DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

Mrs. Chintan Kaur wife of Malvinder Singh, R/o #3037 SBI Housing Society, Sector 49-D, Chandigarh.

                                                                                    ---Complainant

V E R S U S

[1]     HDFC Bank, Plot No. 28, Industrial Area, Phase-I, Chandigarh, through its Manager.

[2]          Namrata Enterprise, SCF No.26, Madhya Marg, Sector 7-C, Chandigarh, through its Owner/ Proprietor.

[3]     Bullet Point, SCO 23, 1^st Floor, Sector 41, Chandigarh, through its Owner/ Proprietor.

---Opposite Parties.

BEFORE:            MRS.MADHU MUTNEJA                   PRESIDING MEMBER

                        SH.JASWINDER SINGH SIDHU            MEMBER

Argued By:      Sh. M.S. Saini, Advocate for Complainant.

Sh. Sandeep Suri, Advocate for OP No.1.

OPs No. 2 & 3 ex-parte.

PER MADHU MUTNEJA, PRESIDING MEMBER

1.             The instant complaint relates to the alleged deficiency in service by the OPs for non-withdrawal of criminal complaint u/s 138 of the Negotiable Instruments Act, 1881, filed against the complaint.

                Briefly stated, the Complainant had taken a loan (loan a/c no. 91111578) from OP No.1, for which full and final payment to the OPs has already been made by the Complainant. The OP No.1 had also assured the Complainant vide letter dated 29.05.2010 that if she makes one time payment of Rs.70,000/-, they would withdraw any case filed against her, and would also close the loan account, as full and final settlement (letter at Annexure C-1).  The Complainant had made the above said payment to OP No.1, through OP No.3. Receipts have been placed on record. 

                The Complainant had also taken another loan from OP No.1 (loan a/c no. 3175219), which had also been settled in the same style vide letter dated 19.04.2010 (Annexure C-4) and settlement amount of Rs.1,70,000/- had been paid by the Complainant in full and final settlement of the loan to the OPs.

                The Complainant has alleged that after both the loan accounts had been settled, the OPs were still pursuing false cheque bounce complaints against her in the District Courts at Chandigarh. OP No.1 had filed a criminal complaint u/s 138 of the Negotiable Instruments Act, 1881, against the Complainant for loan account No. 3175219. Another similar complaint has been filed against loan account No. 91111578.  When the Complainant visited the Bank, the Bank confirmed that her loan account had been closed and nothing was due against her. Despite this, the Bank has failed to withdraw the above complaints.

                The Complainant has, thus, filed the instant complaint alleging harassment and mental agony, besides deficiency in service and malpractice by the OPs. The Complainant has prayed for compensation of Rs.1,00,000/- along with interest and costs of litigation.  

2.              After admission of the complaint, notices were sent to the OPs.

                Despite service, no one has appeared on behalf of OPs No.2 and 3. Therefore, OPs No.2 & 3 were proceeded against exparte on 08.02.2011 and 11.03.2011, respectively.

                OP No.1 has filed its written statement and contested the claim of the Complainant. The OP No.1 has taken the preliminary objection that the Complainant was a defaulter and did not clear installments as and when they became due. Cheques issued by her continued to bounce on presentation. On account of this bouncing, the Bank initiated proceedings u/s 138 of the Negotiable Instruments Act, 1881, in the court of competent jurisdiction. 

                OP No.1 has further submitted that these proceedings had been initiated against the Complainant after issuance of due notice. The Complainant did not come forth to clear the dues, despite the notice. The offence being criminal in nature, proceedings were initiated against the Complainant, much prior to the settlement between the parties.

                OP No.1 has further taken the preliminary objection that as per documents produced by the Complainant herself, withdrawal of any legal proceedings was never a part of the settlement for loan account no. 3175219. The offence was completed much earlier, and the same is triable by the competent court who is to take the decision. The Complainant having been summoned by the competent court has now approached this court in order to quash the proceedings going on in the criminal court. This court has no jurisdiction to do so and any order passed by this Forum shall tantamount to interfere of dispensation of justice by this Forum which is neither a court nor its appellate body.

                The OP No.1 has further placed reliance on the guidelines issued by the IBA (Indian Banks Association), which reads as under:-

“Bank’s settlement with borrowers not to include criminal cases.

Mumbai: Bank’s settlement with defaulting borrowers will now specifically exclude criminal cases lodged and proceedings with regard to criminality would continue even after the settlement of the civil cases………..”

                On merits, the OP No.1 has stated that the Complainant was a defaulter. OP No.1 has admitted that two loan accounts were settled by the Complainant, but no withdrawal of case was agreed between the parties. Non-withdrawal does not amount to any deficiency in service.  The OP No.1 has, thus, prayed for the dismissal of the present complaint against it.

3.              Parties led evidence in support of their contentions.

4.              We have heard the ld.Counsel for the complainant and OP No.1 and have also perused the record.

5.              The case involves prayer of the Complainant for withdrawal of criminal proceedings under Section 138 of the Negotiable Instruments Act, 1881, filed by the OP No.1, against her, besides compensation for harassment caused to her due to the same proceedings.

                As per the Complainant, she had settled the account with the OPs, which fact has been admitted by OP No.1. Annexure C-1 is a letter dated 29.05.2010, issued to the Complainant by the OP No.1, in full and final settlement of loan account no. 91111578. In this letter, the OP No.1 has specifically stated that “we will withdraw the legal action against you in case if any”. No such letter is on record against the loan account no. 3175219. The Complainant has alleged that non-withdrawal of criminal proceedings against her by the OP No.1 is causing her immense harassment. The OP No.1 has contended in reply that as the offence was committed much prior to the settlement of the claim, they are, hence, entitled to pursue criminal proceedings and this Forum has no jurisdiction to pass any orders or interfere in the jurisdiction of the court where the criminal proceedings are pending. 

6.              At the time of arguments, OPs have placed on record letter dated 14.11.2011 (Annexure ‘X’) from HDFC Bank Ltd., showing the status of all loan accounts of the Complainant.

                A perusal of this letter shows that:-

“Complaint filed u/s 138 of NIA Act against Ms. Chintan Kaur (Loan A/c No. 91111578) filed on 28.07.2009 has since been withdrawn and another Complaint u/s 138 of NIA Act against Ms. Chintan Kaur (Loan A/c No. 3175219) filed on 10.08.2009 is fixed for 10.12.2011 for CW in the Hon’ble Court of Sh. Amit Sharma, JMIC, Chandigarh”.

                As per this letter, it is clear that the complaint against Loan A/c No. 91111578 has been withdrawn by the OPs, in compliance with the offer to the Complainant at Annex. C-1. However, the complaint against Loan A/c No. 3175219 has not been withdrawn, as it was not a part of the offer to the Complainant at Annex.C-4. 

7.              In our opinion, if the OPs continue to pursue legal proceedings against the Complainant under Section 138 of the Negotiable Instruments Act, 1881, we cannot treat the action as either a ‘service’ or ‘deficiency in service’ under the Consumer Protection Act, 1986. A pending litigation between the parties is not a consumer dispute and, thus, not covered under the definition of service as provided in Section 2 (o) of the Act.  

8.              In the light of above observations, it is our opinion that Consumer Protection Act, 1986, does not empower us to pass any orders against the OPs directing them to withdraw criminal proceedings against the Complainant pending before some other Court.  As such, the complaint needs to be rejected. We accordingly, dismiss the present complaint. No costs.

9.                 Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

21^st November 2011.                                                                   

Sd/-

(MADHU MUTNEJA)

PRESIDING MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER