State Consumer Disputes Redressal Commission
Vivek Shridhar vs State Bank Of India on 19 June, 2019
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
FA No. 1484 /2012.
Vivek Shridhar
s/o Shri Arvind Shridhar,
R/o Kishumganj, The. Patheria,
District Damoh (M.P.). .... APPELLANT.
VERSUS
State Bank of India
Through Branch Manager,
Branch Narsinghgarh,
Tehsil & District Damoh (M.P.). .... RESPONDENT.
BEFORE:
HON'BLE SHRI JUSTICE SHANTANU S. KEMKAR, PRESIDENT
HON'BLE DR. (SMT) MONIKA MALIK, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI V. K. SAXENA, LEARNED COUNSEL FOR THE APPELLANT.
SHRI PANKAJ WAGHMODE, LEARNED COUNSEL FOR THE RESPONDENT.
ORDER
(Passed on 19 /6/2019) The following order of the Commission was delivered by Shantanu S. Kemkar, J :
This appeal is directed against the order dated 9.7.2012 passed by the District Consumer Disputes Redressal Forum, Damoh (for short the "Forum") in C.C. No.2/2012.
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2. Briefly stated, the appellant had taken a loan of Rs.2 lacs from the respondent no.1 - Bank against his account No.31092496055 and Rs.2.10 lacs against loan account No.31092457390. As a security of the loan amount 200 bags of gram and 200 bags of arhar produced from his farm was kept in warehouse of the second respondent on 12.3.2010, for consideration. As the appellant could not repay the loan amount he was served with notice on 27.4.2011 by the first respondent. It is the case of the appellant - complainant that the respondent nos. 1 and 2 making conspiracy auctioned the said hypothecated goods on 5.12.2011 without intimating the appellant and did not deposit the sale proceeds in the loan account of the appellant. Alleging conspiracy, misappropriation and thereby deficiency in service the appellant filed complaint before the Forum invoking provisions contained in Section 12 of the Consumer Protection Act, 1986 (for short the "Act").
3. The respondent no.1 filed reply and denied the allegation of conspiracy. According to respondent no.1 the complainant failed to repay loan amount and with the connivance of the respondent no.2 removed the hypothecated goods which were kept in the warehouse as security. The respondent no.1 denied the allegation that the goods being sold by it. On the contrary it was alleged that the respondent no.1 carried out inspection of warehouse on 26.5.2011 and in the inspection the hypothecated goods were not
- 3- found, and as such a criminal complaint was made before the SHO Damoh on 30.6.2011. It has also been stated that on 8.12.2011 the first respondent - Bank has already filed a civil suit against the complainant before the 3rd Additional District Judge, Damoh bearing civil suit No.13 B/2012.
4. The Forum after considering the pleadings and the evidence led by the parties by the impugned order disposed of the complaint by observing that the allegations in the complaint are regarding misappropriation and conspiracy which being complicated and highly disputed questions will have to be decided by way of civil suit and the Bank having already filed the civil suit the said questions being sub-judiced before the Civil Court, the parties are at liberty to get their dispute resolved through the civil court. Feeling aggrieved by this order, the appellant has filed this appeal.
5. Learned counsel for the appellant submits that pendency of the civil suit cannot be a bar for filing a complaint. He also stated that the civil suit was filed after filing of the complaint and that no complicated questions are involved in the matter. He placing reliance on the judgment passed by the National Commission in Arun Khanna versus Smt. Shashi Sharma, 2012 (3) CPC 416 has argued that the impugned order passed by the Forum deserves to be set-aside and the matter be remanded to the Forum for deciding it on merits.
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6. On the other hand, learned counsel appearing for the respondent no.1 - Bank has argued that the appellant has incorrectly alleged that the hypothecated goods were auctioned by the Bank with connivance of respondent no.2. According to him in fact it is other way round as the appellant and respondent no.2 had connived and fraudulently sold the hypothecated goods. He submits that having deleted the respondent no.2 from the memo of appeal the appellant cannot make such bald allegation without there being any supporting reliable evidence to that effect.
7. We have considered the rival contentions and perused the record.
8. We find no merit in the contention of the counsel of the appellant when he argued that civil suit is filed after filing of the complaint. In fact, as is clear from the reply of the first respondent and also from the record the complaint was filed before the Forum on 4.1.2012 whereas the civil suit was already filed on 8.12.2011. Thus, the complaint was filed subsequent to the filing of the civil suit. Be that as it may. So far as pendency of civil litigation is concerned though the same is filed by the first respondent Bank for recovery of loan amount but the appellant can very well take all the pleas about alleged illegal act of the Bank in unauthorizedly auctioning of the hypothecated good by conspiring with the respondent no.2 and not depositing the amount received in the loan
- 5- Account of the appellant. In the present case the appellant- complainant has alleged conspiracy in between respondent nos. 1 and 2 and misappropriation of the amount of sale proceeds of the hypothecated goods received in the alleged auction by the respondent no.1 - Bank. Except making a bald statement no documentary evidence regarding the alleged auction has been filed. The allegations are in the nature of conspiracy / connivance, misappropriation which needs exhaustive evidence. Interestingly in the appeal the appellant did not brought LR's of respondent no.2 who according to the appellant had died during the pendency of appeal but got the name of respondent no.2 deleted. The consequence of deletion and not bringing the LR's on record is certainly fatal.
9. In the aforesaid background facts no interference is called for in the order of the Forum to the effect that the parties can get their dispute settled in the civil suit, which has already been filed by the respondent no.1 - Bank. All questions are kept open and dismissal of the complaint and appeal would not come in the way of the appellant in the civil suit.
10. With the aforesaid observation the appeal fails and is hereby dismissed.
(Justice Shantanu S. Kemkar) (Dr. Monika Malik)
PRESIDENT MEMBER
Phadke