DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

WEST TRIPURA :  AGARTALA

 

CASE   NO:   CC- 26 of 2018

 

Smt. Sikha Banik Roy,

W/O- Shri Kanai Banik Roy,

Proprietor of Somraj Agency, 

Having its registered office at Gangail Road,

Agartala, P.S.-West Agartala, 

Dist.-West Tripura,

 

Represented by her authorized representative :-

Sri Subrata Saha,

S/O.-Late Himangshu Ranjan Saha,

Of Gangail Road, Agartala, P.S.-West Agartala,

Dist.-West Tripura    .…..............…..........................Complainant.

 

 

            -VERSUS-

 

The Indian Bank,

Represented by its Branch Manager,

Agartala Branch, Hotel Overseas Mansion, 

15, H.G. Basak Road, Agartala.  …......................Opposite party. 

 

 

      __________PRESENT__________

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

  DISTRICT CONSUMER  

DISPUTES REDRESSAL FORUM,

      WEST TRIPURA, AGARTALA. 

 

SMT. Dr. G. DEBNATH

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

SRI U. DAS

MEMBER,

  DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

  WEST TRIPURA,  AGARTALA.

 

C O U N S E L

 

For the Complainant : Sri Bishal Nandi Majumder,

  Sri Rajib Saha,

  Sri Dhrubajyoti Saha,

  Sri Jibesh Chakraborty,

  Advocates. 

For the O.P. : Mrs. Puspita Chakraborty,

  Advocate.                                                                                                                                  

  

 

JUDGMENT  DELIVERED  ON: 08/01/2019

J U D G M E N T

The complainant Smt. Sikha Banik Roy set the law in motion by presenting the petition U/S 12 of the Consumer Protection Act 1986 through her Authorized Representative Sri Subrata Saha complaining deficiency of service committed by the O.P. Indian Bank.

  The complainant's case, in brief, is that the Complainant is the Proprietor of SOMRAJ AGENCY. She had been engaged as a Super Stockiest  by the Bungee India Private Limited, a company registered under the Companies Act to deal in oil and fats sold under the brand name 'DALDA' for the State of Tripura under a Super Stockiest agreement entered upon on 13/05/2014 and the same was valid up to 13/05/2017. As per conditions enshrined in the agreement the complainant was required to furnish a Bank guarantee for an amount Rs.10,00,000/- (Rupees Ten lac) in favour of Bungee India Private Limited as security. The Complainant had accordingly approached the O.P. Indian Bank, Agartala Branch for issuing a Bank guarantee for the aforesaid amount. The O.P. in compliance with request of the Complainant issued a Bank guarantee in favour of the Bungee India Private Limited for an amount  Rs.10,00,000/-(Rupees Ten lac) on 15/01/2015, being Bank Guarantee No.2/2014 having its validity till 14/01/2016 with further claim period of 30 (thirty) days. The Complainant alleged that she had been doing with her business with the Bungee India Private Limited with sincerity and dedication and also obtained products from the said Company. But suddenly the Company stopped business transaction with her on and from 31/05/2015.

 

 The Complainant stated that on 15/12/2015 she sent a letter to the O.P. requesting him nor to make any payment against the Bank guarantee on any claim made by the Bungee India Private Limited. She further stated that the O.P. Indian Bank by a letter dated 23/02/2016 informed her that the Bungee India Private Limited made a claim of Rs.4,95,708/-. Confronted with the letter of the O.P. the Complainant through her Counsel issued a legal notice dated 20/03/2016 to the O.P. calling upon him to revoke the Bank guarantee No.2/2014 which was issued in favour of the Bungee India Private Limited and also not to make any payment in favour of the beneficiary i.e. the Bungee India Private Limited. The Complainant thereafter institute title suit No.31of 2016 before the Civil Judge Senior Division, Court No.2, Tripura wherein she had prayed for issuing direction upon the O.P. not to pay the amount

Rs.4,95,708/- which was claimed by the Bungee India Private Limited. In the said title suit the O.P. appeared and filed written statement wherein the O.P. prayed to be struck off from being a party and did not make any other reply to the plaint submitted by the Complainant. In the said case the Bungee India Private Limited also appeared but did not file any written statement. In the said case the Learned Court passed an interim order of injection directing the O.P. Indian Bank not to make any payment to the Bungee India Private Limited until disposal of the suit filed by the complainant. The Complainant also stated in her complaint that on 20/09/2016 the O.P. called up the Complainant to their office and informed her that they are pursuing her matter with their head office and that they were unable to release the Bank guarantee in favour of the Complainant unless the suit filed by her is withdrawn. The complainant ultimately has withdrawn the suit on the ground that the validity period of the Bank guarantee had already expired. The Complainant alleged that thereafter she had approached the O.P. number of times for release of the Bank guarantee but the O.P. did not make any response. On 09/12/2017 the complainant made a written demand to the O.P. for release of the Bank guarantee. The O.P. in reply to the written demand sent a letter dated 02/02/2018 whereby it informed the Complainant as follows: 

“As the matter is related with legal department, we sought clarification from our higher authority for release of Margin and as per our higher authority instruction we have consulted with our panel Advocate” 

The Complainant further stated in her complaint that thereafter she  received a communication from the O.P. along with a copy of letter issued by their Panel Advocate wherein she was informed that as the matter concerning her had been dealt with by the Learned Court and as such without any necessary order of the Learned Court the Bank Authority is not in a position to take appropriate decision to whom the amount should be disbursed. The complainant alleged that the O.P. was fully aware about withdrawal of suit by the Complainant and as such the O.P. could not expect any order concerning the matter is to be passed by the Court. The Complainant further stated that the Bungee India Private Limited did not raise any demand to the Complainant which indicates the Complainant did not have any amount due to be paid to the Bungee India Private Limited.  

Hence the Complainant filed this complaint alleging deficiency of service against the O.Ps. She has prayed for passing  necessary order directing the O.P. to release the Bank guarantee No.2 dated 15/01/2015 in favour of the complainant and for compensation along with cost of litigation. 

 

2. The O.P. has contested the complaint by filing written objection denying the claim of the Complainant. The O.P. has stated that the complaint is bad for nonjoinder of necessary party. The O.P. denied any deficiency of service on their part. The O.P. stated that as the Bungee India Private Limited was demanding release of Rs.4,95,708/- against the Bank guarantee and at the same time the Complainant was also insisting for revocation of the Bank guarantee, the O.P. as such had requested the complainant to procure an appropriate order from the Competent Court so that the O.P. can lawfully release the amount. The O.P. asserted that in this connection all though the Complainant had filed a case bearing No.T.S.-31/2016 before Learned Civil Judge Sr. Division Court No.2, Agartala but the complainant has withdrawn said case all on a sudden without getting a final decision of the said case. 

The O.P. thus denying any deficiency of service on their part has prayed for passing necessary order for fair ends of justice. 

3. EVIDENCE ADDUCED BY THE PARTIES:

In support of the Complaint, the Complainant and her authorized representative Sri Subrata Saha were examined as PWs-1&2. The Complainant has produced copy of Power of Attorney, copy of the Bank Guarantee, Letters, Copy of Advocate notice & Copy of letter - Exhibit-I series. 

 

On behalf of the O.P. one witness was examined namely Sri Anupam Sarkar, Manager, Indian Bank, Agartala Branch. He has produced some documentary evidence namely letter from the Bungee Indian Private Ltd., Letter to Somraj Agency, Letter to Bungee Private Ltd. & Letter to the Bungee India - Exhibit-A series. 

 POINTS TO BE DETERMINED:- 

4.  Based on the contentions raised by both the parties the following issues are made for determination:  

   (I). Whether  there was a any deficiency of service committed by the O.P. towards the Complainant?

        (ii).  Whether the Complainant is entitled to get any  compensation/relief ?

 

5. DECISION AND REASONS FOR DECISION:

  From the pleadings of the Complainant and the O.P. Indian Bank and also from the evidence available on the case record we find that there is/was business transaction between the Complainant and the Bungee India Private Limited. In this case the Complainant however did not make the Bungee India Private Limited as a party who according to us is a necessary party. It is an admitted fact that as per request of the Complainant, the O.P. Indian Bank issued a Bank guarantee on 15/01/2015 for an amount Rs.10,00,000/- (Rupees ten lac) only vide No.2/2014 in favour of the Bungee India Private Limited(the Beneficiary) on behalf of the Complainant as security. The Complainant has produced the copy of the Bank Guarantee dated 15/01/2015 as documentary evidence in support of her case(Exhibit-1 series). As per the terms and conditions laid down in the Bank Guarantee at Paragraph-7 the validity of the Bank Guarantee was for one (01) year w.e.f. 15/01/2015 to 14/01/2016 with further claim period of 30 days. As per paragraph-4 in the Bank Guarantee the O.P. Indian Bank shall be treated as the principal debtor to the Beneficiary(the Bungee India Private Limited) for the payment of some of Rs.10,00,000/-(Rupees ten lac) or any part thereof granted by the Bank to the Beneficiary. Moreover as per paragraph-3 in the Bank Guarantee the O.P. Indian Bank had agreed that the decision of the Beneficiary, whether any default has occurred or has been committed by the Distributor (i.e. Proprietor of Somraj Agency) in performance, observance or discharge of the agreed terms and conditions shall be conclusive and binding on the Bank. It is alleged by the Complainant that the O.P. Indian Bank did not revoke the Bank Guarantee inspite of its validity having been expired on 13/02/2016 which includes 30 days grace period from the date of its expiry on 14/01/2016. The Complainant in this connection has relied on the legal notice dated 20/03/2016 which had been served on the O.P. Indian Bank on 21/03/2016(Exhibit-I series). 

  The Case of the O.P. is that the O.P. is unable to revoke the Bank Guarantee as the Bungee India Private Limited who is the Beneficiary is claiming Rs.4,95,708/- from the complainant as outstanding liability against the Bank Guarantee which was executed on behalf of the Complainant in favour of the Beneficiary(the Bungee India Private Limited). It is also the case of the O.P. Indian Bank that though the Complainant instituted a civil suit T.S.-31/2016 before the Learned Civil Judge Sr. Division Court No.2, Agartala on the issue of release/revocation of the Bank Guarantee amount but the Complainant has withdrawn the said suit without getting final decision of the said case. 

  We have gone through the copy of letter dated 08/09/2017 (Exhibit-A series) addressed to the O.P. Indian Bank, Agartala Branch. The said letter has been produced by the O.P. Indian Bank as documentary evidence. From the said letter we find there is a reference quoted on the body of the letter regarding letters dated 30/01/2016 & 19/04/2016 pertaining to invocation of Bank Guarantee No.02/2014 for meeting up an outstanding liabilities of Rs.4,95,708/- against the Bank Guarantee in favour of the Beneficiary i.e. the Bungee India Private Limited. From  the letter dated 08/09/2017 of the Bungee India Private Limited it is amply proved that there is outstanding liability for an amount Rs.4,95,708/- of the Complainant against the Bungee India Private Limited and that the Bungee India Private Limited had raised the claim  by issuing a letter dated 30/01/2016 to the O.P. Indian Bank, Agartala Branch. We find that the claim made by the Bungee India Private Limited is within the subsistence of the Bank Guarantee No.02/2014 which was for one (01) year w.e.f. 15/01/2015 to 14/01/2016 with further claim period of 30 days i.e. till 13/02/2016. 

 

6. In view of the above factual position we consider that the O.P. Indian Bank did not commit any wrong in refusing to revoke the Bank Guarantee which was executed by the said O.P. in favour of the Bungee India Private Limited as security. 

 

  The Complainant in our opinion ought to have impleaded the Bungee India Private Limited as O.P. so as to enable this Forum to decide the case effectively. Non-inclusion of the Bungee India Private Limited in this case as O.P. renders this case bad for nonjoinder for necessary party. 

7. In the result, we find and hold that the Complainant has failed to establish her case against the O.P. Indian Bank. We do not find any deficiency of service committed by the O.P. Indian Bank to the Complainant. Moreover, the Complaint is also bad for nonjoinder of necessary party i.e. the Bungee India Private Limited. We accordingly dismiss the complaint on contest without cost. 

 

ANNOUNCED

 

 SRI BAMDEB MAJUMDER

PRESIDENT,

DISTRICT CONSUMER  DISPUTES 

REDRESSAL FORUM,

WEST TRIPURA,  AGARTALA

 

 

 

 

 SMT. DR. G. DEBNATH,

 MEMBER, 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, 

WEST TRIPURA, AGARTALA

SRI U. DAS

MEMBER,

DISTRICT CONSUMER 

DISPUTES REDRESSAL FORUM, 

 WEST TRIPURA,  AGARTALA.