interest @
12.5% quarterly compoundably on the FDRs. The petitioner has also not produced any
circulars of the respondent or the RBI to controvert the version of the respondents that
the respondents had not paid any interest on the FDR to the petitioner and the rate of
interest applicable on the FDRs time to time for the period when the amount remained
with the respondent no. 3. The original Bank guarantee and release order of the Court
were finally handed over by the petitioner to the respondent on 03.08.2006. Thereafter,
the respondent released the amount of Rs.2,33,433/- on 01.11.2006 to the petitioner.
19. In the facts of the case, we find no infirmity or illegality in the order of the State
Commission warranting our interference. Accordingly, the revision petition is dismissed,
with cost of Rs.5,000/-.
20. Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
20. List on 26th April 2013 for compliance.
Sd/-
..………………………………
[ V B Gupta, J.]
Sd/-
………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 171 OF 2010
WITH
I.A. No. 1762 OF 2013 & I.A. No. 1810 OF 2013
(Modification of order & Direction)
1. B.L. Joshi, 6, Braemar Avenue Alperton, Wembley, Middx London (U.K.)HAO 4
QN
2. S.L. Joshi (since deceased) through Legal heirs B.L. Joshi and D.L. Joshi 6 and 8,
Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4 QN
3. K.B. Joshi 6, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4
QN
4. D.B. Joshi 19, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4
QN
5. Krishna B. Joshi 4, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)
HAO 4 QN
6. Bina (UMA) B. Joshi D/o B.L. Joshi 6 Braemar Avenue, Alperton, Wembley, Middx
London (U.K.)HAO 4 QN
7. D.L. Joshi 8, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4
QN
8. Ravindra D. Joshi, 8 Braemar Avenue, Alperton, Wembley, Middx London (U.K.)
HAO 4 QN
9. Charulata D. Joshi, daughter of D.L. Joshi, 8 Braemar Avenue, Alperton,
Wembley, Middx London (U.K.)HAO 4 QN … Complainants
Versus
1. Bank of India, Kedareshwar Road, P.O. Box-18, Pobandar –360575 through its
Director,
2. The Zonal Manager, Bank of India, Para Bazar, M.G. Road, Rajkot-360001.
3. The Chairman, Bank of India, Star House, “G” Block Bandra Kurla Complex; Near
National Stock Exchange, Bandra (East) Mumbai-400051
… Opposite Parties
CONSUMER COMPLAINT NO. 172 OF 2010
WITH
I.A. No. 1763 OF 2013
(Modification of order)
B. L. Joshi (U.K. Limited) 212/214, Ealing Road, Alperton, Wembley, Middx London
(U.K.) HAO 4 QG Through its : Managing Director, Dayaram Liladhar Joshi And also
Through its : Directors, Ravidra D. Joshi, Dr. Mrs. Krishna G. Thanky, Daksha B. Joshi,
All through General Power of Attorney Holder Jaysukh Bhimji Modha, R/o Porbandar,
Gujarat (India)
… Complainant
Versus
1. Bank of India, Kedareshwar Road, P.O. Box-18, Pobandar –360575 through its
Director
2. The Zonal Manager, Bank of India, Para Bazar, M.G. Road, Rajkot-360001.
3. The Chairman, Bank of India, Star House, “G” Block Bandra Kurla Complex; Near
National Stock Exchange, Bandra (East) Mumbai-400051
… Opposite Parties
CONSUMER COMPLAINT NO. 173 OF 2010
WITH
I.A. No. 1764 OF 2013
(Modification of order)
Glayland Ltd. S.A., 19 Braemar Avenue Alperton Wembley, Middx, London (UK) HAO
4QG, Through its Managing Directors U.B.Joshi & Dr.Girishchandra A.Thanki &
Also through its Director Daksha M.Thanki
All Through General Power of Attorney Holder
Jaysukh Bhimji Modha, Porbandar … Complainant
Versus
1. Bank of India, Kedareshwar Road P.O.Box 18, Porbandar, Through its Director
2. The Zonal Manager, Bank of India Para Bazar, M.G. Road, Rajkot
3. The Chairman, Bank of India, Star House ‘G’ Block, Bandra, Kurla Complex, Near
N.S.E. Bandra (East), Mumbai … Opposite Parties
CONSUMER COMPLAINT NO. 174 OF 2010
WITH
I.A. No. 1765 OF 2013
(Modification of order)
Glayland Ltd. S.A., 19 Braemar Avenue Alperton Wembley, Middx, London (UK) HAO
4QG, Through its Managing Directors
U.B.Joshi & Dr.Girishchandra A.Thanki &
Also through its Director Daksha M.Thanki
All Through General Power of Attorney Holder
Jaysukh Bhimji Modha, Porbandar … Complainant
Versus
1. Bank of India, Kedareshwar Road P.O.Box 18, Porbandar, Through its Director
2. The Zonal Manager, Bank of India Para Bazar, M.G. Road, Rajkot
3. The Chairman, Bank of India, Star House ‘G’ Block, Bandra, Kurla Complex, Near
N.S.E. Bandra (East), Mumbai
… Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE MR.VINAY KUMAR, MEMBER
For Complainants in all cases : Mr. Deepak Aggarwal, Advocate
For Opp. Parties in all cases : Mr. Sudarsh Menon, Advocate
PRONOUNCED ON_01.04.2013
O R D E R
JUSTICE J.M. MALIK
1. Can a Consumer Court set aside the ‘compromise’ entered into between the
parties, pursuant to the order passed by the learned DRT? Can it set aside the order
rendered by the DRT itself? Can it modify the directions given by the Hon’ble High
Court of Gujarat?
2. This order shall decide four complaints, above mentioned, which entail the same
questions of law and fact. All the complainants, namely, B.L. Joshi, S.L.Joshi,
D.V.Joshi, (since deceased) through Legal Heirs B.L.Joshi & D.L.Joshi, K.B.Joshi,
D.B.Joshi, Krishna B.Joshi, Bina (Uma) B.Joshi, Ravindra D.Joshi and Charulata
D.Joshi, in Consumer Complaint No.171 of 2010 and again B.L. Joshi, through its
Managing Director, Dayaram Liladhar Joshi and also through its Directors, Ravindera B.
Joshi, Dr.(Mrs.) Krishna G.Thanky, Daksha B.Joshi, all through General Power of
Attorney Holder, Jaysukh Bhimji Modha in Consumer Complaint No.172 of 2010,
Glayland Ltd. (S.A.), London, U.K., through its Managing Director, U.B. Joshi and Dr.
Girshchandra A. Thanki and through its Director Daksha M. Thanki all through General
Power of Attorney Holder, Jaysukh Bhimji Modha in Consumer Complaint No.173/2010
and Glayland Ltd. (U.K.) through its Managing Director, Dayaram Liladhar Joshi and
Ravindra D.Joshi, Dr.(Mrs.) Krishna G.Thanky, Daksha B.Joshi, Directors, all through
General Power of Attorney Holder Jaysukh Bhimji Modha, filed the present four
complaints in this Commission on 17.09.2010.
3. Case No. 171 of 2010:
All the complainants are Non-Resident Indians (NRIs). They had deposited
Rs.89,70,000/- in the monthly Income Certificates/Double Benefit Certificates with the
Bank of India, Porbandar Branch, OP1. The Zonal Manager and the Chairman, Bank of
India have been arrayed as OPs 2 & 3. Monthly interest on receipts was to be credited
in an NRE Savings Bank Account No. 2410, so that complainants may withdraw the
same. The amount was deposited on different dates. On the respective due dates, the
complainants requested the OP Bank to pay the receipts and transfer the funds to
Syndicate Bank, Porbandar Branch. The Bank did not do the needful. Consequently,
the complainants were constrained to file a Civil Suit No. 102/1999 before the Civil
Judge, Porbandar. The complainants also could not withdraw the monthly interest
amount in the sum of Rs.37,01,908.84 which was lying in their Account No.2410. On
the contrary, the OP Bank went on renewing the aforesaid receipts after original dues in
an arbitrary, illegal and negligent manner, without approval and consent of the
complainants. Finally, OP paid Rs.3,39,75,316/- to the complainants in respect of the
above said six receipts on 04.01.2008. However, the prevailing rate of interest on
original due dates was 16% p.a. on a NRE Term Deposit. The Bank should have
renewed the above said receipts at 16% p.a. from the original due dates till the date of
payment, i.e. 04.01.2008. It is contended that as a matter of fact, at the above said
rate, the amount due to the complainants came to be Rs.7,49,44,494/-. The Bank is
yet to pay a sum of Rs.4,09,69,178/-.
4. In the meantime, the Civil Suit was withdrawn as per the settlement reached
between the parties. The above said deposits were detained by the Bank on the pretext
of default in the account of M/s.Jupiter Cement Ltd. However, the complainants
formed a separate legal entity and were in no way connected with M/s.Jupiter Cement
Ltd. The Bank vide proposal dated 01.12.2007 had given proposal for settlement of
dues concerning M/s. Jupiter Cement Ltd, as well as list of deposits under
reference. Thereafter, on acceptance of the same by the Guarantor of M/s. Jupiter
Cement Ltd., under protest, the deposits were released on 04.01.2008 and
amounts were paid as detailed above.
5. The Bank illegally retained a sum of Rs.3,39,75,316/-. The cause of action to file
the present complaints is a recurring one. The complainants also approached the High
Court of Gujarat at Ahmedabad, vide Special Civil Application wherein the Hon’ble
High Court of Gujarat at Ahmedabad was pleased to order that “let petitioner be
approached in respect of grievances raised in all four petitions, the appropriate forum, in
accordance with law”. This order was passed on 31.07.2010. It was further ordered
that in view of the above said observations, “the petitions filed by the complainants are
disposed of by the Hon’ble High Court without expressing any opinion on merits”. The
present complaint (CC No. 171/2013) was filed with the following reliefs:-
(a) To grant rate of interest @ 16 percent with quarterly
compounding from original due date of amount and pay the
difference between amount payable as per the above rate and
amount already paid as per the bank’s calculations. Difference
amount comes to Rs. 4,09,69,178.00 only.
(b) to grant suitable compensation for loss of reputation,
embarrassment, harassment etc. meted out to the complainants
by the respondent Bank.
(c ) Any other relief which this Hon’ble Forum deem fit in the
circumstances of the case may also be granted in favour of the
complainant and against the respondent Bank.
6. Complaint No. 172 of 2013:
Complainant Company, i.e. B.L. Joshi UK Ltd. Overseas Corporation Body
deposited Rs.48.00 lakhs with the OP Bank under Double Benefit Deposit Scheme,
NRE as follows:-
Sl. No. Receipt No. Amount (I
n Rs.)
Date of
deposit
Maturity
value
Rate of
interest
Maturity
value
(In Rs.)
1. DBD
25/475
10,00,000 19.11.87 18.11.93 13% 21,54,600/-
2. DBD
25/476
10,00,000 19.11.87 18.11.93 13% 21,54,600/-
3. DBD
25/477
10,00,000 19.11.87 18.11.93 13% 21,54,600/-
4. DBD
25/478
10,00,000 19.11.87 18.11.93 13% 21,54,600/-
5. DBD
26/60
08,00,000 05.02.88 13.01.94 13% 17,23,680/-
Total : 48,00,000 1,03,42,080
7. On the maturity date, i.e. 13.01.1994, the complainant company asked the OP
Bank to pay the Term Deposit Receipts as per terms of the contract and remit the entire
fund to City Bank, Switzerland from whom it availed certain credit facility. The Bank
failed to comply with the request made by the complainants and continued to defy the
instructions continuously for a period of about 14 years. The deposits receipts were
finally paid on 04.01.2008 with a delay of 14 years, approximately. The Bank kept on
renewing the FDRs arbitrarily. The principal, plus interest was at 16% p.a. compounded
from 18.11.1993 to 04.01.2008, which came to Rs.8,24,72,345.10. The Bank paid a
sum of Rs.4,30,40,159.78. It did not give the remaining amount of
Rs.3,94,32,185.32. In this case too, Civil Suit was filed and was withdrawn and in view
of the proposal/settlement given by the Bank. The deposits were detained due to the
pending Account of M/s. Jupiter Cement Ltd. The money was released after settlement
with M/s. Jupiter Cement Ltd. Ultimately, the present complainants filed the present
complaint and the following reliefs were claimed :-
(a) To grant rate of interest @ 16 percent with quarterly
compounding from original due date of amount and pay the
difference between amount payable as per the above rate and
amount already paid as per the bank’s calculations. Difference
amount comes to Rs. 3,94,32,185.32 only.
(b) To grant suitable compensation for loss of prestige,
harassment and credibility of the company, its Directors and
Shareholders.
(c) Any other relief which this Hon’ble Forum deems fit in the
circumstances of the case may also be granted in favour of the
complainant and against the respondent Bank.
8. Consumer Complaint No. 173 of 2013
In Consumer Complaint Case No. 173 of 2013, Glayland Limited S.A. (Zurich),
Overseas Corporate Body (OCB)/complainant, deposited Rs.75.00 lakhs with the OP,
Bank, Porbandar Branch on 05.06.1986 under NRE Monthly Income Certificate Deposit
Scheme for a period of 120 months at interest rate of 13% per annum. Monthly interest
on this deposit came to Rs.80,736/- which was to be credited in the current account of
the complainant company and the due date was 05.06.1996. On 05.06.1996 the
complainant asked the Bank to pay the maturity value of Rs.75.00 lakhs but the Bank
defied the said value for about 12 years and thereafter, it paid a sum of
Rs.2,27,39,683.07 on 04.01.2008. The prevailing rate of interest on foreign deposit was
16% p.a. As per calculation, there is a difference of Rs.2,29,97,417.93 which is due to
the Bank. The said amount was detained on the pretext of default of M/s.Jupiter
Cement Limited which is a separate legal entity. Consequently, the above said
complaint was moved for recovery of Rs.2,29,97,417.03 with interest and
compensation.
9. Consumer Complaint No. 174 of 2013:
Same is the position with the last case, being CC No.174 of 2013. In this Case,
Glayland Limited (U.K) had deposited Rs.30.00 lakhs with Bank of India, OP for a
period of 72 months. Due date was 18.11.1993. The rate of interest was 13% p.a. On
the date of maturity, the Bank was asked to return the money along with interest, but it
retained the money for 14 years’ on the ground that maturity value was detained
because the account of M/s. Jupiter Cement Limited was in defulat but the complainants
were in no way connected with the same. In this case, the complainant has demanded
the remaining amount of Rs.2,58,87,172.42 and they have also demanded interest @
16% p.a. as well as compensation, etc.
10. Defence:
The OPs have set up the following defences. First of all, the jurisdiction of this
Commission has been called into question. It is also contended that the complainants
are not the consumers as per Consumer Protection Act, 1986. It is contended that the
matter should be decided by a Civil Court. It has also been pointed out that the
disputes pending between the parties have already been resolved and compromised
before the Civil Court. The proceedings initiated by the complainant under the Act are
non-est, null and void and without jurisdiction.
11. It is submitted that the complainants have already approached the Civil Court and
other Forums and are guilty of “forum shopping” to suit ‘his’ or ’her’/their ill-advised
wishes. The complainants have not approached this Commission with clean hands.
12. As a matter of fact, M/s. Jupiter Cement Limited was established on
09.10.1979 and the company set up a mini cement plant at Village Mokhana,
Bhanvad, District-Jamanagar, Gujarat with installed capacity of 300 tonnes per
day. There being Principal Promoters/Directors, Mr.K.J.Modha, Mr.T.D.Nadiapara,
Mr.R.N.Seth, Mr.M.P.Bhatt, Mrs. D.B.Joshi, Mr.R.D.Joshi and Mrs.K.B.Joshi. The
original cost of the project was Rs.880.00 lakh which was revised to Rs.1320.00 lakh
which was again revised to Rs.1330.00 lakh. The source of finance was projected as
Promoters Equity Rs.290.00 lakh, Public Issue Rs.235.00 lakh and rest financed by
Financial Institutions. The ICICI Bank first commissioned the project and later joined
Bank of India, Bank of Baroda and State Bank of Saurashtra. The State Bank of
Saurashtra was subsequently was replaced by UCO Bank.
13. The Bank of India financed term loan as well as working capital
against security of paripasu charge on 28.11.1986 and LC for Rs.68.00 lakh, lien was
marked on TDRs worth Rs.75.00 lakh of the associate company Glayland Ltd.
S.A. This was one of the considerations for the advances. The advance amount is
largely deposited, oriented and NRE Deposits of Directors, their relatives and associate
company aggregating Rs.192.08 lakh will remain with the Bank. The unit could not run
properly and incurred heavy losses and the account was classified as NPA on
01.04.1993. A suit was filed in the Court of Civil Judge, Jamkhanmbhalia, District-
Jamnagar on 31.03.1993 for recovery of Bank Dues in the sum of Rs.4,61,17,782.60
plus interest and costs, etc. Since the party was not co-operating particularly its
Director-Guarantor, Sh.B.L.Joshi, who, even had declined to execute renewal
documents. Besides, the borrowers and Guarantor, a U.K based company, M/s.
Glayland Ltd. S.A. which had also been promoted by Mr.B.L.Joshi was
impleaded since it had deposited its Monthly Income Certificates/TDRs for Rs.75.00
lakh as security for Letter of Credit facility granted to the Company and on
development, the amount was debited to Cash Credit Account of the Company.
14. Upon establishment of DRT, the case was transferred to DRT, Ahmedabad on
26.04.1995. There was reference to BIFR and proceedings were stayed. Mr.B.L.Joshi
demanded pre-mature payment of 3 Monthly Income Certificates vide his letter dated
01.04.1993. Consequently, the OP Bank filed a Suit on 04.10.1993 in the Court of Civil
Judge for injunction to restrain withdrawal of the money from the Bank because the
Bank properties as security pending in DRT accounts were inadequate. The suit was
dismissed on 20.05.1997.
15. Aggrieved by that order, the Bank preferred an Appeal bearing No.5927 in the
High Court of Gujarat at Ahmedabad. The Hon’ble High Court restrained the
complainants from encashing the Monthly Income Certificates and withdrawing the
amount lying in the account No.2410 with the OP Bank. The complainant was permitted
to invoke the right of set off against the Defendant Nos. 1 to 8 in respect of the aforesaid
Monthly Income Certificates and SB A/c No. 2410.
16. In the meantime, DRT, Ahmedabad, decided the case in favour of the Bank and
company factory, land, building and machinery were sold for a sum of Rs.217.00
lakh and 50% of the sale proceeds were deposited with ICICI Bank and 50% was given
to the OP Bank. As the entire suit amount could not be satisfied, therefore, the
proceedings were initiated against Company/Guarators. Ultimately, Mr.B.L.Joshi, in the
capacity of Guarantor, as well as the Director of the company, approached the Bank
with a compromise proposal and initially offered a sum of Rs.350.00 lakh, which was
subsequently raised to Rs.500.00 lakh and the terms and conditions of the settlement
were decided by the Bank and Borrowers, mutually. It would be worthwhile to produce
the compromise deed which runs, as under :-
“We hereby unconditionally agree that all the deposits in
personal name of Sh.B.L. Joshi/with his family
members/associates OCBs (M/s. Glayland Ltd S.S. and or M/s.
B.L.Joshi, U.K. etc.), have been renewed properly from time
to time and our representative and we have verified and
satisfied ourselves. We would also never raise any objection to
the periodic renewal of all the terms deposits and amount of
interest paid thereon, as applicable from time to time and the
treatment given to the balance lying in our saving account by
the bank as per court order, in future. We also unconditionally
agree and undertake that we will not raise any dispute or claim
with the deposits and all objections, contentions, etc., made
whether by letter of application or otherwise pending with the
bank or in any court proceedings in connection with the
account of M/s. Jupiter Cement Ind.Ltd., stand withdrawn and
hereafter be regarded as having come to an end without
further claim in that respect against the Bank either by way of
additional interest, damages, compensation or otherwise”.
17. After the above said statement, the complainants, with ulterior motive and
vexatious desire also, approached the Bank’s Ombudsman, Home Minister of Gujarat
and the Hon’ble Prime Minister. Ultimately, they have filed these frivolous complaints
before this Commission.
18. OPs also set up the similar defences in case Nos. 172/2013, 173/2013 and
174/2013, respectively.
19. Submissions and Findings :
We have heard the learned counsel for the parties on the question of admission
of these complaints. On 06.10.2006, the learned DRT, Ahmedabad, passed a detailed
order and the operative portion of which is as under :
“OPERATIVE ORDER
“I) Transfer application is allowed with costs.
II) Defendants No. 1 to 3 do jointly and severally pay applicant
Rs.4,61,17,782.06 with simple interest @ 6% per annum from
the date of the filing of the suit, i.e. 31.03.21993, until
realization.
III) Applicant shall be entitled to appropriate the
Proceeds of MIC originally pledged by the
defendant No.8 and thereafter came to be
reinvested from time to time towards the
satisfaction of the certified dues.
IV) Applicant shall deduct the payment received in the
account of the defendant No.1, now under liquidation, during
the pendency of the Special Civil
Suit/Transfer Application.
V) Application stands disposed against the defendants
No. 4 to 7 with in order as to costs.
VI) Issue Recovery Certificate under Section 19 (22) of
the Act”.
20. Against the order of the Learned DRT, Ahmedabad, Gujarat, a Writ Petition was
filed in the Hon’ble High Court of Gujarat, which was withdrawn.
21. Mr. B.L.Joshi, UK, Ltd, and Director, B.Joshi wrote a letter to the Bank, which runs
as follows :-
“With reference to your letter No.PBR: ADV: GCN” 1010
Dt.01.12.2007 para 2 (e), we, hereby, unconditionally agree that
all the deposits in our name/s have been renewed properly from
time to time and our representative and we have verified and
satisfied ourselves in this regard. We undertake that we would
never raise any objection to the periodic renewal of all of our term
deposits and amount of interest paid thereon, as applicable from
time to time, in future.
We, also, unconditionally agree and undertake that we will not
raise any dispute or claim with respect to the interest on these
deposits or any other amount in connection with the deposits, and
all objections, contentions, etc., made whether by letter or
applications or otherwise pending with bank hereafter be
regarded as having come to an end without further claim in that
respect against the bank either by way of additional interest,
damages, compensation or otherwise.
Date : Thanking you,
Place : Yours faithfully
B.L.JOSHI U.K.LTD.
Sd/- Sd/-
DIRECTOR DIRECTOR”
22. Thereafter, the above said ‘compromise’ took place on 12.12.2007. The
compromise was entered by Mr.B.L.Joshi in the capacity of ‘Guarantor’.
23. The learned counsel for the complainants vehemently argued that the matter
pending between the DRT was between other parties and this case is between separate
parties. He contended that Mr.B.L.Joshi had entered into a contract/compromise with
the OPs of his own choice. He was not given authority by the other Directors too enter
into the said compromise. The counsel for the complainants has cited few authorities in
support of his case. The first authority is reported in Kiran Krishna Agro Tech Ltd. Vs.
P.V.Shantha Kumari, II (2012) CPJ 531 (NC) wherein the case regarding FDR was
entertained by the National Commission; the second authority reported in Allhabad
Bank & Anr. Vs. Paper Product Machines, IV (2012) CPJ 495 (NC), is a judgment of this
Bench. This case also pertains to a Bank. In this case, cheques were deposited, the
same were neither credited into the account nor were received back. It was held that
cause of action is continuing unless or until the complainant gets that amount. He has
also invited our attention to another authority reported inPoonam Constructions & Ors.,
Vs. Manjusha Ashok Dudhane, IV (2012) CPJ 790 (NC), wherein it was held that due to
delay of 1072 days, the case was barred by time. He has also invited our attention
towards the Hon’ble Apex Courts’ authority reported in Basant Singh & Anr., Vs. Roman
Catholic Mission,which is regarding ‘service’ of summons. He has also cited another
authority reported in Punj Lloyd Limited Vs. Corporate Risks India Pvt.Ltd., I (2009) CPJ
10 (SC). In this case, this Commission dismissed the complaint because the disputed
questions raised were found to be beyond the purview of this Commission. It was held
that dismissal of the complaint was unjustified. The Commission ought to have issued
notice to the respondent and place pleadings on record.
24. The above said authorities have left no impact upon us. The aforesaid authorities
hardly apply to the present cases. We do not pick up a conflict with the law laid down in
these authorities. These authorities certainly are applicable to the Consumer Fora. It
must be borne in mind that the facts are stubborn things. The facts of these cases are
altogether different from the above cited authorities.
25. The facts of these cases are peculiar and unique. The Order was rendered by the
learned DRT, Gujarat. Some directions were also given by the Hon’ble High Court of
Gujarat. Those have attained finality. Although the Consumer Fora, by virtue of
Section 3 of the Consumer Protection Act, 1986 has got the parallel jurisdiction, yet
when the case is decided by the Civil Court or DRT, it remains bound by that. It cannot
re-open the controversy again. It is well settled that Consumer Fora is bound by the
orders pronounced by the Civil Court. It cannot take a contrary view from that of the
Civil Court. It must be borne in mind that the Civil Court has already decided the case
and this Commission shall refrain from interfering into it. This Commission is not armed
with power to sit as an Appellate Court over the orders passed by the DRT. The DRT
has got its own Appellate authority, which is known as Debts Recovery Appellate
Tribunal.
26. Moreover, it is difficult to fathom as to why the other Directors could not move the
application for being impleaded as parties before the learned DRT. They should have
filed an application for impleadment before the learned DRT. In case this Commission
interferes, it may lead to multiplicity of judgments, which is not desirable and not
permissible by any law.
27. Even now, those Directors can move before the DRT or DRAT for seeking further
relief. It is also surprising to note that Mr.B.L.Joshi is one of the complainants in this
case. It is not understood as to how he can challenge his own authority. It is also
surprising to note that other Directors have joined hands with him and they are working
in cahoots with each other. All the complainants had the knowledge about the
compromise. They should have raised objection there and then. It is well settled that
“A Stitch in Time, Saves Nine”. The delay on the part of the complainants for such a
long time is unfathomable. Consequently, this Commission has no jurisdiction to
entertain these complaints. These are barred by principles of res judicata. Following
authorities go to fortify the case of OPs.
28. In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ 174
(NC), this Commission held that “a complaint filed by the complainant suppressing the
fact that the matter was already sub judice in the Sub-Court, Ernakulam, was dismissed
by the State Commission as the case was already sub judice before a Civil Court. In
appeal, the National Commission upheld the order of the State Commission holding that
the complaint was gross abuse of the Consumer Protection Act”.
29. In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR 386
(NC), this Commission upheld the important principle that when a matter is sub judice
before the ordinary Civil Courts of the land, the Consumer Commission cannot and will
not entertain any claim for compensation in respect of the same subject matter.
30. Last, but not the least, this Commission clearly, specifically and
unequivocally held in Traxpo Trading Co. Vs. The Federal Bank Ltd, I (2002) CPJ 31
(NC) that under Section 18 of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, jurisdiction of this Commission has been barred, where the Bank
has filed ‘suit for recovery’, before DRT.
31. LIMITATION:
Moreover, this case is hopelessly barred by time. The cause of action arose
when the matter was settled on 01.12.2007. The cause of action again arose on
04.01.2008, when the alleged amount was paid to the complainants and the Bank had
refused to pay the remaining amount. Thereafter, the complainants approached the
Hon’ble High Court of Gujarat and the Hon’ble High Court of Gujarat vide its order dated
21.07.2010 passed the following order :-
“ORAL ORDER
Heard learned advocate Mr.Ashish M. Dagli Appearing on behalf of
petitioner for all four Petitions. petitioner may approach, in respect to Grievance raised
in all four petitions, the Appropriate forum in accordance with law. In view of the above
observation, present Petitions are disposed of by this Court without Expressing any
opinion on merits”.
32. It is, therefore, clear that the Hon’ble High Court did not condone
the delay on the part of the complainants. The present complaints were filed on
17.09.2010.
33. Our predecessor Bench, vide its order dated 12.09.2011, passed the following
order :-
“Heard. Prima facie, some of the complaints appear to be
barred by period of limitation. As per complaints, certain
deposits were made in 1987 and maturity date was 1993, in
respect of those deposits. Further, there has been civil
litigation between the parties. Complainant is directed to file
copies of the pleadings of those litigations which took place
earlier between the parties, qua the deposits made by the
complainant. Same be filed within 8 weeks. List on
05.12.2011, for admission hearing”.
34. We also gave opportunity to the complainants to file an application for
condonation of delay. Our order dated 04.01.2013, runs as follows:-
“Heard counsel for the parties.
Counsel for the opposite party submits that there is a
question of limitation, but no application in this connection
has been filed. An opportunity is granted to the complainant
to file an application for condonation of delay. He submits
that he has filed the complaint before the Registry, but the
Registry had raised no objection. Evidence to that context be
also produced.
Stand over to 18th March, 2013”
35. However, the needful was not done. Application for condonation of delay was
never moved despite opportunities granted to the complainants. It is thus clear that the
present complaints are barred under Section 24-A of the Consumer Protection Act,
1986. There is not an iota of evidence that cause of action has arisen two years prior
to the above said case. Consequently, we dismiss the complaints with punitive costs of
Rs.15,000/- in each case, total being Rs.60,000/- to be deposited with the
Consumer Welfare Fund established by the Central Government under Section 12 (3)
read with Rule 10 (a) of the Consumer Protection Act, 1986, of the Central Excise Act,
1944, within one month from the date of the order, failing which it will carry interest @
10% p.a. Registrar to submit compliance report immediately, after the expiry of two
months.
.…..…………………………
(J. M. MALIK, J)
PRESIDING MEMBER
……………………………...
(VINAY KUMAR)
MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 721 OF 2013 (From order dated 26.11.2012 in Appeal No. 201/2012 of the
State Consumer Disputes Redressal Commission, Uttar
Pradesh, Lucknow )With
IA/1315/2013
(STAY)
Standard Chartered Bank Through its Authorised Officer, Mr.Ajay Rana 10, Parliament
Street, New Delhi
… Petitioner
Versus
Virendra Rai, S/o Late Sh.Patu Rai R/o 3/83, Sanjay Gandhi Nagar P.N.Road, Tehsil &
Dist. Lucknow
… Respondent
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the petitioner : Mr. Sanjeev Sagar, Advocate
For the Respondent : N E M O
PRONOUNCED ON 01.04.2013
O R D E R
JUSTICE J.M. MALIK
1. The Civil Court or any other authority can not arrogate to itself the right to make
decisions or interfere with the Securitisation and Reconstruction of Financial Assets and
Enforcement of Security Interest Act, 2002 (in short ‘SARFAESI Act’). Here lies the rub
in Section 34 of SARFAESI Act which reads as follows:-
“34. Civil court not to have jurisdiction. – No civil court shall have
jurisdiction to entertain any suit or proceeding in respect of any matter
which a Debts Recovery Tribunal or the Appellate Tribunal is
empowered by or under this Act to determine and no injunction shall
be granted by any court or other authority in respect of
any action taken in pursuance of any power conferred by or under
this Act or under the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993 (51 of 1993)”.
2. The State Commission, Lucknow, presided over by S/Sh. Rampal Singh, Presiding
Member and Jugal Kishore, Member, passed the following order:-
“… The petitioner states that in order dated 24.07.2011
the Consumer Forum has ordered the petitioner bank that
during the pendency of this case, the petitioner shall not take
possession of property of complainant
bearing No.Plot No.14, Gaurbhith,Fazulahganj, Lucknow. The
Consumer Forum has also given next date as 25.08.2012 for
further proceedings.
The petitioner has prayed before this Forum for setting aside
of order dated 24.07.2012 by this Forum. Further, after the
passing of the date fixed by the Consumer Forum, i.e.
25.08.2012, the petitioner has not informed us about the
orders passed by the Consumer Forum. After hearing the
counsel for petitioner in detail, it is found that the appeal of
the petitioner is merit-less and hence liable to be dismissed.
ORDER
Present appeal does not have any force and hence is
dismissed. The order passed by the Consumer Forum dated
24.07.2011 in case No. 780/11 is hereby confirmed. The cost
of this appeal shall be borne by the petitioner himself.
The certified copy of the order be supplied accordingly
to rules”.
3. We have also seen the order passed by the District Forum-II, Lucknow, which
has observed as under :-
“…… The complainant on the other hand objected to
objection of respondent and stated that this Forum has
jurisdiction to hear the present case. From their side an
order passed by Hon’ble State Consumer
Disputes Redressal Forum, U.P. in appeal No.694/09 titled
“Gaya Prasad Vs. GIC Housing Finance
Limited” and order dated 01.05.09 has been relied upon,
we have gone through the said order from which it is clear
that only the Civil Court has been barred from hearing and
thus only civil court does not have jurisdiction to hear the
present case and not the consumer fourm. Into this order,
the Hon’ble State Consumer Forum, U.P. has also
mentioned Section 3 of the Consumer Protection Act,
1986, wherein it has been specifically stated that the
provisions of this Act shall be in addition to and not in
derogation of provisions of any other law for the time being
in force. Referring to this provision, the Hon’ble State
Consumer Forum, U.P. has stated that the powers given to
the Consumer Court are not in derogation of the provisions
of SARFAESI Act. Hon’ble State Consumer Forum, U.P.
and its order in case titled “Kishori LalVs. ESI Corporation
has stated clearly that the Consumer Forum has the
jurisdiction to hear such cases and section 34 of the
SARFAESI Act does not bar the said jurisdiction and in
such circumstances, the objection of respondent bank
does not have any force”.
4. Counsel for the petitioner present. Respondent has not
appeared. However, his written submissions have been placed on record. We have
gone through the same. Instead of touching the heart of the problem, the complainant
has just skirted it. He has countenanced the deficiency on the part of the Bank. He has
not spoken about the jurisdiction of this case.
5. The learned counsel for the petitioner vehemently argued that the Bank had cited
before the State Commission, the order passed by this Bench, titled as “Bank of Baroda
Vs. M/s. Geeta Foods”, decided on 08.11.2012 (RP No. 3499 of 2012). The counsel for
the petitioner alleges that this order was not discussed by the State Commission. He
contended that the State Commission should have mustered the courage to mention
about this order which otherwisetantamounts to Contempt of Court.
6. We have already held that as per Section 34 of the SARFAESI Act, 2002, the
District Forum or the State Commission have no power to interfere with the SARFAESI
Act. The District Forum and State Commission are under the misconception that the
Consumer Court is not a civil court. In Patel Roadways Vs. Birla Yamaha Limited, 2000
(4) SCC 91, AIR 2000 SC 461, the Hon’ble Apex court has held :
“The contention that the use of the term ‘suit’ in Section 9 of
the Carriers Act shows that the provision is applicable only to
the cases filed in a civil Court and does not extend to
proceedings before the National Commission which is a forum
to decide complaints by Consumers following a summary
procedure cannot be accepted. The term ‘suit’ is a generic
term taking within its sweeps all proceedings, initiated
by, a party for realization of a right vested in him under
law. The meaning of the term ‘suit’ also depends on the
context of its use which in turn, amongst other things, depends
on the Act or the rule in which it is used. No doubt the
proceeding before a National Commission is ordinarily a
summary proceeding and in an appropriate case where the
Commission feels that the issues raised by the parties are too
contentious to be decided in a summary proceeding it may
refer the parties to a civil Court. That does not mean that the
proceeding before the Commission is to be decided ignoring
the express statutory provisions of the Carriers Act (Section 8)
in a proceeding in which a claim is made against a common
carrier as defined in the said Act. Accepting such a contention
would defeat the object and purpose for which the Consumer
Protection Act was enacted. A proceeding before the National
Commission comes within the term ‘suit’.
7. In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ 174
(NC), this Commission held that “a complaint filed by the complainant suppressing the
fact that the matter was already sub judice in the Sub-Court, Ernakulam, was dismissed
by the State Commission as the case was already sub judice before a Civil Court. In
appeal, the National Commission upheld the order of the State Commission holding that
the complaint was gross abuse of the Consumer Protection Act”.
8. In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR
386 (NC), this Commission upheld the important principle that when a matter is
sub judice before the ordinary Civil Courts of the land, the Consumer Commission
cannot and will not entertain any claim for compensation in respect of the same subject
matter.
9. It must be borne in mind that under Section 6 of the Indian Post Office Act, the
Consumer Fora have got limited jurisdiction.
10. Again, in Southern Railways Vs. M.Chidambaram, 2002 (1) CPJ 34: (2002) 1 CPJ
342 (NC), it was held that since it was not disputed that untoward incident as mentioned
in Section 124-A of the Act has occurred the proper forum of adjudication would only be
before the Railway Claim Tribunal under Section 15 of the Railway Claims Tribunal Act,
1987. The consumer court had no jurisdiction in this respect.
11. The consumer court cannot deal with the directions given to a Company declared
‘sick’ by BIFR.
12. In Dinesh Kumar Vs. Railway Station Master, Raipur Station, IV (2004) CPJ 136
(Chhattisgarh), it was held that as Section 15 of the Railways Act, clearly bars
jurisdiction of any other Court authority, consequently, remedy under Consumer
Protection Act, 1986 stands barred and was not available to the complainant.
13. Last, but not the least, this Commission clearly, specifically
and unequivocally held in Traxpo Trading Co. Vs. The Federal Bank Ltd, I (2002) CPJ
31 (NC) that under Section 18 of the Recovery of Debts Due to Banks and Financial
Institutions Act, 1993, jurisdiction of this Commission has been barred, where the Bank
has filed ‘suit for recovery’, before DRT.
14. Under these circumstances, the proceedings pending before the District Forum
are hereby quashed and the revision petition is accepted. The complaint is dismissed.
Copy of this order be sent to the State Commission and District Forum to follow the
order passed by this Commission, time and again, without caring whatever their
personal views are.
...…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
…..…..…………………………
(VINAY KUMAR)
dd/7 MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3839 OF 2012
(From the order dated 17.02.2012 in Appeal No. 552/2009 of the A.P. State Consumer
Disputes Redressal Commission, Hyderabad)
Abdul Hafeez S/o Shri Abdul Nayeem R/o H. No. 1-101/1 1B, S.S. Gutta Mahabobnagar
– 509001
…Petitioner/Complainant
Versus
State Bank of Hyderabad Rashtrapati Road Branch Secundrabad, A.P.
… Respondent/Opposite Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
For the Petitioner : Ms. Soumyashree Kulkarni, Advocate
PRONOUNCED ON 2 nd April, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioner/complainant against the
order dated 17.02.2012 passed by the A.P. State Consumer Disputes Redressal
Commission, Hyderabad (in short, ‘the State Commission’) in Appeal No. 552 of 2009 –
The State Bank of Hyderabad Vs. Sri Abdul Hafeez by which, while allowing appeal
partly, order passed by learned District Forum was modified.
2. Brief facts of the case are that complainant/petitioner availed loan to the tune of
Rs.10,500/- on 19.9.1989 from OP-respondent by depositing his title deeds and
executed demand promissory note and also submitted personal guarantee. OP filed
suit in the Court of Civil Judge (East and North), R.R. District at L.B. Nagar for recovery
of amount and during pendency of litigation, complainant paid Rs.50,280/- in
consequence of which, OP closed loan account on 12.11.1993 and issued passbook
with an endorsement “Account closed” to the complainant. Complainant requested OP
to return title deeds of the plot and the promissory note and agreement of guarantee,
but as documents were not returned, complainant filed complaint alleging deficiency on
the part OP. OP/respondent contested complaint and submitted that OP filed
documents before the Court of Junior Civil Judge and his documents could not be
traced in the Court and were not returned to the OP. In spite of sincere efforts,
documents could not be returned and prayed for dismissal of complaint. Learned
District Forum after hearing both the parties allowed the complaint and directed OP to
pay compensation of Rs.2,00,000/-. OP filed appeal against the order of District forum
and learned State Commission vide impugned order reduced amount of compensation
from Rs.2,00,000/- to Rs.1,00,000/-. Petitioner has filed this revision petition against the
impugned order for enhancement of compensation.
3. Heard learned Counsel for the petitioner at admission stage and perused record.
4. Petitioner has filed revision petition along with application for condonation of
delay of 119 days. Petitioner submitted that revision petition could not be filed in time
due to the fact that petitioner is 65 years old and ailing person and unable to work
without assistance and further submitted that due to paucity of funds, delay occurred.
5. As per application for condonation of delay, petitioner is only 65 years old and
has not placed any document regarding illness. In such circumstances, old age is not a
tenable ground for condonation of delay. Further, it was submitted that due to paucity of
funds, revision petition could not be filed. As per impugned order, petitioner is a retired
Forest Range Officer and must be getting pension and in such circumstances, paucity
of funds cannot be treated as satisfactory explanation for condonation of delay. As
there is inordinate delay of 119 days, this delay cannot be condoned in the light of the
following judgment passed by the Hon’ble Apex Court.
6. In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it
has been observed:
“We hold that in each and every case the Court has to examine
whether delay in filing the special appeal leave petitions stands
properly explained. This is the basic test which needs to be
applied. The true guide is whether the petitioner has acted with
reasonable diligence in the prosecution of his appeal/petition.”
7. In Ram Lal and Ors. Vs. Rewa Coalfields Ltd ., AIR 1962 Supreme Court
361, it has been observed;
“It is, however, necessary to emphasize that even after sufficient
cause has been shown a party is not entitled to the condonation
of delay in question as a matter of right. The proof of a sufficient
cause is a discretionary jurisdiction vested in the Court by S.5. If
sufficient cause is not proved nothing further has to be done; the
application for condonation has to be dismissed on that ground
alone. If sufficient cause is shown then the Court has to enquire
whether in its discretion it should condone the delay. This aspect
of the matter naturally introduces the consideration of all relevant
facts and it is at this stage that diligence of the party or its bona
fides may fall for consideration; but the scope of the enquiry while
exercising the discretionary power after sufficient cause is shown
would naturally be limited only to such facts as the Court may
regard as relevant.”
8. Hon’ble Supreme Court after exhaustively considering the case law on the
aspect of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.
Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as
under;
“We have considered the respective submissions. The
law of limitation is founded on public policy. The legislature
does not prescribe limitation with the object of destroying the
rights of the parties but to ensure that they do not resort
to dilatory tactics and seek remedy without delay. The idea
is that every legal remedy must be kept alive for a period
fixed by the legislature. To put it differently, the law of
limitation prescribes a period within which legal remedy can
be availed for redress of the legal injury. At the same time,
the courts are bestowed with the power to condone the
delay, if sufficient cause is shown for not availing the remedy
within the stipulated time.”
9. Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors. Vs. Living
Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government
department and further observed that condonation of delay is an exception and should
not be used as an anticipated benefit for the Government departments.
10. Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla
Industrial Development Authority observed as under:
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the
Court has to keep in mind that the special period of limitation
has been prescribed under the Consumer Protection Act,
1986, for filing appeals and revisions in Consumer matters and
the object of expeditious adjudication of the Consumer
disputes will get defeated, if this Court was to entertain highly
belated petitions filed against the orders of the Consumer
Foras”.
Thus, it becomes clear that there is no reasonable explanation at all for condonation of
inordinate delay of 119 days. Revision petition is liable to be dismissed on the ground of
delay alone.
11. As far as merits of the case are concerned, record clearly reveals that documents
were submitted by OP/respondent in the Court in suit for recovery of amount and the
documents were missing from the Court and were not returned to the respondent, in
such circumstances, respondent was not in a position to return documents to the
petitioner. Even then, learned District Forum allowed compensation of Rs.2,00,000/-
and learned State Commission modified it and upheld compensation of Rs.1,00,000/-,
there is no justification for enhancement of compensation. Learned State Commission
has observed as under:
“16. The Supreme Court held that the compensation to be
awarded is to be fair and reasonable. In “Charan Singh vs. Healing
Touch Hospital and others” – 2000 SAR (Civil) 935, the Apex Court
stressed the need of balancing between the compensation awarded
recompensing the Consumer and the change it brings in the
attitude of the service provider. The Court held -
‘While quantifying damages, consumer forums are
required to make an attempt to serve ends of justice
so that compensation is awarded, in an established
case, which not only serves the purpose of
recompensing the individual, but which also at the
same time aims to bring about a qualitative change in
the attitude of the service provider. Indeed calculation
of damages depends on the facts and circumstances
of each case. No hard and fast rule can be laid down
for universal application. While awarding
compensation, a Consumer Forum has to take into
account all relevant factors and assess compensation
on the basis of accepted legal principles, on
moderation. It is for the Consumer Forum to grant
compensation to the extent it finds it reasonable, fair
and proper in the facts and circumstances of a given
case according to established judicial standards
where the claimant is able to establish his charge’.
Therefore, taking into consideration of the totality of the circumstances and the
ratio laid in the aforementioned decision, we are of the opinion that the amount of
Rs.2,00,000/- awarded by the District Forum towards compensation is of higher side
and not commensurate with the degree of deficiency found on the part of the appellant
bank in rendering service to the respondent. As such, the amount of Rs.2,00,000/-
awarded is scaled down to Rs.1,00,000/-“.
12. In the light of the aforesaid discussion, I do not find any infirmity, illegality or
jurisdictional error in the impugned order which calls for any interference and revision
petition is liable to be dismissed at admission stage.
13. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to cost.
..………………Sd/……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2097 OF 2011 alongwith
I.A. NO.02 OF 2012 (For Condonation of Delay)
(From the order dated 3.8.2009 Appeal No.316/2009 of the State Commission,
Chhattisgarh)
Girish Kohle D-16, Tagore Nagar, Raipur, Chhatitisgarh – 492001
…Petitioner
Vs.
S.B.I. Cards & Payments Pvt. Ltd. P.O. Bag No.-28, GPO, New Delhi Having Registered
Office 11, Parliament Street, New Delhi – 110001.
….Respondent
BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
HON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Pramod Kumar, Advocate
For the Respondent : Ms. Amita Kumari, Advocate
Pronounced on : 9 th April, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Petitioner/complainant has filed the present revision petition under Section 21(b)
of the Consumer Protection Act, 1986 (for short, ‘Act’) challenging order dated
5.10.2009, passed by Chhattisgarh State Consumer Disputes Redressal Commission,
Raipur (for short, ‘State Commission’), vide which petitioner’s appeal challenging order
of the District Consumer Disputes Redressal Forum, Raipur (for short, ‘District Forum’)
dated 4.7.2007 dismissing the complaint of the petitioner was dismissed.
2. Case of petitioner before District Forum was that he had obtained a credit card
from the respondent/opposite party. As per demand made by the respondent, certain
amount was due towards the petitioner which had been wrongly added in the account
of the petitioner. Further, undue pressure was created upon the petitioner for payment
of that amount. It was stated that no fees would be chargeable for next one year, but in
the bill such fees was charged. Thus, deficiency in service was committed by the
respondent.
3. None appeared for the respondent before the District Forum despite service of
the notice. Hence, respondent was proceeded ex parte.
4. District Forum, dismissed the complaint holding that petitioner himself was
careless in not making due payment to the respondent.
5. Being aggrieved by the order of District Forum, petitioner filed an appeal, which
was dismissed by the State Commission.
6. Alongwith the present petition, an application seeking condonation of delay of 365
days has also been filed. However, as per office noting, there is delay of 533 days.
7. We have heard arguments on application for condonation of
delay and gone through the record.
8. Grounds on which condonation of delay has been sought read as under;
“4. After the order of the State Commission dated 5.10.2009, the
petitioner came to know that the respondent has also started a
parallel and unilateral arbitration proceeding against the petitioner
for recovery of its alleged claim which has been disputed by the
petitioner under the Act.
5. That on 3.12.2009 the petitioner received a letter from arbitrator
situated in Delhi who was appointed by the respondent
to arbitrate the dispute between the petitioner and the respondent
for payment dispute. Vide said notice/letter the Arbitrator informed
the petitioner to attend the arbitration proceeding which was fixed
for 22.1.2010.
6. That on 17.12.2009 the petitioner replied to the Arbitrator of the
respondent that Petitioner does not accept any kind of arbitration in
this regard and informed them that petitioner was going to
challenge the order of State Commission before the National
Commission.
7. That it is stated that petitioner is a government servant and it is a
very difficult for him to take leave to attend the hearing time and
again. It was very difficult for the petitioner to manage all this
hassles while doing his job. There was also a unilateral arbitration
proceeding initiated simultaneously by the respondent against the
petitioner. In such circumstances the petitioner could not take
steps further within a reasonable period.
8. That surprisingly, after almost ten months, petitioner received a
copy of an arbitration award dated 24.09.2010 purportedly passed
by the Arbitrator against the petitioner whereby an award of
Rs.1,21,367/- together with interest @ 2.95% per month, from the
date of accrual of the cause of action as per statement of claim till
the date of decree or the date of payment whichever is earlier was
pass against the petitioner.
9. xxxxxxxxxxxxxxxxxxxxx
10. That thereafter there was no other option before the petitioner
except to approach before this Hon'ble Commission for justice. On
21.2.2011 the petitioner filed the present revision petition before
this Hon'ble Commission.
11. That thus there is delay of about 365 days of almost one year in
filing the revision petition.”
9. As per petitioner’s own case, State Commission had passed the order of
5.10.2009. He also came to know that, respondent has started parallel arbitration
proceeding for which he had received intimation from the Arbitrator. It is also petitioner’s
case that on 17.12.2009, he replied to the Arbitrator stating that he does not accept any
kind of arbitration in this regard and was going to challenge the order of the State
Commission. Admittedly, order of State Commission was challenged only on 21.2.2011
by filing the present petition. There is no explanation at all as to why from 17.12.2009 till
21.2.2011, petitioner did not challenge the order of the State Commission.
10. It is well settled that “sufficient cause” for condoning the delay in each case is a
question of fact.
11. Under the Consumer Protection Act, 1986, a special period of limitation has been
provided to ensure expeditious disposal of cases. Complaint has to be disposed of
within 90 days from the date of filing where no expert evidence is required to be taken
and within 150 days where expert evidence is required to be taken. The inordinate
delay of 365 days cannot be condoned without showing sufficient cause. Day to day
delay has also not been explained. We are not satisfied with the explanation given.
12. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial
Development Authority –IV (2011) CPJ 63 (SC) has held that while deciding the
application filed forcondonation of delay, the Court has to keep in mind that the
special period of limitation has been prescribed under the Act for filing appeals and
revisions in consumer matters and the object of expeditious adjudication of the
consumer disputes will get defeated if the appeals and revisions which are highly
belated are entertained. Relevant observations made by Apex Court read as under:
“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the Court
has to keep in mind that the special period of limitation has been
prescribed under the Consumer Protection Act, 1986 for filing
appeals and revisions in consumer matters and the object of
expeditious adjudication of the consumer disputes will get defeated
if this court was to entertain highly belated petitions filed against
the orders of the consumerfora”.
13. The inordinate delay of 365 days cannot be condoned. Thus, we reject the
application for seeking condonation of delay of 365 days in filing the revision petition
before this Commission. Consequently, we dismiss the present revision petition being
time barred with cost of Rs.5,000/- (Rupees Five Thousand only).
14 Petitioner is directed to deposit the cost of Rs.5,000/- (Rupees Five Thousand
only) by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A
of Consumer Protection Rules, 1987, within four weeks from today. In case, he fails to
deposit the cost within prescribed period, then he shall be liable to pay interest @ 9%
p.a. till its realization.
15. List on 17.05.2013 for compliance.
…..…………………………J
(V.B. GUPTA)
PRESIDING MEMBER
…..…………………………
(REKHA GUPTA)
MEMBER
Sg/-
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1149 of 2013 (From the order dated 18.02.2011 in Appeal No. 564 of 2010 Bihar State Consumer
Disputes Redressal Commission, Patna)
With I.A. No.2089 & 2090 / 2013
(Stay & Condonation of Delay)
United Bank of India Head Office at 11, Hemanta Basu Sarani, Kolkata – 700001
and branches amongst others at Baranagar Branch, 57, Cossipur Road, Kolkata –
700036 (West Bengal) (through its Chief Manager)
… Petitioner/Opposite Party (OP)
Versus
M/s. Shib Durga Rolling Centre 177-B, Maharaja Nanda Kumar Road Kolkata – 700036
(through its sole proprietor Smt. Chandra Nandy)
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. S.S. Lingwal, Advocate
PRONOUNCED ON 11 th April , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order dated 18.02.2011 passed by the West Bengal State Consumer
DisputesRedressal Commission, Kolkata (in short, ‘the State Commission’) in Appeal
No.564 of 2010 – United Bank of India Vs. M/s. Shib Durga Rolling Centre by
which, appeal was dismissed in default.
2. Brief facts of the case are that Complainant/Respondent filed complaint with the
District Forum and by order dated 29.7.2010, District Forum allowed complaint and
directed OP/Petitioner to return the original title deeds in respect of the landed property
to the complainant within a month and to pay compensation of Rs.5,000/- and litigation
cost of Rs.1,000/-, but appeal filed by the petitioner was dismissed in default by learned
State Commission by the impugned order against which, this revision petition has been
filed along with application for condonation of delay.
3. Heard learned Counsel for the petitioner at admission stage on application
for condonation of delay and perused record.
4. Learned Counsel for the petitioner submitted that petitioner came to know about
the impugned order on 26.11.2012, and revision petition has been filed on 22.3.2013;
hence, delay of 24 days in filing revision petition be condoned.
5. Perusal of record reveals that impugned order dismissing appeal in default was
passed on 18.2.2011 and as per certified copy issued on 26.11.2012, free copy was
issued to the parties on 7.3.2011. Petitioner has nowhere mentioned in its application
for condonation of delay that petitioner or his Counsel has not received free copy issued
by the learned State Commission. In such circumstances, it may be presumed that
petitioner received free copy issued on 7.3.2011 and this revision petition has been filed
on 22.3.2013 i.e. after more than 2 years and in such circumstances, inordinate delay of
1 year and 9 months in filing revision petition cannot be condoned.
6. Perusal of application reveals that on 1.8.2012, Petitioner-Bank received notice of
Execution Case No.124/2010 pertaining to this complaint and then Petitioner’s Branch
Manager contacted Advocate Sri Puranjay Das who assured that appeal will be
restored. It was further mentioned in the application that Advocate was being contacted
through letters, e-mails or phones, but no documentary evidence in support of this fact
has been filed by the petitioner along with application for condonationof delay. It was
further submitted in the application that on 17.11.2012, Police Officer came with Arrest
Warrant for non-compliance of order of District Forum and thereafter, on 20.11.2012,
Branch Manager appeared before District Forum and paid the amount of compensation
and cost of litigation, as per order of District Forum and only after that Arrest Warrant
was recalled by District Forum. It was further mentioned in the application that
Petitioner-Bank applied for certified copy, which was received on 26.11.2012. It was
further mentioned that Petitioner came to know about the fate of appeal only after the
receipt of certified copy on 26.11.2012. This fact is apparently wrong because when the
petitioner received Execution Notice on 1.8.2012 and further Police Officer came along
with Arrest Warrant on 17.11.2012 and further when Branch Manager appeared before
District Forum on 20.11.2012, the petitioner must have come to know about the fate of
appeal. For the sake of arguments, even if, it is presumed that the petitioner came to
know only on 26.11.2012 about the fate of appeal on receipt of certified copy, he should
have filed revision petition immediately explaining delay of each day, but revision
petition has been filed on 22.3.2013 i.e. almost after 4 months.
7. Apparently, no satisfactory explanation has been given by the petitioner for
inordinate delay of 1 year and 9 months for filing revision petition and in such
circumstances, application for condonation of delay is liable to be dismissed in the light
of the following judgments passed by the Hon’ble Apex Court and the National
Commission in (1) (1010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs.
Gujarat Industrial Development Corporation and Anr.; (2) (2012 3 SCC 563 – Office of
The Chief Post Master General and Ors. Vs. Living Media India Ltd.
and Anr. and (3) 2012 (2) CPC 3 (State Commission)
– Anshul AggarwalVs. New Okhla Industrial Development Authority.
8. In such circumstances, application for condonation of delay is dismissed and
consequently, revision petition stands dismissed as time barred with no order as to
costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
C.C. NO.39 OF 2013
M/S. SAM FINE O CHEM LIMITED, FORMERLY KNOWN AS M/S SAM FINE CHEM
LTD. SHYAM VILA, SAPTA SINDHU COMPOUND ROKADIA LANE, BORIVALI,
MUMBAI 400092 MAHARASHTRA THROUGH, ITS AUTHORIZED SIGNATORY
.… COMPLAINANT
Versus
UNION BANK OF INDIA 66/80, MUMBAI SAMACHAR MARG MUMBAI 400023
MAHARASHTRA THROUGH ITS BRANCH DEPUTY GENERAL MANAGER
.... OPPOSITE PARTY
BEFORE:
HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
HON’BLE MR.SURESH CHANDRA, MEMBER
For the Complainant : Mr.D. K. Singh and Mr.Diyang Thakur, Advs.
PRONOUNCED ON: 12 th APRIL, 2013
ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
M/s. Sam Fine O Chem Ltd., the complainant herein has filed this consumer
complaint under Section 21 (a) (i) of the Consumer Protection Act, 1986 with following
prayers:
a) Direct the opposite party to pay a sum of Rs.1,24,00,966/- towards
refund of the excessive interest, which has been paid by the complainant till
date along with the unauthorized lead bank charges of Rs.15,15,030/-, which
have been paid, by the complainant till date.
b) Direct the Opposite Party to pay the additional amount of interest of
Rs.62,10,832/- suffered by the complainant on account of levying of excess
interest every month and levying of lead bank charges periodically by the
opposite party.
c) Direct the Opposite Party to pay future interest, calculated till the date of
realization at the rate of 12% per annum on the amount of Rs.2,01,26,828/-.
d) Direct the Opposite Party to bear the entire cost of the instant
proceeding and the legal expenses incurred till the date of institution of the
present proceeding.
e) Provide any other relief deemed fit in the facts and circumstances of the
instant case.
2. Briefly stated, relevant facts for the disposal of this complaint are that as per
allegations in the complaint, the complainant availed of credit facility from the OP bank
for expansion of its manufacturing facility. The credit facility was sanctioned vide
sanction letter dated 17.04.2008 detailing various terms and conditions governing the
grant of loan to the complainant, which are reproduced as under:
i. The Complainant was sanctioned total credit limits of Rs.14
Crores. The interest to be charged on the loan was 0.75% lesser than the
Benchmark Prime Lending Rate (“BPLR”) of the Bank. Hence the interest
to be paid by the complainant was “BPLR-0.75%”.
ii. The sanction letter stated that interest rate was subject to
change in the event that the BPLR changed or the credit rating of the
complainant changed.
iii. The sanction letter also informed the complainant that the
interest rate of “BPLR-0.75%” was subject to the approval by the
competent authority.
iv. It further stipulated that “usual processing charges and
charges on documentation” would have to be borne by the company
without disclosing in clear terms the type, rate quantum and periodicity of
charges in maintenance of transparency in the dealings with the
customers as mandated by the Fair practices Code adopted by the Bank.
3. Grievance of the complainant is that the OP bank has charged and debited the
interest at the rate much higher than the agreed rate of interest and also charged and
debited unauthorized amounts in the loan account of the complainant in respect of the
processing charges, lead bank charges-consortium charges against the terms and
conditions of the agreement. It is alleged that the complainant wrote various protest
communications to the OP bank but the OP has ignored the protest of the complainant,
this according to the complainant amounts to deficiency in service, therefore he has
filed the instant complaint with the above noted prayers.
4. We have heard learned counsel for the complainant on maintainability of the
instant complaint under Section 21 of the Consumer Protection Act, 1986 and perused
the record.
5. On perusal of the complaint we find that this complaint has been filed by M/s. Sam
Fine O Chem Ltd. claiming itself to be a ‘Consumer’. The term consumer has been
defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 as under:
"consumer" means any person who—
(i) buys any goods for a consideration which has been paid or promised or
partly paid and partly promised, or under any system of deferred payment
and includes any user of such goods other than the person who buys such
goods for consideration paid or promised or partly paid or partly promised,
or under any system of deferred payment when such use is made with the
approval of such person, but does not include a person who obtains such
goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid
or promised or partly paid and partly promised, or under any system of
deferred payment and includes any beneficiary of such services other than
the person who 'hires or avails of the services for consideration paid or
promised, or partly paid and partly promised, or under any system of
deferred payment, when such services are availed of with the approval of
the first mentioned person but does not include a person who avails of
such services for any commercial purposes;
[Explanation.— For the purposes of this clause, “commercial purpose”
does not include use by a person of goods bought and used by him and
services availed by him exclusively for the purposes of earning his
livelihood by means of self-employment;]
6. On reading of the above definition in conjunction with the explanation, it is evident
that any person who has bought goods or availed services for commercial purpose is
not a consumer unless the goods bought or the services availed by him were
exclusively for the purposes of earning his livelihood by means of self-employment. In
the present case, on going through the allegation in the complaint, it is evident that the
complainant has availed the credit facility services of the OP bank for commercial
purpose i.e. the expansion of its manufacturing facility. The complainant is a limited
company and not an individual therefore it cannot be said that the services of OP were
availed by the complainant for earning of his livelihood by means of self-
employment. Thus, in our view, the complainant does not fall within the definition of
‘consumer’ given under Section 2 (1) (d) of the Consumer Protection Act, 1986. In our
aforesaid view, we find support from the order dated 22.08.2003 of Four Members
Bench of this Commission in O.P. no.174/2003 titled M/s. Leatheroid Plastics Pvt. Ltd.
Vs. Canara Bank.
7. Learned counsel for the complainant has referred to the judgment of Supreme
Court in the matter of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi,
(2000) 1 SCC 98 and submitted that the Consumer Protection Act is aimed to protect
the interest of the consumer and definition of consumer given under Section 2 (1) (d) is
wide enough to include a person who bought and hired service for consideration even if
the services availed or hired are for commercial purposes. Learned counsel for the
complainant has also referred to the judgment of Supreme Court in the Standard
Chartered Bank Ltd. vs. Dr. B. N. Raman, (2006) 5 SCC 727 and contended that in the
aforesaid case Hon’ble Supreme Court has held that the banks in furtherance of their
business render service/facility to its customer or even non customer, therefore it is
obvious that the OP was a service provider qua whom the complainant is a ‘consumer’
and as such, the complaint is maintainable.
8. We do not find merit in the submissions made by the learned counsel for the
complainant. The judgments relied upon the complainant are of no avail to him. So far
as the judgment in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar
Joshi (Supra) we may note that the aforesaid judgment is based upon the interpretation
of the definition of ‘Consumer’ as it then existed. The definition of consumer was
amended in the year 2003, which provided that the person who hired or availed services
for commercial purposes would be excluded from the definition of ‘consumer’. Even the
judgment in the matter of Standard Chartered Bank Ltd. Vs. Dr. B. N. Raman (Supra) is
not applicable to the facts of the this case. The aforesaid judgment related to the case
pertaining to deficiency in service in respect of foreign currency deposited in the NRI
account holder and it was not a case of loan or credit facility availed by the customer for
commercial purpose.
9. In view of the aforesaid discussions, we are of the view that since this complaint
relates to deficiency in service availed for commercial purpose, the complainant is not
covered under the ambit of the definition of ‘consumer’ given under Section 2 (1) (d) of
the Consumer Protection Act, 1986, as such the complainant is not eligible to maintain
the complaint. The complaint is accordingly dismissed.
………………sd/-…..………..
(AJIT BHARIHOKE, J.)
PRESIDING MEMBER
Sd/-
……………….……………
(SURESH CHANDRA)
bs MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3855 of 2011
(From the order dated 13.10.2011 in Appeal No. 154 of 2011 State Consumer Disputes
Redressal Commission, UT, Chandigarh)
Standard Chartered Bank SC Tower, SLF Cyber City Building 7A, Sector 24,25,25A,
Gurgaon
… Petitioner/Opposite Party (OP)
Versus
Krishan Lal Juneja S/o Shri Sant Ram Juneja R/o H. No.285, Sector 33-A,
Chandigarh … Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. Devmani Bansal, Advocate
For the Respondent : Mr. A. Tewari, Advocate
PRONOUNCED ON 12 th April, 2013
O R D E R PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order dated 13.10.2011 passed by the Learned State Consumer Disputes Redressal
Commission, UT Chandigarh (in short, ‘the State Commission’) in Appeal No.154 of
2011 – Krishan Lal Juneja Vs. Standard Chartered Bank by which, while allowing
appeal, set aside order of dismissal of complaint passed by District Forum and directed
OP to refund Rs.2,52,574.53 along with compensation of Rs.30,000/-.
2. Brief facts of the case are that Complainant/Respondent along with his son and
daughter-in-law obtained loan of Rs.60,00,000/- from OP/petitioner. Subsequently, due
to higher rate of interest, the complainant decided to make pre-mature payment. OP
agreed to the request of the complainant for pre-mature payment, but vide letter dated
9.9.2010, OP demanded Rs.2,52,574.53, as prepayment charges. Complainant under
protest deposited the aforesaid amount along with due loan amount and closed the
account. Complainant, alleging deficiency on the part of OP, filed complaint for refund of
prepayment charges along with compensation. OP filed reply and submitted that
complainant accepted all terms & conditions of sanction letter and on receipt of his
acceptance, loan was disbursed. It was further submitted that pre-payment charges
were charged as per terms & conditions of the sanction letter and prayed for dismissal
of complaint. Learned District Forum after hearing both the parties dismissed complaint
against which, complainant filed appeal and learned State Commission vide impugned
order allowed appeal, as directed aforesaid.
3. Heard learned Counsel for the parties at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that petitioner has not committed
any deficiency in claiming pre-payment charges as per terms and conditions of sanction
letter and learned State Commission has committed error in allowing appeal; hence,
petition be allowed and impugned order be set aside. On the other hand, learned
Counsel for the respondent submitted that order passed by learned State Commission
is in accordance with law; hence, revision petition be dismissed.
5. Learned State Commission while disposing of appeal, observed in paragraph 11,
as under:
“11. This letter was signed by the complainant, his son and
daughter-in-law. There is nothing, in this letter, regarding the
prepayment charges. Even, on the overleaf of this document, no
conditions are mentioned that, in case, the complainant wanted to
pre-close the loan, he was required to pay prepayment charges. At
page No.25 of the District Forum file, there is a document,
containing the terms and conditions. This document is not signed
by the complainant, his son and daughter-in-law. Even this
document is not signed by any official of the bank. This is a
unilateral document of the bank, and is not binding on the
complainant. No doubt, as per clause-10 of this document, if loanee
wanted to pre-close the entire loan, he was required to pay pre-
closure charges @ 2.5%, on the principal amount outstanding at
the time of pre-closure. Had these terms and conditions, been
signed by the complainant, his son and daughter-in-law, loanees, it
would have been said that the same were binding upon them. No
help, therefore, can be drawn by the OP bank, from these terms
and conditions, the same being unilateral. Under these
circumstances, there was no agreement, between the parties, that
in case of pre-closure of loan, loanees shall be liable to pay the pre-
closure charges. The bank, therefore, could not charge the
prepayment charges/foreclosure charges, at the time, the loan was
prepaid by the complainant his son and daughter-in-law. The OP
bank, thus, indulged into unfair trade practice, in charging
prepayment charges in the sum of Rs.2,52,574.53. The District
Forum gravely erred, in not properly interpreting R1. The complaint
should have been allowed, but the District Forum, illegally
dismissed the same. The order of the District Forum, being illegal,
is liable to be set aside and the complainant is entitled to the refund
of amount of Rs.2,52,574.53 illegally charged, from him, as pre-
closure/pre-payment charges, by the OP”.
6. Learned State Commission directed for refund of pre-payment charges on the
ground that terms & conditions regarding prepayment charges were not signed by the
complainant, his son and daughter-in-law and had these terms been signed, it would
have been binding upon them. Perusal of record reveals that personal information
document containing photos of complainant, his son and daughter-in-law contains
signatures of complainant, his son and daughter-in-law. It has specifically mentioned in
personal information document:
“I confirm that I have understood the points as mentioned below:
1. I understand that
. My application may take a minimum of 2 working days to
process once I have completed all requirements as required by
the Bank.
. Disbursal of the loan may take a minimum of 2
working days from the time of submission of all
property and loan related documents as required
by the Bank.
. Linkage setup for Home Saver on system may take
A minimum of 4 working days from the time of
submission of all loan/account related documents
as required by the Bank.
. The actual interest rate applicable on my loan will
be as mentioned in the sanction letter and will be
governed as per terms and conditions therein.
. The interest will be calculated on a Daily Reducing
Balance and is charged with monthly rests.
. If there is a review in my rate of interest during the
tenure of the loan (for variable rate loan) will be
advised of the new rate applicable.
. Panel charges, part prepayment fee and pre-closure
fee will be applicable as per the sanction letter.
The Total fee to be paid by me is Rs.____.
I understand that only in the event of my loan getting
declined an amount of Rs.2,000/- (or the fee paid by
me, whichever is lower) would be deducted and the
balance amount refunded”.
At the bottom of loan sanction letter which bears signatures of all the borrowers reads
as under:
“Please sign this letter as a token of your acceptance of the terms
and conditions mentioned above and overleaf and give us a signed
copy of this letter. Please feel free to call us at our Phone banking
help-line 39404444”.
On the overleaf of this sanction letter, Condition No. 10 runs as under:
If you preclose the entire loan outstanding amount, you shall pay to
the bank a pre-closure fee at the rate of 4% ad valorem on the
principal outstanding amount for the first 3 years from the date of
final disbursal. In case you wish to preclose after 3 years, there will
be a fee of 2.5% on the principal outstanding at the time of such
closure”.
Article 2.8 of the Loan Agreement, which has been signed by all the borrowers, runs as
under:
“Pre-payment
SCB may, in its sole discretion and on such terms as of prepayment
charges, minimum prepayment amount, etc., as it may prescribe,
permit prepayment/acceleration in payment of EMIs at the request
of the Borrower, subject that SCB may specify, from time to time,
the minimum amount of prepayment/amounts pyable on account of
acceleration of EMIs. In the event SCB permits any
prepayment/acceleration, the repayment schedule for the Loan
shall be amended/altered by SCB for giving effect to such
prepayment/acceleration, and such amended/altered repayment
schedule shall be binding upon the Borrower”.
7. Perusal of aforesaid documents clearly reveals that complainant along with his
son and daughter-in-law agreed to pay for preclosure of the account and learned State
Commission has wrongly come to the conclusion that complainant and his son and
daughter in-law have not signed this Agreement. It has rightly been observed by the
learned State Commission that had these terms and conditions been signed by the
complainant, his son and daughter-in-law, it is binding on them. As these terms and
conditions have been signed by the complainant, his son and daughter-in-law, the
complainant was bound to pay preclosure charges as per Agreement and OP/petitioner
has not committed any deficiency in demanding preclosure charges. Learned District
Forum rightly dismissed the complaint and learned State Commission has committed
error in allowing complaint and directing refund of preclosure charges along with
compensation.
8. Documents and complaint clearly reveals that loan was taken by the
complainant, his son and daughter-in-law, but complaint has been filed only by the
complainant, while his son and daughter-in-law have not been arrayed as complainants
and in absence of them, complaint was not maintainable for non-joinder of necessary
parties.
9. Consequently, revision petition filed by the petitioner is allowed and impugned
order dated 13.10.2011 passed by learned State Commission in Appeal No.154 of 2011
– Krishan Lal Juneja Vs. Standard Chartered Bank is set aside and order of District
forum dismissing complaint is affirmed with no order as to costs.
..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBER k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 436 of 2011
(From the order dated 14.07.2010 of the Maharashtra State Consumer Disputes
Redressal Commission, Mumbai, Circuit Bench at Aurangabad in Appeal no. 653 of
2006)
Suresh Baban Gadekar Resident of Nannaj, Tq. Jamkjhed District Ahemdnagar
Petitioner
Versus
1. ICICI Bank Through its Manager Registered Office at Racecourse Circle Vadodra –
390073
2. Branch Manager Regional Manager 1st Floor, Tapadia Circle Nirala Bazar,
Samarthnagar Aurangabad
3. Branch Manager 870/1 Suma House Bhandarkar Road Opposite Foodworld Pune –
411005 Through ICICI Bank Ltd. Ground Floor, Woodmall Plaza Opp. Raheja Gardens
LBS Marg, Thane – 400604
4. Salim Najir Sayyed Resident of Raj Chambers Kotla Stand, Gulf Icheir Tractor
Engines Ahmednagar
Respondents
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner Mr Preetam Shah, Advocate
For the Respondents no. 1 to 3 Mr Love Kumar, Advocate
Pronounced on 16 th April 2013
ORDER
REKHA GUPTA
Revision petition no. 436 of 2010 has been filed against the judgment and order
dated 14.07.2010 passed by the Maharashtra State Consumer
DisputesRedressal Commission, Mumbai (Circuit Bench, Aurangabad) (‘the State
Commission’) in First Appeal no. 653 of 2006.
The brief facts of the case as per the petitioner/ complainant are as under:
Petitioner/complainant deposited Rs,1,00,000/- to respondent no. 4/opposite party
no. 4 for purchasing tractor of Eicher Co. on 28.04.2003 and took a loan from
respondent no. 3/ OP no. 3 of Rs.2,40,000/- @ 9% per annum interest was decided on
such loan. The petitioner purchased tractor MH 16 F 4388 and Registered at R T O.
Respondent no. 3 gave a table of statement about how to repay the loan to
petitioner and the petitioner as per it repay it. The petitioner has deposited Rs.73,240/-
for repayment of loan to respondent no. 3 out of it Rs.69,240/- were deposited from time
to time. The petitioner has given Rs.1,00,000/- to respondent no. 4 and one instalments
@ Rs.4000/- respondent no. 3 for depositing it into bank. But respondents no. 3 or 4 are
not giving its receipt to him.
Details of repayment to the Bank by the petitioner:
Rs. Receipt no. Date
4,000/- 997863 27.03.2003
11,240/- 574675 24.07.2003
5,000/- 1305212 12.11.2003
15,000/- 1216039 28.11.2003
10,000/- 1540873 28.01.2004
9,000/- 997858 12.02.2004
5,000/- 9997862 12.03.2004
10,000/- 1894037 05.06.2004
69,240/-
Even then on 23.06.2004, respondent no. 3 apprehended the petitioner and
drove away the tractor. After that on 10.03.2005, the respondent wrote a letter informing
they sold away the tractor. But on inquiring it to RTO by the petitioner he has been
informed that till date such tractor has not been transferred and it has been sold only for
Rs.1,60,000/-.
Due to seizure of tractor the petitioner has sustained a loss of Rs.1,80,000/-,
because he was giving it on rent for cultivating land and he was earning Rs.1,30,000/-
per month and the petitioner could not get Rs.1,30,000/- from it from the date of seizure.
Respondent no. 3 seized and disposed of tractor even though the petitioner is able to
pay. Respondent no. 3 has not taken any written permission for sale.
The respondents no. 1 to 3 on the other hand, in their written statement have
averred that “the Hon’ble Consumer Forum has no jurisdiction to try and entertain this
complaint as relation between complainant and opponent are debtor and creditor and
the complainant has obtained commercial loan of Rs.2,40,000/- from ICICI Bank Ltd.,
for purchase of Tractor Eicher 485 Vehicle bearing registration no. MH 16 F 4388. On
terms and conditions agreed between the complainant and opponents as per
hypothecation agreement bearing no. LFADR no. 00001205843. It is further submitted
that the complainant has not obtained the said loan under any scheme of the
Government for Educated unemployed person but obtained the said loan for
commercial purpose as per scheme of opponent. The complainant has agreed to pay
36 EMI/ instalments, i.e. first 5 instalments of Rs.4,000/- each and the sixth instalments
of Rs.31,530/- and so on up to 36 instalments starting from 1st June 2003 to May 2006
as per loan agreement. The complainant has executed hypothecation agreement and
other loan documents in favour of the opponent but the complainant has failed to pay
EMI regularly as agreed by him. The complainant has defaulted in making payment of
the instalments whenever the same fell due. On this count also the complaint of the
complainant are liable to be dismissed.
The respondents sold the said vehicle to a bonafide purchaser. It is further,
submitted by these opponents that the petitioner admitted in his complaint that “His
Financial Condition is Good”, but the petitioner on his own accord failed to repay
EMI/instalments of the said vehicle as agreed by him. The petitioner has failed to pay
EMI/ instalment from April 2004 on his own accord these fact shows that the petitioner
is a wilful defaulter and he admitted the fact in his complaint. On repeated request calls
and personal follow up on behalf of respondent the petitioner failed to pay the
instalments as agreed by him.
The petitioner voluntarily surrendered the said vehicle to the opponent on
23.06.2004. At that time surrender amount of Rs.37,420/- + bounces, penalty and
interest etc., was due from the petitioner. Thereafter, the respondent has issued notice
dated 12.07.2004 to the petitioner and gave due opportunity to the petitioner in spite of
the said notice the petitioner failed to settled his account with the respondent on his own
accord. Thereafter, the respondent after following due procedure of law and as per
vehicle loan agreement and hypothecation agreement on ____/___/200 disposed of the
said tractor for Rs.1,60,000/- and handed over the said vehicle and papers of the
vehicle to the purchaser and respondent deposited the amount of the sale proceeds of
the said vehicle in the loan account of the petitioner and started further action for the
recovery of the remaining loan amount and bounces, penalty and interest etc.
The District Consumer Disputes Redressal Forum, Ahmednagar (‘the District
Forum’) considering all the facts of the case gave the following order:
“Interim order given is hereby confirmed.
Within 30 days from the date of judgement (a) opposite party no. 1 & 2, 3 jointly
or severally to give tractor No. MH 161 F 4388 in roadworthy condition to
complainant; (b) if said vehicle is defective, expenses to repair borne by
opponent no. 1 to 3; (c) opponent not to levy interest or fine on due instalments
for one month from opponent giving possession of vehicle to complainant for due
instalments from 23.06.2004 to possession of vehicle by complainant. And not to
recover expenses to take away vehicle from complainant and to keep it in their
possession, from complainant; (d) the instalment of complainant due on
23.07.2004 to be paid opponent within one month from the possession of vehicle
by complainant. And complainant seems that further instalment will be due in
each month respondent and complainant shall pay regularly to opposite
party; or
2. If opponent has not given the seized vehicle of complainant to complainant’s
possession within 30 days, then within further 30 days; (a) opposite party no.1 to
3 jointly and severally shall pay to complainant the amount of Rs.69,000/- which
complainant had paid to them and Rs.1,00,000/- paid to opponent no. ; (b) The
above order para (1) considered to be cancelled.
3. OP no. 1, 2 & 3 jointly and severally shall pay to complainant Rs.15,000/- for
mental agony and Rs.5,000/- as cost of complaint”.
Aggrieved by the order of the District Forum, the respondents 1, 2 & 3/OP no. 1, 2
& 3 filed appeal no. 653 of 2006 before the State Commission against the petitioner and
respondent no. 4/ OP 4. The State Commission vide order dated 14.07.2010 stated as
follows:
“We heard both the counsels and perused the record. It is an admitted fact that
petitioner obtained loan from respondent. It is also admitted fact that with the
assistance of said finance petitioner purchased tractor of Eicher company.
Petitioner in the complaint admitted that tractor purchased by him is used for hire
purpose for cultivation for which he used to charge money. Therefore, it can be
said that tractor had been purchased for commercial purpose. Petitioner claiming
compensation of Rs.13,000/- per month as he used to hire out the tractor to
others. In total he claimed Rs.1,80,000/- for the loss of his business. As
complainant himself mentioned in complaint that he used to hire out tractor to
others for cultivation, i.e., using it for commercial purpose, we are of the view that
complainant will not fall in the definition of ‘consumer’ as per Consumer
Protection Act. As the vehicle is used for commercial purpose complaint is not
maintainable. District Forum did not consider this primary issue while deciding
the complaint. On this ground, we are allowing the appeal. We pass the
following order:
(i) Appeal is allowed;
(ii) The impugned judgment and order passed by the Forum is hereby
quashed and set aside;
(iii) Complaint stands dismissed;
(iv) No order as to cost;
(v) Copies of the judgment be issued to both the parties”.
Dissatisfied and aggrieved by the order of the State Commission the petitioner
has filed this present revision petition.
Along with the revision petition, the petitioner has filed an application
for condonation of delay of 59 days. The reasons given for the delay are as follows:
It is submitted to this Hon’ble Commission that the impugned order dated
14.07.2010 was received by the petitioner by post only on 02.10.2010.
During the second week of October 2010, the petitioner approached his local
counsel to discuss the consequences of the impugned order but the local counsel for
the petitioner was not available during the month of October, 2010, because of some
personal difficult of the counsel.
The petitioner again contacted the said counsel to discuss the impugned order in
the second week of November 2010, wherein the petitioner was advised by the said
counsel to prefer a revision petition before the National Commission. The petitioner
contacted his counsel at New Delhi for filing revision petition in the third week of
November 2010. The counsel at New Delhi asked the petitioner to send the necessary
papers in order to draft the revision petition. Accordingly, the petitioner sent the said
documents to the counsel at New Delhi in the first week of December 2010. After
perusing the documents the counsel for the petitioner at New Delhi found that some of
the documents were missing. Immediately, the counsel again contacted the petitioner to
send complete papers in the second week of December 2010.
The petitioner sent the complete papers in the said revision petition to the
counsel at New Delhi in the third week of December 2010. Accordingly, the counsel
drafted the revision petition and sent the same to the petitioner for approval in the last
week of December 2010. By the last week of December 2010, the period for filing the
revision petition within time had expired.
The petitioner could not send the approved draft to the counsel of the petitioner
till the first week of February 2011, because the petitioner had encountered with a
serious health problem during the month of December 2010 and January 2011 and in
view of the matter some unintentional delay has been caused in filing the present
revision petition.
The petitioner was in Delhi for filing the said revision petition in the first week of
February 2010 and accordingly the petition was finalised and filed before this
Commission.
We have heard the counsel for the petitioner as well as the respondents and
have also gone through file carefully. The counsel for the petitioner could not explain as
to how the petitioner becomes a ‘consumer’ under the definition 2 (1) (d) of the
Consumer Protection Act, 1986. The petitioner in his own complaint has stated in
paragraph 8 as follows:
“Due to the seizure of tractor applicant has sustained a loss of Rs.1,80,000/-.
Because he was giving it on rent for cultivating land and he has earning Rs.1,30,000/-
per month and applicant could got Rs.1,30,000/- from it from the date of seizure”.
We are of the view that the State Commission also in their order has rightly come
to the conclusion that the tractor has been purchased for commercial purpose and
hence, the complainant will not fall under the definition of ‘consumer’ as per the
Consumer Protection Act, 1986. As the vehicle is used for commercial purpose hence,
the complaint is not maintainable. The District Forum did not consider this primary issue
while deciding the complaint.
The application for condonation of delay also gives no dates, name of the
counsel or detailed reasons to account for the delay. It is also stated that though the
petitioner had received the drafted petition sometime in December 2010, the petitioner
could not sent the brief of the draft to the counsel till the first week of February 2011
because, the petitioner had encountered with serious health problems during the month
of December 2010 and January 2011. This fact has not been supported by any affidavit
or medical certificate.
Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 59
days in filing the present revision petition. Consequently, the present revision petition
being time barred by limitation is dismissed with cost of Rs.5,000/-. (Rupees five
thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within
four weeks from today. In case the petitioner fails to deposit the said cost within the
prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 17th May 2013 for compliance.
Sd/-
..………………………………[ V B Gupta, J.]
Sd/-………………………………..
[Rekha Gupta]Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3871 OF 2011
(From the order dated 06.09.2011 in First Appeal No. 269/2010 of the Gujarat State
Consumer Disputes Redressal Commission, Ahmedabad)
Mistri Jayantilal Vithaldas, Near State Bank of India, At Post Taluka: Idar,
District Sabarkantha, PIN – 383430 Gujarat
... Petitioner
Versus
The Idar Nagrik Sahakari Bank Ltd., Jawanpura, Taluka : Idar, District: Sabarkantha,
Gujarat
…. Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
Appeared on 02.04.2013 at the time of arguments,
For the Petitioner(s) Mr. Mistri Jayantilal Vithaldas
Petitioner in person
For the Respondent (s) Mr. Rauf K. Mansuri, Advocate
PRONOUNCED ON : 17 th APRIL, 2013
O R D E R
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under Section 21(b) of the Consumer
Protection Act, 1986 against the order dated 06.09.2011 passed by the Gujarat State
Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as
“State Commission”) in First Appeal No. 269 of 2010, vide which the said appeal against
order dated 10.02.2010 passed by the District Consumer
Disputes RedressalForum, Sabarkantha was ordered to be dismissed.
2. Briefly stated, the facts giving rise to the present petition are that the
complainant Mistry Jayantilal Vithaldas and his family members deposited certain
amounts of money under fixed deposit with the respondent/opposite party,
the Idar Nagrik Sahakari Bank Ltd., which is registered as a Cooperative Bank. The
money was deposited under the Sahkar Laxmi Deposit Scheme introduced by the Bank
and a number of certificates were issued by the Bank in the name of the complainant
and his family members, undertaking the amount payable on maturity after a certain
period of years. The deposits were made on different dates during the years 1998. It
was indicated in the scheme that the rate of interest shall be 12 ½ % and fixed sums
shall be payable at the end of a particular period, as far example, in this case, a sum
of Rs. 34,240/- was payable at the end of 10 years. It was also mentioned that if the
investor desired to withdraw the amount within a period of three years, only the principal
amount would be returned without any interest. The period of ten years was to expire in
the year 2008 but the Bank decided to lower the rate of interest on such deposits in the
month of February, 2004, following certain circular issued by the Reserve Bank of India
(RBI) in the year 2002. The case of the complainant is that the bank was not authorized
to make any change in the rate of interest midway with retrospective effect and such
change should not have affected the rights of the investor. The complainant, on being
informed by the bank through public notice in February, 2004, regarding lowering of the
rate of interest, sent a letter dated 06.03.2004 saying that the opposite party had no
lawful right to make change of any kind. However, the bank sent a letter to him on
16.04.2004, saying that the prevailing rate of interest was applicable only to long term
deposits. The complainant lodged a report with the local Police Station, but it was held
in the said proceedings that it was a civil matter. At the time of maturity of the said
investment in the year 2008, the bank refused to pay him the amount already committed
and informed the complainant by letter dated 12.05.2008 that he was entitled to receive
his money along with interest as per the new policy only. The complainant lodged a
complaint with the District Forum pleading that he should be paid back the amounts
already committed by the bank along with a further penal interest of 3%. The District
Forum rejected the complaint, saying that the bank had reduced the rate of interest on
fixed deposits under the instructions of RBI and the bank was bound to follow the
directives of the RBI. They had also issued public notice in this regard and even
committed to pay 2% more interest than the new rates, if the fixed deposits were
renewed in time. The District Forum also observed that it was mentioned on the deposit
certificates that change in interest could be made on the directives of the RBI.
3. An appeal was filed before the State Commission against this order. The State
Commission observed that the complainant should have filed the complaint in question
within two years from the date i.e. 16.04.2004, when the bank had sent a letter to the
complainant. The complaint was therefore, barred by limitation under Section 24A of
the Consumer Protection Act, 1986. The State Commission passed the said order
without going into the merits of the case. It is against this order, that the present petition
has come up.
4. During the course of hearing before us, the petitioner personally presented his
case and vehemently argued that the bank had no right to reduce the rate of interest in-
between, when the period of ten years for which the fixed deposits were made was not
over. He further stated that when he invested the money with the bank in the year
1998, there was a binding contract between him and the bank and the terms of the
contract could not be altered later on. The complainant invited our attention to the
circular in question issued by the RBI on 10.10.2002, saying that the RBI had simply
asked to all Urban Cooperative Bank in the country to review their interest rates
structure on term deposits and take appropriate action to make them comparable with
rates offered by the Commercial Banks. Such kind of circular had not given any
direction to lower the rate of interest and in case, the rate of interest was reduced on
review, it could best be with prospective effect. Thecomplainant also invited our
attention to a letter written by the Deputy General Manager, Reserve Bank of India to
the respondent / opposite party on 07.10.2004 vide their letter No. UBD(AH)Com.
No….12.06.364/2004-05, in which it has been clarified that the deposit transaction
between the bank and its depositors is a contract and is subject to the terms and
conditions of that contract and the bank is liable for stringent action if they do not adhere
to the terms of acceptance of the deposit.
5. The learned counsel for the respondent, invited our attention to the circular dated
10.10.2002 as mentioned above and stated that the following directive from the RBI, the
respondent bank passed a Resolution on 19.11.2003 in a Special General Meeting of
the Board of Directors, in which it was decided to reduce the rate of interest. For the
deposits in question, the rate of interest was reduced to 9% and a public notice to this
effect was also given in the newspapers and the depositors were asked to convert the
deposits under the Sahakar LaxmiDeposit Scheme during the period from 20.02.2004 to
20.03.2004 and they were offered 2% more interest than the new rate of interest. The
Bank had not therefore, indulged in any deficiency of service and hence the complaint
deserved to be filed. The counsel for the respondent also invited our attention to a
citation quoted in Jalgaon Janta Sahakari Bank Ltd.
Versus Hrishikesh Prabhakar Kulkarni & Ors. reportedin IV (2012) CPJ 163 (NC),
saying that the National Commission has held that the bank was within its right to alter
rate of interest pursuant to reduction of rate of interest by the RBI.
6. We have carefully considered the facts of the case and the arguments advanced
before us. It is admitted that the complainant and his family members had deposited
certain sums of money at different times from the year 1998 with the respondent bank
for a period of ten years and the rate of interest for the said deposit at that time was 12
½%. It was clearly committed by the bank that a fixed sum say Rs. 34,240/- shall be
paid to them on maturity after a period of ten years. The respondent bank have built up
their defence on the strength of the circular issued by the RBI in October 10, 2002. For
ready reference the said circular is reproduced as under:
“RESERVE BANK OF INDIA
URBAN BANKS DEPARTMENT,
LA GAJJAR CHAMBERS, ASHRAM ROAD,
POST BAG NO. 1,
AHMEDABAD – 380 009
Ref. UBD(AH)DC No. 519/13.04.01/2002-03
October 10, 2002
All Primary (Urban) Co-operative Banks
Dear Sir,
Interest rates on deposits offered by
Urban Co-operative Bank (UCBs)
1. In terms of instructions contained in our Central Office circular No.
UBD/BSD.1.28/12.05.01/2001-02 dated 31st January, 2002, Urban Co-operative Banks
are required to review their interest rate structure on term deposits of different maturities
and take appropriate action to make them comparable with the rates offered by
commercial banks.
2. It has, therefore, been decided that UCBs should forward to us a statement on half
yearly basis indicating therein the rates of interest offered by them on deposits of
different maturity periods and whether the same are comparable with the rates offered
by commercial banks. First such statement for the half year ending December 31, 2002
may be forwarded to us by 15th January, 2003.
3. Please acknowledge receipt of this circular.
Yours faithfully,
Sd/-
(A.V. Sabhapathy)
Deputy General Manager”
7. A plain reading of the above circular makes it very clear that it is a general circular
issued to all Urban Cooperative Banks in the country asking them to review their
interest rates structure on term deposits and make them comparable with the rates
offered by the commercial banks. The respondent bank did their exercise in pursuance
to this circular and decided to reduce the rates of interest. However, the circular of the
RBI does not make it mandatory anywhere that any decision taken by the bank after
review shall have a retrospective effect. The bank was within its rights to reduce the rate
of interest but it cannot be made applicable to deposits already made with the
bank. The terms of the contract already made between the investor and the bank
cannot be changed retrospectively to the detriment of the investor. Moreover, when a
public notice was given by the petitioner, enunciating their new policy, the complainant
did write to the bank on 06.03.2004 that they were committing an illegal act. We
therefore, have no reason to agree with the conclusion arrived at by the District Forum
that there was no deficiency in service on the part of the bank as it was bound to follow
the directives of the RBI. The direction of the RBI was of a general nature aimed at
bringing reforms in the policies being followed by the bank and this circular in no way
impinges upon the right of the consumer/investor. We also, find no reason to agree with
the plea taken by the State Commission that the complaint should have been filed within
two years of the letter dated 16.04.2004 sent by the Bank. The complainant has
proceeded after the period of maturity of fixed deposits when the period of contract was
over and the bank refused to give the money as mentioned in the terms of the
contract. The complaint, therefore, cannot be called time barred under Section 24A of
the Consumer Protection Act. Regarding the case cited by the respondent (Supra), the
National Commission did not order the refund of excess amount as already paid by the
bank. Moreover, in the instant case, there is no specific direction by the RBI to reduce
the rate of interest.
8. Based on the above discussion, the present petition succeeds, the order passed
by the State Commission and the District Forum are set aside and the respondent is
directed to pay the amounts in question to the complainant as per the terms and
conditions of the contract entered in the year 1998. It is also clarified that the
respondent shall pay a further rate of interest beyond the period of maturity at the new
rates adopted by the bank till the period of realization. No order is being passed as to
costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBERSB/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
ORIGINAL PETITION NO. 277 OF 1998
Gujarat Scheduled Caste Development Corporation Through its Office at Block No.10
IInd Floor, Dr.Jivraj Mehta Bhavan Old Sachivalay, Gandhinagar
… Complainant
Versus
1. Ahmedabad Mahila Nagrik Co-operative Bank Ltd
2. The Incharge Chairman Ahmedabad Mahila Nagrik Co-operative Bank Ltd
3. Kum. Ritaben Shah Incharge Manager Ahmedabad Mahila Nagrik Co-operative
Bank Ltd All 3 R/o M/4/73, Shop No.45-46 Shastrinagar Shopping Centre
Naranpura, Ahmedabad
… Opposite Parties
AND
ORIGINAL PETITION NO. 278 OF 1998
Gujarat Scheduled Caste Development Corporation Through its Office at Block No.10
IInd Floor, Dr.Jivraj Mehta Bhavan Old Sachivalay, Gandhinagar
… Complainant
Versus
1. Ahmedabad Urban Co-op. Bank Ltd.
2. Sh.Surendra N. Rajput Managing Director and Chairman Ahmedabad Urban Co-op.
Bank Ltd.
3. Sh.Jayendra R.Shah Incharge Manager Ahmedabad Urban Co-op. Bank Ltd. All 3,
R/o Vishala Commercial Centre Near Dinesh Chambers, Ashram Road Ahmedabad
4. Sh.Naishad S.Shah, Branch Manager Ahmedabad Urban Co-op. Bank Ltd.
Sarangpur Branch, 12/127, Anand Cloth Market Sarangpur, Odhav Road,
Ahmedabad
… Opposite Parties
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER
HON’BLE DR. DR. S. M. KANTIKAR, MEMBER
For the Complainant in both cases : Mr. D.M.Ahuja, Advocate
For Opposite Party No.1 : Ms. Manisha C. Shah, Advocate
in OP 277/98 with Mr.S.R.Patel, Official Liquidator
For the Opposite Party
Nos. 2 & 5 in OP 278/98 : Mr. M.A. Khan, Advocate
Pronounced on 23.04.2013
ORDER
JUSTICE J.M.MALIK
1. The key question which falls for consideration is “Whether Section 112
of Gujarat Co-operative Societies Act, 1961, which runs as follows:-
“112. Save as expressly provided in this Act, no Civil
Court shall take cognizance of any matter connected with the
winding up or dissolution of a society under this Act; and
when a winding up order has been made, no suit or other
legal proceedings shall lie or be proceeded with against the
society or the liquidator, except by leave of the Registrar, and
subject to such terms as he may impose:
Provided that, where the winding up order is cancelled, the
provisions of this section shall cease to operate so far as the
liability of the society and of the members thereof to be sued
is concerned, but they shall continue to apply to the person
who acted as liquidator”.
the absence of ‘leave’ of the Registrar strikes a snap in proceeding further?”. We are
of the considered view that in view of this provision of law, here lies a rub in proceeding
further, in these two above said cases. This is the Law of Land and we must respect it,
though this is for the benefit of few Directors and detrimental to the public at
large. These cases also reveal how, our so-called politicians leave no stone unturned in
leading the gullible people up the garden path.
2. Now, the facts deserve a look. This order shall decide the above said two
complaint cases which are between the same parties but the branches of the
respondent Bank are different and employees are different. The same entail similar
questions of law. Consequently, both the complaints are being decided by one
judgment.
3. Gujarat Scheduled Caste Development Corporation, the Complainant is an
autonomous body created under the Gujarat State Development Act, 1985 and its
object is to strive towards upliftment of the Members of the Schedule Caste
Community. Ahmedabad Mahila Nagrik Co-operative Bank Ltd., is registered
under the provisions of Co-operative Societies Act, 1961, OP1, the Incharge
Chairman, OP2, and Kum.Ritaben Shah, Incharge Manager, OP3, the employees of
Bank situated at Naranpura have been arrayed as OPs in OP 277/1998 , while
Ahmedabad Urban Co-operative Bank Limited, OP1, Sh.S.N.Rajput, Managing Director
and Chairman, OP2, Sh.Jayendra R.Shah, OP3 and Sh.Naishad S.Shah, OP4, the
employees of the Sarangpur Branch, have been arrayed as OPs in OP 278/1998.
4. In both the cases, OP2 informed the higher authorities of the
complainant that they were offering the services of paying higher rate of interest at
13.5% p.a., and 15%, p.a., respectively, in each of the cases, if fixed
amount is deposited with them for a period of three/six months. As per decision
dated 09.09.1996, taken by the Special Committee, the complainant deposited a sum of
Rs.50,00,000/- @ 13.5% p.a. with OP1 Bank in Case No. 277/1998 for a period of three
months, on 18.09.1996, vide FDR No. 9169. The complainant further deposited a sum
of Rs.1.00 crore on 28.09.1996 in the same case, vide FDR No.9170. Likewise, the
complainant deposited Rs.50.00 lakh for a period of six months, @ 15% p.a. vide
FDR No.nil, which will, however, be referred to as FDR No.3, with OP1 in Case
No.278/1998. The complainant imposed a condition that no loans were to be given
out of the said deposited amount and the OPs were to return the said deposited
amounts, along with interest, on the date of maturity.
5. On 18.12.1996, the complainant Corporation, through its Chief
Accounts Officer, addressed a letter to Kumari Ritaben Shah, with the request that the
maturity amount along with interest be sent to the complainant, after maturity in
respect of FDR No.9169. It did not evoke any response. Thereafter, another letter
was written to Kumari Ritaben Shah by the complainant with the request to refund
Rs.50.00 lakh, along with interest. It was also requested that FDR No.9170 dated
28.09.1996 for Rs.1.00 crore had also matured on 28.03.1997 and since the
Corporation was in need of money, therefore, the said amount, along with interest be
sent to the complainant. Copies of both the letters have been annexed as Annexures
A and B, respectively. However, those letters were not replied by OPs. Another letter
dated 03.01.1997, Annexure-C, was also sent by the complainant. To this letter, OP3
sent a reply on 31.12.1996 informing that OP2 had made a representation to the
Hon’ble Chief Minister of Gujarat to renew the FDRs of various Boards and
Corporations of Gujarat Government and the Chief Minister had assured the same to
OP2. Therefore, Kumari Ritaben Shah requested the complainant Corporation to return
the FDRs to her for renewal of the same. She also requested the complainant to
contact the Hon’ble Chief Minister of Gujarat, in this context, copy of which is annexed
as Annexure-D.
6. The complainant was not satisfied with this explanation. It again sent another
letter dated 17.01.1997 to refund the total amount of Rs.1,50,00,000/-, with interest. It
also warned the OPs that if the said amount was not returned, it would take
legal action against them, vide letter annexed as Annexure-E. Thereafter, reply was
sent by Kumari Ritaben Shah, wherein it was stated that the Chairman and the other
office bearers of OP1 were making sustained efforts for the purpose of return of
aforesaid amount as well as collecting deposits and the matured fixed deposit
amount with interest would be refunded by the end of March, 1997. The said letter is
annexed herewith as Annexure-F.
However, the said amounts were not refunded, subsequently, as well.
7. Thereafter, a request was made to the Reserve Bank of India vide letter
dated 23.04.1997 by the complainant to give proper directions to OPs, copy of which
is annexed as Annexure-G. The Reserve Bank of India sent a reply to the
complainant stating that they are trying to collect the
necessary information and would thereafter, take necessary action, if necessary, vide
letter dated 19.05.1997, copy of which is annexed as Annexure-H. However, no action
was taken by the Reserve Bank of India, till date.
8. Sh.Gopalbhai Solanki, Chairman of the complainant wrote another letter dated
06.05.1997 to OP2, wherein, a request for refund of the amount was made. Copy of
the said letter is annexed as Annexure-I with the complaint, but the OPs did not care
to reply to it. Another letter was sent on 19.05.1997 by the Chief Accounts Officer, to
OP3, copy of which is annexed as Annexure-J. The Chief Accounts Officer wrote
another letter dated 22.09.1997 wherein request
for refund of the amount was made, copy of which is annexed as Annexure-K, along
with the complaint. Ultimately, the present complaint cases were filed with the prayer
to refund Rs.1,50,00,000/-, with interest @ 13.5% p.a. from the date of deposit till its
realization, and exemplary damages of Rs.75.00 lakh be paid to the complainant. It
was further prayed that OPs 1 to 3 be directed to pay Rs.50,000/- each, as costs in
OP 277/98. In the second case, (OP 278/1998) it was prayed that the OPs be
directed to refund Rs.50.00 lakh with interest @ 15% from the date of deposit, till
actual realization, exemplary damages of Rs.25.00 lakh and to pay costs of
Rs.50,000/- to the complainant.
9. DEFENCE:
The OPs enumerated the following defences in their written statement. They have
denied all the allegations. It is alleged that the complaints are barred by limitation and
provisions of Consumer Protection Act, 1986. The jurisdiction of this Commission has
also been called into question. It is submitted that the complaints are barred by the
principles of delay, laches, estoppel and acquiescence. The OPs are not expected to
render any service. They do not manufacture or sell any goods. There is no
relationship of a Trader and Consumer or Buyer between the parties. The
complainant is not a ‘consumer’. The complainant is not a ‘person’ as defined under
the Act. The complaints are barred by plurality of remedies. This is not a consumer
dispute, but it is in essence of civil suit. The OPs are not aware about the ‘constitution’,
‘status’ or ‘objects’ of the complainants. The complainants are guilty of gross
misconduct. As a matter of fact, the complainant has failed and neglected to
discharge its duty and obligations and to achieve its objects under the Gujarat
Schedule Caste Development Act, 1985.
10. OP 1 is a Co-operative Society, registered under the Gujarat Co-operative
Societies Act. OP2 is an honorary Chairperson and is not a ‘person’ or a ‘trader’ as
defined under the said Act. The relationship between the parties are governed by a
contract that of a ‘borrower’ and ‘lender’. This is a monetary
contract/transaction simpliciter between the parties. The OPs, except OP1, have
been wrongly joined as parties. Payment of interest or borrowing funds are purely
financial transactions. The OPs were not aware of any alleged decision or deliberation
or discussion dated 09.09.1996 taken by the alleged Special Committee or any other
Committee of the complainant. The complainant Corporation is a statutory corporation
and it has its own rules and regulations and other legal provisions regarding its
affairs and financial affairs and management. It is alleged that some of the office
bearers of the complainant, out of personal greed and some other considerations,
have entered into the contract with OP1 to lend money at higher rates than usually
offered by OPs.
11. The OPs have further alleged that according to the complainants, it seems that
the complainants had lent and advanced a sum of Rs.50.00 lakh to OP1 at higher
rate of interest than prevailing in the Co-operative Banking Sector. It is alleged that
complainant and its office bearers have taken unfair advantage and adopted unfair
trade practice by extracting higher rate of interest from a poor Co-operative Society,
which was facing financial crisis. The complainant itself admitted that aforesaid
amount was lent for three months from 09.09.1996 to 08.12.1996. It further seems that
the complainant had lent and advanced Rs.1.00 crore to OP1 on
28.09.1996 on payment of interest at higher rate. The complainant had requested
to refund the amount of Rs.1,50,00,000/- with interest, on or before 01.01.1997, vide its
letter dated 30.12.1996, but the OPs could not pay as requested on account of
circumstances beyond the control of the OPs. The alleged default has taken place
as early as on 18.12.1996 and 30.12.1996 and the present complaint cases have
been filed after more than one year, i.e. in 1998 and thus the same are not tenable
and deserve to be dismissed forthwith, being barred by limitation.
12. The OP further submitted that the Government of Gujarat has issued a directive
to all the Statutory Corporations of the Government of Gujarat on 09.10.1997 and
resolved to extend the period of fixed deposit of government Statutory Corporation for
the period of two years from the date of maturity. RBI had also looked into the affairs of
the Bank under Section 35 of the Banking Regulations Act and made its report, dated
18.09.1998, the relevant portion of which reads as under:-
“VII. That the non-performing assets of the Bank as on
31.03.1998, 99.7 of its total advances i.e. Rs.2535.57
lakh. That the erosion in the value of Bank Assets are
estimated at Rs.1614.85 lakh”.
13. The present Board of Directors was constituted in February, 1998. They are
trying to recover the dues and reduce the non-performing assets. However, the picture
is quite hazy. No salary or remuneration was paid to the staff members or the Board of
Directors, since about one year. The written statement was filed on
15.02.1999. There has been gross mismanagement and negligence of Board of
Directors, many irregularities are committed, amounting to criminal misappropriation of
funds, conspiracy, fraud, tampering with record, fabrication of evidence, etc. The OPs
have also approached the Government of Gujarat to grant protection as OP1 is a Co-
operative Society and the object of the said Society was
for upliftment and advancement of the women in
general and economically backward class, in particular. In pursuance of the said
approach, the Government of Gujarat has issued a Resolution and directed all the
Statutory Corporations under the Gujarat Government for automatic extension of
deposit for a further period of two years. According to OPs, the
deposits have matured as early as on 18.12.1996 and on 01.01.1997. The
complaints have been filed on 09.10.1998, therefore the complaints are barred by
time. The complainant, being a
Government Statutory Corporation, repeatedly intimated and threatened the OPs and
its office bearers to take coercive measures. The complainant also threatened to take
unlawful means against the office-bearers of OPs for the alleged claims of the
complainant.
14. The order sheet goes to show that this Commission was informed as back as on
10.09.2008 that the Bank had gone into liquidation and an Administrator has been
appointed. Thereafter the complaint was dismissed in default. Subsequently, it was
restored. Vide order dated 04.02.2011, Liquidator was arrayed as one of the OPs. On
03.03.2011, the complainant stated that the Liquidator had been
appointed under Section 110 of the Gujarat Co-operative Societies Act, 1961
and the complainant had sought permission from the Registrar to grant ‘leave’ to
proceed with the complaint, which application is still pending. The case was adjourned
to 22.09.2011. It is clear that till the pendency of this case, no
permission was granted by the Gujarat Co-operative Society. On 06.03.2013, we
passed the following order:
“Mr. Swapnil Chauhan, Proxy counsel for the Complainant
present. He is from Gujarat. He submits that the main counsel Mr.
D.M. Ahuja is lying sick as he is suffering from fever and has not
appeared in Gujarat High Court or any other Court for the last two
days. It is very very strange that the counsel for the petitioner is
not interested to argue the case. We have perused the last date
order when the other’s counsel were present, he did not appear.
He appeared subsequently when the other counsel had gone. The
other’s counsel have come all the way from Ahmedabad. It was
his duty to tell the counsel not to go to Delhi and waste the time
and money. So he is liable to pay cost to Ms. Manisha C.
Shah. This question is kept open and will be decided on the next
date of hearing.
It is also transpired that the complainant has to take permission
from the Registrar of the Cooperative Societies. It is stated that
now he is taking the permission. The full details that when he
applied for the permission and what is the status of the permission,
it should be placed before this Commission on 08.04.2013. No
other opportunity shall be granted”.
15. We have heard learned counsel for the parties. Counsel for
the Liquidator, Ms.Manisha C.Shah pointed out that they are paying the money to
the complainant on ‘pro-rata’ basis. They have already paid a sum of Rs.1.00 lakh to
the complainant. She submitted that they will not shirk to pay the amount to the
complainant as per its share. Counsel for the OPs have raised no dispute about the
payment of the above said amount. If the interest is on the higher side, that is the result
of the agreement entered into between the parties. The agreement does not appear to
be illegal, unconscionable or brought through fraud. The Liquidator has already paid
Rs.1.00 lakh towards the amount claimed in the complaints. The Liquidator has also
showed the Commission that the complainants will further pay the amount as per ‘pro
rata’ basis.
16. We have already referred to Section 112 of Gujarat Co-operative Societies Act,
1961. This Act clearly puts a bar in proceeding with these cases. The application with
the Registrar of the Gujarat Societies is pending for the last four years. It appears that
he is reluctant to grant permission. The complainants should seek the permission from the
Registrar and then they can institute the cases, or the complainants should
wait until the winding up order is cancelled in their favour.
17. Again, Section 166 (2) of the said Act, runs as follows:-
“166 (1) Save as expressly provided in this Act, no Civil or
Revenue Court shall have any jurisdiction in respect of --
(a) xxxx
(b) xxxx
(c ) xxxx
(2) While a society is being wound up, no suit or other legal
proceeding relating to the business of such society shall be
proceeded with or instituted against the society or any
member thereof, or any matter touching the affairs of the
society, except by leave of the Registrar, and subject to such
terms as he may impose”.
18. Moreover, Section 167 of the said Act, further lays down as under :-
“Save as otherwise provided in this Act, no suit shall be
instituted against a society, or any of its officers, in respect of
any act touching the business of the society, until the
expiration of two months next after notice in writing has been
delivered to the Registrar or left at his office, stating the cause
of action, the name, description and place of residence of the
plaintiff and the relief which he claims, and the plant shall
contain a statement that such notice has been so delivered or
left”.
19. In view of these circumstances, it appears that the complaint cases are pre-
mature. We, therefore, dismiss both the complaints but allow the complainants to file
fresh suits/complaints after serving the requisite notices, before the
appropriate forum, including the consumer forum, and the exclusion of time spent in
these proceedings before this Commission as well as in the
liquidation proceedings shall be considered in view of Apex Court’s authority reported
in Laxmi Engineering Works Vs. P.S.G. Industrial Institute – (1995) 3 SCC 583.
.…..…………………………
(J. M. MALIK,J.)
PRESIDING MEMBER
.…..…………………………
(DR. S. M. KANTIKAR)
MEMBER
dd/25 &26
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2048 of 2008 (From the order dated 18.01.2008 in Appeal Nos. 826/2007 (Haryana)/RBT/712/2007
and Appeal No.677/2007 (Hry)/RBT/07/2008 of State Consumer
Disputes Redressal Commission, UT Chandigarh)
1. Partap Singh S/o Sh. Jagmal Singh
2. Smt. Shakuntla W/o Sh. Partap Singh
3. Jagmal Singh S/o Sh. Shiv Singh,
All residents of Shiv Colony, Railway Station, Kosli, Tehsil Kosli, District. Rewari
… Petitioners/Complainants
Versus
1. Mahavir Singh Yadav, LVO, The Kosli Cooperative Sehkari Agricultural and Rural
Development Bank Society, Kosli, District Rewari
2. The Manager, The Kosli Cooperative Sehkari Agricultural and Rural Development
Bank Society, Kosli, District Rewari
3. Distirct Manager, The Kosli Cooperative Sehkari Agricultural and Rural Development
Bank Society, Kosli, District Rewari
4. The Administrative Director, The Haryana State Cooperative Agricultural and Rural
Development Bank Society Ltd., SCO No. Sector-2, Panchkula.
… Respondent/Opposite Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioners
Mr. Alok Sangvan, Advocate
For the Resp. No.1 Mr. Madhurendra Kumar, Advocate
For the Res. No. 2 to 4
Mr. Rajvir Singh, Advocate
PRONOUNCED ON 23 rd April , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the petitioners/complainants against the
impugned order dated 18.01.2008 passed by the State Consumer
DisputesRedressal Commission, UT, Chandigarh (in short, ‘the State Commission’) in
Appeal No. 826/2007 (Hry)/ RBT/712/2007 and Appeal No. 677/2007 (Hry)
/RBT/07/2008 – Pratap Singh & Ors. Vs. Mahinder Singh Yadav & Ors. by which, while
allowing appeal, order of District Forum allowing complaint was set aside and complaint
was dismissed.
2. Brief facts of the case are that complainants/petitioners entered into an
agreement on 18.2.2005 to purchase agricultural land for Rs.34.50 lakhs and paid
Rs.4,00,000/- as earnest money to the vendors with the promise that they will get the
sale deed executed upto 30.3.2005, failing which, earnest money would be
forfeited. Complainants applied for loan with OPs/respondents and deposited
Rs.4,000/- each for processing of loan on 21.2.2005. OP No. 4 sanctioned loan of
Rs.21,31,000/- vide letter dated 28.2.2005 and all the formalities for obtaining loan were
completed by the complainants. Later on, OP No. 4 vide letter dated 9.3.2005
sanctioned loan of Rs.30,00,000/- as per collector rate list, but loan was not released.
From time to time, period of executing deed was got extended by the complainant, but
as OP failed to release the loan amount and complainant failed to make payment under
agreement to sell, Vendor forfeited the earnest money of Rs.4,00,000/-. Complainants
alleging deficiency on the part of OPs filed complaint and claimed Rs.4,10,000/- as
compensation along with interest. OPs contested complaint and submitted that loan
was never sanctioned and complainants never completed formalities; hence, complaint
be dismissed. Learned District Forum after hearing both the parties, allowed the
complaint and directed OPs to pay Rs.4,10,000/- and further directed to pay Rs.30,000/-
as compensation and Rs.2200/- as cost of litigation along with 12% p.a.
interest. Appeal filed by the petitioners for enhancement was dismissed and appeal
filed by the respondents was allowed by learned State Commission vide impugned
order against which, this revision petition has been filed.
3. Heard learned Counsel for the parties and perused record.
4. Learned Counsel for the petitioners submitted that even after sanction of loan,
respondents have not released loan and committed deficiency and learned District
Forum rightly allowed complaint, but learned State Commission has committed error in
passing the impugned order; hence, revision petition be allowed and impugned order be
set aside. On the other hand, learned Counsel for the respondents submitted that order
passed by learned State Commission is in accordance with law, which does not call for
any interference; hence, revision petition be dismissed.
5. Perusal of record reveals that petitioners entered into an agreement for purchase
of land and applied for loan to respondents, but petitioners have failed to place any
document on record regarding sanction of loan. Learned State Commission has
observed as under:
“11. Now only question to be seen is whether complainants are
consumers and there is deficiency on the part of appellants and
respondent No. 4 in not sanctioning loan or if the loan had been
sanctioned then in disbursing the same. Complainants had not
placed on file any documents showing that the loan in favour of
complainants had been sanctioned by the appellants and respondent
No. 4. The letter annexure C-21 dated 16.3.2005 which was issued
by Haryana State Coop./Agricultural and Rural Development Bank
Society Ltd. to Kosli Coop Sehkari Agricultural and Rural
Development Bank Society permitted the society to enhance the
sanction of the loan upto 90% instead of 75% against hypothecation
of the property. They were further allowed to adopt the value of land
@ Rs.21,31,000/- per acre or the actual rate as per registry in all the
three cases referred. Therefore, this letter does not show that the
Haryana State Coop. Agricultural and Rural Development Bank Ltd. –
Head office had sanctioned loan or had given any direction to the
Primary coop. agr. And Rural Development Bank Ltd. to sanction
loan. The case was still at the processing stage.
12. Complainants were only prospective customers/loanees. It
was the discretion of the bank either to sanction the loan or to refuse
the same. No cause of action had arisen in favour of the
complainants as the loan had not been sanctioned. If any indirect
loss has been suffered by the complainants for not sanctioning of
loan by the appellants and respondent No. 4 then appellants and
respondent No. 4 are not to blame. It cannot be said that they had
committed any deficiency in service. The complainants do not come
in the definition in service. The complainants do not come in the
definition of ‘consumer’. It is not the case that loan had been
sanctioned and the appellants and respondent No.4 had not mala
fide disbursed the loan. The loan is sanctioned strictly according to
the policy of appellant No. 3 i.e. the Haryana State Coop. Agri. and
Rural Development Bank Ltd. Even appellants had written letters
dated 19.7.2005 and registered letter dated 1.8.2005 requiring
complainants to remove certain deficiencies so that process of
disbursement of loan could be finalized but they refused to accept
those letters.
13. The counsel for appellants has referred to an authority
of Hon’ble National Commission titled
M/s. Sree Kanaka Durga Hatcheries Pvt. Ltd. Vs. State Bank of India
– 2002 (2) CPC 617 to contend that even if sanctioned loan remained
in the file of bank and no sanctioned letter was delivered to the
complainant and thereafter bank decided not to go ahead with grant
of loan due to unfulfilment of certain conditions by the complainant
then in that case bank did not commit any deficiency in service. In
the present case loan had not been sanctioned at all as the
complainants did not complete certain formalities. Therefore,
appellants had not committed any deficiency in service”.
6. Thus, it becomes clear that petitioners could not place any document showing
sanction of loan by the respondents and letters dated 28.2.2005 and 9.3.2005 are not
loan sanction letters but they merely convey the value of land per acre for approval of
loan. Petitioners never gave earnest money under agreement to purchase land, under
any assurance of release of loan by respondents. Even after sanction of loan, it was not
obligatory on the part of respondents to release applied loan and in such circumstances,
learned State Commission has not committed any error in passing impugned order and
setting aside order of District Forum allowing complaint.
7. We do not find any illegality, irregularity, or jurisdictional error in the impugned
order and revision petition is liable to be dismissed.
8. Consequently, revision petition filed by the petitioners against respondents is
dismissed with no order as to costs.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBER
k
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION No. 2092 of 2012
(From the order dated 14.02.2012 of the Haryana State Consumer Disputes Redressal
Commission, Panchkula in Appeal no. 2213 of 2007)
State Bank of India Branch Bapoli V P O Bapoli, District Panipat Haryana – 132104
Petitioner
Versus
Om Prakash Son of Shri Surjit Resident of Shimla Gujjran Sub Tehsil Bapoli,
District Panipat Haryana – 132104
Respondent
BEFORE:
HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER
HON’BLE MRS REKHA GUPTA MEMBER
For the Petitioner Mr S L Gupta, Advocate
Pronounced on 25 th April 2013
ORDER
REKHA GUPTA
Revision no. 2092 of 2012 has been filed against the order dated 14.02.2012
passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula
(‘the State Commission’) in First Appeal no. 2213 of 2007 upholding the order passed
by the District Consumer Disputes Redressal Commission, Panipat (‘the District Forum’)
in complaint no. 116 of 2006.
The brief facts of the case as given by the respondent/complainant are as follows:
That the respondent/ complainant had purchased a tractor and obtained loan for
purchasing the tractor and thresher from the petitioner bank. The said tractor was
hypothecated with the SBI Bapoli District Panipat. But due to the mechanical defect in
the tractor the instalment could not be deposited in time hence, the petitioner bank filed
the civil suit for recovery of the balance loan amount titled SBI vs Krishna etc., in the
civil court, Panipat.
The respondent/ complainant had come into compromise with the petitioner and
deposited the entire agreed loan amount settled the compromise. The petitioner has
issued the clearance certificate to the respondent/ complainant on dated 19.07.2005.
The respondent/complainant has been enjoying the saving bank account in the
petitioner bank bearing account no. 01190015033. The respondent/ complainant had
deposited the amount in the said account but the petitioner without the consent and
knowledge of the respondent/ complainant had withdrawn the amount of Rs.25,000/-
from the account of the respondent/ complainant and has committed deficiency in
service.
Petitioner/OP bank has submitted that ‘the present complaint is not maintainable against the
answering respondent, as the respondent/complainant failed to repay the loan of the Bank within the
given period and violated the terms and conditions of the tractor loan, getting no alternative the Bank
has to file suit for recovery against the respondent/ complainant. During the pendency of the suit, the
respondent/ complainant entered into compromise with the Bank and as per bank policy pertaining to N
P Accounts relief of interest of Rs.25,000/- was given to the respondent/complainant detailed as under:
Principal Rs.1,24,650/-
Interest from 01.12.1999 to 22.07.2005 Rs.1,85,030/-
Court Fee Rs.17,627/-
Insurance Rs.4,293/-
TOTAL Rs.3,31,600/-
Relief Rs.25,000/-
Total Balance Rs.3,06,000/-
Amount received from complainant
On 19.07.2005 Rs.2,81,600/-
Balance Rs.25,000/-
In this manner the amount of Rs.25,000/- remained balance as on 22.07.2005, the
respondent/complainant requested the Bank for another relief of interest of Rs.25,000/-
which was beyond the power of the compromising authority but the
respondent/complainant requested the Bank that he will try at his level best moving to
the higher authorities for further relief of Rs.25,000/- and deposited a sum of
Rs.25,000/- in his saving Bank account and requested the Bank to mark lien on his
account and to issue conditional no dues certificate. In case the
respondent/complainant fails to get further relief from the higher authority, the amount of
Rs.25,000/- kept under lien adjusted in his loan account to adjust the amount in full and
final. In this manner the then Branch Manager Shri Pale Ram issued conditional no
dues certificate marking lien in saving Bank Account of respondent/ complainant.
Meanwhile, Shri Pale Ram was transferred by the Bank and the lien in saving Bank
Account remained as it is. The respondent/ complainant failed to get further relief from
higher authorities, instead of informing the Bank moved the present application. Thus
the present complaint is liable to be dismissed on this score only.
As the then Manager was transferred and after coming to know of the facts while
the respondent/ complainant filed the above said false and baseless complaint, the
Bank has adjusted the lien amount in the loan account being interest amount of the
respondent/complainant with the Bank.
The District Consumer Disputes Redressal Forum, Panipat (‘the District Forum’)
vide its order dated 05.07.2007 has stated as follows:
“After having gone through the complaint, contents of the reply and the no dues
certificate issued by the OPs, we are of the opinion that the petitioner has already
paid the dues pending towards him and nothing remains to be paid by him to the
Bank. Further, in the no dues certificate/ letter dated 19.07.2005 there is no
condition mentioned therein. Meaning thereby the no due certificate/ letter dated
19.07.2005 indicates that nothing remains to be paid by the petitioner to the OPs.
Now the OPs are estopped by their own act and conduct from claiming any
amount with regard to the tractor loan of the petitioner. Therefore, the OPs are
found gross negligent in their services and it is clear that the petitioner has been
subjected to mental harassment and has been compelled to file the present
litigation.
For the reasons recorded above, we accept the present complaint and hold the
OPs are negligent in their services. Therefore, we direct the OP Bank to allow the
petitioner to with draw the amount standing in the savings account of the
petitioner by him. Further, we hold that there remains nothing to be paid by the
petitioner towards the tractor loan. The OPs are further directed to pay the
compensation of Rs.5,000/- to the petitioner on account of mental harassment
and Rs.3,300/- as litigation. The OPs are further directed to make the compliance
of this order within a period of 30 days from the date of receipt of copy of this
order”.
Aggrieved by the order of the District Forum, the petitioner filed an appeal before
the State Commission. After hearing the learned counsel for the appellant and perusing
the case file, the State Commission stated as follows:
“It has also not been disputed that pursuance to the payment of the amount by
availing scheme, the bank issued a No Due Certificate to the complainants on
19.07.2005 and also addressed a letter to the Tehsildar concerned for releasing
their charge over the agricultural land of the complainants. The plea of the OP
appellant was that on oral requests a conditional No Due Certificate was issued.
This plea of the OP is apparently contrary to the record and appears to be an
after-thought. The letter written by the Bank to the revenue authorities on
19.07.2005 does not indicate any such conditional no dues and is reproduced
below:
Bapoli (Panipat) 19.07.2005
To Tehsildar
Bapoli
Sir,
Removal of loan on tractor loan AC No. ATL 2/359 Rs.1,70,100/-
We advise that Shri Kishana @ Kishan Chand and Om Prakash son
of Sarjeet vill. Shimla Sujram has cleared his tractor loan account. So nothing is
due against him. Please remove our lien on ATS land measuring 49 K 6 M Regd.
No. 1013/1 dated 12.03.1998,______ no. 210 dated 14.03.1998.
Yours faithfully,
Sd/-
Branch Manager
Once the matter has been settled between the parties in civil suit and the
complainants have paid the amount and pursuance to which the suit stood
disposed of and bank issued ‘No due Certificate’), the withholding of the amount
lying in the saving bank account of the complainants was certainly an act of
grave deficiency on the part of the bank official and thus District Forum rightly
allowed the complaint of the complainant and also imposed compensation for
mental harassment.
We do not find any ground to interfere in the impugned order.
Hence, the appeal is dismissed.
The statutory amount of Rs.17,500/- deposited at the time of filing of the present
appeal be refunded to the appellant against propose receipt and due verification
as per rules on the subject, after the expiry of period of appeal and revision, if
any, filed in this case”.
Dissatisfied by the order of the State Commission the petitioner filed the present
revision petition before us.
We have heard the learned counsel for the petitioner and have also gone through
the records carefully.
The grounds for the revision petition are as follows:
On 19.07.2005, the respondent approached the petitioner Bank for some relief/
concession in the interest and offered to liquidate the entire dues in the account. The
then Branch Manager of the Bapoli Branch, District Panipat advised the respondent that
concession of only Rs.25,000/- has been granted to him by the competent authorities of
the Bank. At that time, the total amount payable by the respondent was Rs.3,31,600/-
and after the relief of Rs.25,000/- the balance payable was Rs.3,06,000/-. The
respondent then pleaded to the Branch Manager that he will take up the matter with the
higher authorities of the Bank for another relief of Rs.25,000/- and deposited the amount
of Rs.2,81,600/- in the loan account and Rs.25,000/- in his Savings Bank Account on
the understanding that the Bank may mark the lien on the said amount and in case, the
higher authorities do not agree to the request of the respondent for the waiver/relief of
another sum of Rs.25,000/-, the same may be adjusted by the Branch. It was further
represented by the respondent that he required the ‘No Dues Certificate’ on an ‘urgent
basis’ as he has to deal with the property. The ‘No Dues Certificate’ was required by the
respondent for getting the entry of mortgage removed from the revenue records.
The petitioner Bank filed its detailed reply detailing all the correct facts in the
matter. It was further pleaded that the ‘No Dues Certificate’ was issued by then then
Branch Manager under good faith and on the deposit of Rs.25,000/- in the savings bank
account by the respondent/complainant. It was further pleaded that the amount of
Rs.25,000/- has been deposited by the respondent/ complainant on 19.07.2005 when
the amount of Rs.2,81,600/- was deposited in the loan account. The petitioner bank also
filed the statement of the loan account showing the deposit of Rs.2,81,600/- on
19.07.2005, the relief/ concession of Rs.25,000/- credited in the account and the
account still shows the debit balance of Rs.25,000/-. It was also the plea of the
petitioner Bank that the respondnent/ complainant is not a consumer. In evidence, the
petitioner Bank filed the affidavit ofShri Pale Ram who was the Branch Manager
at Bopali Branch, where the respondent/complainant had the account and the Saving
Bank Account who had issued the No Dues Certificate. The said Manager of the
petitioner Bank stated on oath, the actual facts of the matter and the circumstances in
which the ‘no dues certificate’ without mentioning the balance amount of Rs.25,000/-
payable has been issued.
The loan account was not settled, the suit was not withdrawn and the same was
decreed by the Court of Shri Jagdish Singh, Civil Judge, Panipat on 28.04.2008 after
hearing the counsel for the petitioner Bank and the Counsel for the respondent. The
decree was passed for Rs.2,73,298/- with interest @ 13.77% per annum with half-yearly
rest from 20.11.2003 till the date of payment.
The State Commission and the District Forum failed to appreciate that the
petitioner Bank has not issued any letter or communication granting relief of Rs.50,000/-
to the respondent/ complainant and in the absence of the same, the
complainant/borrower is liable to pay the entire amount with interest, cost and charges.
The State Commission and the District Forum failed to appreciate that the amount
of Rs.25,000/- was deposited by the respondent/complainant in the Savings Banks
Account on 19.07.2005, in the loan account. All this proves that the deposit of
Rs.25,000/- in the Savings Bank Account was connected with the repayment of the
loan.
The State Commission and the District Forum failed to appreciate that the
petitioner Bank has fairly credited the amount of Rs.2,81,600/- in the loan account on
19.07.2005 and on the same date, has also credited Rs.25,000/- as concession granted
and further that the loan account is still showing the debit balance of Rs.25,000/- which
is payable by the respondent/ complainant.
The State Commission and the District Forum failed to appreciate that the ‘no
dues certificate’ dated 19.07.2005 issued by then Branch manager, Shri Pale Ram, only
in good faith, and after the deposit of Rs.25,000/- by the complainant in the savings
bank account and after marking the lien, over the said amount.
The State Commission and the District Forum failed to appreciate that the higher
authorities of the petitioner bank at the zonal office has not approved any further
concession to the respondent and the concession granted to the complainant remained
at Rs.25,000/- the benefit of which was already given to the complainant.
The State Commission and the District Forum failed to appreciate that the effect
of the ‘no dues certificate’ is that the mortgage property stands redeemed and however
the said letter does not affect the rights of the bank to recover the amount.
It is an undisputed fact that the respondent was a consumer of the petitioner bank
having a savings bank account no. 01190015033. The amount of Rs.25,000/- was in the
balance in the account of the respondent. When the respondent wanted to withdraw the
above said amount, the clerk declined and stated that the account was seized by the
Manager of the Bank on account of non-payment of the loan towards tractor. The
respondent had cleared the loan amount of the tractor and to this effect the respondent
had issued letter dated 19.07.2005 to the Tehsildar Bapoli for clearance of the loan and
for changing the mutation in the revenue record. However, a reading of the no due
certificate does not support this claim. Petitioner has stated that on an oral request
conditional no due certificate was issued. This however, is contrary to the record and
appears to be an after-thought. The letter written by the Bank to the revenue authorities
on 19.07.2005 does not indicate any such conditions to the no due certificate issued.
In the facts and circumstances of the case mentioned above, we find no reasons
to disagree with the order of the State Commission. In view of this we find that there is
nojurisdictional error, illegality or infirmity in the order passed by the State Commission
warranting our interference. The revision petition is accordingly dismissed with cost of
Rs.10,000/- (Rupees ten thousand only).
Petitioner is directed to deposit the cost by way of demand draft in the name of
‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within
four weeks from today. In case the petitioner fails to deposit the said cost within the
prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.
List on 31st May 2013 for compliance.
Sd/-
..………………………………
[ V B Gupta, J.]
Sd/-
………………………………..
[Rekha Gupta]
Satish
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4320 OF 2012
(From order dated 26.07.2012 in First Appeal No. 621 of 2007 of the Haryana State
Consumer Disputes Redressal Commission, Panchkula)
WITH I.A. No. 1 OF 2012 and I.A. No. 2 OF 2012
(Stay & Delay)
State Bank of Patiala Through its Manager Charkhi Dadri, District Bhiwani (Haryana)
Petitioner
Versus
1. Ram Kishan Son of Sh. Jai Dayal Resident of House No. 7, New Canal Colony,
Gurdwara Road, Charkhi Dadri
2. Smt. Kailasho Devi, Wife of Ram Kishan Son of Sh. Jai Dayal, Resident of House
No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri
… Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER
HON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner : Mr. Bharat Arora, Advocate for
Mr. Sanjiv Kakra, Advocate
Pronounced on : 1 st May, 2013
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The complainants Mr. Ram Kishan and his wife Smt. Kailasho Devi, residents
of Charkhi Dadri, opened various Fixed Deposit Accounts on different dates in the
year 1993 onwards. The Branch Manager, State Bank of Patiala, Charkhi Dadri-OP-
4 (in the original complaint) took their signatures on various forms and other papers
on the pretext of renewal of the FDRs. He did not issue the FDRs but issued the
pass book. They were informed that the rules have since been changed, therefore,
pass book was given to them. Thereafter, they approached the Bank to renew the
pass book time and again but it did not produce the desired result. Then it
transpired that their amount was fraudulently misused by some bank officials by way
of converting their bank account into stock invest account. Moreover, when the OPs
failed to return the money of the complainants, legal notice was sent to them but it
did not ring the bell. Therefore, a complaint under section 12 of the Consumer
Protection Act 1986 was filed before the District Forum.
2. The District Forum vide its order dated 31.07.2007 allowed the complaint and
directed the OPs to pay the maturity value of the FDRs as per details given in Para
No. 2 of the complaint alongwith interest @9% per annum from the date of maturity
of each FDR till the date of payment. It also awarded costs in the sum of Rs.
2,000/-.
3. Aggrieved by that order, the petitioner preferred an appeal before the State
Commission. The State Commission dismissed the Appeal vide its order dated
26.07.2012.
4. We have heard the counsel for the petitioner. He made the following
submissions. He argued that the complainants had approached the Bank and
opened various Fixed Deposit Account for the purpose of Stock Investment. It is
explained that due to the downfall in the stock market, the investment of the
complainants eroded. It also came to light that there was a scam in the Bank and
FIR was lodged with the police against Bank’s own officers on 20.06.1996. Banking
Ombudsman examined all the material facts and dismissed the complaint made by
the complainants vide order dated 21.01.2000. The complainants filed a criminal
complaint.
5. Counsel for the petitioner vehemently argued that the complainants had
signed the various documents dated 27.07.1994 under the heading “Payment of
Stock Invests from my account NO. 286” This document was signed by Smt.
Kailasho Devi in Hindi language. It is apparent that she could not write Hindi
language properly. It was stressed that when the complainants signed the
documents with open eyes, therefore, they should not be permitted to jibe their
previous stand. We have perused the Photostat copy of the complaint which also
bears the signatures of the complainants in Hindi language. It appears that both the
complainants are not aware of the English language. The learned counsel for the
petitioner further laid emphasis on the fact that this case is barred by time. It was
argued that the FDR was opened in the year 1993 but the instant complaint was filed
on 23.11.2000. He argued that the orders passed by the District Forum and State
Commission are perverse. The complaint should have been filed within 2 years.
6. The last submission made by the counsel for the petitioner was that Sh.
Ramdhan Goel, Special Assistant, State Bank of Patiala and Sh. Raghuvardayal
Aggarwal, Assistant Manager, State Bank of Patiala were convicted in a criminal
case under section 408/467/468/471/201 that is for the mis-appropriation of amount
and forgery etc. The counsel for the petitioner vehemently argued that these
persons were not convicted in respect of the case in hand but they were convicted in
the case of other three persons.
7. An attempt was made to louse up the real issue. It is true that in the order of
the Magistrate, there is no mention of the complainants. Accounts of Sh. Hem Raj,
Smt. Basanti Devi, Sh. Krishan Lal were discussed. However, the judgment states
that there were as many as 47 cases. This is an admitted fact the complainants also
lodged complaint against the bank officials bearing the same F.I.R. number. The
Magistrate was pleased to observe:-
“28. No doubt, bank might have suffered losses of Rs. 5.00 lacs, as it was
guarantor for the repayment of this stock invest invested by the
depositors, because of lack of vigilance, the bank had to pay the penalty,
but it is quite clear that accused Ramdhan Goel would use the amount
account holder without making any entry of the credtor in their respective
accounts and stock invest accounts. Thus, during those relevant period
accused Ramdhan Goel would use the public money and he would
deposit the said cash amount in the bank on the event of allotment of the
share in the bank. The said modus operandi adopted by the accused
clearly speaks volume of lack of supervision and vigil of the higher bank
official that paved the way for the appointment of Ishwar Singh as a
Special Auditor to unfold the entire scam. Auditor report in this case Ex.
PW 6/A is valuable piece of evidence, which clearly shows the complicity
to both the accused in defrauding the bank and modus operandi adopted
by them to mis-use the public fund.”
8. At the foot of para No. 31 it was further observed:-
“31………. Even otherwise, it is own contention of learned counsel for the
accused Raghvar Dayal Aggarwal that in good faith, he would issue stock
invest by signing on the some blank stock invest. Further, there is no force
in his contention that stock invest used to be issued blank. This argument
of ld. defence counsel is simply devoid of any force because stock invests
are to be required to be issued after filing denomination the signature of the
Incharge, who was accused Raghvar Dayal Aggarwal and those were
required to be signed by the account holders as well.”
9. Although, the case of complainants was not discussed in the said judgment,
yet, it is clear that accounts of as many as 47 persons were changed from FDR to
stock invest accounts without their consent. The District Forum observed:-
“We are also convinced with the arguments advanced by the complainant
counsel that at the time of applying
for allotment of shares in public issue, he would apply to the bank for
issuance of a stock invest in his favour for the amount applied for in the public
issue. Separate applications were to be made for separate public issue
applications. In return the Bank would keep the application money amount
intact, out of total amount deposited in the account of applicants saving or FDs
accounts if the applicant was successful in getting allotment of certain shares in
a public issue of the company the company would send the stock invest
attached with the application to the bank for collection of allotment money. In
case the applicant was un-successful in getting allotment of shares, this stock
invest issued by the bank was to be returned as such to the applicants by the
company. In term the applicant would visit the bank and present the stock
invest for collection i.e. for remove of the bank lien over the stock invest
amount. By applying this scheme the authorities stopped the user of
application
money by the company as the share application money remained deposited in
applicant’s bank accounts till allotment of share. For whole of this process the
applicant was supposed to sign the application for issuance of stock invest as
well as the stock invest itself. After allotment of shares the bank was duty
bound to clear the stock invest amount in favour of the company making
allotment only after comparing the stock investor signatures with the specimen
signatures of the applicants but in the present complaint they failed to do so,
which amounts to deficiency in service on the part of the respondents.”
10. The case of the petitioner hinges upon an application singed by Kailasho Devi
in Hindi language. The whole of documents are in English language. Same is the
position with the signatures of Ram Kishan. There is no evidence that they were
aware of English language. The other formalities were given the go-bye. The Bank
cannot wash its hands of its responsibility. The attitude of Bank adds a shocking
dimension to the situation. The commission of scam further shows the negligence
and dereliction of duty on the part of the higher authorities. By no stretch of
imagination it can be said that the case is time barred. The complainant has
continuous cause of action till they get their money back. We see no merit in the
revision petition and dismiss the same and impose punitive costs of Rs. 50,000/-,
which will be deposited with the Consumer Welfare Fund established by the Central
Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection
Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of
P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within 45 days from
today, otherwise it will carry interest @9% per annum till its realization. Learned
Registrar of this Commission shall see compliance of the order under Section 25 of
the Consumer Protection Act, 1986.
..…………………………
(J. M. MALIK,J.)
PRES IDING MEMBER
……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Jr/8
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4320 OF 2012 (From order dated 26.07.2012 in First Appeal No. 621 of 2007 of the
Haryana State Consumer Disputes Redressal Commission, Panchkula)WITH I.A. No. 1 OF 2012 I.A. No. 2 OF 2012 (Stay & Delay)
State Bank of Patiala Through its Manager Charkhi Dadri, District Bhiwani (Haryana) … Petitioner
Versus1. Ram Kishan Son of Sh. Jai Dayal Resident of House No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri 2. Smt. Kailasho Devi, Wife of Ram Kishan Son of Sh. Jai Dayal, Resident of House No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri
… Respondents
BEFORE:
HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE DR. S. M. KANTIKAR, MEMBER
For the Petitioner : Mr. Bharat Arora, Advocate for
Mr. Sanjiv Kakra, Advocate
Pronounced on : 1 st May, 2013
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER1. The complainants Mr. Ram Kishan and his wife Smt. Kailasho Devi, residents
of Charkhi Dadri, opened various Fixed Deposit Accounts on different dates in the
year 1993 onwards. The Branch Manager, State Bank of Patiala, Charkhi Dadri-OP-
4 (in the original complaint) took their signatures on various forms and other papers
on the pretext of renewal of the FDRs. He did not issue the FDRs but issued the
pass book. They were informed that the rules have since been changed, therefore,
pass book was given to them. Thereafter, they approached the Bank to renew the
pass book time and again but it did not produce the desired result. Then it
transpired that their amount was fraudulently misused by some bank officials by way
of converting their bank account into stock invest account. Moreover, when the OPs
failed to return the money of the complainants, legal notice was sent to them but it
did not ring the bell. Therefore, a complaint under section 12 of the Consumer
Protection Act 1986 was filed before the District Forum.
2. The District Forum vide its order dated 31.07.2007 allowed the complaint and
directed the OPs to pay the maturity value of the FDRs as per details given in Para
No. 2 of the complaint alongwith interest @9% per annum from the date of maturity
of each FDR till the date of payment. It also awarded costs in the sum of Rs.
2,000/-.
3. Aggrieved by that order, the petitioner preferred an appeal before the State
Commission. The State Commission dismissed the Appeal vide its order dated
26.07.2012.
4. We have heard the counsel for the petitioner. He made the following
submissions. He argued that the complainants had approached the Bank and
opened various Fixed Deposit Account for the purpose of Stock Investment. It is
explained that due to the downfall in the stock market, the investment of the
complainants eroded. It also came to light that there was a scam in the Bank and
FIR was lodged with the police against Bank’s own officers on 20.06.1996. Banking
Ombudsman examined all the material facts and dismissed the complaint made by
the complainants vide order dated 21.01.2000. The complainants filed a criminal
complaint.
5. Counsel for the petitioner vehemently argued that the complainants had
signed the various documents dated 27.07.1994 under the heading “Payment of
Stock Invests from my account NO. 286” This document was signed by Smt.
Kailasho Devi in Hindi language. It is apparent that she could not write Hindi
language properly. It was stressed that when the complainants signed the
documents with open eyes, therefore, they should not be permitted to jibe their
previous stand. We have perused the Photostat copy of the complaint which also
bears the signatures of the complainants in Hindi language. It appears that both the
complainants are not aware of the English language. The learned counsel for the
petitioner further laid emphasis on the fact that this case is barred by time. It was
argued that the FDR was opened in the year 1993 but the instant complaint was filed
on 23.11.2000. He argued that the orders passed by the District Forum and State
Commission are perverse. The complaint should have been filed within 2 years.
6. The last submission made by the counsel for the petitioner was that Sh.
Ramdhan Goel, Special Assistant, State Bank of Patiala and Sh. Raghuvardayal
Aggarwal, Assistant Manager, State Bank of Patiala were convicted in a criminal
case under section 408/467/468/471/201 that is for the mis-appropriation of amount
and forgery etc. The counsel for the petitioner vehemently argued that these
persons were not convicted in respect of the case in hand but they were convicted in
the case of other three persons.
7. An attempt was made to louse up the real issue. It is true that in the order of
the Magistrate, there is no mention of the complainants. Accounts of Sh. Hem Raj,
Smt. Basanti Devi, Sh. Krishan Lal were discussed. However, the judgment states
that there were as many as 47 cases. This is an admitted fact the complainants also
lodged complaint against the bank officials bearing the same F.I.R. number. The
Magistrate was pleased to observe:-
“28. No doubt, bank might have suffered losses of Rs. 5.00 lacs, as it was guarantor for the repayment of this stock invest invested by the depositors, because of lack of vigilance, the bank had to pay the penalty, but it is quite clear that accused Ramdhan Goel would use the amount account holder without making any entry of the credtor in their respective accounts and stock invest accounts. Thus, during those relevant period accused Ramdhan Goel would use the public money and he would deposit the said cash amount in the bank on the event of allotment of the share in the bank. The said modus operandi adopted by the accused clearly speaks volume of lack of supervision and vigil of the higher bank official that paved the way for the appointment of Ishwar Singh as a Special Auditor to unfold the entire scam. Auditor report in this case Ex. PW 6/A is valuable piece of evidence, which clearly shows the complicity to both the accused in defrauding the bank and modus operandi adopted by them to mis-use the public fund.”
8. At the foot of para No. 31 it was further observed:-
“31………. Even otherwise, it is own contention of learned counsel for
the accused Raghvar Dayal Aggarwal that in good faith, he would
issue stock invest by signing on the some blank stock invest. Further,
there is no force in his contention that stock invest used to be issued
blank. This argument of ld. defence counsel is simply devoid of any
force because stock invests are to be required to be issued after filing
denomination the signature of the Incharge, who was accused
Raghvar Dayal Aggarwal and those were required to be signed by the
account holders as well.”
9. Although, the case of complainants was not discussed in the said judgment,
yet, it is clear that accounts of as many as 47 persons were changed from FDR to
stock invest accounts without their consent. The District Forum observed:-
“We are also convinced with the arguments advanced by the complainant
counsel that at the time of applying
for allotment of shares in public issue, he would apply to the bank for
issuance of a stock invest in his favour for the amount applied for in the
public issue. Separate applications were to be made for separate public
issue applications. In return the Bank would keep the application money
amount intact, out of total amount deposited in the account of applicants
saving or FDs accounts if the applicant was successful in getting
allotment of certain shares in a public issue of the company the company
would send the stock invest attached with the application to the bank for
collection of allotment money. In case the applicant was un-successful in
getting allotment of shares, this stock invest issued by the bank was to
be returned as such to the applicants by the company. In term the
applicant would visit the bank and present the stock invest for collection
i.e. for remove of the bank lien over the stock invest amount. By applying
this scheme the authorities stopped the user of application
money by the company as the share application money remained
deposited in applicant’s bank accounts till allotment of share. For whole
of this process the applicant was supposed to sign the application for
issuance of stock invest as well as the stock invest itself. After allotment
of shares the bank was duty bound to clear the stock invest amount in
favour of the company making allotment only after comparing the stock
investor signatures with the specimen signatures of the applicants but in
the present complaint they failed to do so, which amounts to deficiency in
service on the part of the respondents.”
10. The case of the petitioner hinges upon an application singed by Kailasho Devi
in Hindi language. The whole of documents are in English language. Same is the
position with the signatures of Ram Kishan. There is no evidence that they were
aware of English language. The other formalities were given the go-bye. The Bank
cannot wash its hands of its responsibility. The attitude of Bank adds a shocking
dimension to the situation. The commission of scam further shows the negligence
and dereliction of duty on the part of the higher authorities. By no stretch of
imagination it can be said that the case is time barred. The complainant has
continuous cause of action till they get their money back. We see no merit in the
revision petition and dismiss the same and impose punitive costs of Rs. 50,000/-,
which will be deposited with the Consumer Welfare Fund established by the Central
Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection
Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of
P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within 45 days from
today, otherwise it will carry interest @9% per annum till its realization. Learned
Registrar of this Commission shall see compliance of the order under Section 25 of
the Consumer Protection Act, 1986.
..…………………………
(J. M. MALIK,J.)
PRES IDING MEMBER
……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Jr/8
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 3267 of 2012 (From the order dated 28.05.2012 in Appeal No. 07/2011 of H.P. State Consumer
Disputes Redressal Commission, Shimla)
M/s. Indusind Bank Ltd. Having its Office 1st Floor, SCF- 23-24, Phase 3 B-2, Mohali, Punjab Through its Authorized Representative Shri Vishal Hans
… Petitioner/Opposite Party (OP)
Versus
Shri Avtar Singh S/o Sh. Gopal Singh R/o Vill & P.O. Nerchowk, Tehsil Sadar, District Mandi. H.P.
… Respondent/Complainant
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. Manish Sharma, Advocate
For the Respondent : Ex-parte
PRONOUNCED ON 2 nd May, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order dated 28.05.2012 passed by the H.P. State Consumer Disputes Redressal
Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 07/2011 – Avtar
Singh Vs. Indusind Bank Ltd. & Anr. by which, order of District Forum dismissing
complaint was set aside and Petitioner/OP No. 1 was directed to pay Rs.50,000/- as
compensation and Rs.5,000/- as litigation expenses to the complainant.
2. Brief facts of the case are that complainant/Respondent No.1 took a loan of
Rs.7,75,000/- for purchase of Truck No.HP65-930 on 25.3.2006 from OP No. 2 working
under OP No. 1. Amount was to be paid in monthly instalments of Rs.19,775/-.
Complainant paid Rs.1,41,851/- as monthly instalments. On 5.7.2007, in the early
morning, agents of OP No. 1 forcibly removed truck from the custody of the
complainant. OP No. 1 got several papers signed from the complainant at Chandigarh
and assured him that vehicle would be returned soon after completion of certain
formalities, but vehicle was not returned till date. Alleging deficiency on the part of OPs,
complainant filed complaint before the District Forum with a prayer to get back
Rs.1,41,851/- deposited by him with interest and cost. OPs contested complaint and
submitted that complainant does not fall within the purview of consumer, as the
complainant is having more than 4 vehicles in his name and complainant also got
financed other vehicle No. HP-65-1930. It was further alleged that District Forum has no
jurisdiction and complaint is time barred. It was further alleged that cheque issued by
the complainant were dishonoured and complainant failed to repay monthly instalments
and intimated OPs his inability to pay the dues and in such circumstances, OPs were
compelled to take back custody of the financed vehicle and have not committed any
deficiency in providing service and prayed for dismissal of the complaint. Learned
District Forum after hearing both the parties dismissed complaint on the ground of
territorial jurisdiction as well as on limitation in filing complaint. Appeal filed by the
complainant/respondent was allowed by learned State Commission vide impugned
order against which, this revision petition has been filed.
3. None appeared for the respondent even after service and respondent was
proceeded ex-parte.
4. Heard learned Counsel for the petitioner and perused record.
5. Learned Counsel for the petitioner submitted that District Forum rightly dismissed
complaint for want of territorial jurisdiction and limitation, but learned State Commission
committed error in allowing complaint. It was further argued that complainant does not
fall within the purview of consumer, as vehicle was purchased for commercial purposes;
hence, revision petition be allowed and impugned order be set aside.
6. Perusal of record clearly reveals that loan documents were executed either at
Chandigarh or at Jalandhar. District Forum also observed that Head Office of the
Indusind Bank is at Jalandhar while Branch Office is at Chandigarh and no transaction
took place within the territorial jurisdiction of Distt. Mandi and learned District Forum
rightly came to the conclusion that District Forum had no jurisdiction, as no cause of
action arose within the jurisdiction of District Forum. Learned State Commission
observed in the impugned order that vehicle was forcibly repossessed by OP No. 1 at
place within the jurisdiction of learned District Forum; hence, learned District Forum had
jurisdiction to deal with the complaint. Fact of forcibly possessing of vehicle has been
denied by OP in its written statement and OP pleaded that vehicle was delivered by the
complainant at Chandigarh. There is no evidence on record filed by the complainant to
prove the fact that vehicle was forcibly removed by OP No. 1 from the village of
complainant falling in District Mandi. No FIR was filed against OP and complaint also
filed after about two years. On the other hand, OPs submitted in their written statement
that complainant himself surrendered the vehicle at Chandigarh. In such circumstances,
learned District Forum rightly observed that learned District Forum had no jurisdiction to
deal with the complaint and learned State Commission has committed error in holding
that learned District Forum had jurisdiction to deal with the complaint.
7. As far as limitation aspect is concerned, admittedly, complaint was filed on
6.7.2009 and, as per allegation in the complaint; possession of vehicle was obtained by
OP No. 1 on 5.7.2007 meaning thereby complaint has been filed after two days of
expiry of limitation. Learned State Commission observed that due to Sunday on
5.7.2009, Complaint was filed on 6.7.2009 within limitation. Perusal of record reveals
that, as per complaint, vehicle was repossessed by OP on 5.7.2007 and complaint was
filed on 6.7.2009, just after two days of expiry of limitation, which can be condoned u/s
24-A of C.P. Act, hence this ground is devoid of force.
8. Learned Counsel for the petitioner further submitted that loan was taken for
financing vehicle by the complainant for commercial purposes and in such
circumstances, complainant does not fall within the purview of consumer under the C.P.
Act. Record reveals that complainant obtained another loan of Rs.8,00,000/- for vehicle
HP-65-1930 from OP No. 1. OPs in their written statement clearly alleged that
complainant is having more than 4 vehicles in his name and this fact has not been
denied by the complainant. In such circumstances, it becomes clear that complainant
has not availed services of OP for the purpose of earning his livelihood by means of
self-employment and, as services have been availed for commercial purposes,
complainant does not fall within the purview of consumer under Section 2 (d) of the C.P.
Act and learned District Forum committed error in holding that complainant falls within
the purview of consumer. There was no occasion for the OPs to assail this finding
before learned State Commission, as complaint had already been dismissed by District
Forum on other counts.
9. As the complainant/respondent does not fall within the purview of consumer
under the C.P. Act and Ld District Forum had no jurisdiction to deal with the complaint,
learned State Commission committed error in passing the impugned order, which is
liable to be set aside.
10. Consequently, revision petition filed by the petitioner against the respondent is
allowed and impugned order dated 28.5.2012 passed by learned State Commission in
Appeal No.07/2011 is set aside and complaint filed by the complainant/respondent is
dismissed with no order as to costs. ..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4797 of 2012
(From the order dated 14.09.2012 in Appeal No. 158/2012 of Rajasthan State Consumer Disputes Redressal Commission, Jaipur)
I.D.B.I. Bank D-24, Durlabh Niwas, Prithviraj Road, C-Scheme, Jaipur, Rajasthan through Branch Manager
… Petitioner/Opp. Party (OP)
Versus
1. Subhash Shah S/o Om Prakash Shah R/o B-5, Hari Nagar, Shastri Nagar, Jaipur, Rajasthan
2. Sarika Shah W/o Subhash Shah R/o B-5, Hari Nagar, Shastri Nagar, Jaipur, Rajasthan
… Respondents/Complainants
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. Anuj Bhandari, Advocate
For the Respondents : Mr. V.V. Harit, Advocate
PRONOUNCED ON 9 th May , 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/OP against the impugned
order dated 14.9.2012 passed by the Rajasthan State Consumer
Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal
No. 158 of 2012 – IDBI Vs. Subhash Shah & Anr. by which, while dismissing appeal,
order of District Forum allowing compliant was upheld.
2. Brief facts of the case are that Complainant/respondent submitted application for
sanction of loan to OP/petitioner and deposited Rs.39,326/- as process fee. Loan was
not disbursed to the complainant; hence, complainant served notice on the OP for
refund of process fee, but OP did not refund process fee. Complainant alleging
deficiency on the part of OP filed complaint before District Forum. Respondent/OP did
not appear before District Forum. During pendency of complaint, OP refunded
Rs.39,326/- to the complainant. Learned District Forum after hearing complainant
allowed complaint and directed OP to pay interest @ 9% p.a. on Rs.39,326/- from
5.10.2007 till date of payment and further awarded Rs.11,000/- for mental agony and
Rs.3,000/- as cost of litigation. Appeal filed by the petitioner was dismissed by learned
State Commission vide impugned order against which, this revision petition has been
filed.
3. Heard learned Counsel for the parties at admission stage and perused record.
4. Learned Counsel for the petitioner submitted that loan was sanctioned, but
respondent did not avail loan. It was further submitted that though process fee was not
refundable; even then, process fee was refunded to avoid any litigation and respondent
assured to withdraw legal proceedings; even then, legal proceedings were not
withdrawn and learned District Forum committed error in allowing complaint and learned
State Commission also committed error in dismissing appeal; hence, revision petition be
allowed and impugned order be set aside. On the other hand, learned Counsel for the
respondent submitted that order passed by learned State Commission and District
Forum is in accordance with law, which does not call for interference; hence revision
petition be dismissed.
5. Perusal of record reveals that as per Annexure P-5, loan was sanctioned by the
petitioner, but disbursement of loan was subject to certain conditions, as mentioned in
sanction letter. It appears that respondent did not avail loan facility due to technical
difficulty as mentioned by respondent in letter dated 16.5.2010. Thus, it becomes clear
that there was no deficiency on the part of petitioner. After filing of the complaint,
process fee though non-refundable was refunded by the petitioner to the respondent
and respondent vide Annexure P-7 dated 16.5.2010 apprised petitioner that now
respondent has no grievance and he assured to withdraw all legal proceedings, which
he has filed, meaning thereby, it was obligatory on the part of respondent to withdraw
complaint filed before District Forum after receiving process fee. It appears that
respondent has not acted with clean hands before District Forum. He has also
mentioned wrong fact that loan was not sanctioned.
6. Once the respondent received process fee in full and final satisfaction, he should
have withdrawn complaint as assured and he was not entitled to receive any interest on
that amount as well compensation and cost as apparently there was no deficiency on
the part of petitioner. Learned District Forum committed error in allowing complaint and
granting interest, compensation and cost and learned State Commission also committed
error in dismissing appeal in limine, which is liable to be set aside.
7. Consequently, revision petition filed by the petitioner against the respondent is
allowed and impugned order dated 14.9.2012 passed by learned State Commission in
Appeal No. 158 of 2012 – IDBI Vs. Subhash Shah & Anr. is set aside and complaint
filed by the respondent before District Forum is dismissed. There shall be no order as
to costs. ..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..……………Sd/-………………
( DR. B.C. GUPTA )
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2521 of 2012
(From the order dated 25.11.2011 in Appeal No. 117/2007 of Uttrakhand State Consumer Disputes Redressal Commission, Dehradun)
Shri Dinesh Kumar Bansal Proprietor M/s. Bansal Ice Cream Byepass Road, Kharkhari,Haridwar R/o Balmiki Basti, Bhimgoda, Haridwar
… Petitioner/Complainant
VersusOriental Bank of Commerce Through its Branch Manager Kharkhari, Haridwar
… Respondent/Opp. Party (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Mr. Anil K. Sharma, Advocate
PRONOUNCED ON 10 th May, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/complainant against the
impugned order dated 25.11.2011 passed by the Uttrakhand State Consumer Disputes
Redressal Commission, Dehradun (in short, ‘the State Commission’) in Appeal No. 117
of 2007 – Oriental Bank of Commerce Vs. Shri Dinesh Kumar Bansal by which, while
allowing appeal, order of District Forum allowing complaint was set aside.
2. Brief facts of the case are that complainant/petitioner had an O.D. Account No.156
with the OP/respondent. On 21.12.2005, when the petitioner went to the bank for
withdrawing some money, he found that Rs.80,000/- had been transferred fraudulently
from his account to the account of one Smt. Santosh Aswal by Asstt. Manager of the
Bank. As no action was taken by the respondent on his request, he filed complaint
alleging deficiency on the part of OP before the District Forum. OP contested
complaint. Learned District Forum after hearing both the parties allowed complaint and
directed OP to pay Rs.80,000/- along with 12% p.a. interest to the complainant and
further directed to pay cost of Rs.1,000/-. Appeal filed by the OP/respondent was
allowed by learned State Commission vide impugned order against which, this revision
petition has been filed.
3. Petitioner filed revision petition along with application for condonation of delay.
4. Heard learned Counsel for the petitioner at admission stage on application for
condonation of delay.
5. Learned Counsel for the petitioner submitted that on account of bed rest due to
illness, revision petition could not be filed in time; hence, delay may be condoned.
6. Perusal of application for condonation of delay reveals that it has not been
mentioned in the application for condonation of delay that how many days delay is to be
condoned. As per office report, there is delay of 127 days in filing revision
petition. Paragraphs 2 & 3 of the application for condonation of delay runs as under:
“2. That due to some family problem and financial constraints,
the petitioner could not come to the Hon’ble Commission
within time.
3. That the delay caused is unintentional and bonafide and
beyond the control of the petitioner”.
7. In support of this application, petitioner filed affidavit on 2.5.2013 and paragraphs
2, 3 & 4 of affidavit run as under:“2 That the impugned order was passed on 25.11.2011 and the
petitioner applied for the same on 7.12.2011 which was
furnished to the lawyer of the petitioner on 7.12.2011 and
same was sent by the lawyer of the petitioner to the
petitioners. After getting the copy of the judgement, then a
legal opinion was sought from the local lawyer then the
lawyer suggested to file the revision petition.
3. Then the petitioner was suffering from the Tuberculosis and
fever from the last 3 months therefore the Doctor who was
treating the petitioner advised regular treatment and rest for
about six months. The true copy of the medical certificate is
annexed as Annexure A-1.
4. That the petitioner spent so much time and money on the
treatment. After get over the problem the petitioner
approached the present lawyer, who prepared and filed the
present petition therefore the delay caused is unintentional
and bonafide and beyond the control of the petitioner”.
8. In support of affidavit, he further filed medical certificate dated 21.12.2011
according to which, on account of fever, T.B., he was advised to take rest from
15.7.2011 to 21.12.2011.
9. In the application for condonation of delay, he has mentioned that revision petition
could not be filed in time due to family problem and finance constraints, whereas in the
affidavit he has mentioned that revision petition could not be filed due to suffering from
T.B. and fever, which are contrary to each other. Even if we believe medical certificate
according to which petitioner was advised to take rest from 15.7.2011 to 21.12.2011, he
has not given any reason explaining delay in filing revision petition on 11.7.2012.
10. As there is inordinate delay of 127 days, this delay cannot be condoned in the
light of the judgment passed by the Hon’ble Apex Court and the National Commission
in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority. As there is no explanation for condonation of
delay, from 21.12.2011 to 11.7.2012, this application for condonation of delay is liable to
be dismissed.
11. Consequently, revision petition filed by the petitioner stands dismissed at
admission stage on the count of delay alone.
12. As the Petitioner has misled the Court in the application for condonation of delay
as well as in the affidavit and has taken contradictory stand, we deem it proper to
impose Rs.5,000/- as costs to be deposited by the petitioner with the Consumer Legal
Aid Account of this Commission by way of bank draft within four weeks. In case, the
petitioner fails to deposit the cost within the prescribed period, then he shall be liable to
pay interest @ 9% p.a. till realization.
13. List for compliance on 4.7.2013.
..……………Sd/-………………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..…………Sd/-…………………
( DR. B.C. GUPTA )
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1482 OF 2013 With
I.A. No.2684 of 2013 (For Stay) (From the order dated 5.2.2013 Appeal No.351/2012
of the State Commission, Chandigarh UT) HDFC Bank Ltd. SCO-408-409, Sector-8, Panchkula
....Petitioner
Versus Surender Kumar Singhal S/o Sh. Ram Parkash R/o SCO 15, Sector-26, Chandigarh
….Respondent BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBERHON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Ajay Monga, Advocate Pronounced on : 16 th May, 2013
ORDER
PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER
Present revision petition has been filed under Section 21(b) of Consumer
Protection Act, 1986 (for short, ‘Act’) challenging impugned order dated 5.2.2013,
passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short,
‘State Commission’).
2. Respondent/complainant filed a consumer complaint under Section 12 of the Act,
before District Consumer Disputes Redressal Forum, Chandigarh (for short, ‘District
Forum’) on the allegations that he had availed a loan against his house from
petitioner/opposite party. Out of total loan amount of Rs.99,00,000/- (Rupees Ninty Nine
lacs only) petitioner deducted an amount of Rs.96,709/- on account of processing fee
and insurance charges. Respondent made request to the petitioner several time to
send him the copy of insurance policy for which he has been charged Rs.13,281/- but
petitioner failed to submit the same. Thereafter, respondent arbitrarily and without
assigning any reason increased the rate of interest. Due to restrictive and monopolistic
trade practices committed by the petitioner, respondent was constrained to transfer the
loan to other Bank. In that process, petitioner charged total pre-payment charges to the
tune of Rs.3,67,965.75. Since, petitioner failed to refund the legal charges, respondent
filed complaint before the District Forum.
3. The complaint was contested by the petitioner.
4. District Forum, vide order dated 18.1.2012, allowed the complaint and directed
the opposite party; “(a) Refund amount of Rs.3,67,965.75P and also pay an
interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.
(b) Opposite Parties are also directed to refund Rs.13,281/- and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.
(c) Opposite Parties are further burdened with Rs.15,000/-
towards cost of litigation.”
5. Being aggrieved, petitioner filed an appeal before the State Commission.
Alongwith the appeal, an application for condonation of delay of 276 days (232 days as
per Office report of the State Commission) was filed. State Commission, vide impugned
order dismissed the application for condonation of delay. Consequently, the appeal of
the petitioner was dismissed being time barred.
6. Hence, this revision petition.
7. We have heard the learned counsel for the petitioner and gone through the
record.
8. Main grounds on which condonation of delay was sought before the State
Commission read as under;“2. That the impugned order has been passed on 18.1.2002. That immediately on receipt of the certified copy of the order, the appellant bank had instructed the dealing advocate within the limitation available for filing an appeal.3. That counsel for the bank was also given the demand draft for a sum of Rs.25,000.00 to be deposited before the Hon'ble State Commission alongwith the appeal. True copy of the demand draft of Rs.25,000/- dated 28th of March, 2012 is attached as Annexure A/5. The grounds of appeal, were got signed by the advocate from the authorized officer of the bank. However, the appeal was never filed.4. That the concerned advocate confirmed having filed the appeal and started reporting further dates in the matter. The status in respect of various cases, including the present case submitted by e-mail showed that in the case of Surinder Singal the next date was fixed on 27th of July, 2012. True copy of the said e-mails printout is submitted as Annexure A/6.5. That the bank came to know only on 18 th of October, 2012 that the appeal has not been filed. The Counsel had been informed even the dates of the appeal to the bank officials. Immediately when the bank officials came to know that the appeal has not been filed, they went the concerned advocate to get back the file. At that stage,
he agreed that he has not filed the appeal. Thus, there is delay in filing of appeal due to the miscommunication and inaction on the part of bank’s advocate.6. That the bank should not be made to suffer on account of negligence on the part of its counsel. The delay in filing the appeal is un-intentional and is attributed to the circumstances mentioned above.7. That it is in the interest of justice that delay of 276 days in filing the present appeal be condoned.”
9. It has been contended by learned counsel for the petitioner that delay has
occurred on account of wrong information provided by the earlier counsel who was
conducting the case before the State Commission. The said counsel always informed
the petitioner that appeal has been filed and it is subjudice before the State
Commission. It further contended that petitioner had engaged that Advocate and has
paid his fees and was confident that its lawyer will look after the interest of the
petitioner. Hence, petitioner should not be made to suffer for inaction, deliberate
omission or misdemeanor of its previous counsel.
10. State Commission, while dismissing the application for condonation of delay in its
impugned order observed;“As such, the applicant/appellant, acted in a highly irresponsible and negligent manner, and woke up from their deep slumber, after 232 days. The applicant/appellant did not act, with due diligence, resulting into delay of 232 days, in filing the appeal. It appears that the applicant/appellant has coined a false excuse to cover up its lapse of not filing the appeal in time. The applicant/appellant was required to explain each day’s delay. It, however, miserably failed to explain the delay of 232 days, which is more than nine times, beyond the normal period of filing an appeal, under Section 15 of the Act. Complete in-action and lack of bonafides, of the applicant/appellant is writ large, on the face of record, and attributable to it, in filing the appeal, after a delay of 232 days. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted from the averments, contained in the application, the delay of 232 days cannot be condoned. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. The application, is, thus, liable to be dismissed.”
11. Petitioner has taken the usual plea that of to shift entire burden on its previous
counsel. We can not overlook this fact that petitioner being a multi-crore Bank is having
full-fledged legal offices comprising of battery of lawyers and legal assistants and other
staff. It was duty of the petitioner being a litigant to have pursued the appeal which
was to be filed before the State Commission, in a diligent and careful manner. This
clearly shows that there is something wrong in the legal department of the petitioner’s
bank that they were so careless and negligent that they could not keep track of the
appeal. Even if we believe that averments as made in the application for condonation of
delay are correct, then why petitioner did not take any action against its previous
counsel by not filing any complaint the before Bar Council of India for professional
misconduct. Nor did petitioner file any complaint under the Act, against the previous
counsel for deficiency in service. It appears that after the order of the District Forum,
petitioner bank went into the deep slumber and all of a sudden woke up after 7 months.
Moreover, a valuable right has occurred in favour of the respondent.
12. It is well settled that “sufficient cause” for condoning the delay in each case is a
question of fact.
13. Under the Act, a special period of limitation has been provided to ensure
expeditious disposal of cases. Complaint has to be disposed of within 90 days from the
date of filing where no expert evidence is required to be taken and within 150 days
where expert evidence is required to be taken.
14. Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial
Development Authority –IV (2011) CPJ 63 (SC) has held that while deciding the
application filed for condonation of delay, the Court has to keep in mind that the special
period of limitation has been prescribed under the Act for filing appeals and revisions in
consumer matters and the object of expeditious adjudication of the consumer disputes
will get defeated if the appeals and revisions which are highly belated are
entertained. Relevant observations made by Apex Court read as under:“It is also apposite to observe that while deciding an
application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer fora”.
15. Hon'ble Apex Court also observed in case “State of Nagaland Vs. Lipokao and
others reported in 2005(2) RCR (Criminal) 414 that;
“Proof of sufficient cause is a condition precedent for exercise of
discretion by the court in condonation of delay”.
16. Apex Court also in “D. Gopinathan Pillai Vs. State of Kerala and another,
reported in (2007) 2 SCC, 322, held;
“When mandatory provision is not complied and the delay is not
properly, satisfactorily and convincingly explained, the court cannot
condone the delay on sympathetic ground only.”
17. It may also be pointed out that petitioners have also filed an application for
permission to place on record the additional grounds. Additional grounds which are
sought to be introduced at this belated stage cannot be taken into consideration since
they relate to the merits of the case and since the appeal is barred by limitation, there is
no question to entertain these additional grounds at this late stage.
18. As apparent from the record, the District Forum has passed the final order as far
as in the year 2008 and now more than five years have passed and the only intention
of the petitioners is to deprive the fruits of the decree in favour of the respondent and to
a large extent the petitioners have succeeded in depriving the benefit to the respondent
for a period of five years.
17. Therefore, the grounds stated in the application cannot constitute sufficient cause
so as to condone the long delay of 128 days in filing the appeal. Thus, we do not find
any infirmity or illegality in the impugned order passed by the State
Commission. Accordingly, we dismiss the revision petition with cost of Rs.25,000/-
(Rupees Twenty Five Thousand only). 18. Petitioners are directed to deposit the cost by way of demand draft in the name of “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioners fail to deposit the cost within the prescribed period, then they shall be liable to pay interest @ 9% p.a. till realization.
19. List for compliance on 26.7.2013. …..…………………………J
(V.B. GUPTA) PRESIDING MEMBER
…..…………………………
(REKHA GUPTA) MEMBERSg.
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 4107 OF 2012(From order dated 17.06.2008 in Appeal No. 313 of 2004 of the
Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram) O. Ranjini, D/o (Late) Sh.Karunakaran R/o ‘Nalleri House’, Near Kavitha Theatre Kannur , Kannur District
… Petitioner
Versus The Bank Manager, Syndicate Bank Taliparamba, Kannur District
… Respondent
BEFORE:
HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Petitioner : In person
PRONOUNCED ON_16.05.2013
O R D E R
JUSTICE J.M. MALIK
1. There is a delay of 1462 days in filing the present revision petition. The petitioner
had not filed application for condonation of delay. Vide order dated 04.01.2013, she was
given an opportunity to file an application for condonation of delay. It is also not out of
place to mention here that the petitioner who appears to be an educated lady
argued the case herself. She was offered legal aid, but she refused. The State
Commission decided the case against the petitioner vide order dated 17.06.2008. She
has explained the delay in the following para in her affidavit:-“I had filed Writ Petition before the Hon’ble High Court of Kerala as W.P.(C) No.3147/2012 (P) against the order of the Kerala State Consumer Disputes Redressal Commission in Appeal No.623/2003 and 313/2004. The Hon’ble High Court of Kerala passed an order dated 20.09.2012 directing me to file Revision Petition before this Hon’ble National Commission within six weeks from 20.09.2012. It is submitted that I have filed Revision Petition before this Hon’ble National Commission within the
time granted by the Hon’ble High Court. Copy of the said order is produced herewith”.
The petitioner vehemently argued that in view of the order of the Hon’ble High Court,
the present case is within time.
2. All these arguments lack conviction. The Hon’ble High Court is not authorized to
condone the delay of four years which took place from 17.06.2008 to the filing of the
Writ Petition (C) No.3147/2012 (P). The order of the Hon’ble High Court is
conspicuously silent about the said four years. The petitioner has also failed to explain
the day-to-day delay in filing the revision petition. There is no provision under Consumer
Protection Act, 1986 wherein the petitioner is authorized to file the Writ Petition before
the Hon’ble High Court. In an authority reported in M/s. Advance Scientific
Equipment Ltd. & Anr. vs. West Bengal Pharma & Photochemical Development
Corporation Ltd., (Appeal (Civil) Nos.17068 - 17069/2010, decided on 9 July 2010)
wherein it observed inter alia, as under:-
“…… We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the court and the High Court ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”.
3. Furthermore, the Apex court in a recent authority reported in Cicily Kallarackal
Vs. Vehicle Factory, IV (2012) CPJ 1 (SC) 1, was pleased to hold as under :-“Despite this, we cannot help but to state in absolute terms that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution of India against the orders passed by the Commission, as a statutory appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986. Once the Legislature has provided for a statutory appeal to a higher court, it cannot be proper exercise of jurisdiction to permit the parties to bypass the statutory appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India. Even in the present case, the High Court has not exercised its jurisdiction in accordance with law. The case is one of the improper exercise of jurisdiction. It is not expected of us to deal with this issue at any greater length as we are dismissing this petition on other grounds”.
4. Even as per law, the petition is also not maintainable. The present case also does
not come with the ambit of Section 14 of the Limitation Act. The petitioner has failed to
prove that she was contesting the case anywhere, from 2008 to 2012. The case is
hopelessly barred by time.
5. In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Hon’ble Apex Court has held that it is also apposite to observe that
while deciding an application filed in such cases for condonation of delay, the Court has
to keep in mind that the special period of limitation has been prescribed under the
Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and
the object of expeditious adjudication of the consumer disputes will get defeated if this
Court was to entertain highly belated petitions filed against the orders of the Consumer
Foras.
6. Let us turn to the merits of this case. Ms.O.Ranjini, the petitioner was transacting
the business under the name and style of ‘Kerala Steels”, Taliparamba. She used to
take financial assistance from Syndicate Bank, Taliparamba, OP 1. She opened a
Savings Bank Account with OP1, on 27.11.1975. Her Savings Bank Account bore
No.10421 in the name of ‘M/s. Kerala Steels’. On 31.03.1978, she opened
another account having SB A/c No.34. The said account closed on
24.02.1987. Subsequently, another account was opened in the name of the
complainant with account No.829.
7. The grievance of the complainant is that the above said account No.829 of M/s.
Kerala Steels was opened without her consent or knowledge but it was opened at
the instance of her brother, Mr.O.C.Premarajan. She filed a case against
O.C.Premarajan as well in the original complaint. She being an unmarried lady, she
kept Mr.O.C.Premarajan, her brother, for looking after the day-to-day affairs of her
business. It is alleged that her brother Mr.O.C.Premarajan, while working in cahoots
with the Manager of Syndicate Bank, OP1, manipulated the account with said
OP. He effected so many withdrawals. O.C.Premarajan, OP2, has forged the
signatures of the complainant and OP1 failed to verify the signatures of the
complainant appearing on the cheques, produced by said O.C.Premarajan, OP2. Due
to the fraudulent and collusive acts of the OPs, the complainant suffered a huge loss
of more than Rs.5,00,000/-. However, she limited her claim to Rs.5,00,000/- only.
8. This is an admitted fact that subsequently she deleted the name of her brother
from the array of parties. There is no dispute that the complainant is the Sole
Proprietor of her business and she entrusted the day-to-day management of the said
business to her brother, O.C.Premarajan. The petition for deletion of his name was
filed by the complainant herself, for the reasons best known to the complainant.
9. The complainant did not produce any evidence showing that her
signatures were forged. She did not produce the Handwriting Expert’s evidence or
any other evidence to show that her signatures were forged. The entire case hinges
upon her sole testimony. She had no explanation as to why the name of the main
culprit, O.C.Premarajan, her brother, was deleted. Rather, it appears that she had
colluded with her brother, since deceased.
10. On the other hand, OP placed Ex.R-3, authority of letter executed by the
complainant authorizing Mr.O.C.Premarajan, to make, draw, accept, endorse and
negotiate otherwise sign any Hundies, Bills of Exchange and Promissory Notes or other
negotiable instruments to operate or overdraw on the above account with the Bank and
also to receive payment of all moneys due to the complainant and to acknowledge debt
or debts due from the complainant, etc. It also goes to show that the complainant had
authorized her brother to sign cheques on behalf of the complainant. The complainant
has denied having executed authority letter, Ex.R-3. She could not produce any
evidence to show that it was not executed by her, no Expert evidence was pressed into
service.
11. Moreover, the State Commission has observed that she had
herself, opened account No.829. It compared the specimen signatures placed at
Ex.R-2 & R-5, which go to show that she had herself opened an account with OP1 on
22.06.1992. All the necessary documents were proved on the record. The State
Commission rightly held that since the issues like forgery, fraud, misrepresentation
or collusion, are involved in this case, therefore, the civil court can decide these
questions, after opportunity to lead evidence, including the
Handwriting Expert’s evidence. It is, therefore, also noteworthy that no such
evidence was adduced before the fora below, by the complainant, who was to carry
the ball in proving this case. The case of the complainant must stand on its legs. Due
to lack of evidence, her case does not stand proved. The case is meritless and same
is, therefore, dismissed as barred by time, as well as on merits.
.…..…………………………J
(J. M. MALIK)
PRESIDING MEMBER
….…..…………………………
(DR.S.M.KANTIKAR)
MEMBER
dd/4
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 1188 OF 2013 (From order dated 31.12.2012 in Appeal No. 537 of 2011 of Chhattisgargh State Consumer
Disputes Redresdsal Commission, Raipur)
Sahdeo Ram S/o Late Shri Jirjodhan R/o Gontiapara, Near Panchayat Office Wadrafnagar, Thana Basantpur Post/Tah. Wadarfnagar, Dist. Surguja Chhattisgarh
………Petitioner Versus State Bank of India Through its Branch Manager, Branch Surajpur Dist. Surguja, Chhattisgarh
…… Respondent BEFORE:
HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBERHON’BLE MRS. REKHA GUPTA, MEMBER
For the Petitioner : Mr. Ashish Deep Verma, Advocate
Pronounced on: 20 th May, 2013 ORDER
PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER
Being aggrieved by order dated 31.12.2012, passed by Chhattisgarh State
Consumer Disputes Redressal Commission, Raipur (for short, ‘State Commission’)
petitioner/complainant has filed this revision petition.
2. Brief facts are that petitioner purchased a tractor & trolley which was financed by
Respondent/Opposite party in year 2004 and for which a loan account was opened. It is
stated that loan repayment was being done and as per the terms of loan agreement,
respondent had been insuring the tractor and trolley every year. It is further stated that
tractor and trolley met with an accident on 24.4.2010 resultantly the same got fully
burnt, whereby no physical loss was there. A report was made to the Police and
intimation was given to the respondent. Thereafter, petitioner filed claim with the
respondent. However, he was informed that insurance of the tractor and trolley for the
relevant period from 2009 to 2010 was not done by the respondent. It is alleged that
the act of respondent in not getting petitioner’s tractor and trolley insured, amounts to
deficiency in service. A survey was got done by registered Surveyor who assessed the
complete loss for Rs.3,65,000/-. Thereafter, petitioner filed a complaint before District
Consumer Disputes Redressal Forum, Sarguja-Ambikapur(for short, ‘District Forum’)
seeking direction to the respondent to pay compensation of Rs.3,65,000/- and not to
charge interest on his loan account for the period after 24.6.2010. Compensation
towards mental and physical harassment for Rs.50,000/- and interest @ 9% p.a. on the
total amount together with cost of litigation, was also sought.
3. Respondent in its written statement has stated that petitioner was not regular in
repayment of the loan installments due from 18.09.2007 and Rs.2,49,448.85 was
outstanding in his loan account. Hence, the loan account became “Bad Debt” which
came in the category of ‘Non Productive Account’ (for short, ‘N.P.A’). Thus, in
accordance with Bank Rules, insurance was not done thereafter. It is further stated that
petitioner was intimated to the effect that his loan account became N.P.A. So, as per
Bank Rules it was his duty to get the insurance done. As loan account became a bad
debt on 29.05.2010 so insurance for the relevant period from 2009 to 2010 was not
done by the respondent. Thus, petitioner has not come with clean hands, as such he is
not entitled for any compensation.
4. District Forum, vide order dated 30.8.2011 allowed the complaint and
passed following directions; “(i) Non-applicant will pay an amount of Rs.2,73,750/-
(Rupees two lac seventy three thousand seven hundred fifty only) to the complainant within 1 (one) month from the date of order and will pay simple interest @ 6% (six percent) from 16.11.2010 i.e. the date of institution of the dispute till the date of payment of entire amount.
ii) Non-applicant will pay to the complainant an amount of Rs.2,000/-(Rupees two thousand only) in respect of the physical and mental trouble and inconvenience suffered by the complainant.
iii) Non-applicant will bear its own expenses and Rs.1,000/-(Rupees one thousand only) towards expenses of the dispute of the complainant in which fee of the advocate has also been included.
iv) Complainant will give salvage of the vehicle Tractor No. CG 15A 3324 and trolley No.CG15A 3325 to the non-applicant within 1 (one) month from the date of the order and non-applicant bank can use/utilize the same”.
5. Being aggrieved, respondent filed an appeal before the State Commission which
allowed the same, vide impugned order and dismissed the complaint of the petitioner.
6. Hence, this revision petition.
7. We have heard the learned counsel for petitioner and gone through the record.
8. It is contended by learned counsel for the petitioner that as petitioner’s account
was converted into a ‘Non Productive Account’, thus respondent was under lawful duty
to continue or renew the insurance policy from 27.10.2009 to 26.10.2010 which was
never been done by it nor it was conveyed to the petitioner. Thus, there was severe
lapse on the part of the respondent, which amounts to breach of contract and deficiency
in service.
9. The State Commission in the impugned order observed ;“The only question to be decided is whether the appellant Bank was deficient in providing Banking service in not insuring the questioned tractor & trolley at the relevant time and could be held liable to pay compensation to the respondent/complainant for the loss caused to the questioned tractor & trolley due to accident?. Defence of the appellant bank is that it was the duty of the respondent/complainant to get his tractor & trolley insured and then to ply the same on road as per provisions of Motor Vehicle Act. Appellant bank had in initial few years got the tractor & trolley insured but since the respondent/complainant defaulted in repayment of loan installments so his loan account acquired states of ‘Bad Debt’ as such insurance was not done by it for the year 2009-2010 and more over it was not obligatory on its part to get the insurance of secured property under finance as per terms and conditions of the agreement. We find that condition no. 5 of the first schedule of Hypothecation Agreement (document no./2 at pages no. 60) stipulates as following:
“That the borrower(s) shall at all times keep such items of security as are of insurable nature, insured against loss or damage by fire and other risks as may be required by the bank and shall deliver to the Bank all such policies. It shall be also lawful for but not obligatory upon the bank to insure by debit to the borrower(s) account(s) in respect of the security as are of insurable nature. The proceeds of such insurance shall at the option of the bank either be applied towards replacement of the security or towards the satisfaction of the bank’s dues”.
Thus the position is clear that it was lawful but not obligatory upon the appellant bank to insure the financed tractor & trolley by debiting the borrower’s account. Appellant bank had in initial few years continued to insure the questioned tractor & trolley so long the respondent/ complainant was regular in repayment of loan installments but when he defaulted in repayment of further loan installments, it stopped to insure the questioned tractor & trolley. As per settled law position, the terms & conditions of the
contract are binding on the respondent/complainant so if the appellant bank did not insure the questioned tractor & trolley then it can not be held to have committed deficiency in service in terms of loan agreement. Otherwise also the respondent/ complainant being the owner of the questioned tractor & trolley had the primary duty to insure that the questioned tractor & trolley were properly insured since he could not ply the same on road without being insured. The respondent/ complainant, as per version of the appellant bank, supported by affidavit dated 24.08.2012 of Shri Ved Parkash Agrawal its Branch Manager, had been in default in repayment of loan installments as such he owed overdue amount to the appellant bank so should not have expected insurance of the questioned tractor & Trolley to be done by the appellant Bank. Respondent/ complainant did neither mention in his complaint about his defaulting conduct in regular repayment of loan installments in terms of loan agreement nor by way of affidavit in rebuttal of the version of the appellant bank. When debit balance of the respondent/complainant started growing due to defaults in loan repayment of installments then appellant Bank as per trade norms was not expected to enhance further debit in his loan account by insuring the financed vehicle further. In case of default in repayment of loan installments, obviously it was the duty of the respondent/complainant to get his tractor and trolley insured and not to shift his financial burden over the appellant Bank. The respondent/ complainant was very well aware of his defaulting status, so there was no necessity of the appellant Bank to give a notice about further insurance to the respondent/ complainant. Respondent/ complainant being owner of questioned tractor & trolley ought to have taken steps to renew insurance after its expiry i.e.26.10.2009 (document no.A-5) but he continued to be negligent about the same for a further period of about 8 months till occurrence of the accident of questioned vehicle on 04.06.2010, so he cannot derive benefit of his own neglectful conduct. If the appellant bank had done earlier insurance on behalf of the respondent/ complainant then it was just to safeguard mutual interest against unforeseen event but only so long repayment of loan installments were regularly received but it was not obligatory on its part. Learned District Forum has drawn an erroneous conclusion in its impugned order about holding the appellant Bank of having committed deficiency in service and directing it to pay compensation as has been awarded therein. In the facts of the case and foregoing discussion, the appeal finds substance to succeed therefore, it is allowed. The impugned order of learned District Forum, being not
sustainable, is set aside and the complaint of the complainant is also dismissed. No order as to cost”.
11. As per averments made in the complainant, petitioner has simply stated that he
has been paying the installments of the loan on time to time basis. However, petitioner
has nowhere stated as to for which period he had paid the installments and what was
the number of installments due at the time of filing of the complaint.
12. On the other hand, defence of the respondent is that petitioner was not paying
installments on time and as such his loan account became debt and a sum of
Rs.2,49,448.45P are due from the petitioner.
13. Petitioner has approached the District Forum by concealing the material facts
with regard to the loan amount due against him on the date of filing of the complaint.
Since, petitioner is a defaulter in this case, the respondent was not obliged to renew his
insurance policy. Moreover, a defaulter cannot get any discretionary relief and for its
own fault, petitioner can not shift burden upon the respondent.
14. In our view, the order of the State Commission cannot be termed as erroneous as
the same is based on correct analysis of the facts and evidence produced in this case.
Consequently, we do no find any infirmity or ambiguity in the impugned order passed by
the State Commission. Present revision being without any legal basis and having no
merit is hereby dismissed.
15. No order as to cost. ……..……………………J
(V.B. GUPTA)
( PRESIDING MEMBER)
……………………………
(REKHA GUPTA)
MEMBER
SSB
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 1993 of 2012
(From the order dated 26.09.2011 in Appeals No.1297 & 3952 of 2010 Karnataka State Consumer Disputes Redressal Commission, Bangalore)
T.S. Muthukrishnan 166, 1st Floor, 8th Cross, II Stage, Indira Nagar, Bangalore 560038
… Petitioner/complainant
Versus1. The Branch Manager Indian Overseas Bank Indira Nagar Branch, C.M.H. Road, Indira Nagar, Bangalore – 560038
2. Managing Director United India Insurance Co. Ltd. 24, Whites Road, Chennai – 600014
… Respondents/Opp. Parties (OP)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
For the Petitioner : Ms. Neena Singh, Advocate
PRONOUNCED ON 21 st May, 2013
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
This revision petition has been filed by the Petitioner/Complainant against the
impugned order dated 26.9.2011 passed by the Karnataka State Consumer Disputes
Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No.
1297 of 2010 – The MD, United India Ins. Co. Ltd. Vs. T.S. Muthukrishana & Anr. and
in Appeal No. 3952 of 2010 – T.S. Muthukrishana Vs. Branch Manager, Indian
Overseas Bank & Anr. by which, while dismissing appeals, order passed by District
Forum allowing complaint partly was upheld.
2. Brief facts of the case are that Petitioner/Complainant purchased an Indian
Overseas Bank Health Care Plus Policy on 1.9.2005 from OP No.1/Respondent
No.1. Subsequently, the said policy was renewed from OP No.1/Respondent No.1, but
OP changed three insurance companies in 4 years. Complainant’s wife suffered a
fracture in the spinal cord and when the complainant approached hospital, he was
denied cashless service by the third party administrator on the ground that policy is
“very fresh”. It was further alleged that OP repudiated claim. Complainant alleging
deficiency on the part of OPs filed complaint before District Forum. OPs contested
complaint and submitted that complainant failed to establish deficiency in service on
their part; hence, complaint be dismissed. Learned District Forum after hearing both the
parties allowed complaint partly and directed OP No. 1 to pay compensation of
Rs.10,000/- and directed OP No. 2 to pay compensation of Rs.1,00,000/- and
Rs.5,000/- as litigation expenses. It was further observed that complainant can claim
reimbursement of medical expenses as per policy, terms and conditions and it cannot
be considered in this complaint. Both parties filed appeal before learned State
Commission and learned State Commission vide impugned order dismissed both the
appeals against which, the petitioner has filed this revision petition.
3. Heard learned Counsel for the petitioner at admission stage and perused record.
4. Complainant under complaint prayed for awarding Rs.5,00,000/- for
reimbursement of hospitalization and post hospitalization expenses and Rs.3,00,000/-
from each of the OPs as compensation on account of mental agony and Rs.20,000/- as
cost of the proceedings. Learned District Forum awarded Rs.1,10,000/- as
compensation on account of mental agony and Rs.5,000/- as cost of the proceedings
and further observed that claim of reimbursement of medical expenses cannot be
considered in this complaint.
5. Learned Counsel for the petitioner submitted that learned District Forum has
committed error in allowing only Rs.1,10,000/- as compensation and learned State
Commission has committed error in dismissing appeal for enhancement of
compensation; hence, revision petition be admitted.
6. As observed earlier, learned District forum has not considered claim for
reimbursement of medical expenses, as claim for medical reimbursement has not been
repudiated by OP No. 2/Respondent No.2. In such circumstances, award of
Rs.1,10,000/- as compensation cannot be said to be award on lower side. There is no
justification to enhance quantum of compensation. Learned State Commission has not
committed any error in dismissing appeal for enhancement of compensation.
7. We do not find any illegality, impropriety or jurisdictional error in the impugned
order, which calls for any interference and revision petition is liable to be dismissed.
8. Consequently, revision petition filed by the petitioner is dismissed at admission
stage with no order as to costs ..………………Sd/-……………
( K.S. CHAUDHARI, J)
PRESIDING MEMBER
..………………Sd/-……………
( DR. B.C. GUPTA )
MEMBERk
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
CONSUMER COMPLAINT NO. 172 OF 2012
Rakesh Bhartia S/o Sh. Chand Mall Bhartia R/o S-5, Panchsheel Park, New Delhi
… Complainant
Versus
HDFC Bank Ltd D-965, New Friends Colony, New Delhi
…Opp.party
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE DR. S.M. KANTIKAR, MEMBER
For the Complainant : Sh. Vijay C. Joshi, Advocate
For the Opp.party : Sh. Rishab Raj Jain, Advocate
PRONOUNCED ON 23.05.2013
ORDER
JUSTICE J.M. MALIK
1. In this complaint case, Sh. Rakesh Bhartia, the complainant has claimed a sum of
Rs.5,00,00,000/- (Rupees five crores only) form HDFC Bank Ltd., OP, as
compensation for mental agony, loss of reputation, torture, harassment, etc., for
deficiency in services because the HDFC Bank Ltd/OP had freezed all the joint
accounts held by the complainant.
`
2. The complainant is a Chief Executive Officer of a large size Public
Limited Company, having a turnover of more than INR 2500 crores and 1300 human
beings consisting of Engineers and Professionals of various fields are working under
him. The complainant maintains a Savings Bank A/c with HDFC Bank, New Friends
Colony, New Delhi, OP. His Account No. is 00011050068579. He also maintains 7 or
8 joint accounts with the members of his family in the HDFC Bank Ltd., New Friends
Colony, New Delhi.
3. The Income Tax Department issued notice under Section 226(3) of the Income
Tax Act, 1961 instructing the OP to remit a sum of INR.1,03,22,548/- from the single
name account on 21.04.2011. On 21.10.2011, the Income Tax Department again
issued another notice under Section 226(3) of the Income Tax Act, 1961, directing the
Bank to attach the A/c No.00891930002490, another account, as a measure of recovery
of income tax dues. The bank had remitted INR 98,135.49. The OP informed the
complainant that in compliance of the notice dated 21.10.2011 under Section 226(3) of
Income Tax Act, 1961, INR.1,55,047.06 had been remitted from the said account.
4. The complainant was also informed that the funds available in Bank Account
Nos. 00891600004455, 00891930002817, 00891930002827, 02481930005871,
02481930005881, 02481930005898, 02481930005916 & 02482070000189, which
belong to other family members of the complainant jointly with him, he being the
second holder, would remain under a “No Debit” status, as for, full amount
required was paid or after the receipt of the revocation order. The Bank accounts of
the family members were also attached.
5. The complainant vide e-mail dated 16.11.2011, questioned the authority of the
Manager, regarding freezing the account when the same were not covered under the
Income Tax notice. The OP refused to defreeze the account. Since no remedial steps
were taken by the OP despite various correspondence, therefore, the banking
Ombudsman was approached. The Ombudsman informed that the said dispute was
not within the ambit of banking Ombudsman Scheme, 2006. The matter was
also reported to the Governor, RBI, higher authorities of the Bank and ultimately, this
complaint was filed with the following prayers:-
“PRAYER:
It is therefore, most respectfully prayed that this Hon’ble Forum may kindly be pleased to pass:-
a. an order thereby directing the opposite party to pay a sum of Rs.5,00,00,000/- (Rupees five crores) to the complainant as
compensation for mental agony, loss of reputation, torture, harassment, etc., for deficiency in services;
b. an order thereby directing the opposite party to pay a sum of Rs.20,000/- to the complainant as cost of litigation;
c. any other or further order which this Hon’ble Court deems fit and proper under the facts and circumstances of the case in favour of the complainant and against the opposite party”.
6. We have heard the counsel for the parties. The learned counsel for the
complainant vehemently argued that the above said unauthorized act on the part of the
OP has caused lot of mental agony and anguish coupled with harassment, monetary
and loss of reputation. He explained that under these circumstances, the
complaint should be admitted. It was also pointed out that the order passed
by the Income Tax Authorities to recover the amount had been reversed by the
Appellate authority. The accounts of the complainant have defreezed. It is
contended that the complainant was harassed for no fault on his part.
7. On the other hand, a copy notice issued under Section 226(3) of the Income Tax
Act, 1961, has been placed on file. Its relevant para reads, as under:-
“…….. The account will remain under a “no debit” status until the full amount required as per the notice is paid or the receipt of the revocation order. Further, we have also marked No debit in your below other A/c Nos. 00891600004455/ 00891930002817/00891930002827/02481930005871/02481930005881/02481930005898/02481930005916/02482070000189,
Which are all joint A/cs, irrespective of mode of operation. Request you to submit affidavit regarding the proportion of joint holding. In absence of same, 50% of the amount standing to the credit of the A/c’s shall be paid.
Kindly revert with a stay order or a revocation order from the appropriate authority against the aforesaid notice within 24 hours to make the account fully operational”.
8. The counsel for OP has produced another copy of notice issued by the Income
Tax Department, under Section 226(3) of the Income Tax Act, 1961, dated 21.10.2011
addressed to the Bank Manager, with a copy to Rakesh Bhartia, the complainant. Its
relevant extracts are reproduced, as under:-
“A sum of Rs.1,02,24,710/- is due from Rakesh Bhartia (assesse) on account of Income-tax/penalty/interest/fine. You are hereby required under Section 226(3) of the Income Tax Act, 1961, to pay to me forthwith….. any amount due from you to or, held by you, for or on account of the said assesse for the amount of arrears shown above.
I also request you to pay any money which may subsequently become due from … him/them or which you may subsequently hold for or on account of him/them for the amount of arrears still remaining unpaid, forthwith on the money becoming …. or being held by you as aforesaid.
Any payment made by you in compliance with this notice is, in law, deemed to have been made under the authority of the said assesse and my receipt will constitute a good and sufficient discharge of your liability to the person to the extent of the amount referred to in the receipt.
Please note that if you discharge any liability to the assesse, after receipt of notice, you will be personally liable to me as Assessing Officer/Tax Recovery Officer, to the extent of the liability discharged, or to the extent of the liability of the assessed tax/penalty/interest/fine referred to in the preceding para, whichever is less.
Further, if you fail to make payment in pursuance of this notice, you shall be deemed to be an assesse in default in respect of the amount specified on this day and further proceeding may be taken against you for the realization of the amount if it were an arrear of tax due from you in the manner provided in Section 222 to 226 of the Income Tax Act, 1961 and this notice shall have the same effect as an attachment of a debt under Section 222 of the said Act”.
9. This clearly goes to show that the Bank was given bottomless
powers to attach all the money belonging to the complainant. The
joint accounts are covered by this clause. The Bank obeyed the orders of the Income
Tax authority. The fault, if any, lies at the door of the Income Tax Department, the Bank
cannot afford to disobey the orders of the Income Tax Department. It is also strange to
note that Income Tax Department was not made a party in this complaint case.
10. In view of the discussion, we find that OP has not committed any mistake. It has
just followed the orders of the Income Tax
Department. Consumer complaint is devoid of merit and, therefore, the same is
dismissed. No costs.
.....…………………..………J
(J.M. MALIK)
PRESIDING MEMBER
.....……………….……………
(DR.S.M. KANTIKAR)
MEMBER
Dd/14
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI
REVISION PETITION NO. 2060 OF 2012
(From the order dated 03.02.2012 in First Appeal No. 1297/2010 of Haryana State Consumer Disputes Redressal Commission)
Canara Bank Palwal Branch Agra Chowk, Palwal District Faridabad, Haryana Through R.M. Soni, Sr. Manager
... Petitioner
Versus
1. Deep Chand s/o Potu Singh r/o Village Jodhpur Teh. Palwal, District Faridabad, Haryana
2. Lal Chand, s/o Bahora r/o Village Aurangabad, Tehsil Hodel, District Faridabad, Haryana
3. The New India Insurance Co. Ltd. Through its Divisional Manager Divisional Office, Faridabad Haryana
… Respondent(s)
BEFORE
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
PRESIDING MEMBER
HON’BLE DR. B.C. GUPTA, MEMBER
APPEARED AT THE TIME OF ARGUMENTS
For Petitioner(s) Mr. Vijay Kumar, Advocate
For Respondent1&2 Mr. M. Mohan, Advocate
Mr. Ankit Gupta, Advocate
For Respondent-3 Mr. R.B. Shami, Advocate
PRONOUNCED ON : 31 st MAY 2013 O R D E R
PER DR. B.C. GUPTA, MEMBER
This revision petition has been filed under section 21(b) of the Consumer
Protection Act, 1986 against the impugned order dated 03.02.2012 passed by the
Haryana State Consumer Disputes Redressal Commission (for short ‘the State
Commission’) in FA No. 1297/2010,Canara Bank versus Deep Chand & Ors.” vide
which, while dismissing the appeal, the order dated 02.06.2010 passed by District
Consumer Disputes Redressal Forum, allowing the complaint filed by the
respondents/complainants, Deep Chand and Lal Chand, was upheld.
2. Brief facts of the case are that both the complainants/respondents nos. 1 & 2 Deep
Chand & Lal Chand applied for a loan for purchase of a tractor in the year 1994 which
was sanctioned by petitioner/OP No. 1 Canara Bank for a sum of Rs.1,80,000/-. A
hypothecation/hire-purchase agreement was also executed in respect of the said tractor
between the complainants and the petitioner/OP No.1. As stated by the complainants, it
was agreed between the parties that the tractor would be got insured by the
petitioner/OP No.1 from time to time and the amount of premium payable to the
insurance company would be debited to the account of the complainants. The tractor
was got insured at the time of purchase with respondent no.3/OP No.2 in December
1994. Thereafter, the insurance policy was renewed for another year and was
valid upto 4.12.96. The complainants have alleged that the petitioner failed to get the
insurance policy renewed for a further period and in the meantime, the tractor met with
an accident. At the time of settlement of motor accident claim, an amount of Rs.2.65
lakh had to be paid by the complainants, because the insurance company refused to
make payment in the absence of a valid insurance policy. It has also been stated that
for further period before December 1996, the insurance was again got made by the
petitioner. The complainants then filed consumer complaint before the District Forum
alleging deficiency in service on the part of the petitioner and demanding a total sum of
Rs.3 lakh with interest @12% p.a. as damages/compensation. The District Forum vide
order dated 02.06.2010 directed the present petitioner to pay a sum of Rs.2.65 lakh
along with interest @9% p.a. from the date of complaint till the date of payment. The
petitioner was also directed to pay a sum of Rs.2200/- as litigation expenses to the
complainants. An appeal filed against this order was dismissed by the State
Commission on grounds of limitation as well as on merits. It is against this order that
the present petition has been filed.
3. While arguing the case, the learned counsel for the petitioner Canara Bank has
drawn our attention to a document with the title ‘Memorandum of Agreement for
agricultural loans’ which was signed on 30.11.94 between the two complainants and the
petitioner Bank. It has been stated in para 21 of this document that it was the duty of
the borrower to take comprehensive insurance cover in respect of the said tractor. The
learned counsel argued that if the party authorises the Bank to take insurance cover,
then it becomes the duty of the Bank to get that cover. In the instant case, there was no
deficiency in service on the part of the petitioner as the obligation to take insurance
cover was upon the complainants.
4. Learned counsel for the respondents argued that the State Commission had rightly
dismissed the appeal of the petitioner on grounds of limitation as well as on
merits. There was a delay of 68 days in filing the appeal before the State Commission
and it was explained that since the parents of the counsel for the petitioner before the
District Forum were sick, he could not communicate the order of the District Forum to
his client. The ground for condonation of delay was not found to be sufficient by the
State Commission. Further, it was clear from the facts of the case that the Bank had
obtained the insurance policy in the beginning and got it renewed for one more
year. However, the Bank could not renew the policy for the year 1996 – 1997 but in
subsequent years, the Bank has been getting the policy renewed and charging the
premium to the account of the complainants. There was deficiency on the part of the
Bank and insurance company because they had not intimated to the complainant that
insurance policy had not been renewed. Only because of the negligence of the
petitioner Bank, the complainants had to pay the amount of motor accident claim of
Rs.2.65 lakh. There was, therefore, no infirmity in the orders passed by the State
Commission and District Forum and the same should be upheld.
5. The learned counsel for the respondent insurance company stated that since there
was no insurance policy for the period, in question, the company was not liable to pay
any compensation in the matter. 6. In reply, the learned counsel for the petitioner stated that the delay of 68 days in
filing the appeal before the State Commission should have been condoned looking at
the facts and circumstances of the case. Before the District Forum, the petitioner Bank
was represented by Sh. Atul Mangla, Advocate, who was present at the time of
pronouncement of order. However, the said Advocate could not convey the order to his
client, because he was in great personal difficulty because both of his parents were
admitted in the hospital at the same time for serious illness. Shri Mangla has filed an
affidavit in this behalf and also stated these facts in his letter dated 21.08.2010 to the
petitioner. Regarding the illness of his parents, copies of medical record have been
placed on file which indicates that the parents of Shri Mangla had to be taken to
different hospitals for treatment. The State Commission should, therefore, have
condoned the delay in filing the appeal before it.
7. We have examined the entire material on record and given a thoughtful
consideration to the arguments advanced before us. In so far as the delay in filing the
appeal by the petitioner before the State Commission is concerned, the material on
record makes it clear that the parents of the counsel for petitioner Bank before the
District Forum were seriously ill and hence, the reasons explained for delay in
communicating the order of the District Forum by the Advocate to his client are
convincing. The State Commission should have condoned the delay in filing the appeal
before it.
8. The main issue involved in the present case is regarding the obligation for taking
the insurance policy for the vehicle in question. It is true that as a matter of practice, the
insurance policy was obtained by the Bank and the premium was charged to the
account of the complainants. Barring period of one year, i.e., 1996-1997 during which
the accident took place, the Bank has been obtaining the policy from the insurance
company. The reasons for non-action on the part of the Bank for the year 1996-1997
have not been explained. However, from a strict legal point of view, the picture is clear
that the owner of the vehicle is duty bound to take the policy and unless he authorises
the bank in writing, the bank is under no obligation to take policy on his behalf. The
clause 21 in the hypothecation agreement also makes it clear that it was the duty of the
owner to get the insurance policy. We, therefore, find weight in the contention raised by
the petitioner that he was not duty bound to take the insurance policy on his behalf and
hence, there is no question of deficiency in service on the part of the petitioner.
9. Based on the discussion above, we find that this revision petition deserves to be
accepted because the orders passed by the State Commission and the District Forum
do not stand the test of legal scrutiny. We, therefore, order accordingly. The revision
petition is accepted and the orders passed by the State Commission and the District
Forum set aside, with no order as to costs.
..……………………………
(K.S. CHAUDHARI J.)
PRESIDING MEMBER
..……………………………
(DR. B.C. GUPTA)
MEMBERRS/