JUSTICE J.M. MALIK 1. This complaint case was filed by M/s. Ankur Exports Pvt. Ltd., the complainant, against the Bank of Baroda, the OP, on 10.04.2000, wherein the complainant has claimed the following amounts and the prayer clause of the complaint, runs as follows : “The complainant, in the above facts and circumstances, most humbly prays that the Hon’ble Commission be pleased to order the opposite party to rectify its accounts and credit the account and/or pay to the complainant, a sum of Rs.55,87,489.15, as mentioned in the Annexure A, in respect of the above mentioned 21 foreign bills and carry out all the necessary reverse / rectification entries as also reverse all unauthorised debits / transfers made in the complainant’s packing credit account, along with compounded interest for the delayed period (from the due dates upto the date of actual payment / credit), on the amount not credited and wrongfully debited, as such rates as the opposite party has been charging to the complainant from time to time and in any case at least @ 2% per annum with quarterly rests. Further, a sum of Rs.10,00,000/- (Rupees Ten lakhs) be also awarded and ordered to be paid to the complainant as compensation for the mental harassment, trauma, agony, undue botheration, defamation, loss of business due to uncalled for financial crunch, unnecessary costs and expenses incurred by the complainant in examination of the accounts, seeking legal advice, taking up the matter with the opposite party, etc. The Hon’ble Commission be also pleased to award costs for these proceedings in favour of the complainant and order the opposite party to pay the same to the complainant”. 2. The case of the complainant is this. The complainant maintained and had, inter alia, a Packing Credit Account, amongst other accounts, with the Bank of Baroda, the OP, for a long time and used the same for its banking needs, especially, transactions relating to exports. The complainant deposited 21 foreign bills aggregating ₹ 55,87,489.15 for credit in their above mentioned account, which the OP duly acknowledged through their credit advices at the time of purchase / realization. The statement showing details of 21 foreign bills has been placed on record as Annexure – A. 3. The Bank of Baroda, OP duly sent the credit advices in relation to the above said bills, from time to time, to the complainant, drawing complainant to believe that due crediting had been given to it. The Account Statements were never supplied as there was no procedure for the same. However, the OP Bank filed a complaint before the Debt Recovery Tribunal (DRT), Jaipur, in late 1988. Copy of the statements, credit advices, invoices, packing credit ledger account, statement of current account, etc., were filed as part of the proceedings before the DRT, Jaipur, which copies have also been placed on record as Annexures B-1 to B-21 (Colly). 4. The Statements (Annexures A and B) reveal that a sum of ₹ 53,47,000/- was shown credited by the OP in the above said packing credit amount of the complainant. It further reveals that the OP has charged a sum of ₹ 12,252/- at the time of purchase of above said foreign bills. Again, a sum of ₹ 1,32,626.81 was debited to the complainant’s current account at the time of realization vide realization advices and that a sum of ₹2,28,237.15 was credited to the complainant’s current account as the remaining balance / odd amount as per the purchase advices issued by the OP. 5. For the first time, it transpired that in late 1998, from scrutiny of these documents that the credit for the above said 21 foreign bills had not been given as also certain wrong and unauthorized debits had been made in the account of the complainant. This is a result of the admitted defalcation and fraud perpetuated by the staff of OP. On enquiry, it revealed that the OP was aware of all these things. The complainant protested and the OP assured that they were looking into the matter. However, the needful was not done, even after lapse of one year. Notice was sent to the OP which was responded vide reply dated 10.03.2002. However, the needful was not done. Copies of notice and reply have been placed on record as Annexure – C (Colly). Consequently, the above said complaint was filed. 6. Bank of Baroda, the OP, has listed the following defences in its case. A case before the learned DRT, Jaipur is pending. Copy of the complaint has been placed on record as Annexure R-1. The complaint was filed on 13.04.1998 for recovery of an amount of ₹ 2, 17,61,898.86, plus interest thereon @ 20% p.a., arising under the Packing Credit Facility, Bill Purchase / Foreign Bill Purchase facility and outstanding in current account. The jurisdiction of this Commission, however, stands barred. Again, this is a matter of accounts and civil suits are already pending before the Additional District Judge, Civil Writ Petition as well as Criminal Complaints. Consequently, it was averred that this Commission would not exercise its jurisdiction under Section 12 of the CP Act which would result in multiplicity of the proceedings and multiplicity of the decisions. 7. Again, the case is barred by time. According to the record, the alleged amount is a large amount of ₹ 55,87,489.15 and no prudent business man can completely forget the existence of such a large amount. The complainant is a private limited company and supposedly it must be getting its accounts audited and prepared balance sheets and submitted it to its shareholders and the same must have been filed with the Registrar of Companies. The contention raised by the complainant that it was not aware of all these facts, is totally false. Copies of the Directors’ reports, Auditor’s report, Balance Sheet, duly signed by Directors and Auditors for the year ending 31st March, 1991 to 31st March, 1995, have been placed on record as Annexure R-2 (colly). The complainant cannot be allowed to take advantage of their own defaults and negligence. These details are of the year 1990-91. Moreover, the complainant has been receiving the accounts from OP/Bank, from time to time. The complaint involves complicated questions of facts which require recording of elaborate evidence, interpretation of voluminous documents, allegations of fraud, breach of trust, misrepresentation, etc., besides encroachment on the jurisdiction of civil courts and criminal courts. 8. It is also submitted that the complainant is a private limited company and is not a consumer. It is contended that there is no negligence or deficiency on the part of the OP. 9. The key question which falls for consideration in this 14 years’ old case is, “Whether, this Commission has got the jurisdiction to try this case, when proceedings on the same subject matter are pending before the DRT, Jaipur?”. The other question is, “Whether, the court/ Commission can arrogate to itself the powers, which it does not enjoy?”. 10. We have heard the counsel for the parties at length and have gone through the written synopses filed by both the counsel. This is an indisputable fact that the OP Bank has filed Original Application (OA) under Section 19 of the Recovery of Debts due to Banks and Financial Institutions Act No. 51 of 1993. The copy of the said OA has been placed on record. The learned counsel for the complainant vehemently argued that the proceedings before this Commission are in addition and not in derogation of any other law, as per the law enshrined in Section 3 of the C.P.Act, 1986. The claim of the Bank before the DRT, Jaipur, relates to transactions, included in accounts of which the last date is May, 1996, whereas, the present complaint is for the transaction relating to the period 1990-91. It was contended that the DRT did not have the competent jurisdiction to return a finding and to make directions in terms of Section 14 of the C.P.Act, 1986. 11. Counsel for the complainant has cited an authority reported in Ganesh Polytechs Ltd. Vs. Transport Corporation of India, 2000 (10) SCC 418, paras 2 – 4. In the written arguments, it is submitted that at such belated stage, relegating the complainant to any other court/ DRT, would not be proper. However, the complainant did not give the copy of the said judgment, whereas, he has furnished the copies of other judgments. 12. We have, however, requisitioned the same and have gone through the said authority. The question of DRT was never discussed. In this authority, the order was passed by the National Commission at a belated stage relegating the parties to the remedy of a civil court on the ground that the case involved complicated questions of facts and law. The Hon’ble Apex Court held that the order passed by this Commission was unsustainable and directed this Commission to decide the case on merits, in accordance with law. There is no whisper, word or syllable, in respect of the word ‘DRT’, as contended above. 13. The counsel for the complainant also cited Fair Air Engineers (P) Ltd. Vs. N.K. Modi (1996) 6 SCC 385, paras 14 to 16. This authority too, is not applicable to this case. 14. Instead of touching the heart of the problem, the learned counsel for the complainant just skirted it. The attention of the counsel for the complainant was invited towards the fact that vide Amendment dated 17.01.2000, the Borrowers were also given the right to make a ‘set off’/counter claim. Previously, this was not the provision provided in favour of the Borrowers. It was argued that the written statement was filed subsequent to 17.01.2000. Counsel for the complainant, first of all, tried to challenge this fact, but he was asked to file an affidavit, showing as to on which date, the written statement was filed before the DRT?. He has failed to file the said affidavit. Consequently, we will assume that the written statement was filed after the above said amendment was affected. The complainant did not make counter claim or pleaded ‘set off’. For the last fourteen years’, it did not make any attempt to amend the written statement and/or withdraw this case from the consumer court. Although it shows negligence, inaction and passivity on the part of the complainant, yet, he has not, till now, lost the battle. It was contended that the case under the DRT is still pending, though, it has reached the final stage. The complainant can try his luck and move an application for amendment of the pleadings, showing good reasons as are apparent from this discussion and get the written statement, amended. He can still raise the ground of ‘set off’, but in that event, he will have to pay the court fees. Perhaps, this is the reason, why the claim of ‘set off’ was not made. Again, any observation touching the merits of this case is tentative, only for the purpose of this case and shall not be construed as an expression of opinion, in any other case. The Learned DRT, Jaipur, will decide the case on its own merits, without being influenced by any observation made herein. 15. Now, we turn to the legal position. As back as, on 15.10.2001, this Commission, headed by Hon’ble Mr.Justice D.P. Wadhwa, in case titled Traxpo Trading Co. Vs. The Federal Bank Ltd, I (2002) CPJ 31 (NC), (Original Petition No.116 of 2001, decided on 15.10.2001) I (2002) CPJ 31 (NC), it was held :- “Under Section 18 of the Act, jurisdiction of this Commission is barred where the Bank has filed suit. Defendant in that suit can claim set-off or even counter claim against the Bank under Section 19 of the Act. Complainant would have ample opportunity to raise all the issues presented in the present complaint. That apart, when we examined the complaint, it raises complex questions both of facts and law which is not possible to decide in our summary jurisdiction. Then we also feel that this complaint has been filed more as a counter blast to the proposed action of the Bank. No doubt this complaint has been filed four months earlier of filing of the suit by the Bank before the Debt Recovery Tribunal. But from that we cannot lose sight of the fact that the Bank would have threatened the complainant for filing a suit and when such suit was imminent, complainant chose to file this complaint. We, therefore, decline to entertain this complaint and return the same to the complainant to seek remedy, if any, elsewhere. This complaint is disposed of accordingly. Opposite Party – Bank shall be entitled to costs of these proceedings which we quantify at Rs.5,000/-“. 16. Another authority, reported in Shri Yashwant G. Ghaisas & Ors. Vs. Bank of Maharashtra, decided on 06.12.2012, in Consumer Complaint No.302 of 2012, this Bench, dismissed the case, in limine, on the ground that consumer fora have no jurisdiction to try this case. 17. Against this order dated 06.12.2012, a Special Leave to Appeal (Civil) No.1359 of 2013 was preferred by the complainant, before the Hon’ble Apex Court. The Hon’ble Apex Court, vide order dated 01.03.2013, was pleased to approve our following observations:- “19.The National Commission is not empowered to arrogate to itself the powers which come within the jurisdiction of Debt Recovery Tribunals. This matter is purely covered within the jurisdiction of DRT or DRAT. If there is any grievance against the notice under Section 13(2) of the SARFAESI Act, that should be brought to the notice of the concerned authority. It is well settled that main Creditor and the Guarantors are equally responsible. There lies no rub for the Bank to take action against the Guarantor directly. It cannot be alleged that he is adopting the policy of pick and choose. From the allegations stated above, there appears to be no deficiency on the part of the opposite party. In case the Bankers are working within the ambit of SARFAESI Act, it cannot be said to be deficiency on the part of the Bank. It must be established that there is deficiency on the part of the Bank. In that case, this Commission can take action. For the reasons stated above, the complaint is dismissed at the stage of its admission. Nothing will preclude the complainants from approaching appropriate Forum as per law”. 18. Under these circumstances, we are of the considered view that this Commission has no jurisdiction to try this case. The OP Bank has raised many other questions, such as, the case is barred by time, the case involves complicated questions of facts and law, and, therefore, it should be relegated to civil court and other proceedings are pending. Both the counsel have cited authorities in support of their respective cases. This Commission has no jurisdiction to entertain this case. For the reasons stated above, we refrain from speaking our piece, on other issues. The case is dismissed. However, the complainant is given liberty to seek relief from the appropriate forum, as per law. |
