National Consumer Disputes Redressal
B.L. Joshi & Ors. vs Bank Of India & Ors. on 1 April, 2013
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:
HONBLE MR.JUSTICE J. M. MALIK, PRESIDING MEMBER
HONBLE 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
Honble 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 Honble 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 Honble 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
banks 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 Honble 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
(In 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
banks 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 Honble 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 Honble
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 Banks Ombudsman, Home Minister of Gujarat and the
Honble 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
Honble 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 in Poonam 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
Honble 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
Honble 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
Honble High Court of Gujarat and the Honble 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.
Let 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 Honble 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