Mr. Justice D. P. Wadhwa, President
On 7.11.2002 we passed the following order in the matter :
"It is stated that Mr. Manish Sharma, Counsel has to go as his wife is unwell. We find on every different dates, different Counsel have appeared, though on record the vakalatnama filed is only of Mr. S. L. Sharma. Request for adjournment made by the Advocate appearing for the complainant is declined. The orders are reserved. Liberty, however, to the parties to file their brief notes of submissions within two days."
1. This is a complaint under Section 21 of the Consumer Protection Act, 1986. The claim in this complaint is for recovery of Rs. 33,07,380/- and certain other reliefs. There are two opposite parties. First is the Bank from where various facilities were being availed by the complainant and second is the Chief Manager of the Bank, for certain period.
2. Complainant took over the assets and liabilities of erstwhile partnership firm in the same name. Complainant established a unit for the manufacture and marketing of corrugated sheets and other packing material. Complainant approached the Bank for various facilities to promote its business. Bank sanctioned various facilities which included (a) land and building, (b) for plants and machinery etc., and (c) for working capital against hypothecation of the stocks. Complainant then said that he had received a bulk order of about Rs. 10.00 lakhs from Himachal Pradesh Horticulture Produce for cartons. Complainant approached the Bank for release of further funds to execute the order. This was agreed to by the Bank on the condition that the goods were pledged with it. Complainant produced cartons approximately numbering 56,060 and pleaded the same with the Bank on 21.8.1990. Value of the cartons stated to be Rs. 8,40,900/-. Complaint is that cartons have been allowed to be deteriorated by the Bank causing loss to the complainant. It is also the complaint that the Bank wrongfully withdrew its facilities again causing loss to the complainant. Relief claimed by the complainant are as under :
"(i) The compensation for the damages/losses incurred by complainant for the amount of Rs. 33,07,380.00 be awarded in favour of the complainant, and against the respondents jointly and severally.
(ii) An interest @ 18% p.a. with quarterly rests, from the date of filing of this present complaint till the actual date of realisation of the amount of award be awarded to the complainant.
(iii) The costs of the complaint/case be also awarded in favour of the complainant.
(iv) It is further respectfully prayed that since the complainant is suffering for losses/damages due to the acts and omission of the respondents since the date of pledging of the stocks, therefore, the charging of penal rate of interests and also interests over interests by the respondents on the loan/advance amount may be declared as 'Illegal' by this Hon'ble Commission/Court and only the principal amount of the loan/advance as sanctioned earlier and due for the payments by the complainant may be considered as payable to the respondents by the complainant.
(v) Any other such relief which this Hon'ble Court may deem fit under the present circumstances of the case may be granted to the complainant in the interests of the justice and law."
3. Complainant has also given details as to how it claims Rs. 33,07,380.00 and these are as under :
"(i) The pledged stocks, of 56,060 cartons which
are in the custody of
the Bank and have to
utilise. Rs. 8,40,900.00
(ii) Profit margins @ Rs. 2/-
per carton as offered by
the H.P.M.V.C., Shimla for
which the tenders were
approved Rs. 1,12,120.00
(iii) Interests charged by the
debtors from the complainant
on this costs amount
@ 24% for Rs. 8.40 lacs
(21.8.1990 to 10.4.1995) Rs. 10,20,000.00
(iv) Costs of storage charges
etc. (till 10.4.1995) Rs. 1,20,000.00
(v) Incidental charges Appex
1/2% of all above amounts
(i to iv) Rs. 9,360.00
(vi) Profitability on the
production losses @ 15% of
profit on the annual
production (Rs. 50 lacs p.a.)
i.e. Rs. 3 lacs p.a. profit
for 5 years Rs. 7,50,000.00
(vii) Salaries to the Nucleus
Staff @ Rs. 6,000/- per
month for 5 years Rs. 3,60,000.00
(viii) Insurance premiums for
5 yrs. @ 11,000 for pledged
stocks and plant etc. Rs. 55,000.00
(ix) Electricity department
PSEB minimum charges
@ Rs. 15,000/- p.a. for
5 years Rs. 75,000.00
4. Apart from this complainant says there were certain indirect losses as well which though not quantified have been stated in the complaint. We do not think it is necessary for us to refer to indirect losses claimed by the complainant. We may also note that it is the case of the complainant that there is warranty for only year for the cartons and thereafter they loose their worth. Bank has denied the allegations of the complainant. Its foremost objection is that it itself filed a suit for recovery of Rs. 77,84,981/- against the complainant which is pending before the Debts Recovery Tribunal. This suit was filed on 14.6.1993. This was on account of the outstanding amount payable to the Bank by the complainant in respect of various facilities including cash credit (hypothecation), cash credit (ABC) and three terms loan for purchase of plant and machinery, for construction of building and for the purchase of car. This complaint was filed on 27.4.1995. Second objection of the Bank is that present complaint is barred by limitation. It is stated that complainant did not operate the accounts with the Bank after 4.7.1991 and thereafter also only returning charges had been debited in the account of the complainant in respect of two dishonoured cheques on 16.9.1991 and 17.12.1991. This complaint, therefore, filed in April, 1995 is barred by limitation. Third objection is that complainant also filed a suit against the Bank on 16.7.1994 for recovery of Rs. 6,26,780/-. In this suit complaint was that the Bank had debited the account of the complainant to the extent of Rs. 4,07,000/- without authority and on that a sum of Rs. 2,19,780/- was claimed as interest for the period from 4.7.1991 to 15.7.1994. It is submitted that the complainant did not mention in his suit about the loss suffered by it in respect of the cartons pledged with the Bank. Fourth objection is that complainant, though availed various facilities from the Bank, was irregular in its dealing and was not keeping financial discipline. That the huge liabilities stood created and the Bank was perforce to file the suit against the complainant.
5. Evidence in this case was allowed to be led by means of affidavits. It is not disputed that the suit filed by the Bank is pending before the Debts Recovery Tribunal and now it is stated that it is fixed for final hearing. Civil suit filed by the complainant for recovery of Rs. 6,26,780/- is stated to have been dismissed. No explanation whatsoever was offered as to why in this suit claim for alleged value of the cartons was not claimed. As to how complaint is within the limitation, complainant in its para 34 states as under :
"That the first cause of action arose on 1.4.1989 when the respondent No. 1 had sanctioned the loan/advance to the complainant for the business purposes. The cause of action also arose on 21.8.1989, when the respondents had pledged the stocks of the cartons numbering 56,060 for the amount of Rs. 8.40 lacs as mentioned in the plaint. The cause of action arose several times again when the respondents had been inspecting the stocks during the period but up to 1993. The cause of action arose on 25.5.1990 when the complainant had demanded the cartons to be sold out to H.P.M.V.C. Shimla on the profit margins of Rs. 2/- per carton after these are released by the respondents. But the respondents had refused to release the same. The cause of action arose on 14.6.1993, when the last inspection of the stocks so pledged was carried out by the respondent No. 2 after these were shifted to godown No. 65 in the factory premises. The cause of actions still persist as the stocks are still in the custody of the respondents and these are kept in the same godown without inspections/checking and without any maintenance."
6. We do not think this para gives any basis for the complainant to say that the complaint is within the limitation. In the affidavit of B. D. Vohra who is working as the Manager of the Bank it is categorically stated that complainant itself had stated in its written version in the suit filed by the Bank that the pledged stock of cartons numbering 56,060 which was kept as security in the godown of the Bank on 21.8.1990 had
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been damaged by lightening on the night of 9th-10th June, 1991. That would itself show that the story now being put forward by the complainant about transfer of the pledged stock from one godown to other is not true. That would not extend the period of limitation in any way. Complainant has also not explained as to why when the suit of the Bank was filed on 14.6.1993 it took the complainant almost two years to prefer this complaint. It does appear to us that the present complaint is only filed as a counter blast to the claim of the Bank. It appears to us that since no Court-fee is payable in a complaint before a Consumer Forum this complaint has been filed. We do not find the complainant to be honest in his approach. This complaint is liable to be dismissed on the ground of "barred by limitation" and also on the ground that once having approached the Civil Court for certain reliefs complainant could not come to this Commission for the relief which it could have claimed in the civil suit. This complaint is, therefore, dismissed with costs which we assess at Rs. 10,000/-.