NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

CONSUMER COMPLAINT NO.123 OF 2012

 

Sapient Corporation Employees Provident Fund Trust, DLF Cyber Greens, DLF Phase-

III, Sector -25 A, Gurgaon 122 001 (Through Shri Amit Khera, Trustee and Director

Legal)                             

….Complainant

  Versus

1. HDFC Bank Ltd., a Scheduled Commercial Bank carrying on banking business in the private sector and having its Registered Office at HDFC Bank House, Senapati Bapt Marg, Lower Parel, Mumbai- 400013 Maharashtra (Through its Managing Director Sh. Aditya Puri)

2. M/s. HDFC Bank Ltd. K.G. Marg Branch situated at G-3/4, Surya Kiran Building, 19 K.G. Marg, New Delhi-110001 (Through its Manager Ms. Varna Bhattacharjee)

3. Mr. Anand Somiach, Manager (FIG Delhi), HDFC Bank, 3rd Floor B-6/3, DDA Commercial Complex Safdarjung Enclave, Opp. Deer Park New Delhi -110029

....Opposite Parties

  

BEFOREHON’BLE MR. JUSTICE  J. M. MALIK, PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER

 For the Complainant         :   Mr. Pradeep K. Dubey, Advocate

For the Opposite parties   :   Mr. Rishab Raj Jain, Advocate

 

PRONOUNCED ON: 01.11.2012

ORDER 

PER MR.VINAY KUMAR, MEMBER

Consumer Complaint No.123 of 2012 is filed by M/s. Sapient Corporation Employees

Provident Fund Trust (hereinafter referred to as the Complainant), against the HDFC

bank Ltd.  The Complainant has also impleaded two Managers of the Bank as OPs 2

and 3.  According to the Complainant, the short point for consideration is whether the

OP-Bank has committed any deficiency of service in terms of the provisions of the

Consumer Protection Act, 1986, by debiting the account of the Complainant.   It is

alleged that the demand of recovery was against the Sapient Corporation not against

the Complainant i.e. Sapient Corporation Employees Provident Fund Trust, which is a

separate legal entity.

2.      Brief facts of the case, as per the Complaint petition, are—

"that on 21.08.2010 Opposite Party No.1, through O.P. No.2,

informed the officials of the Company and followed it up by an email to

the Company, informing that they are in receipt of an order/notice dated

20.08.2010 from the Employee Provident Fund Organization (EPFO) for

the recovery of Rs.1,47,52,766/- (Rupees One Crore Forty Seven Lac

Fifty Two Thousand Seven Hundred Sixty Six only) against the Company

and for prohibiting from making any payments out of the amount lying in

the credit of M/s. Sapient Corporation Pvt. Ltd. (Company). It was further

informed that they had put on hold on the account of the complainant to

the tune of said amount and if the company wishes to make the account

operational, then it should bring the stay order by 12:00 noon of

23.08.2010.”

3.      Allegedly, the OPs were advised that no debit should be made to the account of

the trust since it was a different entity under the law from the Company. The officials of

the Company sent a reply e-mail to the OP-Bank in this behalf.  However, on 25.8.2010

the OPs informed the Company that they have already issued a demand draft on

23.8.2010 in compliance with the notice of the Employees Provident Fund Organization

dated 20.8.2010.

4.      It is alleged that the OPs have acted with wilful negligence in wrongly paying out

an amount of Rs.1,47,52,766/- (Rupees One Crore forty seven lakh fifty two thousand

seven hundred sixty six only), without any authority or mandate, from the account of the

Complainant and are therefore guilty of deficiency in service and hence are liable to

refund the said amount along with interest and damages together with legal expenses

and costs of this complaint. Accordingly, the Complaint Petition seeks the following

reliefs:-

“a.     ORIGINAL AMOUNT Rs. 1,47,52,766 (Rupees

One Crore forty seven lakh fifty two thousand seven hundred sixty

six only).

b.      INTEREST @ 36% per annum from the date of debiting the

account of the complainant i.e. 23.08.2010 till the date of

realisation.

c.       DAMAGES on account of deficiency in service causing

harassment misery, hardships and agony etc. being

Rs.50,00,000/- (Rupees Fifty Lac Only).

d.      LEGAL Expenses incurred by the Complainant, computed at

Rs.1,10,000/- (Rupees One Lac ten thousand only.)”

5. We have perused the records and heard the counsels for the two parties. A perusal

of the records as submitted by the Complainant and the facts as stated in the Complaint

Petition shows that the Bank had received order no.HR/GGN/COMP-I/26147/5466

dated 20.08.2010 from the Assistant Provident Fund Commissioner, Gurgaon.  It clearly

mentioned the account no. as C/A- 00031110000846 which is the number of the

account held by the complainant Trust with the OP Bank directed the Bank to pay a sum

of Rs.14752766/- (Rupees one Crore forty seven lakhs fifty two thousand seven

hundred and sixty six) only to the credit of the regional Provident Fund Commissioner

through a demand draft.  The order also directed the Bank as follows:- 

“It may further be noted that no payments out of future

receipts in the account /accounts or any interest accuring or

becoming payable in the accounts or Fixed Deposit Receipts of

the defaulting establishments may be made in favour of anybody

till the balance payable towards PF damages stand fully liquidated

and this order of attachment stands withdrawn.

Evidence of the above payments or payments having been

made in compliance of this order may be produced before the

undersigned immediately.

It may be noted that in the event of non-compliance of the

requirements of this order the undersigned will have no other

alternative but to deem you personally to be the Employer in

default to the extent of Rs.14752766/- (Rupees one Crore forty

seven lakhs fifty two thousand seven hundred and sixty six only),

under the provisions of the clause (x) of the sub-section 3 of

Section 8F of the Act and further action to recover the said amount

as if the same is arrears due from you will be initiated in

accordance with the relevant provisions of the E.P.F. & M.P. Act,

1952.”

Copies of e-mails produced on record by the Complainant show—

a.   that the OP/bank had informed the complainant about the order of APFC,

Gurgaon on the very next day i.e. on 21/8/2010, stating categorically that it

would wait for stay or revocation of the order till 1200 hrs on 23/8/2010

and thereafter “would be debiting the a/c with the recovery amount and

remitting the funds to the authorities.”

 

b.   Admittedly, the notice for payment of the above amount was received by

the Sapient on 11.8.2010 in which 15 days time, from the date of receipt,

was given to make the payment. But, the reply sent to the Bank does not

show if any action to either pay or to obtain stay/revocation of the order

had been taken in the 10 days preceding the complainant’s reply of

21.10.2010. It only says “We are in a process of challenging the said order

by filing an appeal with EPFAT (Employees Provident Fund Appellate

Tribunal on 25.8.10 i.e. Wednesday (since Monday/Tuesday courts being

closed due to festivals.”(Page 34 of the Paperbook).

 

c.   The reply of 21.8.2010 from the Complainant to the OP/bank states

that “The RPFC letter of 20.8.10 does not specify any deadline for the

bank to make the payment.”  Therefore, the complainant had advised the

bank not to make any payment on 23.8.2010. This is factually not true.

The relevant part of the APFC order, reproduced earlier in this order,

would show that the bank, under the threat of legal action, had been

directed by the authority that “Evidence of above payment or payments having been made in compliance of this order may be produced before the undersigned immediately.”

6.      In para 10, the Complaint petition says that “ the Opposite Parties have acted with

wilful negligence in wrongly debiting an amount of Rs 1,47,52,766 (Rupees

one crore forty seven lac fifty two thousand seven hundred sixty six only), without any

authority or mandate, in account of the Complainant and are therefore guilty of

deficiency in service”.  But, neither the complaint petition nor the counsel for the

complainant have made any attempt to explain how does action in compliance with the

direction of a statutory authority become  wilful negligence  and deficiency in service. 

7.    We find that a copy of the Legal Notice issued by the complainant, before filing the

consumer complaint, has been annexed as Annexure C-14. In para 3 it says   “That the

account of my above client  was  debited by you inspite of clear instructions from my

client not to effect the debit specifically bringing to your notice that the said orders of

recovery caused by the EPFO are without any basis, without authority and hence

against law.”  Subsequently, in para 8 the Legal Notice says “That now, through this

notice my client wishes to inform you that in an appeal preferred by the Company

challenging the alleged recovery before the EPF Appellate Tribunal (EPFAT), the

appeal has been allowed against the RPFC, Gurgaon and needless to say this has

vindicated the stand of my client.”  From this it is clear that the complainant knew that

his remedy against the order of recovery, lay in challenging its legality before the

appellate authority. It did eventually file an appeal. The Appellate Authority allowed the

appeal and set aside the recovery order.

 

8.      The question that arises here is whether the fact of appeal being allowed by the

EPFAT in 2011 will render compliance in 2010 by the OP/bank with the order of the

EPFO, an act of deficiency in service. Section 2(1)(g) of the Consumer Protection Act,

1986 has defined “deficiency” to mean—

“any fault, imperfection,  shortcoming or inadequacy in the quality,

nature and manner of performance which is required to be

maintained by or under any law for the time being in force or has

been undertaken to be performed by a person in pursuance of a

contract or otherwise in relation to any service;”

It is not the case of the complainant that the act of the bank in paying the amount, in

compliance with the orders of a statutory authority and after giving the complainant due

notice of the same, amounts to a deficiency of service. The allegation in the complaint

petition is that the payment has been made by the OPs, despite request and advice of

the complainant not to make it. In support, the complainant has relied upon the decision

of this Commission in Saraswati Co-Op Bank Ltd Vs. Dean Leslie Roy 1 (2008) CPJ 163 (NC),  wherein it was held that unauthorised debit in complainant’s SB account,

without his consent, amounted to deficiency of service. Facts of the case cited are that

the Directorate of Enforcement had imposed a penalty of Rs 50,000 on the complainant.

But the OP/Bank had remitted an amount of Rs 2.5 lakhs, debiting it to the account of

the complainant. Allegedly, this was done on oral instructions of the complainant. The

National Commission held that in the absence of the name of the Bank officer who had

allegedly received the oral instruction and the date thereof, there was no reason to

disbelieve the complainant that no such instruction was given.  The facts of the case

before us are on an entirely different footing. The OP bank has paid the amount, in spite

of the advice of the complainant not to pay. Therefore, the question is not whether there

was any instruction from the complainant to pay. The question is whether the action of

the OP bank in not implementing the complainant’s direction to disobey specific, written

directions of a statutory authority, would amount to a deficiency of service, as defined

under the Act.

9.      In view of the detailed consideration of the facts and circumstances of the case

before us, we hold that the action taken by OP bank was proper, legal and after

reasonable notice to the complainant. It does not amount to a deficiency of service and

no cause of action would arise from it. We therefore reject the contention of the

complainant that the cause of action first arose when the bank informed the company

on 21.8.2010 about the communication received from the EPFO and arose again when

the OP debited the account of the complainant on 23.8.2010. The complaint petition is

accordingly held to be devoid of any merit.

 

10.    We also deem it necessary to consider whether this complaint would attract the

provision in Section 26 of the Consumer Protection Act, 1986. This provision requires

the consumer fora to dismiss a complaint if it is found to be frivolous or vexatious in

nature. In other words, we need to see whether the complaint lacks seriousness and is

filed without sufficient cause or without sufficient grounds. Significance of this provision

lies in the fact that the Consumer protection Act, 1986 is a social legislation to provide

economic justice and to protect the consumer from exploitation. For this reason, no

court fees are payable for filing a complaint, as required in civil suits.   Consumer

Protection Rules, 1987 prescribes a maximum fee of Rs 5000 for making a complaint,

involving total value above Rs one crore.  Therefore simultaneously, there is need to

guard against possibility of such absence of court fee being misused for pursuing false

and frivolous litigation in the consumer fora. In this context, the following facts acquire

special significance—

a.   The complaint is filed after the complainant had already won his appeal in

the EPFAT against the recovery of Rs 1,47,52,766 (Rupees

one crore forty seven lac fifty two thousand seven hundred sixty six only)

made as per order of the EPFO, Gurgaon.

b.   The complaint does not disclose whether consequent action, in pursuance

of the order of EPFAT, for obtaining refund of the excess/wrong recovery

has been initiated by the complainant Trust or by the company. If not,

why?

c.   If refund is already claimed or received from the EPFO as per the order of

EPFAT, the complaint makes no attempt to explain what is that other loss

which is sought to be recovered from the OP bank, as the appeal before

the EPFAT also included claim for interest.

 11.   We therefore, hold that the complaint is not only without merit but

also frivolous and vexatious in nature. It has been filed with a very

palpable purpose to harass the OP bank. Consequently, Consumer

Complaint No. 123 of 2012 is dismissed for want of merit as well as for

being vexatious and frivolous in nature. We therefore, deem it just and

proper to impose cost of Rs.25,000 on the complainant. The same shall

be paid to the OP/HDFC Bank within a period of three months. Failing this,

the amount shall also carry interest at 10% for the duration of delay.

  .……………Sd/-……………

(J. M. MALIK, J.)PRESIDING MEMBER

 …………Sd/-……………….

(VINAY KUMAR)S./- MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

Revision Petition No. 3994 OF 2012

(from the order dated 20.07.2012 of the Andhra Pradesh State Consumer Disputes Redressal Commission, Hyderabad in  First Appeal no. 683 of 2011)

 Mr Jajula Veeranjaneyulu Son of Shri J Gandhi Veeraiah Opp: to Old Police Station Karempudi Post & Mandal Guntur District Andhra Pradesh

Petitioner

Versus

 State Bank of India Represented by its Branch Manager Karempudi Post & Mandal Guntur District Andhra Pradesh

Respondent

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK   PRESIDING MEMBER

HON’BLE MR. VINAY KUMAR                MEMBER

For the Petitioner                 Mr P Prabhakar, Advocate

Pronounced   on     22 nd   November 2012

O R D E R 

JUSTICE J M MALIK, PRESIDING MEMBER

1.           The whole controversy centres around the question

whether Jajula Veeranjaneyulu complainant/petitioner had withdrawn a sum of

Rs.1,50,000/- from the Bank ? 

2.     The complainant/petitioner had opened a Savings Bank Account with the State

Bank of India the opposite party/ respondent under savings bank account no.

11509282941 on 08.12.2008. The complainant was having a credit balance of

Rs.1,87,530.12 paise in his account. Thereafter on enquiry it transpired that an amount

of Rs.1,50,000/- was transferred from his account to another account bearing no.

030344251858 which is the joint account of Mr. K S M Prasad, (who committed suicide

on 08.01.2009), cashier’s wife and her brother at Guntur, Andhra Pradesh. The grouse

of the complainant/petitioner is that he never authorised any person much less the

opposite party/respondent to transfer the amount from his account. He also lodged a

complaint on 19.01.2009 in this context. However, the opposite party/respondent

insisted that the amount was withdrawn by the complainant/petitioner himself and not by

somebody else.

3.     Ultimately, the complainant filed a complaint before the District Forum. The District

Forum allowed the complaint and directed the opposite party/respondent to pay

Rs.1,50,000/- together with interest as applicable in the case of savings banks account

from time to time. It also awarded Rs.5,000/- towards compensation and Rs.1,000/-

towards costs.

4.     Aggrieved by that order, the State Bank of India preferred an appeal before the

State Commission. The State Commission allowed the appeal and dismissed the

complaint. Aggrieved by the order of the State Commission the complainant/petitioner

filed the present revision petition.

5.     We have heard the learned counsel for the petitioner. He vehemently argued that

the petitioner never authorised any person to withdraw the said amount. He argued that

the deficiency of the petitioner stands proved and therefore, the order passed by the

District Forum should be restored. He pointed out that Mr Suresh Kumar, Chief

Manager of the State Bank of India was appointed as an Inquiry Officer (in short, ‘the

IO’) and after receipt of the complaint filed by the complainant, the IO came to the

conclusion that the above transactions with regard to withdrawal of the amount he was

unable to give his opinion whether the said transaction was genuine or not.

6.     The record also goes to show that the OP/petitioner sent all the withdrawal forms

together with the account opening form and the complaint dated 19.01.2009 of the

complainant to the examiner of Questioned Documents, Government of

India, Hyderabad. The Government expert came to the conclusion that the signature of

the withdrawal forms and account opening form and the letter dated 19.01.2009 were

signed by the one and the same person, i.e., the complainant himself. Due to this

signature, the amount of Rs.1,50,000/- was withdrawn from his account.

7.     This piece of evidence towers upon the rest. It is pertinent to note that the

complainant did not produce any evidence in rebuttal and no expert evidence from the

side of the complainant saw the light of the day In view of this solid and unflappable

evidence the case of the complainant pales into insignificance. The case of the

OP/respondent is supported by cogent and plausible evidence. The order passed by the

State Commission suffers from no flaw.

8.     It is thus clear that the petitioner has no bone to pluck with the respondent. The

revision petition is ill founded and therefore dismissed at the time of admission.

………………Sd/-…………

J. M. Malik,  J]

Presiding Member

……………….Sd/-………………

Vinay Kumar ]

Satish Member

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

ORIGINAL PETITION NO. 51 OF 1999 

                                                       

M/s. Packer Sea Food (Pvt) Limited Through its Managing Director Shri C.P.Azariah Samuel Raj Having its registered office at College Road, Nagercoil-1, Kanyakumari District And having factory At 74/2 Kulasekarapuram Village, Vazukamparai, Agastheeswaram Taluk,Kanyakumari District

….Complainant  

Versus

1. The Tamilnadu Industrial Investment Corporation Ltd., 27 Whites Road,Madras: 600 014 2. The Branch Manager, Tamilnadu Industrial Investment Corporation Ltd,37 Cape Road, Nagercoil- 629 001

.....Opposite parties                                                                          

 BEFOREHON’BLE MR. JUSTICE  J. M. MALIK,                              PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER  For the Complainant             :     Mr. M.L. Mahajan, Advocate For the Opposite parties       :     Mr. K.P. Toms, Advocate 

 

PRONOUNCED ON:02.01.2013.ORDER

 

PER MR.VINAY KUMAR, MEMBER

M/S Packer Sea Food Private Limited has filed this complaint against the Tamil

Nadu Investment Corporation.  The complaint arises from alleged delay in disbursal and

part non-disbursal of a loan of Rs.70 lakhs, sanctioned by the OPs to the Complainant

for setting up a marine products processing unit.

 

2.      The case of the Complainant is that the loan was sanctioned on 20.10.1993 but

only Rs.15.3 lakhs had been disbursed till 18.3.1994.  By the time the complaint was

filed, only Rs.44.83 lakhs had been released and remaining balance of Rs.25.17 lakhs

and subsidy were never released.  This was inspite of the fact that the Principal, Govt.

College of Engineering, Tirunelveli, appointed by the OPs to evaluate the plant and

machinery, had reported   that the building was worth Rs.41.58 lakhs, excluding cost of

the land.         

3.      The complaint petition gives details of alleged “dillydallying attitude” of the OPs,

which eventually forced him to write to the Complainant on 7.2.1996 stating that it was

left with no alternative but to seek funding facilities from another source.   This letter

(Annexure P-49) stated:-  

“Therefore this is to require you to release the documents that we have deposited with you as additional collateral security to enable us tohypothicate with other financiers.  It is also noted that you yourself and the corporation alone shall be liable for losses, and other damages that we have incurred on account of “Dilly-dallying” tactics adopted by you for the past 1 ½ years in the disbursement to our project.  Since our project is nearing completion we have been driven to this extreme step as you have been dragging the matter unnecessarly and purposely for reasons best known to yourself.”

 

4.      According to the Complainant, the project has suffered delay of 2½ years due to

failure of the OPs to make timely and sufficient disbursal of the sanctioned loan.  Even

after arrangements were made to raise necessary funding from another source, the

NOC was not released by the OPs. Therefore, the Complainant has sought the following

reliefs against the OPs, for loss caused by their negligence, delay and failure to provide

proper service—

 

“ (i)  Interest on delayed completion                               Rs.25.74

(ii)  Cost escalation                                                             Rs.95.99

(iii) interest arising out of non-release of sanctioned

     amount by respondent                                             Rs.2.97 

 

(iv) interest loan on account of delayed claim of

      subsidy amount                                                      Rs.1.94

 

(v)  EB minimum charges payable for the delayed

      Period                                                                   Rs.13.50

 

(vi) mental agony suffered because of the aforesaid

      causes                                                                Rs.10.00

 

(vii) loss of profit including contacting other persons

       for arranging loans/lacs                                      Rs.50.00”

 

 

5.      During the course of these proceedings, the Commission identified six issues for

decision and directed on 6.9.2010 that—

“The complainant shall submit brief written arguments on the six issues, which are required to be decided in this complaint with reference to the evidence on each head and the quantum of claim on each head, copy of the same be furnished to the counsel for the opposite party within four weeks.  Thereafter, counsel for the opposite party shall file item-wise reply on each issue and furnish a copy of the same to the counsel for the complainant within four weeks.  Parties are at liberty to add issues to be decided”.

 

Accordingly, a brief written argument was filed by the Complainant on 9.11.2010.  In

this, the following issues/heads are listed:-

          “a. Interest on Rs.25 lack taken from private party.

          b. Increase of cost or propitiate escalation cost.

c. Delay in release the subsidy by TIIC its actual cost/effect.

          d. Minimum Electricity Charges (EB)

          e. Business loss

          f. Mental Agony”

                           

6.      Per contra, the case of the OPs is that it is a corporation set up by the

government of Tamil Nadu with branches all over the States and with the avowed

objective of “extending financial assistance to various entrepreneurs in the State

of Tamilnadu for development of industries in the State”.  The loan to the Complainant

was sanctioned on 20.10.1993 with clear terms and conditions, which were accepted by

it on 17.1.1994.  As per Clause 43 therein, collateral security for the loan was required to

be provided by the Complainant.  Delay in this, led to delay in disbursal of loan.  OPs

have further alleged that:-

a)      The Complainant sought sanction for purchase of two generator sets and an

additional Plate Freezer from suppliers different from the ones originally purposed.

b)      The procedure for payment required the advance amount to be paid to the supplier

through the opposite parties. Therefore, details were sought from the Complainant for

change of suppliers of generator sets and motors.

d)      As per norms of disbursement release of loan amount for purchase of assets not

envisaged in the scheme, was not permissible.  Such purchases could be made from

contingency. But, contingency itself could be utilized after implementation of the full

project. All equipments considered necessary for the project, should have been included

by the complainant in the original project itself.

e)      Inspection of the factory building by the regional office of OPs revealed that the

Complainant had not purchased any machinery as per the bills submitted.

f)       The machineries were erected in the factory premises by a fabricator, who was not

a supplier as per the sanctioned scheme. 

g)      Principal Government College of Engineering Tirunelveli had valued the building at

Rs.39,56,245/- and the machinery at Rs.21,60,000/-.  The valuation of machinery here

was questioned by the OPs in their letter of 7.3.1994.

h)      If the borrower requests for change of equipment suppliers, the OPs have to verify

the capacity, market reputation and comparative cost of the proposed supplier.  In the

case of generator sets, the change of supplier was agreed by the OPs within a month,

but the supply could not be effected as the Complainant did not accept the condition of

payment after delivery of the generator sets.

i)        When the Complainant asked for NOC to raise working capital from another

financier, there was an overdue of Rs 17 lakhs in his loan account. Therefore, the

Complainant was asked to clear the overdue for issue of the NOC.

j)        Even after the loan account between the two parties was settled, the Marine

Products Export Development Authority, Govt. of India informed that invoices/bills and

receipts submitted by the Complainants to the OPs are fabricated and false.

 

7.      We have carefully considered the pleadings and evidence brought on record

by the two sides and heard their counsels, Mr M L Mahajan for the complainant and Mr

K P Toms for the OPs.  Mr Mahajan drew our attention to the sixteen page document

(signed by the lender/OPs on 28.10.1993) containing the details of sanction of this term

loan of Rs 70 lakhs (Annexure P-2). It projects total cost of the venture as Rs 155 lakhs,

to be funded in the following manner—

                               Loan  from the OP          Rs 70 Lakhs

                               Subsidy/State capital      Rs 15 lakhs

                               Capital                             Rs 50 lakhs

                               Unsecured loans             Rs 20 lakhs

The loan of 70 lakhs was sanctioned for construction of the factory building and

purchase of machinery required for the project. It was to be repaid  in 24 instalments,

after a moratorium of 24 months from the date of the first disbursal. As per the terms, the

disbursal for civil works and equipment was to be made after inspection and valuation.

For this, a valuer was appointed by the OPs. Learned counsel pointed out that

the valuer (Government College of Engineering,Tirunnelveli) submitted reports to the

OPs, from time to time. Their reports from 3.11.1993 to 6.3.1994 (i.e. before the first

disbursal by the OPs) show that an investment of Rs 44.95 lakhs in land & building

and Rs 3.86 lakhs in machinery had already been made by the complainant. 

 

8.      Mr M L Mahajan, learned counsel for the complainant, argued that the total

amount released by the OPs was only Rs 44.83 lakhs. No release was made after

March 1995. Therefore, the balance of Rs 25.17 lakhs had to be raised from private

sources at very high rates of interest, to ensure completion of the project.

 

9.      In reply, Mr K P Toms, learned counsel for the OPs filed additional written

arguments on 24.9.2012 with records of disbursement to show that as on 29.3.2005, in

all Rs 44.83 lakhs towards the term loan and Rs 9.51 lakhs towards subsidy had been

released to the complainant. Learned counsel argued that subsidy and the term

loan together  constituted only 55% of the project cost. Therefore, the commitment of the

OPs was limited to funding 55% of the asset created under the project. The borrower

had created assets worth Rs 89.36 lakhs only. The OPs were required to release only

55% thereof i.e. Rs 49.15 lakhs. Accordingly, actual release fell short by Rs 4.32 lakhs

only which was retained by the OPs towards cost of the machinery supplied by M/S

Rank Engineering Works. In this context, Mr K P Toms referred to the written response

filed by the OP in this Commission on 17.5.1999. Para 23 therein states—

“With regard to paragraph 11 of the complaint, the statement issued by the banker for the account of M/s Rank Engineering Works did not a have any authenticity.  M/s. Lakshmi Vilas Bank, Nagercoil said to have issued statement of account for the company M/s Rank Engineering Works which was having its factory and office at Chennai.  The payments made to the said engineering company were sent to office at Chennai only.  Therefore, the statement issued by a bank at Nagercoil caused suspicion on the genuiness of the statement.  Besides this, the complainant reported to have paid Rs.21.60 lakhs  but the said engineering company has received Rs.4 lakhs only.  Further with regard to the allegation of demanding interest, it is stated that the complainant had to pay the interest accrued to the account and therefore, the second opposite party demanded the interest from the complainant.”

 

10.    This claim, made on behalf of the OPs, was challenged by Mr Mahajan, counsel

for the complainant. He drew our attention to the report of 10.3.1995 submitted by

the valuer, Government College of Engineering, appointed by the OP/Tamil Nadu

Industrial Investment Corporation itself. The three items of equipment having, total value

of Rs 21.60, lakhs figure as the last three items in the report signed by two senior

lecturers of the Engineering Department of the College. When confronted with this piece

of evidence on record, learned counsel for the OPs very gracefully concede that he had

no answer for the same.   It is therefore, clear that the OPs have not verified their facts

before filing the written response of 17.5.1999 and written arguments on 17.9.2012.  At

this stage, we do not wish to make any further observation on this point.

 

11.    The evidence brought on record shows that the first three disbursals were made in

March 1994.  In September 1994 the complainant was informed that further disbursal of

the loan was decided by the OPs to be “withheld”. Thus, no release of loan or subsidy

was made until  29.3.1995.  Rs 25.17 lakhs of loan and Rs 5.94 lakhs of subsidy i.e.

31.11 lakhs out of the commitment of Rs 85 lakhs, was never disbursed.  The final

position is confirmed by the counsel for the OPs in the statement produced before us on

24.9.2012. The allegations of delay in disbursal and non-disbursal of the loan and

subsidy are to be seen in this factual background.

 

12.    In the affidavit evidence filed on behalf of the OPs, delay is attributed mainly to the

decision of the complainant to purchase generator sets and Plate Freezer from suppliers

different from the ones ‘originally proposed’. The request was agreed by the OPs, in so

far as the generators were concerned. But, there is no explanation why no advance was

released in favour of the supplier. Nor is there an explanation why the condition of

supply before payment was imposed when, as admitted in the affidavit evidence of the

OPs, payment of advance to the suppliers was permissible, subject to the same being

routed through the OPs. More importantly, there is no explanation for the resultant

delay. Details in para 17 of the affidavit evidence of the complainant show that it was

over three months.

 

13.    As noted earlier, the stoppage of further disbursals was communicated to the

complainant on 15.9.1994. This was preceded by inspection by the Regional Office of

the OPs. As per the affidavit evidence of the OPs, “The inspection revealed that the

complainant had not purchased any machinery as per the bills admitted.”  However, the

letter of 15.9.1994 (produced on record as Annexure P-9), which is a cryptic

one para letter, gives no idea whatsoever of the reason for stoppage of further

disbursements. But, a reading the affidavit evidence of the OPs, filed on 7.5.2008

together with the objections filed by the complainant on 5.10.1999, gives  a clear idea of

the underlying reason.  As per the complainant, it preferred to buy the generators from

another supplier as it had quoted rates 20% lower than the one chosen by the OPs

(Para26). The OPs do not respond to the question of rate difference but admit that “On

16.3.1994 the complainant requested for change of machinery supplier from

M/s Mahanarayanee Investment and Trading Co.P. Ltd., Madurai to M/s Parry

Engineering and Exports Limited for the purchase of 2 Generator set for which the

second opposite party requested vide their letter dated 17.3.1994 the complainant to

submit the original proforma invoice so as to take a decision on change of supplier.

While it was so, on 29.3.94, the second opposite party issued a commitment letter to M/s

Air Power India Ltd. guaranteeing payment subject to conditions on supply of machinery.

A DD for Rs 6,13,000/- was forwarded to the said supplier as advance out of term

loan  against subsidy eligibility................Also, in another letter dated 6.6.94, the

complainant reiterated the stand to purchase 2 Gensets from M/s Parry & Co., instead of

M/s Mahanarayanee Investments and Trading Co. P.Ltd.”(Para 15).  This is a clear

admission that the OPs were in a hurry to procure the equipment, even before taking a

final view on the request of the complainant to change the supplier.

14.    Following conclusions emerge from the detailed consideration above—

a.   Report of the valuer shows that even before the first disbursal by the

OP,  investment of Rs 44.95 lakhs in the building and Rs 3.86 lakhs in machinery

had been made by the complainant.

b.   Most of the machinery and equipment have been procured subsequent to the

sanction of the loan by the OPs. Therefore, its value, as assessed by

thevaluer rose from 3.86 lakhs in November 1993 to 49.71 lakhs in March 1995.

 

c.   The OPs disbursed part of the loan and subsidy but with long delays between

disbursals. Admittedly, Rs 25.17 lakhs of the term loan and Rs 5.49 lakhs of

subsidy remained undisbursed. 

 

d.   Delay in disbursal is sought to be explained on the ground that the purchased

machinery (though reflected in the evaluation report of 7.7.1994) was not found in

the factory during subsequent inspection by the OPs. But, it is also admitted

that Rs 16.88 lakhs were released in March 1995, based on the valuation report

of 10.3.1995. There is no explanation as to what happened in between to satisfy

the OPs that the ‘missing machinery’ was not physically missing. We are

therefore, of the view that the delay on this account cannot be treated as bona

fide conduct on the part of the OPs.

 

e.   The logic of proportionate release (i.e. OP’s commitment of loan as 55% of the

project cost) is an unconvincing attempt to justify the delay.  It has merely

remained an attempt to take the focus away from the inexplicable delay caused

by the conduct of the OPs. This delay was a negation of their own avowed

objective of extending financial assistance to entrepreneurs in Tamil Nadu for

development of industries in the State. 

 

f.      The delay in procurement of generator sets has not been objectively explained.

On the contrary, OPs’ own evidence shows that it was caused by their attempt to

procure it from a supplier of their choice (though, as revealed by the Complainant,

at a higher cost), against the requirement of the complainant. In this case too, the

delay cannot be called bona fide.

 

g.   In so far as the time taken in release of ‘No Objection Certificate’ to the borrower

is concerned, we agree with the OPs that it could not have been issued before

clearance of the outstanding amount by the complainant.

 

15.    The OPs have sought to rely upon the decision of H’ble Supreme Court of India

in Karnataka State Industrial Industrial Investment and Development Corpn. Ltd.,

(2005) 4 SCC 456.      In this case, the respondent had taken a loan of Rs 116.30 lakhs

from the Karnataka State Industrial Investment and Development Corpn (KSIIDC) in

1991. The borrower committed defaults in repayment. Therefore, the KSIIDC took over

the unit in 1996 and sold it for Rs 171 lakhs in 1998 to a third party. The borrower filed a

writ petition in the High Court praying for declaring the sale null and void. The High

Court decided that borrower should be given an opportunity to make an offer to

purchase on the same terms as agreed by the KSIIDC with the buyer. The decision of

the learned single judge was challenged by the buyer in a writ appeal. The

Division Bench  ordered the KSIIDC to re do the entire sale process and to give the

borrower an opportunity to bring a better offer. Hon’ble Supreme Court held that the

KSIIDC had acted in a bona fide manner and set aside the direction to it to redo the

entire sale process. Facts in the case before us are entirely different. Therefore, in our

view the case of the OP/Tamilnadu Industrial Investment Corporation gets no support

from this decision.   

 

16.    In the result, we hold that the complainant has fully succeeded in establishing that

the delay in disbursal of the term loan with subsidy as well as part non-release of the

same after March 1995, was without any justifiable cause. This failure to provide proper

service to their borrower, amounted to ‘deficiency of service’ on the part of the OPs,

within the meaning of Section 2(1)(g) of the Consumer Protection Act, 1986. We are

therefore of the view that the complainant is entitled to be compensated for the same. 

 

17.    The consequential cost of delay in disbursal and of non-disbursal itself, has been

quantified by the complainant, as directed by this Commission.  As per written

submission of the complainant, the value of total assets had risen to Rs.203.84 lakhs in

May 1996 and Rs.274.39 lakhs by May 1997.  We do not consider it necessary to go

into it.  Because, whatever the actual growth of the Unit set up by the complainant, the

liability of the OPs in the context of the Consumer Complaint, will not travel beyond the

consequences of delay in disbursement of the total agreed quantum of loan and subsidy

as well as of non- disbursal of a part thereof.

 

18.    The effect of this delay has been quantified by the Complainant in six heads, as

per the direction of this Commission, mentioned earlier in this order. Expectedly, it has

not been challenged by the OPs.  Towards the non-released sums of loan and subsidy

interest, Rs.13.16 lakhs has been claimed at 36% per annum.  We consider it proper to

limit it to 18%.  Cost escalation for building and machinery, calculated at 12 and 10%

respectively, are considered reasonable and acceptable.  This comes to Rs.11.75 lakhs.

Similarly, business loss at 10% for five months is considered reasonable and therefore

the claimed amount of Rs.6.45 lakhs is allowed.  However, we do deem it proper to

allow the minimum electricity charge claimed by the Complainant, as it would have

been   payable, in  any case.   Finally, there is no case for allowing further compensation

of Rs.25 lakhs claimed towards mental pain and agony, as interest on delay in releases

cost escalation as well as business loss have separately been allowed.

 

19.    Accordingly, the total compensation payable under all admissible heads is rounded

off to Rs.25 lakhs.  Cost of Rs one lakh is also awarded in favour of the

Complainant.  The OP/Tamilnadu Industrial Investment Corporation Limited, is directed

to pay this amount of Rs.26 lakhs to the complainant, together with interest at 9% per

annum, from the date of the complaint.  The entire amount shall be paid within a period

of three months, failing which the period of delay shall carry additional interest of 2% per

annum.  

.…………………………(J. M. MALIK, J.)

PRESIDING MEMBER 

………………………….                                                                            (VINA

Y KUMAR)                                      MEMBER

s./-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.3990 OF 2011(From the order dated 5.10.2011 in First Appeal No.102/2010 of the

Andhra Pradesh State Consumer Disputes Redressal Commission, Circuit Bench at Tirupathi)

 Mudivarthi Radha Krishna S/o Raghavender Rao D.No. 27-2-56, Balaji Nagar,

Nellore

…  Petitioner

Versus

The Branch Manager, Andhra Bank Plot No.15, Ward No.21, Balajinagar, Nellore Distt. Nellore

…  Respondent 

BEFORE:                                                       HON’BLE MR. K.S. CHAUDHARI, PRESIDING MEMBERHON’BLE MR. SURESH CHANDRA, MEMBER

 

For the Petitioner                  :   Mr. C.P. Suresh, Advocate

PRONOUNCED ON: 13 TH   JANUARY,     2013

ORDER

PER SURESH CHANDRA, MEMBER

This revision petition has been filed by the petitioner, who is the original

complainant, against the order dated 5.10.2011 passed by the Andhra Pradesh State

Consumer Disputes Redressal Commission, Circuit Bench Tirupathi (‘State

Commission’ for short) by which the State Commission allowed the appeal filed by the

respondent/opposite party challenging the order dated 20.11.2009 passed by the

District Consumer Disputes Redressal Forum, Nellore by which the District Forum had

partly allowed the complaint of the petitioner and directed the respondent to pay

Rs.50,000/- to the complainant alongwith interest @ 9% p.a. from the date of filing of

the complaint. Vide its impugned order the State Commission the State Commission set

aside the order of the District Forum and dismissed the complaint with cost computed at

Rs.2,000/- payable by the petitioner. It is in these circumstances, that the present

revision petition has been filed.

2.       We have heard Mr. C.P. Suresh, Advocate appearing for the petitioner and

perused the record.

3.       The only point for consideration before us in this case is as to whether the

respondent Bank committed any deficiency in service in the collection of

the cheque deposited by the petitioner with it. It is not under dispute that the petitioner

presented the cheque in question dated 20.6.2007 for Rs.50,000/- with the respondent

Bank on 17.12.2007. The cheque was valid upto 20.12.2007 and it was an

outstation cheque drawn on Allahabad Bank, Hyderabad. The State Commission while

reversing the finding of the District Forum held that if there was any delay, it was the

complainant who was guilty of delay in presentation of cheque just three days prior to

the expiry of the cheque. More so, when it was an outstation cheque, he ought to have

presented the same well in advance to enable the OP Bank to collect the amount. The

complainant cannot present the cheque at the 11th hour and then complain that there

was delay which would constitute deficiency in service. In addition to this, the State

Commission has also recorded the following reason in support of the impugned order: -“We may also state that the complaint for the reasons not

known did not implead Allahabad Bank, Himayatnagar, Hyderabad as a party which had returned the cheque on the ground that it was stale.  Appellant could prove by irrefutable documentary evidence on the day when the complainant had presented the cheque it has sent on the very same day for collection of amount to Hyderabad.  Subsequent events were not in the hands of appellant bank in order to find out nor any deficiency in service attributable to Allahabad Bank at Hyderabad.  Importantly, he has suppressed the document which viz. , cheque return memo, obviously he was afraid that entire case falls two ground.  Considering the circumstances, we are unable to fix liability on the appellant bank nor we can say that there was deficiency in service on its part.  The complainant is guilty of his own acts by presenting the chequejust three days before expiry.  We do not subscribe to the view expressed by the Distt. Forum in this regard.”

 

4.       We agree with the view taken by the State Commission. Admittedly only three

days’ time was left before the expiry of the cheque which was an outstation cheque,

when it was presented by the petitioner before the respondent Bank. The petitioner

should have known that he himself was to be blamed for such extraordinary delay in

presentation of thischeque and as such he had subjected himself to grave risk and if the

validity period expired before the cheque could reach the payee bank which was at

Hyderabad, the petitioner himself is to be blamed for this delay. The respondent Bank

could not be held responsible for the same since it had dispatched the cheque well on

time after its presentation for collection. Regarding the non-joinder of the payee

Allahabad Bank, Hyderabad with a view to prove the allegation regarding the delay on

the part of the respondent Bank, learned counsel submitted that only an oral request

was made to this effect before the District Forum and as such it was not possible to

produce any formal order of the District Forum regarding refusal to accept such request.

We are not convinced with the explanation. The District Forum apparently did not

appreciate the factual position properly while holding the respondent Bank deficient in

service. In the circumstances, we do not find any reason to interfere with the impugned

order which is based on the undisputed facts and the correct legal position.

5.       Consequently, the revision petition fails. There shall be no order as to cost.…………………………..

(K.S. CHAUDHARI)PRESIDING MEMBER

  

…………………………..(SURESH CHANDRA)

                  MEMBERRaj/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 

REVISION PETITION NO.2544OF 2011(From the order dated 03.05.2011  in  First Appeal No.A/10/1027 of the Maharashtra

State Consumer Disputes Redressal Commission, Mumbai)

 

Mr. Deepak Jayendra Mehata R/At no.5 B-3 Narendra Complex SP Road Dhar Khadi Cross Vaishali Nagar Dahisar (E) Mumbai Maharashtra.              

                                                                           ...... PETITIONER

           Versus

1. The Chairman HDFC Bank Ltd Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Road, Andheri (E) Mumbai Maharastra.

 2. The Branch Manager HDFC Bank Ltd. Retail Assets Division 3rd Floor Trade Star Building Opp. J B Nagar Andheri Kurla Raod Andheri (E) Maharashtra.

 3. The Manager/Director M/s OM Sai Motors Pvt. Ltd. Jyoti Plaza, S.V. Road, Kandivali (W), Mumbai-400067, Maharashtra.

....... RESPONDENTS

 

BEFORE:

HON’BLE MR. JUSTICE K.S. CHAUDHARI,PRESIDING MEMBERHON'BLE  MR.SURESH CHANDRA,  MEMBER       

For the Petitioner         :    Ms. Jayshree Satpute, Advocate

 

For the Respondents  :    Mr.Rishab Raj Jain, Adv. for R1& R2

                                            Mrs. Bindu Jain, Adv. for R3

 PRONOUNCED ON: 14 th   January, 2013

                                                ORDER

PER SURESH CHANDRA, MEMBER

          This revision petition has been filed against the order dated 03.05.2011 passed

by the Maharashtra State Consumer Disputes Redressal Commission, Mumbai (‘the

State Commission’, for short) by which the State Commission allowed the appeal of the

petitioner only against OP no.3/respondent no.3 and remitted the matter back to the

District Forum as against OP no.3 only and dropped the complaint against OPs no.1

and 2/respondent nos.1 and 2.  The impugned order reads as under:-

“(i)       Appeal is allowed only against Respondent/original Opponent No.3.

(ii)        Impugned order as against Respondent/Original Opponent Nos.1 &2 stands confirmed.

(iii)       The Consumer Complaint No.188/2008 is remitted back to the Forum as against Respondent/original Opponent no.3 only, in the light of the observations made in the body of the order.

(iv)       Both parties, i.e. Appellant/original Complainant and Respondent/original Opponent No.3 shall appear before the Forum on 03.06.2011.

(v)        The Forum shall give opportunity, if so desires by the Appellant/original Complainant to correct the description of original Opponent No.3.  If such application is made, that should be decided on merit after hearing Opponent no.3.

(vi)       The Forum shall also give proper opportunity to the parties before it, i.e. Complainant and Opponent No.3 to lead their respective evidence as per Provisions of Section 13(4) of the Consumer Protection Act, 1986 and thereafter them, settle the dispute according to law.

(vii)      In the given circumstances, both the parties in appeal shall bear their own costs.

(viii)     Appeal stands disposed of accordingly.”

 

2.      Briefly stated, it is the case of the petitioner, who was original complainant before

the District Forum, that he had purchased a Tata Indigo car in the month of August,

2005 from M/s Om Sai Motors Pvt. Ltd., Kandivali (W), Mumbai, respondent no.3

herein.   While an amount of Rs.1,40,000/- against the total purchase price of the car is

alleged to have been paid by the complainant-petitioner to the agent of respondent

no.3, he also applied for car loan of Rs.4,51,000/-  from the HDFC Bank Ltd. who are

respondents no.1 and 2 in this petition and were OPs in the same order before the

District Forum.  The loan amount sanctioned by the respondent bank to purchase the

said car  is alleged to have been directly released by the respondent bank to

respondent no.3.  It is the case of the petitioner that respondent no.3 failed to deliver the

possession of the vehicle purchased.  It is also alleged by the petitioner that instead of

making delivery of the said car to him, the respondent no.3 had given delivery thereof to

another person called ‘Deepak Devendra Mehta’.  Alleging deficiency in service on the

part of the respondent no.3/OP no.3, the petitioner filed a consumer complaint before

the District Forum in which the Chairman of the HDFC Bank was shown as OP no.1 and

the Branch Manager of the Bank was made as OP no.2  in addition to the

Manager/Director of M/s Om Sai Motors Pvt. Ltd. being included as OP No.3.   On

notice, OPs appeared before the District Forum.  The financial help provided by the

HDFC Bank for purchase of the car through a car loan was admitted by the HDFC Bank

but the respondent no.3 submitted that they had no dealing with the petitioner and they

had dealing with one Mr.Deepak Devendra Mehta to whom the car had been

delivered.  Vide its impugned order dated 31.07.2010, the District Forum came to the

conclusion that the facts of this case showed that this is not a complaint which can be

tried by a Consumer Forum in a summary trial under the Consumer Protection Act,

1986 and as such held that the complaint is not maintainable before it and that the

complainant should have preferred a Forum of conventional Court to thrash out the

complicated issues by appropriate legal proceedings.  Accordingly, the District Forum

dismissed the complaint.

3.      As stated above, vide its impugned order the State Commission remanded the

matter to the District Forum for giving an opportunity to the parties for leading evidence

and to settle the dispute according to law after hearing the parties.  Since the State

Commission, while remitting the matter back to the District Forum, dropped the

complaint against respondents no.1 and 2 who had been made OPs no.1 and 2 by the

complainant before the District Forum, the petitioner has now challenged this order

before us.

4.      We have heard Ms. Jayshree Satpute, Advocate for the petitioner, Mr. Rishab Raj

Jain, Advocate for the respondent no.1 and 2 and Mrs.Bindu Jain, Advocate for the

respondent no.3.

5.      It is contended by the learned counsel for the petitioner that the State Commission

has committed grave mistake in observing in its impugned order that the petitioner did

not have any grievance against the respondent bank and hence reached the conclusion

that the respondent no.1 and 2 were impleaded unnecessarily as the opponents.  She

submitted that the District Forum without reaching a final conclusion in respect of the

complaint in question had simply observed that in view of the complicated nature of

issue involved the same was not maintainable before the Consumer Forum and hence

dismissed the complaint by its order by which the petitioner was directed to approach a

Civil Court competent to take cognizance of the dispute.  It is the contention of the

learned counsel that since the State Commission has not looked into the merits of the

case, it would be wrong on its part to dismiss the complaint against therespondents no.1

and 2/OPs no.1 and 2.  In any case, it was not correct on the part of the State

Commission to hold that since the consumer dispute was in respect of non- delivery of

the vehicle by the dealer , i.e., the respondent no.3 to the petitioner/complainant, the

presence of the bank/financial institution could be dispensed with.  She submitted that

once the evidence is led by the concerned parties, the presence of the respondent

bank who was included as opposite party would be absolutely essential.  She, therefore,

pleaded that the impugned order of the State Commission be set aside and the matter

be remanded back to the State Commission for deciding it on merits by retaining

the respondents no.1 and 2 as parties to the case.

6.      Learned counsel for the respondent no.3 has also submitted that the matter be

remanded to the State Commission and not to the District Forum.

7.      Learned counsel for the respondent bank has reiterated that the grievance of the

complainant is mainly against the persons, namely,  Mr. Vilas P. Sawant, Mr. Sandeep

Kandalkar and Mr. Ajay Sawant who, according to the complainant had induced him to

deal with them and in that process he was cheated by them. He submitted that the role

of the bank was limited to grant of a car loan and recovery thereof from the petitioner

and as such the order of the State Commission dismissing the complaint against the

respondent bank  is correct and needs to be confirmed.

8.      We have carefully considered the rival contentions raised before us. The limited

issue which has arisen for our consideration in this case is as to whether the impugned

order of the State Commission dropping the names of respondents no.1 and 2 thereby

dismissing the complaint against these two respondents while remitting the matter for a

fresh trial to the District Forum is correct in the eye of law.  It is not in dispute that the

petitioner had taken a car loan from the respondent bank.  It is also not in dispute that

the respondent bank was getting the payment of EMIs for some time in repayment of

the said loan.  According to the petitioner, the respondent bank released the amount of

car loan directly to the dealer.  We do not see any denial to this aspect, which in any

case is presumed to be true as per the general practice in which the car loan usually is

released to the dealer of the car (which in this case would be respondent no.3).  This

being the situation, the respondent bank needs to specifically point out and produce

documentary evidence in support thereof as to how and to whom the cheque on

account of the car loan was released by the respondent bank.  Such documents would

invariably indicate the correct name of the person on whose behalf the amount was

being released by the respondent bank to the dealer.  This aspect has not been dealt

with by the State Commission and there is no observation in this regard.  In the

circumstances, when the State Commission thought it appropriate to remand the matter

to the District Forum for  a fresh trial after considering the evidence to be adduced by

the respondent no.3 and the petitioner in support of their contentions and take a

decision on merits after hearing the parties, it is not understood as to how the presence

of the respondent bank could be dispensed with by dismissing the complaint against the

bank. In that view of the matter and to this extent, the impugned order of the State

Commission cannot be sustained in the eye of law being not based on any acceptable

evidence before it. 

9.      It is noted from the revision petition that the District Forum had dismissed the

complaint as not being maintainable under the Consumer Protection Act simply

because in its opinion it felt that the dispute involved complicated questions of law and

facts.  It is further seen from paras 3 (II), (III) and (IV) of the revision petition that the

respondent bank failed to produce certain documents as per the direction given by the

District Forum and as such the District Forum did not reach any conclusion based on

evidence or merits of the case but only on its impression that because of the nature of

the dispute and complications involved, the complaint was not maintainable.  In the

circumstances, when the petitioner has  alleged non- delivery of the vehicle by the

respondent no.3 to him for which the loan amount had been released directly by the

respondent bank to the respondent no.3-dealer, it is necessary that the respondent

bank clarifies this position in respect of the person on whose behalf  the car loan

cheque was released to the dealer/respondent no.3 before he could be held liable for

deficiency in service in respect of non delivery of the car to the petitioner.  In other

words, the presence of the respondent bank is absolutely essential for reaching any

conclusion or taking a final view on the complaint in question. The observations of the

State Commission to the effect that the main grievance of the petitioner being against

the respondent no.3, the respondent bank has no role to play is incorrect and not based

on proper appreciation of the submissions made in the complaint and the written

statement of the parties.

10.    In view of the above, we do not find any fault with the order of the State

Commission to remand the matter back to the District Forum for recording evidence and

hearing the parties afresh but we do not agree with the impugned order regarding the

dismissal of the complaint against the respondents no.1 and 2 thereby exempting them

from appearing and leading the evidence before the District Forum.  We, therefore,

accept the revision petition partly and set aside the impugned order to the extent that it

dismisses the complaint against the respondent no.1 and 2.  Rest of the impugned

order is upheld. Consequently, the District Forum is directed to give proper opportunity

to the petitioner and all the respondents who were OPs before the District Forum to lead

their respective evidence and thereafter settle the dispute after hearing the parties in

accordance with the provisions of law.  We make it clear that the petitioner and the

respondents would be at liberty to lead their evidence with reference to the allegations

of deficiency in service made in the original complaint and the District Forum shall take

a decision on merits without being influenced by any of the observations made by the

State Commission in its impugned order.

11.    The revision petition thus stands partly allowed and disposed of in terms of the

aforesaid directions with the parties bearing their own costs.

……………Sd/-….……………

                                                       (K. S. CHAUDHARI, J.)

                                                      PRESIDING MEMBER

 

  …………Sd/-…….……………

                                                       (SURESH CHANDRA)

bs                                                                          MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION                                                NEW DELHI        

 

 

REVISION PETITION NO. 2945 OF 2011(From the order dated 21.06.2011 in Appeal No.789/11 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

 

 

 

PCARDB Through its CEO

Cooperatives Bhawan, Panchkula

Sector -2, District Panchkula                                               …        Petitioner/OP

                                       Versus 1. Shri Satbir Singh                                       …    Respondent/Complainant

    S/o Shri Devi Ram

    R/o Village Kharkhari, Tehsil Bawal,

    Bawal, District Rewari,

    Haryana

 

2. Shri Om Prakash

    PCARDB

    Branch Manager, Bawal

    District Rewari, Haryana                                         …    Respondents/OP

 

 

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

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

 

 

            For the Petitioners          in both the matters

: Mr. Rishi Malhotra, Advocate   

          For the Res. No.1in both the matters

For the Res. No. 2       :               

in both the matters

: Ms. Girija Wadhwa, Advocate

 

Mr. Dinesh Chander Yadav & Mr

Mr. A.S. Rish, Advocates

     

 

 

 

PRONOUNCED ON     17 th   January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER

          This revision petition has been filed against the order dated 21.6.2011 passed by

the Haryana State Consumer Disputes Redressal Commission, Panchkula (in short, ‘the

State Commission’) in Appeal No. 789 of 2011 – PCARDB Vs. Satbir Singh & Ors. by

which while dismissing appeal, order of District Forum allowing complaint was upheld.

2.       Brief facts of the case are that complainant/Respondent No. 1 had raised a loan

of Rs.4,00,000/- from petitioner/opposite party in order to run his soap manufacturing

unit.  The loan was sanctioned by OP/Respondent No. 2 by mortgaging the immovable

property of the complainant and loan amount was to be disbursed to the complainant in

three instalments. First instalment of Rs. 1,75,000/- was disbursed on 13.3.2009 and

second instalment of Rs.1,00,000/- was disbursed on 30.3.2009 to the complainant, but

the third instalment of Rs.1,25,000/- was withheld by opposite party.  Complainant

served notice on the opposite party for release of third instalment, but opposite party

vide its order dated 19.8.2009 informed that for want of utilization certificate of two

instalments, third instalment of loan could not be disbursed.  In such circumstances,

complainant alleging deficiency on the part of opposite parties filed complaint.  Opposite

parties filed written statement and took the plea that complainant did not properly utilize

first two instalments so the third instalment could not be validly released, hence,

complaint may be dismissed.  Learned District Forum vide order dated 27.4.2011

allowed complaint and directed opposite party to release third instalment of

Rs.1,25,000/- to the complainant within a period of one month and further awarded

Rs.1,00,000/- as litigation expenses. This order was challenged by the petitioner before

the State Commission and the learned State Commission vide its impugned order

dismissed appeal.

3.       Heard Learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioner submitted that third instalment of loan could

not have been released in the absence of utilisation certificates as per rules and further

submitted that utilisation certificate issued by the Branch Manager and Field Officer was

false and petitioner has not committed any deficiency in not releasing third instalment,

hence, revision petition be accepted and order of learned State Commission and District

Forum may be set aside. On the other hand, learned Counsel for the

respondent-1/complainant submitted that proper utilisation certificate was given by

concerned officers of opposite party and order passed by learned State Commission is

in accordance with law, hence, petition be dismissed.

5.       Perusal of record reveals that Branch Manager and Field Officer of the opposite

party had issued utilisation certificate dated 30.4.2009 to the complainant in which it

was specifically mentioned that complainant had utilised earlier two instalments of loan

amount. Further, this certificate was affirmed by report dated 3.6.2009 submitted by the

Branch Manager and Field Officer of the Petitioner Bank.   It appears that another

Branch Manager also inspected the site on 30.4.2009 and submitted his report on

2.5.2009 in which it was mentioned that he visited the site of the complainant on

30.4.2009 for checking utilisation of loan amount and found that borrower (complainant)

has not purchased the material according to the bills and only temporary arrangement

was made by the borrower for the eyewash.  It was further observed in the report that

borrower manipulated reports with the help of Field Officer, Om Prakash and Branch

Manager, Om Prakash and both the officers issued false loan utilisation certificate.  It is

not clear whether there were two Branch Managers of the Petitioner Branch at Bawal

and what was the occasion for second Branch Manager to inspect the site after two

days when Field Officer and Branch Manager had already reported about utilisation of

loan instalments.  Second report of Branch Manager also speaks about temporary

arrangement of material.  In such circumstances, it appears that amount of earlier two

instalments had been utilised by the complainant and the third instalment of loan was

not released by the Petitioner Bank which amounted to deficiency in service and

learned State Commission has not committed any error in dismissing appeal of the

petitioner.

6.       Learned Counsel for the Petitioner submitted that petitioner has taken disciplinary

action against the defaulting Field Officer and Branch Manager for giving false utilisation

certificates and in such circumstances, it may be held that utilisation certificates

procured from the Field Officer and the Branch Manager were not true.  This  argument

is devoid of force as no such plea has been taken by the petitioner in the written

statement filed before the learned District Forum and only revision petition discloses this

fact that charge sheet dated 30.4.2010 has been issued to the delinquent

officials.  Complainant is not concerned with this charge sheet and this fact should have

been brought to the notice of District Forum and necessary documents should have

been filed along with written statement before the District Forum which passed the

judgment after one year of the alleged charge sheet.  In such circumstances,

cognizance of charge sheet cannot be taken for setting aside impugned order.

7.       Perusal of record reveals that out of Rs.4,00,000/- sanctioned loan, Rs.2,75,000/-

had been disbursed to the complainant and only loan of Rs.1,25,000/- was withheld and

for this deficiency, learned District Forum has awarded damages to the tune of

Rs.1,00,000/- which has been upheld by the learned State Commission.  It appears that

this amount of damages is on very higher side.  In such circumstances, we deem it

proper to reduce the amount of compensation to the tune of Rs.40,000/- instead of

Rs.1,00,000/-.

8.       Consequently, revision petition filed by the petitioner is allowed in part and order

of learned State Commission dated 21.6.2011 and order of District Forum dated

27.4.2011 are modified to the extent that complainant/respondent is entitled to get

damages of Rs.50,000/- instead of Rs.1,00,000/- awarded by the District Forum.  There

shall be no order as to costs.Sd/-

                                                                               ..…………………………

( V.B. GUPTA, J)

PRESIDING MEMBER 

Sd/-

..……………………………

( K.S. CHAUDHARI, J)

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION                                                NEW DELHI        

 

REVISION PETITION NO. 2382 OF 2012(From the order dated 17.2.2012 in Appeal No.860/11 of the Haryana State Consumer

Disputes Redressal Commission, Panchkula)

 

 

State Bank of India

Through Chief Manager,

Branch Rewari Bajaria

Rewari, Haryana                                                                    …        Petitioner/OP

                                       Versus Om Prakash Saini

S/o Shri Shyam Lal

R/o House No. 1008,

Sector-3, Part-2,

District Rewari,

Haryana                                                   …    Respondents/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

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

 

          For the Petitioner             :         Mr. Gautam Gupta, Advocate

          For the Respondent         :         In person

 

PRONOUNCED ON 18 th     January,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 17.02.2012 passed by the Haryana State Consumer Disputes Redressal

Commission, Panchkula (in short, ‘the State Commission’) in Appeal No. 860 of 2011 –

State Bank of India Vs. Om Prakash Saini by which appeal of the petitioner was

dismissed and order of District Forum allowing complaint was upheld.

2.       Brief facts of the case are that complainant filed complaint before the District

Forum alleging that he was holding saving bank account with the petitioner/OP. On

23.5.2010, complainant went to ATM of OP to withdraw Rs.5,000/-. Rupees 5,000/-

could not be withdrawn due to defect in the ATM machine, but received a slip showing

deduction of Rs.5,000/- from his account.  Complainant immediately contacted opposite

party on its toll free no. 1800112211. Opposite party assured that complainant would

get the money back.  Complainant also demanded video footage of the transaction at

the relevant time but that was not supplied.   Rupees 5,000/- was also not returned to

him and in such circumstances alleging deficiency of service, filed complaint before the

District Forum for refund of amount.   Opposite party filed written submissions and

submitted that ATM machine clearly shows withdrawal of sum of Rs.5,000/- on

23.5.2010 and complainant was given intimation of this fact along with copy of ATM

record and prayed for dismissal of complaint.  Learned District Forum after hearing both

the parties accepted complaint and directed opposite party to refund Rs.5,000/- as

compensation and Rs.1100/- as litigation expenses.  Opposite party/petitioner filed

appeal before the State Commission which was dismissed by the learned State

Commission against which this revision petition has been filed.

3.       Learned Counsel for the petitioner submitted that J.P. Roll contained various

other transactions effected on 23.5.2010 and many persons had withdrawn money, but

none other except the complainant, complained. Had there been any defect in the ATM

machine, more complaints would have been received and in such circumstances,

learned  State Commission has committed error in dismissing appeal, hence, the

revision petition be accepted and order of learned State Commission may be set aside

and complaint be dismissed. On the other hand, General Power of Attorney Holder of

Respondent submitted that order passed by learned State Commission is in accordance

with law and as the petitioner has not supplied video footage, petition is liable to be

dismissed.

4.       Complainant has supported his claim only by his affidavit, but has not adduced

any other evidence to substantiate his claim before the District Forum.  Learned District

Forum observed that “The first and foremost question before this Forum is whether

affidavit of the complainant should be relied upon or the slip of the ATM

Machine?  Normally, machine does not lie but man may do so.  But it also varies from

man to man. Every person cannot be presumed to be a liar.   It is reliability and

trustworthiness of the person which matters. Some time machine may fail. There may

be unexplainable number of reasons for the same.  After perusal of the record and after

hearing the complainant himself, our judicial conscience is completely satisfied that the

complainant is a reliable and trustworthiness person”.

5.       Learned District Forum held complainant reliable and trustworthiness only on

account of judicial conscience on the ground that there was no reason for the

complainant to tell a lie only for a sum of Rs.5,000/-.  It is true that normally a person

would not tell a lie but in civil matters complainant was obliged to prove his claim by

preponderance of evidence. Complainant should have called for the statement of the

opposite party showing opening balance in ATM machine on 23.5.2010 and closing

balance on that day along with amount withdrawn which should have proved that

Rs.5,000/- were not received by the complainant and he got only a slip showing receipt

of the money.  When many other persons had withdrawn money from that ATM on that

day and none complained for not receiving money it cannot be presumed that

complainant did not receive Rs.5,000/- from the ATM machine. Complainant has not

proved any written protest made to the bank authorities immediately and has based his

claim only on the basis of information given on toll-free number of the opposite party.

6.       Exactly what message was given is also not on record.  Learned District Forum

allowed the complaint mainly on the ground that video footage were not furnished to the

complainant by the opposite party and the learned State Commission also observed the

same fact in the impugned order.  In this case, video footage had no relevance at all

because this is not the case of the complainant that he did not go to operate ATM

machine of opposite party.  Opposite party has also mentioned in its written statement

that camera is fixed only on the face of the user and not on the keys of the ATM and the

delivery window.  In such circumstances, non-supply of video footage had no bearing on

the claim of the complainant and on this deficiency claim could not have been allowed

by the learned District Forum and upheld by the learned State Commission.

7.       Consequently, petition filed by the petitioner/OP is allowed against the

respondent and impugned order dated 17.2.2012 passed by the learned State

Commission in F.A. No. 860 of 2011 is set aside and complaint of the complainant is

dismissed.  Parties to bear their own cost.

                                                                          ..………………Sd/-…………

( V.B. GUPTA, J)

PRESIDING MEMBER 

 

..……………Sd/-………………

( K.S. CHAUDHARI, J)

 MEMBERK

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHI

REVISION PETITION  NO. 2300  OF  2012

(Against the order dated 07.03.2012 in Appeal No. 905 of 2010of the State Commission Gujarat)

 

1.    Amitaben Dilipkumar Shah                    ........ PetitionersL.R. of Late Dilipkumar Rasiklal Shah 2.    Apexa Dilipkumar ShahL.R. of Late Dilipkumar Rasiklal Shah 3.    Smruti Dilipkumar ShahL.R. of Late Dilipkumar Rasiklal Shah 4.    Pratik Dilipkumar ShahL.R. of Late Dilipkumar Rasiklal Shah (all residents of 502, Nandishwardeep ApartmentParle Point, Surat)  

Vs.

Varachha Co.op Bank Ltd.                             ......... RespondentEffil TowerL.H.Road, Surat, GujaratThrough its Chief Manager / Branch Manager 

BEFORE:

 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON’BLE MR.SURESH CHANDRA, MEMBER  

For the Petitioners           :    Dr.Bipin K Dwivedi, Advocate

For the Respondent         :    Mr.Sanjay Mehta, Advocate

Dated :     30 th     January, 2013

 

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

Petitioners are legal heirs of complainant

Late Shri Dilip Kumar Rasiklal Shah.  They have preferred this revision petition against

the impugned order of Gujarat State Consumer Disputes Redressal Commission ( in

short, ‘the State Commission’) whereby State Commission allowed the appeal preferred

by the respondent bank herein against the order of District Consumer

Disputes Redressal Forum ( Additional) of Surat which reads thus:

“1.    The complaint by the complainant is allowed as under.

2.     The opponent in the case has allowed a withdrawl of Rs.1,68,450/- vide cheque no.7780 in the frozen Account No.4226.  The said amount shall be credited in the Deceased Complainant’s Account with interest as per rules and regulations of the bank effective Dt.09.08.2005.

3.     The opponents in the matter shall pay to complainants in all sum of Rs.10,000/- (in words Rupees Ten Thousand only) towards cost of the complaint and mental physical torture.

4.     The complainants as per relief prayed under complaint para -5 is not entitled to any additional relief.

5.     The opponent shall bear the cost of suit himself.

6.     The opponent shall comply the order within 30 days of this order”.

2.       Briefly put, the facts relevant for disposal of this revision petition are that late

complainant filed consumer complaint against the respondent – opposite party claiming

that he had an account bearing no.4226 with the opposite party, namely, Varachha Co-

op Bank Ltd, Varachha  Road, Surat.  That on 04.12.2004 complainant gave written

instructions to the respondent– bank stating that he had lost certain cheques, as such

no payment be made against those cheques from his aforesaid bank account without

his written consent. That therespondent bank recorded the numbers of the lost cheques

in their register.  Despite that, bank allowed withdrawl of Rs.1,68,450/- from the bank

account no. 4226 of the complainant against one of those lost cheques bearing no.

7780 without informing or obtaining consent from the complainant.

3.       The respondent – bank contested the complaint by filing a written submissions

denying the allegations.  

4.       The District Forum after hearing the parties and on the basis of the evidence

produced came to the conclusion that the opposite party bank had encashed the

cheque regarding which stop payment instructions were issued from the bank account

no. 4226 of the complainant without seeking consent from him.  This according to the

District Forum amounted to deficiency in service.  As such,  District Forum allowed the

complaint and passed the order reproduced above.

5.       Feeling aggrieved by the order of the District Forum, the respondent  bank

preferred an appeal before the State Commission and the State Commission concluded

that the instructions issued by the deceased – complainant to the bank vide letter dated

14.02.2004 were unclear and vague and as such there was no deficiency in service on

the part of the bank.  Accordingly, the State Commission accepted the appeal and set

aside the order of the District Forum and also dismissed the complaint.

6.       Learned Shri Bipin K Dwivedi, Advocate for the petitioner has contended that

order of the State Commission is perverse and against the facts.  He argued that State

Commission was not justified in setting aside the well reasoned order of the District

Forum holding deficiency in service on the part of the respondent  bank despite the fact

that petitioner had not only given clear instructions not to encash certain cheques

without his consent from his account which were claimed to have been lost particularly

when numbers of those cheques were got entered in the “unused cheques register”

maintained by the respondent – bank.  In support of this contention, learned counsel for

the petitioner has drawn our attention to the petitioner’s letter dated 14.02.2004 as also

the photocopy of the relevant entry in the unused cheques register maintained by the

respondent bank.  It is further contended that the State Commission has committed a

grave error in holding that in  a business city like Surat, the bank is not supposed to

seek confirmation from the customer before encashing the cheque irrespective of the

customer having requested the bank not to allow operation of the bank

account.  Learned counsel thus urged us to accept the revision petition and set aside

the impugned order of the State Commission accepting the appeal against the order of

the District Forum.

7.       Shri Sanjay Mehta, Advocate, learned counsel for the respondent  bank on the

contrary has argued in support of the order of the State Commission.  He has drawn our

attention to the letter dated 14.02.2004 addressed by late complainant to the bank and

submitted that the letter in question is vague inasmuch as it does not mention a specific

account number in the subject and at the bottom of letter, there are five account

numbers mentioned under a note asking upto date statement of account. It is contended

that from this letter no instructions regarding stop payment of any cheque is perceived

and as such bank was not at fault in enashing the cheque which was presented in the

year 2005.  Learned counsel for the respondent  bank further contended that mere entry

of the cheque number in the unused cheque register relates to A/c No 0503/4226 by

itself does not mean that there were any instructions not to make payment against the

cheques detailed therein.  Learned counsel for the respondent further contended that

whenever a duly signed cheque is presented for encashment before the bank, the bank

is under a legal obligation to encash the cheque failing which the bank would risk legal

proceedings by the beneficiary of the cheque issued by the account holder.  Thus it is

contended that impugned order does not suffer from legal or factual infirmity which may

call for interference by this Commission in its revisionaljurisdiction, scope of which is

limited. 

8.       In order to appreciate the rival contentions, it would be useful to have a look on

the relevant portion of the impugned order of the State Commission

which interalia reads thus:

“Now, it is also necessary to be decided that whether the responsibility of blame to be poured out on the Bank of any dispute between the Deceased Complainant and with his professional friends.  And any refund’s cheque number 775629 drawn on State Bank of Saurashtra for Rs. 1,68,476 by the Surat Municipal  Corporation and that was collected by the Architeet Parikshitlal Talati and that cheque was to be given to Deceased Complainant instead of that, has given to MansukhlalSanghani and that cheque was deposited in the Account No.4226 of Deceased Complainant and thereafter, that amount was withdrawn from the Account Number 4226 and while the aforesaid cheque deposited in the account of Deceased Complainant at the relevant time may have presented that cheque in the Bank to obtain amount with the signature of Deceased Complainant, so obviously information have to Deceased Complainant as to whose name that cheque is wrote and hence, the Deceased Complainant could have stopped payment of that cheque instead of unclear and vague language in the letter dated 14.02.2004.  And to be obtained written consent of deceased person for each and every cheque which may submit and arrangement of bank may disturb if every account holder may write letter according to that and it seems that now the  responsibility is being poured out on the bank in any dispute in respect of refund amount obtained from the Corporation.  And the learned Forum has recorded in their judgment that the Bank could have demanded more clarity regarding that letter for the aim of better services to be provided to the Deceased Complainant.  But that responsibility is not of the bank and account holder is bound to inform amount of cheque, date, number, account number in which person’s favour which has wrote, and hence  Learned Forum’s Judgment is not proper and justified and therei interfere is required, so the appeal is granted and final order is being passed”.

9.       On perusal of above, we find that the State Commission has accepted the appeal

against the order of the District Forum mainly for the reason that the instructions dated

14.02.2004 given by the complainant to the respondent bank was vague and it could not

be treated as clear instructions of ‘stop payment’. On careful consideration of record, we

find that aforesaid conclusion of the State Commission is erroneous as the State

Commission while arriving at the conclusion has ignored the fact that the numbers of

cheques stated to have been misplaced vide instructions dated 14.02.2004 were

recorded by the respondent bank in the unused cheque register officially maintained in

this regard.  Photocopy of the unused cheque register maintained by the respondent

bank is available on record.  On perusal of the aforesaid photocopy, we find that on

14.02.2004, the entry regarding seven unused cheques pertaining to the bank account

no.4226 of the complainant including cheque no.7780, which is the bone of contention

in this revision, was actually made by the respondent bank in the unused cheque

register pursuant to the instructions dated 14.02.2004 of the complainant.  From this, it

is obvious that the respondent bank actually understood the instructions given by the

complainant and it is because of the said reason, the entries pertaining to unused

cheques was made in the unused cheque register.  That being the case, the respondent

bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the

complainant addressed to the respondent bank.  From the above referred entry in the

unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully

aware that as per the instructions of the complainant, the cheques entered in the

unused cheque register were not to be encashed without first referring to the

complainant.  Admittedly, the respondent bank encashed one of those cheques bearing

no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without

referring to and seeking instructions from the complainant.  This in our view obviously

amount to deficiency in service.  The State Commission has allowed the appeal of the

respondent bank against the order of the District Forum without taking into account the

entries made in the relevant unused cheque register maintained in the bank.  Thus in

our view, the order of the State Commission suffers from material irregularity and is

unsustainable.  Accordingly, we accept the revision petition and set aside the impugned

order of the State Commission and restore the order of the District Forum.  No order as

to costs. 

                                                       …………………………     (AJIT BHARIHOKE,J)

       PRESIDING MEMBER 

                                                                   …………………………                                                        (SURESH CHANDRA)                                                                            MEMBER

Am/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   3844 OF 2012 ( From     order   dated 18.6.2012 in First Appeal No. A/12/113 of the Maharashtra State Consumer Disputes   Redressal     Commission ,     Mumbai)

Balkrishna Ramchandra Tavse R/o Ramchandra Bunglow, Sawat Plot, South Shivaji Nagar, Sangli

                                         … Petitioner (s)                                       Versus

1. Liquidator The Ichalkaranji Urban Co-op Bank Ltd. 7/129, Rajwada Road, Ichalkaranji 2. Mahavir Annaso Alse Manager, The Ichalkaranji Urban Co-op Bank Ltd. 7.129 Rajwada Road, Ichalkaranji 3. General Manager, Deposit Insurance Credit Guarantee Head Office Reserve Bank of India Bldg. 2nd Floor, Mumbai Central Post Office, P. Box. 4571, Mumbai

                                           … Respondent (s) 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER          HON’BLE MR. VINAY KUMAR, MEMBER

 

For the Petitioner (s)             :  Mr. Pramod Kumar Singh, Advocate

                                               

Pronounced   on :         1 St   February, 2013  

                                                O R D E R

1.      Shri Balkrishna Ramchandra Tavse, complainant/petitioner was the Managing

Director of Ichalkaranji Urban Co-op Bank Ltd..  He resigned from the said post on

24.4.2006.   The petitioner deposited various amounts with the Ichalkaranji Urban Co-op

Bank Ltd. while he was in service.  Those amounts were deposited from 24.4.2007 to

1.2.2008 in intervals.  The total amount deposited by the petitioner came to

Rs.11,52,000/-.  All those amounts were deposited in Fixed account with different rate of

interest.

2.      On the day he resigned from the bank i.e. on 16.4.2008 itself, the complainant raised

a loan against the said deposits amounting to Rs.10 Lakh.  As per the rules, the loan

against the Fixed Deposits was permissible upto the limit of 75% and in exception

circumstances, upto the limit of 90% of the loan.  The petitioner also moved an application

to the bank with the request to adjust the loan amount against his Fixed

Deposits.  Thereafter, the bank went into liquidation and the liquidator was appointed.

3.      The petitioner filed a complaint before the District Forum with the following prayers:-

                             “a) the present Revision Petition may kindly be allowed;

                             b) the order passed in consumer Appeal No. A/12/113 of 2012 passed by the Learned Maharashtra State Consumer Disputes RedressalCommission, Mumbai, may kindly be quashed and set aside and allow the present Revision Petition of the Petitioner by quashing and set aside the Judgment and order passed in the Consumer Complaint Application No. 328 of 2011 on 12.12.2011l;

                             c) the Respondent Bank be directed to adjust the amount of Fixed Deposit Receipts on the dates as and when they matured and correct the loan account of the Petitioner and submit the revised claim to the DICGCI for sanction.

                             d) the DICGCI be directed to sanction  the revised claim of the Petitioner after adjusting the amount of Fixed Deposit Receipts on the dates as and when they matured.

                              e) the cost of this petition of Rs.50,000/- be provided to the Petitioner.

                             f) the Respondent Bank be directed to pay Rs.50,000/- towards compensation for mental psychological harassment to the Petitioner.

                             g) Pass any other order and/or directions as this Hon’ble Commission may deem fit and proper.”

 4.      The District Forum dismissed the complaint.  Aggrieved by the order of the District

Forum, the complainant approached the State Commission, which, too, dismissed the

appeal. 

5.      We have heard the learned counsel for the petitioner.  First of all, he failed to show

that the petitioner was empowered to sanction the loan of 90% tohimself.  The petitioner

could not cite any such rule.  He, however, submits that the General Manager was

authorized to sanction the loan but it is apparent that he is not empowered to grant and

sanction in his own favour and that is to be sanctioned by some other authority. 

6.      Secondly, the fact that he had resigned from the Bank on the same day casts a flim of

doubt over his bona fides and there is no evidence to show that there was a meeting of

Managing Committee so as to sanction the loan as against the said Fixed Deposits.

7.      Furthermore, 90% loan was permissible under exceptional circumstances.  There is

nothing on record to demonstrate as to what were the exceptional circumstances for the

complainant to raise loan beyond 75%. 

8.      It is apparent that being the Managing Director, he was aware that the bank was

about to go in liquidation.  He tried to save his own skin and left the public in lurch.  He

cannot be given special status than the other creditors of the bank.  He will get the amount

according to is proportionate share.  If the complaint made by the complainant is permitted,

it would prejudice the interest of other creditors irretrievably. 

9.      Again, no permission under Section 107 of the Maharashtra Cooperative Societies

Act, 1960 was granted in favour of the complainant/petitioner.  The State Commission

rightly held “It is well established principle of law that whenever bank is under liquidation,

liquidator is supposed to liquidate the assets of the said corporate body and, thereafter, he

has to distribute those assets on pro rate basis so that every creditor should get due share

from the assets of the society.  If this is not done and if some of the creditors like the

complainant herein are preferred and they are paid without following the procedure of

liquidation, other creditors’ interest will be pre-judiciously affected and that will be contrary

to the spirit of law.   Complainant, thus, as appears, is interested in carrying out illegal

process of liquidating his assets.  This is not permissible under the law.  In fact for such a

complaint there is no permission granted of the Co-operative Societies Registrar.  Under

Section 107 of the Maharashtra Co-operative Societies Act, 1960 permission is very

specific.  In the present complaint such provision has been overlooked by the

complainant.  What we find that very approach of the complainant is fraudulent in

prosecuting the matter.  Co-operative Societies Act cannot be by-passed to

the deteriment and to the prejudice of all other creditors like the complainant.  Therefore on

careful reading of the letter dated 05.10.2011, we are of the opinion that the Registrar has

not granted permission to file legal proceeding as against liquidator in any court of law and

much more so before the Consumer Forum.  In view of this complaint is not  tenable and it

has been rightly dismissed by the District Consumer Disputes Redressal Forum.  Appeal is

also without any merits.  It is hereby rejected.”

10.    It is thus clear that the complainant has made vein attempt to pull the wool over the

eyes of law.

11.    The revision petition is therefore dismissed.

.…..…………Sd/-………………

(J. M. MALIK,J.)

                   PRESIDING MEMBER         

.…..………Sd/-…………………

(VINAY KUMAR)

                MEMBER

Naresh/reserved

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 

REVISION PETITION NO.   1814 OF 2012

( From     order   dated 14.02.2012 in First Appeal No. 751 of 2010 of the Punjab State Consumer Disputes   Redressal     Commission ,     Chandigarh)

State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager

                                          … Petitioner (s)

Versus

Meena Walia W/o Satish Walia Earlier residents of Mohalla Shorian Near Madir Janki Dass Present R/o 12 Karol Bagh, Jalandhar Road Kapurthala

                                                                 … Respondent (s)

REVISION PETITION NO.   1815 OF 2012

( From     order   dated 14.02.2012 in First Appeal No. 752 of 2010 of the Punjab State Consumer Disputes   Redressal     Commission ,     Chandigarh)

State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager

                                          … Petitioner (s)Versus

Dr. Jagtar Singh S/o Garib Dass 1183, Urban Estate Kapurthala

                                                                  … Respondent (s) 

REVISION PETITION NO.   1816 OF 2012

( From     order   dated 14.02.2012 in First Appeal No. 753 of 2010 of the Punjab State Consumer Disputes   Redressal     Commission ,     Chandigarh)

State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager

                                          … Petitioner (s)Versus

1. Ramesh Chander S/o Vishwa Mitter Kumar 11, Karol Bagh Jalandhar Road, Kapurthala

2. Sheetal Rattan W/o Sh. Ramesh Chander 11, Karol Bagh, Jalandhar Road,  Kapurthala

                                                    … Respondent (s) 

REVISION PETITION NO.   1817 OF 2012

( From     order   dated 14.02.2012 in First Appeal No. 754 of 2010 of the Punjab State Consumer Disputes   Redressal     Commission ,     Chandigarh)

State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager

… Petitioner (s)Versus

1. Deepak Rattan S/o Sh. Satpal 8, Link Road, Kapurthala 2. Monica Rattan W/o Sh. Deepak Rattan 8, Link Road, Kapurthala

                                      … Respondent (s)

REVISION PETITION NO.   1818 OF 2012

( From     order   dated 14.02.2012 in First Appeal No. 755 of 2010 of the Punjab State Consumer Disputes   Redressal     Commission ,     Chandigarh)

State Bank of India Railway Road Kapurthala-144601 Through its Chief Manager

                                          … Petitioner (s)

Versus

Munish Rattan, S/o Sh. Satpal Previously residing at 8, Link Road Now residing at 42 Urban Estate Kapurthala

                                                                  … Respondent (s)

BEFORE:

 

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBERHON’BLE MR. VINAY KUMAR, MEMBER

 

 For the Petitioner (s)             :  Mr. Rajiv Kapur, Advocate

  For the Respondent(s)                   : Mr. R. K. Kapoor, Advocate

                                                

Pronounced   on :         1 St   February, 2013  

                                                O R D E R

 

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      This order shall decide the above detailed five revision petitions, which entatil similar

facts and questions of law.

2.      The complainants, namely,  Meena Walia, Dr. Jagtar Singh,

Ramesh Chander and Sheetal, Deepak Rattan and Monica Rattan, Munish Rattan obtained

separate house loans in the year 2004-05 from the State Bank of India through its Chief

Manager, Railway Road, Kapurthala.  The opposite party/petitioner/bank had given two

options to the respondents-complainants for the repayment of the loan amount, firstly, the

loan was to carry floating rate of interest which could vary from time to time as per the

instructions of the Government and R.B.I. and the second was to opt for fixed rate of

interest, which was 1% more than the prevalent rate on house loan interest at that

time.  The complainants opted for the second option.  All the complainants paid

the instalments regularly.  The grievance of the complainants was that the opposite party

had illegally changed the rate of interest from 8% per annum to 8.5%, 8.75%,

9.25%, 9.75% and to 14.5% without any intimation to the complainants.  The complainants

had made an application in the year 2007 before the Bank for not changing the fixed rate of

interest as agreed between the parties.  A protest note was also sent to the opposite party-

Bank.  The grievance of the complainants is that excess rate of interest was charged from

them.

3.      On the other hand, the bank submitted that they are authorized to charge the

enhanced rate of rent as per memorandum of term loan of agreement.  Relevant part of

which is Clause 2(b) and Clause 2(o).  It was also submitted that vide letter dated

15.5.2009, the bank had intimated the complainants that it shall reset fixed rate of interest

in the end of every two years.

4.      Separate complaints were filed before the District Forum, which allowed the

complaints.  Vide order dated 6.4.2010, the District Forum directed the bank to charge

Fixed deposits rate of interest as mutually agreed between the parties and adjust the

amount of excess interest already charged by Bank. 

5.      Aggrieved by that order, the Bank filed 5 different appeals before the State

Commission.  The State Commission vide its order dated 14.2.2012 dismissed the

appeal.   Paras 26 and 27 of the impugned order are reproduced hereunder:

“26. In view of the above discussion, we are of the view that the orders under appeals are legal and valid and there is no infirmity in the same.  There is no ground to interfere in the impugned orders and the same are affirmed and upheld.  The appeals of the appellant are dismissed with costs of Rs.10,000/- each, which was paid to the each respondent within one month from the receipt of the copy of the order.

27. The said amount of Rs.10,000/- in each appeal be recovered from the official of the appellant, who tried his best to obtain the signatures of the respondent/consumer on the blank documents to cheat the respondent/consumer.  The act of the official was also against the ethics of the policies of the R.B.I.”

 

6.      Thereafter, they filed the above detailed revision petitions.

7.      We have heard the learned counsel for the parties at length.  Relevant portion of the

order dated 4.7.2012 of this Commission is reproduced hereunder:-

                            

“The counsel for the petitioner is further directed to file an affidavit of authorized officer as to how the rate of interest stood increased from 8% to 14.5% with certain intervals along with circulation issued by RBI.”

 

          More than 6 months have elapsed but the learned counsel for the petitioner did not

file the affidavit and the circulars issued by R.B.I.

8.      Both the parties were heard.  This is an undisputable fact that in the year 2004-05, the

parties entered into an agreement.  The complainants selected the second option for

payment of interest.  Consequently, the petitioner is entitled to charge 8% plus 1%.  Both

the counsel agreed to that proposal.  It may be also mentioned here that State Bank of

India could not produce any agreement wherein it was stated that after the lapse of two

years, the rate of interest would change or it would be taken as per R.B.I. guidelines.   The

bank cannot change it unilaterally.  The consent of the other party is required.  It should be

given an opportunity to ponder over the new rates.  The bank cannot enhance it

arbitrarily.  Furthermore, no circular form R.B.I. saw the light of the day.  No affidavit was

filed by the petitioner in support of his case.  Consequently, we hold that the petitioner is

entitled to get the interest @8% plus 1%, meaning thereby the total rate of interest is @ 9%

from the date of paying of the loan till its realization.

9.      Now, we advert to the second question raised by the parties which pertains

to para No. 26 and 27 of the order passed by the State Commission.  The costs imposed by

the State Commission are upheld but the same would not be recovered from the officers of

the petitioner.  Generally, it is seen that the public on its own accord signs the blank

documents.  They have no time to go through the entire documents.  They repose faith in

the bankers.  On the contrary, it is the duty of the customer to read over all the documents

and thereafter it should fix the signatures.  Nobody can compel any person to sign a blank

paper without reading it. One is supposed to have sign the papers with open eyes and at

his own peril.  Consequently, para 27 only is set aside.  The amount be recovered from

Bank itself but not from their officers.

10.    All the five revision petitions stand disposed of.  The bank is further directed to deduct

9% of the interest and return the money as well as costs to the complainants within 45 days

as ordered by the lower court otherwise it will carry interest @12% till its realization.   No

costs.

.…..……………Sd/-……………

(J. M. MALIK,J.)

PRESIDING MEMBER         

.…..…………Sd/-………………

(VINAY KUMAR)

           MEMBER

Naresh/reserved

NATIONAL CONSUMER DISPUTES RERESSAL COMMISSIONNEW DELHI  CONSUMER COMPLAINT NO. 74 OF 2012  Shiv Shankar Lal GuptaS/o Shri Bhagwan Lal GuptaR/o Flat No. 804,“Umrao Kamal Raj” Apartment8, Sardar Patel Marg, C-Scheme,Jaipur                                                                  …  Complainant Versus 1. Kotak Mahindra Bank Ltd.    Through its Managing Director    Registered office 36-38A,    Nariman Bhawan,    227, Nariman Point, Mumbai- 400021 2. National Head, (Saral Auto Loan Jaipur)    Kotak Mahindra Bank Ltd.    First Floor, Krishna Tower, 57,    Sardar Patel Marg, C-Scheme, Jaipur 3.Kotak Mahindra Bank Ltd.   Through its Associate   Vice President & Authorised Officer,   First Floor,   6, Vaishali Enclave,   Adjoining to Gulab Rewari Sweets,   Peetampura, New Delhi – 110034                …  Opposite Parties                                                      BEFORE:        HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER      HON’BLE MR. VINAY KUMAR, MEMBER        For the Complainant               :       Mr. Rajendra K. Salecha, Advocate                                             Pronounced on :     1 st   February, 2013   ORDER JUSTICE J. M. MALIK, PRESIDING MEMBER  

1.      We have heard the learned counsel for the complainant at a considerable

length.  To our mind, at least two questions have to be answered at the stage of

admission of this case.  First of all, whether the petitioner is a ‘consumer’?  Lastly, in

view of the Securitisation and Reconstruction of Financial Assets and Enforcement of

Security Interest Act, 2002, whether this Commission has jurisdiction to try this case?

2.      The facts of the case are these.  Shiv Shankar Lal Gupta, the complainant in this

case is a promoter of Clarity Gold Mint Ltd., a unit falling under SME Sector for the

purpose of setting up of its project of mint of gold and silver coins and manufacturing of

semi precious and precious stones studded jewellery. The complainant on account of

his requirement approached the Kotak Mahindra Bank, opposite party in this case, at its

Jaipur Branch for grant of loan interalia against the collateral security of immovable

property situated at plot No. 4 Sardar Patel Marg, C-Scheme, Jaipur.

 

 

3.      The opposite party-bank vide its letter dated 25.9.2008 conveyed the sanction of

term loan of Rs.500 lakh to the complainant carrying rate of interest i.e. flat rate of

9.18% which was to be repaid within a period of 60 months.  The complainant had to

mortgage his property in favour of opposite party bank.  The petitioner spent Rs. 5 lakh

and registration charges in the sum of Rs.25,000/-.  The opposite party paid back

Rs.16.40 lakh per month during the period from 1.12.2008 to 23.1.2010 i.e. in aggregate

Rs.196.80 lakh.  He further paid Rs.87 lakh during the period from 24.1.2010 to

28.7.2010.  The amount of Rs.283.80 lakh stood deposited.  The disbursement of

Rs.500 lakh took place on 24.10.2008.

4.      In the meantime, the complainant received communication dated 8.9.2010

christened as notice under Section 13(2) of the Securitisation and Reconstruction of

Financial Assets and Enforcement of Security Interest Act, 2002 from opposite party No.

3.         In the meantime, credit facility from State Bank of Indore which stands

mortgaged into State Bank of India were obtained and second charge of the same

property was extended or which the opposite party, bank having the first charge.  The

State Bank of India opposite party eluded to be straight about issuing No Objection

Letter for sale of the immovable property.  The complainant filed a writ petition before

the High Court. 

 

5.      The complainant being 80 years old wants to get out of the debts and liability

owed by the complainant and other institutions by disposal of the said property.  The

opposite parties have charged more interest than it was agreed between the

parties.  The complainant had made payment of Rs.4,16,81,775/- to the opposite

party.  After the said payment, further payment of Rs.11,03,531/- was also to be

made.  It also came to the notice of the complainant that the exorbitant charge in the

name of pre closure charges being Rs.16,14,361.44 was levied which the opposite

party bank made the demand under Section 13(2) of the SARFAESI Act, 2002 intending

to seek payment before end of the tenure of the loan i.e. 60 months which was to expire

only in September, 2014.  It is stated that statement of account filed by the petitioner is

not correct.  The petitioner sent a notice dated 16.8.2011 through its counsel where it

was stated that there was over charge of interest being 41.96 lakh and the bank is

under an obligation to refund the said amount alonwith interest @15% per annum from

4.11.2011.  The opposite party bank replied that the statement of account was

correct.  A notice was sent again and similar kind of reply was received.  It is contended

that the judgment of the Bombay High Court in respect of this case is not applicable. 

6.      The present compliant was filed with the following prayers. “(a) award principal amount of Rs.1,77,91,718/- (Rupees One Crore Seventy Lac Ninety One Thousand Seven Hundred Eighteen) towards the loss and damages suffered by the complainant on various counts as mentioned herein above.(b) award interest in favour of the complainant and against the Respondents the rate of 15% per annum on the aforesaid principal amount of Rs.1,77,91,718/- (Rupees One Crore Seventy Seven Lac Ninety One Thousand Seven Hundred Eighteen) from the date of filing of this complaint upto the date of actual and final payments by the Respondents and realization thereof by the complainant.(c) award a sum of Rs.2.50 lac towards the fees of the Advocate for contesting the present complaint.(d) award other litigation expenses as may be deemed just and expedient in the facts and circumstances of the present case.(e) award any other relief/s, as may be deemed just and expedient in the facts and circumstances of the present case so as to give full relief to the complaints.” 

7.      We have heard learned counsel for the complainant.  He has reiterated the above

said pleadings.  He argued that the house of the petitioner had been mortgaged and this

fact brings the complainant in the category of consumer as the question of house will

bring the case under the term earning his livelihood by means of self employment.

8.      We are unable to clap any significance to these arguments.   All his assumptions

are all wet.  The definition of consumer clearly specifically and unequivocally makes it

clear that it does not include a person who avails of such services for any commercial

purpose.  The

 

facts of the complainant itself speaks for themselves.  By no stretch of imagination, it

can be held that the above said loan was obtained by the complainant exclusively for

the purpose of earning his livelihood by means of self-employment.  One even with half

an eye can see that this is a commercial transaction/loan simplicitor.   The property

which has been mortgaged for obtaining the loan for commercial purpose has got no

connection with this aspect. 

9.      This is an indisputable fact that against the petitioner a case is pending under the

SARFAESI Act, 2002.n  The law puts a crimp in invoking the jurisdiction of Consumer

Commission.

10.    Section 34 of the Secuiritisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 reads as under:-“34. Civil Court not to have jurisdiction.-No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

 

 

 

11.    The civil court mentioned here also includes Tribunals and Commissions dealing

with civil matters.  There lies a rub and we cannot entertain this complaint.

12.    The complaint is therefore, dismissed.  It has become necessary to discourage the

institution of such like frivolous complaints.  These entail too much precious time of

National Commission.  We, therefore, impose costs in the sum of Rs.10,000/- to be

deposited with the Consumer Welfare Fund established by the Central Government

under Section 12(3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the

Central Excise Act, 1944 within three months from today, failing which it will carry

interest @9% per annum till its realization.  Learned Registrar of this Commission shall

see compliance of the order under Section 25 of the Consumer Protection Act, 1986...………………Sd/-…..………

     (J.M. MALIK, J.)      PRESIDING MEMBER

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

                                                                            MEMBERNaresh/

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION                                                NEW DELHI        

 

REVISION PETITION NO.   3196 OF 2012 (From the order dated 13.06.2012 in Appeal No.450/08 of the Maharashtra State Consumer Disputes Redressal Commission, Mumbai)

 

Bhudargad Taluka Co-Op. Credit Society Ltd.,

Mumbai.  Now known as Ashtabhuja

Nagari Sahakari Path Sanstha Maryadit, Mumbai

Through its Chairman

Mr. Shripatrao R. Divekar

212, Mahamadi Building, Dr. Ambedkar Road,

Lalbaug, Mumbai – 400 012

Maharashtra                                                                                                  …  Petitioner/OP

                                       Versus Shri Rajaram Bandu Khedekar

Power of Attorney Holder of

Mr. Bandu Khedekar and Prakash Khedeka

108, Parel Sahayadri CHS Ltd.,

Kasturba Gandhi Nagar

Maharashtra                                            … Respondent/Complainant

 

BEFORE

 

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

For the Petitioner:  Mr. D.A. Taur & Mr. Amol V. Deshmukh, Advocates

 

PRONOUNCED   ON     1 st   February,     2013

 O R D E R 

 PER   JUSTICE K.S. CHAUDHARI, MEMBER  

          This revision petition has been filed by the petitioner against the impugned order

dated 13.6.2012 passed by the Maharashtra State Consumer

Disputes Redressal Commission, Mumbai (in short, ‘the State Commission’) in Appeal

No. 450/08 – Rajaram Bandu Khedekar & Anr. Vs. Bhudargad Taluka Co-op. Credit

Society Ltd. by which while allowing appeal of the complainant, partly upheld order of

District Forum and modified it pertaining to rate of interest.

2.       Brief facts of the case are that complainant/respondent filed complaint before the

District Forum for refund of fixed deposit amounts kept by OP/petitioner who denied to

return money after maturity.  OP contested complaint and learned District Forum while

allowing complaint directed OP to return amount at Sr. Nos. 1 to 12 with interest at the

rate of 6% p.a. and further directed complainant to return excess amount of interest

received by him and further directed OP to return Rs.1,00,000/- against Item Nos. 13 &

14 along with 6% p.a. interest.  Complainant filed appeal against the order of District

Forum and learned State Commission vide impugned order modified rate of interest and

directed OP to refund amount of FDRs at Sr. Nos. 1 to 12 together with interest @ 17%

p.a. for first year and 12% p.a. on renewal till realising and further directed to return

Rs.1,00,000/- against FDRs at Sr. Nos. 13 & 14 with interest @ 12% p.a. from

20.7.2006.

3.       Heard learned Counsel for the petitioner at admission stage and perused record.

4.       Learned Counsel for the petitioner submitted that learned State Commission has

committed error in awarding 17% and 12% interest p.a. against the rules as deposits

were not renewed by the Board of Directors, hence, petition may be admitted.

5.       Perusal of record reveals that complainant deposited amount from 1999 to 2001

with the OP and amount of FDR from Sr.No. 1 to 12 was to be returned after one year

and amount of FDR at Sr. Nos. 13 & 14 was to be returned after 5 years.  It appears

that amount was not returned on the maturity due to financial crunch and FDRs were

renewed from time to time by management.

6.       Admittedly, deposits were made @ 17% p.a. for the first year.   As per F1.13 of

the model bye-laws of the Society, after the expiry of period of fixed deposit if the Board

of Directors do not accept the deposits for further renewed period, interest was payable

at the rate applicable to saving account. Admittedly, Manager of the OP renewed the

FDRs for many years on account of financial crunch and in such circumstances it

cannot be believed that deposits were not renewed by Board of Directors.  Learned

Counsel for the petitioner could not place any letter issued by Board of Directors to the

complainant depicting non-acceptance of deposits and direction to receive money.  In

such circumstances, only because some action has been taken against the Manager of

the Petitioner, it cannot be inferred that FDRs were renewed in connivance with the

Manager against bye-laws but it appears that FDRs were renewed on account of

financial crunch and in such circumstances, complainant was entitled to receive higher

rate of interest than the rate of interest applicable to saving account. Learned State

Commission has not committed any error in allowing higher rate of interest.  I do not find

any infirmity, illegality, material irregularity or jurisdictional error in the impugned order

and revision petition is liable to be dismissed at admission stage.

7.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.  

..……………Sd/-………………

( K.S. CHAUDHARI, J)

PRESIDING  MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 2195 OF     2011 (Against the order dated 21.12.2010  in  Appeal No.FA-09/594 of the State Commission, Delhi) G.D.Grover C-54, Sudarshan Park, New Delhi -110015

…..PetitionerVersus

IDBI 1 Red Cross Road, Near Parliament New Delhi              …..Respondent

 

BEFORE:

      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER      HON’BLE MR.VINAY KUMAR, MEMBER       

For the Petitioner:           In person

For the Respondent:   Mr. Sumnesh Kumar, Advocate

 PRONOUNCED ON:      06-03-2013 ORDER

PER MR. VINAY KUMAR, MEMBER                          

1.      The consumer complaint was first decided on 3.7.2007. It was remanded by the

State Commission for fresh consideration. The District Forum decided it again on

8.7.2009. Appeal of the Complainant against it, was decided by the State Commission

on 21.12.2010. The complaint has been dismissed by both. The RP/Complainant is now

before us against the two concurrent orders.

2.      This Commission had first provided the petitioner the assistance of an amicus

curie on his request. Later, he chose to argue his case in person. Mr Sumnesh Kumar,

Advocate has been heard on behalf of the RP/OP. We have also perused the records,

including the written submissions of the two sides.

3.      Facts, as seen from the record are that the revision petitioner and some other

members of his family had subscribed to a deep discount bond floated by the

respondent/OP, IDBI. These were 25 year bonds issued in 1992, for Rs 2700 each, with

face value of Rs 1 lakh as on 31.3.2017. But, the IDBI had the option to redeem them

earlier, at the end of every five years. The genesis of the present dispute lies in the

decision of the IDBI to redeem the bonds after 10 years, cutting their run by 15 years. In

a letter of 28.2.2006, the OP informed the complainant that the bonds are redeemed

and no further interest would be paid beyond 31.3.2002.Under the IDBI scheme, as

originally issued in 1992, each bond would have grown to Rs !2,000 at the end of 10

years and Rs 25,000 at the end of 15 years. Therefore, on 23.12.2008, in the course of

the proceedings before the District Forum, the complainant was paid at the rate

of Rs 25,000 per bond, which he received under protest.

4.      The District Forum dismissed the complaint on 8.7.2009, holding that—

“We have gone through the bonds which are admitted by both the parties.  On perusal of bonds, it is clear that the end of 15 years from 31.3.1992, the bond holder will get Rs.25,000/- each.  In these bonds, there are no terms & condition or any clause has been made in these bonds that in case amount is not paid after stipulated period, O.P. shall pay any interest.

Admittedly the amount of the bond of Rs.25,000/- each has been paid in December, 2008 when the Complainant surrendered the bonds and since there is no determination or any condition in the bonds which has an agreement between Complainant and Opposite Party with regard to the payment of the interest.  Even if the payment is not made after the stipulated period, the Complainant is not entitled to claim any interest.  Hence, the Complaint is dismissed.”

5.      The complainant’s appeal is also dismissed by the State Commission for the

following reason—

“As is evident from the history of the case noted above, this complaint was filed on 17.10.2006 with the grievance that the respondent vide letter dated 28.2.2006 intimated that the company had decided to redeem the bonds w.e.f. 30.2.2001 and wanted to pay only Rs.12,000/- while the amount becomes Rs.25,000/- on 31.3.2007. The appellant has since been paid Rs.25,000/- each against these bonds in December 2008 when he surrendered those bonds which he had purchased on payment of Rs.2700/- each in 1992.  As already held by this Commission in order dated 5.8.2008, the formula applicable for determining liability is reproduced above which specifically states deemed face value of the bond in case of redemption, which is Rs.12,000/- at the end of 10 years and Rs.25,000/- at the end of 15 years and that is also referred to and relied upon by the appellant himself in his complaint as well as this appeal.  This formula specifically stipulates that on receiving the amount specified therein, liability of the respondent under the bond will stand extinguished fully.  There is no term or condition or stipulation anywhere that on payment made anywhere in between those specified period, the investor is entitled to anything above or more than the specified deemed face value of the bond.  There is no infirmity or illegality in the impugned order.  The appellant’s own calculation as to how the amount become due per month during the period of every five years does not help him as it is nowhere his case that the respondent has agreed to make payment as per his calculation, and in absence of any agreement between the parties or law on the point, the respondent cannot be saddled with any such liability.  In any case, his original complaint stands satisfied when he received payment of Rs.25,000/- each against bonds, as claimed in his complaint.”

 

6.      While assailing the order of the fora below, the revision petitioner states

that “payment for delayed period not mentioned in the terms and conditions while

issuing the bonds by IDBI which is a hidden point by all means, therefore, in the event

of missing the important clause, the benefit goes to the investor and the law of justice

takes place...”  Thus, the petitioner is aware that there was nothing in the terms and

conditions requiring the IDBI to pay interest for delays in payment of the bond. However,

he relies upon award of 10% interest in the first order of the District Forum passed on

3.7.2007. What he has chosen to ignore is that the question of payment of interest from

2002 became redundant when the complainant was paid at the rate of Rs 25,000 per

bond, which was the cumulative value of the bond in 2007.

7.      The revision petition also raises a question why IDBI has not paid interest for the

delay of 21 months from March 2007 to December 2008. We do not see any merit in

this contention as admittedly he had received the letter of 28.2.2006 informing him

about redemption of the bonds and stoppage of any further liability to pay interest. In his

written submission before us, he does not stop at 2007 and even goes further. He has

placed on record his computation for the entire original duration of 25 years for the life

of the bonds. In the light of the fact that the respodent/IDBI had already chosen to

exercise its right to redeem the bonds at the end of 10 years, this 25 year computation

is nothing more than an exercise in futility.

8.      It is argued on behalf of the respondent/IDBI that the complainant cannot claim

that no individual intimation of recall of the bonds was given to him. The notice was sent

to him under certificate of posting. Yet the respondent had paid the value of the bonds

as of 2007.

9.      In the light of the details examined above we find that the revision petitioner has

failed to make out any case against the impugned order. The revision petition is

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

………Sd/-……………     (J. M. MALIK,J.)     (PRESIDING MEMBER)

                                                                    ……………Sd/-….……………

                                   (VINAY KUMAR)           MEMBER

SB/-s

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION No. 1879 of 2011

(From the order dated 07.04.2011 of the Punjab State Consumer Disputes Redressal Commission, Chandigarh in Appeal no. 1198 of 2010)

Kulwant Singh Son of Nagahla Singh Resident of V P O Ramgarh Chandigarh Road Ludhiana 141123

Petitioner

  Versus

1.   Indian Overseas Bank Through its Chairman/Managing Director Central Office P B no. 3761 763 Anna Salai Chennai 600002

 2.   Chief Regional Manager Indian Overseas Bank Regional office: 550/1 College Road Ludhiana

 3.   Chief  Manager Indian Overseas Bank Brown Road Branch Ludhiana

Respondent (s)

 

BEFORE:

          HON’BLE MR JUSTICE V B GUPTA            PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

 

For the Petitioner                               IN PERSON

 

For the Respondent                            Mr A P Mukundan, Advocate

 

Pronounced on 11 th   March 2013

ORDERREKHA GUPTA

          This revision petition is filed against the order dated 7 th April 2011 passed by the

Punjab State Consumer Disputes Redressal Commission, Chandigarh (in short, ‘the

State Commission’) in appeal no.1198 of 2010.

2.       The petitioner/complainant has stated that the petitioner is an enlisted contractor.

He had been granted a contract by the Irrigation Department of the Madhya Pradesh

Government. A dispute arose between the petitioner and the State of Madhya Pradesh.

The petitioner moved the matter before arbitration. The same was decided on

19.07.1994 in his favour by the M P Madhyasham Adhikaran Adhiniyam (Madhya

Pradesh Arbitration Tribunal), modified on the basis of application dated 30.08.1984

vide order dated 12.07.1995. The petitioner filed an execution petition before the District

Judge, Bhopal for recovery of the decretal amount. In the meanwhile, the State of

Madhya Pradesh filed a revision petition in the Hon’ble High Court of Madhya Pradesh.

The same was dismissed vide order dated 22.10.2003. The Hon’ble District Judge,

Bhopal had directed the petitioner to furnish bank guarantee to the tune of

Rs.1,37,000/-. The petitioner who had Fixed Deposits with the respondent no. 3,

approached the Bank which furnished the Bank guarantee to the tune of Rs.1,37,000/-

vide deed dated 08.11.1997. The Bank guarantee was valid till 08.05.1998. FDR of the

petitioner was being renewed from time to time. FDR was renewed on 06.11.1995 for

Rs.1,04,550/- vide FDR bearing no. 0305394/RDP/740/95, interest @ 12.5% per annum

compounded quarterly. The maturity date was 05.02.1998. The respondents were

bound to return the FDR to the petitioner after 05.02.1998. Instead, the respondent with-

held it as a surety for the Bank guarantee furnished by it. The respondents had been

renewing the FDR on their own without instructions or permission of the petitioner. They

had been crediting interest in his account on the basis of simple interest, annually,

whereas they were liable to pay interest, compounded, quarterly. The Bank had been

calling for the original Bank guarantee before the FDR could be released. The Bank

guarantee was in the record of the District Judge, Bhopal. The same could not be

delivered to the Bank. Ultimately, the complainant procured the original Bank guarantee

from the Court at Bhopal and delivered the same to the respondent no. 3. But instead of

returning the FDR, the respondent no. 1 demanded the release order of the Court

before any step could be taken to return the FDR. Finally, the petitioner obtained the

release order as well.

3.       The respondents on the other hand has stated as under:

4.       The petitioner had not invested any money with the respondent and rather he

furnished 2 FDRs no. 1012/97 dated 07.11.1997 for Rs.5,000/- and 740/952 dated

06.11.1993 for Rs.1,04,550/- assessed as Rs.1,32,381/- as per present value of that

time. There was no condition of interest at the rate of 12.5% per annum compounding

quarterly on the said FDRs. The respondent Bank was liable to pay interest on the said

amount as per rules.

5.       The respondent Bank has rightly taken the FDRs as surety for the Bank

guarantee and same was released as per the request made by the petitioner along with

interest calculated upto date. The respondent bank has been crediting interest in the

account of the petitioner as per the rules and regulations of the Bank and Reserve Bank

of India.

6.       It is wrong that the petitioner received the amount of Rs.2,33,433/- under protest.

7.       The District Consumer Disputes Redressal Forum, Ludhiana (in short, ‘the District

Forum’) vide its order dated 11.09.2008 has stated as follows:

8.       That the respondent justified the retention of the Bank guarantee, on the grounds

that the petitioner/complainant failed to return the original bank guarantee obtained by

him in favour of the court of District Judge, Bhopal and that he also failed to bring the

discharge letter from the beneficiary, i.e., the court of District Judge, Bhopal. Such

discharge letter was required from the District Judge, being Government agency, as

bank guarantee could have been utilised by the court of District Judge, Bhopal, upto 30

years from the date of expiry of bank guarantee. It was also contended that rate of

interest was rightly calculated and paid as per norms and instructions of the Reserve

Bank of India, with which opposite party bank is bound.

9.       The respondent in support, have taken defence of section 28 of the Indian

Contract Act, as amended on 08.01.1997. Implication of that provision of section 28 of

the Indian Contract Act was brought to the notice, of its branches, by respondent no. 1 –

Bank. It was circulated, to the branches, to eliminate all the Bank guarantee (LGs) on

receipt of original LGs from the beneficiary duly cancelled on receipt of discharge letter

from the beneficiary addressed to the bank.

10.     Attention, by respondent, was also invited to another circular dated 15.02.2000 of

respondent no. 1 addressed to all its branches, intimating that Bank guarantee (LGs)

should be eliminated only after receiving original LGs or discharge letter from the

beneficiary or after expiry of normal limitation period of 3 years for non-Government

beneficiary and 30 years for Government beneficiary, from the date of expiry of LGs.

11.     The District Forum dismissed the complaint stating that “insistence of opposite

party to seek discharge receipt from the beneficiary of bank guarantee and its return in

original, in the circumstances of the case, was justified”. We cannot as such accuse the

respondent of not rendering proper services to the complainant. Consequently, we find

no merit in the complaint and, therefore, the same stands dismissed.

12.     Aggrieved by the order of the District Forum the petitioner filed an appeal before

the State Commission.  The State Commission also found that there was no dispute

that the bank guarantee was issued to the District Judge Bhopal, as such without the

discharge voucher the respondent could only pay the maturity amount to the petitioner

after the period of 30 years. The State Commission did not find any infirmity in the order

of the District Forum and as the respondent had already paid the interest on the FDRs

amount as per the rates of interest which were applicable from time to time when the

amount of the petitioner remained deposited with respondent no. 3. The State

Commission also came to the conclusion that the appeal of the petitioner was meritless

and as such the same was dismissed without any other costs.

13.     We have heard the petitioner who is present in person and also the learned

counsel for the respondent.

14.     The admitted aspect of the case are that the petitioner obtained bank guarantee

from the respondent no 3 in favour of the court of District Judge, Bhopal to the tune of

Rs.1,37,000/- vide deed dated 08.11.1997 and the guarantee was

valid upto 08.05.1998. Before issuing the bank guarantee, respondent no. 3 obtained

from the petitioner, the original fixed receipt dated 06.11.1995 for Rs.1,04,550/- carrying

12.5% interest with maturity date of 05.02.1998.  FDR was returned and the amount

was released on 01.11.2006.

15.     The complainant has placed on record many letters for release of the FDRs.  But

action of the respondent in not returning the Bank guarantee of the petitioner on his

demand initially is justified because he was required to obtain discharge letter from the

court of District Judge, Bhopal as well as original Bank guarantee duly

cancelled. Because, despite Bank guarantee being for a particular period upto a

particular date, it should have been enforced by the court of District Judge,

Bhopal upto 30 years. When the petitioner, as per his admission produced the original

Bank guarantee and returned to the respondent no. 3 and also discharge certificate

from them, the FDR should have been released in his favour.

16.     After 05.02.1998 on which date, this FDR would have matured, it was being

renewed from time to time by the opposite party. We may state that it was in the interest

and benefit of the complainant. Otherwise, he would not have been entitled for further

interest on the amount of FDR, on its maturity on 05.02.1998. It is also a matter of

common knowledge that the bank would be liable to pay interest on the amount of FDR,

as prevalent on the date of renewal, as per instructions of the Reserved Bank of India.

The respondent has brought on record, copy of ledger account of the term deposit of

the complainant Ex. R 2 to Ex R 7, specifying what rate of interest was given to the

complainant on his FDR amount. Sometimes on renewal, interest was paid @ 8.50%,

6.75%, 5% or 4.75% per annum. Had the respondent bank not renewed the FDR, then

the complainant would not have been competent to seek interest on the amount of FDR

after its maturity on 05.02.1998. We cannot consider in these circumstances,

that unilaterally, alterations in case of term deposit, regarding interest were made by the

respondent bank.

17.     The grouse of the petitioner is that the Bank guarantee was issued by respondent

no. 3 for six months on 08.11.1997 and the period of the Bank guarantee was not

extended by respondent no. 3 nor any request was made by the petitioner for the

extension of the period of Bank guarantee, as such the petitioner was entitled for the

maturity amount of the FDRs on 09.05.1998.

18.     The petitioner could not produce any evidence or circulars of the respondent

Bank or the Reserve Bank of India that the petitioner was entitled for the interest @

12.5% quarterly compoundably on the FDRs. The petitioner has also not produced any

circulars of the respondent or the RBI to controvert the version of the respondents that

the respondents had not paid any interest on the FDR to the petitioner and the rate of

interest applicable on the FDRs time to time for the period when the amount remained

with the respondent no. 3. The original Bank guarantee and release order of the Court

were finally handed over by the petitioner to the respondent on 03.08.2006.  Thereafter,

the respondent released the amount of Rs.2,33,433/- on 01.11.2006 to the petitioner.

19.     In the facts of the case, we find no infirmity or illegality in the order of the State

Commission warranting our interference. Accordingly, the revision petition is dismissed,

with cost of Rs.5,000/-.

20.     Petitioner is directed to deposit the cost by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said cost within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

20.     List on 26th April 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

 

 

Sd/-

………………………………..

[Rekha Gupta]

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

CONSUMER COMPLAINT NO. 171 OF 2010

WITH

    I.A. No. 1762 OF 2013 & I.A. No. 1810 OF 2013

(Modification of order & Direction)

 

1.      B.L. Joshi, 6, Braemar Avenue Alperton, Wembley, Middx London (U.K.)HAO 4

QN

 

2.      S.L. Joshi (since deceased) through Legal heirs B.L. Joshi and D.L. Joshi 6 and 8,

Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4 QN

 

3.      K.B. Joshi 6, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4

QN                                

 

4.      D.B. Joshi 19, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4

QN

 

5.      Krishna B. Joshi 4, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)

HAO 4 QN

 

6.      Bina (UMA) B. Joshi D/o B.L. Joshi 6 Braemar Avenue, Alperton, Wembley, Middx

London (U.K.)HAO 4 QN

 

7.      D.L. Joshi 8, Braemar Avenue, Alperton, Wembley, Middx London (U.K.)HAO 4

QN

 

8.      Ravindra D. Joshi, 8 Braemar Avenue, Alperton, Wembley, Middx London (U.K.)

HAO 4 QN

 

9.      Charulata D. Joshi, daughter of D.L. Joshi, 8 Braemar Avenue, Alperton,

Wembley, Middx London (U.K.)HAO 4 QN                                 … Complainants

 

Versus

1.      Bank of India, Kedareshwar Road, P.O. Box-18, Pobandar –360575 through its

Director,

 

2.      The Zonal Manager, Bank of India, Para Bazar, M.G. Road, Rajkot-360001.

 

3.      The Chairman, Bank of India, Star House, “G” Block Bandra Kurla Complex; Near

National Stock Exchange, Bandra (East) Mumbai-400051

… Opposite Parties

 

 

CONSUMER COMPLAINT NO. 172 OF 2010

WITH

I.A. No. 1763 OF 2013

(Modification of order)

 

B. L. Joshi (U.K. Limited) 212/214, Ealing Road, Alperton, Wembley, Middx London

(U.K.) HAO 4 QG Through its : Managing Director, Dayaram Liladhar Joshi And also

Through its : Directors,  Ravidra D. Joshi, Dr. Mrs. Krishna G. Thanky, Daksha B. Joshi,

All through General Power of Attorney Holder Jaysukh Bhimji Modha, R/o Porbandar,

Gujarat (India)

                         … Complainant

                  Versus

1.      Bank of India, Kedareshwar Road, P.O. Box-18, Pobandar –360575 through its

Director

 

2.      The Zonal Manager, Bank of India, Para Bazar, M.G. Road, Rajkot-360001.

 

3.      The Chairman, Bank of India, Star House, “G” Block Bandra Kurla Complex; Near

National Stock Exchange, Bandra (East) Mumbai-400051

                        … Opposite Parties

 

CONSUMER COMPLAINT NO. 173 OF 2010

WITH

I.A. No. 1764 OF 2013

 (Modification of order)

 

Glayland Ltd. S.A., 19 Braemar Avenue Alperton Wembley, Middx, London (UK) HAO

4QG, Through its Managing Directors U.B.Joshi & Dr.Girishchandra A.Thanki  &

Also through its Director Daksha M.Thanki

All Through General Power of Attorney Holder

Jaysukh Bhimji Modha, Porbandar                                     … Complainant

 

Versus

1. Bank of India, Kedareshwar Road P.O.Box 18, Porbandar, Through its Director

 

2. The Zonal Manager, Bank of India Para Bazar, M.G. Road, Rajkot

 

3. The Chairman, Bank of India, Star House ‘G’ Block, Bandra, Kurla Complex, Near

N.S.E. Bandra (East), Mumbai                                                        … Opposite Parties

 

CONSUMER COMPLAINT NO. 174 OF 2010

WITH

I.A. No. 1765 OF 2013

 (Modification of order)

 

Glayland Ltd. S.A., 19 Braemar Avenue Alperton Wembley, Middx, London (UK) HAO

4QG, Through its Managing Directors

U.B.Joshi & Dr.Girishchandra A.Thanki  &

Also through its Director Daksha M.Thanki

All Through General Power of Attorney Holder

Jaysukh Bhimji Modha, Porbandar                                     … Complainant

 

Versus

1. Bank of India, Kedareshwar Road P.O.Box 18, Porbandar, Through its Director

 

2. The Zonal Manager, Bank of India Para Bazar, M.G. Road, Rajkot

 

3. The Chairman, Bank of India, Star House ‘G’ Block, Bandra, Kurla Complex, Near

N.S.E. Bandra (East), Mumbai

                                                        … Opposite Parties

 

 

BEFORE:

HON’BLE MR.JUSTICE  J. M. MALIK, PRESIDING MEMBER

HON’BLE MR.VINAY KUMAR, MEMBER

        

For  Complainants in all cases : Mr. Deepak Aggarwal, Advocate

 For Opp. Parties in all cases    : Mr. Sudarsh Menon, Advocate

 

 

PRONOUNCED ON_01.04.2013

 

                                                 O R D E R

 JUSTICE J.M. MALIK

1.      Can a Consumer Court set aside the ‘compromise’ entered into between the

parties, pursuant to the order  passed by the learned DRT? Can it set aside the order

rendered by the DRT itself?  Can it modify the directions given by the Hon’ble High

Court of Gujarat?

 

2.      This order shall decide four complaints, above mentioned, which entail the same

questions of law and fact.  All the complainants, namely, B.L. Joshi, S.L.Joshi,

D.V.Joshi, (since deceased) through Legal Heirs B.L.Joshi & D.L.Joshi, K.B.Joshi,

D.B.Joshi, Krishna B.Joshi, Bina (Uma) B.Joshi,  Ravindra D.Joshi and Charulata

D.Joshi, in Consumer Complaint No.171 of 2010 and again B.L. Joshi, through its

Managing Director, Dayaram Liladhar Joshi and also through its Directors, Ravindera B.

Joshi, Dr.(Mrs.) Krishna G.Thanky, Daksha B.Joshi, all through General Power of

Attorney Holder, Jaysukh Bhimji Modha in Consumer Complaint No.172 of 2010,

Glayland Ltd. (S.A.), London, U.K., through its Managing Director, U.B. Joshi and Dr.

Girshchandra A. Thanki and through its Director Daksha M. Thanki all through General

Power of Attorney Holder, Jaysukh Bhimji Modha in Consumer Complaint No.173/2010

and Glayland Ltd. (U.K.) through its Managing Director, Dayaram Liladhar Joshi  and

Ravindra D.Joshi, Dr.(Mrs.) Krishna G.Thanky, Daksha B.Joshi, Directors, all through

General Power of Attorney Holder Jaysukh Bhimji Modha, filed the present four

complaints in this Commission on 17.09.2010.

 

3.             Case No. 171 of 2010:

          All the complainants are Non-Resident Indians (NRIs).  They had deposited

Rs.89,70,000/- in the monthly Income Certificates/Double Benefit Certificates with the

Bank of India, Porbandar Branch, OP1.  The Zonal Manager and the Chairman, Bank of

India have been arrayed as OPs 2 & 3.  Monthly interest on receipts was to be credited

in an NRE Savings Bank Account No. 2410, so that complainants may withdraw the

same.  The amount was deposited on different dates.  On the respective due dates, the

complainants requested the OP Bank to pay the receipts and transfer the funds to

Syndicate Bank, Porbandar Branch.  The Bank did not do the needful. Consequently,

the complainants were constrained to file a Civil Suit No. 102/1999 before the Civil

Judge, Porbandar.  The complainants also could not withdraw the monthly interest

amount in the sum of Rs.37,01,908.84 which was lying in their Account No.2410.  On

the contrary, the OP Bank went on renewing the aforesaid receipts after original dues in

an arbitrary, illegal and negligent manner, without approval and consent of the

complainants.  Finally, OP paid Rs.3,39,75,316/- to the complainants in respect of the

above said six receipts on 04.01.2008.  However, the prevailing rate of interest on

original due dates was 16% p.a. on a NRE Term Deposit.  The Bank should have

renewed the above said receipts  at 16% p.a. from the original due dates till the date of

payment, i.e. 04.01.2008.  It is contended that as a matter of fact, at the above said

rate, the amount due to the complainants came to be Rs.7,49,44,494/-.  The Bank  is

yet to pay a sum of Rs.4,09,69,178/-.

 

4.      In the meantime, the Civil Suit was withdrawn as per the settlement reached

between the parties.  The above said deposits were detained by the Bank on the pretext

of default in the account of  M/s.Jupiter Cement Ltd.  However,  the complainants

formed a separate legal entity and were in no way connected with M/s.Jupiter Cement

Ltd.  The Bank vide proposal dated 01.12.2007 had given proposal for settlement of

dues concerning M/s. Jupiter Cement Ltd, as well as list of deposits under

reference.  Thereafter, on acceptance of the same by the Guarantor of M/s. Jupiter

Cement Ltd., under protest, the deposits were released on 04.01.2008 and

amounts were paid as detailed above. 

 

5.      The Bank illegally retained a sum of Rs.3,39,75,316/-.  The cause of action to file

the present complaints is a recurring one. The complainants also approached the High

Court of Gujarat at Ahmedabad, vide Special  Civil  Application  wherein the Hon’ble

High Court of Gujarat at Ahmedabad was pleased to order that “let petitioner be

approached in respect of grievances raised in all four petitions, the appropriate forum, in

accordance with law”.  This order was passed on 31.07.2010.  It was further ordered

that in view of the above said observations, “the petitions filed by the complainants are

disposed of by the Hon’ble High Court without expressing any opinion on merits”.  The

present complaint (CC No. 171/2013) was filed with the following reliefs:-

(a)   To grant rate of interest @ 16 percent with quarterly

compounding from original due date of amount and pay the

difference between amount payable as per the above rate and

amount already paid as per the bank’s calculations. Difference

amount comes to Rs. 4,09,69,178.00 only.

(b)   to grant suitable compensation for loss of reputation,

embarrassment, harassment etc. meted out to the complainants

by the respondent Bank.

 

(c )  Any other relief which this Hon’ble Forum deem fit in the

circumstances of the case may also be granted in favour of the

complainant and against the respondent Bank.

 

6.             Complaint No. 172 of 2013:

          Complainant Company, i.e. B.L. Joshi UK Ltd. Overseas Corporation Body

deposited Rs.48.00 lakhs with the OP Bank under Double Benefit Deposit Scheme,

NRE as follows:-

 

 

Sl. No. Receipt No. Amount (I

n Rs.)

Date of

deposit

Maturity

value

Rate of

interest

Maturity

value

(In Rs.)

1. DBD

25/475

10,00,000 19.11.87 18.11.93 13% 21,54,600/-

2. DBD

25/476

10,00,000 19.11.87 18.11.93 13% 21,54,600/-

3. DBD

25/477

10,00,000 19.11.87 18.11.93 13% 21,54,600/-

4. DBD

25/478

10,00,000 19.11.87 18.11.93 13% 21,54,600/-

5. DBD

26/60

08,00,000 05.02.88 13.01.94 13% 17,23,680/-

  Total : 48,00,000       1,03,42,080

 

7.      On the maturity date, i.e. 13.01.1994, the complainant company asked the OP

Bank to pay the Term Deposit Receipts as per terms of the contract and remit the entire

fund to City Bank, Switzerland from whom it availed certain credit facility.   The Bank

failed to comply with the request made by the complainants and continued to defy the

instructions continuously for a period of about 14 years.  The deposits receipts were

finally paid on 04.01.2008 with a delay of 14 years, approximately.  The Bank  kept on

renewing the FDRs arbitrarily.  The principal, plus interest was at 16% p.a. compounded

from 18.11.1993 to 04.01.2008, which came to Rs.8,24,72,345.10.  The Bank paid a

sum of Rs.4,30,40,159.78.  It did not give the remaining amount of

Rs.3,94,32,185.32.  In this case too, Civil Suit was filed and was withdrawn and in view

of the proposal/settlement given by the Bank.  The deposits were detained due to the

pending Account of M/s. Jupiter Cement Ltd.  The money was released after settlement

with M/s. Jupiter Cement Ltd.  Ultimately, the present complainants filed the present

complaint and the following reliefs were claimed :-

               

(a)     To grant rate of interest @ 16 percent with quarterly

compounding from original due date of amount and pay the

difference between amount payable as per the above rate and

amount already paid as per the bank’s calculations. Difference

amount comes to Rs. 3,94,32,185.32 only.

(b)     To grant suitable compensation for loss of prestige,

harassment and credibility of the company, its Directors and

Shareholders.

(c)     Any other relief which this Hon’ble Forum deems fit in the

circumstances of the case may also be granted in favour of the

complainant and against the respondent Bank.

 

8.             Consumer Complaint No. 173 of 2013

 

In Consumer Complaint Case No. 173 of 2013, Glayland  Limited S.A. (Zurich),

Overseas Corporate Body (OCB)/complainant, deposited Rs.75.00 lakhs with the OP,

Bank, Porbandar Branch on 05.06.1986 under NRE Monthly Income Certificate Deposit

Scheme for a period of 120 months at interest rate of 13% per annum.  Monthly interest

on this deposit came to Rs.80,736/- which was to be credited in the current account of

the complainant company and the due date was 05.06.1996. On 05.06.1996 the

complainant asked the Bank  to pay the maturity value of Rs.75.00 lakhs but the Bank

defied the said value for about 12 years and  thereafter,  it paid a sum of

Rs.2,27,39,683.07 on 04.01.2008.  The prevailing rate of interest on foreign deposit was

16% p.a.  As per calculation, there is a difference of Rs.2,29,97,417.93 which is due to

the Bank.  The said amount was detained on the pretext of default of M/s.Jupiter

Cement Limited which is a separate legal entity.  Consequently, the above said

complaint was moved for recovery of Rs.2,29,97,417.03 with interest and

compensation.

 

9.             Consumer Complaint No. 174 of 2013:

          Same is the position with the last case, being CC No.174 of 2013.  In this Case,

Glayland Limited (U.K) had deposited Rs.30.00 lakhs with Bank of India, OP for a

period of 72 months.  Due date was 18.11.1993. The rate of interest was 13% p.a. On

the date of maturity, the Bank was asked to return the money along with interest, but it

retained the money for 14 years’  on the ground that maturity value was detained

because the account of M/s. Jupiter Cement Limited was in defulat but the complainants

were in no way connected with the same.  In this case, the complainant has demanded

the remaining amount of Rs.2,58,87,172.42 and they have also demanded interest @

16% p.a. as well as compensation, etc.

 

10.         Defence:

The OPs have set up the following defences. First of all, the jurisdiction of this

Commission has been called into question.   It is also contended that the complainants

are not the consumers as per Consumer Protection Act, 1986.  It is contended that the

matter should be decided by a Civil Court.  It has also been pointed out that the

disputes pending between the parties have already been resolved and compromised

before the Civil Court.  The proceedings initiated by the complainant under the Act are

non-est, null and void and without jurisdiction. 

         

11.    It is submitted that the complainants have  already approached the Civil Court and

other Forums and are guilty of “forum shopping” to suit  ‘his’ or ’her’/their ill-advised

wishes.  The complainants  have not approached this Commission with clean hands. 

         

12.    As a matter of fact, M/s. Jupiter Cement Limited was established on

09.10.1979  and the company set up a mini cement  plant at Village Mokhana,

Bhanvad, District-Jamanagar, Gujarat with installed capacity of 300 tonnes per

day.  There being Principal Promoters/Directors, Mr.K.J.Modha, Mr.T.D.Nadiapara,

Mr.R.N.Seth, Mr.M.P.Bhatt, Mrs. D.B.Joshi, Mr.R.D.Joshi and Mrs.K.B.Joshi.  The

original cost of the project was Rs.880.00 lakh which was revised to Rs.1320.00 lakh

which was again revised to Rs.1330.00 lakh.  The source of  finance was projected as

Promoters Equity Rs.290.00 lakh, Public Issue Rs.235.00 lakh and rest financed by

Financial Institutions.  The ICICI Bank first commissioned  the project and later joined

Bank of India, Bank of Baroda and State Bank of Saurashtra.  The State Bank of

Saurashtra was subsequently was replaced by UCO Bank.                                

 

 

13.    The Bank of India financed term loan as well as working capital

against security of paripasu charge on 28.11.1986 and LC for Rs.68.00 lakh, lien was

marked on TDRs worth Rs.75.00 lakh of the associate company Glayland Ltd.

S.A.  This was one of the considerations for the advances. The advance amount is

largely deposited, oriented and NRE Deposits of Directors, their relatives and associate

company aggregating Rs.192.08 lakh will remain with the Bank.  The unit could not run

properly and incurred heavy losses and the account  was classified as NPA on

01.04.1993.  A suit was filed in the Court of Civil Judge, Jamkhanmbhalia,  District-

Jamnagar on 31.03.1993 for recovery of Bank Dues in the sum of  Rs.4,61,17,782.60

plus interest and costs, etc. Since  the  party was not co-operating particularly its

Director-Guarantor, Sh.B.L.Joshi, who,  even had declined to execute renewal

documents.  Besides, the borrowers and Guarantor, a U.K based company, M/s.

Glayland Ltd. S.A.  which had also been promoted by Mr.B.L.Joshi was

impleaded  since  it had deposited its  Monthly Income Certificates/TDRs for Rs.75.00

lakh  as security for Letter of Credit  facility granted to the Company and on

development, the amount was debited  to Cash Credit Account of the Company.

 

14.    Upon establishment of DRT, the case  was transferred to DRT, Ahmedabad on

26.04.1995. There was reference to BIFR and proceedings were stayed.  Mr.B.L.Joshi

demanded pre-mature payment of 3 Monthly Income Certificates vide his letter dated

01.04.1993.  Consequently, the OP Bank filed a Suit on 04.10.1993 in the Court of Civil

Judge for injunction to restrain withdrawal of the money from the Bank because the

Bank properties as security pending in DRT accounts were inadequate. The suit was

dismissed on 20.05.1997.

         

15.    Aggrieved by that order, the Bank preferred an Appeal bearing No.5927 in the

High Court of Gujarat at Ahmedabad.  The Hon’ble High Court restrained the

complainants from encashing the Monthly Income Certificates and withdrawing  the

amount lying in the account No.2410 with the OP Bank.  The complainant was permitted

to invoke the right of set off against the Defendant Nos. 1 to 8 in respect of the aforesaid

Monthly Income Certificates and SB A/c No. 2410.

 

16.    In the meantime, DRT, Ahmedabad, decided the case in favour of the Bank and

company factory, land, building and machinery were sold for  a sum of Rs.217.00

lakh  and 50% of the sale proceeds were deposited with ICICI Bank and 50% was given

to the OP Bank.  As the entire suit amount could not be satisfied, therefore, the

proceedings were initiated against Company/Guarators. Ultimately, Mr.B.L.Joshi, in the

capacity of Guarantor, as well as the Director of the company, approached the Bank

with a compromise proposal and initially offered a sum of Rs.350.00 lakh, which was

subsequently raised to Rs.500.00 lakh and the terms and conditions of the settlement

were decided by the Bank and Borrowers, mutually.  It would be worthwhile to produce

the compromise deed which runs, as under :-

                   “We hereby unconditionally agree that all the deposits in

personal name of Sh.B.L. Joshi/with his family

members/associates OCBs (M/s. Glayland Ltd S.S. and or M/s.

B.L.Joshi, U.K. etc.), have been   renewed properly from time

to time and our representative and we have verified and

satisfied ourselves. We would also never raise any objection to

the periodic renewal of all the terms deposits and amount of

interest paid thereon, as applicable from time to time and the

treatment given to the balance lying in our saving account by

the bank as per court order, in future.  We also unconditionally

agree and undertake that we will not raise any dispute or claim

with the deposits and all objections, contentions, etc., made

whether by letter of application or otherwise pending with the

bank or in any court proceedings in connection with the

account of M/s. Jupiter Cement Ind.Ltd., stand withdrawn and

hereafter be regarded as having come to an end without

further claim in that respect against the Bank either by way of

additional interest, damages, compensation or otherwise”.

 

 

17.    After the above said statement, the complainants, with ulterior motive and

vexatious desire also, approached the Bank’s Ombudsman, Home Minister of Gujarat

and the Hon’ble Prime Minister.  Ultimately, they have filed these frivolous complaints

before this Commission.

 

18.    OPs  also set up the similar defences in case Nos. 172/2013, 173/2013 and

174/2013, respectively.

 

19.         Submissions and Findings :

We have heard the learned counsel for the parties on the question of admission

of these complaints.  On 06.10.2006, the learned DRT, Ahmedabad, passed a detailed

order and the operative portion of which is as under :

                         “OPERATIVE ORDER      

    “I)  Transfer application is allowed with costs.

   II)  Defendants No. 1 to 3 do jointly and severally   pay applicant

Rs.4,61,17,782.06 with simple interest @ 6% per annum from

the date of the filing of the suit, i.e. 31.03.21993, until

realization.

    III)  Applicant  shall  be  entitled  to  appropriate  the

Proceeds  of   MIC  originally   pledged  by     the  

defendant   No.8   and  thereafter  came  to    be  

reinvested    from   time  to  time   towards     the

   satisfaction of the certified dues.

             IV) Applicant shall deduct the payment received in the

account of the defendant No.1, now under liquidation, during

the pendency of the Special Civil

Suit/Transfer Application.

            V)  Application stands disposed against the defendants

   No. 4 to 7 with in order as to costs.

           VI)  Issue Recovery Certificate under Section 19 (22) of

      the Act”.

 

20.    Against the order of the Learned DRT, Ahmedabad, Gujarat, a Writ Petition was

filed in the Hon’ble High Court of Gujarat, which was withdrawn.

 

21.    Mr. B.L.Joshi, UK, Ltd, and Director, B.Joshi wrote a letter to the Bank, which runs

as follows :-

“With reference to your letter No.PBR: ADV: GCN” 1010

Dt.01.12.2007 para 2 (e), we, hereby, unconditionally agree that

all the deposits in our name/s have been renewed properly from

time to time and our representative and we have verified and

satisfied ourselves in this regard.  We undertake that we would

never raise any objection to the periodic renewal of all of our term

deposits and amount of interest paid thereon, as applicable from

time to time, in future.

We, also, unconditionally agree and undertake that we will not

raise any dispute or claim with respect to the interest on these

deposits or any other amount in connection with the deposits, and

all objections, contentions, etc., made whether by letter or

applications or otherwise pending with bank hereafter be

regarded as having come to an end without further claim in that

respect against the bank either by way of additional interest,

damages, compensation or otherwise.

Date :                                               Thanking you,

Place :                                              Yours faithfully

                                                B.L.JOSHI U.K.LTD.

                                  Sd/-         Sd/-

DIRECTOR      DIRECTOR”

22.    Thereafter, the above said  ‘compromise’ took place on 12.12.2007. The

compromise was entered by Mr.B.L.Joshi in the capacity of ‘Guarantor’.

 

23.    The learned counsel for the complainants  vehemently  argued  that the matter

pending between the DRT was between other parties and this case is between separate

parties.  He contended that Mr.B.L.Joshi had entered into a contract/compromise with

the OPs  of his own choice.  He was not given authority by the other Directors too enter

into the said compromise.  The counsel for the complainants has cited few authorities in

support of his case.  The first authority is reported in Kiran Krishna Agro Tech Ltd. Vs.

P.V.Shantha Kumari, II (2012) CPJ 531 (NC)  wherein the case regarding FDR was

entertained  by the National Commission; the second authority reported in Allhabad

Bank & Anr. Vs. Paper Product Machines, IV (2012) CPJ 495 (NC), is a judgment of this

Bench.  This case also pertains to a Bank.  In this case, cheques were deposited, the

same were neither credited into the account nor were received back.  It was held that

cause of action is continuing unless or until the complainant gets that amount.   He has

also invited our attention to another authority reported inPoonam Constructions & Ors.,

Vs. Manjusha Ashok Dudhane, IV (2012) CPJ 790 (NC), wherein it was held that due to

delay of 1072 days, the case was barred by time.  He has also invited our attention

towards the Hon’ble Apex Courts’ authority reported in Basant Singh & Anr., Vs. Roman

Catholic Mission,which is regarding ‘service’ of summons.  He has also cited another

authority reported in Punj Lloyd Limited Vs. Corporate Risks India Pvt.Ltd., I (2009) CPJ

10 (SC). In this case, this Commission dismissed the complaint because the disputed

questions raised were found to be beyond the purview of this Commission.   It was held

that dismissal of the complaint was unjustified.  The Commission ought to have issued

notice to the respondent and place pleadings on record. 

 

24.    The above said authorities have left no impact upon us.  The aforesaid authorities

hardly apply to the present cases.  We do not pick up a conflict with the law laid down in

these authorities. These authorities certainly are applicable to the Consumer Fora.   It

must be borne in mind that the facts are stubborn things. The facts of these cases are

altogether different from the above cited authorities.

 

25.    The facts of these cases are peculiar and unique.  The Order was rendered by the

learned DRT, Gujarat.  Some directions were also given by the Hon’ble High Court of

Gujarat.  Those have attained finality.  Although the Consumer Fora, by virtue of

Section 3 of the Consumer Protection Act, 1986 has got the parallel jurisdiction, yet

when the case is decided by the Civil Court or DRT, it remains bound by that.  It cannot

re-open the controversy again.  It is well settled that Consumer Fora is bound by the

orders pronounced by the Civil Court.  It cannot take a contrary view from that of the

Civil Court.  It must be borne in mind that the Civil Court has  already  decided  the case

and this Commission shall refrain from interfering into it.  This Commission is not armed

with power to sit as an Appellate  Court  over  the orders passed by the DRT.  The DRT

has got its own Appellate authority,  which is known as Debts Recovery Appellate

Tribunal. 

 

26.    Moreover, it is difficult to fathom as to why the other Directors could not move the

application for being impleaded as parties before the learned DRT. They should have

filed an application for impleadment before the learned DRT.  In case this Commission

interferes, it may lead to multiplicity of judgments, which is not desirable and not

permissible by any law.

 

27.    Even now, those Directors can move before the DRT or DRAT for seeking further

relief. It is also surprising to note that Mr.B.L.Joshi is one of the complainants in this

case.  It is not understood as to how he can challenge his own authority.  It is also

surprising to note that other Directors have joined hands with him and they are working

in cahoots with each other.  All the complainants had the knowledge about the

compromise.  They should have raised objection there and then.  It is well settled that

“A Stitch in Time, Saves Nine”. The delay on the part of the complainants for such a

long time is unfathomable. Consequently, this Commission has no jurisdiction to

entertain these complaints.  These are barred by principles of res judicata. Following

authorities go to fortify the case of OPs.

  

28.    In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ 174

(NC), this Commission held that “a complaint filed by the complainant suppressing the

fact that the matter was already sub judice in the Sub-Court, Ernakulam, was dismissed

by the State Commission as the case was already sub judice before a Civil Court.  In

appeal, the National Commission upheld the order of the State Commission holding that

the complaint was gross abuse of the Consumer Protection Act”.       

 

29. In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR 386

(NC), this Commission upheld the important principle that when a matter is sub judice

before the ordinary Civil Courts of the land, the Consumer Commission cannot and will

not entertain any claim for compensation in respect of the same subject matter.

30.    Last, but not the least, this Commission clearly, specifically and

unequivocally  held  in Traxpo Trading Co. Vs. The Federal Bank  Ltd, I (2002) CPJ 31

(NC)  that under Section 18 of the Recovery of Debts Due to Banks and Financial

Institutions Act, 1993, jurisdiction of  this Commission has been barred, where the Bank

has filed ‘suit for recovery’,  before DRT. 

 

31.         LIMITATION:

          Moreover, this case is hopelessly barred by time.  The cause of action arose

when the matter was settled on 01.12.2007.  The cause of action again arose on

04.01.2008,  when the alleged amount was  paid to the complainants and the Bank had

refused to pay the remaining amount.  Thereafter, the complainants approached the

Hon’ble High Court of Gujarat and the Hon’ble High Court of Gujarat vide its order dated

21.07.2010 passed the following order :-

“ORAL ORDER

                   Heard learned advocate Mr.Ashish M. Dagli Appearing on behalf of

petitioner for all four Petitions. petitioner may approach, in respect to Grievance raised

in all four petitions,  the Appropriate forum in accordance with law. In view of the above

observation, present Petitions  are  disposed  of  by  this Court without Expressing any

opinion on merits”.

 32.    It is, therefore, clear that the Hon’ble High Court did not condone

the delay on the part of the complainants.  The present complaints were filed on

17.09.2010.

 

33.    Our predecessor Bench, vide its order dated 12.09.2011, passed the following

order :-

“Heard.  Prima facie, some of the complaints appear to be

barred by period of limitation.  As per complaints, certain

deposits were made in 1987 and maturity date was 1993, in

respect of those deposits.  Further, there has been civil

litigation between the parties. Complainant is directed to file

copies of the pleadings of those litigations which took place

earlier between the parties, qua the deposits made by the

complainant.  Same be filed within 8 weeks.  List on

05.12.2011, for admission hearing”.

 

34.    We  also  gave  opportunity  to  the  complainants  to file  an application  for

condonation of delay. Our order dated 04.01.2013, runs as follows:-

“Heard counsel for the parties.

Counsel for the opposite party submits that there is a

question of limitation, but no application in this connection

has been filed.  An opportunity is granted to the complainant

to file an application for condonation of delay.  He submits

that he has filed the complaint before the Registry, but the

Registry had raised no objection.  Evidence to that context be

also produced.

Stand over to 18th March, 2013”

   

35.    However, the needful was not done.  Application for condonation of delay was

never moved despite opportunities granted to the complainants.  It is thus clear that the

present complaints are barred under  Section 24-A  of  the Consumer Protection Act,

1986.  There is not an iota of evidence  that  cause of action has arisen two years prior

to the above said case.  Consequently, we dismiss the complaints with punitive costs of

Rs.15,000/-  in  each case, total being Rs.60,000/- to be deposited with the

Consumer  Welfare Fund  established  by the Central Government under Section 12 (3)

read with Rule 10 (a) of the Consumer Protection Act, 1986, of the Central Excise Act,

1944, within one month from the date of the order, failing which it will carry interest @

10% p.a.  Registrar  to submit compliance report immediately, after the expiry of two

months.

.…..…………………………

(J. M. MALIK, J)

   PRESIDING MEMBER

 ……………………………...

(VINAY KUMAR)

MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO.   721 OF 2013 (From  order dated 26.11.2012 in Appeal No. 201/2012 of the

               State Consumer Disputes Redressal  Commission,  Uttar

Pradesh, Lucknow )With

IA/1315/2013

(STAY)

Standard Chartered Bank Through its Authorised Officer, Mr.Ajay Rana 10, Parliament

Street, New Delhi

… Petitioner

 

Versus

 

Virendra Rai, S/o Late Sh.Patu Rai R/o 3/83, Sanjay Gandhi Nagar P.N.Road, Tehsil &

Dist. Lucknow

                        … Respondent

 

 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER

          HON’BLE MR. VINAY KUMAR, MEMBER

 

For the petitioner            : Mr. Sanjeev Sagar,  Advocate

For the Respondent :  N E M O

 

PRONOUNCED   ON     01.04.2013

 

                                                 O R D E R

JUSTICE J.M. MALIK

1.      The Civil Court or any other authority can not arrogate to itself  the right to make

decisions or interfere with the Securitisation and Reconstruction of Financial Assets and

Enforcement of Security Interest Act, 2002 (in short ‘SARFAESI Act’).  Here lies the rub

in Section 34 of SARFAESI Act  which reads as follows:-

 “34. Civil court not to have jurisdiction. – No civil court shall have

jurisdiction to entertain any suit or proceeding in respect of any matter

which a Debts Recovery Tribunal or the Appellate Tribunal is

empowered by or under this Act to determine and no injunction shall

be granted by any court or other authority in respect of

any action  taken in pursuance of any power conferred by or under

this Act or under the Recovery of Debts Due to Banks and Financial

Institutions Act, 1993 (51 of 1993)”.

 

2.      The State Commission, Lucknow, presided over by S/Sh. Rampal Singh, Presiding

Member and Jugal Kishore, Member, passed the following order:-

          “… The petitioner states that in order dated 24.07.2011

the Consumer Forum has ordered the petitioner bank that

during the pendency of this case, the petitioner shall not take

possession of property of complainant

bearing No.Plot No.14, Gaurbhith,Fazulahganj, Lucknow. The

Consumer Forum has also given next date as 25.08.2012 for

further proceedings.

The petitioner has prayed before this Forum for setting aside

of order dated 24.07.2012 by this Forum. Further, after the

passing of the date fixed by the Consumer Forum, i.e.

25.08.2012, the petitioner has not informed us about the

orders passed by the Consumer Forum.  After hearing the

counsel for petitioner in detail, it is found that the appeal of

the petitioner is merit-less and hence liable to be dismissed.

                                         ORDER

          Present appeal does not have any force and hence is

dismissed. The order passed by the Consumer Forum dated

24.07.2011 in case No. 780/11 is hereby confirmed. The cost

of this appeal shall be borne by the petitioner himself.

          The certified copy of the order be supplied accordingly

to rules”.

 

3.      We  have  also  seen  the order  passed  by the District Forum-II, Lucknow, which

has  observed as under :-

          “…… The complainant on the other hand objected to

objection of respondent and stated that this Forum has

jurisdiction to hear the present case.  From their side an

order passed by Hon’ble State Consumer

Disputes Redressal Forum, U.P. in appeal No.694/09 titled

“Gaya Prasad Vs. GIC Housing Finance

Limited”  and order dated 01.05.09 has been relied upon,

we have gone through the said order from which it is clear

that only the Civil Court has been barred from hearing and

thus only civil court does not have jurisdiction to hear the

present case and not the consumer fourm.  Into this order,

the Hon’ble State Consumer Forum, U.P. has also

mentioned Section 3 of the Consumer Protection Act,

1986, wherein it has been specifically stated that the

provisions of this Act shall be in addition to and not in

derogation of provisions of any other law for the time being

in force. Referring to this provision, the Hon’ble State

Consumer Forum, U.P. has stated that the powers given to

the Consumer Court are not in derogation of the provisions

of SARFAESI Act.  Hon’ble State Consumer Forum, U.P.

and its order in case titled “Kishori LalVs. ESI Corporation

has stated clearly that the Consumer Forum has the

jurisdiction to hear such cases and section 34 of the

SARFAESI Act does not bar the said jurisdiction and in

such circumstances, the objection of respondent bank

does not have any force”.

 

4.      Counsel for the petitioner present.  Respondent has not

appeared.  However,  his written submissions have been placed on record.  We have

gone through the same.  Instead of touching the heart of the problem, the complainant

has just skirted it.  He has countenanced the deficiency on the part of the Bank.  He has

not spoken about the jurisdiction of this case. 

 

5.      The learned counsel for the petitioner  vehemently argued that the Bank had cited

before the State Commission, the order passed by this Bench, titled as “Bank of Baroda

Vs. M/s. Geeta Foods”, decided on 08.11.2012 (RP No. 3499 of 2012).  The counsel for

the petitioner alleges that this order was not discussed by the State Commission. He

contended that the State Commission should have mustered the courage to mention

about this order which otherwisetantamounts to Contempt of Court.

 

6.      We have already held that as per Section 34 of the SARFAESI Act, 2002, the

District Forum or the State Commission have no power to interfere with the SARFAESI

Act. The District Forum and State Commission are under the misconception that the

Consumer Court is not a civil court.  In Patel Roadways Vs. Birla Yamaha Limited, 2000

(4) SCC 91, AIR 2000 SC 461, the Hon’ble Apex court has held :

“The contention that the use of the term ‘suit’ in Section 9 of

the Carriers Act shows that the provision is applicable only to

the cases filed in a civil Court  and does not  extend to

proceedings before the National Commission which is a forum

to decide complaints by Consumers following a summary

procedure cannot be accepted. The term ‘suit’ is a generic

term taking within its sweeps all proceedings, initiated

by,  a party for realization of a right vested in him under

law.  The meaning of the term ‘suit’ also depends on the

context of its use which in turn, amongst other things, depends

on the Act or the rule in which it is used.  No doubt the

proceeding before a National Commission is ordinarily a

summary proceeding and in an appropriate case where the

Commission feels that the issues raised by the parties are too

contentious to be decided in a summary proceeding it may

refer the parties to a civil Court.  That does not mean that the

proceeding before the Commission is to be decided ignoring

the express statutory provisions of the Carriers Act (Section 8)

in a proceeding in which a claim is made against a common

carrier as defined in the said Act.  Accepting such a contention

would defeat the object and purpose for which the Consumer

Protection Act was enacted.  A proceeding before the National

Commission comes within the term ‘suit’.

7.      In S.James Vincent Vs. Greater Cochin Development Authority, 1994 (1) CPJ 174

(NC), this Commission held that “a complaint filed by the complainant suppressing the

fact that the matter was already sub judice in the Sub-Court, Ernakulam, was dismissed

by the State Commission as the case was already sub judice before a Civil Court.  In

appeal, the National Commission upheld the order of the State Commission holding that

the complaint was gross abuse of the Consumer Protection Act”.                 

8.      In Oswal Fine Arts Vs. H.M.T., 1991 CPC 43: (1991) 1 CPJ 330: 1991 (1) CPR

386 (NC), this Commission upheld the important principle that when a matter is

sub judice before the ordinary Civil Courts of the land, the Consumer Commission

cannot and will not entertain any claim for compensation in respect of the same subject

matter.

9.      It must  be borne in mind that under Section 6 of the Indian Post Office Act, the

Consumer Fora  have got limited jurisdiction. 

10.    Again,  in Southern Railways Vs. M.Chidambaram, 2002 (1) CPJ 34: (2002) 1 CPJ

342 (NC),  it was held that since it was not disputed that untoward incident as mentioned

in Section 124-A of the Act has occurred the proper forum of  adjudication would only be

before the Railway Claim Tribunal under Section 15 of the Railway Claims Tribunal Act,

1987.  The consumer court had no jurisdiction in this respect. 

 11.    The consumer court cannot deal with the directions given to a Company declared

‘sick’ by BIFR.

12.    In Dinesh Kumar Vs. Railway Station Master, Raipur Station, IV (2004) CPJ 136

(Chhattisgarh), it was held that as Section 15 of the Railways Act, clearly bars

jurisdiction of any other Court authority, consequently, remedy under Consumer

Protection Act, 1986 stands barred and was not available to the complainant.

13.    Last, but not the least, this Commission clearly, specifically

and unequivocally  held  in Traxpo Trading Co. Vs. The Federal Bank  Ltd, I (2002) CPJ

31 (NC)  that under Section 18 of the Recovery of Debts Due to Banks and Financial

Institutions Act, 1993, jurisdiction of  this Commission has been barred, where the Bank

has filed ‘suit for recovery’,  before DRT. 

 14.    Under these circumstances, the proceedings pending before the District Forum

are hereby quashed and the revision petition is accepted.  The complaint is dismissed.

Copy of this order be sent to the State Commission and District Forum to follow the

order passed by this Commission, time and again, without caring whatever their

personal views are.

    ...…..…………………………

(J. M. MALIK,J.)

                                                                                       PRESIDING MEMBER       

  …..…..…………………………

(VINAY KUMAR)

dd/7                 MEMBER 

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 

REVISION PETITION NO. 3839 OF 2012

 (From the order dated 17.02.2012 in Appeal No. 552/2009 of the A.P. State Consumer

Disputes Redressal Commission, Hyderabad)

 

Abdul Hafeez S/o Shri Abdul Nayeem R/o H. No. 1-101/1 1B, S.S. Gutta Mahabobnagar

– 509001

…Petitioner/Complainant

                             Versus

State Bank of Hyderabad Rashtrapati Road Branch Secundrabad, A.P.

                    …   Respondent/Opposite Party (OP)

 

  BEFORE

 HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

 

For the Petitioner       :     Ms. Soumyashree Kulkarni, Advocate

 

PRONOUNCED ON           2 nd     April,     2013

 

O R D E R

  PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 

          This revision petition has been filed by the petitioner/complainant against the

order dated 17.02.2012 passed by the A.P. State Consumer Disputes Redressal

Commission, Hyderabad (in short, ‘the State Commission’) in Appeal No. 552 of 2009 –

The State Bank of Hyderabad Vs. Sri Abdul Hafeez by which, while allowing appeal

partly, order passed by learned District Forum was modified.

 

2.       Brief facts of the case are that complainant/petitioner availed loan to the tune of

Rs.10,500/- on 19.9.1989 from OP-respondent by depositing his title deeds and

executed demand promissory note and also submitted personal guarantee.  OP filed

suit in the Court of Civil Judge (East and North), R.R. District at L.B. Nagar for recovery

of amount and during pendency of litigation, complainant paid Rs.50,280/- in

consequence of which, OP closed loan account on 12.11.1993 and issued passbook

with an endorsement “Account closed” to the complainant.  Complainant requested OP

to return title deeds of the plot and the promissory note and agreement of guarantee,

but as documents were not returned, complainant filed complaint alleging deficiency on

the part OP.  OP/respondent contested complaint and submitted that OP filed

documents before the Court of Junior Civil Judge and his documents could not be

traced in the Court and were not returned to the OP. In spite of sincere efforts,

documents could not be returned and prayed for dismissal of complaint.   Learned

District Forum after hearing both the parties allowed the complaint and directed OP to

pay compensation of Rs.2,00,000/-.  OP filed appeal against the order of District forum

and learned State Commission vide impugned order reduced amount of compensation

from Rs.2,00,000/- to Rs.1,00,000/-.  Petitioner has filed this revision petition against the

impugned order for enhancement of compensation.

 

3.       Heard learned Counsel for the petitioner at admission stage and perused record.

 

4.       Petitioner has filed revision petition along with application for condonation of

delay of 119 days.  Petitioner submitted that revision petition could not be filed in time

due to the fact that petitioner is 65 years old and ailing person and unable to work

without assistance and further submitted that due to paucity of funds, delay occurred.

 

5.       As per application for condonation of delay, petitioner is only 65 years old and

has not placed any document regarding illness.  In such circumstances, old age is not a

tenable ground for condonation of delay.  Further, it was submitted that due to paucity of

funds, revision petition could not be filed. As per impugned order, petitioner is a retired

Forest Range Officer and must be getting pension and in such circumstances, paucity

of funds cannot be treated as satisfactory explanation for condonation of delay.  As

there is inordinate delay of 119 days, this delay cannot be condoned in the light of the

following judgment passed by the Hon’ble Apex Court.

 

6.       In R.B. Ramlingam Vs. R.B. Bhavaneshwari 2009 (2) Scale 108, it

has   been observed:

          “We hold that in each and every case the Court has to examine

whether delay in filing the special appeal leave petitions stands

properly explained. This is the basic test which needs to be

applied. The true guide is whether the petitioner has acted with

reasonable diligence in the prosecution of his appeal/petition.”

 

 

7.         In Ram Lal and Ors.  Vs.  Rewa Coalfields     Ltd ., AIR  1962 Supreme Court

361, it has been observed;

“It is, however, necessary to emphasize that even after sufficient

cause has been shown a party is not entitled to the condonation

of delay in question as a matter of right. The proof of a sufficient

cause is a discretionary jurisdiction vested in the Court by S.5. If

sufficient cause is not proved nothing further has to be done; the

application for condonation has to be dismissed on that ground

alone. If sufficient cause is shown then the Court has to enquire

whether in its discretion it should condone the delay. This aspect

of the matter naturally introduces the consideration of all relevant

facts and it is at this stage that diligence of the party or its bona

fides may fall for consideration; but the scope of the enquiry while

exercising the discretionary power after sufficient cause is shown

would naturally be limited only to such facts as the Court may

regard as relevant.”

         

 

8.       Hon’ble Supreme Court after exhaustively considering the case law on the

aspect  of condonation of delay observed in Oriental Aroma Chemical Industries Ltd.

Vs. Gujarat Industrial Development Corporation reported in (2010) 5 SCC 459 as

under;

“We have considered   the respective    submissions.  The

law of limitation is founded on public policy. The   legislature

does not prescribe limitation with the object of destroying the

rights of the parties but to ensure that   they    do not resort

to dilatory tactics and seek remedy without delay. The idea

is that every legal remedy must be kept alive for a period

fixed by the legislature. To put it differently, the law of

limitation prescribes a period within which legal remedy can

be availed for redress of the legal injury. At the same   time,

the courts are bestowed with the power to condone the

delay, if sufficient cause is shown for not availing the remedy

within the stipulated time.”       

 

 

9.       Hon’ble Apex Court in (2012) 3 SCC 563 – Post Master General & Ors.   Vs. Living

Media India Ltd. and Anr. has not condoned delay in filing appeal even by Government

department and further observed that condonation of delay is an exception and should

not be used as an anticipated benefit for the Government departments.

 

10.     Hon’ble Apex Court in 2012 (2) CPC 3 (SC) – Anshul Aggarwal Vs. New Okhla

Industrial Development Authority observed as under:

“It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the

Court has to keep in mind that the special period of limitation

has been prescribed under the Consumer Protection Act,

1986, for filing appeals and revisions in Consumer matters and

the object of expeditious adjudication of the Consumer

disputes will get defeated, if this Court was to entertain highly

belated petitions filed against the orders of the Consumer

Foras”.

  

Thus, it becomes clear that there is no reasonable explanation at all for condonation of

inordinate delay of 119 days. Revision petition is liable to be dismissed on the ground of

delay alone.

 

11.     As far as merits of the case are concerned, record clearly reveals that documents

were submitted by OP/respondent in the Court in suit for recovery of amount and the

documents were missing from the Court and were not returned to the respondent, in

such circumstances, respondent was not in a position to return documents to the

petitioner.  Even then, learned District Forum allowed compensation of Rs.2,00,000/-

and learned State Commission modified it and upheld compensation of Rs.1,00,000/-,

there is no justification for enhancement of compensation.  Learned State Commission

has observed as under:

“16.    The Supreme Court held that the compensation to be

awarded is to be fair and reasonable.  In “Charan Singh vs. Healing

Touch Hospital and others” – 2000 SAR (Civil) 935, the Apex Court

stressed the need of balancing between the compensation awarded

recompensing the Consumer and the change  it brings in the

attitude of the service provider. The Court held -

 

‘While quantifying damages, consumer forums are

required to make an attempt to serve ends of justice

so that compensation is awarded, in an established

case, which not only serves the purpose of

recompensing the individual, but which also at the

same time aims to bring about a qualitative change in

the attitude of the service provider. Indeed calculation

of damages depends on the facts and circumstances

of each case. No hard and fast rule can be laid down

for universal application. While awarding

compensation, a Consumer Forum has to take into

account all relevant factors and assess compensation

on the basis of accepted legal principles, on

moderation. It is for the Consumer Forum to grant

compensation to the extent it finds it reasonable, fair

and proper in the facts and circumstances of a given

case according to established judicial standards

where the claimant is able to establish his charge’.

 

         

Therefore, taking into consideration of the totality of the circumstances and the

ratio laid in the aforementioned decision, we are of the opinion that the amount of

Rs.2,00,000/- awarded by the District Forum towards compensation is of higher side

and not commensurate with the degree of deficiency found on the part of the appellant

bank in rendering service to the respondent.  As such, the amount of Rs.2,00,000/-

awarded is scaled down to Rs.1,00,000/-“. 

 

12.     In the light of the aforesaid discussion, I do not find any infirmity, illegality or

jurisdictional error in the impugned order which calls for any interference and revision

petition is liable to be dismissed at admission stage.

 

13.     Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to cost.             

          ..………………Sd/……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION     PETITION     NO.       2097         OF       2011 alongwith

I.A. NO.02 OF 2012 (For   Condonation   of Delay)

(From the order dated 3.8.2009 Appeal No.316/2009 of the State Commission,

Chhattisgarh)

 

Girish Kohle D-16, Tagore Nagar, Raipur, Chhatitisgarh – 492001

                                        …Petitioner

  Vs.

 S.B.I. Cards & Payments Pvt. Ltd. P.O. Bag No.-28, GPO, New Delhi Having Registered

Office 11, Parliament Street, New Delhi – 110001.

                                                          ….Respondent

 

BEFORE:

HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBER

HON’BLE MRS. REKHA GUPTA,  MEMBER 

For the Petitioner             :         Mr.  Pramod Kumar, Advocate

 

For the Respondent         :         Ms. Amita Kumari, Advocate

 

Pronounced   on     :     9 th     April, 2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 

Petitioner/complainant has filed the present revision petition under Section 21(b)

of the Consumer Protection Act, 1986 (for short, ‘Act’) challenging order dated

5.10.2009, passed by Chhattisgarh State Consumer Disputes Redressal Commission,

Raipur (for short, ‘State Commission’), vide which petitioner’s appeal  challenging order

of the District Consumer Disputes Redressal Forum, Raipur (for short, ‘District Forum’)

dated 4.7.2007 dismissing the complaint of the petitioner was dismissed.

2.       Case of petitioner before District Forum was that he  had obtained a credit card

from the respondent/opposite party. As per demand made by the respondent, certain

amount was due towards the petitioner  which had been wrongly added in the account

of the petitioner. Further, undue pressure was created upon the petitioner for payment

of that amount.  It was stated that no fees would be chargeable for next one year, but in

the bill such fees was charged. Thus, deficiency in service was committed by the

respondent. 

3.       None appeared for the respondent before the District Forum despite service of

the notice. Hence, respondent was proceeded ex parte.

4.       District Forum, dismissed the complaint holding that petitioner himself was

careless in not making due payment to the respondent.  

5.       Being aggrieved by the order of District Forum, petitioner filed an appeal, which

was dismissed by the State Commission.

6.       Alongwith the present petition, an application seeking condonation of delay of 365

days has also been filed. However, as per office noting, there is delay of 533 days.

7.       We have heard arguments on application for condonation of

delay and  gone through the record.

8.       Grounds on which condonation of delay has been sought read as under;

“4.     After the order of the State Commission dated 5.10.2009, the

petitioner came to know that the respondent has also started a

parallel and unilateral arbitration proceeding against the petitioner

for recovery of its alleged claim which has been disputed by the

petitioner under the Act.  

5.       That on 3.12.2009 the petitioner received a letter from arbitrator

situated in Delhi who was appointed by the respondent

to arbitrate  the dispute between the petitioner and the respondent

for payment dispute. Vide said notice/letter the Arbitrator informed

the petitioner to attend the arbitration proceeding which was fixed

for 22.1.2010.

6.       That on 17.12.2009 the petitioner replied to the Arbitrator of the

respondent that Petitioner does not accept any kind of arbitration in

this regard and informed them that petitioner was going to

challenge the order of State Commission  before the National

Commission.

7.       That it is stated that petitioner is a government servant and it is a

very difficult for him to take leave to attend the hearing time and

again. It  was very difficult for the petitioner to manage all this

hassles while doing his job. There was also a unilateral arbitration

proceeding initiated simultaneously by the respondent against the

petitioner. In such circumstances  the petitioner could not take

steps further within a reasonable period.

8.       That surprisingly, after almost ten months, petitioner received a

copy of an arbitration award dated 24.09.2010 purportedly passed

by the Arbitrator against the petitioner whereby an award of

Rs.1,21,367/- together with interest @ 2.95% per month, from the

date of accrual of the cause of action as per statement of claim till

the date of decree or the date of payment whichever is earlier was

pass against the petitioner.

9.       xxxxxxxxxxxxxxxxxxxxx

10.     That thereafter there was no other option before the petitioner

except to approach before this Hon'ble Commission for justice. On

21.2.2011 the petitioner filed the present revision petition before

this Hon'ble Commission.

11.     That thus there is delay of about 365 days of almost one year in

filing the revision petition.”

 

9.       As per petitioner’s own case, State Commission had passed the order of

5.10.2009. He also came to know that, respondent has started parallel arbitration

proceeding for which he had received intimation from the Arbitrator. It is also petitioner’s

case that on  17.12.2009, he replied to the Arbitrator stating that he does not accept any

kind of arbitration in this regard and was going to challenge the order of the State

Commission.  Admittedly, order of State Commission was challenged only on 21.2.2011

by filing the present petition. There is no explanation at all as to why from 17.12.2009 till

21.2.2011, petitioner did not challenge the order of the State Commission.

10.     It is well settled that “sufficient cause” for condoning the delay in each case is a

question of fact.

11.   Under the Consumer Protection Act, 1986, a special period of limitation has been

provided to ensure expeditious disposal of cases. Complaint has to be disposed of

within 90 days from the date of filing where no expert evidence is required to be taken

and within 150 days where expert evidence is required to be taken. The inordinate

delay of 365 days cannot be condoned without showing sufficient cause. Day to day

delay has also not been explained. We are not satisfied with the explanation given.

12.  Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial

Development Authority –IV (2011) CPJ 63 (SC) has held that while deciding the

application filed forcondonation of delay, the Court has to keep in mind that the

special period of limitation has been prescribed under the Act for filing appeals and

revisions in consumer matters and the object of expeditious adjudication of the

consumer disputes will get defeated if the appeals and revisions which are highly

belated are entertained.  Relevant observations made by Apex Court read as under:

“It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the Court

has to keep in mind that the special period of limitation has been

prescribed under the Consumer Protection Act, 1986 for filing

appeals and revisions in consumer matters and the object of

expeditious adjudication of the consumer disputes will get defeated

if this court was to entertain highly belated petitions filed against

the orders of the consumerfora”.

 

13.   The inordinate delay of 365 days cannot be condoned. Thus, we reject the

application for seeking condonation of delay of 365 days in filing the revision petition

before this Commission. Consequently, we dismiss the present revision petition being

time barred with cost of Rs.5,000/- (Rupees Five Thousand only).

14    Petitioner is directed to deposit the cost of Rs.5,000/- (Rupees Five Thousand

only) by way of demand draft in the name of ‘Consumer Welfare Fund’ as per Rule 10A

of Consumer Protection Rules, 1987, within four weeks from today. In case, he fails to

deposit the cost within prescribed period, then he shall be liable to pay interest @ 9%

p.a. till its realization.

15.     List on 17.05.2013 for compliance.

 

                                                                                …..…………………………J

                                         (V.B. GUPTA)

     PRESIDING MEMBER

 

…..…………………………

                                   (REKHA GUPTA)

                                                                             MEMBER

Sg/-

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 

REVISION PETITION NO.   1149 of 2013  (From the order dated 18.02.2011 in Appeal No. 564 of 2010 Bihar State Consumer

Disputes Redressal Commission, Patna)

With I.A. No.2089 & 2090 / 2013

(Stay & Condonation of Delay)

United Bank of India Head Office at 11, Hemanta Basu Sarani, Kolkata – 700001

and branches amongst others at Baranagar Branch, 57, Cossipur Road, Kolkata –

700036 (West Bengal) (through its Chief Manager)

… Petitioner/Opposite Party (OP)

                             Versus

M/s. Shib Durga Rolling Centre 177-B, Maharaja Nanda Kumar Road Kolkata – 700036

(through its sole proprietor Smt. Chandra Nandy)

… Respondent/Complainant

 

  BEFORE

 

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

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner       :     Mr. S.S. Lingwal, Advocate

PRONOUNCED ON         11 th   April ,     2013

 

O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 

          This revision petition has been filed by the Petitioner/OP against the impugned

order dated 18.02.2011 passed by the West Bengal State Consumer

DisputesRedressal Commission, Kolkata (in short, ‘the State Commission’) in Appeal

No.564 of 2010 – United Bank of India Vs. M/s. Shib Durga Rolling Centre by

which, appeal was dismissed in default.

 

2.       Brief facts of the case are that Complainant/Respondent filed complaint with the

District Forum and by order dated 29.7.2010, District Forum allowed complaint and

directed OP/Petitioner to return the original title deeds in respect of the landed property

to the complainant within a month and to pay compensation of Rs.5,000/- and litigation

cost of Rs.1,000/-, but appeal filed by the petitioner was dismissed in default by learned

State Commission by the impugned order against which, this revision petition has been

filed along with application for condonation of delay.

 

3.       Heard learned Counsel for the petitioner at admission stage on application

for condonation of delay and perused record.

 

4.       Learned Counsel for the petitioner submitted that petitioner came to know about

the impugned order on 26.11.2012, and revision petition has been filed on 22.3.2013;

hence, delay of 24 days in filing revision petition be condoned.

5.       Perusal of record reveals that impugned order dismissing appeal in default was

passed on 18.2.2011 and as per certified copy issued on 26.11.2012, free copy was

issued to the parties on 7.3.2011.  Petitioner has nowhere mentioned in its application

for condonation of delay that petitioner or his Counsel has not received free copy issued

by the learned State Commission.  In such circumstances, it may be presumed that

petitioner received free copy issued on 7.3.2011 and this revision petition has been filed

on 22.3.2013 i.e. after more than 2 years and in such circumstances, inordinate delay of

1 year and 9 months in filing revision petition cannot be condoned.

 

6.       Perusal of application reveals that on 1.8.2012, Petitioner-Bank received notice of

Execution Case No.124/2010 pertaining to this complaint and then Petitioner’s Branch

Manager contacted Advocate Sri Puranjay Das who assured that appeal will be

restored.  It was further mentioned in the application that Advocate was being contacted

through letters, e-mails or phones, but no documentary evidence in support of this fact

has been filed by the petitioner along with application for condonationof delay. It was

further submitted in the application that on 17.11.2012, Police Officer came with Arrest

Warrant for non-compliance of order of District Forum and thereafter, on 20.11.2012,

Branch Manager appeared before District Forum and paid the amount of compensation

and cost of litigation, as per order of District Forum and only after that Arrest Warrant

was recalled by District Forum. It was further mentioned in the application that

Petitioner-Bank applied for certified copy, which was received on 26.11.2012.  It was

further mentioned that Petitioner came to know about the fate of appeal only after the

receipt of certified copy on 26.11.2012. This fact is apparently wrong because when the

petitioner received Execution Notice on 1.8.2012 and further Police Officer came along

with Arrest Warrant on 17.11.2012 and further when Branch Manager appeared before

District Forum on 20.11.2012, the petitioner must have come to know about the fate of

appeal.  For the sake of arguments, even if, it is presumed that the petitioner came to

know only on 26.11.2012 about the fate of appeal on receipt of certified copy, he should

have filed revision petition immediately explaining delay of each day, but revision

petition has been filed on 22.3.2013 i.e. almost after 4 months.

 

7.       Apparently, no satisfactory explanation has been given by the petitioner for

inordinate delay of 1 year and 9 months for filing revision petition and in such

circumstances, application for condonation of delay is liable to be dismissed in the light

of the following judgments passed by the Hon’ble Apex Court and the National

Commission in (1) (1010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs.

Gujarat Industrial Development Corporation and Anr.; (2) (2012 3 SCC 563 – Office of

The Chief Post Master General and Ors. Vs. Living Media India Ltd.

and Anr. and (3) 2012 (2) CPC 3 (State Commission)

– Anshul AggarwalVs. New Okhla Industrial Development Authority.

 

8.       In such circumstances, application for condonation of delay is dismissed and

consequently, revision petition stands dismissed as time barred with no order as to

costs.

 

                             ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER

 

 

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBER

 k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

C.C. NO.39 OF 2013

                                                           

M/S. SAM FINE O CHEM LIMITED, FORMERLY KNOWN AS M/S SAM FINE CHEM

LTD. SHYAM VILA, SAPTA SINDHU COMPOUND ROKADIA LANE, BORIVALI,

MUMBAI 400092 MAHARASHTRA THROUGH, ITS AUTHORIZED SIGNATORY

.…  COMPLAINANT

            Versus

UNION BANK OF INDIA 66/80, MUMBAI SAMACHAR MARG MUMBAI 400023

MAHARASHTRA THROUGH ITS BRANCH DEPUTY GENERAL MANAGER

.... OPPOSITE PARTY

BEFORE:

HON'BLE MR.JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

HON’BLE MR.SURESH CHANDRA, MEMBER

 

For the Complainant                   : Mr.D. K. Singh and Mr.Diyang Thakur, Advs.

PRONOUNCED ON:                   12 th   APRIL, 2013

ORDER

PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

 

          M/s. Sam Fine O Chem Ltd., the complainant herein has filed this consumer

complaint under Section 21 (a) (i) of the Consumer Protection Act, 1986 with following

prayers:

a)                Direct the opposite party to pay a sum of Rs.1,24,00,966/- towards

refund of the excessive interest, which has been paid by the complainant till

date along with the unauthorized lead bank charges of Rs.15,15,030/-, which

have been paid, by the complainant till date.

b)                Direct the Opposite Party to pay the additional amount of interest of

Rs.62,10,832/- suffered by the complainant on account of levying of excess

interest every month and levying of lead bank charges periodically by the

opposite party.

c)                Direct the Opposite Party to pay future interest, calculated till the date of

realization at the rate of 12% per annum on the amount of Rs.2,01,26,828/-.

d)                Direct the Opposite Party to bear the entire cost of the instant

proceeding and the legal expenses incurred till the date of institution of the

present proceeding. 

e)                Provide any other relief deemed fit in the facts and circumstances of the

instant case.

 

2.           Briefly stated, relevant facts for the disposal of this complaint are that as per

allegations in the complaint, the complainant availed of credit facility from the OP bank

for expansion of its manufacturing facility.  The credit facility was sanctioned vide

sanction letter dated 17.04.2008 detailing various terms and conditions governing the

grant of loan to the complainant, which are reproduced as under:

 

i.                    The Complainant was sanctioned total credit limits of Rs.14

Crores.  The interest to be charged on the loan was 0.75% lesser than the

Benchmark Prime Lending Rate (“BPLR”) of the Bank.  Hence the interest

to be paid by the complainant was “BPLR-0.75%”.

 

ii.                  The sanction letter stated that interest rate was subject to

change in the event that the BPLR changed or the credit rating of the

complainant changed.

 

iii.                The sanction letter also informed the complainant that the

interest rate of “BPLR-0.75%” was subject to the approval by the

competent authority.

 

iv.                It further stipulated that “usual processing charges and

charges on documentation” would have to be borne by the company

without disclosing in clear terms the type, rate quantum and periodicity of

charges in maintenance of transparency in the dealings with the

customers as mandated by the Fair practices Code adopted by the Bank. 

 

3.          Grievance of the complainant is that the OP bank has charged and debited the

interest at the rate much higher than the agreed rate of interest and also charged and

debited unauthorized amounts in the loan account of the complainant in respect of the

processing charges, lead bank charges-consortium charges against the terms and

conditions of the agreement.  It is alleged that the complainant wrote various protest

communications to the OP bank but the OP has ignored the protest of the complainant,

this according to the complainant amounts to deficiency in service, therefore he has

filed the instant complaint with the above noted prayers.

4.      We have heard learned counsel for the complainant on maintainability of the

instant complaint under Section 21 of the Consumer Protection Act, 1986 and perused

the record.

 

5.      On perusal of the complaint we find that this complaint has been filed by M/s. Sam

Fine O Chem Ltd. claiming itself to be a ‘Consumer’.  The term consumer has been

defined under Section 2 (1) (d) of the Consumer Protection Act, 1986 as under:

"consumer" means any person who—

(i) buys any goods for a consideration which has been paid or promised or

partly paid and partly promised, or under any system of deferred payment

and includes any user of such goods other than the person who buys such

goods for consideration paid or promised or partly paid or partly promised,

or under any system of deferred payment when such use is made with the

approval of such person, but does not include a person who obtains such

goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for a consideration which has been paid

or promised or partly paid and partly promised, or under any system of

deferred payment and includes any beneficiary of such services other than

the person who 'hires or avails of the services for consideration paid or

promised, or partly paid and partly promised, or under any system of

deferred payment, when such services are availed of with the approval of

the first mentioned person but does not include a person who avails of

such services for any commercial purposes;

[Explanation.— For the purposes of this clause, “commercial purpose”

does not include use by a person of goods bought and used by him and

services availed by him exclusively for the purposes of earning his

livelihood by means of self-employment;] 

 

6.      On reading of the above definition in conjunction with the explanation, it is evident

that any person who has bought goods or availed services for commercial purpose is

not a consumer unless the goods bought or the services availed by him were

exclusively for the purposes of earning his livelihood by means of self-employment.  In

the present case, on going through the allegation in the complaint, it is evident that the

complainant has availed the credit facility services of the OP bank for commercial

purpose i.e. the expansion of its manufacturing facility.  The complainant is a limited

company and not an individual therefore it cannot be said that the services of OP were

availed by the complainant for earning of his livelihood by means of self-

employment.  Thus, in our view, the complainant does not fall within the definition of

‘consumer’ given under Section 2 (1) (d) of the Consumer Protection Act, 1986.  In our

aforesaid view, we find support from the order dated 22.08.2003 of Four Members

Bench of this Commission in O.P. no.174/2003 titled M/s. Leatheroid Plastics Pvt. Ltd.

Vs. Canara Bank.   

 

7.           Learned counsel for the complainant has referred to the judgment of Supreme

Court in the matter of Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi,

(2000) 1 SCC 98 and submitted that the Consumer Protection Act is aimed to protect

the interest of the consumer and definition of consumer given under Section 2 (1) (d) is

wide enough to include a person who bought and hired service for consideration even if

the services availed or hired are for commercial purposes.  Learned counsel for the

complainant has also referred to the judgment of Supreme Court in the Standard

Chartered Bank Ltd. vs. Dr. B. N. Raman, (2006) 5 SCC 727 and contended that in the

aforesaid case Hon’ble Supreme Court has held that the banks in furtherance of their

business render service/facility to its customer or even non customer, therefore it is

obvious that the OP was a service provider qua whom the complainant is a ‘consumer’

and as such, the complaint is maintainable.

 

8.      We do not find merit in the submissions made by the learned counsel for the

complainant.  The judgments relied upon the complainant are of no avail to him.  So far

as the judgment in the case of Regional Provident Fund Commissioner Vs. Shiv Kumar

Joshi (Supra) we may note that the aforesaid judgment is based upon the interpretation

of the definition of ‘Consumer’ as it then existed.  The definition of consumer was

amended in the year 2003, which provided that the person who hired or availed services

for commercial purposes would be excluded from the definition of ‘consumer’.  Even the

judgment in the matter of Standard Chartered Bank Ltd. Vs. Dr. B. N. Raman (Supra) is

not applicable to the facts of the this case.  The aforesaid judgment related to the case

pertaining to deficiency in service in respect of foreign currency deposited in the NRI

account holder and it was not a case of loan or credit facility availed by the customer for

commercial purpose. 

 

9.      In view of the aforesaid discussions, we are of the view that since this complaint

relates to deficiency in service availed for commercial purpose, the complainant is not

covered under the ambit of the definition of ‘consumer’ given under Section 2 (1) (d) of

the Consumer Protection Act, 1986, as such the complainant is not eligible to maintain

the complaint.  The complaint is accordingly dismissed.      

                                                             ………………sd/-…..………..

       (AJIT BHARIHOKE, J.)

        PRESIDING MEMBER

                                                           Sd/-                                          

                          ……………….……………

(SURESH CHANDRA)

bs                                                                           MEMBER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 

REVISION PETITION NO. 3855 of 2011

 (From the order dated 13.10.2011 in Appeal No. 154 of 2011 State Consumer Disputes

Redressal Commission, UT, Chandigarh)

 Standard Chartered Bank SC Tower, SLF Cyber City Building 7A, Sector 24,25,25A,

Gurgaon

                                             … Petitioner/Opposite Party (OP)

                             Versus

Krishan Lal Juneja S/o Shri Sant Ram Juneja R/o H. No.285, Sector 33-A,

Chandigarh                                             … Respondent/Complainant

 

  BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

For the Petitioner       :     Mr. Devmani Bansal, Advocate

For the Respondent  :     Mr. A. Tewari, Advocate

PRONOUNCED ON           12 th     April,     2013  

O R D E R  PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

 

          This revision petition has been filed by the Petitioner/OP against the impugned

order dated 13.10.2011 passed by the Learned State Consumer Disputes Redressal

Commission, UT Chandigarh (in short, ‘the State Commission’) in Appeal No.154 of

2011 – Krishan Lal Juneja Vs. Standard Chartered Bank by which, while allowing

appeal, set aside order of dismissal of complaint passed by District Forum and directed

OP to refund Rs.2,52,574.53 along with compensation of Rs.30,000/-.

 

2.       Brief facts of the case are that Complainant/Respondent along with his son and

daughter-in-law obtained loan of Rs.60,00,000/- from OP/petitioner. Subsequently, due

to higher rate of interest, the complainant decided to make pre-mature payment. OP

agreed to the request of the complainant for pre-mature payment, but vide letter dated

9.9.2010, OP demanded Rs.2,52,574.53, as prepayment charges.  Complainant under

protest deposited the aforesaid amount along with due loan amount and closed the

account. Complainant, alleging deficiency on the part of OP, filed complaint for refund of

prepayment charges along with compensation.  OP filed reply and submitted that

complainant accepted all terms & conditions of sanction letter and on receipt of his

acceptance, loan was disbursed.  It was further submitted that pre-payment charges

were charged as per terms & conditions of the sanction letter and prayed for dismissal

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

against which, complainant filed appeal and learned State Commission vide impugned

order allowed appeal, as directed aforesaid.

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

 

4.       Learned Counsel for the petitioner submitted that petitioner has not committed

any deficiency in claiming pre-payment charges as per terms and conditions of sanction

letter and learned State Commission has committed error in allowing appeal; hence,

petition be allowed and impugned order be set aside.  On the other hand, learned

Counsel for the respondent submitted that order passed by  learned State Commission

is in accordance with law; hence, revision petition be dismissed.

 

5.       Learned State Commission while disposing of appeal, observed in paragraph 11,

as under:

“11.    This letter was signed by the complainant, his son and

daughter-in-law. There is nothing, in this letter, regarding the

prepayment charges. Even, on the overleaf of this document, no

conditions are mentioned that, in case, the complainant wanted to

pre-close the loan, he was required to pay prepayment charges. At

page No.25 of the District Forum file, there is a document,

containing the terms and conditions. This document is not signed

by the complainant, his son and daughter-in-law. Even this

document is not signed by any official of the bank. This is a

unilateral document of the bank, and is not binding on the

complainant. No doubt, as per clause-10 of this document, if loanee

wanted to pre-close the entire loan, he was required to pay pre-

closure charges @ 2.5%, on the principal amount outstanding at

the time of pre-closure. Had these terms and conditions, been

signed by the complainant, his son and daughter-in-law, loanees, it

would have been said that the same were binding upon them. No

help, therefore, can be drawn by the OP bank, from these terms

and conditions, the same being unilateral. Under these

circumstances, there was no agreement, between the parties, that

in case of pre-closure of loan, loanees shall be liable to pay the pre-

closure charges. The bank, therefore, could not charge the

prepayment charges/foreclosure charges, at the time, the loan was

prepaid by the complainant his son and daughter-in-law. The OP

bank, thus, indulged into unfair trade practice, in charging

prepayment charges in the sum of Rs.2,52,574.53. The District

Forum gravely erred, in not properly interpreting R1. The complaint

should have been allowed, but the District Forum, illegally

dismissed the same. The order of the District Forum, being illegal,

is liable to be set aside and the complainant is entitled to the refund

of amount of Rs.2,52,574.53 illegally charged, from him, as pre-

closure/pre-payment charges, by the OP”.

 

6.       Learned State Commission directed for refund of pre-payment charges on the

ground that terms & conditions regarding prepayment charges were not signed by the

complainant, his son and daughter-in-law and had these terms been signed, it would

have been binding upon them.  Perusal of record reveals that personal information

document containing photos of complainant, his son and daughter-in-law contains

signatures of complainant, his son and daughter-in-law.  It has specifically mentioned in

personal information document:

“I confirm that I have understood the points as mentioned below:

 

1.   I understand that

.    My application may take a minimum of 2  working days to

process once I have completed all requirements as required by

the Bank.

 

.    Disbursal of the loan may take a minimum of 2

     working days from the time of submission of all

     property and loan related documents as required  

     by the Bank.

 

.    Linkage setup for Home Saver on system may take  

     A minimum of 4 working days from the time of

     submission of all loan/account related documents  

     as required by the Bank.

 

.   The actual interest rate applicable on my loan will

    be as mentioned in the sanction letter and will be

    governed as per terms and conditions therein.

 

.   The interest will be calculated on a Daily Reducing

    Balance and is charged with monthly rests.   

.   If there is a review in my rate of interest during the

   tenure of the loan (for variable rate loan) will be

   advised of the new rate applicable.

         

.  Panel charges, part prepayment fee and pre-closure    

   fee will be applicable as per the sanction letter.      

  The Total fee to be paid by me is Rs.____.

 

  I understand that only in the event of my loan getting              

  declined an amount of Rs.2,000/- (or the fee paid by

  me, whichever is lower) would be deducted and the

  balance amount refunded”.

At the bottom of loan sanction letter which bears signatures of all the borrowers reads

as under:

“Please sign this letter as a token of your acceptance of the terms

and conditions mentioned above and overleaf and give us a signed

copy of this letter.  Please feel free to call us at our Phone banking

help-line 39404444”.

 

On the overleaf of this sanction letter, Condition No. 10 runs as under:

If you preclose the entire loan outstanding amount, you shall pay to

the bank a pre-closure fee at the rate of 4% ad valorem on the

principal outstanding amount for the first 3 years from the date of

final disbursal.  In case you wish to preclose after 3 years, there will

be a fee of 2.5% on the principal outstanding at the time of such

closure”.

 

 Article 2.8 of the Loan Agreement, which has been signed by all the borrowers, runs as

under:

“Pre-payment

SCB may, in its sole discretion and on such terms as of prepayment

charges, minimum prepayment amount, etc., as it may prescribe,

permit prepayment/acceleration in payment of EMIs at the request

of the Borrower, subject that SCB may specify, from time to time,

the minimum amount of prepayment/amounts pyable on account of

acceleration of EMIs. In the event SCB permits any

prepayment/acceleration, the repayment schedule for the Loan

shall be amended/altered by SCB for giving effect to such

prepayment/acceleration, and such amended/altered repayment

schedule shall be binding upon the Borrower”. 

  

7.       Perusal of aforesaid documents clearly reveals that complainant along with his

son and daughter-in-law agreed to pay for preclosure of the account and learned State

Commission has wrongly come to the conclusion that complainant and his son and

daughter in-law have not signed this Agreement.  It has rightly been observed by the

learned State Commission that had these terms and conditions been signed by the

complainant, his son and daughter-in-law, it is binding on them. As these terms and

conditions have been signed by the complainant, his son and daughter-in-law, the

complainant was bound to pay preclosure charges as per Agreement and OP/petitioner

has not committed any deficiency in demanding preclosure charges.   Learned District

Forum rightly dismissed the complaint and learned State Commission has committed

error in allowing complaint and directing refund of preclosure charges along with

compensation.

 8.       Documents and complaint clearly reveals that loan was taken by the

complainant, his son and daughter-in-law, but complaint has been filed only by the

complainant, while his son and daughter-in-law have not been arrayed as complainants

and in absence of them, complaint was not maintainable for non-joinder of necessary

parties.

 9.       Consequently, revision petition filed by the petitioner is allowed and impugned

order dated 13.10.2011 passed by learned State Commission in Appeal No.154 of 2011

– Krishan Lal Juneja Vs. Standard Chartered Bank  is set aside and order of District

forum dismissing complaint is affirmed with no order as to costs.

 

..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBER k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION No. 436 of 2011

(From the order dated 14.07.2010 of the Maharashtra State Consumer Disputes

Redressal Commission, Mumbai, Circuit Bench at Aurangabad in Appeal no. 653 of

2006)

Suresh Baban Gadekar Resident of Nannaj, Tq. Jamkjhed District Ahemdnagar

                                                    Petitioner

  Versus

1.  ICICI Bank Through its Manager Registered Office at Racecourse Circle Vadodra –

390073

 

2.  Branch Manager Regional Manager 1st Floor, Tapadia Circle Nirala Bazar,

Samarthnagar Aurangabad

 

3.  Branch Manager 870/1 Suma House Bhandarkar Road Opposite Foodworld Pune –

411005 Through ICICI Bank Ltd. Ground Floor, Woodmall Plaza Opp. Raheja Gardens

LBS Marg, Thane – 400604

 

4.   Salim Najir Sayyed Resident of Raj Chambers Kotla Stand, Gulf Icheir Tractor

Engines Ahmednagar

Respondents

 

BEFORE:

          HON’BLE MR JUSTICE V B GUPTA             PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                                                 MEMBER

  

For the Petitioner                         Mr Preetam Shah, Advocate

For the Respondents no. 1 to 3      Mr Love Kumar, Advocate 

Pronounced   on     16 th   April     2013  

ORDER 

REKHA GUPTA

        Revision petition no. 436 of 2010 has been filed against the judgment and order

dated 14.07.2010 passed by the Maharashtra State Consumer

DisputesRedressal Commission, Mumbai (Circuit Bench, Aurangabad) (‘the State

Commission’) in First Appeal no. 653 of 2006.

        The brief facts of the case as per the petitioner/ complainant are as under:

        Petitioner/complainant deposited Rs,1,00,000/- to respondent no. 4/opposite party

no. 4 for purchasing tractor of Eicher Co. on 28.04.2003 and took a loan from

respondent no. 3/ OP no. 3 of Rs.2,40,000/- @ 9% per annum interest was decided on

such loan. The petitioner purchased tractor MH 16 F 4388 and Registered at R T O.

        Respondent no. 3 gave a table of statement about how to repay the loan to

petitioner and the petitioner as per it repay it. The petitioner has deposited Rs.73,240/-

for repayment of loan to respondent no. 3 out of it Rs.69,240/- were deposited from time

to time.  The petitioner has given Rs.1,00,000/- to respondent no. 4 and one instalments

@ Rs.4000/- respondent no. 3 for depositing it into bank. But respondents no. 3 or 4 are

not giving its receipt to him.

Details of repayment to the Bank by the petitioner:

 

Rs. Receipt no. Date

4,000/- 997863 27.03.2003

11,240/- 574675 24.07.2003

5,000/- 1305212 12.11.2003

15,000/- 1216039 28.11.2003

10,000/- 1540873 28.01.2004

9,000/- 997858 12.02.2004

5,000/- 9997862 12.03.2004

10,000/- 1894037 05.06.2004

     

69,240/-    

       

Even then on 23.06.2004, respondent no. 3 apprehended the petitioner and

drove away the tractor. After that on 10.03.2005, the respondent wrote a letter informing

they sold away the tractor. But on inquiring it to RTO by the petitioner he has been

informed that till date such tractor has not been transferred and it has been sold only for

Rs.1,60,000/-.

        Due to seizure of tractor the petitioner has sustained a loss of Rs.1,80,000/-,

because he was giving it on rent for cultivating land and he was earning Rs.1,30,000/-

per month and the petitioner could not get Rs.1,30,000/- from it from the date of seizure.

Respondent no. 3 seized and disposed of tractor even though the petitioner is able to

pay. Respondent no. 3 has not taken any written permission for sale.

        The respondents no. 1 to 3 on the other hand, in their written statement have

averred that “the Hon’ble Consumer Forum has no jurisdiction to try and entertain this

complaint as relation between complainant and opponent are debtor and creditor and

the complainant has obtained commercial loan of Rs.2,40,000/- from ICICI Bank Ltd.,

for purchase of Tractor Eicher 485 Vehicle bearing registration no. MH 16 F 4388. On

terms and conditions agreed between the complainant and opponents as per

hypothecation agreement bearing no. LFADR no. 00001205843. It is further submitted

that the complainant has not obtained the said loan under any scheme of the

Government for Educated unemployed person but obtained the said loan for

commercial purpose as per scheme of opponent. The complainant has agreed to pay

36 EMI/ instalments, i.e. first 5 instalments of Rs.4,000/- each and the sixth instalments

of Rs.31,530/- and so on up to 36 instalments starting from 1st June 2003 to May 2006

as per loan agreement. The complainant has executed hypothecation agreement and

other loan documents in favour of the opponent but the complainant has failed to pay

EMI regularly as agreed by him. The complainant has defaulted in making payment of

the instalments whenever the same fell due. On this count also the complaint of the

complainant are liable to be dismissed.

        The respondents sold the said vehicle to a bonafide purchaser. It is further,

submitted by these opponents that the petitioner admitted in his complaint that “His

Financial Condition is Good”, but the petitioner on his own accord failed to repay

EMI/instalments of the said vehicle as agreed by him. The petitioner has failed to pay

EMI/ instalment from April 2004 on his own accord these fact shows that the petitioner

is a wilful defaulter and he admitted the fact in his complaint. On repeated request calls

and personal follow up on behalf of respondent the petitioner failed to pay the

instalments as agreed by him.

        The petitioner voluntarily surrendered the said vehicle to the opponent on

23.06.2004. At that time surrender amount of Rs.37,420/- + bounces, penalty and

interest etc., was due from the petitioner. Thereafter, the respondent has issued notice

dated 12.07.2004 to the petitioner and gave due opportunity to the petitioner in spite of

the said notice the petitioner failed to settled his account with the respondent on his own

accord. Thereafter, the respondent after following due procedure of law and as per

vehicle loan agreement and hypothecation agreement on ____/___/200  disposed of the

said tractor for Rs.1,60,000/- and handed over the said vehicle and papers of the

vehicle to the purchaser and respondent deposited the amount of the sale proceeds of

the said vehicle in the loan account of the petitioner and started further action for the

recovery of the remaining loan amount and bounces, penalty and interest etc.

        The District Consumer Disputes Redressal Forum, Ahmednagar (‘the District

Forum’) considering all the facts of the case gave the following order:

        “Interim order given is hereby confirmed.

Within 30 days from the date of judgement (a) opposite party no. 1 & 2, 3 jointly

or severally to give tractor No. MH 161 F 4388 in roadworthy condition to

complainant; (b) if said vehicle is defective, expenses to repair borne by

opponent no. 1 to 3; (c) opponent not to levy interest or fine on due instalments

for one month from opponent giving possession of vehicle to complainant for due

instalments from 23.06.2004 to possession of vehicle by complainant. And not to

recover expenses to take away vehicle from complainant and to keep it in their

possession, from complainant; (d) the instalment of complainant due on

23.07.2004 to be paid opponent within one month from the possession of vehicle

by complainant. And complainant seems that further instalment will be due in

each month respondent and complainant shall pay regularly to opposite

party;   or

 

2.     If opponent has not given the seized vehicle of complainant to complainant’s

possession within 30 days, then within further 30 days; (a) opposite party no.1 to

3 jointly and severally shall pay to complainant the amount of Rs.69,000/- which

complainant had paid to them and Rs.1,00,000/- paid to opponent no. ; (b) The

above order para (1) considered to be cancelled.

3.     OP no. 1, 2 & 3 jointly and severally shall pay to complainant Rs.15,000/- for

mental agony and Rs.5,000/- as cost of complaint”.

        Aggrieved by the order of the District Forum, the respondents 1, 2 & 3/OP no. 1, 2

& 3 filed appeal no. 653 of 2006 before the State Commission against the petitioner and

respondent no. 4/ OP 4. The State Commission vide order dated 14.07.2010 stated as

follows:

“We heard both the counsels and perused the record. It is an admitted fact that

petitioner obtained loan from respondent. It is also admitted fact that with the

assistance of said finance petitioner purchased tractor of Eicher company.

Petitioner in the complaint admitted that tractor purchased by him is used for hire

purpose for cultivation for which he used to charge money. Therefore, it can be

said that tractor had been purchased for commercial purpose. Petitioner claiming

compensation of Rs.13,000/- per month as he used to hire out the tractor to

others. In total he claimed Rs.1,80,000/- for the loss of his business. As

complainant himself mentioned in complaint that he used to hire out tractor to

others for cultivation, i.e., using it for commercial purpose, we are of the view that

complainant will not fall in the definition of ‘consumer’ as per Consumer

Protection Act. As the vehicle is used for commercial purpose complaint is not

maintainable. District Forum did not consider this primary issue while deciding

the complaint. On this ground, we are allowing the appeal.  We pass the

following order:

(i)                  Appeal is allowed;

(ii)                 The impugned judgment and order passed by the Forum is hereby

quashed and set aside;

(iii)                Complaint stands dismissed;

(iv)               No order as to cost;

(v)                 Copies of the judgment be issued to both the parties”.

Dissatisfied and aggrieved by the order of the State Commission the petitioner

has filed this present revision petition.

Along with the revision petition, the petitioner has filed an application

for condonation of delay of 59 days. The reasons given for the delay are as follows:

It is submitted to this Hon’ble Commission that the impugned order dated

14.07.2010 was received by the petitioner by post only on 02.10.2010.

During the second week of October 2010, the petitioner approached his local

counsel to discuss the consequences of the impugned order but the local counsel for

the petitioner was not available during the month of October, 2010, because of some

personal difficult of the counsel.

The petitioner again contacted the said counsel to discuss the impugned order in

the second week of November 2010, wherein the petitioner was advised by the said

counsel to prefer a revision petition before the National Commission. The petitioner

contacted his counsel at New Delhi for filing revision petition in the third week of

November 2010. The counsel at New Delhi asked the petitioner to send the necessary

papers in order to draft the revision petition. Accordingly, the petitioner sent the said

documents to the counsel at New Delhi in the first week of December 2010. After

perusing the documents the counsel for the petitioner at New Delhi found that some of

the documents were missing. Immediately, the counsel again contacted the petitioner to

send complete papers in the second week of December 2010.

The petitioner sent the complete papers in the said revision petition to the

counsel at New Delhi in the third week of December 2010. Accordingly, the counsel

drafted the revision petition and sent the same to the petitioner for approval in the last

week of December 2010. By the last week of December 2010, the period for filing the

revision petition within time had expired.

The petitioner could not send the approved draft to the counsel of the petitioner

till the first week of February 2011, because the petitioner had encountered with a

serious health problem during the month of December 2010 and January 2011 and in

view of the matter some unintentional delay has been caused in filing the present

revision petition.

The petitioner was in Delhi for filing the said revision petition in the first week of

February 2010 and accordingly the petition was finalised and filed before this

Commission.

We have heard the counsel for the petitioner as well as the respondents and

have also gone through file carefully. The counsel for the petitioner could not explain as

to how the petitioner becomes a ‘consumer’ under the definition 2 (1) (d) of the

Consumer Protection Act, 1986. The petitioner in his own complaint has stated in

paragraph 8 as follows:

“Due to the seizure of tractor applicant has sustained a loss of Rs.1,80,000/-.

Because he was giving it on rent for cultivating land and he has earning Rs.1,30,000/-

per month and applicant could got Rs.1,30,000/- from it from the date of seizure”.

We are of the view that the State Commission also in their order has rightly come

to the conclusion that the tractor has been purchased for commercial purpose and

hence, the complainant will not fall under the definition of ‘consumer’ as per the

Consumer Protection Act, 1986. As the vehicle is used for commercial purpose hence,

the complaint is not maintainable. The District Forum did not consider this primary issue

while deciding the complaint.

The application for condonation of delay also gives no dates, name of the

counsel or detailed reasons to account for the delay. It is also stated that though the

petitioner had received the drafted petition sometime in December 2010, the petitioner

could not sent the brief of the draft to the counsel till the first week of February 2011

because, the petitioner had encountered with serious health problems during the month

of December 2010 and January 2011. This fact has not been supported by any affidavit

or medical certificate.

Accordingly, we find that there is no ‘sufficient cause’ to condone the delay of 59

days in filing the present revision petition. Consequently, the present revision petition

being time barred by limitation is dismissed with cost of Rs.5,000/-. (Rupees five

thousand only).

         Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within

four weeks from today. In case the petitioner fails to deposit the said cost within the

prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

        List on 17th May 2013 for compliance.

Sd/-

..………………………………[ V B Gupta, J.]

  

Sd/-………………………………..

[Rekha Gupta]Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION NO.   3871 OF 2011

(From the order dated 06.09.2011 in First Appeal No. 269/2010 of the Gujarat State

Consumer Disputes Redressal Commission, Ahmedabad)

 

 Mistri Jayantilal Vithaldas, Near State Bank of India, At Post Taluka: Idar,

District Sabarkantha, PIN – 383430 Gujarat

                                                                    ...  Petitioner

Versus

 The Idar Nagrik Sahakari Bank Ltd., Jawanpura, Taluka : Idar, District: Sabarkantha,

Gujarat

                                                            …. Respondent(s)

  BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

 Appeared on 02.04.2013 at the time of arguments,

 For the Petitioner(s)   Mr. Mistri Jayantilal Vithaldas

Petitioner in person 

For the Respondent (s)   Mr. Rauf K. Mansuri, Advocate

 

 PRONOUNCED   ON :   17 th   APRIL,   2013  

   O R D E R 

 PER DR. B.C. GUPTA, MEMBER

         This revision petition has been filed under Section 21(b) of the Consumer

Protection Act, 1986 against the order dated 06.09.2011 passed by the Gujarat State

Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as

“State Commission”) in First Appeal No. 269 of 2010, vide which the said appeal against

order dated 10.02.2010 passed by the District Consumer

Disputes RedressalForum, Sabarkantha was ordered to be dismissed.

2.     Briefly stated, the facts giving rise to the present petition are that the

complainant Mistry Jayantilal Vithaldas and his family members deposited certain

amounts of money under fixed deposit with the respondent/opposite party,

the Idar Nagrik Sahakari Bank Ltd., which is registered as a Cooperative Bank.  The

money was deposited under the Sahkar Laxmi Deposit Scheme introduced by the Bank

and a number of certificates were issued by the Bank in the name of the complainant

and his family members, undertaking the amount payable on maturity after a certain

period of years.  The deposits were made on different dates during the years 1998.  It

was indicated in the scheme that the rate of interest shall be 12 ½ % and fixed sums

shall be payable at the end of a particular period, as far example, in this case, a sum

of Rs. 34,240/- was payable at the end of 10 years.  It was also mentioned that if the

investor desired to withdraw the amount within a period of three years, only the principal

amount would be returned without any interest.  The period of ten years was to expire in

the year 2008 but the Bank decided to lower the rate of interest on such deposits in the

month of February, 2004, following certain circular issued by the Reserve Bank of India

(RBI) in the year 2002.  The case of the complainant is that the bank was not authorized

to make any change in the rate of interest midway with retrospective effect and such

change should not have affected the rights of the investor.  The complainant, on being

informed by the bank through public notice in February, 2004, regarding lowering of the

rate of interest, sent a letter dated 06.03.2004 saying that the opposite party had no

lawful right to make change of any kind.  However, the bank sent a letter to him on

16.04.2004, saying that the prevailing rate of interest was applicable only to long term

deposits.  The complainant lodged a report with the local Police Station, but it was held

in the said proceedings that it was a civil matter.  At the time of maturity of the said

investment in the year 2008, the bank refused to pay him the amount already committed

and informed the complainant by letter dated 12.05.2008 that he was entitled to receive

his money along with interest as per the new policy only.  The complainant lodged a

complaint with the District Forum pleading that he should be paid back the amounts

already committed by the bank along with a further penal interest of 3%.  The District

Forum rejected the complaint, saying that the bank had reduced the rate of interest on

fixed deposits under the instructions of RBI and the bank was bound to follow the

directives of the RBI.  They had also issued public notice in this regard and even

committed to pay 2% more interest than the new rates, if the fixed deposits were

renewed in time.  The District Forum also observed that it was mentioned on the deposit

certificates that change in interest could be made on the directives of the RBI. 

3.     An appeal was filed before the State Commission against this order.  The State

Commission observed that the complainant should have filed the complaint in question

within two years from the date i.e. 16.04.2004, when the bank had sent a letter to the

complainant.  The complaint was therefore, barred by limitation under Section 24A of

the Consumer Protection Act, 1986.  The State Commission passed the said order

without going into the merits of the case.  It is against this order, that the present petition

has come up.

4.     During the course of hearing before us, the petitioner personally presented his

case and vehemently argued that the bank had no right to reduce the rate of interest in-

between, when the period of ten years for which the fixed deposits were made was not

over.  He further stated that when he invested the money with the bank in the year

1998, there was a binding contract between him and the bank and the terms of the

contract could not be altered later on.  The complainant invited our attention to the

circular in question issued by the RBI on 10.10.2002, saying that the RBI had simply

asked to all Urban Cooperative Bank in the country to review  their interest rates

structure on term deposits and take appropriate action to make them comparable with

rates offered by the Commercial Banks.  Such kind of circular had not given any

direction to lower the rate of interest and in case, the rate of interest was reduced on

review, it could best be with prospective effect.  Thecomplainant also invited our

attention to a letter written by the Deputy General Manager, Reserve Bank of India to

the respondent / opposite party on 07.10.2004 vide their letter No. UBD(AH)Com.

No….12.06.364/2004-05, in which it has been clarified that the deposit transaction

between the bank and its depositors is a contract and is subject to the terms and

conditions of that contract and the bank is liable for stringent action if they do not adhere

to the terms of acceptance of the deposit.

5.     The learned counsel for the respondent, invited our attention to the circular dated

10.10.2002 as mentioned above and stated that the following directive from the RBI, the

respondent bank passed a Resolution on 19.11.2003 in a Special General Meeting of

the Board of Directors, in which it was decided to reduce the rate of interest. For the

deposits in question, the rate of interest was reduced to 9% and a public notice to this

effect was also given in the newspapers and the depositors were asked to convert the

deposits under the Sahakar LaxmiDeposit Scheme during the period from 20.02.2004 to

20.03.2004 and they were offered 2% more interest than the new rate of interest.   The

Bank had not therefore, indulged in any deficiency of service and hence the complaint

deserved to be filed.  The counsel for the respondent also invited our attention to a

citation quoted in Jalgaon Janta Sahakari Bank Ltd.

Versus Hrishikesh Prabhakar Kulkarni & Ors. reportedin IV (2012) CPJ 163 (NC),

saying that the National Commission has held that the bank was within its right to alter

rate of interest pursuant to reduction of rate of interest by the RBI.

6.     We have carefully considered the facts of the case and the arguments advanced

before us.  It is admitted that the complainant and his family members had deposited

certain sums of money at different times from the year 1998 with the respondent bank

for a period of ten years and the rate of interest for the said deposit at that time was 12

½%.  It was clearly committed by the bank that a fixed sum say Rs. 34,240/- shall be

paid to them on maturity after a period of ten years.  The respondent bank have built up

their defence on the strength of the circular issued by the RBI in October 10, 2002.   For

ready reference the said circular is reproduced as under:

“RESERVE BANK OF INDIA

URBAN BANKS DEPARTMENT,

LA GAJJAR CHAMBERS, ASHRAM ROAD,

POST BAG NO. 1,

AHMEDABAD – 380 009

 

Ref. UBD(AH)DC No. 519/13.04.01/2002-03

October 10, 2002

 

All Primary (Urban) Co-operative Banks

Dear Sir,

 

Interest rates on deposits offered by

Urban Co-operative Bank (UCBs)

 

1.     In terms of instructions contained in our Central Office circular No.

UBD/BSD.1.28/12.05.01/2001-02 dated 31st January, 2002, Urban Co-operative Banks

are required to review their interest rate structure on term deposits of different maturities

and take appropriate action to make them comparable with the rates offered by

commercial banks.

 

2.     It has, therefore, been decided that UCBs should forward to us a statement on half

yearly basis indicating therein the rates of interest offered by them on deposits of

different maturity periods and whether the same are comparable with the rates offered

by commercial banks. First such statement for the half year ending December 31, 2002

may be forwarded to us by 15th January, 2003.

 

3.     Please acknowledge receipt of this circular.

 

Yours faithfully,

 

Sd/-

(A.V. Sabhapathy)

Deputy General Manager”

 

7.     A plain reading of the above circular makes it very clear that it is a general circular

issued to all Urban Cooperative Banks in the country asking them to review their

interest rates structure on term deposits and make them comparable with the rates

offered by the commercial banks.  The respondent bank did their exercise in pursuance

to this circular and decided to reduce the rates of interest.  However, the circular of the

RBI does not make it mandatory anywhere that any decision taken by the bank after

review shall have a retrospective effect. The bank was within its rights to reduce the rate

of interest but it cannot be made applicable to deposits already made with the

bank.  The terms of the contract already made between the investor and the bank

cannot be changed retrospectively to the detriment  of the investor. Moreover, when a

public notice was given by the petitioner, enunciating their new policy, the complainant

did write to the bank on 06.03.2004 that they were committing an illegal act.  We

therefore, have no reason to agree with the conclusion arrived at by the District Forum

that there was no deficiency in service on the part of the bank as it was bound to follow

the directives of the RBI.  The direction of the RBI was of a general nature aimed at

bringing reforms in the policies being followed by the bank and this circular in no way

impinges upon the right of the consumer/investor.  We also, find no reason to agree with

the plea taken by the State Commission that the complaint should have been filed within

two years of the letter dated 16.04.2004 sent by the Bank.  The complainant has

proceeded after the period of maturity of fixed deposits when the period of contract was

over and the bank refused to give the money as mentioned in the terms of the

contract.  The complaint, therefore, cannot be called time barred under Section 24A of

the Consumer Protection Act.  Regarding the case cited by the respondent (Supra), the

National Commission did not order the refund of excess amount as already paid by the

bank.  Moreover, in the instant case, there is no specific direction by the RBI to reduce

the rate of interest.

8.     Based on the above discussion, the present petition succeeds, the order passed

by the State Commission and the District Forum are set aside and the respondent is

directed to pay the amounts in question to the complainant as per the terms and

conditions of the contract entered in the year 1998.  It is also clarified that the

respondent shall pay a further rate of interest beyond the period of maturity at the new

rates adopted by the bank till the period of realization.  No order is being passed as to

costs.

 ..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

..……………………………

(DR. B.C. GUPTA)

MEMBERSB/4

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI       

 ORIGINAL PETITION NO. 277 OF 1998

Gujarat Scheduled Caste Development  Corporation Through its Office at Block No.10

IInd Floor, Dr.Jivraj Mehta Bhavan Old Sachivalay, Gandhinagar

                                 …  Complainant

Versus

 

1. Ahmedabad Mahila Nagrik  Co-operative Bank Ltd

2. The Incharge Chairman Ahmedabad Mahila Nagrik  Co-operative Bank Ltd

3. Kum. Ritaben Shah Incharge Manager Ahmedabad Mahila Nagrik  Co-operative

Bank Ltd All 3 R/o M/4/73, Shop No.45-46 Shastrinagar Shopping Centre

Naranpura, Ahmedabad

                                     …  Opposite Parties

AND

 

ORIGINAL PETITION NO. 278 OF 1998

 

Gujarat Scheduled Caste  Development Corporation Through its Office at Block No.10

IInd Floor, Dr.Jivraj Mehta Bhavan Old Sachivalay, Gandhinagar

                                         …  Complainant

Versus

1. Ahmedabad Urban Co-op. Bank Ltd.  

2. Sh.Surendra N. Rajput Managing Director and Chairman Ahmedabad Urban Co-op.

Bank Ltd.

 3. Sh.Jayendra R.Shah Incharge Manager Ahmedabad Urban Co-op. Bank Ltd. All 3,

R/o Vishala Commercial Centre Near Dinesh Chambers, Ashram Road Ahmedabad

 4. Sh.Naishad S.Shah, Branch Manager Ahmedabad Urban Co-op. Bank Ltd.

Sarangpur Branch, 12/127, Anand Cloth Market Sarangpur, Odhav Road,

Ahmedabad

…  Opposite Parties

 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER

          HON’BLE DR. DR. S. M. KANTIKAR, MEMBER

 

For the Complainant in both cases        : Mr. D.M.Ahuja, Advocate

 

For Opposite Party No.1      : Ms. Manisha C. Shah, Advocate

in OP 277/98                           with Mr.S.R.Patel, Official Liquidator

 

For the Opposite Party

Nos. 2 & 5 in OP 278/98      : Mr. M.A. Khan, Advocate

 

Pronounced on 23.04.2013

ORDER

JUSTICE J.M.MALIK

 

1.      The key question which  falls  for consideration is “Whether Section 112

of  Gujarat Co-operative Societies Act, 1961, which runs as follows:-

          “112.  Save as expressly provided in this Act, no Civil

Court shall take cognizance of any matter connected with the

winding up or dissolution of a society under this Act; and

when a winding up order has been made, no suit or other

legal proceedings shall lie or be proceeded with against the

society or the liquidator, except by leave of the Registrar, and

subject to such terms as he may impose:

Provided that, where the winding up order is cancelled, the

provisions of this section shall cease to operate so far as the

liability of the society and of the members thereof to be sued

is concerned, but they shall continue to apply to the person

who acted as liquidator”.

 

the absence of ‘leave’ of the Registrar strikes a snap in proceeding further?”.   We  are

of  the considered view that in view of this provision of law, here lies a rub in proceeding

further, in these two above said cases. This is the Law of Land  and we must respect it,

though this is for the benefit of  few Directors and detrimental to the public at

large.  These cases also reveal how, our so-called politicians leave no stone unturned in

leading  the gullible people up the garden path.

 

 2.     Now, the facts deserve a look.  This order shall decide the above said two

complaint cases which are between the same parties but the branches of the

respondent Bank are different and employees are different.  The same entail similar

questions of law.  Consequently, both the complaints  are  being decided by one

judgment.

 

3.      Gujarat Scheduled Caste Development Corporation, the Complainant  is an

autonomous body created under the Gujarat State Development  Act, 1985 and  its

object  is to  strive towards upliftment of the Members of the Schedule Caste

Community.  Ahmedabad Mahila Nagrik Co-operative Bank Ltd., is registered

under  the  provisions of Co-operative Societies Act, 1961, OP1, the Incharge

Chairman, OP2, and Kum.Ritaben Shah, Incharge Manager, OP3, the employees of

Bank  situated at Naranpura  have  been arrayed as OPs in OP 277/1998 , while

Ahmedabad Urban Co-operative Bank Limited, OP1, Sh.S.N.Rajput, Managing Director

and Chairman, OP2,  Sh.Jayendra R.Shah, OP3 and Sh.Naishad S.Shah, OP4, the

employees of the Sarangpur Branch, have been arrayed as OPs in OP 278/1998.  

 

 

4.      In both the cases, OP2 informed the higher authorities of the

complainant  that  they  were  offering the services of paying higher rate of interest at

13.5% p.a., and 15%, p.a., respectively, in each of the cases, if fixed

amount  is  deposited with  them for a period of three/six  months.  As per decision

dated 09.09.1996, taken by the Special Committee, the complainant deposited a sum of

Rs.50,00,000/- @ 13.5% p.a. with OP1 Bank in Case No. 277/1998 for a period of three

months, on 18.09.1996, vide FDR No. 9169.  The complainant further deposited a sum

of Rs.1.00 crore on 28.09.1996 in the same case, vide FDR No.9170.  Likewise,  the

complainant  deposited  Rs.50.00 lakh  for  a  period  of six months, @ 15% p.a. vide

FDR No.nil, which will, however, be referred to as FDR No.3, with OP1 in Case

No.278/1998.  The complainant  imposed   a condition that  no loans were to be given

out of the said deposited amount and the OPs  were to return the said deposited

amounts, along with interest, on the date of maturity. 

5.      On 18.12.1996,  the  complainant Corporation,  through its Chief

Accounts Officer, addressed a letter to Kumari Ritaben Shah, with the request that the

maturity amount along with interest be sent to the complainant,  after maturity in

respect  of FDR No.9169.  It did not evoke any response.  Thereafter,  another  letter

was written to Kumari Ritaben Shah by the complainant with the  request  to refund

Rs.50.00  lakh, along with interest.  It was also requested  that  FDR No.9170 dated

28.09.1996 for Rs.1.00 crore had also  matured on 28.03.1997 and since the

Corporation was in need of money, therefore, the  said amount, along with  interest  be

sent  to  the complainant.  Copies of both the letters have been annexed as Annexures

A and B, respectively.  However,  those letters were not replied by OPs. Another letter

dated 03.01.1997, Annexure-C, was  also  sent by the complainant. To this letter, OP3

sent a reply on 31.12.1996  informing that  OP2 had  made    a representation to the

Hon’ble Chief Minister of Gujarat to renew the FDRs of various Boards and

Corporations of Gujarat Government and the Chief Minister had assured the same to

OP2. Therefore, Kumari  Ritaben Shah requested the complainant Corporation to return

the FDRs  to her for renewal of the same.  She also requested the complainant to

contact the Hon’ble Chief Minister of Gujarat, in this context, copy of   which is annexed

as Annexure-D. 

6.      The complainant was not satisfied  with  this explanation.  It again sent another

letter dated 17.01.1997 to refund the total amount  of Rs.1,50,00,000/-, with interest.  It

also warned the OPs  that  if the said amount was not returned, it would take

legal  action against them, vide letter annexed as Annexure-E. Thereafter, reply was

sent by Kumari Ritaben Shah,  wherein  it  was stated  that  the Chairman  and the other

office bearers of OP1 were  making sustained efforts for the purpose of return of

aforesaid amount as  well as collecting deposits  and the matured fixed deposit

amount  with  interest would  be refunded by the end of March, 1997. The said letter is

annexed herewith as Annexure-F.

However, the said amounts were not refunded, subsequently, as well. 

 

7.      Thereafter,  a  request was made to the Reserve Bank of India vide letter

dated  23.04.1997 by the  complainant  to give proper directions to OPs, copy of  which

is annexed as Annexure-G. The Reserve Bank of India  sent a reply  to  the

complainant  stating  that they are trying to collect the

necessary information  and  would  thereafter, take necessary action, if necessary, vide

letter dated 19.05.1997, copy of which is annexed as Annexure-H. However, no action

was  taken by the Reserve Bank of India, till date.

 

8.      Sh.Gopalbhai Solanki, Chairman of the complainant wrote another letter dated

06.05.1997 to OP2,  wherein,  a request for refund of the amount was made.  Copy of

the said letter is annexed as Annexure-I with the complaint,  but  the  OPs  did not care

to reply to it.  Another letter was sent on 19.05.1997 by the Chief Accounts Officer, to

OP3, copy of which is annexed as Annexure-J. The Chief Accounts Officer wrote

another letter dated 22.09.1997 wherein request

for  refund  of  the  amount  was  made, copy of which is annexed as Annexure-K, along

with the complaint.   Ultimately,  the present  complaint cases were filed with the prayer

to refund Rs.1,50,00,000/-, with interest @ 13.5% p.a. from the date of deposit till its

realization, and exemplary damages of Rs.75.00 lakh  be paid to the complainant.   It

was further prayed that  OPs 1 to 3  be directed  to  pay  Rs.50,000/-  each, as costs  in

OP 277/98.  In the second case, (OP 278/1998)  it was prayed that the OPs  be

directed  to  refund Rs.50.00 lakh  with interest @ 15%  from  the date  of deposit, till

actual realization, exemplary damages of Rs.25.00 lakh and  to pay costs of

Rs.50,000/-  to the complainant.  

 

9.             DEFENCE:

          The OPs enumerated the following defences in their written statement. They have

denied all the allegations.  It is alleged that the complaints are barred by limitation and

provisions of Consumer Protection Act, 1986.  The jurisdiction of  this  Commission has

also been called into question.  It is submitted that  the complaints  are barred by the

principles of delay, laches, estoppel and acquiescence.  The OPs are not expected to

render any service. They do not manufacture  or  sell any goods.  There is no

relationship of a Trader and Consumer   or Buyer  between the parties.  The

complainant is not a ‘consumer’.  The complainant  is  not a ‘person’ as defined under

the Act.  The complaints  are barred by plurality of remedies. This is not a consumer

dispute, but it is in essence of civil suit.  The OPs are not aware about the ‘constitution’,

‘status’ or  ‘objects’ of the complainants.  The complainants are guilty of gross

misconduct.  As a matter of fact, the complainant  has failed  and neglected  to

discharge its duty and obligations  and  to achieve its objects under the Gujarat

Schedule Caste Development Act, 1985.

 

10.    OP 1 is  a Co-operative Society, registered under the Gujarat Co-operative

Societies Act. OP2 is an honorary Chairperson and is not a ‘person’ or a ‘trader’ as

defined under the said Act. The relationship between  the  parties  are governed by a

contract that of a ‘borrower’ and ‘lender’.  This is a monetary

contract/transaction  simpliciter  between  the  parties.  The OPs, except OP1, have

been wrongly joined as  parties. Payment  of  interest  or borrowing  funds are purely

financial transactions.  The OPs were not  aware of any alleged decision or deliberation

or discussion dated 09.09.1996 taken by  the  alleged Special Committee or  any  other

Committee of  the complainant.  The complainant  Corporation is a statutory corporation

and it has its own rules and regulations and other  legal provisions regarding its

affairs  and  financial  affairs  and management.  It is alleged that some of the office

bearers of the complainant,  out  of personal greed and some other considerations,

have entered into the contract with OP1 to  lend  money  at higher rates than usually

offered by OPs.

 

11.    The OPs have further alleged  that  according  to the complainants, it seems that

the complainants had  lent and  advanced  a sum of  Rs.50.00 lakh to OP1 at higher

rate of interest  than  prevailing  in the Co-operative Banking Sector.   It is alleged that

complainant and its office bearers  have  taken unfair advantage  and  adopted  unfair

trade  practice  by extracting  higher rate of interest from a poor Co-operative Society,

which was facing financial crisis.  The complainant  itself  admitted  that  aforesaid

amount was lent for three months from 09.09.1996 to 08.12.1996.   It further seems that

the complainant had lent and  advanced Rs.1.00 crore to OP1 on

28.09.1996  on  payment  of  interest  at  higher  rate.  The complainant had requested

to refund the amount of Rs.1,50,00,000/- with interest, on or before 01.01.1997, vide its

letter dated 30.12.1996, but  the  OPs could not pay as requested on account  of

circumstances  beyond  the control  of  the OPs. The alleged default   has  taken place

as early as on 18.12.1996 and 30.12.1996  and  the present complaint cases  have

been filed  after more than one year, i.e. in 1998  and thus  the same are not tenable

and deserve to be  dismissed forthwith, being barred by limitation.   

 

12.    The OP further  submitted  that the Government of Gujarat has issued  a directive

to all the Statutory  Corporations of the Government of Gujarat on 09.10.1997  and

resolved to extend the period of fixed deposit of government  Statutory  Corporation  for

the period of two years from the date of maturity.  RBI had also looked into the affairs of

the Bank under Section 35  of  the Banking Regulations Act and made its report, dated

18.09.1998, the relevant  portion of which reads as under:-

“VII. That the non-performing assets of the Bank as on

31.03.1998, 99.7 of its total advances i.e. Rs.2535.57

lakh.  That the erosion in the value of Bank Assets are

estimated at Rs.1614.85 lakh”.

 

13.      The present  Board of Directors was constituted in February, 1998. They are

trying to recover  the dues and reduce the non-performing assets. However,  the picture

is quite hazy.  No salary or remuneration was paid to the staff members or the Board of

Directors, since about one year.  The written statement was filed on

15.02.1999.   There  has  been gross  mismanagement and negligence of Board of

Directors, many irregularities are committed, amounting to criminal misappropriation of

funds, conspiracy, fraud, tampering with record, fabrication of evidence, etc.  The OPs

have also approached the Government of Gujarat  to grant  protection  as  OP1 is a Co-

operative Society and the object of the said Society was

for  upliftment  and  advancement of the women  in

general  and  economically  backward  class,  in particular.  In pursuance  of the said

approach, the Government of Gujarat has issued a Resolution and directed  all the

Statutory Corporations  under the  Gujarat  Government  for automatic  extension of

deposit for a further  period  of  two years.  According to OPs, the

deposits  have  matured  as  early  as on 18.12.1996  and on 01.01.1997.  The

complaints  have  been  filed on 09.10.1998,  therefore the complaints are barred by

time.  The complainant, being a 

Government  Statutory Corporation,  repeatedly intimated and  threatened the OPs and

its office bearers to take coercive measures. The  complainant  also threatened  to  take

unlawful  means  against  the office-bearers of  OPs  for  the alleged claims of the

complainant.        

 

14.   The  order  sheet  goes to show that this Commission was informed as back as on

10.09.2008  that  the Bank had gone into liquidation and an Administrator  has been

appointed.  Thereafter the complaint  was  dismissed  in default.  Subsequently,  it  was

restored.  Vide order  dated 04.02.2011, Liquidator  was arrayed as one of the OPs.   On

03.03.2011, the complainant stated that the Liquidator had been

appointed  under  Section 110  of  the Gujarat Co-operative Societies Act, 1961

and  the  complainant had sought permission from the Registrar  to grant ‘leave’ to

proceed with the complaint,  which application is still  pending.  The case was adjourned

to  22.09.2011.  It is clear  that till the  pendency  of  this case,  no

permission  was  granted by the Gujarat Co-operative Society.   On 06.03.2013, we

passed the following order:

“Mr. Swapnil Chauhan, Proxy counsel for the Complainant

present.  He is from Gujarat.  He submits that the main counsel Mr.

D.M. Ahuja is lying sick as he is suffering from fever and has not

appeared in Gujarat High Court or any other Court for the last two

days. It is very very strange that the counsel for the petitioner is

not  interested to argue the case.  We have perused the last date

order when the other’s counsel were present, he did not appear.

He appeared subsequently when the other counsel had gone.  The

other’s counsel have  come all the way from Ahmedabad. It was

his duty  to  tell the counsel not to go to Delhi and waste the time

and money. So he is liable to pay cost to Ms. Manisha C.

Shah.  This question is kept open and will be decided on the next

date of hearing.

It is also transpired that the complainant has to take permission

from the Registrar of the Cooperative Societies.  It is stated that

now he is taking the permission.  The full details that when he

applied for the permission and what is the status of the permission,

it should be placed before this Commission on 08.04.2013. No

other opportunity shall be granted”.

 

15.     We  have  heard  learned  counsel  for  the parties.  Counsel for

the  Liquidator,  Ms.Manisha C.Shah  pointed out that they are paying the money  to

the complainant  on  ‘pro-rata’  basis.  They have already paid a sum of  Rs.1.00 lakh  to

the  complainant.  She submitted that they will not  shirk  to pay the amount to the

complainant as per its share.  Counsel for the OPs  have raised no dispute about the

payment of the above said amount.  If the interest is on the higher side, that is the result

of the agreement entered into between the parties.  The agreement does not appear to

be illegal, unconscionable  or brought through fraud.  The Liquidator  has already paid

Rs.1.00 lakh towards the amount claimed in the complaints.  The Liquidator has also

showed the Commission that the complainants will further  pay the amount as per ‘pro

rata’  basis.

 

16.    We have already referred to Section 112 of  Gujarat Co-operative Societies Act,

1961.  This  Act clearly  puts  a  bar  in proceeding  with these cases.  The application  with

the Registrar  of  the Gujarat Societies  is pending for the last four years.  It  appears  that

he is reluctant to grant permission.  The complainants should  seek the permission from the

Registrar and  then  they  can  institute the cases, or  the complainants should

wait  until  the winding up order is cancelled in their favour.

 

17.    Again, Section 166 (2) of the said Act, runs as follows:-

“166 (1) Save as expressly provided in this Act, no Civil or

Revenue Court shall have any jurisdiction in respect of  --

                          (a)   xxxx

                          (b)   xxxx

                          (c )  xxxx

(2)  While a society is being wound up, no suit or other legal

proceeding relating to the business of such society shall be

proceeded with or instituted against  the society or any

member thereof, or any matter touching the affairs of the

society, except by leave of the Registrar, and subject to such

terms as he may impose”.

 

18.    Moreover, Section 167 of the said Act, further lays down as under :-

“Save as otherwise provided in this Act, no suit shall be

instituted against a society, or any of its officers, in respect of

any act touching the business of the society, until the

expiration of two months next after notice in writing has been

delivered to the Registrar or left at his office, stating the cause

of action, the name,  description and place of residence of the

plaintiff and the relief which he claims, and the plant shall

contain a statement that such notice has been so delivered or

left”.

 

19.    In view  of  these circumstances, it appears that the complaint cases  are  pre-

mature.  We, therefore,  dismiss  both  the  complaints but allow the complainants to file

fresh suits/complaints   after serving the requisite  notices,  before  the

appropriate  forum, including the consumer  forum,  and  the exclusion  of  time spent in

these proceedings  before  this Commission as well as in the

liquidation  proceedings  shall  be considered in view of  Apex Court’s authority reported

in Laxmi  Engineering  Works  Vs. P.S.G.  Industrial Institute – (1995) 3 SCC 583.

      .…..…………………………

                                                                                            (J. M. MALIK,J.)

                                     PRESIDING MEMBER

 

  .…..…………………………

(DR. S. M. KANTIKAR)

                MEMBER

 dd/25 &26

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI        

 

REVISION PETITION NO.   2048 of 2008  (From the order dated 18.01.2008 in Appeal Nos. 826/2007 (Haryana)/RBT/712/2007

and Appeal No.677/2007 (Hry)/RBT/07/2008 of State Consumer

Disputes Redressal Commission, UT Chandigarh)

  

1. Partap Singh S/o Sh. Jagmal Singh

2. Smt. Shakuntla W/o Sh. Partap Singh

3. Jagmal Singh S/o Sh. Shiv Singh,

 All residents of Shiv Colony, Railway Station, Kosli, Tehsil Kosli, District. Rewari

… Petitioners/Complainants

                            

                                                Versus

1. Mahavir Singh Yadav, LVO, The Kosli Cooperative Sehkari Agricultural and Rural

Development Bank Society, Kosli, District Rewari

 2. The Manager, The Kosli Cooperative Sehkari Agricultural and Rural Development

Bank Society, Kosli, District Rewari

 3. Distirct Manager, The Kosli Cooperative Sehkari Agricultural and Rural Development

Bank Society, Kosli, District Rewari

 4. The Administrative Director, The Haryana State Cooperative Agricultural and Rural

Development Bank Society Ltd., SCO No. Sector-2, Panchkula.

                                     … Respondent/Opposite Parties (OP)

 

  BEFORE

 

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

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioners

   

Mr. Alok Sangvan, Advocate

For the Resp. No.1   Mr. Madhurendra Kumar, Advocate

For the Res. No. 2 to 4

 Mr. Rajvir Singh, Advocate

PRONOUNCED ON         23 rd     April ,     2013

 

O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the petitioners/complainants against the

impugned order dated 18.01.2008 passed by the State Consumer

DisputesRedressal Commission, UT, Chandigarh (in short, ‘the State Commission’) in

Appeal No. 826/2007 (Hry)/ RBT/712/2007 and Appeal No. 677/2007 (Hry)

/RBT/07/2008 – Pratap Singh & Ors.  Vs. Mahinder Singh Yadav & Ors. by which, while

allowing appeal, order of District Forum allowing complaint was set aside and complaint

was dismissed.

2.       Brief facts of the case are that complainants/petitioners entered into an

agreement on 18.2.2005 to purchase agricultural land for Rs.34.50 lakhs and paid

Rs.4,00,000/- as earnest money to the vendors with the promise that they will get the

sale deed executed upto 30.3.2005, failing which, earnest money would be

forfeited.  Complainants applied for loan with OPs/respondents and deposited

Rs.4,000/- each for processing of loan on 21.2.2005.  OP No. 4 sanctioned loan of

Rs.21,31,000/- vide letter dated 28.2.2005 and all the formalities for obtaining loan were

completed by the complainants.  Later on, OP No. 4 vide letter dated 9.3.2005

sanctioned loan of Rs.30,00,000/- as per collector rate list, but loan was not released.

From time to time, period of executing deed was got extended by the complainant, but

as OP failed to release the loan amount and complainant failed to make payment under

agreement to sell, Vendor forfeited the earnest money of Rs.4,00,000/-. Complainants

alleging deficiency on the part of OPs filed complaint and claimed Rs.4,10,000/- as

compensation along with interest.  OPs contested complaint and submitted that loan

was never sanctioned and complainants never completed formalities; hence, complaint

be dismissed. Learned District Forum after hearing both the parties, allowed the

complaint and directed OPs to pay Rs.4,10,000/- and further directed to pay Rs.30,000/-

as compensation and Rs.2200/- as cost of litigation along with 12% p.a.

interest.  Appeal filed by the petitioners for enhancement was dismissed and appeal

filed by the respondents was allowed by learned State Commission vide impugned

order against which, this revision petition has been filed.

 

3.       Heard learned Counsel for the parties and perused record.

4.       Learned Counsel for the petitioners submitted that even after sanction of loan,

respondents have not released loan and committed deficiency and learned District

Forum rightly allowed complaint, but learned State  Commission has committed error in

passing the impugned order; hence, revision petition be allowed and impugned order be

set aside. On the other hand, learned Counsel for the respondents submitted that order

passed by learned State Commission is in accordance with law, which does not call for

any interference; hence, revision petition be dismissed.

5.       Perusal of record reveals that petitioners entered into an agreement for purchase

of land and applied for loan to respondents, but petitioners have failed to place any

document on record regarding sanction of loan.  Learned State Commission has

observed as under:

“11.    Now only question to be seen is whether complainants are

consumers and there is deficiency on the part of appellants and

respondent No. 4 in not sanctioning loan or if the loan had been

sanctioned then in disbursing the same. Complainants had not

placed on file any documents showing that the loan in favour of

complainants had been sanctioned by the appellants and respondent

No. 4. The letter annexure C-21 dated 16.3.2005 which was issued

by Haryana State Coop./Agricultural and Rural Development Bank

Society Ltd. to Kosli Coop Sehkari Agricultural and Rural

Development Bank Society permitted the society to enhance the

sanction of the loan upto 90% instead of 75% against hypothecation

of the property. They were further allowed to adopt the value of land

@ Rs.21,31,000/- per acre or the actual rate as per registry in all the

three cases referred. Therefore, this letter does not show that the

Haryana State Coop. Agricultural and Rural Development Bank Ltd. –

Head office had sanctioned loan or had given any direction to the

Primary coop. agr. And Rural Development Bank Ltd. to sanction

loan. The case was still at the processing stage.

12.     Complainants were only prospective customers/loanees. It

was the discretion of the bank either to sanction the loan or to refuse

the same.  No cause of action had arisen in favour of the

complainants as the loan had not been sanctioned. If any indirect

loss has been suffered by the complainants for not sanctioning of

loan by the appellants and respondent No. 4 then appellants and

respondent No. 4 are not to blame.  It cannot be said that they had

committed any deficiency in service. The complainants do not come

in the definition in service. The complainants do not come in the

definition of ‘consumer’.  It is not the case that loan had been

sanctioned and the appellants and respondent No.4 had not mala

fide disbursed the loan. The loan is sanctioned strictly according to

the policy of appellant No. 3 i.e. the Haryana State Coop. Agri. and

Rural   Development Bank Ltd.  Even appellants had written letters

dated 19.7.2005 and registered letter dated 1.8.2005 requiring

complainants to remove certain deficiencies so that process of

disbursement of loan could be finalized but they refused to accept

those letters.

13.     The counsel for appellants has referred to an authority

of Hon’ble National Commission titled

M/s. Sree Kanaka Durga Hatcheries Pvt. Ltd. Vs. State Bank of India

– 2002 (2) CPC 617 to contend that even if sanctioned loan remained

in the file of bank and no sanctioned letter was delivered to the

complainant and thereafter bank decided not to go ahead with grant

of loan due to unfulfilment of certain conditions by the complainant

then in that case bank did not commit  any deficiency in service.  In

the present case loan had not been sanctioned at all as the

complainants did not complete certain formalities. Therefore,

appellants had not committed any deficiency in service”.

 

6.       Thus, it becomes clear that petitioners could not place any document showing

sanction of loan by the respondents and letters dated 28.2.2005 and 9.3.2005 are not

loan sanction letters but they merely convey the value of land per acre for approval of

loan.  Petitioners never gave earnest money under agreement to purchase land, under

any assurance of release of loan by respondents. Even after sanction of loan, it was not

obligatory on the part of respondents to release applied loan and in such circumstances,

learned State Commission has not committed any error in passing impugned order and

setting aside order of District Forum allowing complaint.

7.       We do not find any illegality, irregularity, or jurisdictional error in the impugned

order and revision petition is liable to be dismissed.

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

dismissed with no order as to costs.

                             ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER

 

 

..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBER

k

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

REVISION PETITION No. 2092 of 2012

(From the order dated 14.02.2012 of the Haryana State Consumer Disputes Redressal

Commission, Panchkula in Appeal no. 2213 of 2007)

State Bank of India Branch Bapoli V P O Bapoli, District Panipat Haryana – 132104

Petitioner

   Versus

Om Prakash Son of Shri Surjit Resident of Shimla Gujjran Sub Tehsil Bapoli,

District Panipat Haryana – 132104

Respondent

 

BEFORE:

          HON’BLE MR JUSTICE V B GUPTA            PRESIDING MEMBER

          HON’BLE MRS REKHA GUPTA                   MEMBER

 

For the Petitioner                               Mr S L Gupta, Advocate

Pronounced on     25 th   April 2013

ORDER

REKHA GUPTA

          Revision no. 2092 of 2012 has been filed against the order dated 14.02.2012

passed by the Haryana State Consumer Disputes Redressal Commission, Panchkula

(‘the State Commission’) in First Appeal no. 2213 of 2007 upholding the order passed

by the District Consumer Disputes Redressal Commission, Panipat (‘the District Forum’)

in complaint no. 116 of 2006.

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

          That the respondent/ complainant had purchased a tractor and obtained loan for

purchasing the tractor and thresher from the petitioner bank. The said tractor was

hypothecated with the SBI Bapoli District Panipat. But due to the mechanical defect in

the tractor the instalment could not be deposited in time hence, the petitioner bank filed

the civil suit for recovery of the balance loan amount titled SBI vs Krishna etc., in the

civil court, Panipat.

          The respondent/ complainant had come into compromise with the petitioner and

deposited the entire agreed loan amount settled the compromise. The petitioner has

issued the clearance certificate to the respondent/ complainant on dated 19.07.2005.

          The respondent/complainant has been enjoying the saving bank account in the

petitioner bank bearing account no. 01190015033. The respondent/ complainant had

deposited the amount in the said account but the petitioner without the consent and

knowledge of the respondent/ complainant had withdrawn the amount of Rs.25,000/-

from the account of the respondent/ complainant and has committed deficiency in

service.

          Petitioner/OP bank has  submitted that   ‘the present  complaint   is  not  maintainable  against   the 

answering respondent, as the respondent/complainant failed to repay the loan of the Bank within the 

given period and violated the terms and conditions of the tractor loan, getting no alternative the Bank 

has to file suit for recovery against the respondent/ complainant. During the pendency of the suit, the 

respondent/ complainant entered into compromise with the Bank and as per bank policy pertaining to N 

P Accounts relief of interest of Rs.25,000/- was given to the respondent/complainant detailed as under:

Principal Rs.1,24,650/-

Interest from 01.12.1999 to 22.07.2005 Rs.1,85,030/-

Court Fee Rs.17,627/-

Insurance Rs.4,293/-

   

TOTAL Rs.3,31,600/-

   

Relief Rs.25,000/-

   

Total Balance Rs.3,06,000/-

Amount received from complainant  

On 19.07.2005 Rs.2,81,600/-

Balance       Rs.25,000/-

         

In this manner the amount of Rs.25,000/- remained balance as on 22.07.2005, the

respondent/complainant requested the Bank for another relief of interest of Rs.25,000/-

which was beyond the power of the compromising authority but the

respondent/complainant requested the Bank that he will try at his level best moving to

the higher authorities for further relief of Rs.25,000/- and deposited a sum of

Rs.25,000/- in his saving Bank account and requested the Bank to mark lien on his

account and to issue conditional no dues certificate. In case the

respondent/complainant fails to get further relief from the higher authority, the amount of

Rs.25,000/- kept under lien adjusted in his loan account to adjust the amount in full and

final. In this manner the then Branch Manager Shri Pale Ram issued conditional no

dues certificate marking lien in saving Bank Account of respondent/ complainant.

Meanwhile, Shri Pale Ram was transferred by the Bank and the lien in saving Bank

Account remained as it is. The respondent/ complainant failed to get further relief from

higher authorities, instead of informing the Bank moved the present application. Thus

the present complaint is liable to be dismissed on this score only.

          As the then Manager was transferred and after coming to know of the facts while

the respondent/ complainant filed the above said false and baseless complaint, the

Bank has adjusted the lien amount in the loan account being interest amount of the

respondent/complainant with the Bank.

          The District Consumer Disputes Redressal Forum, Panipat (‘the District Forum’)

vide its order dated 05.07.2007 has stated as follows:

“After having gone through the complaint, contents of the reply and the no dues

certificate issued by the OPs, we are of the opinion that the petitioner has already

paid the dues pending towards him and nothing remains to be paid by him to the

Bank. Further, in the no dues certificate/ letter dated 19.07.2005 there is no

condition mentioned therein. Meaning thereby the no due certificate/ letter dated

19.07.2005 indicates that nothing remains to be paid by the petitioner to the OPs.

Now the OPs are estopped by their own act and conduct from claiming any

amount with regard to the tractor loan of the petitioner. Therefore, the OPs are

found gross negligent in their services and it is clear that the petitioner has been

subjected to mental harassment and has been compelled to file the present

litigation.

For the reasons recorded above, we accept the present complaint and hold the

OPs are negligent in their services. Therefore, we direct the OP Bank to allow the

petitioner to with draw the amount standing in the savings account of the

petitioner by him. Further, we hold that there remains nothing to be paid by the

petitioner towards the tractor loan. The OPs are further directed to pay the

compensation of Rs.5,000/- to the petitioner on account of mental harassment

and Rs.3,300/- as litigation. The OPs are further directed to make the compliance

of this order within a period of 30 days from the date of receipt of copy of this

order”.

          Aggrieved by the order of the District Forum, the petitioner filed an appeal before

the State Commission. After hearing the learned counsel for the appellant and perusing

the case file, the State Commission stated as follows:

“It has also not been disputed that pursuance to the payment of the amount by

availing scheme, the bank issued a No Due Certificate to the complainants on

19.07.2005 and also addressed a letter to the Tehsildar concerned for releasing

their charge over the agricultural land of the complainants. The plea of the OP

appellant was that on oral requests a conditional No Due Certificate was issued.

This plea of the OP is apparently contrary to the record and appears to be an

after-thought. The letter written by the Bank to the revenue authorities on

19.07.2005 does not indicate any such conditional no dues and is reproduced

below:

          Bapoli (Panipat)                                                     19.07.2005

          To Tehsildar

          Bapoli

          Sir,

          Removal of loan on tractor loan AC No. ATL 2/359 Rs.1,70,100/-

We advise that Shri Kishana @ Kishan Chand and Om Prakash son

of Sarjeet vill. Shimla Sujram has cleared his tractor loan account. So nothing is

due against him. Please remove our lien on ATS land measuring 49 K 6 M Regd.

No. 1013/1 dated 12.03.1998,______ no. 210  dated 14.03.1998.

Yours faithfully,

Sd/-

Branch Manager

Once the matter has been settled between the parties in civil suit and the

complainants have paid the amount and pursuance to which the suit stood

disposed of and bank issued ‘No due Certificate’), the withholding of the amount

lying in the saving bank account of the complainants was certainly an act of

grave deficiency on the part of the bank official and thus District Forum rightly

allowed the complaint of the complainant and also imposed compensation for

mental harassment.

          We do not find any ground to interfere in the impugned order.

          Hence, the appeal is dismissed.

The statutory amount of Rs.17,500/- deposited at the time of filing of the present

appeal be refunded to the appellant against propose receipt and due verification

as per rules on the subject, after the expiry of period of appeal and revision, if

any, filed in this case”.

          Dissatisfied by the order of the State Commission the petitioner filed the present

revision petition before us.

          We have heard the learned counsel for the petitioner and have also gone through

the records carefully.

The grounds for the revision petition are as follows:

          On 19.07.2005, the respondent approached the petitioner Bank for some relief/

concession in the interest and offered to liquidate the entire dues in the account. The

then Branch Manager of the Bapoli Branch, District Panipat advised the respondent that

concession of only Rs.25,000/- has been granted to him by the competent authorities of

the Bank. At that time, the total amount payable by the respondent was Rs.3,31,600/-

and after the relief of Rs.25,000/- the balance payable was Rs.3,06,000/-. The

respondent then pleaded to the Branch Manager that he will take up the matter with the

higher authorities of the Bank for another relief of Rs.25,000/- and deposited the amount

of Rs.2,81,600/- in the loan account and Rs.25,000/- in his Savings Bank Account on

the understanding that the Bank may mark the lien on the said amount and in case, the

higher authorities do not agree to the request of the respondent for the waiver/relief of

another sum of Rs.25,000/-, the same may be adjusted by the Branch. It was further

represented by the respondent that he required the ‘No Dues Certificate’ on an ‘urgent

basis’ as he has to deal with the property. The ‘No Dues Certificate’ was required by the

respondent for getting the entry of mortgage removed from the revenue records.

          The petitioner Bank filed its detailed reply detailing all the correct facts in the

matter. It was further pleaded that the ‘No Dues Certificate’ was issued by then then

Branch Manager under good faith and on the deposit of Rs.25,000/- in the savings bank

account by the respondent/complainant. It was further pleaded that the amount of

Rs.25,000/- has been deposited by the respondent/ complainant on 19.07.2005 when

the amount of Rs.2,81,600/- was deposited in the loan account. The petitioner bank also

filed the statement of the loan account showing the deposit of Rs.2,81,600/- on

19.07.2005, the relief/ concession of Rs.25,000/- credited in the account and the

account still shows the debit balance of Rs.25,000/-. It was also the plea of the

petitioner Bank that the respondnent/ complainant is not a consumer. In evidence, the

petitioner Bank filed the affidavit ofShri Pale Ram who was the Branch Manager

at Bopali Branch, where the respondent/complainant had the account and the Saving

Bank Account who had issued the No Dues Certificate. The said Manager of the

petitioner Bank stated on oath, the actual facts of the matter and the circumstances in

which the ‘no dues certificate’ without mentioning the balance amount of Rs.25,000/-

payable has been issued.

          The loan account was not settled, the suit was not withdrawn and the same was

decreed by the Court of Shri Jagdish Singh, Civil Judge, Panipat on 28.04.2008 after

hearing the counsel for the petitioner Bank and the Counsel for the respondent. The

decree was passed for Rs.2,73,298/- with interest @ 13.77% per annum with half-yearly

rest from 20.11.2003 till the date of payment.

          The State Commission and the District Forum failed to appreciate that the

petitioner Bank has not issued any letter or communication granting relief of Rs.50,000/-

to the respondent/ complainant and in the absence of the same, the

complainant/borrower is liable to pay the entire amount with interest, cost and charges.

          The State Commission and the District Forum failed to appreciate that the amount

of Rs.25,000/- was deposited by the respondent/complainant in the Savings Banks

Account on 19.07.2005, in the loan account. All this proves that the deposit of

Rs.25,000/- in the Savings Bank Account was connected with the repayment of the

loan.

          The State Commission and the District Forum failed to appreciate that the

petitioner Bank has fairly credited the amount of Rs.2,81,600/- in the loan account on

19.07.2005 and on the same date, has also credited Rs.25,000/- as concession granted

and further that the loan account is still showing the debit balance of Rs.25,000/- which

is payable by the respondent/ complainant.

          The State Commission and the District Forum failed to appreciate that the ‘no

dues certificate’ dated 19.07.2005 issued by then Branch manager, Shri Pale Ram, only

in good faith, and after the deposit of Rs.25,000/- by the complainant in the savings

bank account and after marking the lien, over the said amount.

          The State Commission and the District Forum failed to appreciate that the higher

authorities of the petitioner bank at the zonal office has not approved any further

concession to the respondent and the concession granted to the complainant remained

at Rs.25,000/- the benefit of which was already given to the complainant.

          The State Commission and the District Forum failed to appreciate that the effect

of the ‘no dues certificate’ is that the mortgage property stands redeemed and however

the said letter does not affect the rights of the bank to recover the amount.

          It is an undisputed fact that the respondent was a consumer of the petitioner bank

having a savings bank account no. 01190015033. The amount of Rs.25,000/- was in the

balance in the account of the respondent. When the respondent wanted to withdraw the

above said amount, the clerk declined and stated that the account was seized by the

Manager of the Bank on account of non-payment of the loan towards tractor.  The

respondent had cleared the loan amount of the tractor and to this effect the respondent

had issued letter dated 19.07.2005 to the Tehsildar Bapoli for clearance of the loan and

for changing the mutation in the revenue record. However, a reading of the no due

certificate does not support this claim.  Petitioner has stated that on an oral request

conditional no due certificate was issued. This however, is contrary to the record and

appears to be an after-thought. The letter written by the Bank to the revenue authorities

on 19.07.2005 does not indicate any such conditions to the no due certificate issued.

In the facts and circumstances of the case mentioned above, we find no reasons

to disagree with the order of the State Commission. In view of this we find that there is

nojurisdictional error, illegality or infirmity in the order passed by the State Commission

warranting our interference. The revision petition is accordingly dismissed with cost of

Rs.10,000/- (Rupees ten thousand only).

          Petitioner is directed to deposit the cost by way of demand draft in the name of

‘Consumer Welfare Fund’ as per Rule 10 A of Consumer Protection Rules, 1987, within

four weeks from today. In case the petitioner fails to deposit the said cost within the

prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.

List on 31st May 2013 for compliance.

Sd/-

..………………………………

[ V B Gupta, J.]

 

Sd/-

………………………………..

[Rekha Gupta]

 

Satish

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI

 

   REVISION PETITION NO.     4320 OF 2012

(From order dated 26.07.2012 in First Appeal No. 621 of 2007 of the Haryana State

Consumer Disputes Redressal  Commission, Panchkula)

WITH I.A. No. 1 OF 2012 and I.A. No. 2 OF 2012

(Stay & Delay)

State Bank of Patiala Through its Manager Charkhi Dadri, District Bhiwani (Haryana)

Petitioner

                            Versus

1.    Ram Kishan Son of Sh. Jai Dayal Resident of House No. 7, New Canal Colony,

Gurdwara Road, Charkhi Dadri

2.    Smt. Kailasho Devi, Wife of Ram Kishan Son of Sh. Jai Dayal, Resident of House

No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri

                                       … Respondents

BEFORE:

 HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBER

HON’BLE DR. S. M. KANTIKAR, MEMBER

 For the Petitioner             :  Mr. Bharat Arora, Advocate for

   Mr. Sanjiv Kakra, Advocate

Pronounced on :                       1 st   May, 2013    

 ORDER  

JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      The complainants Mr. Ram Kishan and his wife Smt. Kailasho Devi, residents

of Charkhi Dadri, opened various Fixed Deposit Accounts on different dates in the

year 1993 onwards.  The Branch Manager, State Bank of Patiala, Charkhi Dadri-OP-

4 (in the original complaint) took their signatures on various forms and other papers

on the pretext of renewal of the FDRs.  He did not issue the FDRs but issued the

pass book.  They were informed that the rules have since been changed, therefore,

pass book was given to them.  Thereafter, they approached the Bank to renew the

pass book time and again but it did not produce the desired result.   Then it

transpired that their amount was fraudulently misused by some bank officials by way

of converting their bank account into stock invest account. Moreover, when the OPs

failed to return the money of the complainants, legal notice was sent to them but it

did not ring the bell.  Therefore, a complaint under section 12 of the Consumer

Protection Act 1986 was filed before the District Forum.

2.      The District Forum vide its order dated 31.07.2007 allowed the complaint and

directed the OPs to pay the maturity value of the FDRs as per details given in Para

No. 2 of the complaint alongwith interest @9% per annum from the date of maturity

of each FDR till the date of payment.  It  also awarded costs in the sum of Rs.

2,000/-.

3.          Aggrieved by that order, the petitioner preferred an appeal before the State

Commission.  The State Commission dismissed the Appeal vide its order dated

26.07.2012.

4.      We have heard the counsel for the petitioner.  He made the following

submissions.  He argued that the complainants had approached the Bank and

opened various Fixed Deposit Account for the purpose of Stock Investment.  It is

explained that due to the downfall in the stock market, the investment of the

complainants eroded.  It also came to light that there was a scam in the Bank and

FIR was lodged with the police against Bank’s own officers on 20.06.1996. Banking

Ombudsman examined all the material facts and dismissed the complaint made by

the complainants vide order dated 21.01.2000.  The complainants filed a criminal

complaint. 

5.          Counsel for the petitioner vehemently argued that the complainants had

signed the various documents dated 27.07.1994 under the heading “Payment of

Stock Invests from my account NO. 286” This document was signed by Smt.

Kailasho Devi in Hindi language. It is apparent that she could not write Hindi

language properly.  It was stressed that when the complainants signed the

documents with open eyes, therefore, they should not be permitted to jibe their

previous stand.  We have perused the Photostat copy of the complaint which also

bears the signatures of the complainants in Hindi language.  It appears that both the

complainants are not aware of the English language.  The learned counsel for the

petitioner further laid emphasis on the fact that this case is barred by time.  It was

argued that the FDR was opened in the year 1993 but the instant complaint was filed

on 23.11.2000.  He argued that the orders passed by the District Forum and State

Commission are perverse.  The complaint should have been filed within 2 years.

6.      The last submission made by the counsel for the petitioner was that  Sh.

Ramdhan Goel, Special Assistant, State Bank of Patiala and Sh. Raghuvardayal

Aggarwal, Assistant Manager, State Bank of Patiala were convicted in a criminal

case under section 408/467/468/471/201 that is for the mis-appropriation of amount

and forgery etc.  The counsel for the petitioner vehemently argued that these

persons were not convicted in respect of the case in hand but they were convicted in

the case of other three persons.

7.      An attempt was made to louse up the real issue. It is true that in the order of

the Magistrate, there is no mention of the complainants.  Accounts of Sh. Hem Raj,

Smt. Basanti Devi, Sh. Krishan Lal were discussed.  However, the judgment states

that there were as many as 47 cases.  This is an admitted fact the complainants also

lodged complaint against the bank officials bearing the same F.I.R. number.  The

Magistrate was pleased to observe:-

“28. No doubt, bank might have suffered losses of Rs. 5.00 lacs, as it was

guarantor for the repayment of this stock invest invested by the

depositors, because of lack of vigilance, the bank had to pay the penalty,

but it is quite clear that accused Ramdhan Goel would use the amount

account holder without making any entry of the credtor in their respective

accounts and stock invest accounts. Thus, during those relevant period

accused Ramdhan Goel would use the public money and he would

deposit the said cash amount in the bank on the event of allotment of the

share in the bank.  The said modus operandi adopted by the accused

clearly speaks volume of lack of supervision and vigil of the higher bank

official that paved the way for the appointment of Ishwar Singh as a

Special Auditor to unfold the entire scam.  Auditor report in this case Ex.

PW 6/A is valuable piece of evidence, which clearly shows the complicity

to both the accused in defrauding the bank and modus operandi adopted

by them to mis-use the public fund.”

8.          At the foot of para No. 31 it was further observed:-

“31………. Even otherwise, it is own contention of learned counsel for the

accused Raghvar Dayal Aggarwal that in good faith, he would issue stock

invest by signing on the some blank stock invest.  Further, there is no force

in his contention that stock invest used to be issued blank.  This argument

of ld. defence counsel is simply devoid of any force because stock invests

are to be required to be issued after filing denomination the signature of the

Incharge, who was accused Raghvar Dayal Aggarwal and those were

required to be signed by the account holders as well.”

9.          Although, the case of complainants was not discussed in the said judgment,

yet, it is clear that accounts of as many as 47 persons were changed from FDR to

stock invest accounts without their consent.  The District Forum observed:-

“We are also convinced with the arguments advanced by the complainant

counsel that at the time of applying

for allotment of shares in public issue, he would apply to the bank for

issuance  of a stock invest in his favour for the amount applied for in the public

issue.  Separate applications were to be made for separate public issue

applications.  In return the Bank would keep the application money amount

intact, out of total amount deposited in the account of applicants saving or FDs

accounts if the applicant was successful in getting allotment of certain shares in

a public issue of the company the company would send the stock invest

attached with the application to the bank for collection of allotment money.  In

case the applicant was un-successful in getting allotment of shares, this stock

invest issued by the bank was to be returned as such to the applicants by the

company.  In term the applicant would visit the bank and present the stock

invest for collection i.e. for remove of the bank lien over the stock invest

amount.  By applying this scheme the authorities stopped the user of

application

money by the company as the share application money remained deposited in

applicant’s bank accounts till allotment of share.  For whole of this process the

applicant was supposed to sign the application for issuance of stock invest as

well as the stock invest itself. After allotment of shares the bank was duty

bound to clear the stock invest amount in favour of the company making

allotment only after comparing the stock investor signatures with the specimen

signatures of the applicants but in the present complaint they failed to do so,

which amounts to deficiency in service on the part of the respondents.”

10.    The case of the petitioner hinges upon an application singed by  Kailasho Devi

in Hindi language. The whole of documents are in English language.  Same is the

position with the signatures of Ram Kishan.  There is no evidence that they were

aware of English language.  The other formalities were given the go-bye. The Bank

cannot wash its hands of its responsibility.  The attitude of Bank adds a shocking

dimension to the situation.  The commission of scam further shows the negligence

and dereliction of duty on the part of the higher authorities.  By no stretch of

imagination it can be said that the case is time barred.  The complainant has

continuous cause of action till they get their money back. We see no merit in the

revision petition and dismiss the same and impose punitive costs of Rs. 50,000/-,

which will be deposited with the Consumer Welfare Fund established by the Central

Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection

Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of

P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within 45 days from

today, otherwise it will carry interest @9% per annum till its realization.  Learned

Registrar of this Commission shall see compliance of the order under Section 25 of

the Consumer Protection Act, 1986.

                                                                ..…………………………

                                                                         (J. M. MALIK,J.)

                                                                      PRES IDING MEMBER                                                       

  ……………….……………

                                                        (DR.S.M. KANTIKAR)

                                                                            MEMBER

Jr/8

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

   REVISION PETITION NO.     4320 OF 2012 (From order dated 26.07.2012 in First Appeal No. 621 of 2007 of the

Haryana State Consumer Disputes Redressal  Commission, Panchkula)WITH I.A. No. 1 OF 2012 I.A. No. 2 OF 2012 (Stay & Delay)

State Bank of Patiala Through its Manager Charkhi Dadri, District Bhiwani (Haryana)                                                  … Petitioner

                                        Versus1.    Ram Kishan Son of Sh. Jai Dayal Resident of House No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri 2.    Smt. Kailasho Devi, Wife of Ram Kishan Son of Sh. Jai Dayal, Resident of House No. 7, New Canal Colony, Gurdwara Road, Charkhi Dadri

                                       … Respondents 

BEFORE:

HON’BLE MR. JUSTICE J. M. MALIK, PRESIDING MEMBERHON’BLE DR. S. M. KANTIKAR, MEMBER

For the Petitioner             :  Mr. Bharat Arora, Advocate for

   Mr. Sanjiv Kakra, Advocate

 

Pronounced on :                       1 st   May, 2013        

  

ORDER  

JUSTICE J. M. MALIK, PRESIDING MEMBER1.      The complainants Mr. Ram Kishan and his wife Smt. Kailasho Devi, residents

of Charkhi Dadri, opened various Fixed Deposit Accounts on different dates in the

year 1993 onwards.  The Branch Manager, State Bank of Patiala, Charkhi Dadri-OP-

4 (in the original complaint) took their signatures on various forms and other papers

on the pretext of renewal of the FDRs.  He did not issue the FDRs but issued the

pass book.  They were informed that the rules have since been changed, therefore,

pass book was given to them.  Thereafter, they approached the Bank to renew the

pass book time and again but it did not produce the desired result.   Then it

transpired that their amount was fraudulently misused by some bank officials by way

of converting their bank account into stock invest account. Moreover, when the OPs

failed to return the money of the complainants, legal notice was sent to them but it

did not ring the bell.  Therefore, a complaint under section 12 of the Consumer

Protection Act 1986 was filed before the District Forum.

2.      The District Forum vide its order dated 31.07.2007 allowed the complaint and

directed the OPs to pay the maturity value of the FDRs as per details given in Para

No. 2 of the complaint alongwith interest @9% per annum from the date of maturity

of each FDR till the date of payment.  It  also awarded costs in the sum of Rs.

2,000/-.

3.          Aggrieved by that order, the petitioner preferred an appeal before the State

Commission.  The State Commission dismissed the Appeal vide its order dated

26.07.2012.

4.      We have heard the counsel for the petitioner.  He made the following

submissions.  He argued that the complainants had approached the Bank and

opened various Fixed Deposit Account for the purpose of Stock Investment.  It is

explained that due to the downfall in the stock market, the investment of the

complainants eroded.  It also came to light that there was a scam in the Bank and

FIR was lodged with the police against Bank’s own officers on 20.06.1996. Banking

Ombudsman examined all the material facts and dismissed the complaint made by

the complainants vide order dated 21.01.2000.  The complainants filed a criminal

complaint. 

5.          Counsel for the petitioner vehemently argued that the complainants had

signed the various documents dated 27.07.1994 under the heading “Payment of

Stock Invests from my account NO. 286” This document was signed by Smt.

Kailasho Devi in Hindi language. It is apparent that she could not write Hindi

language properly.  It was stressed that when the complainants signed the

documents with open eyes, therefore, they should not be permitted to jibe their

previous stand.  We have perused the Photostat copy of the complaint which also

bears the signatures of the complainants in Hindi language.  It appears that both the

complainants are not aware of the English language.  The learned counsel for the

petitioner further laid emphasis on the fact that this case is barred by time.  It was

argued that the FDR was opened in the year 1993 but the instant complaint was filed

on 23.11.2000.  He argued that the orders passed by the District Forum and State

Commission are perverse.  The complaint should have been filed within 2 years.

6.      The last submission made by the counsel for the petitioner was that  Sh.

Ramdhan Goel, Special Assistant, State Bank of Patiala and Sh. Raghuvardayal

Aggarwal, Assistant Manager, State Bank of Patiala were convicted in a criminal

case under section 408/467/468/471/201 that is for the mis-appropriation of amount

and forgery etc.  The counsel for the petitioner vehemently argued that these

persons were not convicted in respect of the case in hand but they were convicted in

the case of other three persons.

7.      An attempt was made to louse up the real issue. It is true that in the order of

the Magistrate, there is no mention of the complainants.  Accounts of Sh. Hem Raj,

Smt. Basanti Devi, Sh. Krishan Lal were discussed.  However, the judgment states

that there were as many as 47 cases.  This is an admitted fact the complainants also

lodged complaint against the bank officials bearing the same F.I.R. number.  The

Magistrate was pleased to observe:-

“28. No doubt, bank might have suffered losses of Rs. 5.00 lacs, as it was guarantor for the repayment of this stock invest invested by the depositors, because of lack of vigilance, the bank had to pay the penalty, but it is quite clear that accused Ramdhan Goel would use the amount account holder without making any entry of the credtor in their respective accounts and stock invest accounts. Thus, during those relevant period accused Ramdhan Goel would use the public money and he would deposit the said cash amount in the bank on the event of allotment of the share in the bank.  The said modus operandi adopted by the accused clearly speaks volume of lack of supervision and vigil of the higher bank official that paved the way for the appointment of Ishwar Singh as a Special Auditor to unfold the entire scam.  Auditor report in this case Ex. PW 6/A is valuable piece of evidence, which clearly shows the complicity to both the accused in defrauding the bank and modus operandi adopted by them to mis-use the public fund.”

8.          At the foot of para No. 31 it was further observed:-

“31………. Even otherwise, it is own contention of learned counsel for

the accused Raghvar Dayal Aggarwal that in good faith, he would

issue stock invest by signing on the some blank stock invest.  Further,

there is no force in his contention that stock invest used to be issued

blank.  This argument of ld. defence counsel is simply devoid of any

force because stock invests are to be required to be issued after filing

denomination the signature of the Incharge, who was accused

Raghvar Dayal Aggarwal and those were required to be signed by the

account holders as well.”

9.          Although, the case of complainants was not discussed in the said judgment,

yet, it is clear that accounts of as many as 47 persons were changed from FDR to

stock invest accounts without their consent.  The District Forum observed:-

“We are also convinced with the arguments advanced by the complainant

counsel that at the time of applying

for allotment of shares in public issue, he would apply to the bank for

issuance  of a stock invest in his favour for the amount applied for in the

public issue.  Separate applications were to be made for separate public

issue applications.  In return the Bank would keep the application money

amount intact, out of total amount deposited in the account of applicants

saving or FDs accounts if the applicant was successful in getting

allotment of certain shares in a public issue of the company the company

would send the stock invest attached with the application to the bank for

collection of allotment money.  In case the applicant was un-successful in

getting allotment of shares, this stock invest issued by the bank was to

be returned as such to the applicants by the company.  In term the

applicant would visit the bank and present the stock invest for collection

i.e. for remove of the bank lien over the stock invest amount.  By applying

this scheme the authorities stopped the user of application

money by the company as the share application money remained

deposited in applicant’s bank accounts till allotment of share.  For whole

of this process the applicant was supposed to sign the application for

issuance of stock invest as well as the stock invest itself. After allotment

of shares the bank was duty bound to clear the stock invest amount in

favour of the company making allotment only after comparing the stock

investor signatures with the specimen signatures of the applicants but in

the present complaint they failed to do so, which amounts to deficiency in

service on the part of the respondents.”

10.    The case of the petitioner hinges upon an application singed by  Kailasho Devi

in Hindi language. The whole of documents are in English language.  Same is the

position with the signatures of Ram Kishan.  There is no evidence that they were

aware of English language.  The other formalities were given the go-bye. The Bank

cannot wash its hands of its responsibility.  The attitude of Bank adds a shocking

dimension to the situation.  The commission of scam further shows the negligence

and dereliction of duty on the part of the higher authorities.  By no stretch of

imagination it can be said that the case is time barred.  The complainant has

continuous cause of action till they get their money back. We see no merit in the

revision petition and dismiss the same and impose punitive costs of Rs. 50,000/-,

which will be deposited with the Consumer Welfare Fund established by the Central

Government under Section 12 (3) read with Rule 10(a) of the Consumer Protection

Act, 1986, of the Central Excise Act, 1944, by way of demand draft in favour of

P.A.O., Ministry of Consumer Affairs, payable at New Delhi, within 45 days from

today, otherwise it will carry interest @9% per annum till its realization.  Learned

Registrar of this Commission shall see compliance of the order under Section 25 of

the Consumer Protection Act, 1986.

                                                                ..…………………………

                                                                         (J. M. MALIK,J.)

                                                                      PRES IDING MEMBER                                                       

  ……………….……………

                                                        (DR.S.M. KANTIKAR)

                                                                            MEMBER

Jr/8

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO. 3267 of 2012 (From the order dated 28.05.2012 in Appeal No. 07/2011 of H.P.  State Consumer

Disputes Redressal Commission, Shimla)

 

M/s. Indusind Bank Ltd. Having its Office 1st Floor, SCF- 23-24, Phase 3 B-2, Mohali, Punjab Through its Authorized Representative Shri Vishal Hans

                                     …    Petitioner/Opposite Party (OP)

                                        Versus

Shri Avtar Singh S/o Sh. Gopal Singh R/o Vill & P.O. Nerchowk, Tehsil Sadar, District Mandi. H.P.            

                                                               …   Respondent/Complainant

 BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner              :        Mr. Manish Sharma, Advocate

For the Respondent         :        Ex-parte

PRONOUNCED ON         2 nd   May,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

This revision petition has been filed by the Petitioner/OP against the impugned

order dated 28.05.2012 passed by the H.P. State Consumer Disputes Redressal

Commission, Shimla (in short, ‘the State Commission’) in Appeal No. 07/2011 – Avtar

Singh Vs. Indusind Bank Ltd. & Anr. by which, order of District  Forum dismissing

complaint was set aside and Petitioner/OP No. 1 was directed to pay Rs.50,000/- as

compensation and Rs.5,000/- as litigation expenses to the complainant.

2.       Brief facts of the case are that complainant/Respondent No.1 took a loan of

Rs.7,75,000/- for purchase of Truck No.HP65-930 on 25.3.2006 from OP No. 2 working

under OP No. 1. Amount was to be paid in monthly instalments of Rs.19,775/-.

Complainant paid Rs.1,41,851/- as monthly instalments.  On 5.7.2007, in the early

morning, agents of OP No. 1 forcibly removed truck from the custody of the

complainant.  OP No. 1 got several papers signed from the complainant at Chandigarh

and assured him that vehicle would be returned soon after completion of certain

formalities, but vehicle was not returned till date.  Alleging deficiency on the part of OPs,

complainant filed complaint before the District Forum with a prayer to get back

Rs.1,41,851/- deposited by him with interest and cost. OPs contested complaint and

submitted that complainant does not fall within the purview of consumer, as the

complainant is having more than 4 vehicles in his name and complainant also got

financed other vehicle No. HP-65-1930. It was further alleged that District Forum has no

jurisdiction and complaint is time barred. It was further alleged that cheque issued by

the complainant were dishonoured and complainant failed to repay monthly instalments

and intimated OPs his inability to pay the dues and in such circumstances, OPs were

compelled to take back custody of the financed vehicle and have not committed any

deficiency in providing service and prayed for dismissal of the complaint.  Learned

District Forum after hearing both the parties dismissed complaint on the ground of

territorial jurisdiction as well as on limitation in filing complaint. Appeal filed by the

complainant/respondent was allowed by learned State Commission vide impugned

order against which, this revision petition has been filed. 

3.       None appeared for the respondent even after service and respondent was

proceeded ex-parte.

4.       Heard learned Counsel for the petitioner and perused record.

5.       Learned Counsel for the petitioner submitted that District Forum rightly dismissed

complaint for want of territorial jurisdiction and limitation, but learned State Commission

committed error in allowing complaint. It was further argued that complainant does not

fall within the purview of consumer, as vehicle was purchased for commercial purposes;

hence, revision petition be allowed and impugned order be set aside. 

6.       Perusal of record clearly reveals that loan documents were executed either at

Chandigarh or at Jalandhar. District Forum also observed that Head Office of the

Indusind Bank is at Jalandhar while Branch Office is at Chandigarh and no transaction

took place within the territorial jurisdiction of Distt. Mandi and learned District Forum

rightly came to the conclusion that District Forum had no jurisdiction, as no cause of

action arose within the jurisdiction of District Forum.  Learned State Commission

observed in the impugned order that vehicle was forcibly repossessed by OP No. 1 at

place within the jurisdiction of learned District Forum; hence, learned District Forum had

jurisdiction to deal with the complaint. Fact of forcibly possessing of vehicle has been

denied by OP in its written statement and OP pleaded that vehicle was delivered by the

complainant at Chandigarh. There is no evidence on record filed by the complainant to

prove the fact that vehicle was forcibly removed by OP No. 1 from the village of

complainant falling in District Mandi. No FIR was filed against OP and complaint also

filed after about two years.  On the other hand, OPs submitted in their written statement

that complainant himself surrendered the vehicle at Chandigarh. In such circumstances,

learned District Forum rightly observed that learned District Forum had no jurisdiction to

deal with the complaint and learned State Commission has committed error in holding

that learned District Forum had jurisdiction to deal with the complaint.

7.       As far as limitation aspect is concerned, admittedly, complaint was filed on

6.7.2009 and, as per allegation in the complaint; possession of vehicle was obtained by

OP No. 1 on 5.7.2007 meaning thereby complaint has been filed after two days of

expiry of limitation.  Learned State Commission observed that due to Sunday on

5.7.2009, Complaint was filed on 6.7.2009 within limitation.  Perusal of record reveals

that, as per complaint, vehicle was repossessed by OP on 5.7.2007 and complaint was

filed on 6.7.2009, just after two days of expiry of limitation, which can be condoned u/s

24-A of C.P. Act, hence this  ground is devoid of force.

8.       Learned Counsel for the petitioner further submitted that loan was taken for

financing vehicle by the complainant for commercial purposes and in such

circumstances, complainant does not fall within the purview of consumer under the C.P.

Act. Record reveals that complainant obtained another loan of Rs.8,00,000/- for vehicle

HP-65-1930 from OP No. 1.  OPs in their written statement clearly alleged that

complainant is having more than 4 vehicles in his name and this fact has not been

denied by the complainant. In such circumstances, it becomes clear that complainant

has not availed services of OP for the purpose of earning his livelihood by means of

self-employment and, as services have been availed for commercial purposes,

complainant does not fall within the purview of consumer under Section 2 (d) of the C.P.

Act and learned District Forum committed error in holding that complainant falls within

the purview of consumer. There was no occasion for the OPs to assail this finding

before learned State Commission, as complaint had already been dismissed by District

Forum on other counts.

9.       As the complainant/respondent does not fall within the purview of consumer

under the C.P. Act and Ld District Forum had no jurisdiction to deal with the complaint,

learned State Commission committed error in passing the impugned order, which is

liable to be set aside.

10.     Consequently, revision petition filed by the petitioner against the respondent is

allowed and impugned order dated 28.5.2012 passed by learned State Commission in

Appeal No.07/2011 is set aside and complaint filed by the complainant/respondent is

dismissed with no order as to costs.                    ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 REVISION PETITION NO.   4797 of 2012

(From the order dated 14.09.2012 in Appeal No. 158/2012 of Rajasthan State Consumer Disputes Redressal Commission, Jaipur)

  

I.D.B.I. Bank D-24, Durlabh Niwas, Prithviraj Road, C-Scheme, Jaipur, Rajasthan through Branch Manager

             …   Petitioner/Opp. Party (OP)

                            

                                                Versus

1. Subhash Shah S/o Om Prakash Shah R/o B-5, Hari Nagar, Shastri Nagar,     Jaipur, Rajasthan

2. Sarika Shah W/o Subhash Shah R/o B-5, Hari Nagar, Shastri Nagar, Jaipur, Rajasthan

                                     … Respondents/Complainants

 

BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner     :   Mr. Anuj Bhandari, Advocate

For the Respondents : Mr. V.V. Harit, Advocate

                                   

PRONOUNCED ON         9 th   May ,     2013

 O R D E R

 

PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER  

          This revision petition has been filed by the Petitioner/OP against the impugned

order dated 14.9.2012 passed by the Rajasthan State Consumer

Disputes Redressal Commission, Jaipur (in short, ‘the State Commission’) in Appeal

No. 158 of 2012 – IDBI Vs. Subhash Shah & Anr. by which, while dismissing appeal,

order of District Forum allowing compliant was upheld. 

2.      Brief facts of the case are that Complainant/respondent submitted application for

sanction of loan to OP/petitioner and deposited Rs.39,326/- as process fee.  Loan was

not disbursed to the complainant; hence, complainant served notice on the OP for

refund of process fee, but OP did not refund process fee. Complainant alleging

deficiency on the part of OP filed complaint before District Forum.  Respondent/OP did

not appear before District Forum.  During pendency of complaint, OP refunded

Rs.39,326/- to the complainant.  Learned District Forum after hearing complainant

allowed complaint and directed OP to pay interest @ 9% p.a. on Rs.39,326/- from

5.10.2007 till date of payment and further awarded Rs.11,000/- for mental agony and

Rs.3,000/- as cost of litigation.  Appeal filed by the petitioner was dismissed by learned

State Commission vide impugned order against which, this revision petition has been

filed. 

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

4.      Learned Counsel for the petitioner submitted that loan was sanctioned, but

respondent did not avail loan.  It was further submitted that though process fee was not

refundable; even then, process fee was refunded to avoid any litigation and respondent

assured to withdraw legal proceedings; even then, legal proceedings were not

withdrawn and learned District Forum committed error in allowing complaint and learned

State Commission also committed error in dismissing appeal; hence, revision petition be

allowed and impugned order be set aside. On the other hand, learned Counsel for the

respondent submitted that order passed by learned State Commission and District

Forum is in accordance with law, which does not call for interference; hence revision

petition be dismissed. 

5.      Perusal of record reveals that as per Annexure P-5, loan was sanctioned by the

petitioner, but disbursement of loan was subject to certain conditions, as mentioned in

sanction letter.  It appears that respondent did not avail loan facility due to technical

difficulty as mentioned by respondent in letter dated 16.5.2010. Thus, it becomes clear

that there was no deficiency on the part of petitioner.  After filing of the complaint,

process fee though non-refundable was refunded by the petitioner to the respondent

and respondent vide Annexure P-7 dated 16.5.2010 apprised petitioner that now

respondent has no grievance and he assured to withdraw all legal proceedings, which

he has filed, meaning thereby, it was obligatory on the part of respondent to withdraw

complaint filed before District Forum after receiving process fee. It appears that

respondent has not acted with clean hands before District Forum.  He has also

mentioned wrong fact that loan was not sanctioned. 

6.      Once the respondent received process fee in full and final satisfaction, he should

have withdrawn complaint as assured and he was not entitled to receive any interest on

that amount as well compensation and cost as apparently there was no deficiency on

the part of petitioner.  Learned District Forum committed error in allowing complaint and

granting interest, compensation and cost and learned State Commission also committed

error in dismissing appeal in limine, which is liable to be set aside. 

7.      Consequently, revision petition filed by the petitioner against the respondent is

allowed and impugned order dated 14.9.2012 passed by learned State Commission in

Appeal No. 158 of 2012 – IDBI Vs. Subhash Shah & Anr. is set aside and complaint

filed by the respondent before District Forum is dismissed.  There shall be no order as

to costs.          ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

          ..……………Sd/-………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

  REVISION PETITION NO. 2521 of 2012

(From the order dated 25.11.2011 in Appeal No. 117/2007 of Uttrakhand State Consumer Disputes Redressal Commission, Dehradun)

 

 Shri Dinesh Kumar Bansal Proprietor M/s. Bansal Ice Cream Byepass Road, Kharkhari,Haridwar R/o Balmiki Basti, Bhimgoda, Haridwar

                                                      …   Petitioner/Complainant

                             VersusOriental Bank of Commerce Through its Branch Manager Kharkhari, Haridwar

                                                    … Respondent/Opp. Party (OP)

 

BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

 For the Petitioner     :   Mr. Anil K. Sharma, Advocate

 PRONOUNCED ON     10 th   May,     2013

 O R D E R

  

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER

          This revision petition has been filed by the Petitioner/complainant against the

impugned order dated 25.11.2011 passed by the Uttrakhand State Consumer Disputes

Redressal Commission, Dehradun (in short, ‘the State Commission’) in Appeal No. 117

of 2007 – Oriental Bank of Commerce Vs. Shri Dinesh Kumar Bansal by which, while

allowing appeal, order of District Forum allowing complaint was set aside. 

2.      Brief facts of the case are that complainant/petitioner had an O.D. Account No.156

with the OP/respondent.  On 21.12.2005, when the petitioner went to the bank for

withdrawing some money, he found that Rs.80,000/- had been transferred fraudulently

from his account to the account of one Smt. Santosh Aswal by Asstt. Manager of the

Bank.  As no action was taken by the respondent on his request, he filed complaint

alleging deficiency on the part of OP before the District Forum.  OP contested

complaint.  Learned District Forum after hearing both the parties allowed complaint and

directed OP to pay Rs.80,000/- along with 12% p.a. interest to the complainant and

further directed to pay cost of Rs.1,000/-.  Appeal filed by the OP/respondent was

allowed by learned State Commission vide impugned order against which, this revision

petition has been filed.

 

3.      Petitioner filed revision petition along with application for condonation of delay. 

4.      Heard learned Counsel for the petitioner at admission stage on application for

condonation of delay.

 

5.      Learned Counsel for the petitioner submitted that on account of bed rest due to

illness, revision petition could not be filed in time; hence, delay may be condoned.

 

6.      Perusal of application for condonation of delay reveals that it has not been

mentioned in the application for condonation of delay that how many days delay is to be

condoned.  As per office report, there is delay of 127 days in filing revision

petition.  Paragraphs 2 & 3 of the application for condonation of delay runs as under:

“2.     That due to some family problem and financial constraints,

the petitioner could not come to the Hon’ble Commission

within time.  

 

3.      That the delay caused is unintentional and bonafide and

beyond the control of the petitioner”.

 

 

7.      In support of this application, petitioner filed affidavit on 2.5.2013 and paragraphs

2, 3 & 4 of affidavit run as under:“2      That the impugned order was passed on 25.11.2011 and the

petitioner applied for the same on 7.12.2011 which was

furnished to the lawyer of the petitioner on 7.12.2011 and

same was sent by the lawyer of the petitioner to the

petitioners. After getting the copy of the judgement, then a

legal opinion was sought from the local lawyer then the

lawyer suggested to file the revision petition.

 

3.      Then the petitioner was suffering from the Tuberculosis and

fever from the last 3 months therefore the Doctor who was

treating the petitioner advised regular treatment and rest for

about six months.  The true copy of the medical certificate is

annexed as Annexure A-1.

 

4.      That the petitioner spent so much time and money on the

treatment. After get over the problem the petitioner

approached the present lawyer, who prepared and filed the

present petition therefore the delay caused is unintentional

and bonafide and beyond the control of the petitioner”.     

 

         

8.      In support of affidavit, he further filed medical certificate dated 21.12.2011

according to which, on account of fever, T.B., he was advised to take rest from

15.7.2011 to 21.12.2011.

 

9.      In the application for condonation of delay, he has mentioned that revision petition

could not be filed in time due to family problem and finance constraints, whereas in the

affidavit he has mentioned that revision petition could not be filed due to suffering from

T.B. and fever, which are contrary to each other.  Even if we believe medical certificate

according to which petitioner was advised to take rest from 15.7.2011 to 21.12.2011, he

has not given any reason explaining delay in filing revision petition on 11.7.2012. 

 

10.     As there is inordinate delay of 127 days, this delay cannot be condoned in the

light of the judgment passed by the Hon’ble Apex Court and the National Commission

in (1) (2010) 5 SCC 459 – Oriental Aroma Chemical Industries Ltd. Vs. Gujarat Industrial Development Corporation and Anr.; (2) (2012) 3 SCC 563 – Office of The Chief Post Master General and Ors. Vs. Living Media India Ltd. and Anr. and (3) 2012 (2) CPC 3 (State Commission) – Anshul Aggarwal Vs. New Okhla Industrial Development Authority.  As there is no explanation for condonation of

delay, from 21.12.2011 to 11.7.2012, this application for condonation of delay is liable to

be dismissed.

 

11.     Consequently, revision petition filed by the petitioner stands dismissed at

admission stage on the count of delay alone. 

 

12.     As the Petitioner has misled the Court in the application for condonation of delay

as well as in the affidavit and has taken contradictory stand, we deem it proper to

impose Rs.5,000/- as costs to be deposited by the petitioner with the Consumer Legal

Aid Account of this Commission by way of bank draft within four weeks.  In case, the

petitioner fails to deposit the cost within the prescribed period, then he shall be liable to

pay interest @ 9% p.a. till realization.

 

13.     List for compliance on 4.7.2013.

             ..……………Sd/-………………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

          ..…………Sd/-…………………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION     PETITION     NO.     1482       OF       2013 With

  I.A. No.2684 of 2013 (For Stay) (From the order dated 5.2.2013 Appeal No.351/2012

  of the State Commission, Chandigarh UT) HDFC Bank Ltd. SCO-408-409, Sector-8, Panchkula

                                                                       ....Petitioner 

Versus Surender Kumar Singhal S/o Sh. Ram Parkash R/o SCO 15, Sector-26, Chandigarh

                                                                        ….Respondent BEFORE:

 HON’BLE MR. JUSTICE  V.B. GUPTA, PRESIDING MEMBERHON’BLE MRS. REKHA GUPTA,  MEMBER

 For the Petitioner             :         Mr. Ajay Monga, Advocate   Pronounced on     : 16 th       May, 2013

ORDER

PER MR. JUSTICE V.B. GUPTA, PRESIDING MEMBER

 

Present revision petition has been filed under Section 21(b) of Consumer

Protection Act, 1986 (for short, ‘Act’) challenging impugned order dated 5.2.2013,

passed by State Consumer Disputes Redressal Commission, UT Chandigarh (for short,

‘State Commission’).

2.       Respondent/complainant  filed a consumer complaint under Section 12 of the Act,

before District Consumer Disputes Redressal Forum, Chandigarh (for short, ‘District

Forum’) on the allegations that he had availed a loan against his house from

petitioner/opposite party. Out of total loan amount of Rs.99,00,000/- (Rupees Ninty Nine

lacs only)  petitioner deducted an amount of Rs.96,709/- on account of processing fee

and insurance charges. Respondent  made  request to the petitioner  several time to

send him the copy of insurance policy  for which he has been charged Rs.13,281/- but

petitioner failed to submit the same. Thereafter, respondent arbitrarily and without

assigning any reason increased the rate of interest. Due to restrictive and monopolistic

trade practices committed by the petitioner, respondent was constrained to transfer the

loan to other Bank. In that process,  petitioner charged total pre-payment charges to the

tune of Rs.3,67,965.75. Since, petitioner failed to refund the legal charges, respondent

filed complaint before the District Forum.

3.       The complaint was contested by the petitioner.

4.       District Forum, vide order dated 18.1.2012, allowed the complaint and directed

the opposite party;                   “(a)    Refund  amount   of Rs.3,67,965.75P and also pay an

interest at the rate of 6% p.a. from the date of its receipt, till  it is actually paid.

(b)     Opposite Parties are also directed to refund Rs.13,281/- and also pay an interest at the rate of 6% p.a. from the date of its receipt, till it is actually paid.

                  (c)     Opposite Parties are further burdened with Rs.15,000/-

 towards cost of litigation.”

 

5.       Being aggrieved, petitioner filed an appeal before the State Commission.

Alongwith the appeal, an application for condonation of delay of 276 days (232 days as

per Office report of the State Commission) was filed. State Commission, vide impugned

order dismissed the application for condonation of delay. Consequently, the appeal of

the petitioner was dismissed being time barred.

6.       Hence, this revision petition.

7.       We have heard the learned counsel for the petitioner and gone  through the

record.

8.       Main grounds on which condonation of delay was sought before the State

Commission read as under;“2.      That the impugned order has been passed on 18.1.2002. That immediately on receipt of the certified copy of the order, the appellant bank had instructed the dealing advocate within the limitation available for filing an appeal.3.       That counsel for the bank was also given the demand draft for a sum of Rs.25,000.00 to be deposited before the Hon'ble State Commission alongwith the appeal. True copy of the demand draft of Rs.25,000/- dated 28th of March, 2012 is attached as Annexure A/5. The grounds of appeal, were got signed by the advocate from the authorized officer of the bank. However, the appeal was never filed.4.       That the concerned advocate confirmed having filed the appeal and started reporting further dates in the matter. The status in respect of various cases, including the present case submitted by e-mail showed that in the case of Surinder Singal the next date was fixed on 27th of July, 2012. True copy of the said e-mails printout is submitted as Annexure A/6.5.       That the bank came to know only on 18 th of October, 2012 that the appeal has not been filed. The Counsel had been informed even the dates of the appeal to the bank officials. Immediately when the bank officials came to know that the appeal has not been filed, they went the concerned advocate to get back the file. At that stage,

he agreed that he has not filed the appeal. Thus, there is delay in filing of appeal due to the miscommunication and inaction on the part of bank’s advocate.6.       That the bank should not be made to suffer on account of negligence on the part of its counsel. The delay in filing the appeal is un-intentional and is attributed to the circumstances mentioned above.7.       That it is in the interest of justice that delay of 276 days in filing the present appeal be condoned.”

 

9.       It has been contended by learned counsel for the petitioner that delay has

occurred on account of wrong information provided by the earlier counsel who was

conducting  the case before the State Commission. The said counsel always informed

the petitioner that appeal has been filed and it is subjudice before the State

Commission.  It further contended that petitioner had engaged that Advocate and has

paid his fees and was confident that its lawyer will look after the interest of the

petitioner. Hence, petitioner should not be made to suffer for inaction, deliberate

omission or misdemeanor of its previous counsel.

10.     State Commission, while dismissing the application for condonation of delay in its

impugned order  observed;“As such, the applicant/appellant, acted in a highly irresponsible and negligent manner, and woke up from their deep slumber, after 232 days. The applicant/appellant did not act, with due diligence, resulting into delay of 232 days, in filing the appeal. It appears that the applicant/appellant has coined a false excuse to cover up its lapse of not filing the appeal in time. The applicant/appellant was required to explain each day’s delay. It, however, miserably failed to explain the delay of 232 days, which is more than nine times, beyond the normal period of filing an appeal, under Section 15 of the Act. Complete in-action and lack of bonafides, of the applicant/appellant is writ large, on the face of record, and attributable to it, in filing the appeal, after a delay of 232 days. The delay, in filing the appeal was, thus, intentional, willful and deliberate. Since, no sufficient cause is constituted from the averments, contained in the application, the delay of 232 days cannot be condoned. The principle of law,  laid down in the aforesaid cases,  is fully applicable to the facts of the instant case. The application, is, thus, liable to be dismissed.”

 

11.     Petitioner has taken the usual plea that of to shift entire burden on its previous

counsel. We can not overlook this fact that petitioner being a multi-crore Bank is having

full-fledged legal offices comprising of battery of lawyers and legal assistants and other

staff.   It  was duty of the petitioner being a litigant to have pursued the appeal which

was to be filed before the State Commission,  in a diligent and careful manner. This

clearly shows that there is something wrong in the legal department of the petitioner’s

bank that they were so careless and negligent that they could not keep track of the

appeal. Even if we believe that averments as made in the application for condonation of

delay are correct, then why petitioner did not take any action against its previous

counsel  by not filing any complaint the before Bar Council of India for professional

misconduct. Nor did petitioner file any complaint under the Act, against the previous

counsel for deficiency in service. It appears that after the order of the District Forum,

petitioner bank went into the deep slumber and all of a sudden woke up after 7 months.

Moreover, a valuable right has occurred in favour of the respondent.  

12.    It is well settled that “sufficient cause” for condoning the delay in each case is a

question of fact.  

13.      Under the Act,  a special period of limitation has been provided to ensure

expeditious disposal of cases. Complaint has to be disposed of within 90 days from the

date of filing where no expert evidence is required to be taken and within 150 days

where expert evidence is required to be taken.  

14.  Hon'ble Supreme Court in Anshul Aggarwal vs. New Okhla Industrial

Development Authority –IV (2011) CPJ 63 (SC) has held that while deciding the

application filed for condonation of delay, the Court has to keep in mind that the special

period of limitation has been prescribed under the Act for filing appeals and revisions in

consumer matters and the object of expeditious adjudication of the consumer disputes

will get defeated if the appeals and revisions which are highly belated are

entertained.  Relevant observations made by Apex Court read as under:“It is also apposite to observe that while deciding an

application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and the object of expeditious adjudication of the consumer disputes will get defeated if this court was to entertain highly belated petitions filed against the orders of the consumer fora”.

 

15.    Hon'ble Apex Court also observed in case “State of Nagaland Vs. Lipokao and

others reported in 2005(2) RCR (Criminal) 414 that;

 “Proof of sufficient cause is a condition precedent for exercise of

discretion by the court in condonation of delay”.

 

16.     Apex Court also in  “D. Gopinathan Pillai Vs. State of Kerala and another,

reported in (2007) 2 SCC, 322, held;

 “When mandatory provision is not complied and the delay is not

properly, satisfactorily and convincingly explained, the court cannot

condone the delay on sympathetic ground only.”

17.     It may also be pointed out that petitioners have also filed an application for

permission to place on record the additional grounds. Additional grounds which are

sought to be introduced at this belated stage cannot be taken into consideration since

they relate to the merits of the case and since the appeal is barred by limitation, there is

no question to entertain these additional grounds at this late stage.

18.     As apparent from the record, the District Forum has passed the final order as far

as in the year 2008 and now more than five  years have passed and the only intention

of the petitioners is to deprive the fruits of the decree  in favour of the respondent and to

a large extent the petitioners have succeeded in depriving the benefit to the respondent

for a period of five years.                    

 17.    Therefore, the grounds stated in the application cannot constitute sufficient cause

so as to condone the long delay of 128 days in filing the appeal. Thus, we do not find

any infirmity or illegality in the impugned order passed by the State

Commission.  Accordingly, we dismiss the revision petition with cost of Rs.25,000/-

(Rupees Twenty Five  Thousand only).  18.    Petitioners are directed to deposit the cost by way of demand draft in the name of  “Consumer Welfare Fund” as per Rule 10A of the Consumer Protection Rules, 1987, within eight weeks from today. In case, petitioners fail  to deposit the cost  within the prescribed period, then they shall be liable to pay interest @ 9% p.a. till realization.

 19.      List for compliance on  26.7.2013.                                                                                …..…………………………J

                                         (V.B. GUPTA)       PRESIDING MEMBER

                                                                              …..…………………………

                                   (REKHA GUPTA)                                                                             MEMBERSg.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

   REVISION PETITION NO. 4107 OF 2012(From  order dated 17.06.2008  in Appeal No. 313 of 2004 of the

Kerala State Consumer Disputes Redressal  Commission, Thiruvananthapuram)  O. Ranjini, D/o (Late) Sh.Karunakaran R/o ‘Nalleri House’, Near Kavitha Theatre Kannur , Kannur District

… Petitioner 

                                       Versus The Bank Manager, Syndicate Bank Taliparamba, Kannur District

… Respondent 

 

BEFORE:

HON’BLE MR.JUSTICE J. M. MALIK , PRESIDING MEMBER          HON’BLE DR. S.M. KANTIKAR, MEMBER

 

For the Petitioner            :  In person

 PRONOUNCED ON_16.05.2013

 

                                                O R D E R

JUSTICE J.M. MALIK

                                                         

1.    There is a delay of  1462 days  in filing the present revision petition.   The petitioner

had not filed application for condonation of delay. Vide order dated 04.01.2013, she was

given an opportunity to file an application for  condonation of delay. It is also not out of

place to mention here that the petitioner who appears to be an educated lady

argued  the case herself.  She was offered legal aid, but she refused.  The State

Commission decided the case against the petitioner vide order dated 17.06.2008.  She

has explained the delay in the following para in her affidavit:-“I had filed Writ Petition before the Hon’ble High Court of Kerala as W.P.(C) No.3147/2012 (P) against the order of the Kerala State Consumer Disputes Redressal Commission in Appeal No.623/2003 and 313/2004.  The Hon’ble High Court of Kerala passed an order dated 20.09.2012 directing me to file Revision Petition before this Hon’ble National Commission within six weeks from 20.09.2012.  It is submitted that I have filed Revision Petition before this Hon’ble National Commission within the

time granted by the Hon’ble High Court.  Copy of the said order is produced herewith”.

 

The  petitioner  vehemently  argued  that in view of the order of the Hon’ble High Court,

the present case is within time.

 

2.      All these arguments  lack conviction.  The Hon’ble High Court is not authorized to

condone the delay of four years which took place from 17.06.2008 to the filing of the

Writ Petition (C) No.3147/2012 (P).  The order of the Hon’ble High Court is

conspicuously  silent about the said four years.  The petitioner has  also failed to explain

the day-to-day delay in filing the revision petition. There is no provision under Consumer

Protection Act, 1986 wherein the petitioner is authorized to file the Writ Petition before

the Hon’ble High Court.   In an authority reported in M/s. Advance Scientific

Equipment Ltd. & Anr. vs. West Bengal Pharma & Photochemical Development

Corporation Ltd., (Appeal (Civil) Nos.17068 - 17069/2010, decided on 9 July 2010)

wherein it observed inter alia, as under:-

 

“…… We are further of the view that the petitioners’ venture of filing petition under Article 227 of the Constitution was clearly an abuse of the process of the court and the High Court  ought not to have entertained the petition even for a single day because an effective alternative remedy was available to the petitioner under section 23 of the Act and the orders passed by the State Commission did not suffer from lack of jurisdiction”.

 

3.      Furthermore,  the  Apex court in a recent authority reported in Cicily Kallarackal

Vs. Vehicle Factory, IV (2012) CPJ 1 (SC) 1, was pleased to hold as under :-“Despite this, we cannot help but to state in absolute terms  that it is not appropriate for the High Courts to entertain writ petitions under Article 226 of the Constitution  of  India against  the orders passed by the Commission, as a statutory  appeal is provided and lies to this Court under the provisions of the Consumer Protection Act, 1986.  Once  the Legislature has  provided  for a statutory  appeal  to a higher court, it cannot be  proper exercise of jurisdiction to permit the parties to bypass the statutory  appeal to such higher court and entertain petitions in exercise of its powers under Article 226 of the Constitution of India.  Even in the present case, the High Court has not exercised its  jurisdiction  in  accordance  with law.  The case is one of the improper exercise of jurisdiction.  It is not expected of us to deal  with this issue at any greater  length  as  we are dismissing this petition on other grounds”.

 4.     Even  as per law, the petition is also not maintainable.  The present case also does

not come with the ambit of Section 14 of the Limitation Act.  The petitioner  has  failed to

prove that she was contesting the case  anywhere,  from  2008  to 2012.  The  case is

hopelessly barred by time.

 

5.     In Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), the Hon’ble Apex Court has held that it is also apposite to observe that

while deciding an application filed in such cases for condonation of delay, the Court has

to keep in mind that the special period of limitation has been prescribed under the

Consumer Protection Act, 1986 for filing appeals and revisions in consumer matters and

the object of expeditious adjudication of the consumer disputes will get defeated if this

Court was to entertain highly belated petitions filed against the orders of the Consumer

Foras.

 

6.      Let us turn to the merits of this case.  Ms.O.Ranjini, the petitioner was transacting

the business under the name and style of ‘Kerala Steels”, Taliparamba. She used  to

take financial assistance from Syndicate Bank, Taliparamba, OP 1.  She opened a

Savings Bank Account with OP1, on 27.11.1975.  Her Savings Bank Account bore

No.10421 in the name of  ‘M/s. Kerala Steels’.  On 31.03.1978, she opened

another  account  having SB A/c No.34.  The said account closed on

24.02.1987.  Subsequently, another  account  was  opened in the name of the

complainant  with  account No.829. 

 

7.   The grievance of  the  complainant  is  that  the above said account  No.829 of M/s.

Kerala Steels  was  opened  without her consent or knowledge  but  it was  opened at

the instance of her brother, Mr.O.C.Premarajan.  She filed a case against

O.C.Premarajan as well in  the  original complaint.  She being an unmarried lady, she

kept Mr.O.C.Premarajan,  her  brother,  for  looking after  the day-to-day affairs of  her

business.  It is alleged that her brother Mr.O.C.Premarajan, while working in cahoots

with the Manager of Syndicate Bank, OP1, manipulated the account  with said

OP.  He  effected so many withdrawals.  O.C.Premarajan, OP2,  has forged the

signatures  of  the  complainant and OP1 failed to verify the signatures of the

complainant appearing on the cheques, produced by  said O.C.Premarajan, OP2.  Due

to the fraudulent and collusive acts of the OPs,  the complainant  suffered  a huge loss

of more  than Rs.5,00,000/-. However, she limited her  claim to Rs.5,00,000/- only.   

 

8.     This is an admitted  fact  that  subsequently  she  deleted  the name of  her brother

from the array of parties.  There is no dispute that the complainant  is the Sole

Proprietor of her business and she entrusted the day-to-day management of the said

business to her brother, O.C.Premarajan.  The petition  for deletion of his name was

filed by the complainant  herself, for the reasons best known to the complainant.

 

9.    The complainant did not produce  any evidence showing that her

signatures  were  forged.  She did not  produce the Handwriting  Expert’s evidence  or

any other evidence to show that her signatures were forged.  The entire  case  hinges

upon her sole testimony.  She had no  explanation as to why the name of the main

culprit, O.C.Premarajan, her  brother,  was deleted.  Rather,  it appears  that she had

colluded with her brother, since deceased.

 

10.      On the other hand, OP placed Ex.R-3, authority of letter executed by the

complainant authorizing Mr.O.C.Premarajan, to make, draw, accept, endorse and

negotiate otherwise sign any Hundies, Bills of Exchange and Promissory Notes or other

negotiable instruments to operate or overdraw on the above account with the Bank and

also to receive payment of all moneys due to the complainant and to acknowledge  debt

or debts due from the complainant, etc. It also goes to show that the complainant had

authorized her brother  to sign cheques on behalf of the complainant.  The complainant

has denied having executed  authority  letter, Ex.R-3.  She could not produce any

evidence to show that it was not executed by her, no Expert evidence was pressed into

service.

11.     Moreover, the State Commission has observed that she had

herself,  opened  account  No.829.  It compared the specimen signatures placed at

Ex.R-2 & R-5, which go to show that she had herself  opened  an account  with  OP1 on

22.06.1992.  All the necessary  documents  were  proved  on  the record.  The State

Commission rightly  held that since  the issues  like forgery, fraud,  misrepresentation

or  collusion, are  involved in  this case, therefore,  the civil court can decide  these

questions, after opportunity to lead evidence, including  the

Handwriting  Expert’s  evidence.  It is, therefore, also noteworthy that no such

evidence was adduced  before  the fora below, by the complainant, who was to carry

the ball in proving this case.  The case of the complainant must stand on its legs.  Due

to lack of evidence, her case does not stand proved. The case is meritless and  same

is, therefore,  dismissed  as barred by time, as well as on merits.

.…..…………………………J

(J. M. MALIK)

PRESIDING MEMBER          

….…..…………………………

(DR.S.M.KANTIKAR)

MEMBER

dd/4

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

    REVISION PETITION NO.     1188       OF     2013 (From order dated  31.12.2012 in Appeal No. 537 of  2011  of  Chhattisgargh State Consumer

Disputes Redresdsal  Commission, Raipur) 

 Sahdeo Ram S/o Late Shri Jirjodhan R/o Gontiapara, Near Panchayat Office Wadrafnagar, Thana Basantpur Post/Tah. Wadarfnagar, Dist. Surguja Chhattisgarh

………Petitioner                                                                                                                                              Versus      State Bank of India Through its Branch Manager, Branch Surajpur Dist. Surguja, Chhattisgarh

                            …… Respondent                                                                  BEFORE:

HON’BLE MR. JUSTICE V.B. GUPTA, PRESIDING MEMBERHON’BLE MRS. REKHA GUPTA, MEMBER

For the Petitioner              :    Mr. Ashish Deep Verma, Advocate

Pronounced on: 20 th   May,     2013 ORDER

PER MR. JUSTICE V. B. GUPTA, PRESIDING MEMBER

               Being aggrieved by order dated 31.12.2012, passed by Chhattisgarh State

Consumer Disputes Redressal Commission, Raipur (for short, ‘State Commission’)

petitioner/complainant has filed this revision petition.

2.       Brief facts are that petitioner purchased a tractor & trolley which was financed by

Respondent/Opposite party in year 2004 and for which a loan account was opened. It is

stated that loan repayment was being done and as per the terms of loan agreement,

respondent had been insuring the tractor and trolley every year. It is further stated that

tractor and trolley met with an accident on 24.4.2010 resultantly the same got fully

burnt, whereby no physical loss was there. A report was made to the Police and

intimation was given to the respondent. Thereafter, petitioner filed claim with the

respondent. However, he was informed that insurance of the tractor and trolley for the

relevant period from  2009 to 2010 was not done by the respondent. It is alleged that

the act of respondent in not getting petitioner’s tractor and trolley insured, amounts to

deficiency in service. A survey was got done by registered Surveyor who assessed the

complete loss for Rs.3,65,000/-. Thereafter, petitioner filed a complaint before District

Consumer Disputes Redressal Forum, Sarguja-Ambikapur(for short, ‘District Forum’)

seeking direction to the respondent to pay compensation of Rs.3,65,000/- and not to

charge interest on his loan account for the period after 24.6.2010. Compensation

towards mental and physical harassment for Rs.50,000/- and interest @ 9% p.a. on the

total amount together with cost of litigation, was also sought.

3.       Respondent in its written statement has stated that petitioner was not regular in

repayment of the loan installments due from 18.09.2007 and Rs.2,49,448.85 was

outstanding in his loan account. Hence, the loan account became “Bad Debt” which

came in the category of ‘Non Productive Account’ (for short, ‘N.P.A’). Thus, in

accordance with Bank Rules, insurance was not done thereafter. It is further stated that

petitioner was intimated to the effect that his loan account became N.P.A. So, as per

Bank Rules it was his duty to get the insurance done. As loan account became a bad

debt on 29.05.2010 so insurance for the relevant period  from 2009 to 2010 was not

done by the respondent. Thus, petitioner has not come with clean hands, as such he is

not entitled for any compensation.

4.       District Forum, vide order dated 30.8.2011 allowed the complaint and

passed  following directions;            “(i)     Non-applicant will pay an amount of Rs.2,73,750/-

  (Rupees two lac seventy three thousand seven hundred fifty only) to the complainant within 1 (one) month from the date of order and will pay simple interest @ 6% (six percent) from 16.11.2010 i.e. the date of institution of the dispute till the date of payment of entire amount.

ii)                 Non-applicant will pay to the complainant an amount of Rs.2,000/-(Rupees two thousand only) in respect of the physical and mental trouble and inconvenience suffered by the complainant.

iii)               Non-applicant will bear its own expenses and Rs.1,000/-(Rupees one thousand only) towards  expenses of the dispute of the complainant in  which fee of the advocate has also been included.

   iv) Complainant will give salvage of the vehicle  Tractor No. CG 15A 3324 and trolley No.CG15A 3325 to the non-applicant within 1 (one) month from the date of the order and non-applicant bank can use/utilize the same”.

5.         Being aggrieved, respondent filed an appeal before the State Commission which

allowed the same, vide impugned order and dismissed the complaint of the petitioner.

6.       Hence, this revision petition.

7.       We have heard the learned counsel for petitioner and gone through the record.

8.       It is contended by learned counsel for the petitioner that as petitioner’s account

was converted into a ‘Non Productive Account’, thus respondent was under lawful duty

to continue or renew the insurance policy from 27.10.2009 to 26.10.2010 which was

never been done by it nor it was  conveyed to the petitioner. Thus, there was severe

lapse on the part of the respondent, which amounts to breach of contract and deficiency

in service.

9.       The State Commission in the impugned order observed ;“The only question to be decided is whether the appellant Bank was deficient in providing Banking service in not insuring the questioned tractor & trolley at the relevant time and could be held liable to pay compensation to the respondent/complainant for the loss caused to the questioned tractor & trolley due to accident?.          Defence of the appellant bank is that it was the duty of the respondent/complainant to get his tractor & trolley insured and then to ply the same on road as per provisions of Motor Vehicle Act. Appellant bank had in initial few years got the tractor & trolley insured but since the respondent/complainant defaulted in repayment of loan installments so his loan account acquired states of ‘Bad Debt’ as such insurance was not done by it for the year 2009-2010 and more over it was not obligatory on its part to get the insurance of secured property under finance as per terms and conditions of the agreement.          We find that condition no. 5 of the first schedule of Hypothecation Agreement (document no./2 at pages no. 60) stipulates as following:

“That the borrower(s) shall at all times keep such items of security as are of insurable nature, insured against loss or damage by fire and other risks as may be required by the bank and shall deliver to the Bank all such policies. It shall be also lawful for but not obligatory upon the bank to insure by debit to the borrower(s) account(s) in respect of the security as are of insurable nature. The proceeds of such insurance shall at the option of the bank either be applied towards replacement of the security or towards the satisfaction of the bank’s dues”. 

Thus the position is clear that it was lawful but not obligatory upon the appellant bank to insure the financed tractor & trolley by debiting the borrower’s account. Appellant bank had in initial few years continued to insure the questioned tractor & trolley so long the respondent/ complainant was regular in repayment of loan installments but when he defaulted in repayment of further loan installments, it stopped to insure the questioned tractor & trolley. As per settled law position, the terms & conditions of the

contract are binding on the respondent/complainant so if the appellant bank did not insure the questioned tractor & trolley then it can not be held to have committed deficiency in service in terms of loan agreement. Otherwise also the respondent/ complainant being the owner of the questioned tractor & trolley had the primary duty to insure that the questioned tractor & trolley were properly insured since he could not ply the same on road without being insured. The respondent/ complainant, as per version of the appellant bank, supported by affidavit dated 24.08.2012 of Shri Ved Parkash Agrawal its Branch Manager, had been in default in repayment of loan installments as such he owed overdue amount to the appellant bank so should not have expected insurance of the questioned tractor & Trolley to be done by the appellant Bank. Respondent/ complainant did neither mention in his complaint about his defaulting conduct in regular repayment of loan installments in terms of loan agreement nor by way of affidavit in rebuttal of the version of the appellant bank. When debit balance of the respondent/complainant started growing due to defaults in loan repayment of installments then appellant Bank as per trade norms was not expected to enhance further debit in his loan account by insuring the financed vehicle further. In case of default in repayment of loan installments, obviously it was the duty of the respondent/complainant to get his tractor and trolley insured and not to shift his financial burden over the appellant Bank. The respondent/ complainant was very well aware of his defaulting status, so there was no necessity of the appellant Bank to give a notice about further insurance to the respondent/ complainant. Respondent/ complainant being owner of questioned tractor & trolley ought to have taken steps to renew insurance after its expiry i.e.26.10.2009 (document no.A-5) but he continued to be negligent about the same for a further period of about 8 months till occurrence of the accident of questioned vehicle on 04.06.2010, so he cannot derive benefit of his own neglectful conduct. If the appellant bank had done earlier insurance on behalf of the respondent/ complainant then it was just to safeguard mutual interest against unforeseen event but only so long repayment of loan installments were regularly received but it was not obligatory on its part. Learned District Forum has drawn an erroneous conclusion in its impugned order about holding the appellant Bank of having committed deficiency in service and directing it to pay compensation as has been awarded therein.          In the facts of the case and foregoing discussion, the appeal finds substance to succeed therefore, it is allowed. The impugned order of learned District Forum, being not

sustainable, is set aside and the complaint of the complainant is also dismissed. No order as to cost”.

11.     As per averments made in the complainant, petitioner has simply stated that he

has been paying the installments of the loan on time to time basis. However, petitioner

has nowhere stated as to for which period he had paid the installments and what was

the number of installments due at the time of filing of the complaint.

12.     On the other hand, defence of the respondent is that petitioner was not paying

installments on time and as such his loan account became debt and a sum of

Rs.2,49,448.45P are due from the petitioner.

13.     Petitioner has approached the District Forum by concealing the material facts

with regard to the loan amount due against him on the date of filing of the complaint.

Since, petitioner is a defaulter in this case, the respondent was not obliged to renew his

insurance policy. Moreover, a defaulter cannot get any discretionary relief and for its

own fault, petitioner can not shift burden upon the respondent.

14.     In our view, the order of the State Commission cannot be termed as erroneous as

the same is based on correct analysis of the facts and evidence produced in this case.

Consequently, we do no find any infirmity or ambiguity in the impugned order passed by

the State Commission. Present revision being without any legal basis and having no

merit is hereby dismissed.

15.    No order as to cost.                                                                        ……..……………………J

     (V.B. GUPTA)

                    ( PRESIDING MEMBER)

……………………………

                                                        (REKHA GUPTA)

                                                                            MEMBER

SSB

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHIREVISION PETITION NO. 1993 of 2012

(From the order dated 26.09.2011 in Appeals No.1297 & 3952 of 2010 Karnataka State Consumer Disputes Redressal Commission, Bangalore)

 

 T.S. Muthukrishnan 166, 1st Floor, 8th Cross, II Stage, Indira Nagar, Bangalore 560038

                                      …   Petitioner/complainant

                             Versus1.  The Branch Manager Indian Overseas Bank Indira Nagar Branch, C.M.H. Road, Indira Nagar, Bangalore – 560038

 2.  Managing Director United India Insurance Co. Ltd. 24, Whites Road, Chennai – 600014

                             … Respondents/Opp. Parties (OP) 

 BEFORE

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

HON’BLE DR. B.C. GUPTA, MEMBER

 

For the Petitioner     :   Ms. Neena Singh, Advocate

PRONOUNCED ON           21 st   May,     2013

 O R D E R

 

 PER   JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER          

This revision petition has been filed by the Petitioner/Complainant  against  the

impugned order dated 26.9.2011 passed by the Karnataka State Consumer Disputes

Redressal Commission, Bangalore (in short, ‘the State Commission’) in Appeal No.

1297 of   2010 – The MD, United India Ins. Co. Ltd. Vs. T.S. Muthukrishana & Anr. and

in Appeal No. 3952 of 2010 – T.S. Muthukrishana Vs. Branch Manager, Indian

Overseas Bank & Anr.  by which, while dismissing appeals, order passed by District

Forum allowing complaint partly was upheld. 

2.       Brief facts of the case are that Petitioner/Complainant purchased an Indian

Overseas Bank Health Care Plus Policy on 1.9.2005 from OP No.1/Respondent

No.1. Subsequently, the said policy was renewed from OP No.1/Respondent No.1, but

OP changed three insurance companies in 4 years.  Complainant’s wife suffered a

fracture in the spinal cord and when the complainant approached hospital, he was

denied cashless service by the third party administrator on the ground that policy is

“very fresh”.  It was further alleged that OP repudiated claim. Complainant alleging

deficiency on the part of OPs filed complaint before District Forum.  OPs contested

complaint and submitted that complainant failed to establish deficiency in service on

their part; hence, complaint be dismissed.  Learned District Forum after hearing both the

parties allowed complaint partly and directed OP No. 1 to pay compensation of

Rs.10,000/- and directed OP No. 2 to pay compensation of Rs.1,00,000/- and

Rs.5,000/- as litigation expenses.  It was further observed that complainant can claim

reimbursement of medical expenses as per policy, terms and conditions and it cannot

be considered in this complaint. Both parties filed appeal before learned State

Commission and learned State Commission vide impugned order dismissed both the

appeals against which, the petitioner has filed this revision petition. 

3.       Heard learned Counsel for the petitioner at admission stage and perused record. 

4.       Complainant under complaint prayed for awarding Rs.5,00,000/- for

reimbursement of hospitalization and post hospitalization expenses and Rs.3,00,000/-

from each of the OPs as compensation on account of mental agony and Rs.20,000/- as

cost of the proceedings.  Learned District Forum awarded Rs.1,10,000/- as

compensation on account of mental agony and Rs.5,000/- as cost of the proceedings

and further observed that claim of reimbursement of medical expenses cannot be

considered in this complaint. 

5.       Learned Counsel for the petitioner submitted that learned District Forum has

committed error in allowing only Rs.1,10,000/- as compensation and learned State

Commission has committed error in dismissing appeal for enhancement of

compensation; hence, revision petition be admitted. 

6.       As observed earlier, learned District forum has not considered claim for

reimbursement of medical expenses, as claim for medical reimbursement has not been

repudiated by OP No. 2/Respondent No.2. In such circumstances, award of

Rs.1,10,000/- as compensation cannot be said to be award on lower side.   There is no

justification to enhance quantum of compensation. Learned State Commission has not

committed any error in dismissing appeal for enhancement of compensation. 

7.       We do not find any illegality, impropriety or jurisdictional error in the impugned

order, which calls for any interference and revision petition is liable to be dismissed. 

8.       Consequently, revision petition filed by the petitioner is dismissed at admission

stage with no order as to costs          ..………………Sd/-……………

( K.S. CHAUDHARI, J)

 PRESIDING MEMBER 

          ..………………Sd/-……………

( DR. B.C. GUPTA )

 MEMBERk

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

 

CONSUMER COMPLAINT NO. 172 OF 2012 

   

Rakesh Bhartia S/o Sh. Chand Mall Bhartia R/o S-5, Panchsheel Park, New Delhi

                        … Complainant

Versus

HDFC Bank   Ltd D-965, New Friends Colony, New Delhi

                             …Opp.party  

  

BEFORE:

      HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER

      HON’BLE DR. S.M. KANTIKAR, MEMBER

        For the Complainant    :  Sh. Vijay C. Joshi, Advocate

 For the Opp.party        : Sh. Rishab Raj Jain, Advocate

  PRONOUNCED ON     23.05.2013  

  ORDER

 JUSTICE J.M. MALIK 

1.      In this complaint case, Sh. Rakesh Bhartia, the complainant  has claimed a sum of

Rs.5,00,00,000/-  (Rupees five crores only) form HDFC Bank Ltd., OP, as

compensation for mental agony, loss of reputation, torture, harassment, etc., for

deficiency in services because the HDFC Bank  Ltd/OP had freezed  all the joint

accounts held by the complainant.

`

2.   The complainant  is  a Chief Executive Officer of  a  large  size Public

Limited  Company,  having a turnover of more than INR 2500 crores  and 1300 human

beings consisting of Engineers and Professionals of  various  fields are working under

him.  The  complainant  maintains a Savings Bank A/c with HDFC Bank, New Friends

Colony, New Delhi, OP.  His Account No. is 00011050068579.   He also maintains  7 or

8 joint  accounts  with  the members of  his  family in the HDFC Bank Ltd., New Friends

Colony, New Delhi.

 

3.      The Income Tax  Department  issued   notice under Section 226(3) of the Income

Tax Act, 1961 instructing the OP to remit a sum of INR.1,03,22,548/- from the single

name account  on 21.04.2011.  On 21.10.2011, the Income Tax Department again

issued another notice under Section 226(3) of the Income Tax Act, 1961, directing the

Bank to attach the A/c No.00891930002490, another account, as a measure of recovery

of income tax dues.  The bank had remitted INR 98,135.49.  The OP informed  the

complainant  that in compliance of the notice dated 21.10.2011 under Section 226(3) of

Income Tax Act, 1961, INR.1,55,047.06 had been remitted from the said account. 

 

4.      The  complainant  was  also  informed  that  the  funds   available in Bank Account

Nos. 00891600004455, 00891930002817, 00891930002827, 02481930005871,

02481930005881, 02481930005898,  02481930005916  &  02482070000189, which

belong to  other  family  members  of  the complainant  jointly with him, he being the

second holder,  would remain under  a “No Debit” status, as  for,  full  amount

required  was paid or after the receipt of the revocation order.  The Bank accounts of

the family members  were also attached. 

 

5.      The complainant vide e-mail dated 16.11.2011, questioned the authority of the

Manager, regarding freezing  the account when the same were not covered  under the

Income Tax notice.  The OP refused to defreeze  the  account.  Since no remedial steps

were taken by the OP despite various correspondence,  therefore, the banking

Ombudsman was approached.  The Ombudsman  informed  that  the  said dispute was

not  within  the ambit  of banking  Ombudsman Scheme, 2006.  The matter was

also  reported  to the Governor, RBI, higher authorities of the Bank and ultimately, this

complaint was filed with the following prayers:-

 

“PRAYER:

It is therefore, most respectfully prayed that this Hon’ble Forum may kindly be pleased to pass:-

 

a. an order thereby directing the opposite party to pay a sum of Rs.5,00,00,000/-  (Rupees five crores) to the complainant as

compensation for mental agony, loss of reputation, torture, harassment, etc.,  for deficiency in services;

 

b. an order  thereby directing the opposite party to pay a sum of Rs.20,000/- to the complainant as cost of litigation;

 

c. any other or further order which this Hon’ble Court deems fit and proper under the facts and circumstances of the case in favour of the complainant and against the opposite party”.

 

6.      We have heard the counsel for the parties.  The learned counsel for the

complainant vehemently argued that  the above said unauthorized act on the part of  the

OP has caused  lot  of  mental  agony and anguish coupled with harassment, monetary

and loss of reputation.  He explained  that  under these circumstances, the

complaint  should   be  admitted.  It  was  also pointed out  that  the order passed

by  the  Income  Tax  Authorities to recover the amount had been  reversed by the

Appellate authority.  The accounts of the complainant  have  defreezed.   It  is

contended that the complainant was harassed  for  no fault on his part. 

 

7.      On the other hand, a copy notice issued under Section 226(3) of the Income Tax

Act, 1961, has been placed on file.  Its relevant para reads, as under:-

“…….. The account will remain under a “no debit” status until the full amount required  as per the notice is  paid  or  the receipt of the revocation order.  Further, we have also marked No debit in your below other A/c Nos. 00891600004455/ 00891930002817/00891930002827/02481930005871/02481930005881/02481930005898/02481930005916/02482070000189,

Which are all joint A/cs, irrespective of mode of operation. Request  you  to submit affidavit regarding  the proportion of joint holding.  In absence of same, 50% of the amount standing to the credit of the A/c’s shall be paid.

Kindly  revert  with a stay order or a revocation order from the  appropriate  authority  against the aforesaid notice within 24 hours to make the account fully operational”.

 8.      The  counsel for  OP has produced another copy of notice issued  by the Income

Tax Department, under Section 226(3)  of the Income Tax Act, 1961, dated 21.10.2011

addressed to the Bank Manager, with a copy to Rakesh Bhartia, the complainant.  Its

relevant extracts are reproduced, as under:-

          “A sum of Rs.1,02,24,710/- is due from Rakesh Bhartia (assesse) on account of Income-tax/penalty/interest/fine.  You are hereby required  under  Section 226(3)  of  the  Income Tax Act, 1961, to pay to me forthwith…..   any  amount  due from you to or, held by you, for or  on  account  of  the said  assesse  for the amount of arrears shown above.

          I also request you to pay any money which may subsequently become due from … him/them or which  you  may subsequently hold for or on account of him/them  for  the  amount  of arrears  still  remaining  unpaid,  forthwith  on the money becoming …. or being held by  you  as aforesaid.

          Any  payment made by you in compliance with this notice is, in law, deemed to have been made under the authority of  the  said assesse and my receipt will constitute a good and sufficient discharge of your liability to the person to the extent of the amount referred to in the receipt.

          Please note that if you discharge any liability to the assesse, after receipt of notice, you will be personally liable to me as Assessing Officer/Tax Recovery Officer, to the extent of the liability discharged, or to the extent of the liability of the assessed tax/penalty/interest/fine referred to in the preceding para, whichever is less.

          Further, if  you  fail to make payment in pursuance of this notice,  you shall be deemed to be an assesse in default  in respect of the amount specified  on  this day and further proceeding may be taken against you for the realization of the amount  if  it  were an arrear  of  tax  due from you in  the  manner  provided in Section 222 to 226 of the  Income Tax Act, 1961 and  this notice shall have the same effect as an attachment of a debt under Section 222 of the said Act”.

9.      This clearly goes to show that the Bank was given bottomless

powers  to  attach  all  the  money  belonging  to  the complainant.  The

joint  accounts  are covered by this clause.  The Bank obeyed the orders of the Income

Tax authority.  The fault, if any, lies at the door of the Income Tax Department, the Bank

cannot afford to disobey the orders of the Income Tax Department.  It is also strange to

note that Income Tax Department was not made a party in this complaint case. 

 10.    In view of the discussion, we find that OP has not committed any mistake.  It  has

just  followed  the  orders of the Income Tax

Department.  Consumer complaint  is  devoid of merit and, therefore, the same is

dismissed. No costs.

.....…………………..………J

     (J.M. MALIK)

      PRESIDING MEMBER

                                                               

.....……………….……………

                                                        (DR.S.M. KANTIKAR)

                                                                            MEMBER

Dd/14

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI 

REVISION PETITION NO.   2060 OF 2012

(From the order dated 03.02.2012 in First Appeal No. 1297/2010 of Haryana State Consumer Disputes Redressal Commission)

Canara Bank Palwal Branch Agra Chowk, Palwal District Faridabad, Haryana Through R.M. Soni, Sr. Manager

...  Petitioner

Versus

1.   Deep Chand s/o Potu Singh r/o Village Jodhpur Teh. Palwal, District Faridabad, Haryana 

2.   Lal Chand, s/o Bahora r/o Village Aurangabad, Tehsil Hodel, District Faridabad, Haryana

 3.   The New India Insurance Co. Ltd. Through its Divisional Manager Divisional Office, Faridabad Haryana

… Respondent(s)

 

BEFORE

HON’BLE MR. JUSTICE K.S. CHAUDHARI,

PRESIDING MEMBER

HON’BLE DR. B.C. GUPTA, MEMBER

APPEARED AT THE TIME OF ARGUMENTS

 For Petitioner(s)   Mr. Vijay Kumar, Advocate

For Respondent1&2   Mr. M. Mohan, Advocate

Mr. Ankit Gupta, Advocate

For Respondent-3   Mr. R.B. Shami, Advocate

PRONOUNCED   ON :   31 st   MAY     2013 O R D E R

 

PER DR. B.C. GUPTA, MEMBER 

        This revision petition has been filed under section 21(b) of the Consumer

Protection Act, 1986 against the impugned order dated 03.02.2012 passed by the

Haryana State Consumer Disputes Redressal Commission (for short ‘the State

Commission’) in FA No. 1297/2010,Canara Bank versus Deep Chand & Ors.” vide

which, while dismissing the appeal, the order dated 02.06.2010 passed by District

Consumer Disputes Redressal Forum, allowing the complaint filed by the

respondents/complainants, Deep Chand and Lal Chand, was upheld.  

2.     Brief facts of the case are that both the complainants/respondents nos. 1 & 2 Deep

Chand & Lal Chand applied for a loan for purchase of a tractor in the year 1994 which

was sanctioned by petitioner/OP No. 1 Canara Bank for a sum of Rs.1,80,000/-.  A

hypothecation/hire-purchase agreement was also executed in respect of the said tractor

between the complainants and the petitioner/OP No.1.  As stated by the complainants, it

was agreed between the parties that the tractor would be got insured by the

petitioner/OP No.1 from time to time and the amount of premium payable to the

insurance company would be debited to the account of the complainants.  The tractor

was got insured at the time of purchase with respondent no.3/OP No.2 in December

1994.  Thereafter, the insurance policy was renewed for another year and was

valid upto 4.12.96.  The complainants have alleged that the petitioner failed to get the

insurance policy renewed for a further period and in the meantime, the tractor met with

an accident.  At the time of settlement of motor accident claim, an amount of Rs.2.65

lakh had to be paid by the complainants, because the insurance company refused to

make payment in the absence of a valid insurance policy.  It has also been stated that

for further period before December 1996, the insurance was again got made by the

petitioner.  The complainants then filed consumer complaint before the District Forum

alleging deficiency in service on the part of the petitioner and demanding a total sum of

Rs.3 lakh with interest @12% p.a. as damages/compensation.  The District Forum vide

order dated 02.06.2010 directed the present petitioner to pay a sum of Rs.2.65 lakh

along with interest @9% p.a. from the date of complaint till the date of payment.  The

petitioner was also directed to pay a sum of Rs.2200/- as litigation expenses to the

complainants.  An appeal filed against this order was dismissed by the State

Commission on grounds of limitation as well as on merits.  It is against this order that

the present petition has been filed. 

3.     While arguing the case, the learned counsel for the petitioner Canara Bank has

drawn our attention to a document with the title ‘Memorandum of Agreement for

agricultural loans’ which was signed on 30.11.94 between the two complainants and the

petitioner Bank.  It has been stated in para 21 of this document that it was the duty of

the borrower to take comprehensive insurance cover in respect of the said tractor.  The

learned counsel argued that if the party authorises the Bank to take insurance cover,

then it becomes the duty of the Bank to get that cover.  In the instant case, there was no

deficiency in service on the part of the petitioner as the obligation to take insurance

cover was upon the complainants.  

4.     Learned counsel for the respondents argued that the State Commission had rightly

dismissed the appeal of the petitioner on grounds of limitation as well as on

merits.  There was a delay of 68 days in filing the appeal before the State Commission

and it was explained that since the parents of the counsel for the petitioner before the

District Forum were sick, he could not communicate the order of the District Forum to

his client.  The ground for condonation of delay was not found to be sufficient by the

State Commission.  Further, it was clear from the facts of the case that the Bank had

obtained the insurance policy in the beginning and got it renewed for one more

year.  However, the Bank could not renew the policy for the year 1996 – 1997 but in

subsequent years, the Bank has been getting the policy renewed and charging the

premium to the account of the complainants.  There was deficiency on the part of the

Bank and insurance company because they had not intimated to the complainant that

insurance policy had not been renewed.  Only because of the negligence of the

petitioner Bank, the complainants had to pay the amount of motor accident claim of

Rs.2.65 lakh.  There was, therefore, no infirmity in the orders passed by the State

Commission and District Forum and the same should be upheld. 

5.     The learned counsel for the respondent insurance company stated that since there

was no insurance policy for the period, in question, the company was not liable to pay

any compensation in the matter. 6.     In reply, the learned counsel for the petitioner stated that the delay of 68 days in

filing the appeal before the State Commission should have been condoned looking at

the facts and circumstances of the case.  Before the District Forum, the petitioner Bank

was represented by Sh. Atul Mangla, Advocate, who was present at the time of

pronouncement of order.  However, the said Advocate could not convey the order to his

client, because he was in great personal difficulty because both of his parents were

admitted in the hospital at the same time for serious illness.  Shri Mangla has filed an

affidavit in this behalf and also stated these facts in his letter dated 21.08.2010 to the

petitioner. Regarding the illness of his parents, copies of medical record have been

placed on file which indicates that the parents of Shri Mangla had to be taken to

different hospitals for treatment.  The State Commission should, therefore, have

condoned the delay in filing the appeal before it.

 

7.     We have examined the entire material on record and given a thoughtful

consideration to the arguments advanced before us.  In so far as the delay in filing the

appeal by the petitioner before the State Commission is concerned, the material on

record makes it clear that the parents of the counsel for petitioner Bank before the

District Forum were seriously ill and hence, the reasons explained for delay in

communicating the order of the District Forum by the Advocate to his client are

convincing.  The State Commission should have condoned the delay in filing the appeal

before it.

8.     The main issue involved in the present case is regarding the obligation for taking

the insurance policy for the vehicle in question.  It is true that as a matter of practice, the

insurance policy was obtained by the Bank and the premium was charged to the

account of the complainants.  Barring period of one year, i.e., 1996-1997 during which

the accident took place, the Bank has been obtaining the policy from the insurance

company.  The reasons for non-action on the part of the Bank for the year 1996-1997

have not been explained.  However, from a strict legal point of view, the picture is clear

that the owner of the vehicle is duty bound to take the policy and unless he authorises

the bank in writing, the bank is under no obligation to take policy on his behalf.   The

clause 21 in the hypothecation agreement also makes it clear that it was the duty of the

owner to get the insurance policy.  We, therefore, find weight in the contention raised by

the petitioner that he was not duty bound to take the insurance policy on his behalf and

hence, there is no question of deficiency in service on the part of the petitioner.

9.     Based on the discussion above, we find that this revision petition deserves to be

accepted because the orders passed by the State Commission and the District Forum

do not stand the test of legal scrutiny.  We, therefore, order accordingly.  The revision

petition is accepted and the orders passed by the State Commission and the District

Forum set aside, with no order as to costs.

 

..……………………………

(K.S. CHAUDHARI J.)

PRESIDING MEMBER  

..……………………………

(DR. B.C. GUPTA)

MEMBERRS/