Before the District Consumer Disputes Redressal Forum, Mandi, H.P., camp at Sundernagar
Complaint Case No.230/2008
Date of Institution 28-8-2008
Date of Decision 25-11-2009
Rehmat Ali son of Sh. Lal Dean resident of village Raru
( Dinak) Post Office Upper Behli, Tehsil Sundernagar, District Mandi, H.P.
…Complainant.
V/S
1. The Zonal Manager, Bank of India, Zonal Office SCO-181-182 Sector 17.-C Chandigarh .
2. Rakesh Kumar Tandon Manager, Zonal Office SCO 181-182 Sector, 17C Chandigarh.
3. The Senior Branch Manager, Bank of India, Branch Office School Bazar, Mandi.
4. Raj Pal Singh son of Sh.Anant Ram resident of House No.154/7Upper Samkehter Near Khatari Sabha Mandi, District Mandi, H.P.
..Opposite parties
For the complainant Sh. Noor Ahmad, Advocate
For the opposite parties
No. 1 to 3 Smt. Kiran Narula,, Advocate
Opposite party No.4 Exparte
Complaint under Section 12 of the
Consumer Protection Act, 1986.
ORDER.
This order shall dispose of a complaint under Section 12 of the Consumer Protection Act, 1986
( hereinafter referred to as the “Act”) instituted by the complainant against the opposite parties. The case of the complainant is that he proposed to the opposite party No.4 to construct a residential house at village Raru ( Dinak) and for this purpose the complainant needs money. The opposite party No.4 assured the complainant that he had good relations with the opposite party No.2 . Then the complainant alongwith opposite party No.4 contracted the opposite party 2 in the month of November 2003 and the opposite party No.4 persuaded him to take the loan from the opposite party No.2 by misrepresenting the facts. That the proposal for construction of house of the complainant was also represented by the opposite party No.4 which was accepted by the opposite party No.2 and required some documentary formalities i.e. plan/ map of the house and abstract of cost of the house, any sale deed in his name and one guarantor and said loan was to be returned within 15 years . The opposite party No.2 had obtained the signatures of the complainant on so many papers without making him understand the contents thereof . The complainant alleged that he had furnished all the required formalities and applied for the house loan in the month of November 2003 . The opposite party No.2 had sanctioned a sum of Rs.8,00,000/- as house loan in the month of November 2003 and obtained five blank cheques No.175726 to 175730 as security from him and when he agitated about signed blank cheques then the opposite party No.2 stated that if the blank signed cheques which were required as security basis were not submitted till then no loan would be disbursed and these cheques would be used by the Bank when he became defaulter. During this process of loan, the complainant met with an accident on 17-11-2003 and his left foot ankle had been fractured and was confined to bed and unable to visit Bank to withdraw the first instalment in the month of December 2003 . Then the opposite parties No.2 and 4 came to the house of the complainant to meet him and to visit the site of under construction house for the purpose of release of first instalment and one blank signed cheque and one self cheque was also issued to the opposite party No.2 in the presence of opposite party No.4 and that cheque in the sum of Rs..1,50,000/- has been withdrawn by the opposite party No.2 by some unknown person as well as self cheque of Rs.15,000/- has also been withdrawn by the opposite party No.2 and the payment has been sent by the opposite party No.2 to him through the opposite party No.4. The opposite party No.4 stood as a guarantor to the complainant and also present at the time of completion of formalities as well as sanction of loan . The complainant averred that he had withdrawn the amount of cheque No 175731 dated 12-12-2003 amounting to Rs.1,50,000/- , cheque No.175732 dated 12-12-2003 for Rs.15,000/- , cheque No.175733 in the sum of Rs.5000/-, cheque No.175734 dated 26-12-2003 for Rs.65,500/-, cheque No.175736 dated 30-12-2003 in the sum of Rs 37,000/-, cheque no.175737 dated 6-2-2004 for Rs.25,000/- and cheque No.175738 dated 9-2-2004 in the sum of Rs.4600/-. That when the complainant visited the opposite party No.3 for withdrawal of next instalment , same was refused on the ground that total sanctioned amount had already been withdrawn by him and when he agitated that he had not withdrawn the remaining amount of Rs.5,00,000/- and asked for issuance of statement of accounts , the same was refused . The complainant alleged that he approached the higher authority of the Bank but no action was taken . The opposite parties No.1 to 3 have issued a notice dated 6-1-2005 to the Deputy Commissioner, Mandi for attachment of the property of the complainant without informing him which act on the part of the opposite parties is highly illegal and amounts to deficiency in service . The complainant further alleged that the opposite parties No.2 and 4 in a planned manner misappropriated the cheques No. 175726 to 175730 in the name of unknown persons . With these averments , the complainant had sought a direction to the opposite parties No.1 to 3 to release Rs.5,00,000/- in his favour and charge interest on Rs.3,00,000/- which was withdrawn by him . Apart from this order for investigation of the misappropriation of the money by the opposite parties No.2 and 4 has also been sought Besides Rs 50,000/- has been claimed as compensation for mental tension etc. and a sum of Rs.15,000/- has been claimed as costs of complaint.
2. The opposite party No.1 to 3 filed reply and raised preliminary objections that the complaint is not maintainable , that the complaint is abuse of the judicial process, that the section 34 of Securiitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act 2002 barred the jurisdiction of this forum , that the complainant has no enforceable cause of action, that there is no deficiency in service and that the complaint involves complex questions of law and facts. On merits the opposite parties No.1 to 3 have submitted that the complainant is a borrower and the opposite party No.4 is the guarantor of the House loan account with the Bank. The complainant has taken loan from the Bank after duly executing all the loan documents in favour of the bank and after mortgaging the property . It has been contended that the opposite party No.4 is the guarantor of the complainant and both of them are jointly and severally liable to repay the loan The opposite parties No.1 to 3 have denied the rest of the contents of the complaint being wrong. It has further been contended that the complainant has already taken whole of the loan amount of Rs..8,00,000/- which was duly disbursed to him at his request as per Loan Agreement duly executed by him . It has been denied that the statement of account was ever refused to him . It has been averred that the complainant became defaulter and miserably failed to make the repayment of the loan as agreed by him and his account became NPA. The opposite parties no.1 to 3 have prayed for dismissal of the complaint qua them .
3 The Opposite party No.4 has failed to contest the complaint and was proceeded against exparte.
4 The complainant had filed rejoinder reiterating the contents of the complaint and controverted the allegations made in the reply .
5 We have heard ld. counsel for the parties and have carefully gone through the entire case file. The grievance of the complainant is that a House loan to the extent of Rs.8,00,000/-in the month of November 2003 was sanctioned in his favour and at that time five blank cheques bearing No.175726 to 175730 were obtained from him by the opposite parties No.1 to 3 on the pretext that the same were to be given by the complainant to the Bank for the purpose of security. According to the complainant he issued one blank cheque and one self cheque to the opposite party No.2 in the presence of the opposite party No.4 but that cheque of Rs.1,50,000/- was withdrawn by the opposite party No.2 through some unknown person and the self cheque of Rs. 15,000/- was also withdrawn by the opposite party No.2 but the payments have been sent to him by the opposite party No.2 in the hands of the opposite party No.4 .The further case of the complainant is that he had withdrawn the loan amount by presenting cheque No 175731 dated 12-12-2003 in the sum of Rs.1,50,000/- , cheque No.175732 dated 12-12-2003 for Rs.15,000/- , cheque No.175733 in the sum of Rs.5000/-, cheque No.175734 dated 26-12-2003 for Rs.65,500/-, cheque No.175736 dated 30-12-2003 in the sum of Rs 37,000/-, cheque no.175737 dated 6-2-2004 for Rs.25,000/- and cheque No.175738 dated 9-2-2004 in the sum of Rs.4600/-. However . when the complainant approached the opposite party No.3 for the withdrawal of the next instalment , he got surprised when the opposite party No.3 refused to permit the withdrawal on the ground that total sanctioned amount has already been disbursed to him. The grievance of the complainant is that he had only withdrawn a sum of Rs.3,00,000/- and had not withdrawn remaining amount of Rs.5,00,000/- and according to him this is a case of mis-appropriation of the amount in a very planned manner from his loan account by the opposite parties No.2 and 4 by presenting the cheques Nos.175725 to 175730 in the name of some unknown person who is either in the relation of the opposite party No.4 or under the influence of the opposite party No.2. Conversely the case of the opposite parties No.1 to 3 is that the complainant had fabricated a storey as an after thought . It has been denied that the Bank had kept any blank cheque of the complainant as security to be used in the eventuality of default in the repayment . It has also been denied that the cheque of Rs.1,50,000/- was withdrawn by a stranger The further case of the opposite party No.1 to 3 is that the loan instalments have been released to the supplier of the complainant/ complainant after he submitted the requisite bills, receipts , and other documents either through his account or through cheques . According to the opposite parties No. 1 to 3 , the complainant had taken Rs.8,00,000/- as loan which was totally disbursed to him on his request as per loan agreement executed by him. The opposite parties No.1 to 3 had denied any mis- appropriation of the loan amount by the opposite party No.2. Further case of the opposite parties No.1 to 3 is that they have initiated proceedings against the complaint under Section 34 of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act,2002 when the complainant defaulted in the repayment of the loan amount which he borrowed from the bank.
6 The careful scrutiny of the record reflects that the complaint has been filed by the complainant for adjudication in respect of complex questions of fact regarding mis-appropriation of huge amount of Rs.5,00,000/- allegedly by the opposite party No.2 i.e. the Manager of the Bank and the opposite party No.4 guarantor of the complainant as according to the him , cheques bearing nos.175726 to 175730 were presented in the name of the unknown person who is either in the relation of the opposite party No.4 or under the influence of the opposite party No.2. The complainant himself has prayed that the matter regarding the amount withdrawn from his loan account be ordered to be investigated . These complex questions require elaborate evidence and cross-examination of the witnesses and thereafter a detailed scrutiny and assessment of such evidence is required. Moreover, the fact remains that factum of mis-appropriation would have to be established first and only then Forum under the Act can arrive at a finding of deficiency in service . However, in our opinion, this forum cannot decide such complex questions of mis- appropriation in a summary procedure under the Consumer Protection Act. In the case titled Srikrishan Dass vs Dena Bank 2003(2) CPR-8 the complainant alleged withdrawal of the amount from his saving account on forged cheques and the Hon’ble State Commission , New Delhi had held that it involved complicated questions of facts which could not be decided in a consumer complaint . Relevant portion of the order is reproduced below:-
“It is no doubt true that the redressal agencies established under the Act , are vested with the power to examine the witnesses on oath and to order discovery and production of documents, but undoubtedly keeping in view the spirit of the Act, such powers are to be exercised in case where the issues involved are simple such as the defective quality of any goods purchased or any short coming or inadequacy in the quality, nature and manner of performance of a service which the respondent has contracted to perform for consideration. Even in such cases , if it appears to the concerned Forum that the issues raised cannot be determined without taking elaborate oral and documentary evidence, it is open to such redressal agency , established under the Act to decline to exercise jurisdiction and refer the party to his ordinary remedy by way of suit . In our above views , we stands fortified by two decision of the Hon’ble National Commission in cases M/S Special Machines Karnal vs Punjab National Bank and others 1(1991) CPJ-78 and B.K. Seth Managing Director Indu Video Films ( P ) Limited vs Chairman Delhi Finance Corporation and others III(1993) CPJ-327( NC).”
7. In a case titled Rajeshwar Prasad vs M/S BCL Financial Services Ltd 2002 NCJ-372( NC) it has been held by the Hon’ble National Commission that where the allegations of signing of blank cheques and blank papers have been raised , the complaint is not maintainable as it involved complex and complicated questions to be decided . The relevant portion of this order is reproduced herein below:-
“However State Commission was of the view that the case involved complicated and complex questions of law and facts inasmuch as allegations were made by the complainant having signed on blank papers and blank cheques etc. and that it was appropriate that parties be relegated to civil court of competent jurisdiction. Thus keeping all these circumstances in view , Sate Commission allowed the appeal and dismissed the complaint of the petitioner, yet leaving him to seek his remedy before a civil court of competent jurisdiction. We do not find any error in the reasoning of State Commission to take contrary view and we would therefore dismiss this revision petition.”
8 As discussed hereinabove , in the present case also complicated and complex questions are involved which require taking of elaborate oral and documentary evidence as well as cross-examination of the witnesses which cannot be effectively adjudicated upon in the summary proceedings under the Act. Moreover, in the present case , the complainant has raised plea that some blank cheques have been got signed from him and in view of the decision of Hon’ble National Commission in case Rajeshwar Prasad supra , such question of signing blank cheques cannot be decided by this Forum. Therefore, in the entirety of the circumstances , the complaint is dismissed as no relief can be given to the complainant by this Forum under the Act. However, the complainant is at liberty to approach the Civil court for adjudication of his grievances if so advised and in such a case he can claim the benefit of section 14 of the Limitation Act to exclude the period spent in prosecuting the present proceedings, while computing the period of limitation prescribed for the said suit.
9 Copy of this order be supplied to the parties free of cost as per Rules.
10 File, after due completion be consigned to the Record Room.
Announced ( Sushil Kukreja) President
25-11-2009
( Lal Singh) ( Alaknanda) Members
DKM
Tags: Bank of India