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Branch Manager, through : Branch Office v/s M/s. Continental Frozen Foods

    Appeal No.485 of 2011

    Decided On, 19 December 2013

    At, Chhatisgarh State Consumer Disputes Redressal Commission Raipur

    By, THE HONOURABLE MR. JUSTICE R.S. SHARMA
    By, PRESIDENT & THE HONOURABLE MS. HEENA THAKKAR
    By, MEMBER

    For the Appellant: Vijay Rathore, Advocate. For the Respondent: R.K. Bhawnani, Advocate.



Judgment Text

R.S. Sharma, President:

1. This appeal is directed against the order dated 02.08.2011 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (henceforth called "District Forum" for short) in Complaint Case No.05/2011, whereby complaint of the respondent/complainant against the appellant/O.P., has been partly allowed and District Forum directed the appellant / O.P. : (a) to provide No Objection Certificate to the respondent/complainant firm to the effect that there is no outstanding balance against the respondent / complainant; (b) to pay a sum of Rs.7,000/- as compensation for mental agony and (c) to pay a sum of Rs.1,000/- towards cost of litigation to the respondent/complainant within a month from the date of order.

2. It is admitted fact in the case that the respondent/ complainant partnership firm is having two accounts namely (i) discounting facility account and (ii) current account with the appellant. A tri-parte agreement was executed between the complainant/ O.P. / Bank and Bharti Teletech Limited. As per the terms and conditions of the agreement that if in addition to amount of claim, some other amount is outstanding then the complainant is responsible for its payment, but complainant and O.P. was having an agreement for marketing of Motorola phone. Bharti Teletech Ltd. was working as national distributor on behalf of the Motorola. The appellant / O.P. filed a criminal complaint under Section 138 of Indian Negotiable Act against the complainant firm and its partner before Judicial Magistrate First Class, which is pending.

3. Brief facts of the complaint are that the complainant is a partnership firm. The complainant firm authorized it's partner Omprakash Daga to file complaint before the District Forum. As per terms of agreement, as a security the complainant firm has provided four blank cheques bearing nos.711801 to 711804 to the appellant/ O.P. Bank. In case the amount of claim is outstanding or is not paid by the complainant, then the amount could be received through the cheque deposited as security after informing the complainant. On 06.02.2009 without obtaining consent of the complainant the O.P. presented the cheque No.711801 for Rs.12,39,000/- whereas the O.P. was not to receive amount from the complainant but the liability of making payment was of Bharti Teletech Ltd. The O.P. was not entitled to take said amount from the complainant. Even the O.P. misused the cheques deposited as security. At present the O.P. is in possession of three cheques, which can be misused by the O.P. When complainant firm raised this objection before the O.P. that this amount is not outstanding against the complainant, then the O.P. provided account statement, according to which a sum of Rs.3,50,000/- is outstanding on the complainant. Said amount was deposited by Bharti Teletech Ltd., in the account of O.P. Thus, there is not outstanding amount due against the complainant. The O.P. is not providing No Objection Certificate to the complainant. The O.P. listed the name of complainant firm in the website as defaulter, so the complainant is not able to obtain loan from any Bank. The O.P. / Bank is working contrary to the terms of the agreement. On 01.10.2010, the S.B.I. issued a letter to the complainant and clarified that unless the O.P. / Bank provides NOC to the complainant, it cannot consider the application submitted by the complainant firm. No amount is outstanding against the complainant, but O.P. Bank will causing damage to its goodwill. The complainant firm is working since 50 years and it is a reputed firm. The goodwill of the firm has been damaged on account of this act of the O.P. Bank. Therefore, the complainant filed consumer complaint before the District Forum with a prayer to direct the O.P. Bank to pay a sum of Rs.15,00,000/- as compensation for deficiency in service committed by the O.P./Bank and to provide No Objection Certificate.

4. The appellant/O.P. filed it's written version and averred that the appellant/O.P. gave intimation to the respondent/complainant before depositing the cheque for payment and the respondent/complainant was having sufficient knowledge regarding the amount, which was due against him. It has further been averred that the District forum has no jurisdiction to try the case and only the Civil Court has jurisdiction to decide the matter. Therefore, the complaint filed by the complainant is not maintainable and is liable to be dismissed. The Bharti Teletech Company is also a necessary party in the complaint. The complaint is liable to be dismissed for want of not impleading necessary party in the complaint and the District Forum has no jurisdiction to decide the matter, therefore, the complaint filed by the complainant is liable to be dismissed. 

5. Learned District Forum, after having considered the material placed before it by both parties partly allowed the complaint and directed the O.P. : (a) to provide No Objection Certificate to the respondent/complainant firm to the effect that there is no outstanding balance against the respondent / complainant (b) to pay a sum of Rs.7,000/- as compensation for mental agony and (c) to pay a sum of Rs.1,000/- towards cost of litigation to the respondent/complainant within a month from the date of order.

6. Shri Vijay Rathore, the learned counsel for the appellant / O.P. argued that the District Forum has no jurisdiction to take cognizance of the matter and only Civil Court has jurisdiction to decide the right and liability of the parties. Some amount was due against the respondent/complainant and the same was well within his knowledge. The amount was not paid by the Bharti Teletech Ltd. and the appellant/O.P. had not paid the amount due against him, therefore the appellant/O.P./Bank closed the account and the complainant was declared a defaulter. The appellant/O.P. has not committed any deficiency in service, therefore, the appeal of the appellant/O.P. be allowed and the impugned order passed by the District Forum, be set aside.

7. Learned counsel for the respondent /complainant supported the impugned order and submitted that it does not call any interference by this Commission. He prayed for dismissal of the appeal. He placed reliance on judgment of Hon'ble Supreme Court in the cases of

(i) Kishori Lal v. E.S.I. Corporation, II (2007), CPJ 25 (SC),

(ii) Dr. J.J. Merchant & Ors. v. Shrinath Chaturvedi, 2003 NCJ 1 (SC);

(iii) CCI Chambers Co-op. Hsg. Society Ltd. v. Development Credit Bank Ltd., AIR 2004 Supreme Court 184 ; (iv) Vimal Chandra Grover vs. Bank of India, Civil Appeal No.15701 of 1996 (From the Judgment and Order dated 21.6.1996 DOP No.163 of 1994) decided on April 26, 2000. He also placed reliance on judgments of Hon'ble National Commission in the cases of (i) Haryana Urban Development Authority vs. Dr. Maya Vaid, II (2009) CPJ 348 (NC) ; (ii) Central Bank of India v. Byu Hazarika, I (2003) CPJ 178 (NC) and (iii) National Seeds Corporation Ltd. v. P.V. Krishna Reddy, I (2009) CPJ 99 (NC).

8. We have heard learned counsel for both the parties and have also perused the record of the District Forum.

9. Hon'ble Supreme Court in the case of Kishori Lal vs. E.S.I. Corporation (Supra) has observed thus :-

"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 the case of M/s Spring Meadows Hospital and Another v. Harjol Ahluwalia and Another, III 

(1998) SLT 684 = I (1998) CPJ 1 (SC) = AIR 1998 SC 1801, 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. Vishwabarathi House Building Co-op. Society and Others, I (2003) CPJ 1 (SC) = I (2003) SLT 435 = AIR 2003 SC 1043, the Court speaking on the jurisdiction of the Consumer Forum 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 Secretary Thirumurugan Cooperative Agricultural Credit Society v. M. Lalitha and Others, I (2014) CPJ 1 (SC) = I (2004) SLT 200 = (2004) 1 SCC 305. 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 or 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."

10. Hon'ble Supreme Court in the case of CCI Chambers Co-op. Hsg. Society Ltd. vs. Development Credit Bank Ltd., (Supra) has held thus :-

" 7 A three-Judge Bench of this Court recently in Dr. J.J. Merchant and others case (supra) specifically dealt with the issue as to the guidelines which would determine the matter being appropriately dealt with by a Forum under the Act or being left to be heard and decided by a Civil Court.

This Court noticed that the fora under the Act are specifically empowered to follow such procedure which may not require more than or delay the proceedings. A Forum under the Act is entitled, and would be justified, in evolving a procedure of its own and also by effectively controlling the proceedings so as to do away with the need of a detailed and complicated trial and arrive at a just decision of the case by resorting to the principles of natural justice and following the procedure consistent with the principles thereof, also making use of such of the powers of Civil Court as are conferred on it. The decisive test is not the complicated nature of the questions of fact and law arising for decision. The anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions though complicated they may be are capable of being determined by summary enquiry i.e. by doing away with the need of a detailed and complicated method of recording evidence. It has to be remembered that the fora under the Act at every level are headed by experienced persons. The National Commission is headed by a person who is or has been a Judge of the Supreme Court. The State Commission is headed by a person who is or has been a Judge of the High Court. Each District Forum is headed by person, who is or has been, or is qualified to be a District Judge. We do not think that mere complication either of facts or of law can be a ground for the denial of hearing by a Forum under the Act."

11. Hon'ble Supreme Court in the case of Dr. T.T. Merchant and Ors. vs. Shrinath Chaturvedi (Supra) has held thus :-

"13Therefore, merely because it is mentioned that Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the Civil Court. For trial to be just and reasonable long drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be totally wrong assumption that because summary trial is provided, justice cannot be done when some question of facts are required to be dealt with or decided. The Act provides sufficient safeguards."

12. Hon'ble Supreme Court in the case of Managing Director, Maharashtra State Financial Corporation & Ors. v. Sanjay Shankarsa Mamarde, 2010 (3) CPR 136 (SC), has held thus :-

"15. Clause (o) of Section 2 of the Act defines "service" to mean :-

"Service" means service of any description which is made available to potential users and includes, but not limited to, the provisions of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;"

The use of the words 'any' and 'potential' in the context these have been used in clause (o) indicates that the width of the clause is very wide and extends to any or all actual or potential users. The legislature has expanded the meaning of the word further by extending it to every such facilities as are available to a consumer in connection with banking, financing etc. Undoubtedly, when the bank or financial institutions advance loans, they do render 'service' within the meaning of the clause. In that behalf, there is no dispute."

13. In the instant case, the, respondent / complainant specifically alleged that the respondent / complainant gave four blank cheques bearing nos.711801 to 711804 to the appellant/O.P. / Bank for security of the amount and the appellant / O.P / Bank without giving prior intimation to the respondent/complainant submitted cheques for payment before the Bank. When the respondent/complaint learnt about the above act of the appellant/O.P. he immediately wrote letter to the bank for stopping the payment. Merely on the ground that a criminal case under Section 138 of Indian Negotiable Act, has been filed against the respondent/complainant, it cannot ousted the jurisdiction of the District Forum. Looking to the facts of the case and law laid down by the Hon'ble Supreme Court in the above judgments, prima facie it appears that appellant / O.P. is "service provider" and the respondent/complainant is a "consumer" and the learned District Forum, has jurisdiction to try the case, therefore, learned District Forum rightly held that District Forum has jurisdiction to try the case and it does not call any interference by this Commission.

14. The respondent/complainant filed documents before the District Forum. Document A-1 is Debt Acknowledgement Letter dated 28.03.2007, document A-2 is Statement of Account No.1390103000002950 of the respondent/complainant for the period from 01.04.2010 to 13.09.2010, document A-3 is letter dated 24.03.2007 which was sent by Bharti Teletech Limited to M/s Continental Frozen Foods, document A-4 is undertaking for PSBC to UTI Bank Ltd. given by the respondent/complainant, document A-5 is Statement of Account No.139010200020484 for the period from 01.08.2010 to 13.09.2010 of the respondent/complainant.

15. In Statement of Account No.139010300002950 of the respondent/complainant (document A-2) for the period from 01.04.2010 to 13.09.2010, the closing balance of the respondent/complainant is mentioned as 0.98. In Statement of Account No.139010300003950 for the period from 01.01.2009 to 31.03.2009, the closing balance of the respondent/complainant is mentioned as (-) Rs.7,49,702.02. Thus, looking to the Statement of Account (document A-2) it is clear that the closing balance was mentioned as Rs.0.98. It appears that the amount of Rs.7,49,702.02 mentioned in the Statement of Account for the period from 01.01.2009 to 31.03.2009, was not outstanding in the account of the respondent/ therefore, the respondent/complainant is entitled for No Objection Certificate.

16. Statement of account which is very relevant for deciding the controversy between the parties i.e. document A-2, has been filed by the respondent/complainant before the District Forum, wherein it has be

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en mentioned the closing balance was Rs.0.98. 17. We have considered the matter. Document A- 2 i.e. Statement of Account issued by the appellant / O.P. /Bank wherein the closing balance was shown as Nil. The complainant firm also filled proposal form for obtaining loan from the State Bank of India, but it is clear from perusal of documentA-6 that State Bank of India has refused to provide loan to the complainant firm because the name of the complainant has been shown in the list of defaulters. 18. The appellant / O.P. / Bank has not specifically pleaded that how much amount was due against the respondent/complainant.  Even the appellant/O.P. / Bank has not filed any such document, which indicates that some amount was due or outstanding against the respondent/complainant and the appellant/ O.P./ Bank was entitled to receive it such amount. The appellant/O.P. / Bank has also not filed any such type of document or Statement of Account regarding such type of account, therefore, the appellant / O.P. / Bank has not been able to prove that the amount was due against the respondent/ complainant and the respondent / complainant was liable to pay such amount to the appellant/O.P. / Bank and therefore, the learned District Forum held that the no amount was due against the respondent/complainant in the appellant/O.P. Bank, therefore, the respondent/ complainant is entitled for No Dues Certificate. 19. Thus no jurisdictional or legal error has been committed by the District Forum in the impugned order. The impugned order is a well reasoned order and does not call for any interference. 20. The appeal filed by the appellant/O.P. being devoid of any merit deserves to be and is hereby dismissed. No order as to the cost of this appeal.
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