Calcutta High Court
M/S. Kesoram Industries Limited vs Allahabad Bank on 3 April, 2017
Equivalent citations: AIR 2017 CALCUTTA 130, (2017) 4 ICC 180, (2017) 4 CIVLJ 888, (2017) 2 CALLT 550, (2017) 4 BANKCAS 105
Author: Shivakant Prasad
Bench: Shivakant Prasad
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present: The Hon'ble Justice Shivakant Prasad
CS 175 of 2010
M/s. Kesoram Industries Limited
Versus
Allahabad Bank
For the Plaintiff : Ms. Asha Gourisaria Gutgutia, Adv.
Ms. Sayantani Shaw Samanta, Adv.
Ms. Poulami Dutta Misra, Adv.
For the defendant : Mr. Arindam Mukherjee, Adv.
Mr. Rajat Kanti Jha, Adv.
C.A.V. on : 28.02.2017
Judgment on : 03.04.2017
This is a suit for declaration and injunction.
The plaintiff's case, in brief, is that the plaintiff is a
company incorporated under the Companies Act and carries on
business, inter alia, in retail sale of fabrics and other items.
The defendant is a nationalized bank and carries on banking
business.
Plaintiff issued Refund Warrants to its customers and the
customers could encash and obtain refund which the plaintiff
agreed to pay to them within six months of the date of issuance
thereof and made arrangement with the defendant bank and on
14.1.1984opened with the Stephen House Branch of the defendant Bank, a cash credit account bearing no. 400016 with a limit of Rs. 9 Crores and also a customer Refund Account No. 404 in the name of the customers of the plaintiff (referred to as the ROB A/c. No. 404) to facilitate smooth encashment of such refund vouchers which would be encashed by all Branches of the defendant bank within the validity period of six months and thereafter, the full particulars of such payment would be obtained by the defendant bank and such particulars would be supplied to the plaintiff for reconciliation and after reconciliation the amount paid by way of such encashment of the refund vouchers would be debited in the said cash credit account of the plaintiff.
The defendant bank through its Stephen House Branch, Kolkata sent regular statements to the plaintiff with details of the transactions and copies of the encashed warrants/ vouchers disclosing the names of the payees and date and amount of payment, so that the plaintiff could verify and reconcile its own accounts.
By a letter dated 13.02.1997 the defendant bank called upon the plaintiff not to issue any further refund voucher. After 28.2.1997 the plaintiff stopped issuing any refund voucher. The defendant bank by its letter dated 17.3.1997 wanted confirmation that no refund voucher was issued after 28.02.1997 and such confirmation was immediately given by the plaintiff but the defendant arbitrarily debited the said ROB A/c. No. 404 to the staggering amount of Rs. 45,55,257.45p in or about 2000 showing a debit balance of Rs. 40,61,232.67p. It is further contended that the defendant bank has not produced any evidence of payment of any sum from the said account after 31.8.1997 despite request by the plaintiff contrary to the guidelines given by the Reserve Bank of India and the provisions of the Banking Regulation Act, 1949. Accordingly, the plaintiff has prayed for declaration that any debit balance shown by the defendant in the ROB A/c. No. 404 in its Stephen House Branch is illegal, void and not binding on the plaintiff and also prayed for injunction directing the defendant to transfer the cash credit A/c. No. 400016 of the plaintiff maintained in Stephen House Branch being a sum of Rs. 4,94,024.80 and to give effect as on 19.5.1999 and for decree of Rs. 1,20,00,000/-.
Defendant has contested the suit contending inter alia, that the suit is not maintainable as barred by the law of limitation and the principle of res-judicata inasmuch as for the same allegations and contentions as contained in the plaint the plaintiff made applications claiming the same reliefs before the State Commission which was dismissed on March 31, 2008 and appeal before National Consumer Disputes Redressal Commission was dismissed on January 12, 2009 and so also the review application dismissed on 27th August, 2009 finding no error apparent on the face of record against which Special Leave Petition to the Hon'ble Supreme Court was also dismissed on December 7, 2000. Then, plaintiff filed Writ Petition in the High Court at Delhi against the orders of January 12, 2009 and August 27, 2009 of National Consumer Disputes Redressal Commission, New Delhi.
Specific contention of the defendant Bank is that at the request of the plaintiff, the ROB A/c. No. 404 was duly closed in due time. The Certificate dated April 20, 1999 and the statement of account showing credit balance of Rs. 4,94,024.80p in the ROB A/c. No. 404 as on March 31, 1999 was the correct position of the transactions and in debiting ROB A/c. No. 404 of Rs. 45,55,275.45p, there was a debit balance of Rs. 40,61,232.67p.
The particulars of the number of refund vouchers or their date of issue or their date of validity were not informed to the defendant.
Hence, it has been prayed that the suit be dismissed as barred by the law of limitation and as res-judicata.
On the above pleadings following issues are framed for determination of the disputes between the parties:
1) Is the suit maintainable in its present form and prayer?
2) Is the suit barred by limitation?
3) Is the suit barred by principles of res judicata?
4) Whether the plaintiff liable to pay any sum or sums to the defendant bank in respect of ROB Account No. 404 as claimed by the defendant or otherwise?
5) Whether the plaintiff is entitled to get the sum of Rs.
4,94,024.80p. transferred to its cash credit Account No. 400016 or any other account in favour of the plaintiff as if the same was made on 31.3.1999, the date on which the existence of such credit balance is certified by the defendant bank will all consequential resulting benefits viz. interest thereof?
6) Whether the debit balance shown by the defendant in the said ROB Account No. 404 in its Stephen House Branch after 28.02.1997 is illegal, void and not binding on the plaintiff?
7) Is there any sum realizable by the defendant from the plaintiff?
8) Whether the plaintiff is entitled to a decree of permanent injunction restraining the defendant bank and its servants, officers or agents from enforcing or realizing from the plaintiff any sum or part thereof in respect of the said ROB Account No. 404 or taking any steps against the plaintiff in any way whatsoever in respect of the said ROB Account?
9) To what relief or reliefs, if any, is the plaintiff entitled? Decision with reasons Issue Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9:
All the above issues being interlinked are taken up together for the sake of convenience in discussion and for brevity.
Addressing the issues relating to law of limitation and applicability of principles of res judicata. Mr. Arindam Mukherjee, learned Advocate for the defendant submitted that suit is barred by limitation because the cause of action in the suit arose in 2000, when a certificate dated 07.04.2000 was issued by the defendant claiming a debit balance of over Rs. 40,00,000/- to realize over Rs. 45,00,000/- from the plaintiff after adjusting Rs. 5,00,000/- from the debit balance of Rs. 45,00,000/- whereas the suit filed was on 07.7.2010. And as the issue involved in the suit was decided by the State and National Dispute Redressal Forums, the suit is barred by principles of res judicata and as such the suit is not maintainable.
Per contra, Ms. Asha Gourisaria Gutgutia, learned Advocate appearing for the plaintiff submitted that the cause of action to institute this suit arose firstly on 01.4.2000 when the defendant for the first time claimed a debit balance in the said ROB A/c. 404. Since the defendant is continuously increasing this debit amount as stated hereinabove, each subsequent addition to this debit balance constitute a part of cause of action, as each addition is made within 31st March every year, the claim of the plaintiff is not barred by limitation.
Ms. Gutgutia fortified her arguments, the suit was filed in 2010, almost 10 years later, but the suit is not barred by limitation on two scores. Firstly, it is settled principle of law that claims of a bank is never barred by limitation as accrued interest is periodically added to the principal. In this case, the claim of the defendant bank has similarly increased over a passage of time and the defendant has never ceased to make a demand of its alleged dues. Each demand made by the defendant constitutes a fresh cause of action and/or a continuous cause of action, and the suit is based on this continuous cause of action because the defendant bank has continually made claims that there was a debit balance.
I am unable to agree with the first limb of submission made by Ms. Gutgutia that it is settled law, claims of a bank is never barred by limitation as accrued interest is periodically added to the principal because in this case the defendant Bank issued a certificate dated 07.4.2000 that the balance standing at debit in the ROB A/c. 404 of the plaintiff as on 31.3.2000 was Rs. 40,61,232.67 and there is no claim as such made showing continuous and recurring interest thereon. So, the plaintiff had cause of action to sue the defendant when the plaintiff by its letter dated 10.4.2000 requested the defendant to reverse the wrong debit of Rs. 45,55,257.47 and close the A/c. by transferring the resultant credit balance of Rs. 4,94,024.80 to C/C. A/c. 400016 disputing the account not being operational since last two years.
Secondly, it is submitted that the plaintiff had approached the different authorities under the Consumer Protection Act, 1986 and had even moved the Hon'ble Supreme Court which fact is well reflected from paragraph 12 of the written statement to the effect that the plaintiff wrongly invoked the jurisdiction of the State Consumer Disputes Redressal Forum under the Consumer Protection Act, 1986 (hereinafter called as the 'said Act'). In that context, it is argued that the period consumed in the proceeding before the various forums under the said Act, has to be excluded under the provisions of Section 14 read with Section 15 of the Limitation Act, the suit cannot be said to be barred by limitation.
I find on evidence that the orders collectively marked Exhibit-F reflect that the claim of the plaintiff was dismissed by an order dated 31.3.2008 of the State Consumer Disputes Redressal Commission, West Bengal in SC Case No. 41/0/2005 and the First Appeal being No. 248 of 2008 before the National Consumer Disputes Redressal Commission, New Delhi was dismissed on 12.01.2009 and the review application of the said appellate order and subsequent special leave petition to the Hon'ble Supreme Court of India were dismissed on 27.8.2009 and on 07.12.2009 respectively. The plaintiff also filed a writ petition in the High Court at Delhi being aggrieved by the orders dated 12.01.2009 and 27.8.2009 passed by National Consumer Disputes Redressal Commission, New Delhi which also stood dismissed.
Agreeing with the second limb of the submission, therefore, the period consumed in the aforesaid proceedings can be reckoned in calculation of the period of limitation of three years in filing the present suit provided, findings in the judgment and the order of the said fora are not barring the present suit to re-agitate the similar prayer and relief by application of principles of res judicata as embodied in Section 11 of Civil Procedure Code.
In this context, Ms. Gutgutia submitted that the State or National Consumer Disputes Redressal Commission are not Courts, there can be no question of res judicata barring institution of this suit.
Now, this Court is called upon to consider as to applicability of the principles of res judicata under Section 11 of the CPC in the context of the pertinent question as to whether the said State Forum or National Forum are Courts and whether the decisions and findings before the various fora under the said Act would be a bar for this Court to give relief in the present suit as barred by principle of res judicata.
Ms. Gutgutia adverted my attention to the averments in paragraph 12 of the written statement and contended that there is an admission on the part of the defendant that the plaintiff had wrongly invoked the jurisdiction of the forum, the defendant bank is, therefore, estopped from contending that the various forums under the said Act had proper jurisdiction. It is pointed out relating to a settled principle of law that if any party proceeds with due diligence before a forum, which lacks jurisdiction, then such a proceeding cannot operate as a res judicata. This aspect clearly takes the scope of enquiry in this suit outside the purview of any order or finding by the various forums under the said Act. It is, therefore, contended that in any event, the forums constituted under the said Act, and the forums dispensing justice under the said Act, are not courts within the strictest meaning of the word "Court". In this behalf, reference to interpretation clause of Section 3 of the Indian Evidence Act, 1872 is made, because the forums dispensing justice under the said Act, initially are not entitled to record evidence and hence not Judges or Magistrates, as per Section 3 of the Indian Evidence Act. I do not agree on this point because the said forums under the said Act are Judges and they are authorized to take evidence-on-affidavits.
Only point which is required to be considered on merit is whether the issues involved with this suit were same in the proceeding before the said forums. Thus, the entire proceedings, findings inter se between the parties arising out of the invocation of the said Act, by the plaintiff are of consequence and any way take away the jurisdiction of suit is the issue to be decided by this Court and for that the decisions held by the said forum and the issues and the prayers are same has to be critically examined on perusal of the judgment of the said forums. Reference has been made to a case in Leonard Biermans Worker Union Vs. Second Industrial Tribunal & Others reported in 1962 LLJ (1) 68 Cal. HC (page 6) and in the case of Raghu Singh Vs. Barrakpur Coal Co. Limited & Other (1967 LLJ (1) 483 Cal. HC have been relied upon to fortify the submission aforesaid.
Ms. Gutgutia firstly adverted to the preamble of the Consumer Protection Act 1986 which reads thus--
"An Act to provide for better protection of the interest of consumers and for that purpose to make provisions for the establishment of consumer councils and other authorities for the settlement of consumers' disputes and for matters connected therewith"
Secondly, the specific objects and reasons of protecting the rights of the consumers inter alia, the specific object no. 4 which provides for speedy and simple redressal to consumer disputes, quasi-judicial machinery is sought to be set up at the District, State and Central levels to observe the principles of natural justice and have been empowered to give relief of a specific nature and to award, wherever appropriate, compensation to consumers. Penalties for non-compliance of the orders given by the quasi-judicial bodies have also been provided.
Ms. Gutgutia has relied on a Special Bench decision reported in AIR 2003 SC 1043 in case of State of Karnataka Vs. Vishwa Barathi House Building Co-operative Society and Others wherein it is held that in the event a complaint involves complicated issues requiring recording of evidence of experts, the complainant would be at liberty to approach the Civil Court for appropriate relief.
It would be profitable to reproduce the observation in paragraph 57 of the cited decision thus--
"57. A bare perusal of the Section 25 of the Act clearly shows that thereby a legal fiction has been created to the effect that an order made by District Forum/State Commission or National Commission will be deemed to be a decree or order made by a civil Court is a suit. Legal fiction so created has a specific purpose, i.e. for the purpose of execution of the order passed by the Forum or Commission. Only in the event the Forum/State Commission or the National Commission is unable to execute its order, the same may be sent to the civil Court for its execution. The High Court, therefore, was not correct to hold that in each and every case the order passed by the District Forum/State Commission/National Commission are required to be sent to the civil Courts for execution thereof."
Thus, it would be evident from the principle laid in the decision that the forums viz., State Commission or National Commission are equated with that of the Court. It is true that provision of Section 9 of the Code of Civil Procedure empowers courts to try all Civil Suits unless barred. It is settled law that bar of jurisdiction of Civil Court cannot be avoided on the ground that the remedy under the statute is not adequate and efficacious which may be a ground for a writ but is no ground for a Civil Suit since jurisdiction are different. [See. Srikant Vs. Corporation AIR 1995 SC 288 : (1994) 6 SCC 572].
In my opinion, principle of law relating to res judicata is based on the need of giving finality to judicial decisions. It means issue decided cannot be adjudicated again. Primarily it applies between the past litigation and future litigation. If the decisions of said forums even not considered to be one in the nature of the suit, they are the pronouncement by a judicial forum and decisions thereof in a proceeding which reaches the finality.
On being unsuccessful the plaintiff has filed the suit long after the cause of action arose in the year 2000. The principles also apply to quasi-judicial proceeding of the tribunals whether civil or otherwise. It may be that all the provisions of the Civil Procedure Code may not be applicable to Consumer Forums, principle laid down in Section 11 of the Code of Civil Procedure could be applicable. Therefore, I am not in agreement with learned Advocate for the plaintiff that the complaint was filed before the State Commission for deficiency in service by the defendant bank by not providing the details of the debit entries by it in the ROB A/c. No. 404 of the plaintiff company because by the order dated 31st March 2008, the State Consumer Disputes Redressal Commission, though held, that the allegations of deficiency of service as against the opposite parties have not been proved but the State Commission detailed his judgment on the issues relating to the ROB A/c. no. 404 of the plaintiff company which order was carried in Appeal before the National Consumer Dispute Redressal Commission by which the judgment was affirmed in Appeal.
It requires for critical examination of the findings made in paragraph 4 and 5 of the Judgment passed by National Consumer Disputes Redressal Commission which are reproduced as under for profitable consideration as to whether principle of res judicata would apply in the instant case--
"4. Parties had led evidence by means of affidavit and by producing the relevant record. On a consideration of the same, the State Commission upheld the pleas taken up by the opposite party Bank and found no deficiency on the part of the bank in debiting the said entries in the ROB account of the complainant. The State Commission has given cogent reasons for doing the same. The following observations made by the State Commission in this regard are relevant:
"It was evident from evidence that the issue raised by OP No. 2 was not resolved as a result of which the OPs were compelled to honour huge number of refund orders/warrants, much beyond the quantum of fund available at the given ROB A/c. No. 404 and all efforts of reconciliation of account in between the OP No. 2 and OP No. 3 with the complainant could not be done for want of reciprocal participation by the complainant and all this while the Complainant failed and neglected to provide sufficient funds with OP No. 2 to debit/complement to the paid instrument. While there was a credit balance of Rs. 4,94,024.80 on 31.03.1999 in the said ROB A/c. No. 404, the same amount was not sufficient to cover the huge amount due to the OP No. 2 on account of huge refund orders/dividend warrants paid by various paying branches of OP No. 1 and finally when the reconciliation took place after effecting debits to the said ROB Account there was a debit balance to the extent of Rs. 42,77,444.64 in the said account. The complainant's allegation and stance that this huge debit balance occurred due to inaction and negligence on the part of the OPs has been proved to be hollow and unfounded, in so much so that it hardly took any action, effective or otherwise, towards deposit of fund in advance in proportion to issue of refund order/warrants/reconciliation and/or resolution on the point of funding the given ROB Account when it knew very well as to the quantum of refund orders/warrants being issued by the complainant and knowing fully well the validity of such, it could have funded the said Account so that the OP No. 2 was not put to strain in honouring the agreement. The complainant not having acted so, the OP had to honour the commitment by paying/reimbursing the given amounts to its respective branches, out of its own fund, which after adjustment with the quantum available with the ROB A/c. No. 404 amounted to Rs. 42,77,444.74."
5. The State Commission further observed that there was no reasonable effort on the part of the complainant either in taking up with the Bank towards advance payment/reconciliation of the accounts in relation to the refund orders already issued by it and instead it chose to remain silent/inactive while the opposite party had to honour the commitment within its own resources beyond the agreed terms executed between the parties." It is also found that the further steps were taken, first to get the order reviewed by the National Commission itself; which was also rejected but it cannot be said that the said Commission had not given the fair hearing to the plaintiff by adhering to the principle of natural justice. The plaintiff as an offshoot to the same, further filed Special Leave Petition before the Hon'ble Supreme Court to bring to its notice inter alia how these Alternative Disputes Resolution quasi-judicial bodies are functioning without observing the principles of natural justice but the Hon'ble Supreme Court by order dated 07.12.2009 dismissed the said Special Leave Petition by simply recording that the 'Special Leave Petition is Dismissed.' In this context Mr. Gutgutia submitted that the dismissal of Special Leave Petition on non-admission of the Special Leave Petition is not a bar on the petitioner to agitate the issues before the appropriate Forum and referred to the case of Indian Oil Corporation Limited Vs. State of Bihar and others reported in AIR 1986 SC 1780 wherein it has been held thus--
"The dismissal of a special leave petition in limine by a non- speaking order does not justify any inference that by necessary implication and contentions raised in the special leave petition on the merits of the case have been rejected by the Supreme Court. Neither on principle of public policy analogous thereto, would the order of the Supreme Court dismissing the special leave petition operate to bar the trial of identical issues in a separate proceeding namely, the writ proceeding before the High Court merely on the basis of an uncertain assumption that the issues must have been decided by the Supreme Court at least by implication."
It has been observed in the cited decision at paragraph 8 thus--
"It is not the policy of this Court to entertain special leave petitions and grant leave under Article 136 of the Constitution save in those cases where some substantial question of law of general or public importance is involved or there is manifest injustice resulting from the impugned order or judgment........... It may also be observed that having regard to the very heavy backlog of work in this Court and the necessity to restrict the intake of fresh cases by strictly following the criteria aforementioned, it has very often been the practice of this Court to grant special leave in cases where the party cannot claim effective relief by approaching the concerned High Court under Article 226 of the Constitution."
The principle laid in the judgment may apply in general in a case of the present nature. But the facts and circumstances of the cited decisions are not apposite to the instant case.
Ms. Gutgutia further submitted that the Defendant Bank did not give copies of honoured documents in violation of section 45Y and 45Z of Banking Regulation Act which provides for Power of Central Government to make rules for the preservation of record- The Central Government may, after consultation with the Reserve Bank and by notification in the Official Gazette make rules specifying the period for which (a) a Banking company shall preserve its books, accounts and other documents; and (b) a Banking company shall preserve and keep with itself different instruments paid by it and with regard to return of paid instruments to customers (1) Where a Banking company is required by its customer to return to him a paid instrument before the expiry of the period specified by rules made under Section 45Y, the Banking company shall not return the instrument except after making and keeping in its possession a true copy of all relevant parts of such instrument, such copy being made by a mechanical or other process which in itself ensures the accuracy of the copy (2) The Banking company shall be entitled to recover from the customer the cost of making such copies of the instrument.
The plaintiff before the trial has not produced in the evidence, documents relating to arrangement made by it with the defendant Bank and the schedule for reconciliation of refund warrants/vouchers.. The plaintiff used to be supplied with regular statement of transfer and refund vouchers but they have not produced before the Court entire refund vouchers and the statements thereto from the period of the arrangement of issue of refund warrants/vouchers in favour of their customers with the essential instruction to the Bank. According to the defendant Bank the plaintiff had agreed to provide funds in advance to the ROB A/c. No. 404 for the total value of refund warrants before issuance of the same by the plaintiff in favour of their various customers on designated branches of the defendant Bank. Admittedly, refund warrants/orders were payable at par on the designated paying branches for handling the same by debiting the said ROB A/c.
It would appear from the letter dated 13th February, 1997 of Chief Manager, Defendant Bank addressed to the plaintiff company which reads thus--
"Ref. STH/MBD/97 dated 13th February, 97
Keshoram Industries Ltd.
9/1, R.N. Mukherjee Road,
Calcutta 700 001
Sub: Your Refund Order A/C No. DW 404
Dear Sir,
This has reference to the verbal discussion the undersigned had with Mr. Arun Khandelwal of your office wherein we requested him not to issue any more Refund Order instrument under the captioned account until the problems arising out of such issuance are sorted out.
But we regret to observe that instruments being regularly issued by you are presented to many of our branches throughout the country including us through clearing which is simply aggravating the problem.
You are therefore requested not to issue any such instrument forthwith until and unless the problems referred below are sorted out.
a) You are not furnishing the volume and number of instruments which you are issuing periodically either before or after of issue.
b) As a result thereof funding of the said account is often done considerably after our branches have honoured your instruments out of their own fund.
We hope you will depute any senior official of your company to discuss and sort out the matter at an early date.
Yours faithfully Chief Manager"
It further appears from the letter dated 16th January, 1998 that in reply the plaintiff company wrote to the Manager of different branch but not in reply to the aforesaid letter of the defendant Bank. The refund vouchers as produced by the plaintiff Exhibit-1 is for the period from 03.4.1998 to 16.01.1999 showing closing balance as on 31.3.1999 sum of Rs. 4,94,024,80. This amount has been given credit to the plaintiff company and the Certificate in respect of the balance standing in the account of the plaintiff Bank was given on 20.4.1999.
It would appear from the letter dated 10.4.2000 Exhibit-H that a request was made to the defendant Bank by the plaintiff on receipt of bank statement and balance confirmation certificate (Exhibit-B) to the tune of Rs. 40,61,202.07 showing a debit balance of Rs. 45,55,257.47 and after giving credit balance of Rs. 4,94,024.00 as on 31.03.1999. The statement of account enclosed with Exhibit-B shows that the closing balance as on 30.3.2000 was a sum of Rs. 40,61,232.67 which has been certified by the Bank official of the defendant Bank and well admitted by the plaintiff witness as the balance confirmation certificate therefore, it cannot be said that the defendant Bank did not adhere to the Banking Regulation Act and Rules framed thereunder particularly Rule 45Y and 45Z aforesaid. If the plaintiff company did not issue refund why it has not produced the document pertaining to the said A/c. maintained by its department which has to clear the claim of the customers and on the basis of the nature of the payee used to be put in and the amount to be so disbursed. There are two signatories of the company who were authorized to operate the bank account and then it was given to the beneficiaries. After receiving the vouchers they used to return the documents to their controlling branch in Stephen House and particular branch has to prepare list of their different customers, different vouchers to be attached to the said list and used to be submitted to the company. Admittedly, the plaintiff authorized the bank to debit their cash credit account directly as per rule and the money has to be transferred from C/C account to customers refund account. (Question Nos. 13, 14, 15, 16 and 17). The statements of account clearly shows that the amounts were paid to the plaintiff's customers. The State Commission has clearly observed and held in its judgment that the plaintiff had not cooperated with the defendant Bank in reconciliation since the same were required to the collated from a large number of branches of the defendant Bank. Save and except rendering the statement of account with the certificate of confirmation of balance not having been signed by the customer of the plaintiff company herein that cannot be taken into sacrosanct in view of the contention raised that the statements were issued without collating and reconciling the refund warrants and their particulars. It is expected from the plaintiff itself to have produced all copies of refund vouchers issued by it to its customers.
Reference is also made on behalf of the plaintiff in case of Mysore State Electricity Board Vs. Bangalore Woollen, Cotton and Silk Mills Limited and Others reported in AIR 1963 SC 1128 wherein it has been held, "tribunals are those bodies of men who are appointed to decide controversies arising under certain special laws all tribunals are not courts though all courts are tribunal followed in 2012(8) SCC 243 Bar Council of India versus Union of India".
In case of Harinagar Sugar Mills Limited Vs. Shyam Sundar Jhunjhunwala and others reported in AIR 1961 SC 1669 it was held inter alia- Court means court of Civil judicature and tribunals which decide controversies arising under certain special laws.
In case of State of Gujarat and Another Versus Gujarat Revenue Tribunal Bar Association and Another reported in 2012 (10) SCC 353 the Hon'ble Apex Court has held that all courts are tribunals but all tribunals are not courts.
In case of Charan Singh v. Healing Touch Hospital and others [(2000) 7 SCC 668] it was observed in paragraph 11 by the Hon'ble Apex Court thus--
"11. Consumer Protection Act is one of the benevolent pieces of legislation intended to protect a large body of consumers from exploitation. The Act provides for an alternative system of consumer justice by summary trial. The authorities under the Act quasi-judicial powers for redressal of consumer disputed and it is one of the postulates of such a body that it arrive at a conclusion on reason. The necessity to provide reasons, howsoever, brief in support of its conclusion by such a forum, is too obvious to be reiterated and needs no emphasising. Obligation to give reasons not only introduces clarity but it also excludes, or at any rate minimizes, the chances of arbitrariness and the higher forum can test the correctness of those reasons."
Having respectfully gone through the cited decisions, in my opinion, the State/National Forums have trappings of Courts and are adjudicatory bodies, though not in strict sense Courts, which decide and settle the consumers disputes and matter connected therewith by adhering to the provisions of Civil Procedure Code and these consumer Courts are judiciary set up by the government to protect the consumer rights and would fall within the meaning of Section 3 of Indian Evidence Act.
It is admitted fact that refund vouchers were similar to Cheques and like Cheque books, refund vouchers printed in the specialized format were given by the defendant bank to the plaintiff for issuance thereof as is reflected in the answer to question No. 21 and 25 given by the sole witness of the plaintiff. In the particular period of time since there was no system of payment of Cheque at par in all the branches of the country, instrument of refund voucher payable at par all the branches in the country was introduced by the defendant bank and such facility was given to the plaintiff by the arrangement.
It is well settled that in order to decide whether a decision in an earlier litigation operates as res judicata, the Court must look at the nature of the litigation, what were the issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of the parties and the evidence-on-record and the judgments rendered by the said forums, in unequivocal term it is clear that the issues involved in this suit were substantially the issues before the State Consumer Disputes Redressal Commission which stood decided by the judgment dated 31.3.2008 which attained its finality with the merger of judgment and order of the National Consumer Dispute Redressal Commission.
In the context of the foregoing discussions, on critical examination of the judgments of the said forums and considering the nature of the litigation and the issues raised and decided therein being similar to the facts and circumstances of the instant case, the issues now cannot be reopened and re-agitated as in my opinion the suit is barred by the principle of res judicata within the meaning of Section 11 of Code of Civil Procedure.
Thus, the above issues are answered in the negative and decided against the defendant.
In the result suit fails, hence, ordered, that the suit be and the same is dismissed on contest, however, without any order as to costs.
Department and all parties to act on the signed photocopy of this judgement.
(SHIVAKANT PRASAD, J.)