State Consumer Disputes Redressal Commission
Suresh Kumar Sharma vs P.N.B And Other on 21 October, 2024
STATE CONSUMER DISPUTES REDRESSALCOMMISSION,
PUNJAB, CHANDIGARH
1) First Appeal No.596 of 2022
Date of institution : 14.07.2022
Date of Reserve : 26.09.2024
Date of Decision : 21.10.2024
Suresh Kumar Sharma S/o Late Sh.Jagan Nath Sharma (Sr.Citizen)
R/o 115, (new) 909/3 (old), Tagore Nagar "A" Ludhiana-141001. Mob:
98158 96229, 90563 43084.
.......Appellant/Complainant
Versus
1. Branch Manager (Branch Head), Punjab National Bank, Branch
Over Lock Road, Ludhiana.
2. Branch Manager (Branch Head), Punjab National Bank, A.R.M.B.
Circle Office, Site No.5, Ferozepur Road, Ludhiana.
(Complaint against OPs No.3&4 was not admitted).
.......Respondents/Opposite Parties No.1&2.
Present :-
For the appellant :Sh.Suresh Kumar Sharma, in person
For respondents No.1&2: Sh.Himanshu Sharma, Advocate
For respondents No.3&4: Service dispensed with
Vide order dt: 06.09.2022
2) First Appeal No.905 of 2022
Date of institution : 21.10.2022
Date of Reserve : 26.09.2024
Date of Decision : 21.10.2024
1. Branch Manager (Branch Head), Punjab National Bank, Branch
Overlock Road, Ludhiana.
2. Branch Manager (Branch Head), Punjab National Bank, A.R.M.B.
Circle Office, Site No.5, Ferozepur Road, Ludhiana.
.......Appellants/Opposite Parties No.1&2.
Versus
F.A.No.596 of 2022
2
Suresh Kumar Sharma S/o Late Sh.Jagan Nath Sharma (Sr.Citizen)
R/o Partner M/s Guide International (Export Wing), 244-A, Industrial
Area "A", Ludhiana, Mob No: 9815896229.
.......Respondent/Complainant
Present :-
For the appellants : Sh.Himanshu Sharma, Advocate
For the respondent : Sh.Suresh Kumar Sharma, in person
Both First Appeals under Section 41
of the Consumer Protection Act, 2019
against the Order dated 25.04.2022
passed by the District Consumer
Disputes Redressal Commission,
Kapurthala Camp Court at Ludhiana in
RBT Complaint No.471 of 2016.
Quorum:-
Hon'ble Mrs. Justice Daya Chaudhary, President
Ms. Simarjot Kaur, Member
Mr. Vishav Kant Garg, Member
1) Whether Reporters of the Newspapers may be allowed to see the Judgment? Yes/No
2) To be referred to the Reporters or not? Yes/No
3) Whether judgment should be reported in the Digest? Yes/No SIMARJOT KAUR, MEMBER By this common order of ours, the above said two First Appeals i.e. First Appeal No.596 of 2022 titled as "Suresh Kumar Sharma Vs. Branch Manager & Anr.", filed by the Appellant/Complainant and First Appeal No.905 of 2022 titled as "Branch Manager, PNB & Anr. Vs. Suresh Kumar Sharma", filed by F.A.No.596 of 2022 3 the Appellants/OPs No.1&2 shall be disposed off/decided by the common order as same questions of law and facts involved therein. 2 FA No.596 of 2022 has been filed by the Appellant/Complainant under Section 41 of the Consumer Protection Act, 2019 (in short 'The Act') being aggrieved by the impugned Order dated 25.04.2022 passed by the District Consumer Disputes Redressal Commission, Kapurthala Camp Court at Ludhiana (in short 'the District Commission') whereby the Complaint of the Complainant had been partly allowed. FA No.905 of 2022 has been filed by the Opposite Parties No.1&2 being aggrieved by the order dated 25.04.2022. However, the facts are being extracted from FA No.596 of 2022.
3. It would be apposite to mention that hereinafter the parties will be referred, as had been arrayed before the District Commission. F.A.No.596 of 2022
4. Briefly, the facts of the case as made out by the complainant before the District Commission are that the Complainant Sh.Suresh Kumar, S/o Late Sh.Jagan Nath Sharma, was a partner in M/s Guide International Export Wing, 244-A, Industrial Area A, Ludhiana. Said partnership Firm also included two brothers of the Complainant as partners namely Sh.Rajneesh Kumar and Sh.Mukesh Kumar. The Firm had commercial dealing of cash credit limit and term loan with Punjab National Bank, Branch Over lock Road, Ludhiana. In the year 1988 the brother of the Complainant namely Sh.Rajneesh Kumar had issued two Power of Attorneys in favour of the Complainant and the other Power of Attorney was again issued in the year 2003. He F.A.No.596 of 2022 4 had submitted three original GPAs of his brother with the OPs for the purpose of running the business. He had also deposited original will of his father with the said Bank. Said GPAs were got registered from the office of Financial Commissioner, Patiala. The Branch Manager, Mr.Saravagi of Regional Office, had gone to the office of Financial Commissioner to get the aforesaid GPAs registered. The photocopies of said GPAs were got attested from Notary Public, Ludhiana which were approved/acknowledged by the Branch Manager of PNB. The bank officials had declared the accounts of Rajnessh Kumar Complainant and others as Non-Performing Asset (NPA). A notice to this effect U/S 13-(2) was issued to them in the month of December 2010. The whole exercise was contrary to facts as Rajneesh Kumar had already retired from the Partnership firm M/s Guide International since long. This fact was well within the knowledge of the bank. The act of Bank in declaring Rajneesh Kumar, Complainant and others as NPA had damaged their goodwill. Thereafter, the PNB officials had entered into an illegal, unlawful compromise through one time settlement (OTS) on 06.08.2011. It was further mentioned in the Complaint that at that time a number of cases were pending against PNB i.e. a Civil Suit against PNB, an interim injunction was also there since 4/4/1997 and also a case of contempt U/r 3 39(1) (2). The bank had not obtained any consent from the Complainant and Rajneesh Kumar in OTS settlement. Mr. V.K. Gupta, Advocate Counsel for PNB was also guilty for his unfair trade practices in providing legal opinion based on forged, fabricated, fraudulent and antedated, OTS compromise. The terms and conditions of the said OTS were contradictory and he was liable to pay heavy damages of Rs.20 Lacs. F.A.No.596 of 2022 5
5. It was further averred that the PNB had obtained two letters from Mukesh Kumar Sharma (brother of the Complainant) dated 18.06.2009 and 16.03.2010 wherein he had stated that "no transaction in the bank be allowed unless and until it bears the signature of both partners namely the undersigned and S.K. Sharma" (Complainant). Most important fact was that the signatures of Mukesh Kumar on OTS compromise document were not matching with his specimen signatures in the bank i.e. PNB. Thereafter, the erring officials had returned the original sale deed of the property to Mukesh Kumar Sharma which had proved that PNB indulged in 'unfair trade practices'. The Complainant had alleged the original documents submitted by him with the Bank were still in the custody of the Bank. He had repeatedly represented to the Bank to return the said documents. Inspite of asking time and again, those documents were not returned whereas the same were required to be returned to the person who had deposited them. Since, the bank had so far not released the said documents to him, this tantamounts to be a case of 'deficiency in service' and 'unfair trade practice' on the part of the OPs/Bank which had resulted in mental tension and harassment. He filed the Complaint by seeking the following directions to the OPs :-
I. They be imposed suitable punishment to PNB and their erring officials with exemplary heavy damages individually. II. To pass stricture against the erring officials to be deducted from their salaries/ gratuity/ pension and Perks etc. III. To stop payments to Counsel Mr. V.K. Gupta. IV. To pay Rs.19 to 20 Lacs (on account of damages claimed for Holding Original Will of father of the Complainant. Rs.6 lac for F.A.No.596 of 2022 6 Holding Original three Power of Attorneys of Rajneesh Kumar in favour of the Complainant and suppressing Page No.4 of total 5 pages of GPA, Rs.9 lac for declaring their accounts as NPA and for issuance of defaulter notice Rs.4-20 lac), as compensation on account of causing mental agony and harassment along with minimum 18% interest till final disposal of the Complaint.
6. The Complaint against OPs No. 3 & 4 was not admitted by the District Commission.
7. Upon issuance of notice, OPs No.1 & 2 had appeared and filed their written version by raising certain preliminary objections that the Complaint was barred by limitation. As per Consumer Protection Act, the Complaint could have been filed within a period of 2 years from the date of cause of action. The Complainant had been agitating the matters which were as old as 15 years. Therefore, the Complaint was not maintainable. The Complainant had made allegations against the OPs for cheating, deception, forgery, fabrication etc. which could not be tried by the Consumer Forums. The Consumer Fora do not have legal jurisdiction to entertain and try the Complaint. It was submitted by the answering OPs that Complainant had himself admitted that M/s Guide International (Export Wing) was availing huge credit facilities from the bank. Thus, he was not a consumer. It was an admitted fact that the Complainant was dealing with the Bank with respect to cash credit limit and term loan accounts in the name of his business firm M/s Guide International. The transactions were of lacs of rupees. The Complainant had availed services of OP bank for commercial purposes. The grievance of the Complainant with regard to education loan account of his son had already been decided by the District F.A.No.596 of 2022 7 Commission vide order dated 22.08.2016. The said case was not required to be allowed to be again and again. Since the Complainant had hired the services of bank for commercial purposes, then the question arises as to whether the Complainant could have taken the benefit of explanation appended to the definition of the 'consumer' under Section 2(1) (d) of the Act. In order to have the benefit of that explanation, Complainant was required to plead and prove that he had availed the services of the Bank exclusively for earning his livelihood by way of self-employment. The complainant had not stated so in his complaint. M/s Guide International had availed cash credit limit of Rs.80 lacs on 19.08.2005 and term loan of Rs.20 Lacs on 09.03.2007 for its export business. Thus, it cannot be held that the Complainant had availed the services of the Bank to earn his livelihood. Thus, the Complaint was not maintainable. On merits also, the other allegations as made in the Complaint were denied. They had prayed for dismissal of the Complaint.
8. By considering the averments made in the Complaint as well as in the reply thereof, the Complaint filed by the Complainant was partly allowed vide order dated 25.04.2022 passed by the District Commission. The relevant part of said order is reproduced as under:-
"10. Keeping in view the aforesaid submission, we partly allow this complaint and direct the complainant to take back the original power of attorney as per rules. It has already been clarified on 17/1/2011 that the copy of Will is not with the OP bank and same was never disputed and has been disputed in 2016 and more over the memorandum of the Family Settlement in 2018 also states that Jagan Nath Sharma had died intestate F.A.No.596 of 2022 8 meaning thereby that the families had agreed to certain conditions. As such, the demand of Will is barred by limitation. The other documents as demanded are kept by the OP bank for the reason already recorded, as such, the OP bank is not held to be deficient in service. The complainant is directed to approach the Ops No. 1 & 2 within 30 days from the receipt of copy of this order and the demand raised would be redressed within 7 days under proper receipt. Application for summoning the witnesses for cross examination filed by complainant also stands disposed off accordingly."
9. The Appellant/Complainant has filed the present appeal being aggrieved by the order dated 25.04.2022 passed by the District Commission by raising a number of arguments.
10. Mr.S.K.Sharma, Appellant/Complainant has appeared in person. He has reiterated his stand by way of oral arguments and submissions. He has stated that the bank had illegally declared their accounts/Firm as NPA. The OTS i.e. One Time Settlement reached by the Bank on 06.08.2011 was illegal. The Bank had retained the three Power of Attorneys issued in his favour by his brother Rajneesh Kumar and the Will of his father was also illegally retained by it. The Appellant has also relied upon the certain judgments i.e. (1) "Lucknow Development Authority Vs. M.K. Gupta", (1994) 1 SCC-243, (2) "Manoj Madhusudhanan Vs. ICICI Bank & Anr", C.C. No.129 of 2017, decided on 31.08.2023 (NC) and (3) "PNB & Anr. Vs. Jai Kishan Sharma", Revision Petition No.3901 of 2017, decided on 31.05.2024 (NC) in support of his arguments.
11. Mr.Himanshu Sharma, Advocate, learned Counsel for Respondents No.1&2 has submitted that the present Appeal has been filed after the expiry of period of limitation. The Complainant had F.A.No.596 of 2022 9 already been informed vide order dated 17.01.2011 (Ex C-25) that the copy of the Will of his father was not available with the Bank. He had filed the Complaint in the year 2016 which was time barred. By the same communication, certified copies of Power-of-Attorneys were provided under the provision of RTI Act. The Complainant had availed loans in commercial capacity, thus he was not a consumer as defined in the CP Act. Moreover, the beneficiary of the Will was not the Complainant. The actual beneficiary of the Will was his mother. The Complainant was not sole legal heir of his mother. Learned Counsel has further submitted that nowhere in the pleadings, it has been mentioned that for what purpose the alleged Power-of-Attorneys were required by him. No damage/loss had been caused to the Complainant due to the said act of the Respondents No.1&2/OPs. The only purpose of the Complainant was to extort money from Respondents No.1&2/OPs.
12. Furthermore, it was submitted that as per Ex.R1 i.e. Decree sheet of the Court of Shri Jagdeep Sood, CJ(SD), Ludhiana, Ex.R-2 i.e. the judgment of Shri Jaspinder Singh, ADJ, Ludhiana, Ex.R- 3 and R-4 i.e. the contempt petition, all titled as "Guide International vs PNB", all cases were dismissed and contempt petition was withdrawn by the Complainant. All these orders show that majority of the cases wherein the issues being agitated by the Complainant had attained finality. In the contempt petition, the Complainant had produced one document as Ex.C-1 titled as "memorandum of oral family settlement". Sh.Jagannath Sharma, the father of the Complainant had died intestate i.e. without leaving any Will. Thus, by his own admission the F.A.No.596 of 2022 10 unregistered Will in question in the Complaint was of no use to the legal heirs of Jagan Nath Sharma while partitioning the properties.
13. In document Ex.C-5, it has mentioned that "Please acknowledge the receipt and return as the original Will required by Smt.Karam Rekha to be shown to the department and authorities", means that the Will was returned.
14. The partnership Firm i.e. M/s Guide International, for which the Power of Attorney was given to the Complainant had been dissolved on 31.03.2009. Therefore said Power of Attorneys had become redundant and useless documents. Moreover, account of Guide International was adjusted on 06.08.2011. The same has been admitted by the Complainant in para No.7 of his Complaint. In case the executant of said Power-of-Attorneys was having faith in the complainant, he could have easily issued fresh Power-of-Attorney to him as it was not such a document which was difficult to be prepared again.
15. The Complainant has failed to prove that the three original POAs were available with the Bank. Further, it was submitted that the Bank wanted to return the Power of Attorneys as the account was adjusted on 06.08.2011. However, regarding Power-of-Attorney Dated 16.01.2003, the Bank was in possession of a photocopy constituting of four pages, whereas the Complainant asking for a document which contains five pages. Learned Counsel for the Respondents No.1&2 has also relied upon the judgments- (1) "Shrikant G. Mantri Vs. Punjab National Bank", (2022) 5 SCC 42 and (2) "Chairman and F.A.No.596 of 2022 11 Managing Director, City Union Bank Limited & Anr. Vs. R. Chandramohan", (2023) 7 SCC 775 in support of his oral arguments.
16. To assist, learned Counsel for Respondents No.1&2, Mr. Charanjit Singh Mall, Chief Manager was present in person before the the Court at the time hearing of the case as per the directions issued vide order dated 26.10.2023. He was asked to furnish the details of case of Appellant. He had stated that in fact the General Power of Attorneys is not of Mr. S.K. Sharma, but of his brother namely Mr. Rajneesh Kumar Sharma. The same can be returned only to his brother i.e. Rajneesh Kumar Sharma as per the practice followed by the Bank.
17. Learned Counsel has further submitted that after the execution of General Power of Attorneys dated 19.08.1988 and 20.08.1988 respectively, subsequently another General Power of Attorney dated 17.01.2003 was executed by Mr.Rajneesh Kumar Sharma in favour of the Complainant. On execution of subsequent General Power of Attorney, the previous POAs impliedly stood cancelled. On instructions from Mr. Mall, it has also been submitted by him that the Bank is ready to return the original documents only to Mr.Rajneesh Kumar Sharma, as the documents were executed by him. Further it had been brought to our notice that Mr.Rajneesh Kumar Sharma is residing abroad and his address is not available.
18. We have heard the oral arguments raised by learned Counsel for both the parties. We have also perused the order dated 23.12.2021 as well as all the relevant documents available on the file. F.A.No.596 of 2022 12
19. Facts relating to the filing of Complaint by the complainant before the District Commission, thereof, the oral arguments raised by learned counsel for the parties and passing of impugned order dated 25.04.2022 by the District Commission, thereafter filing of present appeal before this Commission by the Appellant/Complainant are not in dispute.
20. The main issues for adjudication before us are as under :
a) As to whether the Complaint is time barred or not?
b) As to whether the Complainant is Consumer or not as per the provisions of CP Act.
c) As to whether the Bank/OPs are to be directed to return the alleged Power of Attorneys which were issued by the brother of the Complainant in his favour?
d) As to whether the Bank can be directed to return the Will of Sh.Jagan Nath Sharma, the father of the Complainant when the heir to the said Will was his wife Smt.Karam Rekha, who is not a party in the present Complaint?
e) As to whether the allegations of tempering of documents, forgery, fabricated documents and fraud committed by the Bank with regard to OTS/NPA can be adjudicated by this Commission or not?
21. With regard to the issue of limitation, the Complainant had constantly been corresponding with the Bank/OPs No.1&2 which proves that it was the continuous cause of action. Therefore, no interference is required by us qua the issue of limitation. F.A.No.596 of 2022 13
22. To deal with the issue whether the Complainant is a Consumer or not, we have perused the contents of Complaint of the Appellant/Complainant wherein, it has been observed that the Complainant was dealing with the Respondents/OPs No.1&2 for a commercial purpose. He had availed Cash Credit Limit and Term Loan from them for his business. A thorough perusal of the contents of the Complaint shows that nowhere the Complainant has mentioned that the alleged act of OPs had adversely effected his livelihood as enshrined in the provisions of the CP Act. He has just mentioned in the Complaint that the allegedly guilty officials of the Bank/OPs had caused wrongful monetary loss to the Complainant. Said allegations clearly do not fall under the definition of Consumer as defined under Section 2 of the CP Act. The relevant portion of the section reproduced as under:-
(a) the expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.
In aforesaid terms, the Appellant/Complainant is not a 'Consumer' as he had availed services of the Bank for commercial purpose. It is matter of common knowledge that cash and credit limit and term loans are issued to commercial entities.
23. With regard to the returning of disputed Power of Attorneys, it has been observed that the said documents were issued by the brother of the Complainant namely Sh.Rajneesh Kumar. No documents have been placed on record to prove that issuer F.A.No.596 of 2022 14 (Sh.Rajneesh Kumar) of POAs had authorized the Complainant to take back the said POAs from the Bank. Moreover, the brother of the Appellant/Complainant is an NRI and his address is not known. Therefore, it is impossible for the bank to obtain consent/authorization from his brother to handover said documents to the Appellant/Complainant.
24. Besides, the official of the bank has clearly stated that the said documents had not been supplied to the Complainant under the provision of RTI as "it was a third party information and it was exempted from disclosure U/S 8(d) of RTI Act, (Ex.C-26). The nature of the information was commercial confidence/trade secrets". This statement was reiterated by the official of the Bank during his personal appearance before this Commission on 03.11.2023. He has also submitted that the documents could not be returned to the Complainant as in case of any misuse/misutilization of said documents, the bank would be held responsible being custodian. Therefore, the submission made by the Official on behalf of the Bank that it is the custodian of the said documents and is duty bound to supply them only to the original issuer (Rajneesh Kumar, brother of the Complainant) of the said POAs, is accepted. Besides, the said information relates to a commercial transaction and as such this Commission is unable to adjudicate the said issue.
25. With regard to the Will of Jagan Nath, the father of the Complainant Ex.C-4 has been perused. It has transpired that he had willed all his immoveable and moveable properties in favour of his wife F.A.No.596 of 2022 15 Smt.Karam Rekha in event of his death. It has further been mentioned that his no other heir would have any right or interest in his properties upon his death. Smt.Karam Rekha, the beneficiary of the will is neither a party in the Complaint nor any authorization to this effect had been given to the Complainant. Therefore, the Complaint is bad for non-joinder of necessary party.
26. With regard to the allegations of tempering of documents, forgery, fabricated documents and fraud committed by the Bank in matter of the Firm of the Complainant being declared as Non-Performing Asset (NPA), it cannot be adjudicated by this Commission. After the declaration of Firm as NPA subsequently One Time Settlement (Ex.C-11) was reached by the family of the Appellant/Complainant with the Bank, wherein it had clearly been mentioned that nothing was due to the bank in account No.3463008700637434 in the name of M/s Guide International (EW). The allegations levelled by the Appellant/Complainant in the case in hand are of criminal in nature and cannot be adjudicated by this Commission as per the mandate of CP Act. Moreover there are Appellate authorities which can adjudicate matters of NPA. The Appellant/Complainant has not approached the right Forum in this context.
27. In view of the above, since there are allegations of fraud and forgery on the part of the Bank in the present case, such issues cannot be decided by the Consumer Fora in summary procedure. The adjudication of the same requires elaborate evidence/cross- examination/re-examination of the witnesses and expert witness to F.A.No.596 of 2022 16 settle the controversy involved in the case. As such the adjudication of the said allegations is not within the ambit of CP Act.
28. The Apex Court has held in "Oriental Insurance Company Ltd versus Munimahesh Patel reported in 2006(4) CivCC 203" that proceedings before Commission are essentially summary in nature and issue which involve disputed factual questions should not be adjudicated by the Commission. We find that complex factual matrix requires in this case and that matter should be examined by an appropriate court of law in regular proceedings and not in summary manner by this Commission. In the case in hand, the Appellant/Complainant has alleged in the Complaint filed before the District Commission that there were allegations of forgery and misrepresentation with regard to the declaration of the firm of the Complainant as NPA and its subsequent OTS. The said allegations cannot be decided by this Commission.
29. The larger bench of National Commission has held in "Reliance Industries Ltd. Versus United India Insurance Co. Ltd.," reported in 1998(1) CPJ 13, that question of ownership of goods, conspiracy and fraud were raised, which requires elaborate inquiry for disposal. The matter can be properly decided by civil court and not under Consumer Protection Act. Hon'ble National Commission has also held in "M/s Singhal Swaroop Ispat Ltd. versus United Commercial Bank" reported in 1992(3) CPJ 50 that where the allegations of fraud, forgery have been raised by the parties against one another requiring elaborate oral or documentary evidence, the matter be relegated to civil court for adjudication. F.A.No.596 of 2022 17
30. We are further fortified with the judgment reported in III (2018) CPJ 518 (NC) titled as Devraj Kishore Das Vs. Reliance Life Insurance Co. Ltd. & Ors., wherein it has been observed that the Consumer Foras do not have the jurisdiction to decide the complaints involving allegations of fraud and forgery.
31. In view of the above, since there are allegations of fraud, cheating and conspiracy, misrepresentation which require elaborate cross examination of witness and documentary evidence, the same cannot be decided in summary trial. Such allegations can be decided by the Civil Court. We are of the view that factual matrix in this case is quite complex, which cannot be adjudicated in a summary manner. Accordingly, the Appeal filed by the Appellant is dismissed in light of observations and discussion in the preceding paras. FA No.905 of 2022
32. This Appeal has been filed by the Appellants/Opposite Parties for setting aside the order dated 25.04.2022 passed by the District Commission.
33. In view of the discussion and observation held in FA No.596 of 2022, where detailed findings have been recorded, this Appeal is allowed and the order dated 25.04.2022 passed by the District Commission is set aside.
34. Since the main case has been disposed off, so all the pending miscellaneous applications, if any, are accordingly, disposed off.
F.A.No.596 of 202218
35. The Appeals could not be decided within the statutory period due to heavy pendency of court cases.
(JUSTICE DAYA CHAUDHARY) PRESIDENT (SIMARJOT KAUR) MEMBER (VISHAV KANT GARG) MEMBER October 21, 2024 (Rupinder 2)