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NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHICONSUMER COMPLAINT NO. 99 OF 2013

WITH

INTERIM APPLICATION NO. 2693 OF 2013

1. M/s Ashiana Inn Limited A body corporate, having its Registered Office at Village Dhakoli, Tehsil Dearabassi, District, Mohali through its Managing Director Shri Avtar Singh 2. Shri Avtar Singh s/o Shri Sarwan Singh r/o 1843, Sector 21, Panchkula, Haryana

........ Complainants

Vs.

Punjab & Sind Bank, IFB, Bank Square, Sector 17-B, Chandigarh Through its Branch Manager......... Opposite Party

BEFORE:

HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

For the Complainants : Mr. Madhurendra Kumar, Advocate Alongwith Mr.I.S.Ratta, Advocate PRONOUNCED ON : 05 th JULY, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

M/s Ashiana Inn Ltd. through its Managing Director Shri Avtar Singh has preferred this

complaint under section 21 r/w section 12 of the Consumer Protection Act, 1986 ( in short, ‘the

Act’) against M/s Punjab & Sind Bank, IFB Bank Square, Sector 17-B, Chandigarh claiming

deficiency on the part of the opposite party in relation to the release and sanction of the bank

loan for the upcoming hotel project of the complainant with the following prayer:

“i. To direct the bank to immediately release Rs. 25.00 crores.

ii. to direct the bank to convert the overdue amount into FITL.

iii. the opposite party to pay damages on account of mental agony etc. Rs.90.00 crores

iv. the opposite party to pay costs of the complaint of Rs.2.00 lac.

v. any other, additional or alternative relief as deemed fit and proper in the fact and circumstances of the case”.

2. The break-up of the damages of the Rs.90.00 crores claimed by the complainant given

in para 50 of the complaint reads thus:

(Amount in Rs.)

Extra Interest liability on Bank borrowings for a period of last three years 15.00 crores

Extra interest liability on borrowings from other sources for a period of three years 10.00 croresLoss of income from the Hotel for the period of last three years i.e. Rs.10.00crores each year

30.00 crores

Loss of reputation30.00 crores

Mental torture and physical discomfort15.00 crores

Total Rs. 90.00 crores

3. Shri Madhurendra Kumar, learned counsel for the complainant in his written and oral

submissions has contended that the respondent bank is engaged in the business of providing

service to the general public for consideration. As such, it being the service provider, the bank is

amenable to the jurisdiction of the consumer fora. In support of this contention, learned counsel

has drawn our attention to the definition of ‘service’ as provided in section 2 (1) (O) of the

Act. Learned counsel for the complainant has taken us through the definition of “consumer” as

defined under section 2 (1) (d) of the Act and contended that since the complainant has hired the

banking services of the opposite party, he squarely falls within the definition of “consumer”. He

contended that amendment of definition of “consumer” which excludes the person who avails

service for commercial purpose is not applicable in this case for the reason that although the loan

transaction between the complainant and opposite party is a commercial transaction but the

services availed are not for commercial purpose. Learned counsel contended that the building of

the proposed hotel project is not yet complete or functional, therefore, at this stage, it cannot be

said that the building in question would be used for commercial purpose because the user of the

building is dependent upon various permissions and licences from the authorities. In support of

his contention, learned counsel for the complainant has relied upon several judgments of the

Apex Court and the National Commission particularly in the cases of Karnataka Power

Transmission Vs. Ashok Iron Works Pvt. Ltd. AIR 2009 SC 1905 being Civil Appeal

No. 1879 of 2003 , Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi (2000) 1

SCC 98, Chandigarh Housing Board Vs. Avtar Singh & Ors. AIR 2011 SC

130, Lucknow Development Authority Vs.M.K.Gupta (1994) 1 SCC 243 , Harsolia Motors Vs.

National Insurance Co. Ltd. 1 (2005) CPJ 27 (NC) and also the decision of this Commission

dated 18.08.2011 in the matter of HUDA Vs. M/s Suneja & Sons in RP No. 2951 of 2009 .

4. We have considered the submissions made by learned counsel for the complainants and

perused the record. The answer to the issue of maintainability of the instant complaint would

depend upon the fact whether or not the complainants are covered within the definition of

“complainants” given in section 2 (1) (b) of the Act which is reproduced thus:

“complainant” means-

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 ( 1 of 1956) or under any other law for the time being in force; or

(iii) the Central Government or any State Government ; or

(iv) one or more consumers, where there are numerous consumers having the same interest;

(v) in case of death of a consumer, his legal heir or representative; who or which makes a complaint”.

5. The complainants claim that they are covered under clause (i) of Section 2 (b) of the Act.

Thus it is to be seen whether or not the complainants fall within the definition of

“consumer”. The term “consumer” is defined under section 2 (1) (d) of the Act. Section 2 (1)

(d) (i) deals with the definition of “consumer” in relation to the person who buys any good or

consideration. Section 2 (1) (d) (ii) deals with the definition of “consumer” in relation to a

person who hires or avails of services for consideration since this is a case relating to alleged

deficiency in service. The definition of “consumer” as provided in section 2 (1) (d) (ii) is

relevant which is reproduced thus:

“consumer” means any person who -

(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 purpose;

Explanation.—For the purposes of sub-clause (i), ‘commercial purpose’ does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.

6. Before dwelling upon the above noted definition of “consumer”, we may note that the

definition of “consumer” was amended by Act 62 of 2002, Section 2 w.e.f. 15.03.2003. By this

amendment, the legislature in its own wisdom restricted the scope of the definition of

“consumer” by adding the words “but does not include a person who avails of such services for

any commercial purpose”. This implies that a person who avails of services for consideration for

any commercial purpose shall not be covered under the definition of “consumer” and as such,

such persons would not be entitled to maintain a complaint under the Act in view of Section 2 (1)

(b) of the Act. We are conscious of the fact that explanation to section 2 (1) (d) of the Act

provides that for the purpose of section 2 (1) (d), “commercial purpose” does not include the

services availed by the person exclusively for the purpose of earning his livelihood by means of

self-employment. Above-noted explanation restricting the scope of commercial purpose is of no

avail to the complainant because complainant no.1 is a body corporate and not a natural person

who needs to indulge in some activity to earn his livelihood.

7. In the light of the above analysis of the relevant provisions of the Act, we now proceed to

analyse the complaint to find out whether or not the complainants fall within the definition of

“consumer” reproduced above. On perusal of the complaint, it is evident that loan facility was

availed of by the complainants to finance their commercial project to construct and run a three

star hotel ‘Marc Royale’. Therefore, it is obvious that the so called services which are claimed to

be deficient were availed by the complainant for commercial purpose i.e. running a hotel for

earning profits.

8. Learned counsel for the complainant has made a valiant effort to make a distinction

between the commercial transaction and commercial purpose referred to in the definition of

consumer. He has contended that although the nature of loan transaction between the

complainants and the opposite party is commercial but the loan sanctioned by the opposite party

cannot be termed as loan for any commercial purpose. We do not find any merit in this

contention in view of the allegations made in the complaint. Otherwise also, perusal of para 50

of the complaint would show that the complainants have sought compensation of

Rs.30.00 crores for loss of income for three years because of deficiency in service by the

opposite party and also Rs. 30.00 crores for loss of reputation. From the fact that the claimants

are seeking compensation for loss of income for a period of three years because of non

completion of project as a consequence of deficiency in service of the opposite party, it is clear

that the loan in question was taken for commercial purpose. That being the case, the only

conclusion which can be derived on reading of the complaint is that the complainants had availed

the services of the opposite party bank for a commercial purpose i.e. construction of hotel for

earning profit. Thus, in our view, the complainants are not covered under the definition of

“consumer” as defined under section 2 (1) (d) (ii) of the Act. As such, the complaint is not

maintainable before the consumer fora.

9. Judgments of the Supreme Court in the matters of Karnataka Power Transmission Vs.

Ashok Iron Works Pvt. Ltd. (supra), Regional Provident Fund Commissioner Vs. Shiv Kumar

Joshi (supra), Lucknow Development Authority Vs. M.K.Gupta (supra) are of no avail to the

complainant because aforesaid judgments relate to the cases pertaining to the period prior to the

amendment of definition of “consumer” which included the persons availing or hiring services

for commercial purpose also. Even the other judgments relied upon by the complainants are of

no avail to them for the reason that those judgments have been given in different context based

upon the peculiar facts of said case. In the instant case, as discussed above, it is evident from the

allegations in the complaint that the complainants have availed of the alleged services for purely

commercial purpose. As such, complainants are not covered under the amended definition of

“consumer”.

10. The result of above discussion is that the complainants herein are not covered under the

definition of “consumer” as defined under section 2 (1) (d) (ii) of the Act. As such they are not

entitled to maintain a consumer complaint in view of section 2 (1) (b) of the Act. Complaint is,

therefore, rejected as not maintainable.

Sd/- …..………………………….

(AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

Sd/-

…………………………… (SURESH CHANDRA) MEMBERAm/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2945 OF 2012

(Against the order dated 17.05.2012 in First Appeal No. 1518/2009 of the State Commission Haryana, Panchkula)

Rahul Electricals, Shop No.1379, Railway Road Rohtak-124001, HaryanaThrough its Proprietor Sh.Kulbhushan

........ Petitioner

Vs.

1. State Bank of India Hissar Road Branch, Hissar Road, Rohtak Through its Manager 2. The Oriental Insurance Company Ltd. Through its Divisional Manager,Rohtak 124001, Haryana ......... Respondents

BEFORE:



For the Petitioner : Mr.Shekhar Raj Sharma, Advocate

For the Respondent No.1 : Mr.U.C.Mittal, Advocate

For the Respondent No.2 : Mr.Manish Pratap, Advocate Alongwith Mr.Ajay Singh, Advocate

PRONOUNCED ON : 05 th JULY, 2013

ORDER


This revision is directed against the order dated 17.05.2012 passed by State Consumer

Disputes Redressal Commission Haryana ( in short, ‘the State Commission’) dismissing the

appeal preferred by the petitioner / complainant against the order of the District Consumer

Forum Rohtak dismissing the complaint.

2. Briefly put relevant facts for the disposal of this revision petition are that M/s Rahul

Electricals filed a complaint under section 12 of the Consumer Protection Act against the

respondents State Bank of India as also the Oriental Insurance Company Limited claiming that

the complainant was engaged in the business of electrical goods. Complainant had obtained a

cash credit limit of Rs.3 lakhs from the respondent / bank against the hypothecation of the

stock. It is the case of the complainant that as per the agreement, the stock of the complainant

was required to be insured and the opposite party / bank had agreed to get the stock insured on

behalf of the complainant and debit the insurance premium to the cash credit account of the

complainant. Pursuant to the agreement, the opposite party / bank had been getting the stock

insured with the insurance company and the last insurance was for the period w.e.f. 25 th May

2006 to 24th May, 2007. It is alleged in the complaint that after 24th May, 2007, the opposite

party / bank failed to renew the insurance. Unfortunately on 30.05.2007 the shop of the

complainant caught fire due to electrical spark and the entire stock was destroyed. The complaint

in this regard was lodged at PS Rohtak City vide DD No.46 dated 31.05.2007. The complainant

approached the opposite party / bank to disclose the name of the insurance company with whom

he had got the stock insured. The opposite party bank after evading the issue for sometime,

ultimately replied that as per the agreement, the insurance was to be got done by the complainant

himself. Claimant alleging the failure of the bank to renew the insurance of the stock as

deficiency in service filed complaint before the District Forum claiming compensation of

Rs.6,27, 870/- on account of loss suffered due to fire accident besides Rs.2,00,000/- on account

of mental pain and agony. The complainant also sought direction to the opposite party bank to

stop charging interest on the over draft w.e.f. 25.05.2007.

3. The opposite party bank contested the complaint and took the plea that stock hypothecated

with the bank were to be insured comprehensively for the market value by the complainant in

joint names of the bank and the complainant. It was alleged that the opposite party bank never

got the goods insured and it was for the complainant to get the goods insured at his own

responsibility. The bank also denied that stock worth Rs.6,27,870/- was destroyed. Thus, it was

pleaded that there was no deficiency on the part of the bank.

4. OP No.2 took the plea that it was neither necessary nor proper party because on the date of

fire accident, the stock of the complainant was not insured with the insurance company.

5. Sole controversy which needs determination in this revision petition is whether or not as

per the terms of agreement between the parties, respondent / bank was under obligation to get the

stock available at the shop of the complainant / petitioner insured?. If answer to this question is

in the affirmative, then of-course, the respondent / bank has been deficient in providing service

to the petitioner / complainant.

6. Shri Shekhar Raj Sharma, Advocate, learned counsel for the complainant/ petitioner has

contended that impugned orders of the fora below are not sustainable as the orders are based

upon incorrect appreciation of the evidence. It is argued that both the foras below have failed to

appreciate that as per the agreement between the parties, opposite party no.1 / bank was under

obligation to get the stock lying in the shop of the petitioner insured on behalf of the petitioner /

complainant and debit the insurance premium amount to his cash credit account. It is contended

that this obligation is admitted by the opposite party / bank in para 2 (c ) and ( e) of their written

statement filed in response to the complaint in the District Forum. Learned counsel for the

petitioner has also drawn our attention to the copies of the statement of accounts pertaining to

cash credit account of the complainant for the periods 01.04.2006 to 31.12.2006 and 21.07.2006

to 31.05.2007 wherein there are debit entries pertaining to the insurance premium for the

insurance of stock lying in the premises of the petitioner. It is contended that impugned orders

have been passed ignoring the aforesaid evidence. Therefore, those are liable to be set aside.

7. On careful perusal of the record, we find both that both the District Forum as well as State

Commission has based their finding on interpretation of Clause V of the hypothecation

agreement which reads thus:

“That the said goods shall be kept by the Borrower (s) in good condition at his / their risk and expense. Further, when required by the Bank all goods the subject of this agreement shall be insured against fire by the Borrower(s) at his / their expense in the joint names of the Borrower(s) and the Bank in some Insurance Office approved by the Bank to the extent of atleast 10 percent in excess of the amount advanced by the Bank against them and that the Insurance Policy (ies) shall be delivered to and held by the Bank, if the Borrower(s) fail(s) to effect such Insurance on being asked in writing to do so, the bank may insure the said goods against fire in such joint names and debit the premium and other charges to such account as aforesaid and in the event of the Bank being at any time apprehensive that the safety of the goods is likely to be endangered owing to not or strike, it shall on failure by the Borrower(s) to do so after request by the Bank at its discretion itself insure the same in such joint names against any damage arising therefrom the cost of such extra insurance being payable by the borrower(s) and being debited to such account as aforesaid, the Borrower(s) expressly agree(s) that the Bank shall be entitled to adjust, settle, compromise or refer to arbitration any dispute between the Company and the insured arising under or in connection with such policy or policies and such adjustment, settlement compromise and any award made on such arbitration shall be valid and binding on the Borrower(s) and also to receive all moneys payable under any such policy or under any claim made there under and to give a valid receipt thereof and that the amount so received shall be credited in the account having reference to the goods in respect of which such amount is received and that the Borrower(s) will not raise any question that a large sum might or ought to have been received or be entitled to dispute his / their liability for the balance remaining due on such account after such credit”.

8. On plain reading of the above said clause, it is evident that as per the agreement between

the parties, the complainant borrower when required by the bank was under obligation to get the

stock in his shop insured at his own expense in the joint names of borrower and the bank and if

the complainant failed to get such insurance on being asked to do so in writing, the bank in its

own discretion was entitled to get the goods insured against fire and debit premium and other

charges to the account of the complainant. There is nothing in this clause which may suggest

that the bank was under any obligation to get the hypothecated goods insured on behalf of the

complainant. Further, the plea of the complainant that there is an admission of obligations to get

the stock insured on the part of the respondent / bank, in para 2 (c) & ( e) of the written

statement is against the record. On perusal of the copy of the written statement of the opposite

party / bank, we find that in para 2 ( c ) & (e ), the bank has categorically denied that it had

any obligation to get hypothecated goods insured on behalf of the complainant. On the contrary

in the aforesaid paragraph, the bank has categorically stated that stock hypothecated with the

bank as per the agreement was to be insured by the complainant at his own expense in the joint

names of the bank and the borrower. Thus, we do not find any merit in the plea of the

complainant.

9. In view of the discussion above, we are of the opinion that both the fora below have rightly

dismissed the complaint in view of the written agreement between the parties. There is no

material irregularity or infirmity in the impugned order which may call for any interference by

this Commission in exercise of its revisional jurisdiction. Accordingly, the revision petition is

dismissed.

………………………Sd/-………. (AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

..…………………Sd/-…………… (SURESH CHANDRA) MEMBER

Am/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 1362 OF 2013(Against the order dated 14.02.2013 in S.C.Case No.FA/223/2011 of the State Commission, West Bengal) Kotak Mahindra Bank Limited 7th Floor, C Block, Apeejay House, 15 Park Street, Kolkatta West Bengal- 700016 Through its Authorised Representative

……….Petitioner Versus Partha Pratim Chatterjee S/o Bimal Chatterjee R/O A/1, Ramgarh Colony,Kolkata- 700047

.........Respondent

BEFORE

HON’BLE MR. VINAY KUMAR, PRESIDING MEMBER For the Petitioner : Mr. Sourabh Leekha, Advocate PRONOUNCED ON: 8/7/13. ORDERPER MR.VINAY KUMAR, PRESIDING MEMBER

Revision petitioner/M/s. Kotak Mahindra Bank has challenged the order of West Bengal

State Consumer Disputes Redressal Commission in FA No.223 of 2011. The State Commission

has upheld the order of the Kolkata Consumer Disputes Redressal Forum, directing RP/OP to

refund a sum of Rs.33,450/- to the respondent/Complainant. The order of the District Forum has

been modified to the extent that the direction to pay compensation of Rs.5000/- has been set

aside and the costs of Rs.2000/- awarded by the District Forum has been reduced to

Rs.1000/. To this extent, the appeal of the RP/OP has been allowed partially by the State

Commission. However, on the main issued of refund of Rs.33450/-, there is unanimity of view

between the District Forum and the State Commission. Both have ordered its refund.

2. The matter arose out of loan of Rs.301205/- taken by the Complainant from the RP/OP

Bank. It was to be paid in 36 instalments. After some default on repayment of the EMIs, the two

parties negotiated the matter and research a settlement on 26.03.2009. Under the settlement, the

complainant was required to pay Rs.140000/- in four instalments. As seen from the record, the

agreed payment schedule was as follows:-

i) Rs.12,000/- within 30.03.2009

ii) Rs.20,000/- within 30.03.2009

iii) Rs.50,000/- within 30.05.2009

iv) Rs.58,000/- within 30.06.2009

3. The case of the Complainant was that the first three instalments were paid on

time. Third instalments was paid with an additional sum of Rs.8000/-. Thus, the balance

payable by 30.06.2009 was Rs.50,000/-, which was paid as per the following details:-

i) Rs.25,000/- on 01.07.2009

ii) Rs.10,000/- on 15.09.2009 and

iii) Rs.15,000/- on 26.10.2009.

4. Accordingly, the entire agreed sum of Rs.140,000/- stood fully paid, though the

last instalments of Rs.50,000/- was paid with some delay. Set back in business was explained as

reason for this delay. In the meanwhile, the respondent/Complainant discovered from the bank

statement of account that three monthly ECS payments of Rs.11,150/- each had also been

deducted by the bank, without any prior intimation. This amounted to excess repayment to the

extent of Rs.33450/-. This is the amount which has been ordered to be refunded by

the fora below. While doing so, the District Forum has observed that:-“That the petition of complaint is allowed ex parte with cost against the o.p.

M/s. Kotak Mahindra Bank Ltd. O.p. is directed to refund the amount of Rs.33450/- (Rupees thirty three thousand four hundred fifty) only to the complainant along with interest @ 8% p.a within 45 days from the date of communication of this order and to pay compensation of Rs.5000/- (Rupees five thousand) and litigation cost of Rs.2000/- (Rupees two thousand) only positively within 45 days from the date of communication of this order, failing which it will carry further interest @ 10% p.a. till full realization.”

Similarly, the State Commission has held that:-“We have heard the submission made by both sides and perused the

materials on record. From the materials on record it appears that the settled amount of Rs.1,40,000/- was paid by the respondent/complainant. Vide cheque dated 29/06/09 the respondent paid Rs.25,000/- and thereafter the sum of Rs.10,000/- was paid vide cheque dated 05/09/09. There was the gap of two months and it is contended by the respondent that due to serious illness he could not pay the said insltament on time. Since the settled amount was paid by the respondent, we are of the considered view that the bank ought not to have deducted three instalments by way of ECS, in as much as, there was no intention on the part of the respondent to avoid payment.”

5. The records, as submitted by the revision petitioner, have been perused and

Mr. Saurabh Leekha, Advocate has been heard at length on behalf of the

petitioner/ Kotak Mahindra Bank. The main argument advanced in justification of the action

taken by the bank is that the action of the fora below tantamounts to modifying the terms of the

settlement reached between the parties. It is also contended that upon default in timely

repayment as per the terms of the settlement, the terms and conditions of the original loan had

automatically got revived.

6. The District forum has categorically observed that the RP/OP did not contest the case and

therefore was treated ex-parte. In this background, a specific query was put to the counsel for

the revision petitioner whether the contention raised in the revision petition was a ground before

the District Forum. Learned counsel accepted that it was not raised as the petitioner was treated

ex-parte. The contention was therefore raised before the State Commission. Learned counsel

however, accepted that no specific justification was offered before the State Commission for

deduction of three ECS instalments. It is thus, clear that the contention now raised is a mere

attempt to improve the case of the OP at the stage of revision.

7. The fact remains that the petitioner/bank has received payment through the ECS

arrangement under the original loan agreement as well as separate payments through cheques,

under the settlement. Details as already examined show that the entire amount of Rs.140000/-

has been received under the settlement, though the last 25,000/- with a delay of few

months. Equally, there is nothing to show that the amount collected under the ECS arrangement,

has been recredited to the account of the Complainant after 26.10.2009, when the entire agreed

sum of Rs.140,000/- had already been received by the bank.

8. The revision petitioner has sought to rely upon the decision of Hon’ble Supreme Court

in Export Credit Guarantee Corpn. of India Ltd. Vs. Garg Sons International, I (2013) SLT

614 in which it was observed that while construing the terms of a contract of a insurance, the

words used therein must be given paramount importance, and it is not open for the court to add,

delete or substitute any words. The above decision came in the context of a contract of insurance

to cover default in payment by a foreign importer. Clause 8 (b) of the Insurance Agreement

stipulated the period within which the insurer was to be informed about default, if

any, committed by a foreign importer. The ECGC rejected the claim on the ground of non-

compliance of this stipulation. It was held that the insured cannot claim anything more than what

is covered under the policy.

9. The facts of the case of the revision petitioner stand on a very different footing. The bank

has received payments under the subsequent settlement and at the same time granted to itself the

ECS payment benefit under the original loan agreement. The fact of excess payment being

received in the process is apparent from the record. Therefore, the revision petitioner cannot

seek any protection under the terms of the decision of the Apex Court cited on his behalf.

10. In the result, the revision petition is held to be completely devoid of any merit and is

dismissed as such. No order as to costs.

.……………Sd/-……………(VINAY KUMAR)PRESIDING MEMBER

s./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

REVISION PETITION No. 891 of 2013

(From the order dated 30.01.2013 of the West Bengal State Consumer Disputes Redressal Commission, Kolkata in SC Case no. FA/446 of 2012)

Sujit Roy 2/44 Udaynagar, P O Amroi Durgapur – 713203 Formerly A /2 Akbar Road Durgapur – 713204

Petitioner

Versus

1. In-charge Standard Chartered Bank SN/10 Ambedkar Sarani City Centre, Durgapur – 713216

2. Branch Manager Standard Chartered Bank 19, Netaji Subhash Road Kolkata – 700001

3. Head of Customer Care Unit Standard Chartered Bank 19 Rajaji Salai, Chennai – 600001

Respondents

BEFORE:

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER

HON’BLE MRS REKHA GUPTA MEMBER

For the Petitioner IN PERSON

Pronounced on 19 th July 2013

ORDERREKHA GUPTA

Revision petition no. 891 of 2012 has been filed against the impugned order dated 30th January 2013 passed by the West Bengal State Consumer Disputes RedressalCommission, Kolkata (‘the State Commission’).

The brief facts of the case as per the petitioner/complainant are that the petitioner opened an account with ANZ Grindlays Bank at Kolkata long back, for share tradingbusiness vide ID no. 11871890. Subsequently, Standard Chartered Bank has entered into the Banking business with the said ANZ Grindlays Bank in the title of Standard CharteredGrindlays Banks. Thereafter, the name of the Bank has been renamed as Standard Chartered Bank.

The petitioner had made payments as per bill of the Bank as under:

S No. DD no. Date In favour of Issued by Amount

(i) 210377 26/08/2000 ANZ Bank DSP Coop. Bank

965/-

(ii) 216855 14/06/2011 Standard Allahabad 655/-

Chartered Grindlays Bank

(iii) 652335 Std. Ch. Bank HDFC Bank 400/-

(iv) 186267 11/05/2003 -do- -do- 700/-

Rs. 700/- was paid against their billing instruction dated 06.10.2002 for Rs.320/- i.e., an extra amount of Rs.380/- was paid as advance for next billing instruction, which was lying in my account as credit balance. On the other hand, the bill as outstanding in petitioner’s account dated 05.01.2005 states that on 04.10.2002 the pending amount was Rs.17/- only for which the respondent/ opposite party charged Rs.8/- as interest, whereas in the statement of transaction dated 06.10.2002 exhibits that a total due amount is Rs.320/-. It reveals that respondent does not maintain their records and accounts correctly having no authenticity and as such the complainant has been suffering financial losses. On 10/12/2003 the respondent intimated that there was an outstanding bill of Rs.969/- as on 10.12.2003 which the petitioner should pay within 7 days, failing which the respondent would suspend the account.

The demand of the respondent had no authenticity and the petitioner felt that this claim had no basis since he had already deposited all the legitimate amounts and hence, he did not make further payment resulting, he his account being suspended without giving him any information by the respondent and till then no transaction, whatever was made. And thus the petitioner had to incur loss in share transaction. In February 2004, he had given a written notice to the Bank about the suspension of my account under their acknowledgement. But no reply was given by them.

The petitioner has not filed the copy of the written statement of the respondent before this Commission. However, the District Consumer Disputes Redressal Forum,Muchipara, Burdwan (‘the District Forum’) vide their order dated 11th July 2011 have stated that “the respondent bank has contested the case by filing written statement denying inter alia all the material allegations in the complaint. It is specifically stated in the written version that subject matter of the petitioner pertains to the years 2000 to 2003 and the latest whisper on the same was made, as alleged, in the year 2004-2005 and even thereafter more than four years have elapsed for which the case is barred by limitation under section 24 A of the C P Act. It is further contended that simply by letter dated 05.11.2009 as submitted by the petitioner where the reference of the letter dated 24.06.2008 of the respondent denying the allegations of the petitioner, the cause of action for the case cannot be extended and for the reasons that the case is definitely barred by limitation”.

The District Forum then gave the following order:

“Both the points are taken up together for a compact discussion in this case. During the argument learned lawyer of the respondent has referred to the order no. 15 as passed by this Forum on 14.09.2010 and submitted that the Forum has allowed opportunity to the petitioner to incorporate the fact of its letter dated 05.11.2009 with reference to respondent’s letter dated 24.06.2008 by way of amendment of the complaint. The order was very clear and explicit. But the same was not done by the petitioner. If in a particular allegation is not incorporated in the pleading the same cannot be relied on for getting any benefit out of it. The complaint as it is without amendment is definitely barred by limitation. As such the case is not maintainable. That apart the allegation of the petitioner regarding the fact that the respondent Bank never intimated regarding suspension of his account is baseless in view of the letters of intimation as sent by the respondent on 15.03.2004 and 05.02.2005, as it appears from the Xerox copies filed under Annexure A. Admittedly the petitioner took no step as it appears from his

averments in paragraphs 7 & 8 of the complaint. In such view of the fact the case of the petitioner fails as it is time barred and not maintainable. Hence, that the case be dismissed without cost”.

Aggrieved by the order of the District Forum, the petitioner filed an appeal before the State Commission. Along with the appeal an application for condonation of delay was filed. In the application for condonation of delay nowhere has the period of delay has been mentioned. The reasons given are as follows:

Before the order is passed the petitioner shifted his residence from 1a/2 Akbar Road Durgapur to 2/44 Udainagar PO Amroi Durgapur – 713 204.

For this reasons he was not in touch with his authorised representative who was handling the case before the District Consumer Forum on his behalf. He was thus not aware of the order so passed.

The petitioner is earning for his bread and butter by giving private tuition to the school and college students. For that he cannot take frequent leave from his students.

He got the certified copy of the order of the Hon’ble District Consumer Forum only on 30.01.2012.

After receipt of the order the appellant handed over all the papers to Sri Banerjee an Advocate of High Court at Calcutta.

It is difficult to follow up the matter regularly with the Advocate at Calcutta from Durgapuri. As a result the appeal was not filed in time.

When information regarding progress of the appeal was not received he met the Advocate. After meeting him at Calcutta in the month of July 2012 he came to know that no appeal since then was filed.

On the same date the papers were taken back and handed to the present lawyer to file the Appeal.

Meanwhile the petitioner’s wife became sick due to rheumatic Arthritis for which the petitioner could not move of Durgapur. He is having a daughter who is aged about 3 years.

The delay was totally unintentional and beyond the control of the petitioner and for that the petitioner is begging pardon for the delay.

The State Commission vide their order dated 30.01.2013 heard the submissions of the Counsel for the Appellant and on perusal of the material on record for condonationof delay of 353 days in filing the appeal and dismissed the application for condonation of delay as also the appeal being time barred stating that “we have heard the submission made by the learned and perused the papers on record. It appears that the judgment was delivered on 11.07.2011 and the certified copy was applied for on 30.01.2012. In the petitioner for condonation of delay and also in the MA 18 of 2013 there is no mention as to the reasons for delay in filing the application for certified copy. The certified copy was delivered on the very same day i.e., 30.01.2012. The appeal was filed on 30.07.2012. The medical certificate was issued on 31.12.2011. Having heard the submission made by the learned Counsel for the appellant and on perusal of the materials on record we find that the delay in filing the appeal has not been sufficiently explained”.

Dissatisfied by the order of the State Commission, the petitioner – Mr Sujit Roy has filed this present revision petition before us.

The main ground for the revision petition is that the State Commission has not considered the merit of the case and “instead wanted an explanation for each and every day delay”.

We have heard the petitioner in person and have gone through the records. With regard to the application for condonation of delay before the State Commission, the State Commission

vide impugned order dated 30.01.2013 have correctly came to the conclusion that the delay in filing the appeal has not been sufficiently explained in spite of every opportunity being given. The petitioner could not give any cogent reasons or ‘sufficient cause’ for condonation of delay of 353 days in filing the appeal before the State Commission.

The petitioner has failed to prove sufficient cause for condonation of delay. It is well settled that ‘sufficient cause’ for condoning the delay in each case is a question of fact.

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), 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”.

In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:

“The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

In view of the above, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with no order as to cost.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish


REVISION PETITION NO. 1660 OF 2013

(Against the order dated15.01.2013 in FA No.437 /2012 of the State Commission, UT Chandigarh)

Ramesh Chandra Singh, CPL RC Singh, C.P.R.U., Air Force Station Palam, New Delhi 110010

…..Petitioner

Versus

1. State Bank of India through its Chief Manager, Punjab University Branch, Sector 14, Chandigarh

2. Regional Zonal Office of the State Bank of India through its General Manager,Sector 17B, Chandigarh

.....Respondents

BEFORE:

HON’BLE MRS. VINEETA RAI, PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR, MEMBER

For the Petitioner : Mr. Ramesh Chandra Singh, In Person

PRONOUNCED ON: 24-7-2013 ORDER PER MR. VINAY KUMAR, MEMBER

Revision Petition No.1660 of 2013 has been filed against concurrent orders of the District

Consumer Disputes Redressal Forum, Chandigarh and the State Consumer

Disputes Redressal Commission UT of Chandigarh. Both have dismissed the complaint of the

petitioner Mr. Ramesh Chandra Singh.

2. The matter pertains to an EMD loan of Rs.2,91,405/- taken by the Complainant from

OP/State Bank of India, Chandigarh branch. Allegedly, OP/bank failed to inform the

Complainant about progress of EMD loan and made changes in the chargeable rate of interest,

from time to time. It also wrote to the Chandigarh Housing Board for cancellation of the

allotment to the Complainant as well as to CIBIL to add the loan given to the Complainant in the

list of non-performing assets. Even intimation through e-mail or mobile phone was not sent

before taking such action. The Complainant being an officer of Indian Air Force, had to move

from location to location as part of his duty and was therefore unable to keep track of his loan

account on regular basis.

3. De hors, the case of OP/State Bank of India was that for the purposes of this EMD loan the

Complainant had opened a saving bank account on 26.4.2008. The EMD loan was sanctioned as

he had been allotted a flat under the relevant scheme of the Chandigarh Housing

Board. Subsequently, a number of letters were sent to the Complainant at his local address

furnished by him in the application form. But, he never informed the bank about his transfer and

shifting from Chandigarh. Nor was any address given to the bank for further correspondence. In

this background, the OP was left with no alternative but to write a letter to the office of the

Complainant. The Complainant took no action to repay the EMD loan. Nor did he respond to

the letters from the bank. In this background, the bank was forced to write to the Chandigarh

Housing Board for cancellation of the allotment. While dismissing the complaint, the District

Forum has categorically observed that:-

“9. However, otherwise also the facts speak for themselves, beyond any doubt about the dilly-dallying, irresponsible & careless attitude of the complainant, who himself failed to perform his agreed/legal duty to repay the said loan availed from the OP Ban, which is a public Financial Institution.

10. The Complainant had utilized the public money through OP Bank in the shape of loan, in order to get a Flat under CHB Scheme, but did not return it. By such illegal acts, the complainant has abused his office of serving in Essential Services, by not paying the instalments of loan on the pretext that he was transferred & shifted from the place where he was residing initially.

11. Though the onus to prove this fact was squarely lies upon the complainant, but he has not been able to prove it, by leading/adducing any certain documentary & convincing evidence that he ever informed the OP Bank about the change of his address or about his transferred locations, from time to time.”

4. Similarly, the State Commission has observed that from a perusal of the loan application

form it was seen that the Complainant gave ‘No.543/C, Sector 46A, Chandigarh -160047’ as his

present residential address as well as his permanent address. All correspondence between July,

2009 and March, 2011 was made on this address. However, the bank received no reply from

him. Thereafter, the bank wrote letters to his official address in July and December, 2011, again

with no response from the Complainant. In this background, the State Commission has observed

that:

“Undisputedly, the appellant/complainant defaulted in repaying the loan amount within the stipulated period, and thus, violated Clause No.3 of the Arrangement Letter (Annexure C-1) at Page 23 of District Forum’s file). In this view of the matter, in default of re-payment of loan amount, the Opposite Parties rightly declared the Loan Account of the appellant/complainant as Non-performing

Asset (NPA). In our considered opinion, the District Forum, after taking all these facts into consideration, rightly dismissed the complaint of the appellant/complainant.”

5. We have heard the petitioner/Complainant Mr. Ramesh Chandra Singh, in person and

perused the record submitted by him. He was also allowed to file his written argument. We find

that the entire thrust of the revision petition and his written arguments is to show that the

respondent/State Bank of India did not make enough effort to contact the petitioner/Complainant

before declaring EMD loan as a non-performing asset. It is also alleged that the respondent/bank

should have informed the Complainant over mobile phone or through SMS or E-mail. But,

nowhere in the revision petition or in the written arguments any attempt is made to explain what

steps were taken by the petitioner himself either to repay the loan or even to acknowledge the

letters written by the OP/Bank.

6. Documents placed on record by the revision petitioner himself show that the loan was

sanctioned on 26.4.2008. The details terms of repayment of this loan are also contained therein.

In the event of non-allotment, the entire refund of the earnest money was to be adjusted towards

the EMD loan and in the event of successful allotment, the entire outstanding amounts including

interest was to be repaid within 15 days from the allotment. In his case, it meant an obligation to

repay within 15 days of allotment. In this background, the contention of the petitioner in his

written arguments that he visited the office of the respondent in September, 2011 to get details

and to repay the loan carries no conviction whatsoever. It also does not explain his long silence

since sanction of the loan in 2008.

7. In view of the above, we find no substance in this revision petition. It fails to carry any

conviction against categorical and concurrent findings of facts reached by the fora below. The

revision petition is consequently dismissed for want of merit. No orders as to costs.

…..…………….Sd/-…….……

(VINEETA RAI)

PRESIDING MEMBER

…..…………Sd/-….…….……

(VINAY KUMAR)

MEMBER

S./-


REVISION PETITION NO. 2752-2754 OF 2011

(From the order dated 17.06.2011 in Appeal No. 2165-2167 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Sh. Shashikant S Timmapur Aged about 40 years, Occ: Business, R/o Subhash Galli, 2nd Cross, Old Gandhi Nagar Belgaum – 590 016

…Petitioner/Complainant

Versus1. Karvy Stock Broking Ltd., A Registered Company Karvy Center/House, 46, Avenue – 4, Street No.1 Banjara Hills, Hyderabad 500034

2. The Branch Manager Karvy Stock Broking Ltd., FK 1 Khimjibhai Complex, Opp. Civil Hospital, Dr. B.R. Ambedkar Road, Belgaum 590002

…Respondents/Opp. Parties (OP)

REVISION PETITION NO. 3300-3301 OF 2011 (From the order dated 17.06.2011 in Appeal No. 2612 & 2613 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Sh. Shashikant S Timmapur Aged about 40 years, Occ: Business, R/o Subhash Galli, 2nd Cross, Old Gandhi Nagar Belgaum – 590 016


Versus1. The Managing Director The Karvy Stock Broking Ltd., 529, Road No. 4, Banjara Hills, Hyderabad 500034

2. The Territory Manager The Karvy Stock Broking Ltd., FK 1 Khimjibhai Complex, Opp. Civil Hospital, Dr. Ambedkar Road, Belgaum – 590002


REVISION PETITION NO. 3721 to 3725 OF 2012 (From the order dated 28.05.2012 in Appeal Nos. 4656 to 4660 of 2010 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore)

Shashikant S Timmapur Aged about 42 years, Occ: Business, “SIDDA-GANGA NIVAS” CTS No.11758/B, Subhash Galli, 2nd Cross, Main Road, Old Gandhi Nagar Belgaum – 590016 KARNATAKA, INDIA


Versus

11. The Managing Director The Karvy Stock Broking Ltd., 529, Road No. 4, Banjara Hills, Hyderabad 500034

2. The Territory Manager The Karvy Stock Broking Ltd., FK 1 Khimjibhai Complex, Opp. Civil

Hospital, Dr. Ambedkar Road, Belgaum – 590002

…Respondents/Opp. Parties (OP) BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : In person

PRONOUNCED ON 24 th July, 2013

O R D E R

PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

Revision Petition Nos. 2752-2754 of 2011, 3300-3301 of 2011 and 3721-3725 of 2012

have been filed by the petitioner/complainant against the impugned orders dated 17.06.2011

and dated 28.5.2012 passed by the Karnataka State Consumer Disputes Redressal Commission,

Bangalore (in short, ‘the State Commission’) in Appeal Nos. 2165-2167 of 2010, in Appeal Nos.

2612 & 2613 of 2010 and in Appeal Nos. 4656 to 4660 of

2010– Shashikant STimmapur Vs. The Managing Director, Karvy Stock Broking Ltd.

& Anr. by which, while dismissing appeals, orders of District Forum dismissing complaints

were upheld.

2. Brief facts of the cases are that complainant/petitioner filed 10 complaints, which are as

under:

1. Complaint No. 348/07 dated 12.12.07 – Complainant submitted that he is a businessman and deals in shares trading. Complainant is availing services of OP for the purpose of earning his livelihood by means of self-employment of trade in shares and securities. It was further alleged thatinspite of credit balance in his account, his order for selling 150 shares of ICRA, 20 shares of TITAN Industries Ltd. were not sold on 22.10.2007 and caused loss of Rs.50,000/-. It was further alleged that his request for purchase of 1000/- shares of Siemens India Ltd. was dishonoured and he suffered loss of Rs.3,00,000/- on account of deficiency on the part of OPs.

2. Complaint No. 349/07 dated 10.12.07 – Complainant alleged that on 31.10.2007,

OP stopped trading in complainant’s account illegally. Complainant handed over

cheque of Rs.20,08,000/- to OPs operator and placed order for purchase of 4,000

shares of IVRCL and sale of 150 shares of ICRA Company, but orders were not

executed and claimed compensation of Rs.3,12,000/- for deficiency.

3. Complaint No. 18/08 dated 11.01.08 - Complainant placed order for purchase of

6000 shares of IVRCL, 4,000 shares of GBN Ltd., 2000 shares

of Mindtree Consulting Ltd. These shares were purchased by OP, but order for

sale placed on 16.3.2007 were not executed and caused loss of Rs.6,25,000/- and

claimed aforesaid loss along with unliquidated damaged Rs.12,50,000/-.

4. Complaint No. 19/08 dated 11.01.08 – Complainant placed order for sale of some

shares, but order was not executed. OP-1 agreed to pay Rs.1,78,000/- for

deficiency in service and out of that credited Rs.20,000/- in account of

complainant, but has not paid balance Rs.1,58,000/-.

5. Complaint No. 20/08 dated 11.01.08 – OP unauthorisedly transferred 150 shares of

ICRA Ltd. from complainant’s account and withdrawn Rs.42,354.50 from

complainant’s account without complainant’s request and caused loss of

Rs.1,53,027.37 and thus claimed Rs.3,53,000/- as compensation and Rs.7,00,000/-

as unliquidated damages.

6. Complaint No. 21/08 dated 11.01.08 – Complainant purchased 3950 shares of

ICRA on 17.4.2007. On 18.4.2007, OP sold 3800 shares without complainant’s

consent and caused loss of Rs.8,20,000/-. On 25.4.2007, complainant purchased

1000 shares of Tulip IT Services Ltd., but in spite of sale order, shares were not

sold and caused loss of Rs.88,000/- and thus, claimed loss of Rs.9,08,000/-

and unliquidated damage of Rs. 10,00,000/-.

7. Complaint No. 04/09 dated 06.01.09 – Complainant submitted that he is doing large

scale transaction with the OP. OP blocked his account and did not allow to

transact allotted 200 equity shares of Tata Steel Ltd. and thus, claimed

compensation of Rs.7,00,000/-.

8. Complaint No. 471/09 dated 23.7.09 – Complainant alleged that on account of non-

providing of exposure to his account by OP, he could not book profit of shares of

ICRA Ltd. and claimed Rs.3,56,400/-.

9. Complaint No. 472/09 dated 23.07.09 – Complainant was not allowed to sell 100

shares of Bank of Maharashtra and claimed compensation of Rs.32,275/-.

10. Complaint No. 473/09 dated 23.07.09 - Complainant alleged that he was not

allowed to sell 250 shares of CIPLA Ltd. and claimed unliquidateddamage of

Rs.3,00,000/-.

3. OP/respondent contested complaints, filed reply and submitted that complainant does not fall within the purview of consumer and further submitted that on account of Arbitration Clause, District Forum had no jurisdiction to entertain the complaint. Further denied any deficiency on the part of OPs and submitted that on account of not maintaining margin money in the account for trading and complainant had already filed complaints before District Forum, he was not allowed to operate his trading account and prayed for dismissal of complaints.

4. After hearing both the parties, learned District Forum dismissed complaints. Appeals filed by the petitioner were dismissed by learned State Commission vide impugned orders against which, these revision petitions have been filed.

5. Heard the petitioner in person at admission stage and perused record.

6. Petitioner submitted that, as the petitioner was having Demat account with respondents and was availing services of respondent in doing transactions of sale and purchase of shares, respondent committed deficiency in not executing his orders, even then, learned District Forum committed error in dismissing complaints and learned State Commission further committed error in dismissing appeals; hence, revision petitions be admitted.

7. Admittedly, complainant has filed 10 complaints, out of which, 4 complaints on

11.1.2008, 3 complaints on 23.7.2009 against the OP, though; he could have filed consolidated

complaints on 11.1.2008 and on 23.7.2009. In all the complaints, complainant admitted that he is

a businessman and deals in share trading. No doubt, he has mentioned in the complaints that he

has availed the services of the respondents exclusively for the purpose of earning his livelihood

by means of self-employment, but looking to the volume of his transactions, it cannot be inferred

that complainant availed services exclusively for the purpose of earning his livelihood by means

of self-employment, but it can very well be presumed that he was availing services of OP for

commercial purposes for sale and purchase of shares and in such circumstances, the complainant

does not fall within the purview of consumer under Section 2 (d) (ii) of the Consumer Protection

Act.

8. West Bengal State Consumer Disputes Redressal Commission, Kolkata, in 1 (2009) CPJ 316 - Ramendra Nath Basu Vs. Sanjeev Kapoor & Anr . has held that share trading transactions between parties do not come under purview of Consumer Protection Act, 1986.

9. Learned Delhi State Commission in case III (2000) CPJ 291 - Anand Prakash Vs. A.M. Johri & Ors . held that “sale-purchase of shares are commercial transactions and complainant does not fall within the purview of ‘consumer’.

10. This Commission in R.P. No. 1179 of 2012 – A. Asaithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors .” also held that sale and purchase of shares are commercial transactions and does not fall within the purview of ‘consumer’. Special Leave to Appeal (Civil) No. 36840 of 2012 (A.Asithambi Vs. Company Secretary Satyam Computer Services Ltd. & Ors.) filed against this judgment was dismissed in limine by Hon’ble Supreme Court on 14.12.2012. This Commission also took same view in O.P. No. 287 of 2001 - Dr. V.K. Agarwal Vs. M/s. Infosys Technologies Ltd. & Ors . Decided on 24.7.2012 and in R.P. No. 3345 of 2012 – M/s. Sterlite Industries (India) Ltd. Vs. Ganapati Finsec Pvt. Ltd. decided on 12.7.2013. In F.A. No. 362 of 2011 –Ganapati Parmeshwar Kashi & Anr . Vs. Bank of India & Anr ., this Commission observed as under:

“Apart from this, State Commission also held that since the appellants had

alleged that they had suffered loss as they could not trade due to suspension

of accounts, were not consumers as the dispute related to loss and profit from

the share business of the appellants.

We agree with the view taken by the State Commission.

Special Leave Petition filed by the Appellant was dismissed by the Hon’ble Supreme Court on

14.1.2013 and observed as under:

“ii) The concurrent finding recorded by the State Consumer Disputes Redressal Commission, Maharashtra and the National Consumer Disputes Redressal Commission that the petitioners cannot be treated as ‘consumer’ within the meaning of Section 2(d) of the Consumer Protection Act, 1986, is based on analysis of the pleadings filed by the parties. The DMAT Account was opened by the petitioners purely for commercial transactions. Therefore, they were rightly not treated as ‘consumer’ so as to entitle them to claim compensation by filing complaint under the 1986 Act”.

11. In the light of aforesaid judgments, as complainant/petitioner was a businessman and availing services of OPs for sale and purchase of shares in heavy volume for earning huge profits, complainant does not fall within the purview of consumer and learned State Commission has not committed any error in dismissing appeals and affirming order of District Forum dismissing complaints.

12. We do not find any illegality, irregularity or jurisdictional error in the impugned order and

revision petitions are liable to be dismissed at admission stage

13. Consequently, revision petitions filed by the petitioner are dismissed at admission stage with no order as to costs.

..……………………………

( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………………………

( DR. B.C. GUPTA )

MEMBER k


REVISION PETITION NO. 3120 OF 2011From the order dated 07.07.2011 in Appeal No. 214/2004 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

Dr. Vincent C K, Orthopaedic Department San Joe Hospital, Perumbavoor, Ernakulam, Kerala State

… Petitioner/Opp. Party (OP)

Versus1.Jessy Jayapal Maletathu House Rayolpuram PO, Kanjirakkadu Perumbavoor, Ernakulam, Kerala State

2.The Administrator San Joe Hospital Perumbavoor, Ernakulam, Kerala State

3.The Medical Superintendent San Joe Hospital Perumbavoor, Ernakulam, Kerala State

… Respondents/Complainants

BEFORE



For the Petitioner : Mr. Jogy Scaria, Advocate

Mr. K.K. Sudhesh, Advocate

For the Respondent No. 1 : Mr. Shyam D. Nandan, Advocate

For the Respondent Nos.2 & 3 : Mr. George Cherian, Advocate

PRONOUNCED ON 24 th July, 2013

O R D E R


This revision petition has been filed by the petitioner/Opposite party against the order

dated 07.07.2011 passed by the Kerala State Consumer Disputes Redressal Commission,

Thiruvananthapuram (in short, ‘the State Commission’) in Appeal No. 214 of 2004 – Jessy

Jayapal Vs. The Administrator, San Joe Hospital, Perumbavoor & Ors. by which, while allowing

appeal, order of District Forum dismissing complaint was set aside and OPs were held liable for

negligence and matter was remanded back to District Forum for determining compensation.

2. Brief facts of the case are that complainant/respondent no. 1 filed complaint alleging

negligence and deficiency in service on the part of the opposite parties 1 to 3 in treating the

complainant at the first opposite party’s hospital. The complainant alleged that there occurred

medical negligence on the part of 3rdopposite party Dr. Vincent C.K. in conducting surgery on

the complainant at the first opposite party Sanjo Hospital, Perumbavoor and there occurred

negligence in fixing the implant for the fracture midshaft right humerus along with same – sided

comminuted Supra Condylar fracture with inter condylar extension. It is also alleged that the

complainant sustained permanent disability on account of the medical negligence in fixing the

implant for the fracture and that as a result of the disability, the complainant suffered mental

agony, inconvenience and financial loss. Thereby the complainant claimed compensation at Rs.3

lakhs from the opposite parties 1 to 3.

3. OP 1 & 2 denied negligence on their part, but admitted that surgery was performed by OP

3/Petitioner. OP-3 filed written statement before District Forum denying negligence on his

part. It was further contended by him that first surgery was done by Mr. Dr. M.C. John attached

to Sanjo Hospital, Perumbavoor and there occurred implant failure which was corrected by a

second surgery by replacing the failed implants. It was further submitted that after the second

surgery, complainant was not having any difficulty and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties dismissed complaint against

which, appeal field by the complainant was allowed by learned State Commission vide

impugned order against which, this revision petition has been filed.

4. Heard learned Counsel for the parties at admission stage and perused record.

5. Learned Counsel for the petitioner no. 1 submitted that, as per hospital record, first surgery

was not performed by the petitioner and learned State Commission has committed error in

holding negligence on the part of petitioner; hence, revision petition be allowed and impugned

order be set aside. Learned Counsel for the Respondent no. 1 admitted that first surgery was not

done by the petitioner, but as he was seen there, complainant attributed that surgery was done by

the petitioner and in such circumstances, he has no objection if revision petition is allowed.

Learned Counsel for the Respondent Nos. 2 & 3 also admitted that first surgery was not done by

the petitioner, but it was done by Dr. M.C. John and he has no objection if revision petition is

allowed to the petitioner’s extent.

6. In the complaint, complainant alleged that first surgery was conducted by the petitioner/OP

3, but this fact was denied by the petitioner from the inception. After going through the medical

report which was filed by Respondent Nos. 2 & 3, learned Counsel for the Respondent No. 1

admitted that by inadvertence, it was shown that surgery was done by the petitioner, whereas

actually surgery was done by Dr. M.C. John. Learned Counsel for the Respondent Nos. 2 & 3

also admitted this fact as per operation note of the hospital record, according to which, Dr. M.C.

John performed operation and Dr. Mathew was Anaesthetist and Rani & Limi were Theatre

Nurse.

7. When all the respondents admit that first surgery was not conducted by the petitioner, by

no stretch of imagination, petitioner can be held responsible for any negligence for first surgery

on the body of the complainant/Respondent No.1. In such circumstances, revision petition is to

be allowed and order of learned State Commission to the extent of petitioner’s liability is to be

set aside.

8. Consequently, revision petition filed by the petitioner against the respondents is allowed

and impugned order dated 07.07.2011 passed by the learned State Consumer in Appeal No. 214

of 2004 – Jessy Jayapal Vs. The Administrator, San Joe Hospital, Perumbavoor & Ors. is set

aside to the extent of petitioner holding him guilty of negligence and deficiency and complaint

stands dismissed against the petitioner. There shall be no order as to costs.

..………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 01.02.2008 of the Delhi State Consumer Disputes Redressal Commission, Delhi in First Appeal no. 550 of 2007)

UCO Bank (Through its Manager) Patiala House Court Complex New Delhi – 110001

Petitioner

Versus

Shri S D Wadhawa D – 3, G K Enclave - I New Delhi – 110048

Respondent

BEFORE:



For the Petitioner Mr Sarfaraz Khan, Advocate

For the Respondent IN PERSON

Pronounced on 24 th July 2013

ORDER

REKHA GUPTA

Revision petition no. 2479 of 2008 is against the final order and judgment dated

1st February 2008 passed by the Delhi State Consumer Disputes Redressal Commission, Delhi

(‘the State Commission’) in First Appeal no. 550 of 2007.

The brief facts of the case as given by the respondent/complainant are as follows:

The respondent is a practicing lawyer and has been availing the services of the petitioner/

OP Bank right from the inception of his practice/ profession vide his S B Account no. 1802.

The service of the petitioner which is a nationalised institution, have been (in totality)

reasonably up to the mark with the exception of 3 stray unfortunate incidents (out of

respondent’s seven cheques) whereon his signatures were forged and were issued in three

different names by some unknown culprit/ mischief monger with the aid and abetment of his

court clerk Pooran Chandra Pant on the one side joined by some bank staff on the other side who

actively connived, collaborated/ colluded in the matter of fraudulent withdrawal of total of

Rs.40,000/- from the respondent’s aforesaid S B Account.

Respondent’s first cheque bearing no. 557529 dated 05.08.2002 for Rs.10,000/- purported

to have been issued in fictitious/ imaginary name of one Rajesh Kumar with the forged signature

of the respondent beneath it were got encashed the same day from the Bank vide its token no.

132.

The respondent’s second cheque bearing no. 557532 dated 14.08.2002 for Rs.10,000/- was

issued in the name of one Rajbir Singh, again with the forged signatures of the respondent

beneath it, was got encashed the same day vide its token no. 192.

The respondent’s third cheque bearing no. 618832 dated 23.07.2003 for Rs.20,000/- was

issued in the name of one Gopal Singh against, with the forged signatures of the respondent

beneath it, was got encashed the same day vide its token no. 1834.

Intimation of the first stop payment advice for the remaining 2 uncashed cheques had been

given on 26.08.2002 to the petitioner Bank.

Whereas intimation of the second stop payment advice for the remaining

two uncashed cheques was made on 24.07.2003 to the petitioner Bank.

In the first incident a complaint was made only to the petitioner Bank with a written

request to compensate the respondent for the loss of Rs.20,000/- suffered by him due to lack of

its vigilance and carelessness in the matter of properly tallying and comparing the signatures

appended beneath the said two forged cheques.

The proceeds of these three cheques seemingly have been collected by one and the same

individual on the respective dates as is amply evident from the style of the signing done by the

bearer at the back of the three cheques. The noteworthy point in this context is that during this

period the computer network system of the petitioner Bank was non-functional and thus the

respondent’s routine of getting his passbook update on weekly basis with the debit-credit entries

was disturbed and disrupted and as a consequences thereof the culprit/ offender took advantage

of the situation and got all the three cheques encashed on different dates/ occasions. In essence,

this kind of loss suffered by the respondent is attributable to ‘Glaring Deficiency in Service’ on

the part of the petitioner Bank in the following manners inter alia others:

Firstly, by not doing the posting job of the passbook due to the defects in the petitioner’s

computer system.

Secondly, the laches in the form of hastily, heedlessly and negligently verifying tallying/

comparing the forged signatures on the said three cheques.

Thirdly, by not looking at the signatures made on the back of the first cheque dated

05.08.2002 where the bearer has signed as R Singh on the back thereof instead of Rajesh Kumar

and the second cheque dated 14.08.2002 also carrying the signature in the handwriting of the

same individual as R Singh on the back thereof while the cheque had been issued in the name of

Rajiv Singh and in the third case even though the signatures were that of the bearer on the back

of the cheque but the handwriting shows that the signatory had been one and the same individual

as is apparent to the naked eye.

In their reply, the petitioner/ OP 1 – Bank have denied the allegations made in the

complaint. They have stated that the respondent nowhere in his FIR and other communication to

the police made any allegation against the petitioner Bank and its staff members. His needle of

suspicion centres around his own staff members, i.e., his clerk and driver. This itself amounts an

admission by the respondent that there is no deficiency in service on the part of the petitioner

Bank and the loss if any is because of vicarious liability for the negligence on the part of

respondent himself.

The complaint is hopelessly time barred and no plausible explanation has been given to

account for inordinate delay in filing the complaint. The respondent has lodged a complaint with

the police on 24.07.2003 whereas he has filed the present complaint as an after thought and on

account of fall out of the FIR.

The payment of all the cheques which are uncrossed and bearer were made in due course

without negligence to the holder of the cheques in the circumstances which to the judgment of

the official of the petitioner Bank did not reveal any reasonable doubt particularly about

the genuiness of the cheque. There was not an iota of doubt that the holder of the cheque was not

entitled to payment thereof. The loss if any is not because of the alleged deficiency in service but

because of negligence on the part of the respondent in not keeping his cheque book in lock and

key and or safe custody and over reliance/ dependence on his own driver and clerk.

The District Consumer Disputes Redressal Forum – II, Udyog Sadan, New Delhi (‘the

District Forum’) vide order dated 13.06.2007 has stated that “the opinion is based on the

examination made from the Photostat of the documents and not from the original documents. The

opinion is subjected to confirmation after the examination from the original documents.

The complainant is also negligent is suffering loss. He suffered fraud in the year 2002.

Instead of taking care and caution, he kept the pass book unlocked in his car and in possession

of his clerk. The conduct of complainant is like maxim ‘volenti non fit injuria’. His careless

attitude caused loss to him. A banker is not supposed to compare the signature of account holder

on the cheque with the same technique is adopted by CFSL. The complainant did not care to be

vigilant”.

The District Forum did not find any deficiency in service on the part of the petitioner

Bank. Consequently, the complaint was dismissed.

Aggrieved by the order of the District Forum, the respondent/ complainant filed an appeal

before the State Commission. State Commission differed with the findings of the District Forum

and stated that “it is settled principle that every skilled person has to be trusted in his art and no

court can replace the opinion by its own opinion even by comparing the admitted and disputed

signatures. Unless and until the reports of the expert are so diametrically opposite and suffer

from such irreconcilable contradictions no different opinion can be framed. Once the District

Forum was equipped with two reports of handwriting expert it was not open to it to introduce its

own opinion by stepping into the shoes of an expert.

Another observation of the District Forum which also suffers from inherent infirmity is

that the respondent who had suffered a fraud in the year 2002 should have kept the pass book

and cheque book under lock and key and not in his car in the possession of his clerk and

therefore his conduct is that of ‘volenti non fit injuria’ and the careless attitude caused loss to

him. Such an observation was not at all apt in the given facts and circumstances of the case,

particularly when the person who forged the signature is none but his own clerk.

In ordinary course of business and transactions of the Bank the officials of the Bank sitting

at the counter are not supposed to avail the service of handwriting expert in each and every case.

But at the same time they are required to take sufficient precaution and exercise utmost care

in encashing cheque which are bearer or self and since in the instant case the petitioner bank did

not take care to exercise sufficient care the caution as is demonstrated from the two reports of

the handwriting expert petitioner bank has to be held guilt for deficiency in service. Since there

was no malafide intention nor was there only conspiracy of the bank officials, we hold the

petitioner bank guilt for limited deficiency in service to the aforesaid extent and deem that

compensation of Rs.20,000/- besides Rs.5,000/- as cost of litigation would meet the ends of

justice.

In the result, we allow the appeal, set aside the impugned order with the directions

respondent/ appellant to pay Rs.20,000/- as compensation and Rs.5,000/- as cost of litigation”.

Hence, this present revision petition.

The main ground for the revision petition are that the State Commission has failed to

appreciate the facts regarding day to day transaction of the bank is ordinary course of business

and the official staff of the bank who are sitting at the bank counter are not handwriting expert to

avail these type of service to check every stroke, turns, curvature, place of joining letter of the

bearer cheque in normal course of day. It is pertinent to mention that all the signature of the

cheques where duly tallied/ verified from the specimen of the record of the customers.

For that the State Commission has failed to appreciate the facts that the negligence in the

part of the respondent for loss of his blank cheque twice not once. He did not keep his cheque in

a secured place.

We have heard the learned counsel for the petitioner and respondent in person and gone

through the records.

Learned counsel for the petitioner - Bank drew our attention to the fact that the complaint

before the District Forum ought to have been dismissed on limitation. He drew our attention to

paragraph 2 of the complaint wherein three cheques had been encashed by some unknown

culprit/ mischief monger with the aid and abetment of his court clerkPooran Chandra

Pant. Cheque bearing no. 557529 dated 05.08.2002 for Rs.10,000/-, the second cheque bearing

no. 557532 dated 14.08.2002 for Rs.10,000/- and the third cheque bearing no. 618832 dated

23.07.2003 for Rs.20,000/-. Intimation of the first stop payment advice for the remaining

two uncashed cheques had been given on 26.08.2002 to the petitioner, whereas intimation of

second stop payment advice for the remaining two uncashed cheques was made on 24.07.2003.

However, the complaint was filed after two years from 24.07.2003 on 17.08.2005, hence, it is

time barred. Learned counsel for the petitioner also stated that respondent had also not filed

thecondonation of delay application along with the complaint. He drew our attention to the Apex

Court judgment in the case of Dr V N Shrikhande vs Mrs Anita Sena Fernandes – AIR 2011

Supreme Court 212, wherein the Apex Court considered whether the Consumer Forum

established under the Act can refuse to admit the complaint on the ground that the same is barred

by time. The decision of this question depends on the interpretation of sections 12(1), (3), (4),

18, 22 and 24 A of the Act. The Apex court held that “in other words, the Consumer Forums do

not have jurisdiction to entertain a complaint if the same is not filed within 2 years from the date

on which the cause of action has arisen. This power is required to be exercised after giving

opportunity of hearing to the complainant, who can seek condonation of delay under section 24

A (2) by showing that there was sufficient cause for not filing the complaint within the period

prescribed under section 24 A (I). If the complaint is per se barred by time and the complainant

does not seekcondonation of delay under section 24 A (2). The Consumer Forums will have no

option but to dismiss the same. Reference in this connection can usefully be made to the recent

judgments in State Bank of India vs B S Agricultural Industries (I) (2009) 5 SCC 121 : (AIR 2009

SC 2210) and Kandimalla Raghavaiah and Company vs National Insurance Company and

Another – (2009) 7 SCc 768 : (2010 AIR SCW 2528)”.

Learned counsel for the petitioner has also argued that the respondent in his complaint has

alleged that signatures were forged on the cheques and money was withdrawn from his account.

Counsel for the petitioner have cited two cases of National Commission (Bright Transport

Co. vs Sangli Sahakari Bank Ltd - II (2012) CPJ 151 (NC), decided

on 12.01.2012 and Prempreet Textiles Industries Ltd., vs Bank of Baroda and Ors. – III (2006)

CPJ 218 (NC) decided on 15.05.2006) and one case pertaining to Delhi State Commission

(Srikrishan Dass vs Dena Bank – I (2003) CPJ 276 decided on 08.07.2002).

In the case of Bright Transport Co. (Supra) the National Commission has held that “we

must consider the question whether this Commission in exercise of its summary jurisdiction

would be able to adjudicate all those issues arising on the complaint in an effective manner. If

this Commission ventures to do it, it may have to record the evidence of all those persons whose

evidence was collected by the CBI. It is only after detailed examination and cross examination

of those witnesses and the documentary evidence i.e. voluminous record involved in the said

bank transactions that the Commission may perhaps be able to adjudicate on the said

question. We have, therefore no hesitation to hold that the complaint indeed raises very

complicated question of facts and law which can only be answered by a regular Civil Court and

the complainants should be relegated to the Civil Court to work out their remedy for the entire

claim made by them in the present complaint or this Commission can decide upon the claim in

regard to which there is no dispute between the parties.

It also appears to us that filing of present complaints before this Commission are nothing

but an attempt to misuse the jurisdiction of this Commission only with a view to save on the court

fee payable in a suit before the Civil Court.

Having considered the matter from different angles and having given our thoughtful

consideration to the submissions made by the learned counsel for the complainants, we are of the

view that these consumer complaints are not maintainable before this Commission. However,

the complainants shall be free to work out its remedy in accordance with law before the

appropriate court / Tribunal. With these observations, the consumer complaints are dismissed”.

In the case of Srikrishan Das (Supra), the State Commission has held that “if the above

criterion is applied to the present case, it is noticed by us that the complaint filed by the

complainant before this Commission requires adjudication in respect of complicated and

complex questions of fact, such as whether in fact on the basis of forged cheque the amount in

question has been fraudulently withdrawn from the account of the complainant and whether

there was any connivance/ conspiracy to cause wrongful loss to the complainant by the staff

members of the Bank. The above complex and complicated questions, which require taking of

elaborate evidence and adducing documentary/ expert evidence also and thereafter a detailed

scrutiny and assessment of such evidence, decidedly cannot be adjudicated upon satisfactorily by

a redressal agency, established under the Act.

In view of the position explained above, the present complaint filed by the complainant is

directed to be dismissed in limine. However, the complainant is given the liberty to approach the

appropriate Civil Court for redressal of his grievances being raised by the complainant in the

present complaint, as the complainant may be advised”.

Counsel for the petitioner also argued that it was for the respondent to keep his cheque

book under lock and key and it was indeed surprising that his staff could access his cheque book

and allegedly forged the signature to withdraw Rs.40,000/- on no less than three occasions.

Learned counsel for the petitioner also drew our attention to the case of Prempreet Textile

Industries Ltd., (Supra) have stated that “it was the duty of the above Director to have ensured

that the cheque book was kept under locked key at a safe place. In this backdrop, there was

hardly any occasion for the respondent bank to have doubted the genuineness of the signatures

on the cheque in question if any embezzlement was made by the employee of company the

respondent Bank cannot be held responsible for it. Respondent Bank had, thus, been rightly

exonerated of the liability arising out of the cheque in question by the State Commission in terms

of the aforesaid order dated 01.02.2006 which does not call for any interference in revision

jurisdiction under section 21 (b) of the C P Act, 1986. Dismissed”.

Respondent who has appeared in person admitted that he used to keep his cheque book and

other papers in his car or his office drawer and his staff had ready access to the cheque book at

both the places. He further admitted that on the first occasion when the two cheques

were encashed, he had not even lodged an FIR with the police, as he was not sure who on his

own staff could have had access to his cheque book and encashed the cheques. It was only on the

third occasion that he lodged an FIR with the police. Hence, it is an admitted fact that the

respondent failed to keep the cheque book under lock and key.

In view of the above circumstances all the citations cited above are applicable to the case

on hand. It is clearly established that the respondent had failed to take due care of his cheque

book due to which his own staff could access the same and withdraw the money fraudulently

from the bank account. He came to know the same on updating his pass book. Bank cannot be

held for deficiency in service in this regard.

Secondly, complaint regarding fraudulent withdrawal from the respondent account on the

basis of forged cheques, involve complicated and complex questions which require elaborate

evidence and hence, the dispute is not adjudicable in summary jurisdiction. As such the

complaint is not maintainable in the Consumer Form.

The facts of the case also clearly indicate that the complaint was filed beyond the period of

limitation of two years and hence, it should have been dismissed by the District Forum.

In view of the foregoing, the revision petition is allowed and the order of the State

Commission is set aside.

Sd/- ..………………………………

[ V B Gupta, J.]

Sd/- ………………………………..

[Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 432 OF 2008

(Against the order dated 08.08.2008 in Complaint Case No. 122/2008 of the Delhi State Consumer Disputes Redressal Commission)

Canara Bank Head Office at 112, J.C. Road Bangalore, Karnataka And Branch at Kashmere Gate Delhi … Appellant

Versus

1. M/s Jain Motor Trading Company No. 2704, Kashmere Gate Delhi

2. Mr. Virender Kumar Jain R/o 49, Rajpur Road Civil Lines, Delhi

… Respondents

BEFORE:

HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER


For Appellant : Mr. Manish Chauhan, Advocate

For Mr. Vivek Kumar Tandon, Advocate

For Respondents : Mr. Rohit Gandhi, Advocate with

Mr. Virender Kumar Jain (R-2) in person

Pronounced : 29 th July, 2013

ORDER

PER VINEETA RAI, PRESIDING MEMBER

1. This First Appeal has been filed by Canara Bank, Opposite Party before the Delhi State

Consumer Disputes Redressal Commission and Appellant herein being aggrieved by the order of

that Commission which had allowed the complaint of deficiency in service and unfair trade

practice made against it by M/s Jain Motor Trading Company, Respondent herein and Original

Complainant before the State Commission.

2. In his complaint before the State Commission, Respondent/Complainant had contended

that he had bank account no. 184 with Appellant/Bank from the early 1970s which it was

operating regularly. Since Respondent/Complainant felt need of an OCC account, it requested

for the same to the Appellant/Bank, who converted their above account into an OCC account

after the Respondent/Complainant had duly complied with the various formalities to open such a

account, which included mortgaging his property at Kashmere Gate as collateral security against

the said Account. This facility continued without any problems till 2004 when due to certain

unavoidable reasons, Respondent/Complainant was unable to pay the outstanding amount of

Rs.51.84 Lakhs as on September, 2004 to Appellant/Bank and, therefore, the OCC account was

declared as NPA by the Appellant/Bank on 31.10.2004 vide its letter dated

28.02.2005. However, with a view to settle the issue Respondent/Complainant entered into One

Time Settlement (OTS) with Appellant/Bank, according to which a sum of Rs.4 Lakhs (apart

from Rs.1 Lakh already deposited) was to be paid immediately and the balance sum of Rs.47

Lakhs was to be deposited within 6 months from the date of issue of that letter and if this amount

was deposited within 90 days then no interest was to be charged. In case it was deposited

thereafter, then interest at PLR(s) was to be charged till clearance. In terms of the OTS,

Respondent/Complainant started making the payments and requested Appellant/Bank for

extension of time by another 6 months. However, despite this, Appellant/Bank cancelled the

OTS on the grounds of non-payment. Appellant/Bank, however, accepted the money tendered

Respondent/Complainant thereafter which amounted to extension of time to clear the

dues. Further, as per verbal assurances given by the officials of Appellant/Bank, the time had

been extended upto 25.06.2008 by which time the entire amount of Rs.52 Lakhs was paid.

Respondent/Complainant thereafter approached Appellant/Bank to get back the property

documents in respect of the mortgaged property, which Appellant/Bank refused to return on the

ground that certain dues towards interest were still to be paid and raised an illegal demand of

Rs.22,46,005/- in this respect. Being aggrieved, Respondent filed a complaint before the State

Commission on grounds of deficiency in service and unfair trade practice and requested that

Appellant/Bank be directed to release the documents of mortgaged property to him with

compensation of Rs.5 Lakhs towards inconvenience, mental agony and harassment and further

Rs.5 Lakhs by way of damages.

3. Appellant/Bank on being served filed a written rejoinder before the State Commission

denying that there was any deficiency in service. It was contended that Appellant/Bank was

fully justified in not releasing the documents of mortgaged property since there was a clear

violation of the OTS. It was specifically stated that the terms and conditions under the OTS were

as follows :

“… the Bank has accepted your compromise proposal on the following terms and conditions: To pay Rs.52,00,000/- (Fifty Two Lacs Only) in full and final settlement payable as – (a) Rs.1,00,000/- already adjusted deposited by you at the time of submission of

OTS Proposal.(b) Rs.4,00,000/- to be deposited immediately.(c) Balance of Rs.47,00,000/- will be deposited within six months from the date of

this letter. If paid within 90 days no interest shall be charged. Beyond 90 days interest at PLR(s) shall be charged from the date of communication till clearance.

You may treat the account closed only after depositing the amount as

mentioned above. The securities will be released only after the liquidation of Bank’s

outstanding as detailed above. You are to withdraw claim against the Bank, if any. If we shall not receive the amount as per above stipulations, the

concessions permitted in the above proposal shall be withdrawn automatically and the bank shall have right to claim the full amount.”

Since Respondent/Complainant did not adhere to the above terms and conditions of the OTS by

not depositing the entire amount within a period of 6 months, the offer in the OTS became null

and void and the Respondent/Complainant was liable to pay interest as claimed by the

Appellant/Bank. It was specifically denied that any assurance, verbal or otherwise, had been

made to extend the time limit for payment of the outstanding amount. In fact only a sum of

Rs.25 Lakhs had been deposited upto 11.07.2007 i.e. after 6 months and the remaining amount

was paid only in 2008.

4. The State Commission after hearing the parties and on the basis of evidence produced

before it allowed the complaint by observing as follows:“4. It is contended by the Ld. Counsel for the O.P. that since the applicant/complainant did not adhere to the terms of OTS by depositing the entire amount within 90 days and deposited the same after more than six months, the offer in the OTS proposal became null and void making the complainant liable to pay interest as claimed by the O.P. Bank. … 5. Let us assure that time was the essence of OTS. But that does not mean that the late deposit of amount by few months was an act of malafide. For breach of OTS (One Time Settlement) terms the OP-Bank was at the most entitled to claim interest on late deposit and should not have resorted to the act of recovering money which was in the ordinary course due from him.”

The State Commission, therefore, allowed the complaint in the following terms :“i) O.P-Bank shall release the security documents as it has already received Rs.52.00 Lakhs, but against payment of agreed interest for the delayed period of six months only on the entire amount of Rs.52.00 Lakhs, as this will take care of

the pleas of the O.P. that time was the essence of OTS and also in view of the bonafide of the applicant/complainant in making the payment of the entire amount. However, the O.P-Bank is not concerned with the internal dispute of the partners. The O.P-Bank shall issue the documents in the name of the owner of the property whose property has been mortgaged. ii) Amount of Rs.3.00 Lakhs lying deposited with this Commission shall be released to the applicant/complainant.”

5. Being aggrieved by the order of the State Commission, the present appeal has been

filed.

6. Learned Counsels for both parties were present and made oral submissions.

7. Counsel for the Appellant/Bank reiterated that there was a clear violation of the terms and

conditions of the OTS and Respondent/Complainant was required to clear entire amount which

was due by 11.03.2007. However, by that date Respondent/Complainant had only deposited

Rs.25.00 Lakhs and in fact as indicated in the letter dated 19.02.2008 (Annexure-4 of the paper-

book) Appellant/Bank wrote to the Respondent/Complainant that they would withdraw the OTS

if Respondent/Complainant did not liquidate the amount due within 7 days of the receipt of that

letter. Respondent/Complainant was again given additional time of 15 days by the

Appellant/Bank for liquidating the account with interest vide letter dated 15.05.2008 (Annexure-

5 of the paper-book). When there was no response, the OTS was withdrawn on 18.06.2008 i.e.

well after the stipulated period for making the entire payment. Respondent/Complainant in the

meantime filed a complaint before the State Commission for release of the documents of

mortgaged property and during this period also paid the entire money in terms of the

OTS. However, since time was the essence of the OTS, as observed by the State Commission,

Appellant/Bank had rightly asked Respondent/Complainant to pay the amount of interest due

once the OTS had been cancelled. Since this was not paid, Appellant/Bank was justified in not

releasing the property documents which was mortgaged with them. Counsel for the

Appellant/Bank also contended that in the written rejoinder filed before the State Commission

they had stated that the Respondent firm being a commercial concern is not a ‘consumer’ as

defined under the provisions of the Consumer Protection Act, 1986 and this fact has not been

dealt with in the order of the State Commission.

8. Counsel for Respondent/Complainant on the other hand while agreeing that

Respondent/Complainant had accepted the terms and conditions of the OTS stated that because

of some financial problems it could not pay the entire amount by the stipulated period and,

therefore, sought extension of time for the same. According to the Counsel for

Respondent/Complainant, Appellant/Bank on their request seeking extension of time had

extended the time for payment vide its letter dated 11.07.2007 till 25.06.2008 by which time the

entire dues had been paid to the Bank. This was also the finding of the State Commission in its

order. In fact as is clear from the letter dated 19.02.2008 (Annexure-4), the OTS was revoked

after Respondent/Complainant had paid the entire amount and not before that period. Further,

the State Commission had directed Respondent/Complainant to pay a sum of Rs.2 Lakhs as

interest for the slightly delayed period in settling the OTS which had also been paid by

him. Counsel for the Respondent/Complainant challenged the contention of Counsel for the

Appellant/Bank that Respondent was not a ‘consumer’ in terms of Section 2(1)(d)(ii) of the

Consumer Protection Act, 1986. It was stated that there was no commercial activity, profit or

interest in taking the OCC account and this issue stands well settled by a number of judgments of

the Hon’ble Supreme Court as also National Commission. The present appeal, therefore,

deserves to be dismissed.

9. We have heard learned Counsels for the parties and have also carefully gone through the

evidence on record. The fact pertaining to the Respondent/Complainant having an OCC account

with the Appellant/Bank to help its financial conditions is not in dispute. It is also a fact that the

said account was declared as NPA on 31.10.2004 and that subsequently the parties entered into

an OTS as per the payment schedule, as has been reproduced in the order of the State

Commission. It is also not disputed that the Respondent/Complainant could not pay the entire

amount as per the payment schedule i.e. within 6 months during which time he paid only Rs.25

Lakhs upto 11.07.2007. The State Commission as a first Court of fact had clearly concluded that

at the request of the Respondent/Complainant for paying the remaining amount, the

Appellant/Bank had indeed written a letter extending this period. We see no reason to dispute

the same because the first letter written by the Appellant/Bank giving time to

Respondent/Complainant to settle the account was dated 19.02.2008 which clearly indicates that

the time for making the payment was extended from 11.07.2007. It is further a fact that before

the filing of the complaint before the State Commission, Respondent/Complainant had paid the

entire amount which was accepted by the Appellant/Bank. If the Appellant/Bank wanted to

scrap the OTS, it should not have then accepted the delayed payment. Further, as observed by the

State Commission, if there was some delay on the part of Respondent/Complainant, the Bank

could have charged interest on the same instead of not releasing the property documents once it

had accepted the entire amount due from Respondent/Complainant as per the conditions of the

OTS. To sum up, we agree with the finding of the State Commission for not accepting the

contention of Appellant/Bank.

10. We also do not accept the contention of Counsel for Appellant/Bank that Respondent

being a commercial firm is not a ‘consumer’ as per the provisions of the Consumer Protection

Act, 1986. Commercial concerns per se are not excluded from filing a complaint under the

Consumer Protection Act, 1986 if it does not involve direct generation of profits or resale. Also

as stated in the instant case, the OCC facility was sought from Appellant/Bank to help resolve

the financial difficulties being faced by Respondent which was not per se a commercial activity

generating profits. As pointed out by Counsel for Respondent, these aspects are well settled in a

number of judgments, including of this Commission as also of the Hon’ble Supreme Court

e.g. Harsolia Motors Vs. National Insurance Co. Ltd. [I (2005) CPJ 27 (NC)] and Madan Kumar

Singh Vs. Distt. Magistrate, Sultanpur [(2009) 9 SCC 79].

11. In view of these facts, we see no reason to interfere with the order of the State Commission

especially since the Respondent/Complainant has also paid the interest on the delayed payment

as directed by the State Commission. We, therefore, uphold the order of the State Commission

in toto and dismiss the present appeal. No costs.

Sd/-

(VINEETA RAI)

PRESIDING MEMBER

Sd/-

(VINAY KUMAR)

MEMBER

Mukesh



(Against order dated 10.01.2013 in First Appeal No. 854/2009 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

Oriental Bank of Commerce Hinduan Branch, Station Road, Hinduan City, Distt. Karauli, Rajasthan

…Petitioner

Versus Chandan Bala Jain W/O Late Sh. Sugan Chand Near Jain Mandir, Vardhman Nagar, Hinduan City, Distt. Karauli, Rajasthan

…Respondent BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner : Mr. Vipin Jain, Advocate

PRONOUNCED ON 1 st AUGUST, 2013 ORDER

PER DR. S.M. KANTIKAR

1. This Revision Petition is directed against the Order in First Appeal No. 854 of 2009 passed on 10.01.2013 by the State Consumer Disputes Redressal Commission, (in short, ‘State Commission’), Circuit Bench 2, Jaipur, Rajasthan whereby the State Commission has allowed the First Appeal, setting aside the order of the District Consumer Disputes Redressal Forum (in short, ‘District Forum’), Karauli, Rajasthan in Complaint No. 49/2008.

2. Facts of the Case in brief:The Complainant’s husband, Late Sri Sugan Chand took a housing loan of Rs.3 lacs from the OP Bank in 2006 and OP charged Rs.265/- as a processing fee and insurance premium of Rs.1929/-. He had paid 16 instalments of Rs.3,000/- per month totalling Rs.48,000/-. Sugan Chand died in a road accident on 16.05.2007. After the death the OP recovered Rs.2,84,000/- towards the balance loan and interest.

3. The main issue of the Complainant was that the OP bank had recovered the outstanding loan from her husband instead of which the OP should have recovered the loan amount from insurance company. Hence, for deficiency in service filed a complaint before the District forum. The OP Bank admitted the sanction of loan but has denied charging 0.8% process fee and so insurance amount cannot be paid. The District forum dismissed the complaint.

4. Against the order the District Forum the Complainant preferred an appeal before the State Commission. The State Commission through evidence on record and the terms/conditions of loan agreement made the observation as:

“In the light of the above terms, the OP was to provide free Personal Accident Insurance up to Rs.5 lacs and Process Fee was to be recovered from the borrower by debiting his account. There was no term in the Loan Agreement that the Borrower had to pay insurance premium, thus by not insuring the borrower, the OP was deficient in service due to which the

Complainant had to pay the outstanding dues with interest to the OP after the death of Mr. Sugan Chand on 16.05.2007, which she is entitled to recover should from the OP.”

5. The State Commission allowed the appeal and directed the OP to refund of Rs.2,52,000/- collected as principal amount and interest after 16/5/2007 within one month otherwise they will be liable to pay 9% p.a. interest. The OP can retain Rs.265/- towards Process Fee. The OP shall also pay to the Complainant an amount of Rs.10, 000/- towards mental agony and Rs.2, 000/- towards litigation costs. 16.05.2007.

6. Aggrieved by the order of the State Commission this Revision Petition was filed in this commission.

7. We have heard the counsel for petition who argued vehemently. There is a delay of 81 days in filing this Revision Petition. The application filed by the petitioner for the condonation of delay did not specify or explain day to day reasons of delay. Hence, the delay cannot be condoned. Regarding the merits of this petition it is clear from the OP’s own circular which is reproduced as:

“Bank shall provide free personal accident insurance up to Rs.5.00 lacs or the loan amount whichever is lower to the applicants and also insurance of house/flat up to the loan amount free of cost. In such cases, process fee @ 0.8% is to be recovered from the borrower.”

8. Accordingly, the OP should have provided free personal accident insurance up to Rs.5 lacs and they should have recovered the process fee from the borrower by debiting his account. Therefore, the OP failed to do so. It is the deficiency of service for which OP is liable.

9. Therefore, this Revision Petition is barred by time and even devoid of merits. It is dismissed. No order as to costs.

…..…………………………(J. M. MALIK, J.)

PRESIDING MEMBER

.…..…………………………(Dr. S. M. KANTIKAR)

MEMBER

MSS/14



(Against order dated 15.02.2013 in First Appeal No. 805/2012 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

Kerala State Co-operative Bank Ltd. A Schedule Bank Head Office at Co-Bank Towers, Palayam, Thiruvananthapuram, Kerala State Rep. ByIts Senior Manager

…Petitioner

Versus 1. L.R. Lekha, W/O G.R. Jayakumar, Pandaravilakom, Sri Gowri Sankaram, Marayamuttom

P.O., Neyyattinkara, Thiruvananthapuram, Kerala State

2. G.R. Jayakumar S/O Gopalakrishnan Nair, Pandaravilakom, Sri Gowri Sankaram, Marayamuttom P.O., Neyyattinkara, Thiruvananthapuram, Kerala State

…Respondents BEFORE: HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner : Mr. M.T. George, Advocate

PRONOUNCED ON 1 st August , 2013

ORDER


1. This Revision Petition is filed by Kerala State Co-operative Bank Limited against the Order dated 15.02.2013 Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in short, ‘State Commission, Kerala’) in Appeal No. 805/2012.The said decision of the State Commission was passed in the appeal filed against the Order dated 30.04.2012 passed by the District Consumer Disputes Redressal Forum, Thiruvananthapuram (in short, ‘District Forum’) in CC No. 225/2010.

2. Facts in brief:

The Complainants availed a loan of Rs.7,00,000/- from ‘The Kerala State Co-operative Bank Ltd’.( the OP), Karamana Branch for repair and renovation to their building in Perumkadavila Village. The loan was sanctioned on 10.06.2006 that the loan was disbursed in three instalments as 1st of Rs.2,10,000/-, 2nd of Rs.2,801,000/- and 3rd of Rs.2,10,000/- that the loan with interest is to be repaid in 180 monthly instalments, that the interest rate was fixed as 7.25% and the penal interest is attracted only if there is default in payment of principle or interest . The 1st instalment was disbursed on 29.06.2006. The repayment EMIs without any default started by the 1st Complainant. On perusal of 1st Complainant’s bank account it was found that the OP have charged interest more than agreed rate of 7.25%. It was without notice to the Complainant and against the terms and conditions. On enquiry with the OP, who stated that the higher rate of interest was due

to non-receipt re financing from the NABARD. The OP had collected an amount of Rs. 20,216/- in excess than the agreed rate of interest at 7.25% from the Complainant from 29.02.2008 to 30.05.2010. Hence the Complainant asked the OP not to charge interest in excess than that of the agreed rate of 7.25% and to refund the excess amount of Rs.20,216/- and also to pay compensation and cost.

But OP denied complainants demand .The OP contended that as the NABARD has stopped the refinancing of loan for rural housing which resulted huge loss to the bank and therefore, the Directors of the bank reviewed the scheme and increased the rate of interest. This decision was conveyed to the Complainant by registered post. The OP has discretion to modify the terms and conditions impose or to add additional terms and conditions that kept considered necessary to protect its interest.

Thereafter, the complainant filed a complaint No 225/2010 before District Forum on the ground that OP has committed grave irregularity in collecting excess rate of interest unilaterally and violated the terms and conditions of the agreement which is deficiency in service and unfair trade practice.

3. The District Forum allowed the complaint ordered as :

“Opposite Party shall not charge interest in excess than that of the agreed rate of 7.25%. Opposite Party shall tabulate the account on the basis of interest at 7.25% and shall refund the excess amount collected so far in excess of the contractual rate of interest of 7.25% per annum to the Complainants. Opposite Party shall pay Rs.5,000/- as compensation and Rs.2,000/- as cost to the Complainants.”

4. Against the order of District Forum the respondent preferred an appeal No. 805/2012 before the State Commission. The State Commission relied upon its own decision dated 07.10.2009 F.A. 142/09; the “Managing Director, Kerala State Co-operative Bank, Thiruvananthapuram Vs. P. Arumugharn”. In that appeal the State Commission has taken a view that the Respondent/Complainant who availed the loan is only bound to pay the fixed interest @ 7.25% p.a. so the action of the part of the appellant/opposite parties in demanding and collecting enhanced interest at interest at 9% p.a. is an unauthorised high handed action. On hearing both the parties and perusal of Loan Agreement and records on file the State Commission dismissed the appeal with further cost of Rs.10,00/-.

5. Aggrieved by the order of State Commission the respondent bank filed this revision petition.

6. Heard the learned counsel for Petitioner who contended that;

The loan was sanctioned at a concessional rate of interest of 7.25% per annum under the NABARD sponsored Scheme “Rural Housing Loan”. NABARD stopped refinance to the Bank which resulted huge loss to the bank and hence the Board of Directors of the Bank decided

to effect an upward revision of interest from 7.25% to 9% for the loans under Rural Housing Loan. It was stated that OP shall have the discretion to modify the terms and conditions to impose or to add additional terms and conditions that kept considered

necessary to protect its interest, though the Complainant is not a party in the agreement executed between the NABARD and the petitioner in respect of sanctioning of the funds.

7. It is noted from the evidence on record that the petitioner bank has decided to extend the loan facility by enhancing the rate of interest at 9% treating the loan as of an own fund loan so as to give protection to its customers. Accordingly registered notice to RHL Scheme customers providing an opportunity to them either to continue a loan facility with enhanced rate of interest or to close the loan within the time limit specified in the registered notice was given/published.

8. Discussing the merits of this case , it is clear the Complainants were only bound to follow the agreement executed between the bank and themselves. The agreement did not mention any directions or rules of NABARD. The loan disbursement document is very clear that last loan instalment (3rd) was disbursed on 4/1/2007; but the letter of enhancement of interest of 9% was sent by registered post on 30/1/2008. OP has collected excess interest of Rs. 20216/- from 29/2/2008 to 31/5/2010. It appears that the OP has acted upon its own whims and fancy without any proper directions or rules that has increased the interest abruptly. It amounts to unfair trade practice and OP bank has no right to collect any excessive amount of interest which is a deficiency in service. The OPs have not produced any documents, rules or directions to prove their contentions.

9. Therefore, there is no illegality in the orders passed by the Fora below. Hence, this Revision Petition is dismissed with costs of Rs.10,000/- to be paid to the Complainant. The order should be complied within 60 days otherwise it will carry interest @ 9% per annum till the payment.

.…..…………………………

(Dr.S. M. KANTIKAR) MEMBER

MSS/14

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION

NEW DELHI

REVISION PETITION NO. 4662 OF 2012 (Against order dated 03.08.2012 in First Appeal No. 1010/2012 of the

A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Jaswinder Singh, S/o. Kulwanth Singh, R/o. Plot No.9, P&T Colony, Balamrai, Secunderabad

…Petitioner Versus

Corporation Bank, S.P. Road Branch, 9-1-86/1, Sardar Patel Road, Secunderabad, Rep By its Chief Manager.

…Respondent AND


(Against order dated 03.08.2012 in First Appeal No. 1011/2012 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Sri Pradeep Kumar Gupta, S/o. Late Babulal Gupta, R/o H.No.8-5-317/1, Plot No.91/C, Brindavan Colony, Old Bowenpally, Secunderabad

…Petitioner Versus

Corporation Bank, S.P. Road Branch, 9-1-86/1, Sardar Patel Road, Secunderabad, Rep By its Chief Manager.

…Respondent BEFORE: HON’BLE MR.JUSTICE J.M.MALIK, PRESIDING MEMBER HON’BLE DR.S.M.KANTIKAR, MEMBER For the Petitioner in both cases : Mr. Himanshu Gupta, Advocate For the Respondent in both cases : Mr. Alok Kumar, Advocate with Mr. Amit Kumar Dadhich, Advocate

PRONOUNCED ON 1 st August , 2013

ORDER


1. This common order passed is passed in the two Revision Petitions No. RP/4662/2012 and RP/4663/2012 filed against the order of the State Consumer Disputes Redressal Commission, Hyderabad, A.P. (in short, ‘State Commission’) in First Appeal No. 1010 of 2012 and First Appeal No. 1011 of 2012, whereby the Hon’ble State Commission was pleased to allow the appeal preferred by the Respondent/Corporation Bank and dismissed the Complaint filed by the Petitioner.

2. Brief facts in the case are :

The facts are similar in both revision petitions. The Respondent/Bank published a notification for the sale of mortgage properties in the public auction on 27.05.2009 at 11.30 a.m. Accordingly as per the auction conditions the petitioners in both Revision Petitions participated the auction proceedings by depositing earnest money of Rs.1,10000/- each. The Petitioner in RP 4662/2012 succeeded the auction for the Flat No. 8-7-114/8/28, 2nd floor at Hussaini Bagh, Golbowli, Old Bowenpally, under Kukatpally Municipality for a sum of Rs.15,05,500/-. The petitioner in RP No 4663/2012 succeeded the auction for the Flat No. 8-7-114/8/28. on first floor flat at Hussaini Bagh, Golbowli, Old Bowenpally, under Kukatpally Municipality for a sum of Rs.16,40,000/- . Thereafter, the OP asked to remit the balance auction money. On 28.05.2009 the OP issued Xerox documents of the auction property for the scrutiny from the Complainant. The Complainant approached few other Banks for getting loan, who on verification on the title deed stated that the title deeds are defective. The Complainant verified the title deeds from legal consultants who also confirmed about the defects in the title deeds Hence, thereafter the Petitioner approached the Corporation Bank (OP) for getting Housing Loan with respect to said property. But the OP Bank also refused to grant loan without setting any reasons. Therefore, the Petitioner wrote a letter to the Regional Office on 30.05.2009 about the defects in the title of a said property and requested the OP to refund the said deposited earnest money of Rs.1,10,000/-. The OP did not respond but stated that they have already sent a letter by forfeiting investment money paid by the Complainant. But no such letter received by the Complainant. Therefore, the Complainant finally sent a registered letter on 11.06.2009 for which the OP replied evasively with false and frivolous allegations. Further, the Complainant approached a senior legal Counsel who also being advocate in the panel of banking institutions and took a legal opinion on the said title deed. As per their opinion dated 28.6.2009 the property covered by Registered sale deed is in favour of defaulter of the OP and the powers vested in favour of vendor of the said defaulter from each other. On this ground the Complainant wrote another letter to OP on 09.07.2009 enclosing the said legal opinion and requested to refund the earnest money deposited. But the OP did not complied with the Complainants request. Hence, alleging deficiency of service the Complainant filed a complaint before the District Consumer Disputes Redressal Forum, Hyderabad, A.P. (in short, ‘District Forum’) for the relief in the CC No. 810/2009.

3. The OP filed their version as follows:They have acted as per the terms and conditions furnished to the bidders in respect of auction property. The Complainant was declared as highest bidder but he did not comply with the terms and conditions of auction .He has not deposited 25% of the bid amount on same day and also failed to pay the remaining 75 % within fifteen days. Therefore, the OP have forfeited the earnest money of 1,10,000/- as per terms of auction.The OP also contended that they have sustained loss by the way of conducting another auction in respect same property and expenses of publication. Therefore, no deficiency in service.

4. The District Forum allowed the Complaint after hearing the Counsel for

both the parties and perused all material on record and directed the OP to refund the earnest deposit amount of Rs.1,10,000/- to the Complainant along with interest at 9% p.a. from the date of the deposit till the date of realization and to pay Rs.2,000/- towards costs of the complaint.

5. Aggrieved by the order of the District Consumer Forum the Bank (OP) preferred two appeals FA No. 1010 of 2012 and FA No 1011/2012 before State Commission. OP contended that there is no illegality or irregularity or deficiency in service in forfeiting earnest money.

6. The State Commission perused the entire material on record and the evidence and heard the both the parties and set aside the order of the District Forum and dismissed the complaint.

7. Aggrieved by the order of State Commission the Petitioners have filed the instant Revision Petitions before this Commission.

8. We have heard the Counsel for the parties. The Counsel for the Petitioner argued that the OP Bank as played fraud as they have knowledge about the defective title deed and OP betrayed the trust of the general public by auctioning such property.

9. We have considered the following submissions of the OP Bank. It is pertinent to observe that, when the bank has advertised that purchase of flat would be on ‘as-is-where-is’ basis, it clearly means that the Seller is not responsible for the Title Deeds. It is the bounden duty of the Purchaser to find out, whether the above said flat is free from all encumbrances. The Bank is not responsible for that. That is why Bank has given the advertisement in such a manner, cautioning the Purchaser to verify the Title Deeds. In that context, the Bank will have to spend lot of money on advertisements and on auction itself. The time of the bank managers is also wasted.

10. On perusal of evidence on record it appears that the O.P have misused the term for “as is where is”. It was a deliberate concealment of legal position of the title deed. It is clear that at the inception only the intentions of OP were to conceal the defective title. Therefore, the advertisement “as is where is” created confusion in this case. Affidavit of Complainant shows that the Complainant was interested in participating in the public auction and requested the OP to provide the copies of the title deeds for verification prior to the date of auction but the OP refused to provide it prior to the date of auction. Therefore, the Complainant was unable to verify the title.

11. From the inception the OP was well aware about the defective title of said auctioned property and with malafied intentions OP has not issued those documents to the complainant for verification of legal aspects of title. It is quite surprising to note that OP issued the copies of title deed after completion of auction process. Therefore, such defective title is of no use for the complainant.

12. Even after successful bidding the complainant tried his level; best to get loan to remit balance of bid amount; but no banks were ready to grant loan on basis of such defective title deed. The OP bank also denied giving loan to the complainant.

13. Hence, we hold the OP bank responsible for such debacle by which the Complainant did not get house and sustained loss despite he was a successful bidder. The OP publishing or advertising such defective titled property for auction sale amounts to unfair trade practice and deficiency in service. Hence, the action of OP in forfeiting the earnest money is an illegal act.

14. Hence, we partly allow both Revision Petitions. Accordingly we set aside the order of State Commission and restore the order of District forum with modifications as ;

The OP bank is directed to refund to each petitioner amount of Rs.1,10000/- without any interest after deduction of Rs.25,000/- towards the cost of auction proceedings, advertising etc. This order should be compiled within 45 days otherwise it will carry interest @ 9% per annum till realisation.

…..…………………………(J. M. MALIK, J.)

PRESIDING MEMBER

.…..…………………………(Dr. S. M. KANTIKAR)

MEMBER

Mss/7-8


REVISION PETITION NO. 3759 of 2011 (From the order dated 18.8.2011 in Appeal No.615 of 2008 of the State Consumer Disputes Redressal Commission, Chennai Bench II) G. Ramachandran 18/6, Peyalwar Koil Street, Triplicane, Chennai – 600005

… Petitioner/Complainant

VersusICICI Bank Limited Nungambakkam Branch No. 110, Prakash Presidum Nungambakkam Chennai – 600034

… Respondent/Opp. Party

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Manish Kumar, Advocate For the Respondent : Mr. Pankaj Yadav, Advocate

PRONOUNCED ON 1 st August, 2013 O R D E R


This revision petition has been filed by the Petitioner against the impugned order dated

18.8.2011 passed by the State Consumer Disputes RedressalCommission, Chennai, Bench II (in

short, ‘the State Commission’) in Appeal No.615 of 2008 – ICICI Bank

Limited Vs G. Ramachandran. by which, while allowing appeal partly, order of District Forum

allowing complaint was partly set aside.

2. Brief facts of the case are that complainant applied for loan from Employees’ Provident

Fund organization to complete his construction and loan of Rs.75,000/- was sanctioned by

Employees’ Provident Fund organization and cheque dated 11.9.2003 worth Rs.75,000/- was

sent by Employees’ Provident Fund organization to OP for crediting in Complainant/Petitioner’s

account which was not credited. Alleging deficiency on the part of OP/respondent, complainant

filed complaint with a prayer to credit the cheque amount of Rs.75,000/- with interest @ 24%

p.a. interest and further pay compensation and cost. OP contested complaint and submitted that

as cheque did not bear correct account number; hence, amount could not be credited in

complainant’s account and awaiting instructions from their Head Office. Learned District

Forum after hearing both the parties, allowed complaint and directed OP to credit Rs.75,000/-

along with 24% p.a. interest in complainant’s account and further pay Rs.15000/- as

compensation and Rs.1,000/- as litigation cost. Appeal filed by the respondent was partly

allowed by learned State Commission vide impugned order and order directing to credit

Rs.75,000/- was set aside and rest of the order was upheld 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 learned District Forum rightly directed

OP to credit Rs.75,000/- in petitioner’s account, but learned State Commission has committed

error in setting aside this order; hence, revision petition be allowed and impugned order be set

aside. On the other hand, learned Counsel for the respondent submitted that on account of

illegible/wrong account number, amount of cheque could not be credited in the petitioner’s

account and order of State Commission is in accordance with law; hence, revision petition be

dismissed.

5. Perusal of record reveals that cheque was sent by Employees’ Provident Fund organization

along with letter to OP for crediting Rs.75,000/- in petitioner’s SB A/c, but his SB Account

number shown in the letter is not legible. Later on, on 27.10.2003 petitioner wrote letter to OP

regarding non-crediting of Rs.75,000/- in his SB Account, but in that letter too he has mentioned

petitioner’s different SB Account number at two places. In such circumstances, this amount

could not have been credited in petitioner’s SB Account. Learned Counsel for the petitioner has

not proved this fact that Rs.75,000/- has been credited in any one’s account and debited in the

Employees’ Provident Fund organization A/c. In such circumstances, petitioner was not entitled

to get credit of Rs.75,000/- from OP and learned State Commission has not committed any error

in modifying the order of learned District Forum to this extent.


revision petition is liable to be dismissed.

7. Consequently, the revision petition 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 COMMISSIONNEW DELHI

CONSUMER COMPLAINT NO. 157 OF 2013

M/s Akash Ganga Airlines Ltd. Registered Office at : Aadharshila Campus V.I.P.Road, Alambagh, Lucknow-226005 Through its Vice President & Authorised Representative – Smt. Kavita Verma

........ Complainant

Vs.

Aryavrat Gramin Bank B-192, Nirala Nagar, Lucknow – 220007 Through its Senior Manager......... Opposite Party(s)

BEFORE:



For the Complainant : Mr.Shashi Kumar Sinha and Mr.Nikhil Jain, Advocates

PRONOUNCED ON 06 th AUGUST, 2013

ORDER


M/s Akash Ganga Airlines Limited has filed instant complaint under section 21 (a) of the

Consumer Protection Act, 1986 ( in short, ‘the Act’)

against Aryavrat Gramin Bank, Nirala Nagar,Lucknow claiming deficiency in service on the part

of the opposite party bank in connection with the loan sanctioned in favour of the complainant

for setting up a domestic airline.

2. As per the allegations in the complaint , it is clear that services of the opposite party bank

was availed by the complainant in relation to a commercial purpose i.e. setting up a domestic

airlines for earning profit. Therefore, the complainant was given an opportunity to make

submissions on maintainability of the consumer complaint.

3. Learned Shri Shashi Kumar Sinha, Advocate for the complainant has drawn our attention

to the definition of complaint as provided in section 2 ( c) (iii) and submitted that the complaint

means any allegation in writing made by the complainant relating to a case where the services

hired or availed of suffers from deficiency in service. He, further, contended that as per the

section 2 ( O) of the Act, “service” means service of any description made available to the user

and it includes the facilities in connection with banking / financing etc. Learned counsel for the

complainant submits that as per the allegations in the complaint, the opposite party had agreed to

advance loan to the complainant for setting up a domestic airlines. As such the aforesaid service

falls within the definition of “service” as envisaged under the Act. Learned counsel thus

submitted that allegations in the complaint clearly indicate deficiency in service on the part of

the opposite party in relation to the loan account of the complainant. As such the consumer

complaint is maintainable.

4. In support of this contention, learned counsel for the complainant has relied upon the

judgements of the Supreme Court in the matters of Lucknow Development Authority

Vs.M.K.Gupta JT 1993 (6) SC 307 and Civil Appeal No.1064 of 2013 titled Vijaya Bank

Vs. Gurnam Singh, CCI Chambers Co-op Housing Society Vs. D.C.Bank Ltd. AIR 2004 SC

184.

5. We have considered the submissions made on behalf of the petitioner and carefully gone

through the allegations in the complaint. There is no dispute with the proposition raised by the

complainant that the loan account facility given by a bank to its customer falls with the definition

of “service” as envisaged under section 2 (O) of the Act. It cannot be disputed that in terms of

section 2 ( c ) (iii) a complaint can be filed by aggrieved party in relation to deficiency of

service by the service provider. However, in our considered view in order to successfully

maintain a complaint under the Act, the complainant must qualify to be a complainant

as defined under section 2 (b) of the Act.

6. The term complainant as defined under section 2 (b) of the Act is reproduced thus:

“Complainant” means

(i) a consumer; or

(ii) any voluntary consumer association registered under the Companies Act, 1956 ( 1 of 1956) or under any other law for the time being in force; or

(iii) the Central Government or any State Government; or

(iv) One or more consumers, where there are numerous consumers having the same interest;]

(v) in case of death of a consumer, his legal heir or representative;] who or which makes a complaint’’.

On reading of the above for an individual to maintain consumer complaint under the Act,

he has to be a consumer. The term ‘consumer’ has been defined under section 2 (1) (d) of the

Act. The relevant portion of the definition which deals with hiring or availing of service is

reproduced thus:

“Consumer means a person who-

(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 purpose.

Explanation- For the purpose of this clause, “commercial purpose” does

not include use by a person of goods brought and used by him and services

availed by him exclusively for the purpose of earning his livelihood by means

of self-employment”.

7. On reading of this provision, it is evident that after the amendment of the definition of

consumer by the Act 62 of 2002, the persons availing services for any commercial purpose are

excluded from the definition of “consumer”. In the instant case, admittedly the loan facility was

availed by the complainant for a commercial purpose i.e. to set up a domestic airline. No doubt

the explanation to section 2 (1) (d) (ii) provides that commercial purpose does not include the

services availed by a person exclusively for the purpose of earning his livelihood by means

of self employment. Unfortunately, this is not a case before us. Complainant admittedly is a

public limited company and unnatural person. Therefore, it cannot take advantage of the

explanation to Section 2 (1) (d) (ii).

8. We have gone through the judgments referred to by learned counsel for the

complainant. In our view, the aforesaid judgments are based upon their distinct facts and are

not applicable to the facts of the case. Further, the aforesaid judgments relate to the period prior

to amendment of definition of “consumer” when the persons availing services hired for

commercial purpose were not excluded from the definition of consumer. Thus, in our view the

aforesaid judgments are of no avail to the complainant.

9. Learned counsel for the complainant has also contended that in view of the judgment of

the Supreme Court in the matter of Mahesh Chandra Vs. Regional Manager, U.P. Financial

Corporation AIR 1993 SC 935, it is obligation of the bank to reschedule the payment of loan by

the complainant and also sanction further loan to make the complainant company viable. In our

considered view, aforesaid judgment has been passed in a different context while interpreting

the scope of section 29 of the State Financial Corporation Act and it has no applicability to the

facts of the case.

10. The result of the above discussion is that the complainant does not fall within the

definition of the complainant as envisaged under section 2 (d) (ii). As such, he cannot maintain

a consumer complaint under the provisions of the Act. The complaint is, therefore, dismissed as

not maintainable. No order as to costs.

………………………….

(AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

………………………… (SURESH CHANDRA) MEMBERAm/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2667 OF 2013(From the order dated 12.10.2012 in Appeal No. 836/2011 of Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)WITHI.A. No. 4527/2013 (DELAY) 1. M/s. Hi-Tech Dry Wash & Hygienic Services, P.O. Box 57, Pathanamthitta P.O. Pin –

689645, Kerala Represented by its Power of Attorney Sri. Sharafudeen 2. Sri. Sharafudeen S/o Aboobacker, Shannovre House, Mele Vettipuram, Pathanamthitta. Pin – 689645 Kerala

... Petitioners Versus 1. The Manager Kerala Financial Corporation Pathanamthitta Branch, College Road,

Pathanamthitta Pin – 689645 2. The Managing Director Kerala Financial Corporation Vellayambalam Thiruvananthapuram

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. N.M. Varghese, Advocate

PRONOUNCED ON : 7 th AUGUST 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 by the petitioner against the impugned order dated 12.10.2012 passed by the Kerala State

Consumer Disputes Redressal Commission Thiruvananthapuram (hereinafter referred as ‘the

State Commission’) in Appeal No. 836/2011, M/s. Hi-Tech Dry Wash & Hygienic Services &

Ors. Vs. The Manager, Kerala Financial Corporation, vide which while dismissing the appeal,

order passed by the District Consumer Disputes Redressal Commission Pathanamthitta in

Complaint No. 109/2003 filed by the petitioners/complainants was upheld.

2. The brief facts of the case are that the complainants made an application to the respondents

for a loan of Rs. 15 lakhs for starting a dry wash unit for self-employment purpose to earn their

livelihood. The relevant documents and project report etc. were also submitted to the

respondents. It is claimed that there was verbal assurance from the officers of the Opposite

Parties/Respondents that the said loan will be sanctioned. Based on that assurance, the

complainants took further steps and invested huge money for placing orders for machinery

etc. However, the Opposite Parties/Respondents rejected their loan application, stating that the

proposal was neither technically feasible nor financially viable. The complainants filed

Consumer Complaint against the Opposite Parties/Respondents against deficiency in service, but

the District Forum vide order passed on 28.05.2010, dismissed the complaint, saying that the

Opposite Parties had conducted studies and made inquiries about the complainants’ Project, but

they found that the said Project was not feasible. The District Forum held that mere submission

of a loan application does not qualify an applicant to be a Consumer under the Consumer

Protection Act, 1986 and they dismissed the complaint. The appeal filed against this order

before the State Commission was also dismissed. It is against this order that the present petition

has been filed.

3. Heard learned counsel for the petitioner and examined the record.

4. The learned counsel for the petitioner was asked to explain the delay of 140 days in filing

the said petition before the National Commission. The impugned order dated 12.10.2012 was

received by the petitioner on 30.11.2012 but the petition was filed on 18.07.2013. The time taken

for obtaining the certified copy has been stated to be 49 days, but even after deducting this time

and allowing the prescribed period of 90 days for filing the Revision Petition, there is a delay of

140 days. The learned counsel for the petitioner has drawn our attention to the grounds

mentioned in the application for condonation of delay and stated that the main reason was that

the petitioners were unable to mobilize funds towards legal charges for taking steps to prefer the

petition. It took them about six months to arrange the funds and to instruct the counsel to file the

petition. The delay in filing the petition was not intentional. Moreover, petitioner no. 2

Sharafudeen was undergoing treatment for heart problem.

5. A careful consideration of the facts presented before us reveals that the petitioners have not

been able to give solid and convincing reasons for explaining the delay in filing the present

revision petition. It has been held by the Hon’ble Apex Court in a number of cases, recently

decided that unless, there is a cogent and convincing explanation for the delay, the same should

not be condoned. In this regard, it shall be worthwhile to mention the following rulings given by

the Hon’ble Apex Court on the issue:-

6. In the case 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) – Ansul 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”.

11. In view of the above discussion, we do not find that there is enough justification for

condoning the delay in filing this Revision Petition. This Revision Petition is, therefore, ordered

to be dismissed on the ground of delay in filing the same, with no order as to costs. ..……………………………(K.S. CHAUDHARI J.)PRESIDING MEMBER ..……………………………(DR. B.C. GUPTA)MEMBERPSM

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 2745 OF 2013(Against the order dated 22.05.2013 in C.C. No. 22/2013of the State Commission Rajasthan, Jaipur)

HDFC Bank Ltd. Branch Office at Ashok Marg C-Scheme, Jaipur........ Petitioner

Vs.

Nilesh Bhala s/o Shri Gajanand Bhalla r/o plot no. D-51/A, Hathi Babu Marg Banipark Jaipur At present Post Box Office. 264, Gallo Manor, Johanseburg-2052Gauteng 01263, South Africa

........ Respondent

BEFORE:



For the Petitioner : Mr.Satish Mishra, Advocate

PRONOUNCED ON : 08 th AUGUST, 2013

ORDER

PER HON’BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

This revision is directed against the order of the State Consumer

Disputes Redressal Commission Jaipur ( in short, ‘the State Commission’) in complaint case no.

22 / 03 whereby the State Commission condoned the delay in filing of the complaint. The

impugned order is reproduced thus:

“Heard on application for condonation of delay. Reason given in the application of condonation for delay seems sufficient. Therefore Delay is condone.

Matter admitted for hearing. Counsel for opposite party is present; there is no need to issue notice. File is put up for reply on 15.07.2013”.

2. Shri Satish Mishra, learned counsel for the petitioner has contended that the impugned

order of the State Commission is not sustainable for the reason it is a non speaking order, bereft

of any details and also because the order was passed in undue haste without giving any

opportunity of being heard to the petitioner. It is contended that State Commission has

committed a serious illegality by condoning the delay without any sufficient cause.

3. We have considered the submissions on behalf of the petitioner and perused the

record. On perusal of the impugned order, we find that this order was passed by the State

Commission in presence of counsel for the complainant / respondent as also the petitioner. The

order records that arguments on application for condonation of delay were heard. Therefore, it

cannot be said that impugned order was passed without hearing the parties. It is true that the

order passed by the State Commission is cryptic and bereft of details but the fact remains that the

reason for delay in filing of complaint was explained in the application for condonation of

delay. Copy of the application for condonation of delay is annexed to the revision petition,

wherein the respondent / complainant has explained that petitioner bank allowed

illegal withdrawl of 11,70,520/- from his NRI Account on 04.10.2010. It is alleged in the

application that on coming to know about the illegal withdrawl, the complainant pursued the

matter with the officers of the bank during the period w.e.f. 01.12.2010 to 04.12.2011.When the

opposite party / bank failed to give any relief to the complainant, the complainant filed a

complaint with the Bank’s Ombudsman, Reserve Bank of India, Jaipur on 23.03.2011. The

Bank’s Ombudsman passed an award in favour of the complainant on 07.09.2011. The

petitioner not being satisfied with the award, preferred an Appeal before the appellate authority

and the appeal was accepted on 19.03.2012 whereby the award was set aside but the complainant

was given right to agitate his grievance before the competent redressal agency. Thereafter, the

complainant / respondent filed this complaint. From the aforesaid, it is obvious that complainant

was all through vigilantly pursing his remedy. Therefore, he cannot be faulted with any

negligence or laxity. In view of the above, we do not find any reason to interfere with the order

of the State Commission condoning the delay in exercise of revisional jurisdiction. Revision

petition is, therefore, dismissed with cost of Rs.20,000/- to be paid by the petitioner to the

respondent for the unnecessary delay caused.

………………………………. (AJIT BHARIHOKE, J) ( PRESIDING MEMBER)

……………………………… (SURESH CHANDRA) MEMBERAm/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 110 OF 2013 (From the order dated 23.11.2012 in Appeal No.1843 of 2009 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Jaspreet Singh S/o Late Assa Singh R/o Shop-cum-office Navkaran Complex, SCF Urban Estate, Phase 1, Jalandhar New Address H. No. 31-D, New Colony, Near Aggarwal Daba, Cool Road, Jalandhar, Punjab


Versus1. ICICI Home Finance Co. Ltd. 403, 3rd Floor, Delta Chamber, Opp. Bus Stand, Plot No. 35, Jalandhar Through its M.D./Manager/Auth. Signatory

2. ICICI Home Finance Co. Ltd. 31, Infotech Ltd. Maratha Mandhir Annesce, Mumbai Central, Mumbai – 400008


BEFORE



For the Petitioner : Mr. Atulesh Kumar, Advocate

PRONOUNCED ON 8 th August , 2013

O R D E R


This revision petition has been filed by the petitioner/complainant against the order dated

23.11.2012 passed by the Punjab State Consumer DisputesRedressal Commission, Chandigarh

(in short, ‘the State Commission’) in Appeal No. 1843 of 2009 – Jaspreet Singh Vs. ICICI

Home Finance Co. Ltd. by which, while dismissing appeal, order of District Forum dismissing

complaint was upheld.

2. Brief facts of the case are that complainant/petitioner filed complaint before District Forum

and submitted that complainant was joint holder of 28 FDRs along with his wife

Smt. Lata Singh. These FDRs were matured on 29.9.2008. Complainant deposited original FDRs

on 1.9.2008 for release of maturity amount, but he came to know that Rs.7.52 lakhs FDR amount

has already been withdrawn before the date of maturity on 9.11.2006 without any consent or

signatures of the petitioner on the basis of forged and fabricated documents with the connivance

of Smt. Lata Singh and officials of OP/respondent. Alleging deficiency on the part of OP,

complaint was filed. OP resisted complaint and submitted that complainant has not come with

clean hands and has suppressed material facts. It was further submitted that Smt. Lata Singh has

already taken payment and for the purpose of taking double payment in connivance with

Smt.Lata Singh, the complainant has filed this complaint. Lata Singh has not been impleaded as

a party; hence, complaint be dismissed. Learned District Forum after hearing both the parties,

dismissed complaint against which, appeal filed by the petitioner was dismissed by the learned

State Commission vide impugned order against which, this revision petition has been filed.

3. Heard learned Counsel for the petitioner at admission stage and perused record.

4. Learned Counsel for the petitioner submitted that respondent has released payment on the

basis of duplicate FDRs obtained by forged signatures of the complainant; hence, revision

petition be admitted.

5. Perusal of record and copies of FDRs clearly reveals that 7 FDRs of the value of 3.50 lakhs

were in the name of Smt. Lata Singh and complainant was nominee and 9 FDRs worth Rs.4.02

lakhs were in the name of Smt. Lata Singh jointly with complainant. Smt. Lata Singh vide letter

dated 29.8.2006 requested for change of her residential address and for issuance of duplicate

FDRs. Pre-mature payment was withdrawn on submission of indemnity bond which were signed

by Smt. Lata Singh and complainant. Amount of FDRs was transferred in the account of

Smt. Lata Singh. Learned Counsel for the petitioner submitted that Smt Lata Singh forged

signatures of complainant and has taken pre-mature payment of the FDRs. Apparently, this

argument is devoid of force, as 7 FDRs were in the name of Smt. Lata Singh and she was entitled

to get pre-mature payment and as far as another 9 FDRs are concerned, they were also in the

name of Lata Singh jointly with the complainant and duplicate FDRs were issued only on

submission of indemnity bond signed by Smt. Lata Singh and complainant. Complainant has not

proved by any cogent evidence that signatures were forged by Smt. Lata Singh on the letter of

request and indemnity bond and in such circumstances; apparently, no deficiency can be imputed

on the part of respondents.

6. Perusal of record clearly reveals that complainant himself has not come with clean

hands. In the complaint, he has shown himself to be owner of 28 FDRs, whereas 7 FDRs were

exclusively in the name of Smt. Lata Singh and 9 FDRs were in the name of Smt. Lata Singh

jointly with complainant. Another 7 FDRs were in the name of complainant and Smt. Lata Singh

was nominee and other 5 FDRs worth Rs.2.50 lakhs were in the name of complainant jointly

with Smt. Lata Singh. Complainant should have clearly stated in the complaint about holders of

the FDRs, but he has given wrong facts in the complaint. Hon’bleApex Court

in Faquir Chand Gulati Vs. M/s. Uppal Agencies P. Ltd. & Anr. Special Leave Petition (C ) No.

18225-18226 of 2011 dated 14.08.2011 observed:“From what we have stated above, it is clear that the petitioner has not approached the Court with clean hands. Therefore, he is not entitled to be head on the merits of his grievance. Reference in this connection can usefully be made to the judgment of this Court inDalip Singh Vs. State of U.P. (2010) 2 SCC 114, the first two paragraphs of which are extracted below; “For many centuries Indian Society cherished two basic values of life i.e. “satya” (truth) and “Ahinsa” (non-violence) Mahavir,Gautam Budha and Mahatma Gandhi guided the people to ingrain these values in their daily life Truth constituted an integral part of the justice-delivery system which was in vogue in the pre-Independence era and the people use to feel proud to tell truth in the courts irrespective of the consequences. However, post-independence period has seen drastic changes in our value system. The materialism has overshadowed the old ethos and the quest for personal gain has become so intense that those involved in litigation do not hesitate to take shelter of falsehood, misrepresentation and suppressions of facts in the court proceedings. 2. In the last 40 years, a new creed of litigants has cropped up. Those who belong to this creed to not have any respect for truth. They shamelessly resort to falsehood and unethical means for achieving their goals. In order to meet the challenge posed by this new creed of litigants, the courts have, from time to time, evolved new rules and it is now well established that a litigant, who attempts to pollute the stream of justice or who touches the pure fountain of justice with tainted hands, is not entitled to any relief, interim or final”.

7. No only this, Smt. Lata Singh was necessary party in the complaint and complainant has

purposely not impleaded Smt. Lata Singh as a party to the complaint and without impleading

Smt. Lata Singh as a party, who was necessary party, complaint was not maintainable.

8. If signatures of the complainant were forged by Smt. Lata Singh on the letter of request for

issuance of duplicate FDR or on bonds submitted before respondent, complainant should have

approached to the civil court because in summary proceedings, question of forging documents

cannot be decided.

9. In the light of above discussion, we do not find any illegality, irregularity or jurisdictional

error in the impugned order and revision petition is liable to be dismissed.

10. 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 REVISION PETITION NO. 4621 OF 2009 (From the order dated 29.10.2009 in First Appeal No. 106/2007of Andhra Pradesh State Consumer Disputes Redressal Commission)

B. Shankar s/o B. Bhadru c/o B. Parasuram IInd Floor, H. No. 1-9-285/3A, Lalitha Nagar Ramnagar Gundu Hyderabad – 500044.

... Petitioner

Versus 1. Union Bank of India Chikkadapally Branch, 1-8-563/2 Opp. Sandhya Theare, Charminar X

Roads, ChikkadapallyHyderabad – 20 Rep. by its Manager 2. M/s Tata AIG General Insurance Co. Ltd., Life Style Building, Begumpet Secunderabad,

Rep. by its Branch Manager, Srikakulam Town and District… Respondent(s)

REVISION PETITION NO. 2048 OF 2010 (From the order dated 29.10.2009 in First Appeal No. 106/2007of Andhra Pradesh State Consumer Disputes Redressal Commission) Union Bank of India Regional Office at New Delhi Shaheed Bhagat Singh Place New Delhi

... Petitioner Versus 1. B. Shankar s/o B. Bhadru H. No. 1-2-375/1, Street No. 6, Nagaiah, Old Building

Near Gagan Mahal Hospital Domalguda, Hyderabad 2. M/s Tata AIG General Insurance Co. Ltd., Life Style Building, Begumpet Secunderabad

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS RP No. 4621 of 2009For the Petitioner(s) NEMOFor the Respondent-1 Mr. Gautam Gupta, AdvocateFor the Respondent-2 Ms. Anjalli Bansall, Advocate

RP No. 2048 of 2010For the Petitioner(s) Mr. Gautam Gupta, AdvocateFor the Respondent-1 NEMOFor the Respondent-2 Ms. Anjalli Bansall, Advocate


These two revision petitions have been filed under section 21(b) of the Consumer Protection

Act, 1986, against the impugned order dated 29.10.2009 passed by the Andhra Pradesh State

Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

106/2007, “B. Shankar versus Union Bank of India & Anr.”, vide which while allowing the

appeal, order passed by the District Forum, Hyderabad in consumer complaint no. 42/2006 dated

20.12.2006, dismissing the complaint, was set aside.

2. Brief facts of the case are that the complainant, B. Shankar purchased a vehicle

Tata Indica for Rs.3,45,959.42/- by raising finance from OP No. 1, Union Bank of India for the

purpose of earning his livelihood. He spent a sum of Rs.23,062/- towards extra fittings to the

vehicle. The said vehicle was insured with OP No. 2, M/s. Tata AIG General Insurance Co. It

has been stated in the complaint that the complainant is holder of savings bank account bearing

no. 6148 with the OP No. 1, Union Bank of India and he is regularly using this bank account and

maintaining sufficient balance in the same. The complainant issued cheque bearing number

282302 dated 16.6.2004 for Rs.9,623/- drawn on OP No.1, Union Bank of India in favour of OP

No. 2, Tata AIG General Insurance Co., towards payment of insurance premium for the vehicle

and he also paid a cash amount of Rs.449/- to OP No. 2 in order to get the insurance policy of the

vehicle renewed for a period of one year from 16.6.2004. The complainant was always under

this impression that the insurance policy had been renewed with effect from 16.6.2004. In the

meanwhile, the vehicle, in question, was stolen on the mid-night of 09.07.2004. The

complainant lodged an FIR with the Police and also informed OP No. 2 Insurance Company

regarding the theft and requested for payment of insurance claim. However, the said claim was

rejected by OP No. 2 and they informed the complainant that his cheque bearing number 282302

dated 16.06.2004 for Rs.9,623/- had been dishonoured by OP No.1 and hence the insurance

policy could not be renewed. The complainant then contacted OP No. 1 bank, where it was

found that there was sufficient balance in the account of the complainant. The bank authorities

vide their letter dated 13.07.2004 sent to the OP No. 2 insurance company stated that their

counter clerk / officer had inadvertently returned the cheque issued by the complainant by

oversight on 18.06.2004 and there was sufficient balance in savings account no. 6148 of the

complainant. They also issued a banker’s cheque dated 13.07.2004 for Rs.9623/- in favour of

OP No. 2 but the OP No. 2 rejected the said request and also rejected the claim filed by the

complainant as the vehicle had already been stolen by that time. The complainant thereafter filed

the consumer complaint in question, seeking relief that the OP should be directed to pay Rs.4

lakh towards the cost of the vehicle, Rs.1 lakh as compensation for mental agony and loss and a

cost of Rs.3,000/-. The District Forum dismissed the complaint and observed that the

complainant was at liberty to approach the civil court for appropriate relief. An appeal filed

against this order by the complainant was allowed as per the impugned order and the OPs were

directed to pay a sum of Rs.1,50,000/- towards compensation and a cost of Rs.5,000/- to the

complainant within four weeks, failing which the said amount shall attract interest @ 9% p.a. It

was observed by the State Commission that although the value of the vehicle was

Rs.4 lakh, they were allowing only Rs.1.5 lakh as vehicle had already run for a period of 6

years. Against this impugned order, the complainant has filed Revision Petition No. 4621/2009

for enhancement of the compensation and Union Bank of India has filed Revision Petition No.

2048/2010 challenging the said order.

7. The petitioner, B. Shankar, last appeared before this Commission on 21.02.2013, during

hearing before circuit bench at Hyderabad and submitted that he is a poor person and he could

not come to Delhi to argue his case. He filed his written arguments which were taken on record

as requested by him and his presence was exempted for subsequent hearings. In his written

arguments the complainant, B. Shankar, has stated that he had purchased the said vehicle on

13.02.2003, but inadvertently, the date of purchase was mentioned as 1.08.1998 instead of

13.2.2003; hence the vehicle was only 16 months old, when it was stolen on 09.07.2004. The

petitioner has attached copies of the invoice and the registration certificate of the vehicle in

support of his contention that the vehicle was purchased on 13.2.2003. These documents are also

attached with the RP No. 2048/2010 filed by the Union Bank of India. Further, the petitioner has

stated that after the payment of cheque of Rs.9,623/- drawn on OP No. 1 Bank, in favour of OP

No.2 insurance company and after paying Rs.449/- in cash to the insurance company, he was

under the impression that the insurance policy had been renewed for a period of one year with

effect from 16.6.2004. He further states that when he went to the office of OP No. 2 for

informing them about the theft of the vehicle and requesting for the insurance claim, he was

astonished to hear from OP No.2 that cheque, in question had not been honoured by the Bank

and the insurance policy had not been renewed. Thereafter, he went to the bank to enquire into

the matter. The bank issued letter dated 13.07.2004 saying that the cheque was returned

inadvertently on 18.06.2004, although there was sufficient balance in the savings account of the

petitioner. The Bank itself issued a banker’s cheque of Rs.9,623/- and requested the insurance

company to renew the policy, but they refused to do so. The Petitioner, B. Shankar, requested in

his written arguments that the OP should be asked to pay him a sum of Rs.4 lakh along with

interest @12% from the date of purchase of vehicle and compensation of Rs.1 lakh and cost of

Rs.3,000/-.

8. At the time of arguments before us, the learned counsel for the petitioner Union Bank

of India, stated categorically that the cheque, in question, was never produced before the

Bank. He also stated that the letter dated 13.07.2004 purported to have been issued by the Bank

is a false and forged document and such a document was never issued by the Bank.

9. Learned counsel for the insurance company stated that they never received the premium, in

question, and hence the policy was not renewed by them. The cheque presented by them to the

Bank was dishonoured. The amount of Rs.449/- paid in cash by the complainant B. Shankar was

returned to him after the cheque was dishonoured. A registered letter was sent by the insurance

company on 30.06.2004 about the cancellation of the policy with effect from 16.6.2004. The

complainant was advised to make fresh remittance of premium in cash, so that the policy could

be renewed. Learned counsel, however, stated that at this juncture, they could not produce the

said dishonoured cheque before this Commission.

10. We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.

11. The main point involved in the present case is that the insurance policy for the vehicle in

question was valid up to 16.6.2004 and it was not renewed thereafter, because the insurance

company was not able to get the premium for renewal of the same. It is the case of the

complainant as well as the insurance company that cheque number 282302 dated 16.6.2004 for

Rs.9,623/- was issued by him and was presented before OP No. 1 by the OP No.2 but the same

was not honoured and returned to the insurance company. The Bank admitted vide letter dated

13.07.2004 that said cheque was dishonoured inadvertently, due to the mistake of their counter

clerk. They also enclosed a banker’s cheque dated 13.07.2004 for Rs.9,623/- in favour of the OP

No.2 to renew the insurance policy. During the course of the arguments, learned counsel for the

Bank stated that the said cheque was never presented before the Bank and the letter dated

13.07.2004 was a forged document. However, a perusal of revision petition no. 2048/2010 filed

by the bank itself reveals that such a plea has not been taken by the Union Bank of India in the

grounds of revision petition. Ground ‘C’ in the revision petition is reproduced as under:-“For that the Ld. State Commission has grossly erred in placing undue weight to the Ex.9 and observe that because of the dishonour of the cheque the insurance policy was cancelled and thereby the complainant could not obtain the insurance claim. That it is material to mention here that even if the subject cheque could have cleared and policy had been

in existence, the complainant could not have obtained the insurance claim for his vehicle run for commercial purpose under the policy issued for private vehicle. Because on account of having put the subject vehicle to commercial use there has been apparent breach of the policy terms as appearing on the subject policy to the effect that – “no claim would be admissible if the insured vehicle is used for hire or reward.”

12. It is quite clear from the above that the Bank, in their own revision petition, have not stated

anywhere that the letter dated 13.07.2004 was a forged document. They have also not denied

that they issued a banker’s cheque for the amount of Rs.9,623/- to the insurance company and

requested them to renew the insurance policy.

13. It may be observed here that the complainant filed a complaint before the Banking

Ombudsman also on 12.08.2004. In proceedings before the Banking Ombudsman, the Union

Bank of India filed reply to the complaint vide their letter dated 20.09.2004, in which they

clearly admitted that, “due to inadvertent error on the part of the official, the said cheque was

returned unpaid on 18.06.2004 despite availability of balance in the account” The Bank also

admitted that they issued a pay order of equal amount on 13.07.2004 to rectify the error. It is

clear, therefore, that the Bank should not have stated the facts wrongly in proceedings before this

Commission and their act amounts to a sheer misconduct on their part. The letter dated

13.07.2004 has been issued on the letter-head of the Bank, there is a seal of the Bank on the said

letter and also it is signed by Deputy Manager, Chikkadapally, Hyderabad Branch of the Bank.

14. It is clear from the above facts that due to fault of the Bank in dishonouring the cheque for

premium amount, the insurance policy could not be renewed. The consumer cannot be allowed

to suffer because of the wrong-doing of the Bank. Had the Bank not dishonoured the cheque, the

policy would have been renewed and there would have been no controversy regarding the

payment of the claim.

15. It may also be mentioned here that as per the version of the complainant that after sending

cheque for insurance premium and depositing a sum of Rs.449/- in cash with the Insurance

Company, he was under this impression that the policy had been renewed. However, when the

vehicle was stolen, the complainant went to the police station to lodge an FIR and then went to

the office of the Insurancecompany requesting for payment of insurance claim. However, he

learnt from Insurance Company that the cheque, in question, had not been honoured by the Bank

and as such the policy had not been renewed. It cannot be stated, therefore, that the complainant

had the opportunity to pay the premium amount again and get a new insurance policy. However,

in the reply filed by the Insurance Company before the District Forum, it has been stated that

after knowing the report of unpaid cheque by the Bank they informed the complainant by

registered letter dated 30.06.2004 about the dishonour of the cheque and the cancellation of

insurance policy. The Insurance Company have also taken the plea that the complainant was

well-aware about the dishonour of the cheque not only by his banker but also from the insurance

company much prior to the alleged theft of the vehicle but he contended, suppressing all these

facts, that he was astonished to know from the Insurance Company about dishonour of cheque

when he made insurance claim for payment of sum assured. From the facts on record, it is made

out that although there is no documentary evidence to show as to when the complainant received

the letter dated 30.06.2004 from the Insurance Company yet it can be stated that after depositing

the cheque dated 16.6.2004 with the Insurance Company the complainant did not bother to know

about the issuing of insurance policy after getting money from the Bank. The complainant is,

therefore, guilty of showing negligence in the matter if he slept over the issue till the theft of the

vehicle took place.

16. It is further borne out from record that after receiving the cheque of Rs.9,623/-, the

Insurance Company did issue policy in favour of the complainant which was valid for a period of

one year till 15.06.2005 but the said policy was cancelled by the Company after the cheque was

dishonoured by the Bank. In the said insurance policy the total Insured Declared Value (IDV) of

the vehicle has been shown to be Rs.2,62,000/-. The complainant in his complaint and further in

written submissions has stated that since the vehicle was purchased for a sum of Rs.3,45,959.40

and it was only 16 months old, when it was stolen. The complainant has demanded a sum of

Rs.4 lakh as compensation for the value of the vehicle. However, from the IDV mentioned in the

Policy issued by the insurance company, it can be safely presumed that the complainant is not

entitled to get more than Rs.2,62,000/- for loss of the vehicle. However, looking at the

negligence shown by the complainant in not pursuing this case after submitting cheque for the

premium amount he needs to be penalised also to some extent. It is felt, therefore, that a sum of

Rs.1,50,000/- as already allowed by the State Commission seems to be a reasonable amount for

awarding compensation to the complainant for loss of the vehicle.

17. In the facts and circumstances of the case, Revision Petition No. 2048/2010, filed by the

Union Bank of India, is ordered to be dismissed. Revision Petition No. 4621/2009 filed by the

complainant, i.e., B. Shankar, is also dismissed. There shall be no order as to costs.

Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER Sd/-(DR. B.C. GUPTA)MEMBERRS/


REVISION PETITION NO. 1785 OF 2013 (From order dated 27.12.2012 in First Appeal No. 181/2010 of theJharkhand State Consumer Disputes Redressal Commission, Ranchi)WITH

I.A. No. 2861 OF 2013 & I.A. No. 2862 OF 2013 (Condonation of Delay, Stay)

Pradeep Kumar Agarwal, S/o Kishanlal Agarwal R/o Kishoraganj Road, PS : Sukhdev Nagar, Ranchi At present : Biru Complex, Main Road PS : Simdega, District Simdega

… Petitioner Versus

1. Sanjay Agarwal, S/o Ramnarayan Agarwal R/o Main Road, Simdega, PS : Simdega 2. Branch Manager State Bank of India, Simdega Branch, SBI Road PS : Simdega, District – Simdega

… Respondents

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. Gopal Singh, Advocate

PRONOUNCED ON 13.08.2013

O R D E R

JUSTICE J.M. MALIK

1. Shri Pradeep Kumar Agarwal, petitioner/OP1, Builder of M/s.Shanti Construction,

entered into an agreement with the Complainant, Sh.Sanjay Aggarwal, for sale of flat No. B8,

3rd Floor, Biru Complex, Simdega. It was agreed that it will have built-up area of about 1,500

sq.ft. @ Rs.750/- per sq.ft, along with parking space. At the time of agreement, Pradeep

Kumar Agarwal, OP1, took a sum of Rs.3,00,000/- from the complainant. OP1, of his

own accord and after consultation/negotiations with State Bank of India, OP2, got a Home

Loan for an amount of Rs.10,00,000/- sanctioned in the name of the complainant. It is

alleged that OP2, while working in cahoots with OP1 issued two cheques in the name

of M/s. Shanti Construction for an amount of Rs.9,10,000/- on 25.04.2008 and Rs.90,000/- on

14.07.2008. OP1 did not execute any Sale Deed in favour of the complainant. It is averred that

OP1, in connivance with the Bank, deposited a copy of agreement of sale, signed

only by him and got disbursed a sum of Rs.10,00,000/- from the Bank, without the

knowledge of the complainant. Again, the Bank, without disclosing these facts to the

complainant, got his signatures, on the disbursement form and also got signatures

of complainant and his wife on two blank papers.

2. The complainant came to know regarding the loan transaction when the

Bank, without any notice or information, deducted an amount of Rs.11,800/- on

02.07.2009 from the account of Rourkela Branch and an amount of Rs.95,000/- from the

account of State Bank of India, situated at Simdega, on 21.08.2009, the total being,

Rs.1,06,800/- as ‘interest’, of the above said loan.

3. It was agreed that if the incomplete flat took more than 2 months, to complete, in

that event, the interest on the amount of the loan will be paid by OP1. Even though there was

delay of 17-18 months, OP1 did not pay the interest on the loan amount. OP1 had

promised that he will hand-over possession of the flat within 18 months, but the needful was

not done. There was also no improvement in the status of the flat. A legal notice was

issued, but it did not produce the desired result. Ultimately, this complaint was filed before the

District Forum with the prayer that OP1 be asked to return the sum of Rs.3,00,000/-, with

interest @ 18% p.a. OP2, be asked to return sum of Rs.10,00,000/- and interest in the sum of

Rs.1,75,000/- and interest thereon, till date. The amount of Rs.1,00,000/- was demanded for

compensation.

4. Both the OPs contested this case. The District Forum allowed the complaint and directed

the OP1, Pradeep Kumar Agarwal, to handover possession of completed Flat NO.B-8, as per the

Agreement for Sale in the Biru Complex, Simdega, as booked by him, within a

period of two months from the date of the order, failing which, OP1, Builder, was directed to

refund the housing loan amount of Rs.10,00,000/- either to the complainant or directly to the

SBI, Simdega Branch, which amount is outstanding in the name of the complainant in the

SBI, Simdega Branch,OP2, along with admissible interest on the said amount from the date

of filing of this complaint, i.e., 31.10.2009, till its final payment.

Secondly, Pradeep Kumar Agarwal was further directed to pay Rs.3,00,000/- to the

complainant, as paid by him at the time of booking of the said flat to OP1, as admitted by

OP1, in the agreement for Sale (Exb.1), along with interest @ 10% p.a. from March, 2008, till its

final payment.

Thirdly, OP1 was further directed to pay Rs.1,75,000/- to the

complainant on account of interest realized or realizable by the OP Bank from the

complainant, from the date of grant of housing loan to

the complainant till the filing of this case, which the complainant was forced

to bear due to non-delivery of flat by the OP1-Builder, to him.

Fourthly, Pradeep Kumar Agarwal, OP1, was further

directed to pay compensation in the sum of Rs.17,000/- and cost of litigation in the sum of

Rs.4,000/- to the complainant, and OP2-

SBI was directed to pay compensation amount of Rs.3,000/- and cost of litigation in the

sum of Rs.1,000/- to the complainant, within a period of two months, from the date

of this order, on account of deficiency in service and adopting unfair trade practice on

their part, in the present case causing mental and physical harassment and agony to him.

Lastly, it was ordered that OP2, SBI, will not be entitled to realize any interest from the

complainant on the aforesaid housing loan amount from November, 2009, i.e., after filing of this

case, till the possession of the Flat in question is handed over by OP1, to the

complainant or the amount of housing loan disbursed to the OP1/Builder is not refunded by

him, either to the complainant or to the OP2 Bank, as the liability to pay the

present and future interest on the housing loan was fixed upon Pradeep Kumar Agarwal,

OP1.

5. The State Commission dismissed the appeal filed by Shri Pradeep Kumar Agarwal,

OP1.

6. This revision petition has been filed by Sh.Pradeep Kumar Agarwal, OP1.

7. We have heard the learned counsel for the petitioner. He argued that the view taken

by both the fora below are not based on documents. The complainant has failed to prove that

both the OPs were working, cheek by jowl, in order to cheat the complainant. It

was submitted that the complaint contains criminal allegations against the parties, and as

such, the consumer fora does not have the jurisdiction.

8. Instead of touching the heart of the problem, learned counsel for the petitioner just

skirted it. Both the fora have decided the case against the OP1. The counsel for the

petitioner could not invite our attention that some legal questions arise in this revision

petition. It stands proved that OP1 and 2 worked hand in hand to cheat an

innocent person. It was the bounden duty of the Bank to inform the complainant that a

loan was being sanctioned in his favour. They should have charged interest after giving notice

to the complainant. They were not to charge interest of their own, without taking the consent

of the complainant, that too, at two different Branches, situated at different places. The

documentary evidence proves the case of the complainant. Exb.’1’, is Xerox copy of the

agreement to Sell, dated 16.04.2008, which bears the signature of Pradeep Kumar Agarwal,

OP1, Proprietor of M/s. Shanti Construction, only. Exb. ‘1’, is a document,

of utmost importance. It shows that the complainant had booked one flat bearing No. B-

8, on the third floor of Biru Complex, in March, 2008, on payment of earnest money

of Rs.3,00,000/- to the Builder,OP1, and the rest of the amount of the flat, was to be paid

through Housing Loan, to be granted by SBI, Simdega Branch, of the complainant to the

OP1. Most importantly, the signatures of the complainant are conspicuously missing. Exb. ‘G’

goes to reveal that the disbursement of the loan amount was paid to OP1. It is strange to

note that OP2 disbursed the loan, on the basis of the Sale Deed, which did not

bear the signatures of the complainant. OP1 did not file the original copy

of the agreement in dispute. The main document was kept under the hat,

for the reasons best known to OP1. We cannot discuss about Exb. ‘Y’, which is not proved,

in accordance with law.

9. The District Forum, correctly held, to this extent:

“Question of deficiency in service on the part of OP No.2, SBI, Simdega

Branch

(28). ……. He also alleged that the OP Bank never intimated him regarding

sanction of his housing loan nor any chit of paper has been filed by the Bank in

this regard, we are not inclined to accept the above plea

of the complainant, in view of the fact that Arrangement letter of housing

finance dated 23.04.2008 (Exhibit-B), Deed of Undertaking dated

23.04.2008 (Exhibit-C) and Memo of term loan agreement dated 23.04.2008

(Exhibit –D), all are signed by both the borrowers and Exhibit-B is also signed

by the Guarantor Vijay Kumar Agarwal, after sanction of the aforesaid housing

loan. We are also not inclined to accept the plea of the complainant that only

their signatures were obtained by the Bank on the blank forms, as prior to filing

of this case, no such allegations have been made against the OP Bank by the

complainant or co-borrower or guarantor”.

10. However, the following points are also note-worthy. The said disputed letter, Exb.

‘G’, which is a disbursement letter, was not sent, in writing, to the complainant or his

wife. No date has been mentioned by the borrowers on the said letter, except their signatures.

The endorsement and the signature of the Bank Officer, in the margin of the said letter, reveals

the date, 23.04.2008. The date of execution of arrangement letter, Exb. B, Deed

of Undertaking, Exb. C and Memo of term loan agreement, Exb.D, are also dated

23.04.2008. Under these circumstances, there was no question for the complainant/borrower to

execute the disbursement letter Exb.-G, on the same day, without any intimation from the

Builder,OP1 that the building was complete in all respects,

and he was ready to handover the possession of the same to the purchaser. The

bulk amount of the complainant was paid by the Bank to OP1 only, after 25.04.2008 and rest on

14.07.2008. Till July, 2008, all the disbursements, made in favour of OP1, were made, but

possession of the flat was not made to him. The necessary documents were not yet

executed. It is also interesting to note that no mortgage deed or no other

collateral security/demand was obtained by the Bank from the

Borrower, nor Deed of Conveyance of the property was purchased or executed in favour of

the complainant by the original owner. In absence of those

documents, the Bank did not feel any hesitation to disburse the remaining loan in

favour of the OP1. OP2, Bank also did not try to know as to who was in possession of the

premises in dispute. The OP-Bank did not inform the complainant after

disbursement of such heavy loan amount, in favour of the Builder. Exb.’G’ was an important

document by which a heavy amount of Rs.10,00,000/- was intended to be disbursed. The OP-

Bank did not insist to inscribe the same by the borrower and also put the date under his

signatures. The Bank also did not insist the borrower to issue withdrawal slip or cheque to

disburse such a huge housing loan amount, in favour of the complainant, than to do so by mere

chit of paper, Exb.’G’. The Bank did not insist for a Tripartite Agreement among all the three

parties.

11. The record reveals that after getting the entire money in July, 2008, the petitioner/OP1

was to handover the possession of the flat to the complainant, within two months. More than

five years have elapsed, the complainant has not yet got the possession. The filing of this

revision petition is a delaying tactic. OPs are gaining time to avoid their liabilities. We,

therefore, dismiss the revision petition, with costs of Rs.1,00,000/-, which be paid to the

complainant, for wasting five years, i.e., Rs.20,000/- per year, which be paid within 30 days,

from the receipt of this order, otherwise, it will carry interest @ 9% p.a. till

realization. Petitioner is directed to satisfy the Decree, within two months, after receipt of the

order, otherwise, he will be liable to pay extra penalty @ Rs.25,000/- per month, to the

complainant, till the Decree stands satisfied, which will be in addition to the previous order

and the order passed by the District Forum.

.…..…………………………

(J. M. MALIK, J)

PRESIDING MEMBER

.…..…………………………(DR.S. M. KANTIKAR)

MEMBER

dd/14

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 616 OF 2012 (From the order dated 13.01.2012 in First Appeal No. FA/162/2011of West Bengal State Consumer Disputes Redressal Commission) Renu Sharma r/o 11/21, R.B.C. Road, P.O. Rishra, P.S. Rishra District Hooghly West Bengal

... Petitioner

VersusState Bank of Patiala MID CORPORATE BRANCH, Shantiniketan Building, 8, Camac Street, P.S. Shakespeare Sarani,Kolkata – 700017

… Respondent BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For the Petitioner(s) Mr. Renu Sharma, In person



1986 by the petitioner against the impugned order dated 13.01.2012 passed by the West Bengal

State Consumer Disputes Redressal Commission (for short ‘the State Commission’) in FA No.

162/2011, “State Bank of Patiala versus Renu Sharma” vide which while allowing appeal, the

order passed by District Consumer Disputes Redressal Forum, Kolkata allowing complaint no.

404/2009 filed by the petitioner/complainant was set aside.

2. Brief facts of the case are that petitioner Renu Sharma used to live in flat no. 3/c, 3rd Floor,

at Shivam Plaza apartment, premises number 92/B, N.K. Banerjee Street, Rishra, District

Hooghly which was owned by late Akhil Chandra Banik, who had purchased the same in 1999

through a registered sale-deed. The owner Akhil Chandra Banik entered into an agreement dated

12.06.2001 with a developer M/s. Glacier Constructions for the development of the said

property. The petitioner purchased the flat in question by paying a sum of Rs.20,000/- on

23.11.2002 and then Rs.90,000/- on 06.12.2002 and entered into an agreement with the owner

and the developer. On 27.12.2002, the petitioner applied for home loan from Punjab & Sind

Bank, Lindsay Street Branch. The Bank made direct payment of Rs.1,50,000/- to the developer

on 05.02.2002. The possession of the flat was delivered to the petitioner on 17.11.2003 and the

Punjab & Sind Bank made direct final payment of Rs.1.83 lakh to the developer vide pay order

dated 05.12.2003. The petitioner then decided to transfer the said loan from the Punjab & Sind

Bank to the State Bank of Patiala/OP. Loan was sanctioned by the State Bank of Patiala and they

made payment of Rs.3.28 lakh to the Punjab & Sind Bank vide pay order dated 27.01.2004. It

has been alleged by the petitioner that he continued to live in that flat, when on 19.06.2007, at

about 2:30PM, when he was in the office and his family was in the flat, some musclemen from

the Indian Bank forcibly evicted his family from the flat. He came to know that the owner of the

flat had sold the same flat to one Sital Singh, who had taken loan from Indian Bank upon

mortgage of the flat, but had not repaid the said loan. The petitioner filed criminal case against

the landowner and the developer, but subsequently, both of them died. The petitioner has alleged

that the respondent/OP State Bank of Patiala showed negligence in not scrutinising the relevant

documents of the flat at the time of giving loan to him and hence, the respondent/OP was liable

to pay compensation for deficiency in service. The petitioner filed a consumer complaint before

the District Forum which allowed the same and directed the State Bank of Patiala to stop

deduction of EMI from the monthly salary of the complainant and also to pay him compensation

of Rs.25,000/- and litigation cost of Rs.5,000/-. An appeal against this order was allowed by the

State Commission and the complaint was ordered to be dismissed. It is against this order that the

present revision petition has been filed.

3. Heard the petitioner in person. He stated that the flat in question had already been sold

to Sital Singh, who had raised loan form the Indian Bank but did not repay the same. The Indian

Bank had, therefore, dispossessed the petitioner and his family from the flat and they were forced

to live in a rented accommodation. He also stated that another loan had been raised from the

HSBC Bank also. He alleged that the State Bank of Patiala had committed deficiency in service

by not checking the documents at the time of giving the loan for which the petitioner had to

suffer.

4. On examination of the material on record, it is clear that the petitioner purchased the said

flat from the owner/developer after raising loan from the Punjab & Sind Bank. Thereafter, he

decided to take another loan from State Bank of Patiala and discharged the liability of the Punjab

& Sind Bank. He is, therefore, under obligation to repay the loan taken from State Bank of

Patiala. The fact that loan had been raised by Sital Singh for the same property from the Indian

Bank does not lead to the conclusion that the respondent/OP State Bank of Patiala has committed

any deficiency in service in any manner. We are in full agreement with the conclusion arrived at

by the State Commission that once the complainant has raised loan from the State Bank of

Patiala, they are duty bound to repay the same. It is also clear that the respondents/OP State

Bank of Patiala had no role in dispossessing the petitioner from the said flat and hence they have

not committed any deficiency in service. We, therefore, hold that the order passed by the State

Commission does not suffer from any illegality, irregularity or jurisdictional error and the same

is upheld. The revision petition is ordered to be dismissed with no order as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER Sd/-(DR. B.C. GUPTA)MEMBERRS/



(From the order dated 25.01.2008 in Appeal No.485 of 2004 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

State Bank of India Nabha Branch Distt. Patiala

… Petitioner/Opp. Parties (OP)

VersusSmt. Sita Devi W/o Sh. Sham Lal House No. 43, Bank Street, Nabha, Distt. Patiala

… Respondent/Complainant

BEFORE



For the Petitioner : Mr. Sushil Kr. Singh, Proxy Advocate

For Mr. S.L. Gupta, Advocate

For the Respondent : Mrs. Radha, Amicus Curiae

PRONOUNCED ON 22 nd August , 2013

O R D E R


This revision petition has been filed by the petitioner/OP against the order dated

25.01.2008 passed by the Punjab State Consumer Disputes RedressalCommission, Chandigarh

(in short, ‘the State Commission’) in Appeal No. 485 of 2004 – State Bank of India Vs.

Smt. Sita Devi by which, while deciding appeal, order of District Forum allowing complaint was

upheld, but some liberty was given to the petitioner.

2. Brief facts of the case are that complainant/respondent received cheque No.41648 dated

16.3.2002 for an amount of Rs.30,952/-. Complainant deposited cheque with OP/petitioner for

encashment, but amount was not credited in complainant’s account for long time. On 5.7.2002,

complainant made written request to OP/petitioner to look into the matter and credit the amount

in her bank account and OP/petitioner assured that cheque amount shall be credited in her Bank

Account. On 19.9.2002, OP/petitioner informed the complainant that cheque was lost in

transit. Alleging deficiency on the part of OP/petitioner, complainant filed complaint before

District Forum. OP/petitioner resisted complaint, but admitted presentation of cheque by

complainant and submitted that cheque was sent through courier for collection and after

sometime, OP/petitioner received communication from Hardoi Branch where cheque was sent

for collection, that cheque in question was lost in transit and intimation was given to the

complainant vide letter dated 19.9.2002. It was further submitted that there was no deficiency on

the part of OP; hence, complaint be dismissed. Learned District Forum after hearing both

the parties, allowed complaint and directed OP to credit the cheque amount in complainant’s SB

A/c. along with Rs.500/- as cost. It was further observed by District Forum that OP will be at

liberty to initiate proceedings against postal authorities or may approach drawer of the cheque for

issuance of duplicate cheque in the name of complainant. Appeal filed by OP was dismissed by

leaned State Commission vide impugned order and petitioner was given liberty to recover

cheque amount from Food and Supplies Department of U.P., Lucknow who had issued cheque

against which, this revision petition has been filed.

3. Heard learned Counsel for the parties and perused record.

4. Learned Counsel for the petitioner submitted that, as there was no deficiency on the part of

petitioner, learned State Commission has committed error in dismissing appeal and learned

District forum committed error in allowing complaint; hence, revision petition be allowed and

impugned order be set aside. On the other hand, learned Counsel for the respondent submitted

that impugned order is consent order passed on the request of petitioner, which cannot be

assailed and order passed by learned State Commission is in accordance with law; hence,

revision petition be dismissed.

5. It is admitted case of the parties that complainant deposited cheque for collection with the

OP and OP sent cheque for collection, which was lost in transit. Cheque dated 16.3.2002 was

presented for encashment on 28.3.2002, but OP intimated to the petitioner about loss of cheque

in transit by letter dated 19.9.2002 by which time validity of period of cheque had already

expired.

6. Learned Counsel for the petitioner submitted that inspite of deficiency in not crediting

amount of cheque in respondent’s account, petitioner can be held liable for some compensation,

but cannot be directed to credit the amount of cheque. In support of his arguments, he has placed

reliance on R.P. No. 5 of 2005 – Shri A.P. Bopanna Vs. Kodagu District Co.OP . Central

Bank decided on 17.12.2008 by this Commission in which it was held that if a cheque is lost in

transit, bank cannot be held liable for the cheque amount. We agree with this view and in normal

course, bank cannot be directed to credit cheque amount, but looking to the facts and

circumstances of the case, this revision petition is liable to be dismissed on the following

grounds:

i) Firstly, validity of cheque expired before 19.9.2002 when petitioner informed to

the respondent about loss of cheque in transit.

ii) Secondly, impugned order has been passed by learned State Commission as per

request of their Counsel, which runs as under: “The learned counsel for the appellants further submits that the

cheque no. 41648 dated 16.3.2002 for an amount of Rs.30,952/- was issued by the Secretary, Food & Supplies, Government of U.P., Lucknow, and therefore, the appellants be permitted to get the said amount from the department. It was further submitted that the appellants have already deposited a sum of Rs.17,016.50 with this Commission at the time of filing the appeal and the judgment of the District Forum be modified accordingly by which the appellants have been directed to credit the cheque amount in the bank account of the respondent.

After hearing the submission of the learned counsel for the parties, we

modify the judgment of the learned District Forum dated 17.3.2004 to the extent that the amount of Rs.17,016.50 would be taken out of the cheque amount of Rs.30,952/- and remaining amount would be credited in the account of the respondent within 45 days after the receipt of copy of this order. The amount of Rs.17,016.50deposited by the appellants with this Commission be remitted to the complainant with interest, if any, by way of crossed cheque/bank draft. The appellants would be at liberty to recover the said amount from the Food & Supplies Department, Government of U.P., Lucknowwho had issued cheque no. 41648 dated 16.3.2002 for an amount of Rs.30,952/- in favour of Sita Devi as the appellants have made the payment of this cheque to Sita Devi and they have stepped into the shoes of Sita Devi. A copy of this order be also sent to the Secretary, Food & Supplies Department, Government of U.P., Lucknow for necessary compliance”.

Apparently, this is consent order passed by learned State Commission on the

request of petitioner’s counsel, which cannot be assailed in revision petition.

Thirdly, cheque has been issued by Food and Supplies Department, Government

of U.P., Lucknow and petitioner has already been permitted to recover the cheque

amount from the aforesaid Government Department and in such circumstances,

merely by making payment of cheque amount to complainant who is an old lady,

petitioner will not suffer any loss because petitioner has stepped into the shoes of

respondent and can easily get duplicate cheque from aforesaid Food and Supplies

Department and recover money.

7. In the light of aforesaid discussion, we do not find any illegality, irregularity or

jurisdictional error in the impugned order and revision petition is liable to be dismissed and

payment may be credited as directed by District Forum subject to submitting affidavit by

complainant that he has so far not received money against the disputed cheque.

8. Consequently, revision petition filed by the petitioner 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 DELHIREVISION PETITION NO. 65 OF 2013 (From the order dated 03.08.2012 in Appeal No. 1100 of 2011 of the Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

State Bank of Bikaner & Jaipur Rampur, Tehsil Bansur Distt. Alwar, Rajasthan

… Petitioner/Opp. Party (OP)

Versus

1. Shri Bhanwar Singh S/o Sh. Bagsingh Village Balwa, Tehsil Bansur Distt. Alwar (Rajasthan)

2. Shri Narayan Singh S/o Shri Bhanwar Singh Village Balwa, Tehsil Bansur, Distt. Alwar (Rajasthan)

… Respondents/Complainants

BEFORE


For the Petitioner : Ms. Kittu Bajaj, Advocate

For the Respondents : Mr. Chander Prakash, Advocate

PRONOUNCED ON 26 th August , 2013

O R D E R


This revision petition has been filed by the petitioner/OP against the order dated

03.08.2012 passed by the Rajasthan State Consumer DisputesRedressal Commission, Jaipur (in

short, ‘the State Commission’) in Appeal No. 1100/2011 – State Bank of Bikaner & Jaipur

& Ors. Vs. Bhanwar 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 availed loan of Rs. 2,30,000/- from

the OP/petitioner and purchased a tractor. Complainant could not re-pay loan in time. In 2008,

Central Government introduced Prime Minister Debt Waiver Scheme and under that scheme, OP

asked complainant to deposit amount under waiver scheme to get substantial relief. Complainant

deposited amount with the OP and complainant asked OP to issue waiver certificate, but that was

not issued and illegal demand of Rs.20,000/- was made from him. Alleging deficiency on the

part of OP, complainant filed complaint before District Forum. OP resisted complaint and

submitted that complainant did not fall under the scheme and OP has not committed any

deficiency and prayed for dismissal of complaint. Learned District Forum after hearing both the

parties allowed complaint and directed OP-1 to issue ‘no due certificate’ to the complainant

within one month in reference to closed loan account along with litigation expenses. Appeal

filed by the petitioner was dismissed by learned State Commission vide impugned order against

which, this revision petition has been filed along with application for condonation of delay of 57

days.

3. Heard learned Counsel for the parties finally at admission stage and perused record.

4. Petitioner has filed application for condonation of delay of 57 days on the ground that

Advocate Sadaf Naaz, who was entrusted to file revision, suffered from acute typhoid and in

such circumstances, she could not file revision petition within limitation; hence, delay may be

condoned. Petitioner has filed affidavit of Advocate Sadaf Naaz along with medical certificate of

61 days from 7.11.2012 to 6.1.2013. This revision petition has been filed on 7.1.2013. We deem

it proper to allow application for condonation of delay of 57 days, subject to cost of Rs.5000/- to

be paid by the petitioner to the respondent.

5. Learned Counsel for the petitioner submitted that impugned order is not a speaking order

and learned State Commission has not dealt with the arguments submitted by the petitioner;

hence, petition be allowed and matter may be remanded back to the learned State Commission

for disposal by speaking order. On the other hand, learned Counsel for the respondent submitted

that District Forum has elaborately discussed submissions of the parties and order passed by

learned State Commission is in accordance with law; hence, petition be dismissed.

6. Perusal of impugned order reveals that it is not a speaking order and learned State

Commission has observed as under:“The District Forum has passed the order after detailed discussion on the facts and evidence of the complaint. Thus we do not find any justification in discussing the facts and evidence again. Looking into the facts and circumstances, we find no illegality in the order passed by the Ld. District Forum, Alwar in Complaint No. 25/2010. Since the District Forum has considerately dealt with the facts on record, it does not call for interference. Besides, we do not find any justification in appeal on its merits/demerits”.

7. Hon’ble Apex Court in (2001) 10 SCC 659 – HVPNL Vs. Mahavir observed as under:“1.In a number of cases coming up in appeal in this Court, we find that the State Consumer Disputes Redressal Commission, Haryana at Chandigarh is passing a standard order in the following terms:

‘We have heard the Law Officer of HVPN – appellant and have also perused the impugned order. We do not find any legal infirmity in the detailed and well-reasoned order passed by District Forum, Kaithal. Accordingly, we uphold the impugned order and dismiss the appeal’.

2. We may point out that while dealing with a first appeal, this is not the way to dispose of the matter. The appellate forum is bound to refer to the pleadings of the case, the submissions of the counsel, necessary points for consideration, discuss the evidence and dispose of the matter by giving valid reasons. It is very easy to dispose of any appeal in this fashion and the higher courts would not know whether learned State Commission had applied its mind to the case. We hope that such orders will not be passed by the State Consumer Disputes Redressal Commission, Haryana at Chandigarh in future. A copy of this order may be communicated to the Commission”.

8. In the light of above judgment, it becomes clear that Appellate Court while deciding an

appeal is required to deal with all the arguments raised by the appellant and as learned State

Commission has not dealt with arguments of the appellant, it would be appropriate to remand the

matter back to the learned State Commission for disposal by speaking order after dealing with all

the contentions and arguments raised by the petitioner.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated

03.08.2012 passed by the learned State Commission is set aside and matter is remanded back to

the learned State Commission for deciding it by speaking order after giving an opportunity of

being heard to the parties.

10. Parties are directed to appear before the learned State Commission on 04.10.2013. A copy

of this order be sent to the Rajasthan State Commission, Jaipur.

..………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

k


FIRST APPEAL NO. 51 OF 2008

(Against the order dated 03.12.2007 in CD Case No. 197/2003 of theOrissa State Consumer Disputes Redressal Commission)

Branch Manager Oriental Insurance Co. Ltd. Bhadrak Branch Burma By-pass At/P.O. District Bhadrak Orissa Through Manager Oriental Insurance Co. Ltd. Oriental House A-25/27, Asaf Ali Road New Delhi-110002

… Appellant

Versus

Yashowanta Narayan Dixit S/o Late Gadadhar Dixit Prop. Of M/s Dixit Oil Industries At Dahanigadia, Charampa PO Bhadrak – 756101 District Bhadrak Orissa

… Respondent

BEFORE:

HON'BLE MRS. VINEETA RAI, PRESIDING MEMBER


For Appellant : Mr. Kishore Rawat, Advocate

For Respondent : Mr. Shibhashish Misra, Advocate

Pronounced : 29 th August, 2013

ORDER

PER VINEETA RAI

1. This First Appeal has been filed by Oriental Insurance Co. Ltd., Opposite Party before the

Orissa State Consumer Disputes Redressal Commission (hereinafter referred to as the State

Commission) and Appellant herein being aggrieved by the order of that Commission which had

allowed the complaint of deficiency in service filed against it in not settling the claim as per the

insurance policy and unjustifiably offering a lesser amount which was not acceptable to

Yashowanta Narayan Dixit, Complainant before the State Commission and Respondent herein.

2. Facts of the case as per the Respondent/Complainant are that he was engaged in the

business of oil extraction in the name and style of Dixit Oil Industries for self-employment and

had taken an insurance policy from the Appellant/Insurance Company to cover loss or damage to

his unit for a sum of Rs.33 lakhs by paying a premium of Rs.5280/- and Rs.2475/- for special

peril of Floods for the period 04.09.1999 to 03.09.2000 vide Policy No. 2000/192 dated

06.09.1999. On 29.10.1999 during the validity of this policy, there was a super cyclone followed

by heavy torrential rain in the entire coastal area of Orissa, including Bhadrak town where the

Respondent/Complainant’s business was located. Because of the cyclone and heavy rains and

due to overflowing of the river Salandi the entire business premises of the

Respondent/Complainant was flooded and remained under 4 to 6 feet of water for about four

days and as a result raw material (mustard seeds), mustard oil in tanks and it’s by-product i.e.

Khal (de-oiled cakes) were washed away or spoiled. The entire stock became unfit for human

consumption. When the situation improved after some days, Respondent/Complainant vide

letter dated 02.11.1999 informed the Appellant/Insurance Company giving a brief picture of the

damage which was roughly estimated to be Rs.27.21 Lakhs. It was contended that four

Surveyors were appointed one after the other, namely, M/s R.P. More And Associates, who

visited the Respondent/Complainant’s premises and also asked him to send some oil for

laboratory tests. Thereafter another Surveyor - M/s D.S. Consolt & Network Pvt. Ltd.,

Bhubaneswar was appointed who confirmed that the water had entered into the godown causing

damage to the mustard seeds etc. but instead of settling the claim, Appellant/Insurance Company

appointed yet another Surveyor - M/s S. Soni & Co. who again inspected the premises and

sought certain clarifications which were supplied. However, even after this, instead of settling

the claim Appellant/Insurance Company appointed a fourth Surveyor - M/s Sanjeeb Kumar

Mohanty And Associates. As per the assessment of this Surveyor which was based on the

survey reports of the three earlier Surveyors, Appellant/Insurance Company offered the

Respondent/Complainant a sum of Rs.2,98,145/- in settlement of the insurance claim which was

not accepted since it was well below the actual loss caused due to damaged goods. Being

aggrieved by the deficiency in service on the part of Appellant/Insurance Company,

Respondent/Complainant filed a complaint before the State Commission and requested that

Insurance Company be directed to settle the claim for a total amount of Rs.69,06,685/- as per the

following break up :“1. Loss sustained due to super cyclone & flood

covered under the policy

Rs.27,21,685.00

2. Business loss

Rs.05,00,000.00

3. Loss of business goodwill

Rs.05,00,000.00

4. Payment of interest to the bank + Interest to be paid in future

Rs.07,00,000.00

5. Expenses incurred for writing letter, going to the offices of the OPs etc.

Rs.00.25,000.00

6. Damages / Compensations for sufferings / harassment / humiliation / psychological trauma

Rs.10,00,000.00

7. Interest @ 18% on the amount to be awarded from 29&30/10/1999 till the date of payment pendent lite and future interest

Rs.14,60,000.00

Rs.69,06,685.00”

3. Appellant/Insurance Company on being served filed a written rejoinder refuting the

allegations made by the Respondent/Complainant. It was contended that in order to settle the

claim of the Respondent/Complainant, with his knowledge and consent three Surveyors were

appointed and based on the report of the final Surveyor, whose assessment was based on the

earlier three survey reports as also examination of relevant documents, the insurable loss was

rightly assessed at Rs.3,74,167/-. In fact, Respondent/Complainant had highly inflated his loss

by placing reliance on various purchase bills stating that there was extensive damage to not only

raw material but to the finished goods, including those stored in the oil tanks. However, this

extensive damage was not backed by credible evidence. The contention of the

Respondent/Complainant regarding the loss and also seeking an insurance claim amount which

was much higher than the amount insured as per the insurance policy itself indicates that the

Respondent/Complainant’s complaint/allegation lacks credibility.

4. The State Commission after hearing the parties and on the basis of evidence produced

before it allowed the complaint by observing as follows:“7. It is relevant to mention here that the complainant in support of his claim placed reliance on the purchase bills which are as follows :-

Sl. No.

Date Party Name Qty. (Kg)

Bill Amount

Freight in word

Net Cost Rate/Kg

Rs.

1. 21.08.99 Rajendra Prasad

Dinesh Ku. Jain

15895 303034/- 23,246/- 326080/- 20.52

2. 18.08.99 Ravi Corporation 9010 160020/- 5767/- 165787/- 18.40

3. 22.08.99 Abhay Kr.

Champalal Jain

9010 179388/- 4866 181254/- 20.44


5. 03.09.99 Abhay Kr.

Champalal Jain

9010 174201/- 2860/- 177061/- 19.65


7. 28.09.99 Balaji Enterprises 5970 118265/- 118265/- 19.80

8. 01.10.99 Akodiya Inds. 16000 299042 17830/- 316872/- 19.80

158.08

He has calculated the damage as follows :-

“Average 158.08/8 = 19.76 (1976 per Qtl.)

639.35 Qtl X 1976 = 12,63,355.00”

The last surveyor having relied on the reports of the previous surveyors reduced the quantum of damage without any justification. There is nothing on record to disbelieve the details of purchase bills furnished by the complainant. Taking into consideration totality of the circumstances, we are of the view that the offer of rupees 2,98,145/- by the opposite parties was rightly rejected by the complainant. The occurrence took place in October, 1999. More than eight years have elapsed. As the complainant had taken cash credit loan, he must be paying interest to the financing Bank. The opposite parties have arbitrarily and illegally withheld the legitimate amount. Therefore, his entitlement to interest and compensation cannot be denied. We, accordingly, direct the opposite parties to pay a consolidated amount of rupees 16,00,000/- (sixteen lakhs) to the complainant by 31.01.2008, failing which interest at the rate of 9 percent per annum shall be paid from 01.11.1999.”

5. Being aggrieved by the order of the State Commission, the present First Appeal has been

filed.

6. Counsels for both parties made detailed oral submissions.

7. Counsel for the Appellant/Insurance Company explaining the reason for appointing four

Surveyors stated that the first two Surveyors were essentially preliminary Surveyors who had

been deputed to assess the physical condition and not assess the actual loss. While admitting that

the third Surveyor – M/s S. Soni And Company assessed the net loss at Rs.11,83,000/-, Counsel

for the Appellant/Insurance Company stated that there were inherent contradictions in this survey

report vis-à-vis the earlier two survey reports. For example the second Surveyor after an on the

spot inspection had categorically stated that inundation did not cause damage to the finished

goods, including 29 bags of deoiled cakes as well as the mustard oil in tanks. Apart from this,

the third Surveyor had not gone into some important questions raised by the earlier two

Surveyors. For example, the second Surveyor – D.S. Consolt Pvt. Ltd. had stated that

Respondent/Complainant to explain the higher amount of stocks stored and damaged had

reported that the mill was closed from 03.10.1999 to 29.10.1999 because of which stocks had

accumulated but this point needed further investigation. No finding was given on the same by

the third Surveyor. Because of this and some other contradictions in the report, it was necessary

to appoint the fourth Surveyor to give a correct assessment of the actual loss. Counsel for the

Appellant/Insurance Company while admitting that the fourth Surveyor was appointed without

the consent or knowledge of the Respondent/Complainant, stated that the fourth Surveyor, while

agreeing that the amount of raw material damaged was 199.48 quintals has concluded that there

was no loss to the finished goods. The fourth Surveyor further concluded that the third Surveyor

had only relied on the version of the Respondent/Complainant while assessing the loss and had

not considered the actual physical damage or any credible document. Regarding the closure of

the factory to explain the higher amount of stocks in the godowns just prior to the cyclone vis-à-

vis other months/years, the fourth Surveyor concluded that the factory was not closed as alleged

by the Respondent/Complainant since the electricity bills for the months of September and

October, 1999 were higher than the electricity bills for the same months of the preceding

years. The fourth Surveyor assessed the loss as follows :-“AFFECTED AMOUNT 4,84,797.48SALVAGE 28,130.00ASSESSED LOSS 4,56,667.48UNDER INSURANCE Not applicablePOLICY EXCESS (2.5% of Sum Insured)

82,500/-

NET 3,74,167.48SAY 3,74,167/-”

8. Counsel for the Respondent/Complainant challenged the above contentions of Counsel for

the Appellant/Insurance Company. In the first place, it was pointed out that since the fourth

Surveyor was appointed behind the back of the Respondent/Complainant and his report was

submitted in 2000 i.e. four months after the occurrence of the incident, no correct assessment of

the actual damage was possible and, therefore, as admitted by the Appellant/Insurance Company,

it was the third Surveyor who essentially went into the details of the actual loss incurred after

physical verification and examination of the stock register and related documents. Counsel for

the Respondent further stated that Appellant’s contention that the two preliminary Surveyors had

found that the finished goods were not affected by the inundation is not factually correct. He

brought to our notice the report of the second Surveyor – M/s D.S. Consolt Networks Pvt. Ltd.

which clearly stated that the oil kept in the oil tanks had a bad smell and the by-products kept in

the separate godown were also found damaged due to inundation.

Counsel for the Respondent/Complainant also challenged the finding of the fourth

Surveyor that the factory had not been closed in October, 1999 by relying on the electricity

consumption, which, according to the Surveyor, indicated that the average units consumed as per

the electricity bill of October, 1999 was higher than the electricity bill for the corresponding

period of preceding years. This sort of calculation is erroneous and should not be the basis of

settling the insurance claim, inasmuch as a perusal of the electricity bills for preceding months

would indicate that the units consumed in April, May, June, July, August and September, 1999

were higher than in October, 1999. If an average is taken from April, 1999 to October, 1999 it

would indicate the average unit consumed per quintal. The exercise should have been to add all

the units consumed from April, 1999 to September, 1999, divided by the total quintals of

materials sent for milling to arrive at the average unit consumed per quintal. Further the units

consumed in October 1999 should be divided by the average unit as obtained hereinabove. The

resultant will be the amount/quintal milled in the month of October, 1999. The assessment of

loss based on the report of the fourth Surveyor was made purely to suit the convenience of

Appellant/Insurance Company and without taking into account the various stock registers

maintained by the Respondent/Complainant as also the fortnightly stock statements sent by the

Respondent/Complainant to the Civil Supplies Department of the Government of Odisha as

required under the Essential Commodities Act. Apart from this, the long and dilatory procedure

adopted by the Appellant/Insurance Company in this case was in contradiction of a joint decision

of the Government of India, Government of Odisha and the Insurance Companies taken in a

meeting on 25.11.1999 that insurance claims of all those affected in the super cyclone should be

settled within a period of 45 days.

9. We have heard learned Counsels for both parties and have also gone through the evidence

on record. In the first place, we find substance in the contention of Counsel for the

Respondent/Complainant that the Appellant/Insurance Company was not justified in appointing

one Surveyor after another and in appointing the final Surveyor without the consent and behind

the back of the Respondent/Complainant. As per Section 64-UM of the Insurance Act the

Insurance Companies can appoint another Surveyor only after recording reasons for not

accepting the earlier survey report and after informing the Insuree. The Hon’ble Supreme Court

in a catena of decisions, including in Sikka Papers Limited Vs. National Insurance Company Ltd.

[(2009) 7 SCC 777], has condemned the practice of some Insurance Companies in appointing

one Surveyor after another without recording reasons for the same and behind the back of the

Insuree. In the instant case, it is an admitted fact that the four Surveyors were appointed and

even if three Surveyors were appointed with the knowledge and consent of the

Respondent/Complainant, the fact remains that the fourth Surveyor was appointed without the

knowledge of the Respondent/Complainant and without the Appellant/Insurance Company

recording reasons for the same. In view of these facts, we are not inclined to consider the report

of the fourth Surveyor particularly since this Surveyor was appointed several months after the

reported incident and, therefore, no meaningful physical verification of the actual damage caused

would have been assessed by them. Apart from this, a number of facts recorded by the fourth

Surveyor are not supported by the earlier three survey reports particularly in respect of the

damage to the finished goods. On a perusal of reports of the three Surveyors, we note that the

third Surveyor had confirmed that there was extensive damage not only to the mustard seeds but

also to the finished goods, including the oil stored in the tanks. The first Surveyor had also

stated that so far as the finished goods are concerned, even though they were found intact but a

bad smell was coming out of the oil kept in the oil tanks. It was further stated that the by-

product was also found damaged in inundation. The second Surveyor gave a somewhat

ambiguous report stating that although there was 1 ft. of water in the oil storage room and

impurities were found at the bottom of the tanks, flood water entering the tanks is ruled out. The

third Surveyor, who has given a much more detailed report, has given a clear finding that there

was damage not only to the mustard seeds but also to the finished goods. The third Surveyor

also conducted a very detailed survey after examining the stock registers, sales tax records,

fortnightly statements of the stocks sent to the Civil Supplies Department as per the provisions of

Essential Commodities Act and other books and concluded that the actual loss suffered was

Rs.12,83,955/- and after deducting the less loss clause (Rs.1,00,000/-) as per policy the net

insurable loss was assessed at Rs.11,83,955/-.

10. Taking into account the above facts, we are in agreement with the order of the State

Commission that the third Surveyor had rightly calculated the damage on the basis of the actual

loss suffered at Rs.12,83,955/- and recommended that an amount of Rs.11,83,955/- be paid. In

addition, since more than 8 years have elapsed for which the Respondent/Complainant is paying

interest to the financing bank, he is entitled to interest and compensation also for the delay

caused by the Appellant/Insurance Company in the settlement of the insurance claim for the

various reasons as cited above.

11. We, therefore, uphold the order of the State Commission and dismiss the present First

Appeal. Appellant/Insurance Company is directed to comply with the order of the State

Commission and pay the awarded amount to the Respondent/Complainant within a period of 3

months.

Sd/-

(VINEETA RAI)

PRESIDING MEMBER

Sd/-

(VINAY KUMAR)

MEMBER

Mukesh

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI ORIGINAL PETITION No. 12 OF 1999

M.O.H. Leathers Ltd. 12, Langs Garden Road Chennai – 600002

… Complainant

VersusIndian Bank Nandanam Branch Represented by its Chief Manager Nandanam Chennai – 600035

… Opposite Party BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE DR.S.M. KANTIKAR, MEMBER

For the Complainant : Mr. R.Venkatramani, Sr.Advocate

With Mr.V. G. Pragasam, Mr. S. Prabu Ramasubramanian, & Ms. Neelam Singh, Advocates

For the Opposite Party : Mr. M.C. Kochhar, Advocate PRONOUNCED ON _2 ND SEPTEMBER, 2013 O R D E R JUSTICE J.M. MALIK

1. The whole controversy pivots around the question, “Whether the consumer fora can poach

into the jurisdiction of Delhi Debt Recovery Tribunal?”. M.O.H. Leathers Ltd.,

a partnership concern, approved as SSI

Unit and 100% Export Oriented Unit, was formed in the year 1986. UCO Bank was the

Banker of the said firm. In the year 1990, Indian Bank became the Banker of the Partnership

firm. The aforesaid Partnership firm was converted into a Private Limited Company, i.e.,

the complainant and the Indian Bank, OP, in this case, was retained as its Banker.

2. In the year 1991-92, the turnover of the complainant was Rs.11,05,46,874.00. The

Bank took into consideration the above said turnover and performance and enhanced the credit

limits, w.e.f. 21.05.1992. The said limit was further enhanced on the basis of turnover of

Rs.16,11,02,131/- and performance by the Bank on 16.08.1993. During the year 1994-95, there

was decline in Leather Industry because of (1) Global Recession (2) Central Water (Prevention

and Control of Pollution) Act, 1974, Air Prevention and Control of Pollution) Act, 1981, and

Environment (Protection) Act, 1986.

3. During the year 1994-’97, the complainant, with its own resources, was able to achieve

turnover of Rs.9.00 crores, approximately, every year. At the top of the above said

Enactments, the Hon’ble Supreme Court of India, issued Directives which added more burden

resulting in many of the tanneries being closed down and the turnover of tanned leather

diminished. The export trade was hard hit.

4. In the meantime, the Indian Bank, OP, wrote a letter dated

03.02.1997, under the Caption “Your Overdue Packing Credit, Overdue Export Bills and

Advance Bills Liabilities”. The Indian Bank requested the complainant to regularize the

facilities, detailed in the said letter, immediately and submit compliance report on doing the

same. It was further requested to arrange to submit necessary papers immediately to enable the

Bank to put up renewal proposal to their higher authorities as operations cannot be allowed,

without a proper renewal sanction. The complainant approached the OP. It was informed that

under the Guidelines of RBI, the OP would help the Unit under the Rehabilitation Programme

and asked the representatives of the complainant to give proposal for rehabilitation on the lines

as contained in the complainant’s proposal dated 21.04.1997.

5. OP agreed to rehabilitate the complainant in principle and asked the

complainant for additional security, vide letter dated 17.05.1997. In June, 1997, the

complainant furnished additional security. Vide letters dated 11.08.1997 and 20.08.1997, the

Export Credit Guarantee Corporation of India Ltd (hereinafter referred to as ‘ECGC’, in short),

allowed the sanction relating to post-shipment and pre-shipment credit facility with certain

conditions. As desired by ECGC, the complainant submitted the Schedule of Shipment, on

20.08.1997.

6. The complainant submitted a Bill for DM 1,41,440 (equivalent to Rs.28,60,724/-) as part

shipment against order of Rs.2.5 crores from M/s. Arma Leather (Holland) to the OP for

discounting the same but the same was not discounted and was sent on collection basis, on

13.08.1997. The complainant paid Rs.5,00,000/- as compensation as it was the case of part-

shipment and the complainant was unable to confirm that the remaining order will be supplied in

full as per the Schedule. The payment received in respect of the Bill was adjusted against the old

packing credit and in turn new packing credit was not released. The complainant submitted Bill

and LC at site from Space 2000 Italy, being part shipment of USD 22,787 against the whole LC

amount of USD 83,681, valid till 31.08.1997 for shipment. The said Bill was not discounted

as agreed by OP. Even after the receipt of the payment, the same was not released in

contravention to the terms of the Rehabilitation Programme. The Bank accepted the Bill, but

did not discount the same and sent the said Bill to the Foreign Buyer on collection basis. Even

after receiving the money on collection basis, which normally takes about 30-40 days for the

money to come to the account, the Bank adjusted the said amount in the old account, but even at

this stage of the matter, did not release the packing credit to the said extent.

7. It is alleged that the said act of the OP, amounted to chocking out of the entire function of

the organization. In the meantime, M/s. Arma Leathers Placed order supply of goods

worth Rs.2.5 crores with the complainant. Goods worth Rs.68.00 lakhs were dispatched but

other goods could not be prepared because the amount could not be released by the OP

Bank. The Complainant had to pay Rs.5.00 lakhs as compensation to the Buyer. The

complainant had to loose the offer of Rs.2.5 crores. The amount was not released despite the

fact that another LC from Space 2000 of the value of USD 83,681.50 and another LC from

Court International, London, the total being Rs.43 lakhs, approximately. The

complainant dispatched merchandise to the extent of USD 22,787 as

a partial shipment against order of Space 2000. The said Bill was lodged by the

complainant with the OP in August, 1997. The OP did not discount the said Bill, also in

violation of the terms and conditions of the rehabilitation programme. The said Bill was

accepted under the LC and sent the same on collection basis and on receipt of the amount,

adjusted in the old account and even at that stage of the matter, the OP did not release the

packing credit for further consideration. The balance amount in LC was expiring in August,

1997 and because of the default of the OP, further goods could not be manufactured and

shipped. The complainant suffered huge loss due to expiry of the LC. Both the Buyers

cancelled the shipment for the balance goods. Space 2000, was a client of the complainant for

the past more than 10 years. The complainant was earning a lot of money.

8. The grouse of the complainant is that the Bank after approving the rehabilitation

programme, sanctioned the recommendation of the same to the ECGC and after getting the

positive directions from ECGC, failed to release the funds for further production for the export

purposes. The complainant had to suffer huge losses. In order to cover up its default, OP, on

or about 04.11.1997 and 10.11.1997, came out with a plea that the complainant should get its

viability study conducted by IndBank Merchant Banking Services Ltd, which is a Sister

Concern of the OP and intimated that it will cost a sum of Rs.98,000/- and thereby a

person, who is in a position to dominate the Will of the company, the OP undertook to

rehabilitate the complainant company which was showing signs of sickness and dictated its

arbitrary terms to the complainant, which had no choice but to obey and accept. It is alleged

that the Bank did not fulfill its own self-serving agreement in time and played for illegal gains

at the cost of the complainant company and to its detriment. The complainant had to suffer loss

of Rs.148 lakhs, detailed in the complaint.

9. Again, the OP has charged penal interest over overdue PC. The amount of Rs.1.15

crores was charged excess, as being own claim. In between, there was a compromise between

the parties. Vide Notice dated 18.12.1997, calling back the loan amounts, the OP should have

applied to ECGC for claiming amount due from the complainant and should

not have charged any interest. Consequently, the complainant is not liable to pay the sum

of Rs.1,16,67,434/-. The beneficiary under the ECGC policy is OP itself.

They are supposed to pay premium for the said policy out of their own pocket. The OP had

charged the complainant every month, premium paid to ECGC on their account but

debited to the complainant’s account, unlawfully. The amount charged was

Rs.28,26,414/-. Due to fluctuation in exchange rate for USD

and D.MARKS against rupees, the OP charged extra amount in the sum of Rs.1.48 crores.

10. Ultimately, the complainant company had to close the shutters and send away 450

employees from the job who were directly employed by it. Vide Registered AD Notice, dated

02.12.1998, the complainant claimed an amount of Rs.7,15,93,848/- but it did not evoke any

response from the OP. Ultimately, this complaint, dated 05.01.1998 was filed with the following

prayers:- “a) Direct the Opposite Party to pay a sum of Rs.7,15,93,848/- as detailed in para 35 hereinabove; b) Direct the Opposite Party to pay a sum of Rs.1 crore to the Complainant on account of mental pain and agony suffered by the complainant; c) Direct the Opposite Party to pay interest @ 18% per annum from the date of filing of the complaint till the date of payment of the amount awarded; d) Direct the Opposite Party to pay cost of this litigation;

e) Pass such other or further orders as this Hon’ble Commission may deem fit and proper under the circumstances of the case”.

11. DEFENCE:-

The Indian Bank, OP, has enumerated the following defences in its reply. It is

contended that the complainant is ‘not’ a “consumer”. No rehabilitation programme was ever

granted or even agreed to by the OP. As a matter of fact, the OP asked certain

clarifications/details and additional security from the complainant, but the complainant could

not pass on the same and hence rehabilitation package was never agreed or granted by the OP to

the complainant. The complainant did not fulfill the requirements for considering the

rehabilitation programme by the OP. The complainant has filed the present complaint due

to frustration and as a counter blast in view of the application filed by the OP before the

Debts Recovery Tribunal, Chennai, for recovery of loan dues against the complainant, its

Directors, Guarantors, etc., which was pending at the time of filing of the Written

Statement. The complainant could agitate the points before the Debts Recovery Tribunal,

Chennai, and as such, the present complaint is not maintainable.

12. It is explained that during the year 1993-94, the Bank had

released packing credit advances and it had enabled the complainant to achieve approximate

turnover of Rs.9.00 crores. It is explained that the complainant did not submit its proposal for

rehabilitation programme vide their letter dated 21.04.1997. It is explained that by that time, the

accounts of the complainant Company had already become irregular and the OP had been

requesting the complainant to regularize the accounts. The Final statements, stock statements,

sealed projections and details of security offered by the complainant to take up for

the rehabilitation programme to the concerned authority, the complainant could not give the

additional securities in the form of mortgage by deposit of title deeds. The title deeds

submitted by the complainant were not clear for the acceptance of mortgage. The Bank

never assured or promised to grant or sanction loan, by way of rehabilitation programme or

otherwise. The overdues of the complainant were alarming. The affairs

of the complainant were not handled in a professional way

and were mismanaged and mishandled by the management of the complainant company.

As per proposal for re-phasement/renewal of credit facilities, the Bank was asked to

produce documents vide order dated 25.09.1997, but the needful was not done. Vide

letter dated 25.09.1997, the complainant was asked to produce the following documents :-

a) Conducting an audit by outside agency preferably by Indian

Bank Merchant Banking Service Limited.

b) Conducting of turn around viability by

IBMBS

c) Creation of equitable mortgage of properties offered as security

d) Company to bring their own funds for adjustments of advance bills liabilities.

13. It is explained that the proposal of the complainant for rehabilitation

recommending the same to Export Credit Guarantee Corporation of India Ltd, was never

accepted. The bank never gave any understanding that the amount of the bills mentioned would

be purchased and adjusted against the previous old packing credit and to that extent, new

packing credit would be released in order to make further production. The

rehabilitation programme was never approved nor sanctioned by the Bank. It is explained that

the OP was entitled to charge penal interest as per RBI Guidelines since the accounts of the

complainant company became irregular. Whatever amount received from ECGC by the Bank

under the guarantee taken by OP and that payment has to be repaid to ECGC on recovery from

Borrowers and Banks. The conversion from foreign currency to Indian rupees is to be

assessed as per RBI Rules. All other allegations have been denied.

14. Both the parties have adduced evidence, by way of affidavits.

15. We have heard the learned counsel for the parties and perused their written synopses.

It was argued by the counsel for the complainant that OP, in principle, agreed to

rehabilitate the complainant as is apparent from their letter dated 17.05.1997 wherein the

complainant was requested to furnish certain documents and the OP also asked the

complainant to give details of additional security. The complainant offered the security of a

City flat of 4-Bed rooms, in a posh locality valued around Rs.60.00 lakhs and in addition

thereto, collateral security of 50 acres of land valued around Rs.90.00 lakhs had already been

furnished. It was mentioned that the complainant was trying to arrange security of one more

flat. OP accepted the proposal of rehabilitation programme and recommended to ECGC of

India Ltd. ECGC also considered the said proposal. Vide letter dated 11.08.1997,

ECGC allowed the sanction relating to post-shipment and vide letter dated 20.08.1997, allowed

the pre-shipment. When the OP assured the complainant that its proposal for rehabilitation

programme has been approved by it as well as by ECGC, the Complainant Company submitted

a Bill under its packing credit limit for DM 1,41,440 vide Bill No.2, dated 08.08.1998 equivalent

to Indian Rupees 28,60,724/- and gave the assurance that the money released against

the said Bill would be utilised for further production for the export purposes for which the

limit had been granted and for which the rehabilitation programme had been approved.

16. The learned counsel for the complainant submitted that the complainant was taken for a

ride. The Bank has been, long in promises but short in performances. Due to Bank’s inaction,

the complainant had to lose 2-3 big Buyers. It was explained that if the Bank did not want to

help the complainant it should have informed it from the very start that they are not going

to do the needful, in that event, the complainant would have made an attempt to deal with

another Bank. Although, in the written arguments, it is submitted that the rehabilitation

programme was approved and sanctioned by the Bank as well as the ECGC in order to

rehabilitate the Unit, but at the stage when the Company needed funds urgently, the Bank failed

to provide the much needed credit. However, at the time of the final arguments, counsel for

the complainant admitted that there was no sanction order either from the Bank or from any

other authority.

17. The plea raised by the learned counsel for the complainant is mere palliative and does not

delve deep to the roots of malady. To top it all, the complainant has kept the main facts under

the hat. We fully agree with the arguments advanced by the learned counsel for OP that the

present complaint has been filed due to frustration and as a counter blast, in view of the

application filed by the OP, before the DRT, Chennai, for recovery of loan dues against the

complainant, its Directors, Guarantors, etc., and the same has already been decided in favour of

the OP in a hotly contested case. The DRT, Chennai, has directed the complainant to pay a sum

of Rs.104,90,82,386.83. The said complaint was filed in the year 1998. First of all, the counsel

for the complainant submitted that the said complaint was filed in the year

2002 but when his attention was invited to the fact that the said application pertains to the

year 1998 by the counsel for the OP, he did not pick up a conflict with this point. These facts

found no mention in the complaint. The complaint is conspicuously silent about it.

18. Secondly, the matter was pending before the DRT, Chennai, for recovery of

debt. Consequently, the consumer fora do not have jurisdiction to try this case. While we were

dealing with a case of SARFAESI Act in Shri Yashwant G. Ghaisas & Ors. Vs. Bank of

Maharashtra, on 06.12.2012, in Consumer Complaint No.302 of 2012, this

Commission, dismissed the case in limine, on the ground that consumer fora have no jurisdiction

to try this case. Against this order Special Leave to Appeal (Civil) No.1359 of 2013 was

preferred by the complainant, before the Hon’ble Apex Court. The Hon’ble Apex Court, vide

order dated 01.03.2013, was pleased to approve our following observations:-“19.The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13(2) of the SARFAESI Act, that should be brought to the notice of the concerned authority. It is well settled that main Creditor and the Guarantors are equally responsible. There lies no rub for the Bank to take action against the Guarantor directly. It cannot be alleged that he is adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the Bankers are working within the ambit of SARFAESI Act, it cannot be said to be deficiency on the part of the Bank. It must be established that there is deficiency on the part of the Bank. In that case, this Commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching appropriate Forum as per law”.

19. In a case decided by four Members’ Bench of this Commission, comprising of Hon’ble

Mr.Justice D.P.Wadhwa, Hon’ble President, Mr.Justice J.K.Mehra, Mrs.Rajyalakshmi Rao &

Mr.B.K.Taimni, Hon’ble Members, titled as Traxpo Trading Ltd., Vs. The Federal Bank Ltd.,

(Original Petition No.116 of 2001, decided on 15.10.2001) I (2002) CPJ 31 (NC), it was

held :-

“Under Section 18 of the Act, jurisdiction of this Commission is barred where the Bank has filed suit. Defendant in that suit can claim set-off or even counter claim against the Bank under Section 19 of the Act. Complainant would have ample opportunity to raise all the issues presented in the present complaint. That apart, when we examined the complaint, it raises complex questions both of facts and law which is not possible to decide in our summary jurisdiction. Then we also feel that this complaint has been filed more as a counter blast to the proposed action of the Bank. No doubt this complaint has been filed four months earlier of filing of the suit by the Bank before the Debt Recovery Tribunal. But from that we cannot lose sight of the fact that the Bank would have threatened the complainant for filing a suit and when such suit was imminent, complainant chose to file this complaint. We, therefore, decline to entertain this complaint and return the same to the complainant to seek remedy, if any, elsewhere. This complaint is disposed of accordingly. Opposite Party – Bank shall be entitled to costs of these proceedings which we quantify at Rs.5,000/-“.

20. Thirdly, the complainant should have ventilated all his grievances before the learned

DRT, Chennai. He could have claimed set-off against the Bank. There lies no rub. It

appears that the present complaint was filed in order to harass the Bank authorities and to take

revenge against them. The order passed by the DRT, Chennai in favour of

OP dated 22.07.2010 and the Appeal, if any, have attained finality. It

cannot be challenged in a consumer fora.

21. The complainant has made a vain attempt to make bricks, without straw. Vide notice

dated 03.02.1997, the complainant was called upon to clear the outstanding dues. The

rehabilitation package was never mooted. The complainant was asked to complete the

formalities, but it did not. The complainant had only submitted its proposal for rehabilitation

which could not proceed further due to the fact that the complainant could never

give the additional securities and the assurance to provide all additional securities in the form

of mortgage by deposit of title deeds which was never fulfilled because it transpired that the

additional securities were not clear to accept the mortgage. Legal opinion dated

31.03.1998 goes to confirm this fact. All the alleged promises were made orally. There was

nothing in black and white. Such like excuses can be made at any time. The proposal sent by

the complainant was never accepted. The Bank was already aware of the fact that the

complainant is bordering to be the sick company. Under these circumstances, to accept

that the Bank will come to its rescue is unacceptable. The story created by the complainant

does not just stake up. On 02.12.1997, the talks of negotiations for compromise took place. As

a matter of fact, all these points should have been put up before the DRT, Chennai, if the

same were not put, in that case, the complainant had missed the bus. It will be deemed to

have been given up under Order II, Rule 2 of CPC. Last, but not the least, counsel for the

complainant candidly admitted that there was no sanction order in favour of the

complainant. Is it this Commission’s duty to write definitions on invisible blackboard with

non-existent chalk?. The complainant’s tilt at windmills, does not ring the bell. The

complaint is, therefore, dismissed. No costs. .…..………………………… (J. M. MALIK, J)PRESIDING MEMBER ……………………………...(DR.S.M. KANTIKAR)MEMBER

dd/



(From the order dated 23.08.2012 in First Appeal No. 756/2011 of State Consumer Disputes Redressal Commission, KERALA )

Ms. Anjana Abraham Chembethil, Mutholapura P.O Ernakulam District Represented by Power of Attorney Holder Abraham C Mathew Chembethil Mutholapura P.O. Ernakulam District Kerala

…Petitioner

Versus

The Managing Director The Koothattukulam Farmers Service Co-operative Bank Ltd No. E-45, Koothattukulam – 686662

…Respondent

BEFORE:

HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

HON’BLE DR. S.M. KANTIKAR, MEMBER

For the Petitioner : Sh. Vinod Joseph PJ, Advocate

For the Respondent : Mr. Biju P.Raman, Advocate

With Ms. Usha Nandini, V, Advocate PRONOUNCED ON _2 nd SEPTEMBER, 2013

ORDER

JUSTICE J.M. MALIK

1. The key question which falls for consideration is, “Whether a Member can pick up a

conflict with Co-operative Society, under the Consumer Protection Act?”. The facts of this case

are these. Ms.Anjana Abraham, the petitioner/complainant has filed this case through her

Power of Attorney, Mr.Abraham C.Mathew, who is her father. On 29.05.1989, Mr. Abraham C.

Mathew, deposited a sum of Rs.10,000/- under Mangalya Deposit Scheme with the

OP/respondent. As per the Scheme, the complainant was entitled to get back Rs.1,60,000/- on

the date of maturity, i.e. 29.05.2009. When the complainant requested on 05.06.2009, to pay the

said maturity amount, the respondent refused to pay the same. The OPs have

admitted that the said deposit was made. It is averred that the General Body of the

Bank reduced the rate of interest. The petitioner/complainant invested the same and the OP was

ready to pay the interest, as mentioned in the letter dated 30.06.2003.

2. The District Forum partly allowed the complaint, filed by the complainant. The State

Commission accepted the appeal filed by the opposite party/respondent and dismissed the

complaint.

3. We have heard the arguments. As a matter of fact, the consumer fora have no

jurisdiction to try the disputes arising between Co-operative Societies and its

Members. Section 69 of the Co-operative Societies Act, 1969, runs as follows:-“Chapter IXSettlement of Disputes69. Disputes to be decided by Co-operative Arbitration Court and Registrar. – (1) Notwithstanding anything contained in any law for the first time being in force, if a dispute arises :- a) among members; past member or person claiming through members, past members and deceased members; or b) between a member, past member or deceased member and the society, its committee or any officer, agent or employee of that society; or c) between the society or its committee and any past committee, any officer, agent or employee or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society; or d) between the society and any other society; or e) between a society and the members of a society affiliated to it; or f) between the society and a person, other than a member of the society, who has been granted a loan by the society or with whom the society has or had business transactions or any person claiming through such a person; or g) between the society and a surety of a member, past member, deceased member or employee or a person, other than a member, who has been granted a loan by the society, whether such a surety is or is not a member of the society; or h) between the society and a creditor of the society; such dispute shall be referred to the Co-operative Arbitration Court constituted under Sec.70A, in the case of non-monetary disputes and to the Registrar, in the case of monetary disputes and the Arbitration Court, or the Registrar, as the case may be, shall decide such dispute and no other authority, shall have jurisdiction to entertain any suit or other proceedings in respect of such dispute”.

4. Similar view was taken in the case reported as P.P.Kapoor Vs. Government Servants Co-

operative House Building Society Ltd., I (1999) CPJ 81, wherein it was held in Para 7 of its

judgment, as under :-

“In our view, the dispute sought to be raised was a dispute

arising out of the alleged non-compliance of provisions of the

Delhi Co-operative Societies Act and the Rules framed

thereunder, under Section 60 of the said Act. Section 93(1)(c) of

the said Act vests jurisdiction in respect of the disputes required

to be referred to the Registrar under Section 60. Sub-rule

3 ousts jurisdiction of “any Court, on any ground, whatsoever”

to question any order/decision or award made under the Act. In

Dilip Bapat & Anr., Vs. Panchyati Co-operative Housing Society

Limited, I (1993) CPJ 68 (NC), it was observed in Para-11 of the

report that dispute of this nature is not a consumer dispute under

the Consumer Protection Act and the right Forum was to have

ones remedy under the Co-operative Societies Act”.

5. Consequently, we dismiss the revision petition, but grant opportunity to the

petitioner/complainant to seek his/her grievance(s) before the appropriate forum, except the

consumer fora, as per law.

..…………………..………J

(J.M. MALIK)

PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Dd/9


REVISION PETITION NO. 1693 OF 2012(From the order dated 22.12.2011 in Appeal No.42/2011 of the M.P.State Consumer Disputes Redressal Commission, Bhopal)

Smt. Heeru Mehra D/o Shri Mahesh Kumar Mehra W/o Shri Chandan Mehra R/o Tehsil Chouraha, Pachmari Road, Pipariya Dist. Hoshangabad


Versus1. P.C., Systems, Thro’ Proprietor Pankaj Kumar Chouksey, S/o Late Narayan Prasad Chouksey R/o Sobhapur Road, Sadar Ward, Pipariya Dist. Hoshangabad.

2. Ramesh Mohan Nair, Branch Manager Punjab National Bank, Jhumerati Branch Bhopal

3. Puranmal Mourya, Field Officer Punjab National Bank, Branch Pipariya Tehsil Pipariya Dist. Hoshangabad

4. Manager, Punjab National Bank Branch Pipariya Distt. Hoshangabad.


BEFORE



For the Petitioner : Ms. Richa Srivastava, Advocate

PRONOUNCED ON 3 rd September, 2013

O R D E R



22.12.2011 passed by the M.P. State Consumer Disputes Redressal Commission, Bhopal (in

short, ‘the State Commission’) in Appeal No. 42 of 2011 – P.C. System Vs. Smt. Heeru Mehra

& Ors. by which, while allowing appeal, partly, order of District Forum allowing complaint was

modified.

2. Brief facts of the case are that complainant/petitioner after obtaining loan from Punjab

National Bank for purchase of computers, purchased 4 computers from OP-1/Respondent

no.1. OP No. 1 took away all the 4 computers for repairs on 5.5.2008 and were not returned to

the complainant after removal of defects. Alleging deficiency on the part of OPs, complainant

filed complaint before District Forum. OPs resisted complaint and prayed for dismissal of

complaint. Learned District Forum after hearing both the parties allowed complaint and directed

OP No. 1 to repair the computers or in the alternative to pay Rs.1,20,000/-, price of the

computers along with Rs.5,000/- for harassment and mental agony. OP No. 4 was directed to

pay Rs.2500/- for mental agony and all OPs were directed to pay Rs.1,000/- as legal

expenses. Appeal filed by the OP No.1 /Respondent No.1 was allowed partly and order of

District Forum allowing Rs.1,20,000/- was modified and substituted by Rs.30,000/- and rest of

the order was affirmed against which, this revision petition has been filed.


4. Learned Counsel for the petitioner submitted that inspite of proving the fact that 4

computers were given for repairs by the petitioner to Respondent No.1, learned State

Commission has committed error in modifying order of District Forum allowing complaint for 4

computers; hence, revision petition be admitted.

5. Perusal of record clearly reveals that in response to the notice of Respondent No.1,

petitioner vide letter dated 28.6.2008 admitted that on 5.5.2008 one system (computer), which

was taken for repairs was not returned. Learned Counsel for the petitioner has put much stress

on the word ‘ izkIr fd;sa ’ tried to submit that this word cannot be used for single

computer. Admittedly, this receipt is of 5.5.2008 and in reply dated 28.6.2008, this receipt dated

5.5.2008 has been referred by which only one system was taken by OP No. 1 for repairs. In such

circumstances, it becomes clear that merely by using plural word it cannot be inferred that 4

computers were taken by Respondent no. 1 for repairs. Petitioner is bound by its admission in

reply dated 28.6.2008 and learned State Commission has not committed any error in modifying

District Forum’s order and reducing amount to Rs.30,000/- from Rs.1,20,000/-. We do not find

any illegality, irregularity or jurisdictional error in the impugned order and revision petition is

liable to be dismissed at admission stage.


no order as to costs.

..………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk


REVISION PETITION NO. 2488 OF 2013 (From the order dated 26.03.2013 in Appeal No. 111/2013 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Mangat Ram S/o Shri Sher Bahadur R/o House No. 696, Veena Nagar, Camp, Yamuna Nagar, Tehsil Jagadhri, Distt. Yamuna Nagar

… Petitioner/Complainant VersusSyndicate Bank Camp, Branch, Yamuna Nagar Through its Branch Manager

…Respondent/Opp. Party (OP)

BEFORE




PRONOUNCED ON 3 rd September , 2013

O R D E R



26.3.2013 passed by the Haryana State Consumer DisputesRedressal Commission, Panchkula (in

short, ‘the State Commission’) in Appeal No. 111 of 2013 – Mangat Ram Vs. Syndicate Bank

by which, while dismissing appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner being unemployed obtained a loan of

Rs.85,500/- from the OP/respondent for purchase of three wheeler under the scheme “Prime

Minister Rozgar Scheme”. As per version of the complainant, there was subsidy of Rs.7500/- on

the loan amount without any interest which was to be payable in 60 instalments. OP issued letter

to the complainant that he is defaulter and directed complainant to deposit balance loan amount

of Rs.19,796/-. OP charged interest on subsidiary amount of Rs.7,500/-, which was against the

instructions of RBI. Complainant requested to the OP in this regard, but nothing was done and in

such circumstances, complainant made complaint to Banking Lok Pal and RBI upon which, OP

refunded a sum of Rs.1113/- to the complainant. Alleging deficiency on the part of OP,

complainant filed complaint before District Forum. OP contested complaint and submitted that

amount of Rs.1113/- was charged inadvertently and Pay Order of this amount was sent to the

complainant on 27.3.2008, but he has not encashed Pay Order and wants to harass OP and

prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed

complaint and directed OP to issue fresh Pay Order of Rs.1113/- and to pay Rs.10,000/- as

compensation for mental agony as well as litigation expenses. Appeal filed by the complainant

for enhancement was dismissed by learned State Commission vide impugned order against

which, this revision petition has been filed by the petitioner.

3. Heard petitioner in person at admission stage and perused record.

4. Perusal of record clearly reveals that respondent refunded Rs.1113, excess amount charged from the petitioner, but on account of harassment, District Forum allowed Rs.10,000/- as compensation, which cannot be said to be inadequate compensation for harassment and litigation expenses. It appears that complainant unnecessarily filed appeal before State Commission for enhancement and even after dismissal of appeal he has preferred this revision petition for enhancement of compensation without any justification. We do not see any reason for enhancement of compensation.


revision petition is liable to be dismissed.

6. 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



(From the order dated 07.05.2012 in First Appeal No. 1839/2008 of Haryana State Consumer Disputes Redressal Commission)

Rita Dhingra w/o Shri Ashok Dhingra r/o House Number 1562, Sector – 16, Faridabad

... Petitioner

Versus

1. Haryana Urban Development Authority Through its Chief Administrator, Panchkula

2. Haryana Urban Development Authority Through its Estate Officer, Karnal

… Respondent(s)

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER


APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. Ashok Dhingra, AR

For the Respondent(s) Mr. Sudhir Bisla, Advocate

PRONOUNCED ON : 3 rd SEPTEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 by the petitioner against the impugned order dated 07.05.2012, passed by the Haryana State


1839/2008, “Rita Dhingra versus HUDA & Anr.”, vide which the order dated 26.08.2008, passed

by the District Consumer Disputes Redressal Forum, Karnal in complaint no. 613/2005 was

upheld, but the direction given in the order of the District Forum for the refund of the amount

deposited by complainant was also set aside. The District Forum had dismissed the consumer

complaint in question, as being time barred, but allowed refund of the amount deposited with the

respondent / OP. 2. Brief facts of the case are that the complainant was allotted plot no. 175 in sector 5, Urban

Estate Karnal on 07.04.92 for Rs.3,09,600/-. The complainant deposited 25% of the total amount

and the remaining amount was to be deposited in instalments. The complainant deposited the

first instalment of Rs.38,700/- in the year 1993 and thereafter, they did not deposit any

instalment taking the plea that the respondent/OP had not delivered the possession of the plot to

them. The respondent issued a show-cause notice to them on 7.12.94, asking them to explain,

why the delayed interest and penalty may not be imposed upon them. Thereafter, there was

correspondence between the complainants and respondents, but the complainant did not deposit

the amount demanded by the respondent. The complainant filed the consumer complaint in

question in the year 2005, stating therein that the OP should be directed to hand over physical

possession of the plot in question and should be asked to accept the principal amount of balance

cost, enhancement compensation and some other charges, but should be directed to waive off

interest and penalty on the amounts so demanded. The District Forum dismissed the complaint

being time barred, but directed that the OP should refund the amount deposited by the

complainant within a period of 30 days of the receipt of the order. This order was challenged in

appeal before the State Commission. The State Commission vide impugned order upheld the

order of the District Forum, but also stated that the direction to refund the amount is set aside. It

is against this order that the present petition has been filed.

3. It was contended by the authorised representative of the petitioner at the time of arguments

that he had paid 25% of the price of the plot at the time of allotment and the balance money was

to be paid in six instalments to the OP. However, the allottee had paid only one instalment and

thereafter did not deposit any money. He has drawn our attention to notice dated 7.12.1994

issued under section 17(1) of the Haryana Urban Development Authority Act, 1977 by the

respondent/OP, in which the petitioner has been asked to remit the amount of instalment along

with interest for the delay in depositing the instalment and a penalty of Rs.3,870/-. Another

show-cause notice was issued on 3.7.98, asking them to show cause why a penalty of Rs.32,640/-

may not be imposed on them. The authorised representative of the petitioner stated that since the

possession of the plot was not delivered to them by the OP, they had not deposited the amount, in

question. He stated, however, that they were prepared to deposit the requisite amount for the plot

including the enhanced compensation but the penalty, interest and non-construction fee etc.

should be waived off. He further stated that they had tried to remit the amount to OP by means

of demand draft, but this was returned by them.

4. Learned counsel for the OP stated that the petitioner / complainant had failed to deposit the

necessary amounts as per the terms and conditions of the allotment letter in time. Even the first

instalment was not paid in time. OP had offered possession of the plot too in the year 1995, but

the possession was never taken. Further, the amounts mentioned in the demands raised by the

OP from time to time, were never deposited by the petitioner. The learned counsel further stated

that the complaint in question was hopelessly time barred, as it had been filed after a period of 11

years from the date of cause of action and the complaint had been rightly dismissed by the

District Forum and the State Commission. Learned counsel further stated that the Estate Officer,

HUDA, Karnal had sent letter to the petitioner on 29.03.2005, giving them the last opportunity to

deposit the overdue amount within a period of 7 days. In response to this letter, the petitioner

sent a reply on 19.04.2005, stating that the HUDA was duty bound to resume the plot and refund

the amount deposited by him after the issue of show cause notice dated 07.12.1994. However,

since HUDA had not given him physical possession, they had no right to charge any interest

etc. The learned counsel further stated that HUDA had not challenged the order of the District

Forum because the said order was in their favour. He stated that the OP was prepared to refund

the amount deposited by the petitioner.

5. We have examined the entire material on record and given a thoughtful consideration to the

arguments advanced before us.

6. From the record of the case, the facts of the case are very clear that the plot in question was

allotted to the petitioner in the year 1992, but after depositing the initial 25% amount and one

more instalment, further money was never deposited by the petitioner with the OP. Despite issue

of show-cause notices to the petitioner under the relevant provisions of the HUDA Act, 1997, the

overdue amount was never deposited with the OP. In his letter dated 19.04.2005 sent by the

petitioner in response to letter dated 29.03.2005 from the OP, the petitioner has clearly stated that

after the issue of show cause notice 07.12.1994, HUDA was duty bound to resume the plot and

refund the money deposited by them with HUDA.

7. Further, it is very clear that the consumer complaint in question has been filed in the year

2005, meaning thereby that the same was not filed within the statutory time limit of two years

from the cause of action as laid down under section 24(A) of the Consumer Protection Act,

1986. It has been rightly observed by the District Forum and State Commission that if the cause

of action is taken to be the date of first show cause notice dated 07.12.1994, the complaint had

been filed after a period of 11 years. There is no convincing explanation or justification shown

for the delay in filing the appeal; hence the learned State Commission and District Forum were

right in taking the view that the complaint is time barred and deserved to be dismissed on this

ground alone.

8. In so far as the refund of the amount deposited by the petitioner with the OP is concerned,

the District Forum in their order ordered for the refund of the said amount within a period of 30

days of the receipt of the copy of the order, failing which the said amount shall carry interest @

10% p.a. from the date of the order till payment. The State Commission while passing the

impugned order, decided to set aside the direction for the refund of the amount.

9. In normal course, in similar cases, when a plot is surrendered or cancelled for non-payment

of outstanding dues, the amount deposited by an allottee is refunded after deduction of certain

amount of money as laid down in the terms and conditions of the allotment. The District Forum

have observed in their order that “Had the OP taken action against the complainant at the earliest

within specified period as provided in the show-cause notices, the situation would have been

different as after deducting the reasonable expenses, OP could have refunded the remaining

amount to the complainant.” However, while ordering relief, the learned District Forum stated

that the amount deposited by the complainant with the OP should be refunded meaning thereby

that the entire amount should be refunded. The OP did not file any appeal against this order

rather at the time of hearing before us, the learned counsel for the OP stated that they are

prepared to refund the amount in question as per the order of the District Forum. In the light of

this situation, the order of the State Commission setting aside the direction for the refund of the

amount is not justified. The complainant is held to be entitled for the refund of the amount

deposited with the OP as admitted by the OP itself.

10. In the light of this discussion, while upholding the order of the State Commission

dismissing the complaint on the ground of being time barred, we feel it necessary to modify the

findings of the State Commission that the amount deposited by the petitioner with the OP should

be refunded to them as ordered by the District Forum. This revision petition is, therefore, partly

allowed with the direction that amount deposited by the petitioner with the OP shall be refunded

to her in accordance with the order passed by the District Forum. There shall be no order as to

costs.

Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/


REVISION PETITION NO. 374 OF 2013(From the order dated 18.12.2012 in Appeal No. 344/2012 of the State Consumer Disputes Redressal Commission, U.T. Chandigarh)

Oriental Bank of Commerce Through Authorized Representative SCO 128-129, Sector 8-C, Chandigarh

…Petitioner/Opp. Party (OP)

Versus1. Sh. Dev Raj Mahajan

2. Kamlesh Mahajan

W/o Sh. Dev Raj Mahajan Both R/o: Flat No. 9, GD Rail Vihar S4 MDC, Panchkula

…Respondents/Complainants

BEFORE



For the Petitioner : Mr. Dhanesh Relan, Advocate

For the Res. Nos. 1 & 2 : Mr. D.R. Mahajan, R-1 in person/AR of

R2.

PRONOUNCED ON 13 th September, 2013

O R D E R


This revision petition has been filed by the petitioners/OP against the order dated

18.12.2012 passed by the State Consumer Disputes Redressal Commission, UT Chandigarh (in

short, ‘the State Commission’) in Appeal No. 344/2012 – Oriental Bank of Commerce Vs. Dev

Raj Mahajan & Anr. by which, while dismissing appeal, order of District Forum allowing


2. Brief facts of the case are that complainants/respondents obtained two FDRs for a sum of

Rs.10,000/- each on 14.1.2002 from OP No. 2-Global Trust Bank Ltd. for 10 years with the

maturity value of Rs.26,203/-. OP No. 2 merged with OP No. 1-Petitioner and all the assets and

liabilities were taken over by OP No. 1. On maturity, complainant approached to OP No. 1 and

complainants were paid Rs.20,466/- against each FDR, whereas maturity value of FDRs was

Rs.26,203/-. Alleging deficiency on the part of OP, complainants filed complaint before District

Forum. OP No. 1 admitted issuance of FDRs and merger of OP No. 2 with OP No. 1, but

submitted that maturity value was generated on the basis of interest payable by OP No. 1 as per

notification issued by the Ministry of Finance dated 13.8.2004. It was further submitted that OP

No. 1 also informed all the customers of Global Trust Bank Ltd. vide letter dated 13.9.2004

about rate of interest. OP has not committed any deficiency in service and prayed for dismissal

of complaint. OP No. 2 was proceeded ex-parte. After hearing both the parties, learned District

Forum allowed complaint and directed OP No. 1 to refund Rs.11,474/- of two FDRs along with

9.75% p.a interest and awarded Rs.10,000/- as compensation. 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 petitioner and Respondent No. 1 in person and perused

record.

4. Learned Counsel for the petitioner submitted that payment was made on maturity of FDRs

in accordance with notification issued by Ministry of Finance and intimation about change of

rate of interest was also given to the respondent; even then, learned District Forum has

committed error in allowing complaint and directing petitioner to pay difference of amount and

learned State Commission further committed error in dismissing appeal; hence, revision petition

be allowed and impugned order be set aside. On the other hand, respondent submitted that he has

not received any intimation about change of rate of interest and order passed by learned State

Commission is in accordance with law; hence, revision petition be dismissed.

5. It is admitted case of the parties that respondent obtained two FDRs from Global Trust

Bank Ltd. for a sum of Rs.10,000/- each for 10 years with the maturity value of Rs.26,203/- and

Global Trust Bank Ltd. merged with petitioner. It is also not disputed that petitioner made

payment of Rs.20,466/- against each FDRs and maturity value shown in the FDRs issued by

Global Trust Bank Ltd. was not made. Now, the question to be decided is whether; petitioner has

committed any deficiency in reducing maturity amount.

6. Learned Counsel for the petitioner submitted that interest has been paid on the FDRs as

per notification issued by Ministry of Finance dated 13.8.2004. He further submitted that

information regarding rate of interest was also given by the petitioner to all the customers of

Global Trust Bank Ltd. vide letter dated 13.9.2004. Respondent submitted that he has not

received any intimation from the petitioner about change of rate of interest and had he received

this intimation, he would have taken pre-mature payment of FDRs and invested it somewhere

else. Petitioner in its written statement submitted that intimation regarding change of rate of

interest was given to all the customers of Global Trust Bank Ltd. and respondent has not filed

replica to deny this fact. In such circumstances, it cannot be presumed that intimation about

change of rate of interest was not given by the petitioner to respondent and other customers of

Global Trust Bank Ltd. Learned State Commission has committed error in holding that

petitioner was required to prove service of notice on every individual and complainants.

7. Learned Counsel for the petitioner has placed reliance on judgment delivered by this

Commission in R.P. No. 2952 of 2006 – Bank of Baroda, Uttar Pradesh Vs. Parul Agarwal and

others decided on 1.9.2010. In that case, Banaras State Bank Ltd. merged with Bank of Baroda

and FDR issued by Banaras State Bank Ltd. depicting maturity value of Rs.1,34,490/- was not

paid by the Bank of Baroda and on maturity, Bank of Baroda paid Rs. 93,841/-. This

Commission held that Bank of Baroda acted in accordance with the scheme formulated by the

Government of India under the Statute after due notification which was in public interest and

specifically in the interest of its depositors to ensure minimum loss of money to them and there

was no deficiency on the part of Bank of Baroda and order passed by District Forum and State

Commission allowing complaint was set aside. In the aforesaid case, petitioner also did not give

any notice about merger. On the other hand, in the case in hand, respondent himself admitted in

complaint that merger was effected between OP No. 1 and OP No. 2 and in such circumstances,

even if individual notice has not been received by the respondent regarding reduction of rate of

interest on FDRs, petitioner has not committed any deficiency in reducing maturity value in

accordance with notification issued by Ministry of Finance dated 13.8.2004 and scheme of

amalgamation of Global Trust Bank Ltd. with the petitioner.

8. Learned State Commission has committed error in dismissing appeal and learned District

Forum has committed error in allowing complaint and awarding difference of interest and

complaint is liable to be dismissed.

9. Consequently, revision petition filed by the petitioner is allowed and impugned order dated

18.12.2012 passed by learned State Commission in Appeal No. 344 of 2012 - Oriental Bank of

Commerce Vs. Dev Raj Mahajan & Anr. is set aside and complaint filed by the respondents

stand dismissed. There shall be no order as to costs.

..………………Sd/-……………( K.S. CHAUDHARI, J)

PRESIDING MEMBER

..………………Sd/-……………

( DR. B.C. GUPTA )

MEMBERk



(From the order dated 24.01.2013 in First Appeal No. A/730/2007 of Maharashtra State Consumer Disputes Redressal Commission)

1. Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

2. Chairman Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

3. Manager Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

4. Vaidyanath Urban Co-operative Bank Ltd. Parli through its Branch at Parbhani, Parbhani, Dist. Parbhani Maharashtra

... Petitioners

Versus

Dharnidhar s/o Anantrao Namade, r/o Kshitij, 42, Shivramnagar Vasmat Road, Parbhani, District Parbhani, Maharashtra

… Respondent(s)


(From the order dated 24.01.2013 in First Appeal No. A/731/2007

of Maharashtra State Consumer Disputes Redressal Commission)

1. Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

2. Chairman Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

3. Manager Sanjivani Urban Co-operative Bank Ltd. Parbhani, Nava Mondha, Parbhani, Dist. Parbhani Maharashtra

4. Vaidyanath Urban Co-operative Bank Ltd. Parli through its Branch at Parbhani, Parbhani, Dist. Parbhani Maharashtra

... Petitioners

Versus

Swati w/o Dharnidhar Namade, r/o Kshitij, 42, Shivramnagar Vasmat Road, Parbhani, District Parbhani, Maharashtra

… Respondent(s)

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER


APPEARED AT THE TIME OF ARGUMENTS

For the Petitioner(s) Mr. S.P. Adgaonkar, Advocate

For the Respondent Mr. Abhijit Namde, Advocate

PRONOUNCED ON : 19 th SEPTEMBER 2013 O R D E R

PER DR. B.C. GUPTA, MEMBER

These two revision petitions, RP No. 1575/2013 and RP No. 1576/2013, have been filed

under section 21(b) of the Consumer Protection Act, 1986 against the impugned order dated

24.01.2013 passed by the Maharashtra State Consumer Disputes Redressal Commission (for

short ‘the State Commission’) in FA No. A/730/2007, “Sanjivani Urban Cooperative Bank Ltd.

& Ors. versus Dharnidhar” and FA No. A/731/2007, “Sanjivani Urban Cooperative Bank Ltd.

& Ors. versus Swati Dharnidhar” vide which, while dismissing these two appeals, the order

dated 21.04.2007 passed by the District Consumer Disputes Redressal Forum, Parbhani in

complaint nos. 19/2007 and 20/2007, allowing the said complaints was upheld.

2. The facts in brief, giving rise to these revision petitions are that the complainants who are

husband & wife had kept as fixed deposit a sum of Rs.45,000/- each, total Rs.90,000/- for 27

months with the petitioner bank. The other two petitioners are the Chairman and the Manager of

theSanjivani Urban Cooperative Bank, whereas petitioner no. 4 Vaidyanath Urban Cooperative

Bank Ltd. is another bank with which the Sanjivani Urban Cooperative Bank happened to merge

later on. The said fixed deposit matured on 06.09.2005 at the expiry of 27 months, but the

maturity amount was not paid to them by the OP Sanjivani Urban Cooperative Bank; hence they

alleged deficiency in service on their part. The OP Sanjivani Urban Cooperative Bank

maintained that the said payment was not made because of some restriction on transactions

imposed upon them through some circular of the Reserve Bank of India (for short, ‘RBI’) issued

on 26.12.2005.

3. The District Forum after considering the evidence produced by the parties directed vide

their order dated 21.04.2007 that a sum of Rs.45,000/- should be paid to the complainants in each

case along with an interest @12% p.a. within three months form the knowledge of the order,

otherwise, the complainant shall be entitled to interest @15% p.a. It was also ordered that the

OPs should pay Rs.5,000/- towards compensation within one month from the date of the said

order. Appeals were preferred by the OPs against this order of the District Forum, but vide

impugned order dated 24.01.2013, the State Commission dismissed the appeals and upheld the

order of the District Forum. It is against this order that the present revision petitions have been

made.

4. At the time of hearing before us, the learned counsel for the petitioners has drawn our

attention to the circular dated 26.12.2005 issued by the RBI saying that the RBI had imposed

restrictions upon them from discharging their liabilities and obligations except with the prior

approval of the RBI. The maturity amount of FDR could, therefore, be not paid to

them. However, when asked to explain that the said FDRs had matured on 06.09.2005, whereas

the circular of the RBI in question is dated 26.12.2005 through which restrictions had been

imposed w.e.f. 30.12.2005, the learned counsel for the petitioners could not give any satisfactory

reply, as to why the payment had not been made by the petitioners on maturity of the FDRs. He

simply stated that the financial health of the bank did not permit them to make such

payments. The learned counsel further stated that the Sanjivani Urban Cooperative Bank had

already merged with petitioner no. 4, Vaidyanath Urban Co-operative Bank Ltd. on

20.10.2008. The learned counsel also stated that the complainants had previously filed a joint

complaint on this issue which was ordered to be dismissed on 16.05.2006. The filing of the

second complaint by the complainants was hit by the principle of res judicata and hence the

present complaints were not maintainable.

5. The learned counsel for the respondent stated that the complainants had made several

attempts to get their money back on maturity of the fixed deposits, but the bank had not made

payment to them.

6. An examination of the facts on record indicates that the complainants deposited a sum of

Rs.45,000/- each, with the petitioner/ OP SanjivaniUrban Cooperative Bank in June 2003 for a

period of 27 months. It has been admitted by OPs that the said fixed deposit matured on

06.09.2005. It was the duty of the petitioner Sanjivani Urban Cooperative Bank to make the

payment of the maturity amount to the complainants at that stage. The petitioners cannot take

shelter under the circular issued by the RBI on 26.12.2005, according to which restrictions were

imposed on Sanjivani Urban Cooperative Bank upon transactions on various counts, without the

prior approval of the RBI. In the instant case, the FDRs matured much before the said

restrictions were issued and hence the OPs were duty bound to make payment to

the depositers even if the financial position did not permit them to make such payment. In this

way, the fault does not lie with the complainant in any manner. The OPs are under obligation to

make payment on maturity and there is a clear-cut deficiency in service on their part, because

they failed to make payment to the complainant on maturity of the fixed deposit. Even after the

issuance of the RBI circular, it was their duty to make reference to the RBI for getting the

requisite approval and then make payments to the complainants.

7. The arguments raised by the petitioners about the applicability of the principle of res

judicata is also without any force, because the complainants had earlier filed a joint complaint

and were asked to file separate complaints vide orders of the District Forum issued on 16.5.2006.

8. In view of the above discussion, it is evident that the petitioners failed in their duty to

disburse the maturity amount to the complainants without any justifiable reason. The directions

of the RBI came much later and hence the petitioners could not take shelter under the said

directions. The present revision petitions are therefore ordered to be dismissed and the orders

passed by the State Commission and District Forum are upheld with no order as to costs. Sd/-

(K.S. CHAUDHARI J.)

PRESIDING MEMBER

Sd/-

(DR. B.C. GUPTA)

MEMBERRS/

National Consumer Disputes Redressal Commission New Delhi

Revision Petition no. 3521 of 2008(Against the order dated 10.06.2008 in Appeal/complaint no. 2178 of 2007 of the Karnataka State Consumer Disputes Redressal Commission, Bangalore) Indian Overseas Bank J P Nagar Branch Mysore Represented by its Senior Manager Sri S R Prashanth

Petitioner Vs 1. Ms Sheba Wife of Robby Soans M/s Shawn Distributors 1656/F, K Block 6th Main Ramakrishna Nagar Mysore – 570023 2. National Insurance Co. Ltd. Bangalore Branch Office – II 33, Sagar Complex, 2nd Floor Kempe Gowda Road Bangalore – 560009 Represented by its Branch Manager

Respondents BEFORE :

HON’BLE MR JUSTICE V B GUPTA PRESIDING MEMBER HON’BLE MRS REKHA GUPTA MEMBER For the Petitioner Mr Anup Kumar, Advocate for Ms V Mohana, Advocate For Respondent no. 1 Mr Rajendra Singh, Advocate with Mr Shiv K Bharti, Advocate For Respondent no. 2 Ms Pankaj Bala Verma, Advocate

Pronounced on 27 th September 2013 REKHA GUPTA

Revision petition no. 3521 of 2008 has been filed under section 21 (b) of the Consumer

Protection Act, 1986 challenging the order dated 10.06.2008 passed by the Karnataka State

Consumer Disputes Redressal Commission, Bangalore (‘the State Commission’) in appeal no.

2178 of 2007.

The facts of the case as per respondent no. 1/ complainant are as follows:

The respondent no. 1/ complainant is the proprietrix of the firm M/s Shawn Distributors and

for her livelihood was engaged in the business of distribution of ice-creams as stockists and

distributors for M/s Pastonji who are manufacturers of ice-creams. The business involved

stocking and storing of ice-creams in cold storage, in cold rooms. For this purpose, the

respondent no. 1/ complainant borrowed a sum of Rs.3,95,000/- as term loan from the

1st opposite party – the Bank in October 2004 and put up a cold storage unit. The respondent no.

1 also availed a sum of Rs.1,00,000/- against stock of ice-creams in cold storage. During the

course of transactions with the Bank, the respondent no. 1 noticed a debit of Rs.12,300/- in her

account no. 310400023 on 25.01.2004. When the respondent no. 1 made enquiries with the Bank

she was informed that in order to cover the risk of lending, the Bank had insured against any loss

to the extent of the loan amounts and debited the account of the respondent no. 1 for a sum of

Rs.10,882/- and a sum of Rs.1418/- as premiums paid to the 2nd opposite party – insurance

company. Since the actual act of insuring against any loss was handled by her Bank, the

respondent no. 1 went about her business of attending to the day to day administration, being

fully confident that she had reposed her trust and faith in the competent hands of the 1st opposite

party – the Bank. As demanded by the 1st Opposite Party – Bank, the respondent no.1 even

credited the said sum of Rs.12,300/- to the said account on 05.11.2004. The 2nd opposite party –

insurance company or its representative, did not ever meet this respondent no. 1 either before or

after the payment of the premium by the 1st opposite party – Bank. Even after considerable time

had elapsed after the debit of the premium amount, the respondent no. 1 did not receive any

receipt or policy from either of the opposite parties. So the respondent no.1 made enquiries with

the 2nd opposite party – insurance company regarding this. The 2ndopposite party – insurance

company then informed her that as there was a loan from the 1st opposite party – Bank and there

was a lien on the policies held by the 1st opposite party – Bank, the policies had been sent to the

1st opposite party – Bank. The 1st opposite party – Bank confirmed the same and also assured her

that all her interests and the 1st opposite party – Bank’s own interests were fully protected. In

view of the abundant trust and confidence that the respondent no. 1 had on the 1st opposite party

– Bank, she blissfully went about her business fully convinced.

Whilst things stood so, there was a breakdown of the freezer compressor due to interruption

of electrical supply on 4th March 2005. This resulted in the burning out of the freezer compressor

and loss of ice-cream stock totalling to about Rs.2,86,000/- as is evidenced by the stock

statement for the day. The same is produced herewith for the perusal of this Forum. Immediately,

the matter was reported to the 1st opposite party – Bank by the respondent no. 1 who advised her

to inform the 2nd opposite party – insurance company and present her claim, assuring her that she

need not worry as everything was insured. Accordingly, the respondent no. 1 informed the

2nd opposite party – insurance company under intimation to the 1st opposite party – Bank. The

2nd opposite party – insurance company carried out an inspection only on 13.04.2005.

The respondent no.1 submits that what resulted thereafter was an extensive correspondence

between the respondent no. 1 and the 2nd opposite party – insurance company and their insurance

surveyor, with the 1st opposite party – Bank being kept abreast throughout. This respondent no. 1

was asked by the 2ndopposite party – insurance company. Insurance surveyor on 29.12.2005, vide

his letter no. NIC/ RSP – 4 to submit the following to enable him to proceed further in the

matter.

(i) Claim form in original duly filled and with seal and signature

(ii) Claim bill

(iii) Latest quotation for carrier make CR – SF 002 Model Cold Storage equipment of

same capacity.

(iv) Confirmation towards value for damaged parts.

The respondent no. 1 furnished the first two items on 07.02.2006 and intimated that the

salvage value be taken as NIL as there was no buyers for the same. The respondent no. 1 also

informed that she would be obtaining item no. 3, i.e., the quotation, shortly. The respondent no. 1

also submitted a claim separately for the loss suffered on account of the damage to the stocks of

ice-creams which were stored in the cold storage.

The respondent no. 1 was shocked to receive a letter no. NIC/ RSP – 5 dated 14.02.2006

from the insurance surveyor intimating her that he had not conducted any survey towards the loss

of ice creams as it was not covered under the policy details given to him. Completely upset by

this, the respondent no. 1 approached both the OPs and sought clarification in this regard. The

2nd opposite party – insurance company informed the complainant vide letter dated 02.03.2006

the damages to the stocks in cold storage due to change in temperature were not covered under

the General Exclusion Clause no. 6 of the policy, and hence, settlement of the claim towards

damaged stock of the ice-creams does not rise. The said policies were in the custody of the

1st opposite party – Bank.

On March 2006, the 2nd opposite party – insurance company sent a cheque for Rs.16,833/-

in full and final settlement of the claim towards the freezer equipment damage. As the sum was

substantially below the claim of Rs.1,00,000/- towards stock of ice-creams and Rs.53,583/-

towards cost of repair and replacement of the compressor unit and other electrical items for the

cold room freezer, made by the respondent no.1, the 2nd opposite party – insurance company was

contacted. On behalf of 2nd opposite party – insurance company one Sri Ramesh, on the

instructions of one Sri Govindaraj heard the representation of the respondent no. 1 with regard to

the inadequacy of the amount and the disallowance of the claims, and informed her that the

insurance surveyor Sri Prakash would be getting in touch with her soon. As the said Sri Prakash

did not contact the respondent no.1 even till 17.06.2006, the respondent no. 1 returned the said

cheque no. 733073 to the 2nd opposite party – insurance company vide her letter dated

17.06.2006 requesting that her claim be settled in full. In reply to this, the 2nd opposite party –

insurance company vide their letter dated 27.06.2006 contended among others, that the

1st opposite party – Bank had not taken cover for deterioration of stocks kept in cold storage and

hence settlement of claim towards the damaged ice cream does not arise. The 2ndopposite party –

insurance company also contended that there was inadequacy of the sum assured, because the

quotation furnished by the respondent no. 1 showed that the cost of new equipment of similar

capacity and model is Rs. 6,46,875/- as against the insured sum of Rs.3,95,000/-. The

2nd opposite party – insurance company also enclosed the same said cheque no. 733073 for

Rs.16,833/-.

Not being satisfied with the reply, the respondent no. 1 vide her letter dated 28.07.2006

returned the said cheque and sought copies of the policies under which the insurance was

covered, as she did not have them, as also proposals together with the enclosures to it, if any.

Vide their letter dated 10.08.2006, the 2nd opposite party – insurance company forwarded the

duplicate policies and once again reiterated the same contentions and highlighted the fact that the

1stopposite party – Bank who had taken the insurance had not taken cover for the stock kept in

cold storage.

As the duplicate policies were not attested, the respondent no. 1 once again wrote to the

2nd opposite party – insurance company on 29.10.2006 requesting attested copies of the policy

along with the enclosed enclosure, if any. Vide their letter dated 28.11.2006, the 2nd opposite

party – insurance company sent the attested copies of the policies as also the proposal form. A

close examination revealed that the said alleged proposal form was not at all signed by the

respondent no. 1 or anybody else. The respondent no. 1 then sought the 1st opposite party –

Bank’s view in this regard vide her letter dated 26.12.20056 which was received by the

1st opposite party – Bank on 27.12.2006. But the 1st opposite party – Bank has not sent any reply

till date.

The respondent no. 1 is even today repaying the said debt to the 1st opposite party – Bank

with interest as demanded by the 1st opposite party who has thus nullified the very purpose of the

insurance, the premium for which this respondent no. 1 was made to pay.

The respondent no. 1 submits that, if the say of the 2nd opposite party – insurance company

that the 1st opposite party – Bank never insured the deterioration of stocks of ice-creams kept in

cold storage were to be accepted, then the 1st opposite party – Bank is guilty of deficiency of

service in that, the 1st opposite party – Bank purporting to act in the best interests of their client

viz., this respondent no. 1 and so having collected the premium amount from the account of this

respondent no. 1, the 1st opposite party – Bank has failed to protect the interests of this

respondent no. 1 by not insuring against the very eventuality that the 1st opposite party – Bank

said had insured. Therefore, the 1st opposite party – Bank has failed to provide the service for

which it collected a hefty sum from the respondent no. 1.

This respondent no. 1 further submits that if the say of the 2nd opposite party - insurance

company that the 1st opposite party – Bank has under insured the value of the machinery is

accepted, then again, then the 1st opposite party – Bank is gain guilty of deficiency of service in

that; the 1st opposite party ought to have insured for a higher value keeping in view the escalation

of costs. Since the 1st opposite party – Bank did not do so, the 1st opposite party – Bank has failed

to provide the service for which it collected a hefty sum from the respondent no.1.

This respondent no.1 further submits that the 2nd opposite party – insurance company is

guilty of unfair trade practice, in as much as, it never contacted this respondent no. 1 before

finalising the proposal. The 2nd opposite party – insurance company ought to have met the

respondent no. 1 in person, explained the pros and cons of each condition in each of the policies

and then only ought to have accepted the payment from the 1st opposite party – Bank.

The 2nd opposite party – insurance company contended in his letters dated 27.06.2006,

10.08.2006 and 28.11.2006 that the 1st opposite party – Bank has under insured the machinery

value. The 2nd opposite party – insurance company has based this contention on the quotation

which was submitted by this respondent no.1. The said quotation is a comprehensive one, which

includes the value of the building and also for two compressors and accessories. The second

compressor unit is a stand by one which is not part of the original plant design. The said

quotation also includes the value of an ante-room. These were not part of the items insured. In

any case, the building was never insured at all as may be seen from duplicate schedule produced

herein. The sum assured, as stated in the attested schedule furnished by the 2nd opposite party –

insurance company discloses that the total value of insurance is Rs.4,95,000/- and that too only

for the refrigerator for the pre-fabricated building model – CR and for the cold storage

equipment freezer 2 HP Model SF 002. The suppliers of the equipment have since furnished the

break up of the two items; viz., PUF panels (for the cold room building) is Rs.2,75,000/- and for

the two units of refrigeration is Rs.2,40,000/-. What has been furnished as a quotation is for total

replacement of the equipment, whereas what has been sought is only replacement of a part of the

equipment. In fact, there is no need to base the settlement of the claim on a quotation, as the cost

of replacement has been worked out on the actual bills. Hence, there had been no under

insurance as contended by the 2nd opposite party – insurance company. Also, after imposing a

pre-condition that the sum assured shall be equal to the cost of replacement of the same capacity

and same kind, the 2nd opposite party – insurance company cannot deduct any amount towards

depreciation. This respondent no. 1 submits that, in order to avoid settling the genuine claim of

the respondent no. 1, both the OPs have colluded together and are coming up with such excuses.

This is more than evidenced by the fact that the alleged proposal form does not carry anybody’s

signature, much less that of the respondent no.1. Even the scoring off in the said proposal form

has not been attested by any one.

The respondent no. 1 prays this Commission to direct the 1st opposite party – Bank to pay

damage to the respondent no. 1 for an amount of Rs.5,00,000/- together with interest at 36% per

annum from the date of filing the complaint to date of paying the amount as damages for the

harassment meted out to this respondent no.1 and causing mental agony torture and hardship.

Direct the 2nd opposite party – insurance company to settle the claim in full for a sum of

Rs.1,53,583/- (which includes the value of stock to the extent of Rs.1,00,000/- only) as made out

by the respondent no. 1 together with interest at 36% per annum from date on which the cause

for claim arose, that is to say from 09.04.2005 to date of payment of the amount.

Direct the 2nd opposite party – insurance company to pay a sum of Rs.5,00,000/- together

with interest at 36% per annum from the date of filing the complaint to date of paying the

amount as damages for the harassment meted out to this respondent no. 1 and causing mental

agony torture and hardship.

Cost of this complaint and such other relief as this Forum may deem fit to grant under the

circumstances.

In their written statement before the District Forum the petitioner/ opposite party 1 – Bank

have stated that the respondent no. 1 has borrowed a sum of Rs.2,55,000/- on 05.08.2004 for

purchase of cold storage freezer unit from 1st opposite party. It is not true that the respondent no.

1 has availed a sum of Rs.1,00,000/- against stock of the ice-creams but for the purpose of

business and for that respondent no. 1 has pledged LIC policies in favour of 1st opposite party. It

is true that 1st opposite party had paid premium of Rs.10,882/- and a sum of Rs.1,418/- in all

Rs.12,230/- to 2nd opposite party – insurance company in order to cover the risk of the lending

amount of Rs.2,55,000/- only and hence debited the same into respondent no.1 account. It is also

true that the policies had been sent to the 1st opposite party – Bank by the 2nd opposite party –

insurance company as there was a lien. The same has been made in view of the terms and

conditions of the section advice and also as per clause 7 of the agreement of terms loan and

hypothecation executed by respondent no. 1 in favour of 1st opposite party – Bank.

The 1st opposite party – Bank refutes the allegations made in paragraph 7 of the complaint

and further this party was not aware of the entire correspondence but only knows part of the

correspondence made by 2nd opposite party – insurance company. The 1st opposite party – Bank

submits that the purchase value of the cold storage freezer unit was Rs.3,95,000/- at the time of

advancing the loan, hence, insurance was made for the said amount of Rs.3,95,000/- wherefore

question of inadequacy of the sum assured does not arise.

It is true that the stocks kept in cold storage has been covered under the fire policy, along

with plant/ machinery and accessories with 2nd opposite party – insurance company to the tune of

stock for Rs.1,00,000/- and Rs.3,95,000/- respectively. For which a sum of Rs.1,418/- has been

paid by the 1st opposite party – bank to the 2nd opposite party.

The dispute is between respondent no. 1 and 2nd opposite party – insurance company, since

the dispute is due to the rejection of insurance claim by the insurance company. Therefore, this

opposite party is not necessary party in the above case. The complaint is bad for misjoinder of

this opposite party.

Copy of the written statement/ reply of respondent no. 2/ opposite party no. 2 – insurance

company has not been filed but is seen from the order of the District Forum, that respondent no.

2 has filed their version stating that “after it was informed about the break-down of machineries

of the respondent no. 1 they had appointed a surveyor to assess the loss who after assessing the

loss submitted a surveyor to assess the loss who after assessing the loss submitted his report. It is

further contended that the first opposite party – Bank had taken fire insurance policies in the

name of the respondent no. 1, one of the machineries and other on the stock of ice-cream as

against fire. The opposite party further referring to the report of the surveyor has contended that

the cost of new equipment similar to one which break down was Rs.6,46,875/- including all other

charges, but the first opposite party – Bank has taken a policy for Rs.3,95,000/- therefore the

machinery was under insured. That the policy taken for the stock in trade is not covered under

the conditions of the policies as the 1st opposite party – Bank had taken the policy on the ice-

cream stock for fire explosion, riot etc., but the melting of the ice-cream due to power failure

since was not conversed it is not liable to compensate the respondent no. 1. That on the basis of

the surveyor reports taking into consideration, the under insurance depreciation etc., found itself

liable to pay a sum of Rs.16,833/- to the respondent no.1, but when a cheque was sent to that

amount to the respondent no. 1, she refused to receive the cheque. Therefore, stated that it is not

liable to pay a sum of Rs.1,53,583/- and Rs.5,00,000/- as claimed by the respondent no. 1 and

has prayed for dismissal of the complaint.

The District Consumer Disputes Redressal Forum at Mysore (‘the District Forum’) vide

order dated 17.09.2007 has held that “it is to be seen that the entire machinery was insured and

not the parts. The surveyor having accepted the value of the replaced parts as furnished by the

respondent no. 1 should have also seen whether the broke down parts were the major parts of the

machinery costing more value than the amount for which the machinery was insured. Therefore,

the surveyor having agreed with the cost of replacement of the broken out parts should have

recommended the payment of the actual cost of parts replaced. The 2nd opposite party –

insurance company has not disputed the report of the surveyor. Therefore, on considering all

these aspects of the matter, we hold that the respondent no.1 is entitled to a sum of Rs.42,714.38

towards the cost of replacement of broken parts and the 2nd opposite party – insurance company

is liable to compensate it. With this we answer point no. 1 in the affirmative.

Points no.2 and 3 : - The 2nd opposite party – insurance company though has also issued an

insurance policy for Rs.1,00,000/- towards the ice-cream stock, stocked in the godown, but has

contended that the 1st opposite party – Bank has only taken a fire policy for the ice-cream stock

on behalf of the respondent no. 1 and the intervention of electricity and deterioration of the ice-

cream is not covered under the conditions of the policy, therefore, it is not liable to compensate

the respondent no. 1. The respondent no. 1 and the 1st opposite party – Bank have not disputed

that the 1st opposite party – Bank had only insured the stock in trade for storm, cyclone, typhoon,

tempest, hurricane, tornado, flood and or inundation but had not taken the policy for protection

of the ice-cream stock from electrical interruption. Therefore, we hold that the 2nd opposite party

– insurance company is not liable for compensating the respondent no. 1 towards the loss of ice-

cream.

The 1st opposite party – Bank as we have already stated above has not disputed that it had

not taken insurance for the stock of ice-cream kept in the godown for covering the risk from

electric intervention, but only taken insurance under the fire policy. The 1st opposite party –

Bank who itself took the policy from 2nd opposite party – Insurance company on behalf of the

respondent no. 1 and deducted the premium amount from the account of the respondent no. 1 by

way of debiting, ought to have taken care to take policy which could have covered the risk due to

intervention of electricity. The 1st opposite party – Bank in this regard has not come forward with

any explanation for its failure to take an appropriate insurance for the ice-cream stock. As such,

we find deficiency on the part of the 1st opposite party – Bank in not covering the ice-cream stock

with an appropriate insurance policy.

This statement of the respondent no. 1 do indicate that she sustained loss of Rs.1,00,000/-

towards the loss of ice-cream stocked in the godown. Even otherwise, the complainant had only

got the ice-cream insured to an extent of Rs.1,00,000/- only, this has not been controverter or

rebutted by the 1stopposite party – Bank. Therefore, we find no reasons to disbelieve the claim of

the respondent no. 1 for awarding compensation of Rs.1,00,000/- towards loss of ice-cream

against the 1st opposite party – Bank. With the results, we answer the points no. 1 and 2

accordingly and pass the following:

The complaint is allowed. The 1st opposite party – Bank is held liable to pay a sum of

Rs.1,00,000/- to the respondent no.1 being the cost of the ice-cream stocked in the cold storage.

The 2nd opposite party – Insurance company is held as liable to pay a sum of Rs.42,714.38 being

the cost of replacement of the broken parts of the machinery. 1st and 2nd opposite parties (Bank

and Insurance Company) are directed to pay the compensation award to the respondent no. 1

within two months from the date of this order, failing which they are directed to pay interest @

12% per annum from the date of this order till the date of payment. The 1 st and the 2nd opposite

parties (Bank and Insurance Company) are also directed to pay Rs.1,000/- each towards the cost

of this complaint”.

Aggrieved by the order of the District Forum the petitioner filed an appeal before the State

Commission. The State Commission vide their order dated 10.06.2008 dismissed the appeal and

ordered as under:

“The petitioner/appellant has deposited a sum of Rs.85,000/- before this Commission.

Office is directed to transfer the same to the District Forum with a direction to the

District Forum to pay the same to the respondent no. 1/ complainant after due notice to

the respondent no. 1”.

Hence this present revision petition.

The main grounds for the revision petition are that:

The State Commission erred in holding OP no. 1 – the Bank had taken a wrong

policy. There is no special contract to take a particular policy or that there is no question

of taking any wrong policy.

It is submitted that there is no mistake by Bank. In fact the dispute itself is not a

consumer dispute and the consumer court does not have the jurisdiction to decide the

present case.

Though the 1st opposite party/ appellant – Bank took out insurance policies to cover

and insure the stocks, stocks-in-process and ice-cream for Rs.1,00,000/-, still the Forum

below held that this 1st opposite party/ appellant – Bank is liable to pay the insured

amount of Rs.1,00,000/- on the ground that the appellant has not “taken out a proper

insurance policy”, though the appellant Bank had specifically insured the stocks, stocks-

in-process and ice-creams stored in the cold storage freezer.

Since there was a breakdown of the freezer compressor on 04.03.2005 due to

“interruption of electrical supply”, which resulted in burning of freezer compressor and

loss of ice-creams stocks, the respondent no. 1/ complainant should have arrayed the

electricity company of Mysore, i.e., CESCOM – Chamundeshwari Electricity Supply

Company as one of the opposite party for proper adjudication of the case.

The State Commission failed to appreciate that the District Forum was wrong in

holding that there was any deficiency on the part of the petitioner herein. The relationship

between the petitioner and the first respondent is restricted to the petitioner granting a

loan to the first respondent. The services of the petitioner do not include obtaining

insurance cover for the goods hypothecated. The agreement in clause 7 specifically states

that there is no obligation on the part of the Bank to obtain an insurance cover. On the

contrary the agreement also specifically states that it is the borrower (the first respondent

herein) who is obliged to insure the machinery and stock. In light of this specific clause

in the agreement, the finding that the Bank was guilty of deficiency of service, is ex

facie perverse and incorrect.

The petitioner further submits that both the District Forum and the State Commission

failed to appreciate that the provision in the Loan and Hypothecation agreement for

obtaining an insurance cover of the machinery and the stocks, was with the intent of

protecting the interests of the Bank and not the first respondent. The first respondent

cannot take recourse to the said clause to contend that the Bank was obliged to insure the

machinery and stock.

The State Commission failed to appreciate that the District Forum’s direction to the

petitioner herein to pay Rs.1,00,000/- is perverse also for the reason that no evidence was

adduced by the first respondent in regard to the exact extent of stock which was damaged.

Without the same being proved by evidence, the District Forum could not have held that

the value of stock destroyed was Rs.1,00,000/-. It is highly excessive and without basis.

We have heard the learned counsel for the parties and have also gone through the records

of the case carefully.

It is an undisputed fact that the respondent no.1 has borrowed a sum of Rs.3,95,000/- as

term loan from the petitioner – Bank in October 2004 to put up a cold storage unit in the name of

M/s Shawn Distributors for her livelihood and was engaged in the business of distribution of ice-

creams as stockists and distributors for M/s Pastonji who are the manufacturers of ice-creams.

She had taken another loan of Rs.1.00 lakh against stock of ice-creams in cold storage. It is also

an undisputed fact that the petitioner had as security for the loan advanced taken insurance of

machinery and accessories. There was break down of electricity on 04.03.205 which resulted in

the burning out of freezer compressor and loss of ice-cream stock. Respondent no. 1 claimed

insurance of Rs.1,53,583/- with interest @ 36% per annum for the value of the stock which was

repudiated by OP no. 2/ respondent no. 2, on the grounds that the policy taken for the stock in

trade is not covered under the conditions of the policies as the 1st opposite party had taken the

policy on the ice-cream stock for fire explosion, riot etc., and melting of the ice-cream due to

power failure was not covered by the existing policy. Respondent no. 1 in her complaint had

stated as follows:

“When the respondent no. 1 made enquiries with the Bank she was informed that in order to cover the risk of lending, the Bank had insured against any loss to the extent of the loan amounts and debited the account of the respondent no. 1 for a sum of Rs.10,882 and a sum of Rs.1418 as premiums paid to the 2nd opposite party – insurance company. Since the actual act of insuring against any loss was handled by her Bank, the respondent no. 1 went about her business of attending to the day to day administration, being fully confident that she had reposed her trust and faith in the competent hands of the 1st opposite party – the Bank. As demanded by the 1st Opposite Party – Bank, the respondent no.1 even credited the said sum of Rs. 12,300/- to the said account on 05.11.2004. The 2nd opposite party – insurance company or its representative, did not ever meet this respondent no. 1 either before or after the payment of the premium by the 1st opposite party – Bank. Even after considerable time had elapsed after the debit of the premium amount, the respondent no. 1 did not receive any receipt or policy from either of the opposite parties. So the respondent no.1 made enquiries with the 2nd opposite party – insurance company regarding this. The 2nd opposite party – insurance company then informed her that as there was a loan from the 1st opposite party – Bank and there was a lien on the policies held by the 1st opposite party – Bank, the policies had been sent to the 1st opposite party – Bank. The 1st opposite party – Bank confirmed the same and also assured her that all her interests and the 1st opposite party – Bank’s own interests were fully protected”.

Petitioner also have admitted that “it is true that 1st opposite party had paid premium of Rs.10,882/- and a sum of Rs.1,418/- in all Rs.12,230/- to 2ndopposite party – insurance company in order to cover the risk of the lending amount of Rs.2,55,000/- only and hence debited the same into respondent no.1 account. It is also true that the policies had been sent to the 1st opposite

party – Bank by the 2nd opposite party – insurance company as there was a lien. The same has been made in view of the terms and conditions of the section advice and also as per clause 7 of the agreement of terms loan and hypothecation executed by respondent no. 1 in favour of 1st opposite party – Bank”.

Counsel for the petitioner had also admitted that the initial policy was taken by the Bank

and the premium for the policy was debited to the account of respondent no. 1. He further argued

that it was for the respondent no. 1 to check on the policies taken. But as has been admitted in

their written statement by the petitioner, the policies were taken by them and respondent no. 2

had sent the policies directly to the petitioner, in view of the terms and conditions of the

agreement. As per the clause 7 of the agreement of the policy which states that “shall be handed

over to the Bank”. Hence, petitioner cannot take the plea that respondent no. 1 should have

checked the policy taken is the appropriate one.

Respondent no. 1 has specifically written in her complaint that mentioning that on her

enquiring with the second opposite party about the non-receipt of the policy, the respondent no. 2

had informed her that there was loan from petitioner and there was a lien on the policy held by

the petitioner and the policy had been sent to the bank. The petitioner – Bank had confirmed the

same and has also assured her that all her interests and also the interest of the bank are fully

protected.

Respondent no. 1 in her complaint has also stated that “not being satisfied with the reply,

the respondent no. 1 vide her letter dated 28.07.2006 returned the said cheque and sought copies

of the policies under which the insurance was covered, as she did not have them, as also

proposals together with the enclosures to it, if any. Vide their letter dated 10.08.2006, the

2nd opposite party – insurance company forwarded the duplicate policies and once again

reiterated the same contentions and highlighted the fact that the 1st opposite party – Bank who

had taken the insurance had not taken cover for the stock kept in cold storage.

As the duplicate policies were not attested, the respondent no. 1 once again wrote to the

2nd opposite party – insurance company on 29.10.2006 requesting attested copies of the policy

along with the enclosed enclosure, if any. Vide their letter dated 28.11.2006, the 2nd opposite

party – insurance company sent the attested copies of the policies as also the proposal form. A

close examination revealed that the said alleged proposal form is not at all signed by the

respondent no. 1 or anybody else. The respondent no. 1 then sought the 1st opposite party –

Bank’s view in this regard vide her letter dated 26.12.20056 which was received by the

1st opposite party – Bank on 27.12.2006. But the 1st opposite party – Bank has not sent any reply

till date. The postal receipt is produced herewith as proof of dispatch”.

The petitioner has nowhere in the reply specifically denied these averments made by

respondent no.1.

Hence, there is no reason not to believe that she has correctly stated that she never signed

any proposal form – or taken any policy personally and that she had never received the policies

with the terms and conditions, as also her statement that respondent no. 2 never discussed the

same with her before issue of policies.

In view of the above, we find that there is no jurisdictional 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 pay an amount of Rs.5,000/- directly to respondent no. 1 by way of

demand draft and deposit the balance amount of Rs.5,000/- by way of demand draft in the name

of ‘Consumer Legal Aid Account’ of this Commission, within four weeks from today. In case

the petitioner fails to deposit the above said amounts within the prescribed period, then it shall be

liable to pay interest @ 9% per annum till realisation.

List on 22ndNovember 2013 for compliance.

..………………………………

[ V B Gupta, J.] ………………………………..[Rekha Gupta]Satish


REVISION PETITION NO.3438 OF 2008

(From order dated 16.05.2008 in First Appeal No.786 of 2007 of the State Consumer Disputes Redressal Commission, Delhi)

1. Sherry Leasing Pvt. Ltd. Having its Registered Office at 41/12 Ashok Nagar, New Delhgi-18 Through it’s one of the Director Mrs. Sunita Mehta, R/o : -41/11 Ashok Nagar, New Delhi-18. 2. Mrs. Sunita Mehta W/o Sh. Hari Om Mehta, R/o 41/11 Ashok Nagar, New Delhi-18

…Petitioners Versus

1. Mrs. Kamini Saigal W/o Late Krishan Kumar2. Priyanka Saigal D/o Mrs. Kamini Saigal3. Sandeep Saigal, S/o Mrs. Kamini Saigal All the residents Of RU-241, Pitam Pura, New Delhi.

…Respondents BEFORE: HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER HON’BLE MRS. REKHA GUPTA, MEMBER For the Petitioners : Mr. Arvind Dua, Advocate for Petitioners No.1 and 2 along with Ms.Sunita Mehta, Petitioner No. 2 in person. For the Respondents : In person Pronounced on: 7 th October, 2013 ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER Being aggrieved by order dated 16.5.2008 passed by State Consumer Disputes Redressal

Commission, Delhi (for short, ‘State Commission’), Petitioners/O.Ps have filed the present

petition.

2. Brief facts are that Respondent No.1/Complainant No. 1 deposited a sum of Rs.25,000/- with

petitioner no.1 and it issued FDR No.0074 dated 30.09.1995 which was due for payment on

29.09.1997. It is also stated that Respondent No.2/Complainant no.2 deposited a sum of

Rs.50,000/- and petitioners issued 2 FDRs of Rs. 25,000/- each dated 13.05.1995 bearing

Nos.SLPL-047 and SLPL-075 dated 30.09.1995, payable on 12.5.1997 and 29.09.1997

respectively. Likewise, Respondent no.3/Complainant No.3 deposited a sum of Rs.25,000/- with

the petitioner who issued FDR No.SLPL-044 dated 08.05.1995 payable on 07.05.1997. All the

aforesaid FDRs bear interest @ 14% P.A. When all the FDRs became matured for payment in

the year 1997,petitioners failed to pay on demand principal and interest there upon. Hence,

respondents served legal notice dated 22.12.1998 upon the petitioners and prayed for the

direction to the petitioners for making the payment of principal amount with interest @ 14% P.A.

Besides this, they have claimed Rs.One lac as compensation and Rs.11,000/- on account of

counsel fee. 5the complaint and passed the following directions;

“ In the result we direct the OP as under:

1. To pay the complainant No.1 the balance amount FDR No.0074 Dt.30.09.95 after adjusting the amount of Rs.10,000/- already paid by the OP to complainant No.1 with interest @ 14% P.A. from 01.01.97 to 12.05.97 and future interest thereafter,@ 12% P.A.

2. To pay the complainant No.2 a sum of Rs. 50,000/- towards her FDR No.047 dated 13.05.1995 alongwith interest @ 14% P.A. from 01.01.1997 to 12.05.97 and thereafter interest @ 12% P.A. till realization. And pay Rs.25,000/- towards FDR No. 075 Dt.30.09.95 with interest @ 14% P. A. from 01.01.97 to 29.and, thereafter, interest @ 12% P.A. till realization.

3. To pay the complainant No.3 a sum of Rs. 25,000/-towards his FDR No.044 Dt.08.05.95 with interest from 01.01.97 @ 14% P. A. till 07.05.97 and, thereafter, interest @ 12%.

4. We direct the OP to pay a sum of Rs. 500 to each of the complainant towards cos. The respondent shall comply with the abvoe mentioned order within 45 days of receipt of this order failing which proceedings u/s 27 of the Consumer Protection Act may be initiated”.

5. Thereafter, District Forum in the execution proceedings, as per its order dated 24.08.2007 held

that, in the execution proceedings it cannot review, alter or change its own order and directed

petitioner no. 2 to pay the balance amount positively.

6. Being aggrieved, petitioners filed appeal before the State Commission challenging orders

dated 04.05.2001 and 24.08.2007 of the District Forum.

7. State Commission, vide order dated 16.5.2008 disposed of the appeal in the following terms; “6. In view of the above reasons, there is no ground to interfere with the order

dated 24-08-2007 nor is there any ground to interfere with the impugned orders. The appellant, therefore, shall make the payment to the respondent with interest accruing from the order dated 4-1-2005 as the respondent is in a very poor financial state and is in dire need of money and her son is stated to have gone into depression after her husband’s death and is incurring huge expenses for treatment and is also facing other problems due to the financial crunch.

7. In view of the equal liability of the appellant being Rs.30,000/- towards the

principal amount, the appellant shall pay within fifteen days the interest and the amount of Rs.30,000/- in terms of order dated 4-1-2005 failing which the District Forum shall take up proceedings under Sec. 25 & 27 of the Consumer Protection Act.

8. All of the complaints have become redundant in view of the order dated 4-5-

2001 passed by the District Forum. The appellant cannot be allowed to reopen the issue after the matter has been decided on merits”.

8. Being aggrieved by the order of State Commission, petitioners have filed the present revision

petition.

9. We have heard the learned counsel for the petitioners as well as respondent who has argued

its case in person.

10. Petitioners herein were exparte before the District Forum as they did not appear despite

service. Under these circumstances, petitioners have no defence on merits.

11. District Forum, in its order has held;

“The complainants have established on record that they have deposited the amounts to the OP as per their respective FDRs and OP has failed to pay the said amount of FDR on its maturity as demanded by the complainants, hence, there is a deficiency in service on the part of OP”.

12. State Commission while deciding the appeal observed; “4. It is pertinent to mention that in our Order dated 14-03-2005 passed

in A-845/2002 Sunita Mehta v. Kamini Sehgal, who is respondent in this case, the present appellant Sunita Mehta was allowed in view of the undertaking given by her that she would settle the accounts with other four Directors who are equally liable to make payment of their share in the company to the respondent.In view of this undertaking, this Commission passed the following directions:-

“ In view of this undertaking the appeal is allowed and the impugned order is set aside. The District Forum shall take up the proceedings initially under Sec. 25/27 of the Consumer Protection Act. However, District Forum shall also consider the request of the appellant as to her proportionate liability being one of the Directors as the company comprises of four Directors”.

5. On the face of it the appeal against original order dated 04-05-2001 is

hopelessly time barred. The appellant has come up after years to challenge this order without showing any sufficient grounds to condone such inordinate delay. Moreover, the appellant has also been given the relief as to her liability for the other directors of the company by the aforesaid order dated 14-03-2005. On account of this the appeal against order dated 12-05-2001 has become otherwise infructuous as in the aforesaid appeal No. 845/02 decided on 14-03-2005 the appellant had filed the above referred appeal for non-compliance of order dated 4-5-2001 which impliedly meant that the appellant had already accepted the said order and was successful in obtaining relief as to her proportionate liability”.

13. Under section 21(b) of the Consumer Protection Act,1986(for short, ‘Act’),this Commission

can interfere with the order of the State Commission where such State Commission has exercised

jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in

the exercise of its jurisdiction illegally or with material irregularity.

14. As there has been no defence on behalf of the petitioners before the District Forum on

merits, we do not find any infirmity or illegality in the impugned order of the State Commission

as well as that of the District Forum. Under these circumstances, present revision petition is not

maintainable and the same is dismissed.

15. Parties shall bear their own costs.

……..……………………J

(V.B. GUPTA) (PRESIDING MEMBER …………………………

(REKHA MEMBER



(From order dated 15.05.2013 in First Appeal No. 919 of 2010 of the State Consumer Disputes Redressal Commission, Madhya Pradesh, Bhopal) Bank of Baroda Sarafa Bazar, Through Branch Manager, Lashkar, Gwalior, M.P.

… Petitioner Versus

1. Ratan Singh Paviva, R/o Village Rawatpur, Pichore, Gwalior, M.P.

2. Mr. Rajiv Sharma, Proprietor M/s Rajiv Traders Jawahar Colony, Gwalior Road, Dabra, Gwalior, M.P.

3. Mr. S.M. Khan Occupation Bank Manager (Former) Bank Of Baroda, Branch Sarafa Bazar

Lashkar, Gwalior, M.P. … Respondents

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE DR. S. M. KANTIKAR, MEMBER For the Petitioner : Mr. Arun Aggarwal, Advocate. Pronounced On 10 th October , 2013

ORDER


1. The present Revision Petition is filed by the Petitioner Bank Of Baroda under Section 21 (b)

of Consumer Protection Act, 1986 against the order of the State Consumer Disputes

Redressal Commission, (in short, ‘State Commission’) Bhopal, Madhya Pradesh. The State

Commission dismissed the Appeal filed by the Bank Of Baroda in Appeal No. 919 of 2010

setting aside the order of the District Consumer Disputes Redressal Forum, (in short,

‘District Forum’) in Consumer Complaint No. 700 of 2009. The District Forum passed an

order on 26.02.2010, and, allowed the complaint.

2. Facts of the case in brief:

The Complainant, an Agriculturist, bought a tractor P.T. Escort 439 from M/S Rajiv Tractors,

Dabra, Gwalior (OP-1), after availing loan from Bank of Baroda (OP-3). The OP-2 Mr.

S.M. Khan, Branch Manager of OP-3 Bank, issued a loan sanction and asked the

complainant to get the tractor from OP-1. On the basis of letter from OP-2, the proprietor

Mr. Rajiv Sharma (OP-1), issued a cash memo dated 4/3/2008, detailing the engine no. E-

3042699 and Chassis No. B-3039770. He endorsed a hypothecation agreement in favor of

OP-3 Bank, and mentioned about receipt of amount of Rs.4, 56,941/- i.e.,

price of the tractor and Rs.1,00,000/-, towards insurance of the tractor.

The Complainant also paid the amount for registration to OP-1, and he was asked to

obtain the documents from the Bank. But, OP-2, Mr. S.M. Khan, did not give documents of

tractor to the complainant. On 07.03.2008 when the tractor met with an accident, it was

seized by the officials of Police Station, Jhansi Road, Gwalior. When the documents of

tractor were demanded from the OP-2 & 3, they kept on avoiding him. Therefore, on

suspicion of foul play, the complainant got the information from the RTO Office about the

details of registration of the tractor, and it was learnt that tractor having Chassis No. B-

3039770 and Engine No. E-3042699 bearing Registration No. MP 07 AA 1258, registered in

the name of Ganga Ram Rawat, S/o Rudra Singh, Village Kheda, Tehsil Bhitarwal, District

Gwalior. Complainant came to know that it was a fraud committed by OP-2 & 3, and in

connivance with each other, had seized the old tractor which was sold earlier,

on 11.05.2007, to Ganga Ram Rawat because of nonpayment of installments. After

refurbishing, painting and removing its registration number plate, same tractor has been sold

to the complainant, claiming it to be a new one, and original documents were kept hidden by

them. Thus, the complainant filed a complaint before the District Forum, Gwalior seeking

directions to the OPs to give new tractor or its price and insurance amount along with interest

and compensation on the ground of committing gross deficiency in service.

3. The District Forum allowed the compliant, and passed an order on 26.02.2010 holding that

Branch Manager, Bank of Baroda, S.M. Khan, former Bank Manager and dealer Rajiv

Sharma have committed deficiency in service and unfair trade practice, and

directing OP-1, Bank of Baroda, to receive the disputed tractor in

its present condition from the Complainant, without any recovery of loan sanctioned

against the tractor from the OP-1, and Branch Manager, Bank of Baroda ,the OP-3, to

deposit the margin money which was deposited by the Complainant for approval of loan,

along with interest, with the District Forum, within one month from the date of order. It

further directed that the said money was to be paid to the Complainant. It is also directed

that , OP-2 Rajiv Sharma, Prop. M/s Rajiv Traders and Branch Manager, Bank of Baroda

shall deposit Rs.10,000/- each, separately, as compensation and Rs.1,000/- each, separately,

as costs of proceedings, to be paid to the Complainant, within one month.

4. Aggrieved by this order, OP-3, filed an appeal before the State Commission.

5. The State Commission examined the evidence on record and found that Branch

Manager, Bank of Baroda, Sarafa Bazar, Lashkar, Gwalior, S.M. Khan, occupation-

Manager (former) Bank of Baroda, Branch Sarafa Bazar, Lashkar, Gwalior and Dealer Rajiv

Sharma, S/o Parmanand Sharma, Prop. M/s Rajiv Traders, Gwalior Road, Dabra, all three,

in connivance with each other, have financed the tractor having Chassis no. B-

3039770 and Engine No. E-3042699 to the OP-1, Ratan Singh Pawaiya, and that the

same was sold earlier, on 11.05.2007, to Ganga Ram Rawat, S/o Shri Rudra Singh,

Village Kheda, Tehsil Bhitarwar, District Gwalior. Hence, the State Commission upheld the

order of District Forum.

6. Aggrieved against the order of State Commission, the Petitioner filed this Revision

Petition.

7. We have heard the Counsel for Petitioner at admission stage, perused the evidence on record

and orders of both the Fora below.

8. It is an undisputed fact that, the complainant obtained the quotation for purchase of a

new tractor from the OP-1. Even there is no dispute in this regard that OP-1 has sold out a

tractor having Chassis No. B-3039770 and Engine No. E-3042699 vide Cash Credit Memo

dated 04.03.2008.

9. The District Forum observed;-

“ it is proved in the present case that the tractor having Chassis no B-3039770 and Engine no. E-3042699 which was sold showing it brand new to Applicant No.1, that tractor instead of being new tractor, was earlier sold to some Ganga Ram, S/o Rudra Singh, R/o Bhitarwar, Gwalior in the year 2007 vide Ex.C-9 and C-10, which was registered in RTO, Gwalior at Registration No. MP 07 AA 1258 and then definitely, by selling out old tractor to the Applicant after receiving the price of new tractor from the Non-Applicant no. 3, not only deficiency in service and unfair trade practice has been committed, but criminal offence has also been committed.

10. Therefore, it is clear that the disputed tractor was already hypothecated with the OP-3 Bank

earlier in favour of Ganga Ram, S/o Rudra Singh and the same was shown to be sold to the

Applicant. Thereafter, OP-3 should have made the payment after receiving explanation from

the OP-1.

11. It is clear that there was a nexus between OPs, i.e. OP-3 by sanctioning loan, twice, on same

tractor and making payment to the OP-1. Such services are unfair trade practices and

amount to absolute deficiency in service by OPs.

12. It is so apparent that, OP-2 had the complete knowledge of the improper act of OP-1 i.e. the

disputed tractor was an old one and was already registered in some other’s name, earlier,

and disputed tractor is hypothecated because of sanctioning of loan in the name of other

person, Ganga Ram earlier, therefore, OP-2 deliberately did not supply the documents to

the complainant. Hence, liability should be fixed on all the OPs.

13. Therefore, we are of considered view that there is no need to interfere with the observations

made by the Fora below. We endorse the same order passed by both the Fora below. Also,

such service providers deserve to be properly punished. Accordingly, we impose punitive

costs of Rs.25,000/- upon OP-1 and OP-3, each, which is to be deposited in Consumer Legal

Aid Account of this Commission.

14. The OPs are directed to comply with the entire order within 60 days, otherwise, it will carry

interest @ 9% pa till its realization. The Revision Petition is dismissed.

……………….………… (J.M. MALIK J.)

PRESIDING MEMBER

……………….…………… (Dr. S.M. KANTIKAR)MEMBER

Mss-07

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2652 OF 2013 (Against the order dated 18.04.2013 in First Appeal No.252 of 2011 of the Kerala State Consumer Disputes Redressal Commission, Rajasthan, Chennai)

Mr. K Bhaskaran, S/o Mr. P. Krishnan Kutty, Subramania Apartments, New No. 39/06, Old No.38/6 C.P. Ramaswamy Road, Alwarpet, Chennai 600 018.

… Petitioner

Versus

1. Standard Chartered Bank Ltd. Represented by Manager, 29/30, Raja Rajeswari Towers, 2nd Floor, Dr. Radhakrishnan Salai Mylapore, Chennai- 600004

2. Officer, Customer Care, Standard Chartered Bank, India Bankcard Centre, 3rd & 4th Floor, Raheja Point, Magarath Road, Bangalore-560025.

…. Respondents

BEFORE:

HON'BLE MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

HON'BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner : Mr. K. Vijay Kumar, Advocate

Pronounced on : 10 th October, 2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

In this revision petition filed under Section 21(b) of the Consumer Protection Act,

1986(for short, ‘Act’) there is challenge to order dated 18.4.2013 passed by State Consumer

Disputes Redressal Commission, Chennai(for short, ‘State Commission) in First Appeal No.

252 of 2011.

2. Brief facts are that Petitioner/Complainant had availed the services of Respondents/O.Ps.by

holding five credit cards issued by Respondent No.1. It is alleged that Petitioner had been

making prompt payments for all the five cards. Only because of the services offered by the

respondents went against the agreed norms, petitioner decided to withdraw from the said

services. After consulting the official of the respondent no.1 and as per the advice received,

petitioner cut into pieces all the five cards and sent the same to respondent no.1 along with 12

cheques for full and final settlement of the entire dues. Respondent No.1 having received the

letter and cheques along with cut pieces of five credit cards had also encashed all the 12 cheques.

Only after the 12 cheques were honoured, respondent no. 1 started sending further demand letters

to the petitioner as if he owed money to respondent no.1 under the said credit card transactions.

Having accepted the said 12 cheques towards the settlement of entire dues and having encashed

them, respondent no.1 is estopped from claiming any further amount from the petitioner. The act

of respondents in initiating proceedings before the Tamil Nadu State Legal Service Authority

amounts to deficiency in service on their part.

3. Respondents in their written statement admitted that petitioner had availed five credit card

issued by respondent no.1. However, respondent no.1 had not sent any full settlement letter to

the petitioner giving him the plan, amount and period of repayment. The petitioner, suo motto

had sent a letter enclosing 12 cheques for Rs.8,520/- each as there was no settlement of dues, as

alleged and no repayment from 2006. So, the respondents in the normal course referred the

matter to the Lok Adalat of the Tamil Nadu State Legal Services Authority. Resorting to the

recovery of dues through Lok Adalat cannot amount to deficiency in service on the part of the

respondents.

4. District Consumer Disputes Redressal Forum, Chennai (South)(for short, ‘District Forum’),

vide order dated 20.12.2007, dismissed the complaint of the petitioner being devoid of merits.

5. Being aggrieved by the order of District Forum, petitioner filed appeal before the State

Commission, which was dismissed, vide impugned order dated 18.4.2013.

6. Hence, this revision petition.

7. We have heard the learned counsel for the petitioner and gone through the record.

8. It has been contended by learned counsel for the petitioner that there has been deficiency on

the part of the respondents in as much as constant harassment is being caused to the petitioner

even after full and final settlement made by the petitioner.

9. District Forum, in its order held;

“Credit card history in respect of five credit cards dated 27.03.2008 issued by the opposite party is Ex B1. Credit card statement for the period from July 2005 to August 2006 is Ex B2.

Perusal of Ex B2 would reveal that the complainant had outstanding amount due to the opposite party bank even after the realization of 12 cheques sent by the complainant towards full and final settlement. For recovery of dues from the complainant, the opposite parties referred the matter to the Lok Adalat. In the above circumstances, we are of the considered opinion that resorting to recovery of dues through the Lok Adalat would not amount to deficiency in service”.

10. State Commission, while confirming the order of District Forum, in its impugned order observed;

“5. We have carefully considered the arguments of the complainant and record relied upon by the complainant and as well as the respondents/opposite parties before the District Forum even though the complainant alleged that in view of the final settlement he had sent 12 cheques for Rs.1,02,328/- against the due for Rs.1,27,910/- as per Ex.A1 statement of account and on that basis he had also surrendered the credit cards by cutting into pieces and thereby claimed entire discharge, the opposite party contended that since the dues are pending matter was referred to Lok Adalat for recovery of money which cannot be considered as deficiency of service. On perusal of the Ex.A3 Lok Adalat notice along with the statement details of the 5 cards containing total outstanding dues in each case after the last usage date and the complainant did not file any letter of settlement to prove that he was directed to pay only a sum of Rs.1,02,328/- instead of Rs.1,27,910/- as final settlement. So the letter sent by the opposite party under Ex.A5, the complainant was requested to furnish the settlement letter to enable them to look into the matter to do the needful and thereby it is clear that there was no effective settlement by way of documentary proof and thereby the complainant cannot claim any discharge from the entire dues and the dispute to be settled between the parties themselves in this regard as it involves question of principal amount, interest, penal interest etc as per the terms and conditions of the agreement for receiving the credit card facility service and thereby the District Forum by considering all the relevant materials in detail came to the proper conclusion by dismissing the complaint with which finding, we find no need for any interfere and this appeal to be dismissed as devoid of merits and accordingly”.

11. After perusing of the record, we find that there is nothing on record to show that petitioner

has made any full and final settlement with the respondents in respect of his Credit Card amount.

12. Both the Fora below have categorically held that a sum of Rs.1,27,910/- was due against the

petitioner against which he himself had sent a sum of Rs.1,02,328/- towards full and final

settlement unilaterally.

13. Under section 21 (b) of the Act, this Commission can interfere with the order of the State Commission where such State Commission has exercised jurisdiction not vested in it by law, or has failed to exercise jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.

14. Hon’ble Supreme Court in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co.

Ltd. 2011 (3) Scale 654 has observed ;

“ Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of

some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora”.

15. In view of the concurrent findings of facts given by both the Fora below, we do not find any

infirmity or illegality in the impugned order passed by the state Commission. Hence, present

revision petition has no legal force and the same is hereby dismissed.

16. No order as to costs.

……..……………………J

(V.B. GUPTA)

(PRESIDING MEMBER

………………………… (REKHA GUPTA)

MEMBER



(From the order dated 16.01.2012 in First Appeal No. 1965/2006 of Haryana State Consumer Disputes Redressal Commission, Panchkula)

State Bank of Patiala Railway Road Branch, Kurukshetra, Haryana-136118

... Petitioner

Versus

Krishan Kaul W/o M. L. Kaul, R/o- House No. 15, Sector-13, Kurukshetra, Haryana-136118

… Respondent

BEFORE



For the Petitioner : Mr. Bheem Sain Jain, Advocate

and Mr. Udayan Singla, Advocate

For the Respondent : Mr. S. C. Phogat, Advocate

PRONOUNCED ON : 25 th OCTOBER, 2013 O R D E R PER HON’BLE MR. JUSTICE K. S. CHAUDHARI, PRESIDING MEMBER

This Revision Petition has been filed by the petitioner against impugned order dated

16/01/2012, passed by the State Commission Haryana in First Appeal No. 1965/2006, State Bank of

Patiala vs. Krishna Kaul, by which while dismissing the appeal, order of the District Forum allowing


2. Brief facts of the case are that Complainant-Respondent is an account holder of Opposite

Party-Petitioner. On 27.09.2005, complainant, after getting Rs. 25,000/- from PNB, went to

Opposite Party Bank for depositing amount in complainant’s account no. 1190012729. After

completing deposit slip, complainant approached the cashier counter then suddenly some unknown

person snatched the amount of Rs. 25,000/- from the complainant’s hand and ran away. Bank

security guard was watching the procession of Dera Sacha Sauda, which was passing through the

road in front of the bank. As Opposite Party could not provide adequate security to the complainant,

alleging deficiency on the part of the Opposite Party, complainant filed complaint before the District

Forum. Opposite Party resisted complaint and submitted that complainant never came in the Bank

on 27.09.2005 to deposit amount of Rs. 25,000/-. Snatching of money from complainant’s hand was

also denied and prayed for dismissal of complaint. Learned District Forum after hearing both the

parties allowed the compliant and directed the Opposite Party to pay Rs. 25,000/- alongwith 9% p.a.

interest. Appeal filed by the Opposite Party was dismissed by the State Commission vide impugned

order, against which this Revision Petition has been filed.

3. Heard learned counsel for the parties finally at admission stage and perused record.

4. Learned counsel for the petitioner submitted that respondent does not fall within the purview of

consumer and further submitted that security guard was for the security of bank and if anyone has

snatched money from respondent’s hand, petitioner can not be held responsible and the State

Commission has committed error in dismissing the appeal and the District Forum has committed

error in allowing complaint, 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 the State

Commission is in accordance with law, hence Revision Petition be dismissed.

5. The whole question to be decided in this case is whether petitioner was bound to provide

security to its customers and has failed to provide security.

6. As per complainant’s averments, money was snatched by third person from complainant’s

hands when he was in bank premises in front of cash counter and security guard was watching the

procession passing through the road. Security guard employed by the petitioner was meant for

protecting properties of petitioner and admittedly money in the hands of respondent was not the

property of the petitioner till it was handed over to cashier of petitioner. Admittedly, money was not

handed over by the respondent to the petitioner and in such circumstances, petitioner’s security

guard was not under any obligation to provide security to the respondent, who was only account

holder of the bank. Learned counsel for the respondent could not substantiate his arguments by any

citation that petitioner was under an obligation to provide security to the customer as soon as

customer entered into premises of petitioner. If a customer is assaulted by another customer in bank

premises, we do not think that bank or its security guard can be held responsible in Civil/Criminal

proceedings. We do not agree with the findings of the State Commission that bank security guard

had to protect the customers from bad elements and bank was duty bound to provide adequate

security to its customers. In such circumstances, order passed by the State Commission is liable to

set aside.

7. Consequently, Revision Petition filed by the petitioner is allowed and impugned order dated

16.01.2012 passed by the State Commission in First Appeal No. 1965/2006, State Bank of Patiala vs.

Krishna Kaul and order dated 17.07.2006, passed by the District Forum in complaint no. 100/2006,

Smt. Krishna Kaul vs. State Bank of Patiala is set aside and complaint stands dismissed with no

order as to costs.

..……………………………

(K. S. CHAUDHARI) PRESIDING MEMBER

..……………………………

(DR. B.C. GUPTA) MEMBER

PSM



(From the order dated 16.01.2012 of the Odisha State Consumer Disputes Redressal Commission, Cuttack in First Appeal no. 590 of 2009)

Shantilata Das CL 23, V S S Nagar Bhubneshwar – 7 District Khurda Lawful attorney of Shri Sangram Keshari Das

Petitioner

Versus

ICICI Bank Ltd 184, 3rd Floor, Kedarson Building Janpath Kharvela Nagar Unit -3, Bhubneshwar – 1

Respondent

BEFORE:



For the Petitioner Mr Biraja Mahapatra, Advocate

Pronounced on 29 th October 2013

ORDERREKHA GUPTA

Revision petition no. 3544 of 2013 has been filed under section 21 (b) of the Consumer

Protection Act, 1986 against the order dated 16.01.2012 of theOdisha State Consumer

Disputes Redressal Commission, Cuttack (‘the State Commission’) in First Appeal no. 590 of

2009.

The facts asgleaned from the order of the District Consumer

Disputes Redressal Forum, Khurda, Bhubneshwar (‘the District Forum’), are that the petitioner

was the legal attorney of Shri Sangram Keshari Das. Shri Das had purchased a car (Travera)

bearing registration no. OR – 02 AD1710 to maintain his livelihood for a sum of Rs.6,80,850/-

availing finance of Rs.5,47,000/- from the respondent – the Bank. The same had to be repaid in

60 EMIs at the rate of Rs.10,725/-. The loan amount was being repaid regularly and

the loanee could not pay the three EMIs from 01.12.2006 to 01.02.2007. The loan was to be

liquidated by 01.10.2009. On 07.02.2007. A demand was made by the Bank that a sum of

Rs.33,525/- was due to be paid towards the loan amount. The petitioner wanted to deposit this

amount but it was not accepted by the Bank. In the meantime, the vehicle was repossessed by the

Bank on account of outstanding dues payable by the petitioner and the hypothecation agreement

was also terminated. The repossession of the vehicle was made unlawfully by the help of muscle

men without prior notice, hence, the petitioner was entitled to get compensation. It was further

stated in the complaint that the loanee had made the down payment of Rs.1,20,000/- at the time

of taking the loan and paid 14 EMIs from 01.11.2004 to 01.12.2005 at the rate of Rs.10,725/-.

Then the Bank voluntarily granted top up loan of Rs.60,000/- and the entire loan was fixed to be

paid in 10 EMIs at Rs.11,175/- each. Thus after repayment of the loan, the seizure of the vehicle

having been made and the case has been filed.

The case of the Bank according to their written version is that the Bank released the loan

amount of Rs.5,13,500/- with the agreement to repay the same at the rate of Rs.11,175/- in 60

EMIs. The petitioner was defaulter of Rs.44,700/- till 01.02.2007 i.e., four instalments. Hence,

the vehicle was repossessed rightly and subsequently it was sold by the Bank to realise the loan

dues.

The District Forum while allowing the complaint gave the following order:

“The complaint is hereby allowed ex parte against the Bank and dismissed ex parte

against OP no. 2. The Bank is directed to refund the balance sale proceeds to the petitioner in

respect of the vehicle which was sold after taking repossession having adjusted the sum of

Rs.44,700/- towards the loan amount which was said to be due from the petitioner. The Bank is

further directed to pay compensation of Rs.5,000/- to the petitioner for having repossessed the

vehicle with the help of muscle men without any prior notice to the petitioner and detained the

sale proceeds in respect of the vehicle after selling the same for a long time. Litigation cost is

assessed at Rs.1,000/-. The entire sum be paid by the Bank within one month from the date of

communication of this order, failing which they shall pay interest at the rate of 9% per annum

over the entire amount till the date of payment”.

Aggrieved by the order of the District Forum, the respondent – Bank filed an appeal

before the State Commission. The State Commission in their order observed that, “when the

appeal was taken up for hearing nobody appeared on behalf of the petitioner/ complainant.

Learned counsel appearing on behalf of the Bank submitted that the petitioner is in no way

connected with the hirer of the vehicle Sangram Keshari Das. She is the wife of one Sisir Kumar

Das. The relationship of Sangram Keshari Das, who had availed the loan with the present

petitioner Shanti Lata Das is not known, nor has it been disclosed. He submitted that when

admittedly there was default in payment of the EMI as per the agreement entered into between

the loanee and the Bank, the Bank was empowered to repossess the vehicle, and for realisation

of the outstanding loan amount, the Bank being the owner of the vehicle and the person to whom

the finance was made being the hirer, had every right to sell the vehicle. That is what has

happened in the present case.

We entirely agree with Mr Das and in our considered opinion, no deficiency has been

committed by the Bank in the matter of repossession and sale of the hypothecated vehicle, and

the impugned order passed by the District Forum cannot be sustained.

In the result, therefore, we allow the appeal, set aside the impugned judgment and order

dated 19.11.2008 passed by the District Forum, Khurda at Bhubaneswar in CD case no. 124 of

2007 and direct dismissal of the said CD case.

LCR be sent back forthwith”.

Hence, the present revision petition.

The impugned order was passed on 16.01.2012 and the revision petition was filed on

03.10.2012. As per the office report, there is a delay of 536 days. However, no application

for condonation of delay has been filed.

We have heard the learned counsel for the petitioner and have also gone through the records

of the case carefully. Counsel for the petitioner still argues that there is no delay in filing the

revision petition and has drawn our attention to paragraph 9 of the revision petition wherein it

has been stated that “the petitioner’s counsel on 13.08.2013 wanted to ascertain the position of

the case as he had never received any notice from the State Commission. On inquiry if transpired

only on that day that the matter was decided on 16.01.2012 by the State Commission headed by

Justice A K Samantray”.

However, there is an office report on the record. This is based on the report received from

the State Commission, Odisha. Secretary, Odisha State Commission in his letter dated

09.10.2003 has intimated that the free copy of the impugned order dated 16.01.2012 passed in

appeal no. 590 of 2009 was collected by the appellant’s advocate on 20.01.2012 and sent to

the Shantilata Das the petitioner immediately on 01.03.2012. If the limitation is to be calculated

from 01.03.2012, the date on which the certified copy of the order was sent by post by the State

Commission, then also there is a delay of 491 days. Counsel for the petitioner has failed to

explain the delay.

The petitioner has failed to give reasons for the day-to-day delay. The petitioner has

failed to provide ‘sufficient cause’ to condone the delay of 491 days. This view is further

supported by the following authorities:

The apex court in the case of In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), it has been 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”.

In Balwant Singh Vs. Jagdish Singh & Ors., (Civil Appeal no. 1166 of 2006), decided by the Apex Court on 08.07.2010 it was held:

“The party should show that besides acting bonafide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]”.

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.”

Similarly, in Oriental Insurance Co. Ltd. vs. Kailash Devi & Ors. AIR 1994 Punjab and Haryana 45, it has been laid down that;

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice but that would be in a case where no negligence or inaction or want of bona fide is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one of is not to be swayed by sympathy or benevolence.”

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.”

Accordingly, we find that there is no ‘sufficient cause’ to condone the long delay of 491 days in filing the present revision petition. Consequently, the present revision petition being time barred by limitation and is dismissed with a cost of Rs.10,000/- (rupees ten thousand only).

Petitioner is directed to deposit the cost of Rs.10,000/- by way of demand draft in the name of ‘Consumer Legal Aid Account of this Commission’ 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 6th December, 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

Sd/-

………………………………..

[Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3648 OF 2013 (From the order dated 18.10.2012 in Appeal No. 40/10 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)With IA/6483/2013 (For condonation of delay) Central Bank of India Through Senior Manager Branch Dujana District Jhajjar Haryana


VersusShri Jagbir Singh S/o Deep Chand R/o Village Khungai, Tehsil & District Jhajjar Haryana

…Respondent/Complainant BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioners : Mr. Yograj Gullaiya, Advocate

PRONOUNCED ON 19 th November, 2013 O R D E R


This revision petition has been filed by the petitioner against the order

dated 18.10.2012 passed by Haryana State Consumer

Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 40

of 2010 – Central Bank of India Vs. Jagbir Singh by which, while dismissing appeal, order of

District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/respondent purchased a tractor HR 14B 3913

after taking loan from OP/petitioner. Complainant used to deposit the loan amount and OP was

charging insurance premium amount for insurance of the tractor. As per terms and conditions of

the agreement, insurance premium was charged till 25.5.2005, but thereafter, OP did not pay the

insurance premium to Insurance Company. On account of accident, claim petition was filed

against the complainant before MACT, Delhi involving aforesaid tractor and MACT Court

awarded amount against the complainant which requires reimbursement by OP. Alleging

deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted

complaint and submitted that it was the duty of the complainant to get the vehicle insured and

prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed

complaint and ordered that OP is liable for legal consequences in the absence of insurance of the

vehicle. Appeal filed by the petitioner was dismissed by learned State Commission vide

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. Petitioner submitted in the application for condonation of delay that impugned order dated

18.10.2012 was dispatched by the State Commission on 19.11.2012 and was received by the

petitioner on 26.11.2012. It was further submitted that the petitioner-bank is at very remote

village and due to shortage of staff, matter was taken up with the Regional Office in the first

week of December, 2012 and now the permission for filing the present revision has been

received and immediately revision petition is filed. It was further submitted that petitioner-bank

is a Nationalized Bank and process of obtaining permission has to go through various channels

on account of which, delay of 230 days occurred, which may be condoned.

5. Learned Counsel for the petitioner submitted that as permission had to be taken through

various channels, delay of 230 days occurred in filing revision petition may be condoned.

5. Perusal of application clearly reveals that matter was taken up with the Regional Office

at Rohtak in the first week of December, 2012, but in the application nowhere it has been

mentioned that when permission for filing the revision petition was received. Revision petition

has been filed on 11.10.2013, meaning thereby, after 10 months of taking the matter with the

Regional Office. Petitioner has not mentioned in the application the dates and channels through

which file proceeded for seeking permission for filing revision petition.

6. As there is inordinate delay of 230 days in filing revision petition, this delay cannot be

condoned in the light of the following judgment passed by the Hon’ble Apex Court.

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. 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.”

9. 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.”

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”.

11. 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.

Thus, it becomes clear that there is no reasonable explanation at all for condonation of inordinate

delay of 230 days. In such circumstances, application for condonation of delay is dismissed. As

application for condonation of delay has been dismissed, revision petition being barred by

limitation is also liable to be dismissed.

12. Consequently, the revision petition filed by the petitioner is dismissed as barred by

limitation 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 REVISION PETITION NO. 55 OF 2008(From the order dated 03.10.2007 in First Appeal No. 1839/2006of M.P. State Consumer Disputes Redressal Commission) Dr. Pratibha Chaturvedi d/o late N.P. Chaturvedi Lecturer, Thakur Ranmat Singh Degree College, Rewa (Madhya Pradesh)

... Petitioner Versus 1. Union Bank of India through Regional Manager, Regional Office, Gangotri Complex,New Market, Bhopal 2. Union Bank of India through Branch Manager, 12, Near Raniganj, Vyankat Road,Madhya Pradesh 3. Umesh Dixit proprietor – M/s Printer House, Pushp Raj Nagar, Rewa (Madhya Pradesh)

… Respondent(s) BEFOREHON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON’BLE DR. B.C. GUPTA, MEMBER APPEARED AT THE TIME OF ARGUMENTS For Petitioner(s) Mr. Ashwani Kr. Dubey, Advocate

For Respondents 1 & 2 Mr. O.P. Gaggar, Advocate

For Respondent–3 Mr. Avinash Prasad, Advocate

PRONOUNCED ON : 19 th NOVEMBER 2013 O R D E R PER DR. B.C. GUPTA, MEMBER


1986 against the impugned order dated 03.10.2007, passed by the Madhya Pradesh State


1839/2006, vide which the order dated 02.06.2006, passed by District Consumer Disputes

Redressal Forum, Rewa, allowing the consumer complaint in question was set aside.

2. Brief facts of the case are that the petitioner/complainant deposited a sum of `1 lakh with

the respondent Union Bank of India and a Fixed Deposit Receipt (FDR), bearing number

7622508 was issued in her favour on 26.03.96. The respondent no. 3, Umesh Dixit, Proprietor,

M/s. Printer House, availed loan from the Union Bank of India for his business, for which the

petitioner/complainant was one of the guarantors. It is made out that the Bank adjusted the

maturity amount of the FDR against the loan amount of respondent no. 3 Umesh Dixit. The

main grievance expressed by the petitioner in her consumer complaint says that the Bank should

not have adjusted the maturity amount of the FDR to settle the loan account of the respondent no.

3. The Bank sent a letter to the petitioner on 24.10.2002 that her deposit had matured on

26.09.2002, but it had been renewed for 15 days. The said amount was pledged in the account of

M/s. Printer House and shall be adjusted in the said account on the due date. In reply to this

letter, the petitioner wrote to the Bank on 28.10.2002 that the loan matter of M/s. Printer House

was pending in the court of Tehsildar, Tehsil and District Rewa. The Bank could not adjust the

said amount till the time the said matter was disposed of. The Bank informed the petitioner

through another letter on 30.10.2002 that the amount of FD was pledged in the loan account of

the Printer House and as per the agreement, it shall remain pledged till the loan remained due and

the Bank had the right to adjust the same in the loan account. On 16.11.2002, there is entry in

the ledger book relating to M/s. Printer House that an amount of `2,13,914/- had been adjusted in

their loan account, meaning thereby that the maturity amount of FDR was credited to the account

of M/s. Printer House. Later on in June, 2004, a one-time settlement was reached between the

Bank and the Printer House, according to which the loan case was to be closed on payment of

`4,75,000/-. Accordingly, after payment of the said amount of `4,75,000/- a no due certificate

was issued by the Bank on 13.07.2004 in favour of respondent no. 3. On the other hand, the

petitioner wrote a letter dated 18.08.2004 to the Bank, requesting for return of her money

because the loan case of respondent no. 3 had been settled. On the failure of the Bank to do so,

the consumer complaint in question was filed which was decided by the District Forum vide their

letter dated 2.06.2006, according to which they ordered the Bank to make payment of the

maturity amount of the disputed amount to the petitioner with interest. An appeal against this

order filed before the State Commission was allowed and the order of the District Forum was set

aside. It is against this order that the present petition has been made.

3. At the time of hearing before us, the learned counsel for the petitioner stated that the loan

account of the respondent no. 3 M/s. Printer House had been settled with the Bank against the

payment of `4,75,000/-. The amount involved in the FDR belonging to the petitioner was not a

part of this settlement and hence this amount should be returned to the petitioner by the Bank.

Learned counsel has drawn our attention to a letter dated 12.06.2004 written to respondent no. 3,

Umesh Dixit by the Bank in which it has been stated that the compromised amount was `4.75

lakh. The learned counsel has also drawn our attention to letter dated 18.08.2004, written by the

petitioner to the Bank saying that her FDR amount may be returned to them. A registered notice

was also sent in this regard to the Bank, but the Bank in their reply refused to refund the said

amount. The learned counsel further stated that there had been many discrepancies in the

account statement maintained by the Bank.

3. On the other hand, the learned counsel for the Bank stated that they had duly informed the

petitioner through their letter dated 24.10.2002, that the FDR was being renewed for 15 days and

at the expiry of this period, the maturity amount shall be adjusted in the loan account of M/s.

Printer House. The petitioner through her letter dated 28.10.2002 asked them not to do so,

because a case was pending with the Court of Tehsildar, but they have sent another letter dated

30.10.2002 to her, saying that the said amount will be adjusted against the loan account of M/s.

Printer House. On 16.11.2002, the maturity value of the FDR, i.e., `2,13,914/- was credited to

the account of M/s. Printer House. The one-time settlement entered between the Bank and the

Printer House was made in June 2004 and the settled amount of `4,75,000/- was paid by the

loanee and his account was closed. This settlement had nothing to do with the maturity amount

of FDR adjusted in the account of the loanee on 16.11.2002, i.e., one and a half year back.

4. We have examined the entire material on record and given a thoughtful consideration to

the arguments advanced before us. It has not been denied by the petitioner/complainant

anywhere that she was not the guarantor for the loan given to M/s. Printer House. The entries on

record, make it very clear that the Bank decided to adjust the maturity amount of the FDR

belonging to the guarantor in the loan account of M/s. Printer House. After giving her due

information vide their letter dated 24.10.2002 and again vide their letter dated 30.10.2002 in

response to her letter dated 28.10.2002, they took the necessary step and adjusted the said

maturity amount in the loan account of M/s. Printer House on 16.11.2002. A perusal of the

entries in the ledger account of M/s. Printer House indicates that the said amount was adjusted on

16.11.2002 and the outstanding balance of `8,44,985/- was reduced to `6,31,071/- after

adjustment of amount of `2,13,914/- which was the maturity value of the said FDR. In so far as

the OTS is concerned, that reflects a later development, which took place in June 2004 and

according to which, the loan was to be settled after payment of `4.75 lakh to the Bank. The

ledger entries indicate clearly that an amount of `2 lakh was deposited on 10.06.2004 and another

amount of `2.75/- was deposited on 30.06.2004 in the loan account of M/s. Printer House. An

amount of `1,56,071/- was ordered to be written off and there was ‘nil’ balance as on 10.07.2004.

5. It is made out from the above facts that there is no correlation between the adjustment of

the maturity amount of FDR belonging to the petitioner done in November 2002 and the OTS

entered later on in June 2004. The petitioner, therefore, does not acquire any right to recover the

amount of the said FDR from the Bank, after the OTS was reached. At the time of adjustment of

maturity amount of `2,13,914/- of the FDR belonging to the petitioner on 16.11.2002, the

outstanding balance in the account of the loanee was reduced from `8,44,985/- to

`6,31,071/-. The balance outstanding amount as in June 2004 was settled by way of depositing a

further amount of `4.75lakh and writing off the remaining amount of `1,56,071/-. It is obvious

that the adjustment of the maturity amount done quite some time back is regardless of one time

settlement reached later.

6. In view of this situation, it is clear that the order passed by the State Commission does not

suffer from any infirmity, illegality or jurisdictional error. The said order is, therefore, upheld

and the revision petition is ordered to be dismissed with no order as to costs.Sd/-(K.S. CHAUDHARI J.)PRESIDING MEMBER Sd/-(DR. B.C. GUPTA)MEMBERRS/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 3930 OF 2013 (From the order dated 09.09.2013 in Appeal No. 483/2011 of the State Consumer Disputes Redressal Commission, Delhi) Chatur Behari Sharma House No. 1292, Vakil Pura Near Jama Masjid Delhi – 110006


Versus1. IDBI Bank Ltd. 51/3, D.B. Gupta Road Opposite Khalsa College Karol Bagh, New Delhi – 110005. 2. The Deputy General Manager Domestic Resources Department IDBI Bank Ltd. IDBI Tower, WTC Complex, Cuffe Parade, Mumbai – 400005

…Respondent/Opp. Parties (OP) BEFORE HON’BLE MR. JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner : Mr. Gopal Sharma, Brother-in-law of Petitioner along with petitioner in person

PRONOUNCED ON 25 th November, 2013 O R D E R


This revision petition has been filed by the petitioner against the order

dated 09.09.2013 passed by State Consumer Disputes Redressal Commission, Delhi (in short,

‘the State Commission’) in Appeal No. 483 of 2011 – Chatur Behari Sharma Vs. IDBI Bank Ltd.

by which, while dismissing appeal, order of District Forum dismissing complaint was upheld.

2. Brief facts of the case are that complainant/petitioner purchased a DV account bond from

the OP on 26.2.1992 for Rs.2700/-. Against the bond, OP undertook to pay Rs.1,00,000/- to the

complainant on 31.3.17. Complainant as well as OP, both, had option to encash/redeem the

bond only at the end of each 5 years w.e.f. 31.3.91 for the face value given therein. Complainant

further alleged that he received letter dated 29.4.2009 from OP that OP had exercised call option

on 31.3.2002 by issuing the redemption notice to the complainant on 30.9.01 to surrender duly

discharged bond for release of Rs.12,000/- and redemption amount is still lying with the

OP. Complainant denied receipt of notice and asked OP to pay him face value of the bond of

Rs.25,000/- as due on 31.3.2009. OP informed the complainant that complainant may be paid

interest @ 3.5% p.a. on quarterly compounding basis on the redemption amount of Rs.12,000/-

from 31.3.2002 date of exercising option, but complainant refused. Alleging deficiency on the

part of OP, complainant filed complaint before District Forum. OP contested the complaint and

submitted that intimation was given to the complainant under certificate of posting informing

him to surrender the bond by 31.12.2001 for receiving the value and further intimated that no

interest will be payable after 31.3.2002. It was further submitted that this intimation was

published through various newspapers. Denying deficiency, OP prayed for dismissal of

complaint. Learned District Forum after hearing both the parties dismissed complaint against

which, appeal filed by the petitioner was also dismissed by impugned order against which, this

revision petition has been filed.


4. Perusal of record reveals that OP exercised option for redemption of bond and intimation

was given to the complainant under certificate of posting and redemption notice was also

published in various newspapers. Learned District Forum while dismissing complaint observed

as under:“In the above mentioned circumstances, the complainant cannot succeed to get redemption amount of Rs.25,000/- and other charges as prayed in the complaint. The redemption option of the bond as exercised by the IDBI was legal and the bank took enough measures to inform the bond holders by issuing Public Notice in leading Newspapers, regarding the redemption of the bond of the value as on 31.3.2002. The bond holders including the complainant were informed individually also by sending notice under UPC. The bank is to pay interest @ 3.5% p.a. on quarterly compoundable basis from 31.3.2002 on the redemption value of unclaimed bond. It is for the complainant to get the redemption value of his bond along with interest as per extended policy of the bank. He may submit the duly discharged bond to get the redemption amount with interest as referred above”.

5. Learned State Commission observed as under:The contention of the appellant is that he did not receive the communication from the bank dated 30.9.2007 is per se unacceptable, because he admits having received a subsequent communication dated 29.4.2009 on same address. Besides the bank issued Public Notice in various Newspapers, which has been said on the affidavit. The bank has also filed the postal receipt of certificate of posting of communication sent to the complainant. In the face of all this evidence, it cannot be said that the communication dated 30.9.2001 was not received by the complainant, and his plea in this regard cannot therefore be accepted.

6. In the light of aforesaid observations of District Forum and State Commission, we do not

find any illegality, irregularity or jurisdictional error in the impugned order and revision petition

is liable to be dismissed at admission stage as intimation had already been given to the petitioner

regarding redemption.


no order as to cost. ………………Sd/-……………( K.S. CHAUDHARI, J) PRESIDING MEMBER ..……………Sd/-………………( DR. B.C. GUPTA ) MEMBERk


REVISION PETITION NO.2078 OF 2013(From the order dated 26.2.2013 in First Appeal No.138/2013 with Misc. Application No.225 of 2013 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

1. Subhash Chand S/o Shri Mukand Lal

2. Sushma Rani W/o Shri Subhash Chand R/o H.No.60, Patiala Gate Sangrur (Punjab)

..…. Petitioners

Versus

1. Punjab National Bank (Main) Patiala Gate Sangrur (Punjab) Through its Manager2. Oriental Insurance Co. Ltd. Nabha Gate Bazar Sangrur (Punjab) Through its Manager 3. Medi Assist India (TPA) Pvt. Ltd. SCO No.61, 2nd Floor Phase VII, Mohali Through its Managing Director

..... Respondents

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER


For the Petitioners : In person

PRONOUNCED ON: 27 th November, 2013 ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the petitioners who were the original

complainants against the impugned order dated 26.2.2013 passed by the State Consumer

Disputes Redressal Commission, Punjab, Chandigarh by which the State Commission dismissed

the M.A. No.225 of 2013 filed by the petitioners for condonation of delay of 402 days in filing

their First Appeal before the State Commission. Resultantly, the State Commission also

dismissed their F.A. No.138 of 2013 as being time-barred against the order dated 11.11.2011

passed by the District Consumer Forum, Sangrur whereby the District Forum had dismissed the

complaint No.261 filed by the petitioners.

2. Briefly stated, the petitioner No.1/complainant No.1 had taken a mediclaim insurance

policy for his wife, petitioner No.2 and his son from respondent No.2 insurance co. in

collaboration with respondent No.3 which is a Third Party Administrator (TPA) organisation.

The policy was valid from 6.9.2010 to 5.9.2011. As per the allegations, the petitioner No.2 fell ill

on 22.9.2010 and was admitted in a hospital at Sangrur for treatment but soon she had to be

shifted to another hospital at Ludhiana for further treatment on 28.9.2010 where she remained

admitted upto 16.10.2010. The petitioners spent an amount of Rs.14,360/- from 22.9.2010 to

28.9.2010 at the Sibia Hospital, Sangrur and Rs.1,87,260/- from 28.9.2010 to 16.10.2010 at

DMC Hospital, Ludhiana on the treatment of petitioner No.2. Petitioners sent claim in respect of

the expenditure incurred by them to the opposite parties but the same was rejected by them on

the ground that as per the terms and conditions of the policy, the expenditure on the treatment of

hypertension and diabetes was not payable if contracted in the first two years of the policy.

Alleging deficiency in service on the part of the OPs, the petitioners filed a consumer complaint

seeking direction from the District Consumer Forum to the OPs to make payment of Rs.1 lakh

towards reimbursement of medical bills and expenses along with interest @ 12% p.a. from

16.10.2011 till realization. OPs-1 & 2 / R-1 & 2 herein respectively appeared before the District

Forum in response to notice while OP No.3 was proceeded ex parte. Opposite Party No.1, i.e,

Punjab National Bank, Sangrur admitted that the OP-2 had issued a PNB-Oriental

RoyalMediclaim Policy (Family Floater) for PNB account holders/employees for the period

6.9.2010 to 5.9.2010 subject to the terms and conditions of the policy and their son was also

covered under the policy. However, it was submitted by OP-1 that the real dispute was between

OPs - 2 & 3 and the petitioners. OP-2 opposed the complaint and the claim of the petitioners by

stating that the terms and conditions of the policy had been explained to the complainants before

issuing the policy in their favour and as per the terms of the policy, the claim was not payable

under Exclusion Clause No.4.1 and feature 1.2 of the policy. It was further stated that the

patient / petitioner No.2 was a known case of diabetes and hypertension with surgical

intervention done on 2.4.2010 prior to the inception of the policy on 6.9.2010 and hence the

expenses for the treatment of hypertension and diabetes are not payable if contracted in the first

two years of the policy. On considering the evidence adduced before it, the District Forum did

not find any merit in the claim made by the petitioners and dismissed the same. Aggrieved of the

order of the District Forum, the petitioners filed an appeal against it before the State Commission

which was dismissed by the State Commission in limine as being time-barred. It is in these

circumstances that the petitioners have approached this Commission against the impugned order

of the State Commission.

3. We have heard Shri Subhash Chand, petitioner No.1 who has appeared for himself and

petitioner No.2 and perused the record. We may note that the State Commission has dismissed

the appeal of the petitioners on the ground of delay of 402 days in filing the appeal which the

State Commission did not find appropriate to condone. The petitioners have not placed a copy of

their M.A. No.225 of 2013 which they filed before the State Commission for condonation of

delay in filing the appeal. It is seen from the impugned order that the main contention of the

petitioners before the State Commission was that the delay in question was neither intentional

nor deliberate but due to the reason beyond the control of the petitioners because petitioner No.1

was taking care of his wife/petitioner No.2 and as such he could not contact the counsel for filing

of the appeal and due to this reason, the delay of 402 days occurred in filing the appeal. It was

further pleaded by the applicant that the petitioners would suffer irreparable loss and prejudice

will be caused if delay is not condoned and appeal is not decided on merits. While dismissing the

application of the petitioners for condonation of delay in filing the appeal, the State Commission

observed that the applicant had neither mentioned name of the hospital where petitioner No.2

was admitted nor given the details and dates of hospitalization supported by medical record or

bills of the hospital/medicines. In the absence of necessary details supported by the documents,

the State Commission held that sufficient cause had not been shown by the applicant

for condonation of delay of 402 days and hence the M.A. was dismissed. Consequently, the State

Commission dismissed the main appeal as barred by limitation. We may note that as per the

judgements of the Apex Court, while deciding an application for condonation of delay, the court

has to keep in mind that the specific period of limitation has been prescribed under the Consumer

Protection Act, 1986 for filing appeal and the object of expeditious adjudication of the consumer

disputes will get defeated if the courts were to entertain highly belated appeals. It is also well-

settled that the applicant who approaches the court for condonation of delay in question has to

explain each and every day’s delay in a convincing and satisfactory manner so as to provide

sufficient cause for condoning the delay by the court as envisaged under the law. In this case, we

find that the petitioners miserably failed to explain the delay with documentary evidence to

convince the State Commission that there was sufficient cause which led to the inordinate delay

of 402 days occurred in filing their appeal. In our considered view, the State Commission was

justified in dismissing the application for condonation of 402 days of delay and the main appeal.

The petitioners have not placed any material which would persuade us to take a different view.

4. In view of the aforesaid discussion, we do not find any justification to interfere with the

impugned order dismissing the appeal of the petitioners on the ground of limitation. Even on

merits, we do not find any substance in the revision petition. The District Forum has considered

the contentions raised by the petitioners adequately and has recorded its reasons in para 9 of its

order while dismissing the complaint. No fault could be found with the order of the District

Forum on merits.

5. In view of the aforesaid discussion, the revision petition is dismissed in limine with no

order as to costs.

……………Sd/-……..………..

(AJIT BHARIHOKE, J.)

PRESIDING MEMBER

……………Sd/-….……………

(SURESH CHANDRA)

MEMBERSS/



(From order dated 9.10.2013 in FAIA No. 1403/13 in FASR No. 3736/13 of the A.P. State Consumer Disputes Redressal Commission, Hyderabad)

Andhra Bank, Main Road, Amadalavalasa Town and Mandalam, Srikakulam District, Andhra Pradesh-532001 Represented by Chief Manager

… Petitioner

Versus

Smt. Attaluri Tara Rani W/o Murli Mohana Rao R/o Teachers Colony, Mettakkivalasa(V) Amadalavalas (town) Srikakulam district Andhra Pradesh

… Respondent

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. S. Parihar, Advocate for Mr. Avnesh Sharma, Advocate

Pronounced on : 9th December, 2013

O R D E R

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. There was delay of 170 days when the first appeal was filed before the State Commission.

The delay has been explained in para 3 of the affidavit filed by Shri S. Babu Rao, which is

reproduced as under:

-2-

“3. The Dist. Forum after hearing both side passed order C.C. No. 89 of

2012 dt. 30-11-2012 and the copy of order was dispatched as per C.C. on 4-

12-2012, but the same was not received by the Appellants. The petitioner

came to know about the order passed by the Dist. Forum only during 1st week

of April, 2013, when the complainant visited the O.P. No. 2 Bank and

informed that her compliant was allowed and the bank is not returning the

title Deed and cost is also not paid as directed by the Dist. Forum. Thereafter

immediately the Bank contacted their counsel and asked him to verify about

the case and the counsel on verification at Dist. Forum came to know that the

complaint was allowed on 30-11-2012 and he had filed the copy application

on 12-4-2013 and copy of the order was furnished on 12.4.2013, after receipt

of the certified copy the petitioners came to know about the order. After

receipt of the order, the Petitioner Bank immediately contacted the controlling

authority, the Petitioners are preferring the present appeal before the Hon’ble

State Commission. For getting the instruction of competent authority, and

filing the appeal, as such there is a delay of 42 days in filing the present

appeal, which is neither wilfull nor out of negligence, but for the reasons

stated above. After getting the permission, immediately we entrusted the case

to our counsel at Hyderabad for filing the Appeal.”

-3-

2. The petitioner has given a lame excuse in explaining the above said delay. It is clear that free

copy of the order was dispatched as per CC on 1.12.2012. There is no allegation that the address

mentioned thereon was incorrect. As suggested by learned counsel for the petitioner, it is quite

possible that the said letter might have been sent at the alternative address of the said bank.

3. We have also seen the order passed by the District Forum. The order was passed in the

presence of learned counsel for the petitioner. The relevant portion runs as follows:

“This complaint is coming on 16-11-2012 for final hearing before us

in the presence of Sri N. Nanajee, Advocate for the Complainant and

Sri P.V. Ramana Dayal, Advocate for opposite parties and having

stood over for consideration, this Forum made the following.”

It is thus clear that the petitioner did not enquire about his case for a period of 170 plus 90

days, total being 250 days, though the service of free copy is must.

4. In Banshi Vs. Lakshmi Narain – 1993 (1) R.L.R. 68, it was held that reason for delay was

sought to be explained on the ground that the counsel did not inform the appellant in time, was

not accepted since it was primarily the duty of the party himself to have gone to lawyer’s office

-4-

and enquired about the case.

5. Similar view was taken in Jaswant Singh Vs. Assistant Registrar, Co-operative Societies – 2000 (3) Punj. L.R. 83, Bhandari Dass Vs. Sushila, 1997 (2) Raj LW 845.

6. It is thus clear that the petitioner remained without any knowledge for a period of about 250 days. It clearly goes to show the negligence, inaction and passivity on the part of the petitioner.

7. There is no ground for condonation of delay in view of the authorities in Anshul

Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), R.B.

Ramlingam v. R.B. Bhavaneshwari, I (2009) CLT 188 (SC)= I (2009) SLT 701=2009 (2) Scale

108; Ram Lal and Others v. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361; Office of the

Chief Post Master General & Ors. Vs. Living Media India Ltd. & Anr. 2012 (1) SCR 1045,

Bikram Dass Vs. Financial Commissioner and others AIR 1977 Supreme Court 1221.

8. Consequently, the revision petition is hopelessly barred by time. The revision petition is

dismissed.

9. However, the learned counsel for the petitioner submits that it is not possible to produce

the document title deed in question because the

-5-

same is lost. He is at liberty to raise this question before the executing court. The executing

court after satisfying that the title deed has been lost shall proceed further. The executing court

will come to the rescue of the petitioner after it has proved that the document is lost and compel

them to cooperate in getting the duplicate documents. The executing court will be at liberty to

impose penalty upon the petitioner for further negligence on the part of the petitioner for the lost

of document without any rhyme and reason. The main duty of the executing court is to see that

the execution decree stands executed as per law without any harm to the decree holder.

The revision petition is dismissed accordingly.

.…..………Sd/-…………………

(J. M. MALIK, J) PRESIDING MEMBER

.…..………Sd/-…………………

(S. M. KANTIKAR) MEMBER

Naresh/reserved



(From the order dated 29.07.2013 in First Appeal No. 234/2009 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh)

Surya Agro Industries Barnala Road, Bhikhi Tehsil and Distt. Mansa


Versus

Oriental Bank of Commerce Through its Branch Manager Bhikhi, Tehsil and District Mansa

…Respondent/Opp. Party (OP)

BEFORE



For the Petitioner : Mr. A. Tewari, Advocate

PRONOUNCED ON 9 th December, 2013

O R D E R


This revision petition has been filed by the petitioner against the order dated 29.07.2013

passed by Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the

State Commission’) in Appeal No. 234 of 2009 – Oriental Bank of Commerce Vs. M/s. Surya

Agro Industries by which, while allowing appeal, order of District Forum allowing complaint

was partly modified.

2. Brief facts of the case are that complainant/petitioner deposited cheque No. 820757 dated 15.1.2007 worth Rs.1,50,000/- with OP/respondent for collection on 3.7.2007. Cheque was valid upto 14.7.2007. OP informed complainant on 31.7.2007 about dishonour of the cheque. On an enquiry, the complainant came to know that the cheque was sent for collection of the amount through registered post on 18.7.2007 and complainant’s account was also debited by a sum of Rs.545/- on account of dishonour of cheque. Complainant suffered loss of Rs.1,50,000/- due to late presentation of cheque for collection. Alleging deficiency on the part of OP, complainant filed complaint before District Forum. OP resisted complaint and submitted that complainant himself was negligent in retaining the cheque for a long period and presenting the same at last moment. It was further submitted that cheque in question could not have been encashed as there was no sufficient balance in the account of M/s. Shammi Agro Industries who issued cheque and prayed for dismissal of complaint. Learned District Forum after hearing both the parties allowed complaint and directed OP to pay Rs.1,50,000/- to the complainant with interest @ 9% p.a. and further awarded Rs.1,000/- as cost. Appeal filed by the OP was partly allowed by learned State

Commission vide impugned order and directed OP to pay Rs.50,000/- as compensation in lumpsum and Rs.10,000/-as litigation expenses against which this revision petition has been filed by the petitioner for enhancement of compensation.

3. Heard learned Counsel for the petitioner and perused record.

4. Learned Counsel for the petitioner submitted that leaned District Forum rightly allowed compensation, but learned State Commission has committed error in modifying order of District Forum and reducing amount of compensation; hence, revision petition be admitted.

5. Learned Counsel for the petitioner admitted that certainly petitioner is not entitled to grant of compensation to the tune of cheque amount, but certainly he was entitled to get higher compensation than awarded by State Commission. We do not find any force in this submission. Perusal of record clearly reveals that earlier cheques issued by M/s. Shammi Agro Industries in favour of the complainant were also dishonoured on account of insufficient balance and in such circumstances; the disputed cheque was also to be dishonoured on account of insufficiency of funds. In such circumstances, petitioner has not suffered too much loss. In the light of judgment of this Commission in 2007 (1) ISJ (Banking) – 432 (NC) – State Bank of Patiala Vs. Vishwas Ahula, bank cannot be made to pay the entire amount of cheque if it is legally open to the complainant to initiate civil/criminal action based on the cheque against drawer and bank is liable only to pay reasonable compensation to the complainant. In such circumstances, reducing compensation from Rs.1,50,000/- to Rs.50,000/- appears to be reasonable and there is no reason for enhancement of compensation.

6. We do not find any illegality, irregularity or jurisdictional error in the impugned order and revision petition is liable to be dismissed.

7. Consequently, the revision petition filed by the petitioner is dismissed at admission stage with no order as to cost.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k



(From the order dated 23.5.2012 in Appeal No. 497/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

Smt. Kusum Aggarwal W/o Shri Subhash Aggarwal, R/o House No. 38/2, Ward No. 4, Mohalla Pathanwala, Hisar (Haryana)


Versus

ICICI Bank Ltd. Through its Branch Manager Kamla Tower, Near Minerva Hotel, Hisar

…Respondent/Opp. Party


(From the order dated 15.10.2012 in Appeal No. 723/2012 of the Haryana State Consumer Disputes Redressal Commission, Panchkula)

ICICI Bank Ltd. A Banking Company incorporated and Registered under the Companies Act 1956 having its Regd. Office at: Kamla Tower, Near Minerva Hotel, Hisar, Haryana Also at: Having its Branch Office at: E-Block, 2nd Floor, Videocon Tower, Jhandewalan Extension, New Delhi – 110055 Through its Authorized Representative Mr. Anupam Singh


Versus

Smt. Kusum Aggarwal House No. 38/2, Ward No. 4, Mohalla Pathanwala, Hisar (Haryana) …Respondent/Complainant

BEFORE



For Kusum Aggarwal : Mr. Amish Aggarwala, Advocate

For ICICI Bank Ltd. : Mr. Punit K. Bhalla, Advocate, Ms. Chetna Bhalla, Advocate


O R D E R


These revision petitions arise out of the orders passed by the learned District Forum in

Complaint No. 183/2009 dated 14.3.2012 - Smt. Kusum Aggarwal Vs. ICICI Bank Ltd.; hence,

are decided by common order.

2. Revision Petition No. 3332 of 2012 has been filed by the petitioner against the order dated 23.5.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 497 of 2012 – Smt. Kusum Aggarwal Vs. ICICI Bank Ltd. by which, appeal filed by the complainant for enhancement of compensation was dismissed in limine.

3. Revision Petition No. 444 of 2013 has been filed by the petitioner against the order dated 15.10.2012 passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 723 of 2012 – ICICI Bank Ltd. Vs. Smt. Kusum Aggarwal by which, appeal was dismissed, as cross-appeal had already been disposed.

4. Brief facts of the case are that complainant purchased Truck No. HR-39A/3207 on 19.5.2004 after getting it financed from OP/ICICI Bank. Repayment was to be made in monthly instalments of Rs.22,000/-. Complainant paid 8 instalments. Due to some dispute with respect to the financed amount, OP wanted to take custody of the truck for which the complainant filed civil suit in which the OP was restrained from taking the custody of the truck. Inspite of that, OP took custody of truck on 21.9.2005. Criminal case was registered against the officials of the opposite party and complainant obtained truck on Superdargi on 18.11.2006. Again, OP snatched the truck from the driver of the complainant on 29.11.2006 and truck remained in illegal custody of OP upto 27.2.2009 and complainant was deprived of earning of Rs.40,000/- per month. On directions of the High Court, surveyor was appointed who inspected the vehicle on 6.9.2008 and assessed loss of Rs.6,45,150/-. Complainant alleging deficiency on the part of OP, filed complaint before District Forum. OP contested the complaint and submitted that vehicle was taken into possession of OP, as complainant was defaulter in payment of instalments of loan and prayed for dismissal of complaint. Learned District Forum after hearing both the parties, allowed complaint and directed OP to pay Rs.3,70,720/- on account of damages and further allowed Rs.50,000/- as cost of litigation and interest.

5. Complainant filed Appeal No.497 of 2012 against the order of District Forum, which was dismissed in limine by learned State Commission vide impugned order dated 23.5.2012 against which, R.P. No. 3332 of 2012 has been filed. After dismissal of aforesaid appeal by State Commission, OP filed Appeal No.723 of 2012 on 7.6.2012 against the order of District Forum which was dismissed by learned State Commission vide impugned order on 15.10.2012 on the ground that in Cross Appeal No. 497 of 2012 filed by the complainant, order of District Forum has already been upheld against which, OP has filed R.P. No. 444 of 2013.


7. Learned Counsel for the ICICI bank submitted that learned State Commission ought to have disposed appeal on merits and appeal could not have been dismissed on the ground of upholding order of District Forum in cross appeal that too without hearing OP; hence, revision petition be allowed and impugned order be set aside and matter be remanded back for disposal of merits. Learned Counsel for the complainant submitted that if R.P. No. 444 of 2013 is allowed then in the interest of justice order dated 23.5.2012 passed by learned State Commission may also be set aside and case be remanded back to the learned State Commission.

8. Perusal of order dated 15.10.2012 passed by learned State Commission reveals that appeal has not been decided on merits but has been dismissed as order of District Forum had been upheld in Cross Appeal No. 497 of 2012. Apparently, appeal of the OP could not have been dismissed only on the ground that in the cross appeal, for enhancement of compensation filed by the complainant, order has been upheld. In the cross appeal, complainant prayed for

enhancement of compensation and in that appeal, illegality of order of District Forum was neither ascertained nor could have been decided because complainant filed appeal only for enhancement of compensation. In such circumstances, merely because order of District Forum had been upheld in cross appeal, appeal of the OP could not have been dismissed and it was obligatory on the part of State Commission to decide the appeal on merits. As appeal has not been decided on merits, revision petition is to be allowed and impugned order dated 15.10.2012 is to be set aside and matter is to be remanded back to learned State Commission for disposal on merits.

9. R.P. No. 3332 of 2012 filed by the complainant against the order dated 23.5.2012 passed by learned State Commission for enhancement of compensation can be decided independently by this Commission, but as order of District Forum itself will be under challenge before the State Commission. It would be appropriate to set aside the impugned order dated 23.5.2012 and remand the matter back to the learned State Commission to decide both the appeals simultaneously by a common order. Learned Counsel for the parties have no objection in setting aside the order and remanding the matter back to the learned State Commission.

10. Consequently, Revision Petition No. 3332 of 2012 filed by the petitioner is allowed and impugned order dated 23.5.2012 passed by learned State Commission in Appeal No. 497 of 2012 – Smt. Kusum Aggarwal Vs. ICICI Bank Ltd. is set aside. Revision Petition No. 444 of 2013 filed by OP is allowed and impugned order dated 15.10.2012 passed by learned State Commission in Appeal No. 723 of 2012 – ICICI Bank Ltd. Vs. Smt. Kusum Aggarwal is set aside. Both the appeals are remanded back to learned State Commission to decide both the appeals simultaneously by a common order after giving opportunity of being heard to both the parties. There shall be no order as to cost.

11. Parties are directed to appear before the learned State Commission on 15.1.2014.

………………Sd/……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k


REVISION PETITION NO. 4589 to 4595 OF 2013

(From the order dated 29.07.2013 in First Appeal No. 2523/2010 of the State Consumer Disputes Redressal Commission, M.P., Bhopal)

With IA/7554/2013 IA/7555/2013 IA/7552/2013

(STAY, CONDONATION OF DELAY & FILING TRUE/CERTIFIIED COPIES OF DOCUMENTS)

Canara Bank Established Under the Banking Companies (Acquisition and Transfer Undertakings) Act, 1970 Having its head office at 112, Jaichamaranjendra Road, Bangalore And amongst others a Branch Office at Saugor (M.P.)

… Petitioner

Versus

1. Seth Prakash Chandra Jain S/o Shri Hukum Chandra Jain R/o Chameli Chowk, Bada Bazar, District Saugor (M.P.)

2. Agriculture Insurance Company of India Ltd. M.P. Regional Office- Quality Globus, 1st

Floor, NH-12, Near Maida Mill, Bhopal

And others from C.R. 4590 to 4595 of 2013

… Respondents

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner : Mr. Baldev Malik & Mr. Arjun Malik, Advocate

Pronounced on : 11 th December, 2013

ORDER

JUSTICE J. M. MALIK, PRESIDING MEMBER

1. The Canara Bank has filed seven Revision Petitions detailed above, against the orders

rendered by both the Fora against Canara Bank, which was arrayed as OP-2 in the original

complaints filed by the farmers.

2. All the matters are identical. Consequently, we will decide these matters by a common order.

We would also, like the State Commission, take the facts of these cases from the file Canara Bank

Versus Seth Prakash Chandra Jain & Ors. In Revision Petition No. 4589 of 2013.

3. The facts germane to this case are these. The complainant is the owner of land in Village

Bhapel, Patwari Halka No. 74, District Sagar, consisting of Khasra Numbers as detailed in the order

of the State Commission. The entire land measures about 14.20 Hectares. The complainants took

loan of Rs. 3,00,000/- from the petitioner Bank under the Kisan Credit Card Scheme. As per the

terms of the loan, the crop was to be insured with Agriculture Insurance Co. of India Ltd., who was

arrayed as OP-1 in the original complaint. The Canara Bank debited the amount from the premium

of the complainant’s account for the insurance of the Kharif crop of Soyabean for the year 2007-

2008. Unfortunately, the Soyabean crop failed due to drought. The complainant made a claim for

the loss of crop but the Insurance Company refused to do the needful.

4. The defence set up by the Insurance Company Opposite Party No.1 is that the premium and

declaration for the Kharif crop of 2007 with regard to Patwari Halka Nos. 40, 50 and 82 of District

Sagar was received, which have already got the compensation. The principal defence set up by the

Insurance Company was that no premium was sent to them for Patwari Halka No. 74, where the land

of the complainant is situated.

5. The defence set up by the Canara Bank was that for the year 2007-2008, a premium of Rs.

10,500/- was sent to the Insurance Company as premium for the Kharif crop. It also alleged that the

complainant had applied for the loan at the time of cutting of the crop and only after the Madhya

Pradesh Government had declared the village as drought affected. 6. Complainant was filed

before the District Forum. It came to the conclusion that Bank has to compensate the complainant in

conformity with the compensation given to the other farmers of the area alongwith Rs. 1500/- as

compensation and Rs. 500/- as costs.

7. Aggrieved by that order, First Appeal was filed before the State Commission, which too,

dismissed the appeal.

8. The counsel for the petitioner strenuously argued that the entire case swirls round the

declaration which was ignored by the Fora below. The counsel for the petitioner has invited our

attention towards the following letter:-

“Date: 01.12.07

Copy

Zonal Manager

Agriculture Insurance Company of India Limited,

Quality Gayobatya, First Floor,

NH-12

Near Maida Mill, Phop-462011

Sir,

Subject: National Agricultural Insurance Schme- Regarding the insurance for loanee for the

Kharif Crop-2007.

Ref: Your Letter No. NAIC/……../Review/2454/2007 dated

02.11.2007.

It is submitted on the subject cited above that we had sent a demand letter under National

Agriculture Insurance Scheme for loanee of Kharif Crop 2007, which was sent back by you

for want of montyhly particulars by the Halqa Patwari. After removing the discrepancies, the

same is being sent to you.

Place: Sagar Yours faithfully

Dated: 11.02.07 Sd/-

Branch Manager

Sagar-470002(M.P.)

Enclosure”

The enclosure contains a list which also includes Patwari Halka Nos 57,

74,80,40,48,5,46,48,44,148,42,41 and No. 4, Distribution month of entry has been shown as

September and details of crop is shown as Soyabean. All these copies are not authenticated. On the

Head of the document, the date is written as 1st December 2007. At the end it is shown as

11.02.2007. Learned counsel for the petitioner could not explain this discrepancy. It is nowhere

stated that the premium was paid in respect of these Halkas.

9. Above all, it is not mentioned that how much premium was handed over/paid to the Insurance

Company. These documents carry exiguous value. There is not even an iota of evidence that

premium was handed over to the Insurance Company.

10. The respondent insurance company has admitted that the Bank had sent the premium and

declaration for the Kharif Crop of 2007 with regard to the Patwari Halka No, 40, 50 and 82 of

District Sagar. The Insurance Company has paid the compensation for the loss of crop in those

Halka Nos. However, no premium was sent to the Insurance Company for Patwari Halka No. 74 and

other Halka Nos. of the respective complainants. Insurance Company denied that they are not liable

to pay the said amount. The case of the insurance company is that they have received premium of Rs.

10,500/- for Patwari Halka No. 40, 50 and 82 only. The submission of the Bank hinges upon their

oral words. No documentary evidence saw the light of the day. If you have paid the premium to the

Insurance Company, there must be some record which was kept under the hat for the obvious

reasons. It is rudimentary principle of jurisprudence that the documentary evidence will always get

preponderance over the oral evidence because it is well known axiom of law that “men may tell lies

but the document cannot”.

11. It is thus clear that the Bank is responsible for the same. It stands proved that the mistake

was committed by the Bank. Consequently, the Bank is liable to compensate the complainants as per

terms and conditions of the policy which reads as follows:-

“SPECIAL CONDITIONS FOR PIs/NODAL BANKS/LOAN DISBURSING POINTS

5. In case a farmer is deprived of any benefit under the Scheme due to

errors/omissions/commissions of the Nodal Bank /Branch /PACS. The concerned

institution only shall make good all such loses”

12. The contention raised by the petitioner that the loan was taken after the drought was

declared by the Government is of no consequence. There is no documentary evidence to show

that the area was declared as “Drought Affected” by the Government. Secondly, if the area had

already been declared Drought Affected by the time, the Bank should not have given the loan at

all, as is clear from Clause II of the operational modalities.

13. This is unfortunate that instead of remedying the wrong by complying with the decision

of the Consumer Fora, the Bank is trying to brazen out its illegal act by filing these revision

petitions. The Bank is not sensitive about the difficulty faced by the farmers from time to time.

All the Revision Petitions have no merits and the same are hereby dismissed.

..…………………..………J

(J.M. MALIK)

PRESIDING MEMBER

……………….……………

(DR.S.M. KANTIKAR)

MEMBER

Jr/9 to 15



(From order dated 18.10.2012 in First Appeal No. 511 of 2011 of the State Consumer Disputes Redressal Commission, West Bengal, Kolkata)

M/s HDFC Bank, through It’s Legal Manager Sh. Anil Kumar Verma, C-31, 1st Floor,

Community Centre Naraina Industrial Area Phase-1, Naraina, New Delhi-28… Petitioner

Versus1. Sh. Sushit Kumar Biswas2. Soumomay Biswas3. Mrs. Sonali Roy All L.R.’s of Deceased Complainant & R/o 162/12, Lake Garden’s,

Kolkata-700045… Respondents

BEFORE:

HON’BLE DR. S. M. KANTIKAR, PRESIDING MEMBER

For the Petitioner : Mr. Joydip Bhattacharya, Advocate For Respondents : Mr. M.R. Sarbadhikari, Advocate

Pronounced on 11 th December, 2013

ORDER


1. Smt. Lily Biswas (since deceased), wife of Shri Sushit Kumar Biswas, the Complainant

was an account holder of M/s HDFC Bank, using credit card facilities. She made regular

payments in respect of the aforesaid accounts and there was overdue payment in respect of

credit card account, for which OPs issued a settlement offer dated 10.09.2007. Accordingly,

the Complainant made payment along with Rs.300/- as interest for delayed payment. In

spite of such repayment in full, as per terms of the settlement, the OP/Bank issued a

Demand Notice, claiming Rs.44,430.77/- as overdue and an amount of Rs.4,157.12/- was

kept in ‘on hold, on fund’, in the Complainant’s account. At the same time, the OP/Bank

debited Rs.4,157.12/-, on regular basis from the dividend warrant income deposited in the

Complainant’s account in connection with D-mat account and in spite of repeated requests,

the OP/Bank did not allow the Complainant to operate her account and did not regularize

the account, even after complainant fulfilled the terms of the settlement offer. Hence, the

complaint was filed before District Forum.

2. The District Forum held the Complainant responsible for not repaying the settlement offer

within the proper time, as stipulated in the said offer and dismissed the complaint.

3. Aggrieved by the order of District Forum, the LRs of the Complainant preferred First

Appeal (511/2011) before the State Commission.

4. The State Commission allowed the appeal and directed the OP bank to allow the

complainant to operate her account and also directed OP to pay compensation of

Rs.20,000/- plus Rs.5,000/- as cost of litigation to the complainant.

5. Aggrieved against the order of State Commission, this revision has been filed. Heard

counsel for both parties and perused the Settlement offer letter issued by OP. The settlement

offer reads as follows:

“Sub: Your HDFC Card Account Number: 4346-7710-0873-2587

We have received the following payment/s towards full and final settlement of your card

account quoted above. Please note that failure to honour commitments as detailed in the

payment schedule below will result in immediate cancellation of this offer.

Mode of Payment Amount Cheque Details Date of Payment

Cash 3,600/-

Cheque 5,600/- 237755 19/11/2006

Cheque 5,600/- 237756 19/12/2006

Cheque 5,600/- 237757 19/01/2007

Cheque 5,600/- 237758 19/02/2007________

26,000/-________ ”

But, the complainant paid the last installment on 10/9/2007 i.e. after 7 months of stipulated

date. It is clear that the Complainant violated the terms of settlement offer and not paid

amount according to the offer, within a stipulated period, therefore, as per banking norms and

guidelines, the Complainant was bound to pay Rs.42,430.77/- to the OP, but defaulted in

payment of the last installment of Rs.5,600/- which was paid by Complainant after expiry of

the statutory period.

6. The Counsel for Complainant, stressed upon the remittance of payment made by her for the

last installment, along with Rs.300/-, as an interest, but, he could not produce any receipt or

endorsement issued by the OP to prove his contention. The Counsel for Complainant relied

upon a Judgment Eastern Paper Mill Machinery Pvt Ltd Vs. State Bank of India

2004(2)CLJ (Cal) 431, but the facts of the judgment are different to the case in hand. He

also submitted that the complainant calculated an amount of Rs.300/- on her own, towards

interest. There was no such intimation issued from OP bank. The Customer copy of the

Receipt No 4948904 (at Annexure 3) for Rs.300/-, did not mention any thing about the

interest paid to OP. Therefore, such submissions are baseless and devoid of any merit.

7. In this case, the Complainant herself used the credit card and she was liable to repay the

dues, as per the terms and conditions of the MITC booklet and card member’s agreement.

Hence, the OP Bank, was well within the statutory right to cancel the settlement offer and

debit the Complainant’s account to the tune of Rs.42,430.77/-. The Complainant herself

was responsible in this regard. Therefore, there is no deficiency in service by OP bank. It

will be contrary to law, if such like complaint is allowed.

8. Accordingly, the revision petition is allowed and complaint is dismissed. No order as to costs.

……………….……………

(Dr. S.M. KANTIKAR) MEMBER



(From the order dated 30.08.2013 in Appeal No. 228/13 of the Odisha State Consumer Disputes Redressal Commission, Cuttack)

Kirtti Chandra Kanungo of Village: Athanga, P.O. Bilasuni Via Niali District Cuttack At present residing at Village Dahalia Bag, Mouza: Bhanpur, Post Office Bhanpur C/o Sh. Umakanta Sahani (behind Resonce Residential College), Cuttack – 753011, Odisha

…Petitioner/Complainant Versus1. Branch Manager, Sahara India Pariwar, Sahara City Homes, Marketing and Sales Corporation, Bajrakabati (B.K.) Road, Professor Pada Cuttack2. Sahara City Homes, Marketing and Sales Corporation and Sahara India Pariwar, Through Chairman/Chief Executive Officer, Sahara City Homes, Sahara India Bhawan Kapurthala Complex, Lucknow – 226024 (U.P.) 3. Branch Manager, Sahara City Homes, Marketing and Sales Corporation, Mehrouli Branch, House No. 1088/C-1, Ward No. 1, Mehrouli, Delhi – 110030.

…Respondent/ Opp. Parties (OP)

BEFORE





O R D E R



passed by Odisha State Consumer Disputes Redressal Commission, Cuttack (in short, ‘the State

Commission’) in Appeal No. 228 of 2013 – Kirti Chandra Kanungo Vs. Sahara City Homes

Marketing & Sales Corporation & Ors. by which, while dismissing appeal, order of District

Forum was upheld.

2. Brief facts of the case are that complainant/petitioner filed Complaint No. 296 of 2009 before District Forum and learned District Forum dismissed complaint. On appeal, learned State Commission vide order dated 19.4.2010, allowed appeal and directed OP to refund deposited money of Rs.90,800/- with 6% p.a. interest. Complainant filed revision petition and this Commission in R.P. 2091 of 2010 decided on 12.7.2011 directed OP to refund aforesaid amount with 18% p.a. interest. As OP-respondent-judgment debtor failed to comply the order of this Commission, complainant filed execution petition demanding Rs.3,00,193/- as on 31.3.2012. OP-respondent in reply submitted that principal amount of Rs.90,800/- were deposited on 15.1.2005 and interest @ 18% p.a. till 11.6.2012 was calculated which comes to Rs.1,21,055/-

and after deducting TDS Rs.12,252/-, remaining balance of Rs.1,99,633/- was paid to the complainant through demand draft dated 13.6.2012 and prayed for recall of non-bailable warrants issued by District Forum. Learned District forum after hearing both the parties, dismissed the execution application and recalled non-bailable warrants. Appeal filed by the petitioner was dismissed by learned State Commission in limine vide impugned order against which, this revision petition has been filed.

3. Heard petitioner in person at admission stage and perused record.

4. Petitioner submitted that respondent was to make payment @ 18% p.a. compound interest, whereas only simple interest has been paid; hence, revision petition be admitted. Order of this Commission runs as under:

“We are, therefore, of the opinion that the order passed by the fora below should be modified to the extent that the opposite party is directed to refund the deposited amount of Rs.90,800/- along with interest @ 18% p.a. w.e.f. the date of deposit till its payment. The payment shall be made to the complainant-petitioner within a period of four weeks by means of a demand draft”.

5. Perusal of order clearly reveals that only 18% p.a. simple interest has been allowed by this Commission and as there was no direction for compound interest, petitioner was not entitled to grant of compound interest. Learned State Commission rightly dismissed appeal and we do not find any infirmity in the order of District Forum dismissing execution.

6. Petitioner has submitted that as respondent is charging 18% p.a. compounding interest; hence, petitioner should also be allowed compounding interest. We do not find any substance in the submissions of the petitioner because this Commission has awarded 18% p.a. simple interest and District Forum had no authority to modify the order of this Commission and allow compound interest.

7. Consequently, revision petition filed by the petitioner is dismissed at admission stage with no order as to costs.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k



(From the order dated 22.05.2008 in Appeal No. 864/2001 of the Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram)

1. State Bank of Travancore By its General Manager State Bank of Travancore Head Office, Tiruvananthapuram Kerala2. The Regional Manager State Bank of Travancore Paramekkavu Devasawom Building Road East, Thrissur-1 Kerala3. Deputy General Manager State Bank of Travancore Zonal Office, Kozhikkode Kerala

4. Branch Manager State Bank of Travancore SSI Branch, Pattraickal Thrissur, Kerala …Petitioners/Opp. Parties (OP)

VersusThe Managing Director Kanjirappally Amusemen Park and Hotels Pvt. Ltd. Athirappally P.O. Pariyaram, Kanjirappally, Chalakkudy Trissur Distt. – 680072 Kerala.

…Respondent/Complainant

BEFORE



For the Petitioners : Mr. Buddy A. Ranganadhan,Proxy Counsel

For the Respondent : Mr. Shinoj K. Narayanan, Advocate


O R D E R


This revision petition has been filed by the petitioners against the order dated 22.05.2008

passed by Kerala State Consumer Disputes Redressal Commission, Thiruvananthapuram (in

short, ‘the State Commission’) in Appeal No. 864/2001 – State Bank of Trvancore & Ors. Vs.

The M.D., Kanjirappally Amusemen Park and Hotels Pvt. Ltd. by which, while dismissing

appeal, order of District Forum allowing complaint was upheld.

2. Brief facts of the case are that complainant/Respondent approached OP/petitioners for a term loan of Rs.3 crores for development and improvement in the amenities of the park conducted by him. OP agreed to sanction loan if the project is found viable consequent to a feasibility study of the project by the Technical Consultancy Cell of the bank. Rupees 1,20,250/- was appropriated from the account of the complainant for this purpose and a feasibility study

was conducted by OP wherein complainant had to spend a further sum of Rs.6,228/- as incidental expenses. Though, technical feasibility study was in favour of the complainant, OP did not sanction loan. Alleging deficiency on the part of OP, complainant filed complaint before District Forum for refund of Rs.1,20,250/- and Rs.6,228/- with interest. OPs contested complaint and submitted that complainant had agreed for payment of Rs.1,20,250/- for technical feasibility study wherein complainant agreed that amount would not be claimed; even if, no loan was sanctioned to the complainant. It was further submitted that sanctioning of the loan and disbursal of the same was entirely within the jurisdiction of the OP and mere failure to sanction loan would not constitute deficiency and prayed for dismissal of complaint. Learned District forum after hearing both the parties allowed complaint and directed OP to refund Rs.1,20,250/- along with 18% p.a. interest and further awarded Rs.1,000/- as cost. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.


4. Learned Counsel for the petitioners submitted that as per agreed terms, aforesaid amount was not refundable; even then, learned District Forum committed error in refunding aforesaid amount and learned State Commission further committed error in dismissing appeal; hence, revision petition be allowed and impugned order be set aside and complaint be dismissed. On the other hand, learned Counsel for the respondent submitted that as petitioner without assigning any reason committed deficiency in not sanctioning loan; hence, order passed by learned State Commission is in accordance with law and revision petition be dismissed.

5. Perusal of complaint reveals that complaint has not been filed on account of deficiency in sanctioning loan but complaint has been filed for direction to refund Rs.1,20,250/- along with interest which amount has been charged for technical and feasibility study of the project. In such circumstances, argument of learned Counsel for the respondent is devoid of force that petitioner committed deficiency in not sanctioning loan inspite of favourable technical feasibility report. No such prayer was made in the complaint for grant of compensation for non-sanctioning of loan.

6. As far as refund of Rs.1,20,250/- is concerned, respondent vide letter dated 9.2.1999 agreed that aforesaid amount towards fee will not be refundable. Letter dated 9.2.1999 runs as under:

“Sub: Our request for a term loan of Rupees 300

Lakhs.

We hereby agree to pay the required fee and other out of pocket expenses to be incurred for conducting a study by the bank’s Technical Consultancy Cell in connection with our project of setting up a Dry Amusement cum Water Theme Park at Kanjirappilly, Near Chalakudy. We also agree to the bank’s conditions that:-

A. Though a study is conducted by the Technical Consultancy Cell, there is no Commitment on the part of the bank to sanction the loan.

B. Where the loan is not sanctioned, the amount recovered towards the fee and out of pocket expenses will not be refunded”.

Perusal of letter clearly reveals that amount charged for conducting feasibility study by the Technical Consultancy Cell of the bank was non refundable inspite of non-sanctioning of loan. Inspite of clear undertaking of the respondent, learned District Forum committed error in allowing refund of aforesaid amount with interest and learned State Commission further committed error in dismissing appeal and revision petition is to be allowed.

7. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 22.05.2008 passed by the State Commission in Appeal No. 864/2001 – State Bank of Trvancore & Ors. Vs. The M.D., Kanjirappally Amusemen Park and Hotels Pvt. Ltd. and order of District forum dated 14.6.2000 is set aside and complaint stands dismissed with no order as to costs.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k



(From the order dated 02.03.2012 in Appeal No. 526/2010 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad)

1. The Manager Andhra Bank Zaheerabad Branch District Medak Andhra Pradesh2. The Deputy General Manager Andhra Bank Sangareddy (Andhra Pradesh)

…Petitioner/Opp. Parties (OP) Versus1. M. Jaya Raj S/o Kaleb R/o H. No. 2-36, Alupur Village Zaheerabad Mandal, Medak District (A.P.)2. The General Manager District Industries Centre Sangareddy, Medak District (Andhra Pradesh) 3. The Deputy Director A.P. Khadi Board EVI Board, Sangareddy District Medak (A.P.)

…Respondent/Complainant

BEFORE



For the Petitioner : Mr. Senjul, Proxy Counsel

For the Respondent : NEMO


O R D E R



passed by A.P. State Consumer Disputes Redressal Commission, Hyderabad (in short, ‘the State

Commission’) in Appeal No. 526/2010 – The Manager, Andhra Bank & Anr. Vs. M. Jaya Raj &

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 experience in manufacture of washing powder, liquid soap, etc. OP no. 3/respondent no. 2 issued notification for unemployed candidates for self-employment under the scheme P.M.E.G.P. Complainant applied and he was selected by OP nos.3&4/respondent nos. 2&3 and also issued letter to OP no. 1/petitioner for sanction of bank loan. Loan was not sanctioned to the complainant and cost of raw material increased. Alleging deficiency on the part of OPs, complainant filed complaint. OP nos. 1 & 2 resisted complaint and submitted that they are not aware about experience of complainant. OP enquired about feasibility of marketing of detergent manufactured by the complainant and found that it was not viable. Complainant was not having any space for putting up manufacturing unit of washing powder and prayed for dismissal of complaint. President of

learned District Forum dismissed complaint, whereas other two members of the District Forum allowed complaint and directed OP no. 1 to release the loan amount of Rs.3,80,000/- and further awarded Rs.1,000/- towards cost. Appeal filed by the petitioner was dismissed by learned State Commission vide impugned order against which, this revision petition has been filed.

3. None appeared for the respondents even after service.

4. Heard learned proxy Counsel for the petitioner and perused record.

5. Learned Counsel for the petitioner submitted that learned State Commission mentioned in the judgment that facts of the case in hand are similar to decision rendered by Hon’ble Apex Court in (2010) 7 SCC 489 – Managing Director, Maharashtra State Financial Corporation & Ors. Vs. Sanajay Shankarsa Mamarde , but dismissed appeal of the petitioner which is against the law; hence, revision petition be allowed and impugned order be set aside.

6. Perusal of record clearly reveals that complainant applied for bank loan which was not sanctioned by OP/petitioner and on this sole count, alleging deficiency on the part of OP, complaint was filed which was allowed by majority of the members of District Forum. Learned State Commission while deciding appeal placed reliance on the judgment of Managing Director, Maharashtra State Financial Corporation & Ors . (Supra), but in the second sentence dismissed appeal without any reason which is apparently a contradictory finding because if State Commission found that facts of the appeal were similar to the facts of the case decided by Hon’ble Apex Court, State Commission should have allowed appeal and dismissed complaint. Findings of the State Commission are as under:

“The Corporation was constrained not to release the balance instalments and recall the loan on account of stated defaults on the part of the complainant himself. Non release of loan amount was not because of any deficiency on the part of the Corporation but due to complainant's conduct and therefore, the failure of the Corporation to render `service' could not be held to give rise to claim for recovery of any amount under the Act.

We also find substance in the contention of learned counsel for the Corporation that unless the action of a financial institution is found to be mala fide, even a wrong decision taken by it is not open to challenge, as the wisdom of a particular decision is normally to be left to the body authorized to decide. In U.P. Financial Corporation & Ors. Vs. Naini Oxygen & Acetylene Gas Ltd. & Anr. (supra) this Court had observed that a Corporation being an independent autonomous statutory body having its own constitution and rules to abide 15 by, and functions and obligations to discharge, in the discharge of its functions, it is free to act according to its own right. The views it forms and the decisions it takes would be on the basis of the information in its possession and the advice it receives and according to its own perspective and calculation. In such a situation, more so in commercial matters, the court should not risk their judgments for the judgments of the bodies to which that task is assigned. It was held that: (SCC p. 761, para 21) “Unless its action is mala fide, even a wrong decision taken by it is not open to challenge. It is not for the courts or a third party to substitute its decision, however more prudent, commercial or business like it may be, for the decision of the Corporation. Hence, whatever the wisdom (or the lack of it) of the conduct of the Corporation, the same cannot be assailed for making the Corporation.

In the case on hand the first respondent bank has made bonafide enquiry and came to the conclusion that the detergent manufacture unit has no viability in the competitive market and the loan amount is sanctioned is difficult to be recovered. The principle laid in the aforementioned decisions is applicable to the facts of the p resent case. We do not see any merits in the appeal and the appeal is liable to be dismissed”.

7. In the light of judgment of Hon’ble Apex Court, we find that it was not obligatory on the part of the petitioner to sanction loan. Merely because loan has not been sanctioned, no

deficiency can be attributed on the part of petitioner unless action is shown as malafide. Learned Counsel for the petitioner submitted that on an inquiry manufacturing unit of the complainant was not found viable; hence, loan was not sanctioned. We do not find any deficiency on the part of petitioner and learned State Commission has committed error in dismissing appeal and learned District Forum committed error in allowing complaint by majority of the members and the President of the District Forum rightly dismissed complaint.

8. Consequently, revision petition filed by the petitioner is allowed and impugned order dated 02.03.2012 passed by the State Commission in Appeal No. 526/2010 – The Manager, Andhra Bank & Anr. Vs. M. Jaya Raj & Ors. is set aside and majority judgment of District Forum dated 1.4.2010 is also set aside and complaint stands dismissed with no order as to costs.

………………Sd/-……………


PRESIDING MEMBER

..……………Sd/-………………

( DR. B.C. GUPTA )

MEMBER

k

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