Madras High Court
Chairman And Managing Director, Indian ... vs The District Consumer Disputes ... on 5 October, 2001
Author: C. Nagappan
Bench: C. Nagappan
ORDER A.S. Venkatachalamoorthy, J.
1. Being aggrieved by the order of the learned single Judge in W.P. No. 19609 of 1990, the appellants have filed the above appeal.
2. The second respondent, a Chartered Accountant by profession, on 24.5.1990, obtained an uncrossed open demand draft for Rs. 50,000 from Indian Overseas Bank, Cathedral Branch, Chennai encashable in the same Bank, but at Karaikudi Branch. According to the second respondent, he presented the draft for payment on 2.6.1990 but however the Bank entertained a difficulty with regard to identification and thereupon, the second respondent went to the Regional Office at Karaikudi and he got his signature attested by an Officer of Regional Office and the same was sent through his daughter to the Branch for encashment. The Bank failed to pay the amount to the daughter of the second respondent but on the other hand handed over the draft to the second respondent when he went there after some time following his daughter and hence there was deficiency of service by the Bank.
3. The second respondent approached the District Consumer Disputes Redressal Forum at Madras by filing O.P. No. 8 of 1990 claiming compensation and for other reliefs.
4. The appellants resisted the said claim by contending that when the daughter of the second respondent presented the demand draft, despite non-establishment of identity of the bearer, the Branch was making arrangements for payment while the second respondent rushed to the desk and took back the demand draft without encashment, abusing the staff. Hence the allegation made by the second respondent against the Bank and its officials are baseless and the Bank had done what it legally expected to do.
5. The District Consumer Disputes Redressal Forum, which enquired into the matter came to the conclusion that the explanation of the appellants that they were making arrangements for payment and that the second respondent rushed to the desk and took back the demand draft without encashment, cannot be accepted and that the case of the appellant that the law requires identification of the payee as pre-requisite for payment of an uncrossed open demand draft on presentation by the payee with endorsement for payment, cannot be accepted. In that view of the matter the Forum fixed the compensation at Rs. 4,000, payable to the second respondent by the appellants under Section 14(1)(d) of the Consumer Protection Act, 1986. This prompted the appellants to file W.P. No. 19609 of 1990.
6. The learned single Judge dismissed the writ petition holding that the same is maintainable before this Court and directed the Registry to transmit the matter along with all connected records to the State Consumer Forum forthwith for disposal in accordance with law and on merits.
7. The learned counsel appearing for the appellant contended citing various judgments that the power conferred under Article 226 of Constitution of India on this Court is very wide and in the absence of any limitation in the Consumer Protection Act, 1986, this Court can entertain the writ petition and consider the same on merits. Secondly it is contended that notwithstanding the fact that the Bank was not aware of the identity of the second respondent, who was holding then the demand draft in question with necessary identification by an officer of the Regional Office at Karaikudi, was making arrangements for payment while the second respondent rushed to the desk and took away the demand draft without encashment, abusing the staff.
8. As far as the first submission is concerned, it is settled law that before approaching this Court under Article 226 of the Constitution of India, it is the bounden duty of a person to exhaust all alternate remedies. At the same time, it is not as if this Court has no power to entertain the writ petition when there are alternate remedies. Before entertaining such writ petition, Courts will see whether alternate remedy available is effective and further whether the alternate remedy will be a long drawn process and whether the circumstances of the case required an immediate redressal to the affected person. In cases where there are clear violation of Principles of Natural Justice or when authorities act totally without jurisdiction, Courts will entertain writ petition and adjudicate the matter. But at the same time, it has to be pointed out that the Court exercising jurisdiction under Article 226 of the Constitution of India, will not take up the exercise of examining the disputed question of fact and render factual finding. Normally once the writ petition is admitted, at the time of final disposal the Court will not drive the parties to the appellate forum unless there are disputed questions of fact and when all required materials are available before Court.
9. Coming to the present case, it is the case of the second respondent that after obtaining necessary endorsement with regard to the identification from an officer of Regional Office, Karaikudi, sent the demand draft through his daughter, the Karaikudi Branch Officials refused to pay money and that when he went there the draft was handed over to him. On the other hand, the case of the appellants is that despite non-establishment of identity of the bearer, the Branch was arranging to pay cash and while the second respondent rushed to the desk, took back the demand draft, abusing the staff. As to what happened on that day in question in the Bank, there are two versions. The question is which statement is true, whether the one made by the second respondent or by the third appellant viz., the Manager, Indian Overseas Bank at Karaikudi. In such an event this Court certainly will not take up the exercise of finding out the truth and it is for the appellate forum which is the final fact finding Forum to examine and find out the truth.
10. In this view of the matter, this Court is also of the opinion that it is only proper that the matter is transmitted along with entire records to the State Consumer Forum for consideration and disposal.
11. We are also informed that the second respondent has filed an appeal (appeal No. 14 of 1991) before the said appellate Forum and the same is pending, wherein he has prayed for enhancement of compensation. This is yet another reason as to why this Court has to order transmitting the papers along with entire records to be considered by the appellate Forum. The appellate Forum shall consider both the matters together.
12. In this view of the matter, the writ appeal is dismissed. Consequently C.M.P. No. 376 of 1999 is also dismissed.