Calcutta High Court
Anz Grindlays Bank And Another vs President, District Consumer Disputes ... on 5 January, 1995
Equivalent citations: AIR1995CAL104, 99CWN483, AIR 1995 CALCUTTA 104, 1995 (3) COM LJ 275 CAL, (1995) 99 CAL WN 483, (1995) 3 COMLJ 275, (1996) 2 BANKLJ 24, (1995) 1 CAL LJ 169, (1995) 1 CAL HN 214
ORDER
1. In this writ application the petitioners have, inter alia, prayed for issuance of writ of certiorari for quashing the proceedings being C.D.F. Case No. 94 of 1994 (Sarita Agarwal v. ANZ Grindlays Bank) pending before the respondent No. 1.
2. The fact of the matter lies in a very narrow compass. The respondents Nos. 2 and 3 opened an account for availing banking services under the Cashette Scheme of the petitioner-bank (hereinafter referred to as 'the Bank'). In terms of the said scheme credit limit/overdraft limit is allowed to the extent of 50% of the market value of the shares kept with the bank. The respondents Nos. 2 and 3 made a request to the bank for withdrawal of shares of Tube Investment of India Ltd. on 20-9-93. It is admitted that the sanctioned credit limit of the respondents Nos. 2 and 3 was Rs. 73,600/- and out of the said amount they utilised a sum of Rs. 61,939/-.
3. The respondent No. 3 on or about 24-9-93 stated that the sale proceeds would be deposited in the bank account as the respondents were in the process of closing the account in view of the deteriorating quality of services of the bank. The said shares, however, were not released.
4. According to the respondents some alternative proposal to the bank had been given but, according to the bank, the said respondents did not act in terms of its suggestions. On 18-10-93 the Bank Manager of the petitioner-bank refused to release the shares. The respondents contend that the said purported reasons are flimsy and unjustified. A copy of the said letter is contained in Annexure 'D' to the writ application.
5. Further allegation of the respondents Nos. 2 and 3 is that the shares of the Tube Investments of India Ltd. were bought by them from the market at a higher price in order to fulfil their obligations to their buyers, as a result whereof they suffered financial loss.-
6. The said respondents filed a complaint petition before the respondent No. 1 on 7-1-94, which was market as CDF 95 of 1994. The petitioner-bank filed an application for adjustment. However, in the meanwhile, this Writ application was filed and an interim order Was passed on 25-4-94 for a limited period, which was later on extended.
7. The contention of the petitioner is that the complaint petition, even if given face value and taken to be correct in its entirety, does not make out a complaint within the meaning of the said Act, which can be entertained by the respondent No. 1. It has been contended that the question as to whether a loan would be granted by a commercial bank to a customer or not is within the exclusive discretion of the bank and thus the same cannot form a subject-matter of a complaint in terms of the provisions of the Consumer Protection Act, 1986. It is further contended that refusal to grant loan is neither hiring or availing of services within the meaning of the provisions of Consumers Protection Act, 19S6 (hereinafter referred to as 'the said Act'). Reliance, in this connection, has been placed on Smt. Saraswati Mehrotra v. State of West Bengal reported in (1994) 1 Cal HN 167 wherein a Division Bench of this Court held that ordinarily this Court should not exercise its jurisdiction under Article 226 of the Constitution of India over such matters. In the Calcutta Metropolitan Development Authority v. Union of India, a complaint was made assailing construction of pay and use toilets in the public park and it was held by the learned single Judge of this Court that such complaint does not come within the purview of the said Act. The said decision has no application to the facts of the present case. The Learned Counsel further submitted that as the respondent No. 1 lacks inherent jurisdiction, this Court may issue a Writ of Prohibition. Reliance in this connection has been placed on .
8. Mr. G. S. Pal, learned counsel appearing on behalf of the respondents Nos. 2 and 3, however, submitted that it is incorrect to contend that loan is yet to be granted According to the learned counsel, keeping in view the fact that the respondents Nos.2 and 3 were not allowed to draw the full sanctioned amount by the bank, the action on the part of the petitioner-bank must be held to be arbitrary. It is stated that by reason of the acts of omission and commission on the part of the petitioner-bank, a deficiency in service has occurred wherefor the said respondents have become entitled to take recourse to the proceedings under the said Act.
9. The learned counsel further submitted that in any event keeping in view the fact that the said Act is a complete Code in itself and provides for an elaborate procedure for hearing as also appellate and revisional forums, there is no reason as to why the petitioner should not avail the more efficacious and expeditious remedy. Reliance, in this connection, has been placed on K.K. Srivastava v. Bhupendra Kumar Giri ; Titagarh Paper Mills Co. Ltd. v. State of Orissa and Shyam Kishore v. Municipal Corporation of Delhi .
10. The said Act has been enacted to provide for better protection of interest of the consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of the consumer's disputes and for matters connected therewith.
11. Before considering the rival submissions of the parties, the relevant provisions of the said Act may be noticed.
"2(c). 'Complaint' means any allegation in writing made by a complainant that -
(i) an unfair trade practice or a restrictive trade practice has been adopted by any trader;
(ii) the goods bought by him or agreed to be bought by him suffer from one or more defects;
(iii)the services hired or availed of or agreed to be hired or availed of by him suffer from deficiency in respect;
(iv)a trader has charged for the goods mentioned in the complaint a price in excess of the price fixed by or under any law for the time being in force or displayed on the goods or any package containing such goods with a view to obtaining any relief provided by or under this Act;
(v) goods which will be hazardous to life and safety when used, are being offered for sale to the public in contravention of the provisions of any law for the time being in force requiring traders to display information in regard to the contents, manner and effect of use of such goods.
(d) "consumer" means any person who -
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid and partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) (hires or avails of) any services for a consideration which has been paid or promised or partly paid and partly promised, or under system of deferred payment and includes any beneficiary of such services other than the person who (hires or avails of) the services for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned persons;
(Explanation-- For the purpose of sub-el, (i), "commercial purpose" does not include use by a consumer of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment).
(e) "consumer dispute" means a dispute where the person against whom a complaint has been made, denies or disputes the allegations contained in the complaint;
(o) "service" means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board of lodging or both, (housing construction), entertainment or the surveying of news or other information, but does not include the rendering of any service free of charge or under a contract or personal service;
15. Appeal:-- Any person aggrieved by an order made by the District Forum may prefer an appeal against such order to the State Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed;
Provided that the State Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not finding it within that period.
17. Jurisdiction of the State Commission.--Subject to the other provisions of this Act, the State Commission shall have jurisdiction,--
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees (five lakhs but does not exceed rupees twenty lakhs); and
(ii) appeals against the orders of any District Forum within the State; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any District Forum within the State, where it appears to the State Commission that such District Forum has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested or has acted in exercise of the jurisdiction illegally or with material irregularity.
19. Appeals. -- Any person aggrieved by an order made by the State Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of S. 17 may prefer an appeal against such order to the National Commission within a period of thirty days from the date of the order, in such form and manner as may be prescribed;
Provided that the National Commission may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
21. Jurisdiction of the National Commission -- Subject to the other provisions of this Act, the National Commission shall have jurisdiction -
(a) to entertain -
(i) complaints where the value of the goods or services and compensation, if any, claimed exceeds rupees (twenty lakhs); and
(ii) an appeal against the orders of any State Commission; and
(b) to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised a jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.
23. Appeal.-- Any person aggrieved by an order made by the National Commission in exercise of its powers conferred by sub-clause (i) of clause (a) of S. 21 may prefer an appeal against such order to the Supreme Court within a period of thirty days from the date of the order;
Provided that the Supreme Court may entertain an appeal after the expiry of the said period of thirty days if it is satisfied that there was sufficient cause for not filing it within that period.
24. Finality of orders.-- Every order of a District Forum, the State Commission or the National Commission shall, if no appeal has been preferred against such order under the provisions of this Act, be final."
12. Keeping in view the aforementioned provisions of the said Act, there cannot be any doubt whatsoever that the said Act is a complete Code in itself. The said Act is also a beneficent statute enacted for the purpose of giving a speedy relief to the consumers. In terms of the provisions of the said Act, the Forums are required to dispose of a complaint within a period of 90 days from the date of the receipt thereof.
13. The respondents Nos. 2 and 3 in their complaint petition filed against the petitioner have made several allegations. The said allegations, as it appears from the writ application, have been denied and disputed. There, thus, exists a disputed question of fact as to whether the dispute is a 'consumer dispute' within the meaning of S. 2(c) of the said Act. It is now well known that although this Court in exercise of its jurisdiction under Art. 226 of the Constitution of India can interfere with a notice issued by any statutory Tribunal directing it to appear before it, the jurisdictional fact should ordinarily be directed to be considered by the said Tribunal at the first instance.
14. In Management of Express Newspaper v. The Workers , the law has been laid down by the Supreme Court in the following terms:
"15. The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary enquiry itself. The jurisdiction of the High Court to adopt this course cannot be, and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to make is necessary to do so? Normally, the question of facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunal try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take matter before the High Court by writ petition and ask for an appropriate writ. Speaking generally, it would not be proper or appropriate that the initial jurisdiction of the Special Tribunal to deal with these jurisdictional facts should be circumvented and the decision of such a preliminary issue brought before a High Court in its writ jurisdiction. We wish to point out that in making these observations, we do not propose to lay down any fixed or inflexible rule; whether or not even the preliminary facts should be tried by a High Court in a writ petition, must naturally depend upon the circumstances of each case and upon the nature of the preliminary issue, raised between the parties."
15. The Supreme Court again in K. K. Shrivastava v. Bhupendra Kumar Jain, has held (paras 3 and 4) -
"The High Court was confronted by the argument from the respondents' side that in the presence of an equally efficacious remedy it was not proper for the High Court to entertain a writ petition. However, after noticing the decision which lays down that when there is an appropriate or equally efficacious remedy the writ jurisdiction should not be exercised, the Court nevertheless interfered. The reasoning which prevailed with it was in its own words:
"We are of the view that where the entire election is challenged an election petition would not be an appropriate remedy. In any case, it cannot be considered as an equally efficacious remedy."
Earlier the same court had held that election disputes whether they related to one candidate or more than one would be covered by the election rule and in particular, R. 31. Having held so, the somewhat inconsistent attitude expressed in the observations quoted passes our comprehension.
It is well settled law that while Art. 226 of the Constitution confers a wide power on the High Court there are equally well settled limitations which this Court has repeatedly pointed out on the exercise of such power. One of them which is relevant for the present case is that where there is an appropriate or equally efficacious remedy the Court should keep its hands off. This is more particularly so where the dispute relates to an election. Still more so where there is a statutorily prescribed remedy which almost reads in mandatory terms."
16. In Titagarh Paper Mills Co. Ltd. v. State of Orissa, , it has been held (para 11) -
"In the instant case against the order of the assessment made by the Sales Tax Officer under the Orissa Sales Tax Act, the petitioners, assessees, can get adequate redress against the wrongful acts complained of. The petitioners have the right to prefer an appeal before the prescribed authority under sub-sec. (1) of S. 23 of the Act. If the petitioners are dissatisfied with the decision in the appeal, they can prefer a further appeal to the Tribunal under sub-sec. (3) of S. 23, and then ask for a case to be stated upon a question of law for the opinion of the High Court under Sec. 24. The Act provides for a complete machinery to challenge an order of assessment, and the impugned orders of assessment can only be challenged by the mode prescribed by the Act and not by a petition under Art. 226 of the Constitution. It is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute only must be availed of."
17. In Shyam Kishore v. Municipal Corporation of Delhi, , it has been held (para 42) -
"The departmental instructions may not always be followed and the resort to Arts. 226 and 227 should be discouraged when there is an alternative remedy. A more satisfactory solution is available on the terms of the statute itself. The construction of the, section approved by us above vests in the appellate authority a power to deal with the appeal otherwise than by way of final disposal even if the disputed tax is not paid. It enables the authority to exercise a judicial discretion to allow the payment of the disputed tax even after the appeal is filed but, no doubt before the appeal is taken up for actual hearing. The interpretation will greatly ameliorate the genuine grievances of, and hardships faced by the assessee in the payment of tax as determined. Though an assessee may not be able to acquire an absolute stay of the recovery of the tax until the dispute is resolved, he will certainly be able to get breathing time to pay up the same where his case deserves it. If this interpetation is placed on the provision, no question of unconstitutionally can at all arise."
18. Yet again in State of Uttar Pradesh v. Brahm Dutt Sharma, , the Supreme Court has held (at p. 948 of AIR) -
"9. The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under a statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the Govt. servant and once cause is shown it is open to the Govt. to consider the matter in the light of the facts and submissions placed by the Govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court, in our opinion, ought not to have interfered with the show cause notice."
19. The learned counsel for the petitioner has relied upon the decisions of the National Consumer Disputes Redressal Forum being in Essex Farms (P) Ltd. v. Punjab National Bank reported in (1992) 1 Comp LJ 100 and Special Machines, Karnal v. Punjab National Bank reported in (1990) 1 Comp LJ 331.
20. In Special Machines case, (1990) 1 Comp LJ 331 (supra), a complicated nature of question of fact and law arose for determination in the light of elaborate pleadings and documents filed by both sides. Upon consideration thereof as also on the ground that the matter had been pending for about 12 years, the Commission declined to adjudicate upon the complaint in terms of the provisions of the Act and the complainant was referred to pursue his ordinary remedy before the Civil Court. Such is not the position here.
21. In Essex Farms (P) Ltd. v. Punjab National Bank, (1992) 1 Comp LJ 100 (supra), the question which arose for consideration before the National Commission was non-grant of credit facilities to the complainant. It was held -
"It is in the discretion of the bank to determine whether credit has to be allowed to a party to the extent of sanctioned limits, keeping in view how the party is discharging his obligations towards the bank such a repayment of credit and interest thereon, provision of adequate security and the management of the scheme/ project or the activity for which credit has been agreed to be provided by the bank". It is on the consideration of the facts of the case, the afore mentioned observations have been made. The said decision was, therefore, rendered on the facts thereof.
22. In Sovintorq (India) Ltd., Ghaziabad v. State Bank of India, New Delhi, reported in (1992) 1 Comp LJ 102, the complainant although deposited a cheque of Rs. 1 lakh for collection and for the proceeds being credited to its account, the same was not deposited even after the expiry of the bank guarantee. The complainant claimed damages on the ground of alleged loss of prestige and status, mental agony and loss of business etc. The Commission found the act on the part of the bank to be highly arbitrary, illegal and prejudicial to the respondent and thus directed an award of exemplary damages.
23. A bare perusal of the complaint petition will show that there is no inherent lack of jurisdiction on the part of the respondent No. 1. Bank transactions have specifically been brought within the ambit of Consumer Protection Act. One of the important services rendered by the bank is advancing of loan of various kinds. In the instant case the bank itself has evolved a scheme for grant of loan on furnishing security of shares.
24. The question as to whether there has been a deficiency in the service rendered by the bank resulting in initiation of appropriate proceedings under the said Act would lie or pot, in my opinion, should fall for the decision of the respondent No. 1. If there is any deficiency in the service of grant of loan against security of shares, prima facie the same may come within the purview of the said Act.
25. In B. M., the South Indian Bank Ltd. v. The President/Secretary, Tamil Nadu Consumers Council reported in (1992) 1 CPJ 299, it has been held :
"Under S. 2(1)(o) of the Consumer Protection Act, 'service' means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance etc. Banking transactions have thus been brought specifically within the ambit of the Consumer Protection Act. One of the important services rendered by the bank is advancing of loan of various kinds and one kind is the offering of loan on the security of the jewels. If there is deficiency in the service, it is open to the loanee to seek relief under the provisions of this Act. Hence the contention that the complaint is not maintainable has no substance."
Similarly, in (1991) 1 CPJ 362 (State Bank of Hyderabad v. Shri Bairi Lingam), it has been held that there may be deficiency in banking services to be rendered by the bank owing to its fault in the due performance of promise to finance. In Filmalaya Pvt. Ltd. v. Corporation Bank, reported in (1992) 1 CPJ 117, negligence on the part of an employee of the bank was held to be a case falling within the purview of the said Act. In the said decision it was further held that the bank is liable to make good the loss resulted from its deficiency in service. In Bank of India v. H.C.L. Ltd, reported in (1993) 3 CPR 30, non-furnishing of payment as against bank guarantee was held to give rise to a cause of action for filing a complaint under the said Act. It was held that a person in whose favour bank guarantee is furnished is also a beneficiary thereof although no privity of contract exists between the bank and such person.
26. For the reasons aforementioned, in my opinion, the writ petitioner should raise all the questions before the respondent No. 1 at the first instance. As the petitioners have an efficacious remedy under the said Act, this application, in my considered view, should not be entertained. However, before parting with the case I must say that I have not applied my mind with regard to the merits of the case and my observations hereinabove may not be construed to mean that I have given by opinion on the merits of the case. The decisions aforementioned have been discussed in brief only for the purpose of showing that the matter in issue may appropriately fall for consideration before the respondent No. 1. It also goes without saying that it will be open to the respondent No. I to consider the question of jurisdiction and pass an appropriate order thereon in accordance with law after hearing the parties.
27. For the reasons aforementioned, this application is dismissed. However, in the facts and circumstances of the case there will be no order as to costs.
28. Application dismissed.