State Consumer Disputes Redressal Commission
Debasis Sahoo vs Regional Manager, State Bank Of India on 31 August, 2017
-t7
srATE coNsuMER DISPUTES REDRESSAL coMMIsSIoN, oDIsHA, currAcK
REVISION PETITION NO 59 OF 2OL7
(From an order dated 23.2.2er7 passed by the District consumer
Disputes Redressal Fgrum, Dhenkanal in c.c. no. 06 of 2013)
Debasis Sahoo,
Aged about 34 years,
Son of Pramod Kumar Sahoo,
Resident of Village - Nuagarh,
Ps - Nihalprasad, Dist - Dhenkanal, Odisha
Petitioner
Vrs.
Regional Manager,
State Bank of India,
Regional Business Office,
Ps/Dist - Angul, Odisha 1r
2. Branch Manager, I
State Bank of India,
, Errening Branch, At - Ganesh Bazar,
Ps/Dist - Dhenkanal, Odisha
Opp.Parties
For the petitioner Mr A.K.Samal, Advocate
For the opp-parties M/s D.P.Sarangi & Associates
PRESENT: 'jl
THE HON'BLE SHRI JUSTICE B.K.PATEL, PRESIDENT,
SHRI G.P.SAHOO, MEMBER
AND
SMT.SMARITA MOHANTY, MEMBER
DATED THE AUGUST, 2OL7
ORDER
JUSTICE B.K.PATEL, PRESIDENT In this revision the petitioner has made prayer to set aside the impugned order d.atecl 23.'2.2o17 passed by the District Forum.
\{ Dhenkanal in c.c.No. 06 of 2013, to permit the complainant to amend .the complaint petition as well as the prayer in the complaint petition.
2. The substantive part of the impugned order dated 23.2.2OL7 reads as {ollows:-
"We haue heard the parties at length. On our perusal . of the record tt is seen that the case tuas posted for argltment since 29.4.2014. Fufther on our careful examinqtion o-f the proposed. amendment we ftnd. that the compLainant has come up with a fresh cause of action alleging defi"ciency in seruice on the part of the opp.partA as the uehicle in question has alread.y been sold.. Besides, the 1 complainant hcLs claimed. a. sum o/ Rs.g,35, 000/- toutard.s compensation uhich he has not claimed. in the original , petition. In uiew of the subsequent euent for sale of *rc uehicle the ci:mplainant has come up praging for autard, of the aboue qmount as compensation which is in our opinion a subsequent euent and separate cause of action tuhich cannot be incorporated bg tuttg.of amenclment as the same will change'the nature and" character of the case. Howeuer, the complainant is at ribertg to fire a separate c,,se for the subsequent euent and cause of action, if he so d.esire. Accordinglg' the petition dated 1g.10.2016 fired" bg the complainant praging for amend.ment is rejected. utithout cost. Putup on 20.3.2017 for argument.,'
3. Petitioner is the complainant and opposite parties representing state Bank of lndia are the opposite parties before the District Forum.
4- complainant had availed finance from the Bank for purchasing a Truck and when he defaulted in payment of certain instalments. the financed vehicle was se the Bank. The Bank published notice to ' sell the vehicle. In sirch circumstanccs' complainant hled C'C'No' 06 of 2OLg before the District Forum with prayer to declare the seizure of the .Truck as illegal and to direct the Bank to pay a sum of Rs.50,000/- for practising unfair trade practice and causing harassment, and also to pay cost of litigation.
along with .\',^.5. In Misc. case No. 01 of 2Ol3 filed by the complainant .
t' thb Consqmer Complaint, interim order was passed by the District t ',.' ill-
se the Truck after receiving a sum of nt. On consideration o[ objection filed /o''0" behalf of the Bank, the District Forum modifred the interim order .: ' .
:' ",".and directed. the Bank not to sell the vehicle until further orders.
However, Bank sold the vehicle during the pendency of the complaint' In such ciicumititce.r -complai.tant- nfJ in" application for amendment of the Consumer Complaint to incorporate the events which took place after frling of the complraipt and to substitute the prayer to direct the Bank to refund a sum of Rs.8,35,000/- towards the expenditure made by ,n. complainant towards deposit of margin money, cost of registration, htness, permit and insurance, and cost of .body building and such other relief or reliefs as the District Forum deems ht and ProPer.
6. Adrpittedly, the amendment petition was frled when the complaint case was pending for hearing of argument. After hearirtg the parties the impugned order was passed' \' /-
'/ \A 7 ' Perusal of impugned order reveers that though in resisting the proposed amendment a plea was advanced by the Bank that there is no provision under the c.p.Act, 19g6 for amendment of the complaint 'petition, the operative part of the impugned order indicates that the prayer for amendment was rejected not on the ground that consumer Fora are, not vested with,'the jurisdiction to arlow amendment of consumer complaint under the consumer protection e",. i,norr..nlr.""
shri D'p.sarangi learned advocate appearing for the Bank in this revision placing reliance on the decision of the Hon,ble supreme court in Ethiopian Airrines vrs. Ganesh Narain saboo: 20r1(r) oLR (sc) 833 defended the impugned order zrnd simply argued that District .Forum has no jurisdiction to allow amendment of the consumer _- Complaint.
8' we,have carefirny gone through the decision of the Honble Supreme court in Ethirrpian Airlines (supra), In that deeisibn question for adjudication before the Hon,bt.tsrrp..*e court was not as to whether Fora under the c.p.Act have jurisdiction to arow amendment of pleaciing. As has been observed at paragraph 52 0f the decision, the short question which feli for adjudication was whether 'the proceedings before the consumer Forum are suits. placing reliance on the decision of ttre constitutionar Bench of the Hon,ble supreme court in. Economic Transport organisation, Delhi vrs.
charan spinning MiIIs private Limited and another: (2010) 4 SCC 114, it was held by the Hon'bre supreme court that a proceeding before the District Forum does not come within the sweep of term ..suit,, \5 is untenable.because it is contrary to the judgment of the Constitutional Bench. However, learned counsel for the Bank placed reliance on / observation of the Hon'blc Suprcmc Court at paragraph 58 that provision under Order - Vl Rule - 17 CPC providing for amendment of 'pleadings is not applicable to the Consumer Fora. Paragraph 58 in the decision of Ethiopian Airlines (Supraf reads as follows:-
t "Halueuer, notwithstanding the fact thal proceedings of the National Commission are "suits" under the Carriers Act, uide the expression unius principle. The Consumer Protection Act, 1986 clearlg enumerates those prouisions of the CPC that are applicable to proceedings before the consumer fora. Such prouisions include 13(4), in which. the Consumer Protection Act, 1986 uests those powers uested in a ciuil court under the CPC to the DisjriCJ Eetu.fn EglLezet according to the principle of expressio unius, because the Iegislature expresslg made the aforementioned prouisions of the CPC applicable to the consumer proceedings, the ' legislature is, therefore, ai)einea b haue intentionallg excluded all other prouisions of the CPC from applging 'to the said proceedings. This is particularlg true since, as explained aboue, the Consumer protection Act, 1986 sets forth an exhaustiue list of procedures, distinguishable from those required under the CPC that the consumer redress fora must follou.t. 'l'herefore, since the Consumer Protection Act does not state that Section 86 applied to the consumer fora's . proceedings, that Section of the CPC should be held to be not applicable."
9. In pthiopian Airlines (Supra), applicability of Section 86 of the Civil Procedure Code, and not provision for amendment of pleadings under Order 6 Rule 17, to Carriage by Air Act, 1972 was under
consideration: At paragraph sg, it was held that since c.p.Act does not state that section g6 shall be applicable, that section of the c.p.c.
should be held to be not applicabre, and at paragraph 60 it was held that section 86 of the cPC is inapplicable because the legislative intent is deemed to exclude older and more general statute by more recent and spgcial statutes : the c.p.Act and the carriage by Air Act, r972.
10. :At paragraph 5g in Ethiopian Airlines (supraf, reried upon by i the Bank, reference has,been to section 13(a) of c.p.Act under which consumer Fora have been vested with the same power as are vbsted in a civil court while trying a suit in respect of certain specific matters, such as summoning oh enforcing attendance of any defendant or r4!g!!; the discovery and production document; reception of evidence on affidavit, etc. for the purpose only of section 13 of the c.P.Act.providing for "procedure on adinission of a complaint,,.
section 13(a) begins with the words 'For the purpobe of this Section.,, Section 13(a) does not regulate the power of a Forum for the purpose of the entire C.P.Act.
1i. Admittedly, there is no explicit provision in the c.p.Act laying down that provision under order 6 Rule 17 of the cpc regarding Amendment of pleadings' is appricabre to the c.p.Act. Therefore, moot .question raised by the Bank is whether in the absence of such provision, either of the parties may be allowed by District Forum to alter or amend his pleadings.
L2. In the decision of the Hon'ble Supreme Court rendered on July 2, 2015 in Criminal Appeal No. 844 of 2015 ( S.R.Sukumar vrs.
( S.Sunaad'Raghuram), it was contended on behalf of the appellant that in the Criminal Procedure Ccldc, there is no provision for amendment of complaint and in the absence of any specific provision in the Code, courts below erred in allowing the amend.ment in criminal complaint.
, Per contra, it was submitted on behalf.of the respondent that though there is no enabling provision in the Cr.PC to amend the complaint and .,::':. . is no specific bar in carrying out the arn-endment and. in the ,'^"',1' ) .,-.1,,,- " ;
,,' ,,, ,,1 t of justice, court has power to do so. In such circumstances,
i: -, I
.qnrF of the.points which fell for determination was whether amend.ment ,,- ! complaint petition filed under Section 2OO Cr.PC is impermissible *l"ig . {.r rA I
13. In answering the question, it was observed by the Hon,ble Supreme Couft that it is true that theie i",.1ro specific provision in the cr.PC to amend either a complaint or a petition hled under the provisions of the Code, but the Courts have held that the petition seeking such amendment to correct curable inhrmities can be aliowed even in respect of the complaints. In this connection decision of the Hon'ble supreme court in u.p.pollution control Board vrs. Modi Distillery and others (1987) 3 scc 684 also was referred to and it was held at paragraph 18 as follows:-
"What is d.iscernible from the U.p.poltution Control Board's ccse is thqt easily curable tegal infirmitg could. be , yred bg means of a formal application for qrnend.merLt. lf the qmendment sought to be made relates to a simple infirmtty.bhich is cttrable bg means of a formal qmendment and by allouing such amendment, no prejudice could be caused to the other side, notutithstanding tkrc fact that there is no enabling prouision in the Code for entertaining iuch amendment,,the Court maa permit such an amendment to be made. On the contrary, if the amendment sought to be made in the complaint does not relate either to a curable infirmity or the same cannot be corrected bg a formal amendment or if thgre is likelihood of prejudice to the other side, then the Court shall not allout such amendment in the comolaint.
Having so obseryed the Honble Supreme Court in S.R.Sukrrmar vrs. S.Sunaad Raghurain (Supra! upheld the orders passed by the Magistrate allowing the amendment to the complaint on the grounds, inter alia, that the amendment did not change the original nature of the complaint being one for defamation, and that the publication of poem, which was sought to be incorporated by way of amendment into the complaint being a "subsequent event"..;would avoid multiplicity of proceedings.
L4. Learned counsel for the appellant has also relied upon the decision of Delhi State Consumer Disputes Redressal Commission, New Delhi in Dr. Vinit Suri vrs. Mr. B.P.Saha and others I (1997) CPJ 454, in which at paragraph 4 it has been held as follows:-
"We had occasion to examine the question whether the Fora had jurisdiction to deal uith the allow amendment under Order 6 Rule 17, CPC. In Rita Birmo,ni u.Woodstock Nrirsing Home, C-198/ 95 ute reached the conclusion in our order doted 6.6.96 that the Fora, llad iurisdiction to deal with an application und.er Ord.er 6 RuIe 17, CpC rahich included po.wer to allow qmendmertt in appropriate cases. /\'e ^++^A+:^; L^^ L^^n inuited to a decision of the LecLsLorL oJ Uttar LrLe uLf,clr fites Redressal Commissfon to the dlq. Assurcrnce Compang u. Srz
0. We, therefore, hold that the Fora does haue the power Lo allout arnendment in all appropriute CASeS' " "
r'r111, Ii ''r 15. In view of the above, reliance by the learned counsel for the .petitioner on the decision of Ethiopian Airlines vrs. Ganesh Narain Saboo '(SuprQ is misplaced. In view of tie decision of the Hon'ble Supreme Court in S.R.Sukumar vrs. S.Sunaad Raghuram (Supra), it ' is held that even in the absence of any provision in the C.P.Act permitting application of provision regarding amendment of pleading, pleadings can be permitted to be amended by the consumer Fora in appropriate cases for facilitating adjudication of real controversies between the parties. r-
-16. According to the District Forum the proposed amendment would incorporate a fresh cause of action. The complainant in the original complaint petition has alleged breach of agreement between the parties and prayed to declare the seizure or financed truck as illegal and to direct the Bank to pay compensation for practising unfair trade practice and causing harassment, and also to pay cost of litigation.
Therefore, cause of action for frling the complaint is seizure of tJle truck and the prayer is to declare the seizure as illegal. ln case the prayer is .allowed, and the seizure is declared to be illegal, the complainant would have been entitled to restitution of the truck. However, in the meanwhile thd truck has already beeh sold by the Bank during the pendency of the compraint case.
In such circumstances, even if the prayer fot' declaring the seizure to be illegal is allowed, it would not be he Bank to return the truck to the complainant.
ks to amend the prayer scl that consequential the seizure Lo be illegal carn be granted to the f money which the complainant had invested.
Therefore, neither the proposed amendment is bascd upon any fresh cause of actio-n nor the proposed amendment changes the nature of the cor'plaint' Repossession of the truck by the Bank remains the basis of subsequent events.
77 By the impugned order, liberty has been ' grantecl to the complainant to rrle. a s'eparate case for the subsequent event. High principle of pubric policy requires avoidance of scope of murtipricity of The present complaint rs pending .proceedings. since 2013. Rejection of amendment 'of the complaint by preventing the comprainant to incorporate into the compraint petition events which took prace during the pendency of the complaint petition would lead to another protractive litigation 18' In such view of the matter, for the ends justice of and in order to enable the Forum to adjudicate real controversies between the parties, the District Forum ought to have allowed the amendment. Reasons 11 assigned for disallo*ing the amendment are not tenable. The impugned .order is liable to be set agide.
( 19. In the result, the revision petition is allowed. The impugned order is set aside. The amendt'nent petition frled by the complaint is allowed. Th, District Forum shalt allow the Bank to frle additional written version, if any, and proceed to dispose of the complaint petition within 45 days fr.om the date of receipt of copy of this order.
td
k, \^t
(Smarita Mohanty| (G.P.Sahoo) (Justice B.K.Patel)
Member . Member President
:.:(
'