National Consumer Disputes Redressal
Vishamber Sunderdas Badlani And Anr. vs Indian Bank And 3 Ors. on 28 September, 2007
Equivalent citations: I(2008)CPJ76(NC)
ORDER
S.N. Kapoor, J. (Presiding Member)
1. In this matter though the learned Counsel for the opposite party raised number of questions, yet we are not inclined to go into all these questions excepting one relating to the question as to whether this matter should be decided by this Commission or should be relegated to the Civil Court. The complainant has sought the following reliefs, which are as under:
(a) To direct the opposite parties to pay to the complainants EURO 14,33,985.88 (equivalent to Rs. 8,50,35,362.68) with interest at 24% from the date of maturity of deposits mentioned in the Annexure attached to the complaint.
(b) To direct the opposite parties to pay to the complainants the amount of EURO 5,19,815.04 (equivalent to Rs. 3,08,25,031.87) as against the FCNR
(c) Deposits that are to be matured along with interest at 24% from the date of legal notice as mentioned in the Annexure attached to the complaint.
(d) To pay damages of Rs. one crore for loss of business.
(e) To pay Rs. one crore as damages for delayed payment and for harassment causing mental agony to the complainants.
(f) To award costs.
(g) And to pass such other orders as the Hon'ble Commission deems fit and proper.
In the rejoinder also it was averted in para 5:
Mr. Satyanarayana Reddy, the then Branch Manager of O.P. 4, having come to know about the complainants and their huge amounts of FCNR deposits from his other branches, contacted the complainants through Mr. A.S. Prasad and Mr. Kishenchand Chugani, father of complainant No. 2 during September/October 2002 and promised them to arrange for higher rate of interest on complainants' FCNR deposits by using his influence with his Head Office on condition that the complainants must transfer substantial amounts of FCNR deposit amounts to his branch at Gangadharnellore in Chittor District and they must keep them with his branch for a period of two years. Attracted by the promise of Mr. Satyanarayana Reddy, the complainants decided and arranged for transfer of their 13 matured FCNR deposit amounts from other bank branches of Hyderabad (AP), namely, State Bank of India, Punjab National Bank, Central Bank of India, the Lakshmi Vilas Bank Ltd. and Indian Bank, Narayanaguda branch aggregating US $ 18,46,856.83 to O.P. 4 during the years 2002/2003 for placing the entire amounts of these remittances with Gangadharanellore branch of O.P. bank in the names of complainants under FCNR (B) deposit scheme for a period of two years. The amounts mentioned above were sent in three lots with appropriate covering letters to OP No. 4 enclosing endorsed copies of letters given to remitting banks. As promised, after receiving theres remittances, O.P. 4 issued 13 FCNR Term Deposit Receipts corresponding to 13 remittances made by the complainants, with higher rates of interest i.e. interest of 3% per annum on 1st lot of six FCNR deposit receipts and interest of 2.7% per annum on 2nd lot of two deposit receipts and interest of 2.4% per annum on 3rd lot of five deposit receipts, when other banks were offering lesser rate of interest on FCNR deposits. The O.P. 4 also thanked the complainants vide their letter dated 17.4.2003 and also. sought acknowledgement for 8 FCNR receipts sent by them to the complainants. The complainants promptly acknowledged receipt of 8 original receipts vide their letter dated 29.4.2003.
2. It is the case of the respondent/opposite party that forged FCNR was issued by conspirators. The matter has been investigated by the CBI and the Branch Manager of the respondent-Indian Bank S. Satya Narayana, A.S Prasad who was acting on behalf of the complainant and Anantha Kumar whose services were hired by A.S Prasad for depositing the amount along with 5 other persons have been arrayed as accused in a criminal case of conspiracy and committing forgery. In the first instance, we thought that a person who has deposited the amount on alleged promise giving much higher rate of interest of about 24% on the deposits, had been virtually trapped. But the way the case has taken turns and twists and the way the investigation has concluded and charge sheet has been filed against 8 persons, has raised several questions for our serious consideration.
3. If the Branch Manager S. Satya Narayana is involved in issuing forged FCNR receipts in view of the acknowledgement dated 17.4.2003, the bank in ordinary course would be liable for it is the bank who had put S. Satya Narayana in that position
4. If it is proved that S. Satya Narayana was really the person who was involved in the conspiracy of forging the documents, as alleged by the CBI after investigation, there cannot be any dispute about the fact when there are nearly 8 persons are said to be conspirators in forging the documents as alleged, the matter cannot be decided on the basis of documents and interrogatories. The witnesses are required to be cross-examined elaborately to bring out the truth. It is difficult to assume that matter should be decided in summary proceedings.
5. Learned Counsel for the complainant may be justified in his submission that simply because the matter is complicated, the matter should not be relegated to the Civil Court in the light of judgment of CCJ Chambers Coop. HSG Society Ltd. v. Development Credit Bank Ltd. 111 (2003) CPJ 9 (SC) : 2003 CTJ 849 (SC) (CP) as well as Dr. J.J. Merchant and Ors. v. Shrimati Chaturvedi , the Hon'ble Supreme Court has held that that the Consumer Fora would have the jurisdiction to adjudicate complicated questions/issues of facts and law arising out of the complaint under the Consumer Protection Act.
6. But, one could not be oblivious to observations of the Supreme Court in the judgment in SYNCO Industries v. State Bank of Bikaner & Jaipur and Ors. . Following observations were made in this by the Hon'ble Supreme Court-
3. Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakh for covering the cost of travelling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the Civil Court. This is an appropriate claim for a Civil Court to decide and obviously was not filed before a Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay the Court-fees. This in that sense is an abuse of the process of the Consumer Forum.
(Emphasis supplied)
7. We need not repeat that the complainant is also claiming damages and loss of business. In Synco (supra), loan facility was reduced by the bank. The question relating to forgery was not involved. The question of assessing damages of one crore of loss of business as well as damages on account of delay would also require evidence.
8. In the case of Oriental Insurance Co. Ltd. v. Muni Mahesh Patel IV (2006) CPJ 1 (SC) : 2006 (134) Company Cases 103 (SC), there was simple dispute relating to the claim whether the respondent's wife was a teacher or not. The Supreme Court has made the following observations:
The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent's wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that the Commission accepted that the insured was not a teacher. The complainant raised a dispute about the genuineness of the documents (i.e. proposal forms) produced by the appellant.
The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
The nature of proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. The Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of law and not by the Commission.
(Emphasis supplied)
9. There could not be any dispute with the proposition submitted by the learned Counsel for the complainant that civil and criminal proceedings were two separate proceedings and were totally independent in nature and one would not affect the others. In the case of Kishore Lal v. Chairman, Employees' State Insurance Corporation , the following observations are referred to:
17. It has been held in numerous cases of this Court that the jurisdiction of a Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In Spring Meadows Hospital v. Harjol Ahluwalia it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary Court system. The act being a beneficial legislation should receive a liberal construction. In State of Karnataka v. Vishwabharathi House Building Coop. Society, the Court speaking on the jurisdiction of the Consumer Fora held that the provisions of the said Act are required to be interpreted as broadly as possible and the Fora under the CP Act have jurisdiction to entertain a complaint despite the fact that other Fora/Courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secy. Thirumurugan Coop. Agricultural Credit Society v. M. Lalitha. The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of Civil Court of any other Forum as established under some enactment. The Court had gone to the extent of saying that if two different Fora have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.
(Emphasis supplied)
10. It was also observed in that matter that jurisdiction of the Consumer Forum would not be barred from deciding the matter and the Consumer Forum would have powers to adjudicate the matter. We do not think that any exception can be taken to the observations of the Supreme Court and even in simple criminal cases this Commission would not be required to relegate the matter to the Civil Court.
11. The question of relegating the matter and the parties arises only where voluminous evidence is required to be recorded as it would be needed in the present case in the light of charge-sheet filed by the CBI against eight persons and in view of the fact that S. Satya Narayana himself is an accused along with A.S. Prasad representative of the complainant who deposited the money on behalf of the complainant and another person Anantha Kumar whose services were availed by A.S. Prasad. The FCNR receipts are being said to be forged. Reports of Hand Writing Experts are required to be considered and these experts are required to be examined and cross-examined at length by all the parties. It may further be mentioned that in the complaint that the Manager of the Indian Bank S. Satya Narayana, Gangadharanellore Branch, District Chittor is also a party apart from his capacity as the then Branch Manager, Indian Bank Chittoor Main Branch, Chittoor, and A.S Prasad. A.S. Prasad would be the star witness from the side of the complainant and S. Satya Narayana would be the star witness from his own side as well as from the side of the bank. In such a situation, we are also required to take into consideration Article 20 of the Constitution. It may be difficult for us to force either of the two star witnesses to file any affidavit and to answer any interrogatories, of course, depending on the sweet will of these star witnesses whether they want to give evidence or not.
12. The amount is not small as has been mentioned that it would be around Rs. 18 crores. The principal amount claimed comes to over Rs. 13 crores and in case interest @ 24% is calculated it would be much more. Naturally, it is on very high side particularly in view of the fact that forgery of FCNR is also investigated and 8 persons have been chargesheeted. It appears that there are wheels within wheels.
13. It may be mentioned that this Commission in a number of cases considered similar questions. In the case of NEPA Ltd. v. Madhya Pradesh Electricity Board I (2003) CPJ 138 (NC), the following observations were made by the National Commission:
The claim had been denied by the opposite party. On the face of the complaint no argument is needed to show that a great deal of evidence both oral and documentary would be required for the complainant to prove its case and the claim would even otherwise show that complicated questions of facts and law would arise which is not possible for the National Commission to decide in its summary jurisdiction. Supreme Court in the case of Synco Industries v. State Bank of Bikaner and Jaipur and Ors. , held that such types of cases cannot be decided in summary jurisdiction of Consumer Forum. In Civil Court parties will have full opportunity to lead evidence. Consumer Forum is not meant to try the cases like the present one. In another case of Dr. J.J. Merchant and Ors. v. Shrinath Chaturvedi III (2002) CPJ 8 (SC) : JT 2002 (6) SCC 1, Supreme Court had held there is no difficulty for the National Commission to decide such cases involving complicated questions of law and facts. In that case the Supreme Court was considering the argument of the opposite parties--doctors that complaint which are pending against them since 1994 should be relegated to Civil Court as complicated questions of law and facts would arise. But then it is left to the wisdom of the National Commission to take up...or not. The case like the present one should be left to be decided by the Civil Court.
(Emphasis supplied)
14. This Commission in the case of R.D. Papers Ltd. v. New India Assurance Co. Ltd. and Ors. I (2004) CPJ 101 (NC), observed as under:
After going through the complaint and the written version, it appears to us that the complaint raised complicated questions of facts which cannot be decided by us in our summary jurisdiction. It may be though the amount in this case is in few lakhs and when we are receiving complaints involving crores of rupees, but then enormous evidence would be required in the present case especially in respect of allegation of forgery made by the complainant and denied by the Insurance Company.
(Emphasis supplied)
15. In the light of the judgment in the case of Deccan Enterprises Pvt. Ltd. v. National Insurance Co. Ltd. III (2002) CPJ 68 (NC), the following observations were made by the National Commission:
3. In such a situation a great deal of evidence both oral and documentary will have to be led by the complainant to prove its case. Complainant has already filed paper books containing documents running into 625 pages. Question of interpretation of clauses of the policy will also arise. It is not possible for the National Commission in its summary jurisdiction to decide such case. We may in this case refer to a decision of three-Judge Bench of the Supreme Court in the case of Synco Industries v. State Bank of Bikaner and Jaipur and Ors. I (2002) CPJ 16 (SC) : 2002 (1) SCALE, in which Supreme Court observed where complicated questions of law and facts are involved Forum under the Consumer Protection Act may not be a proper Forum to dispose of such a case in summary fashion. It was also observed that a Civil Court would be right place to decide the issue involved in that case and it went further to add that the complainant did not file the complaint before the Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay Court-fees and that this, in that sense, was an abuse of the process of the Consumer Forum. It will, therefore, be appropriate for a complaint like this to be tried in a Civil Court after payment of appropriate Court-fees.
(Emphasis supplied)
16. In Bombay Dyeing and Mfg. Co. Ltd. v. Union Bank of India I (2001) CPJ 1 (NC), this Commission referred to another problem of clogging of the wheels of justice in Consumer Courts was also considered and in substance observed why moneybags should abandon the remedy by the Civil Court and seek justice from the Consumer Courts by passing the Civil Courts, altogether and that too without paying the Court-fee.
17. In Sagar Polymers v. State Bank of India OP No. 244 of 2002 decided on 5.12.2002, the account payee cheques issued by the complainant for payment of Excise Duty were forged and the amount was misappropriated by OP No. 2 employee of State Bank of India. On investigation, the police found that the words written on the cheques "Dena Bank" were replaced by the OP No. 2 by the words "self" or "Yash Enterprises" in around 26 cheques and forged signatures of P.G. Gandhi. This Commission following observations in Synco (supra) dismissed the complaint and observed that the complainant should seek remedy in Civil Court.
18. In Lalco Enterprises v. Union Bank of India III 2003 CPJ 42 (NC) also 25 cheques allegedly forged were enchased. This Commission observed that it was difficult to go into question of genuine signatures of the withdrawal of each and every cheque and to get the report from Hand Writing Expert from either side.
19. It may be added that in the case of CCI Chambers Coop. HSC Society Ltd. v. Development Credit Bank Ltd. (supra), it was held in para 6 as follows.... "Merely because recording of evidence is required of same questions of facts and law arise which would need to be investigated and determined, cannot be a ground for shutting the door of any Forum under the ace to the person aggrieved".
20. But, we are not deciding the question of complicated nature at initial stage. Both the parties are before us. Opposite parties have filed their written version. Rejoinder has also been filed. Some documentary evidence has also been filed and further evidence is yet to be taken on record. So at the very initial stage, we are not passing the order as was held in CCI Chambers. This question can be decided after pleadings were filed whether the matter is complicated enough in the light of the said judgment at this stage. In this regard, the observations made by the Supreme Court in para 10 are relevant, which are as under.
In our opinion the decision arrived at by the NCDRC is premature. The Commission ought to have issued notice to the respondent and taken its pleadings on record. Only when the pleadings for both parties were available should the Commission have formed an opinion as to the nature and scope of inquiry, i.e. whether the questions arising for decision in the light of the pleadings of the parties required a detailed and complicated investigation into the facts which was incapable of being undertaken in a summary and speedy manner. Then the Commission could have justifiably formed an opinion on the need of driving away the complainant to the Civil Court. Mere complicated nature of the facts and law arising for decision would not be decisive.
(Emphasis supplied).
21. It could not be decided by this Commission on the date of admission and could be decided only at this stage.
22. Learned Counsel for the complainant submitted that since the matter is pending before the Supreme Court, the matter should not be decided at this stage.
23. However, it is stated by the Counsel for the parties that only interim order passed by this Commission has been stayed and not the proceedings.
24. Seeing various judgments of the Supreme Court and this Commission, it is evident that wherever not only the complicated questions of law but disputed questions of facts, relating to unauthorised representations made about paying higher rate of interest and requirement of recording voluminous evidence etc. and relating to forgery and conspiracy involving eight persons and other points mentioned earlier are involved, it would be desirable that the matter should not be dealt with by this Commission and could be relegated to the Civil Court. We feel that in the present state of law and the observations of the Supreme Court itself and the aforesaid circumstances, we cannot take any other view.
25. For the aforesaid reasons, we feel that this Commission should not entertain this complaint any more. The complaint is dismissed accordingly. Parties are left to bear their own costs. The complainants are at liberty to approach the Civil Court and they may be entitled to the benefit of the observations of the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute II (1995) CPJ 1 (SC) : 1995 3 SCC 583 for the purpose of exclusion of time spent before this Commission.
The complaint stands dismissed, accordingly.