Tripura

StateCommission

A/5/2019

Smt. Sikha Banik Roy (Proprietor of SOMRAJ AGENCY) - Complainant(s)

Versus

Indian Bank - Opp.Party(s)

Mr. B.N. Majumder, Mr. Rajib Saha, Mr. D.J Saha

06 Jul 2019

ORDER

Tripura State Consumer Disputes Redressal Commission, Agartala.

 

 

Case No.A.5.2019

 

 

 

1. 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, District - West Tripura.

 

Represented by her authorized representative:-

Sri Subrata Saha,

S/o Late Himangshu Ranjan Saha of Gangail Road,

Agartala, P.S. West Agartala, District - West Tripura.

                                                          … … … … Appellant/Complainant.

Vs

 

1. The Indian Bank,

Represented by its Branch Manager,

Agartala Branch, Hotel Overseas Mansion, 

15, H.G. Basak Road, Agartala.

… … … … Respondent/Opposite party.

 

 

 

 

 

 

 

Present

Hon’ble Mr. Justice U.B. Saha

President,

State Commission

 

 

Mr. Narayan Ch. Sharma,

Member,

State Commission

 

Dr. Chhanda Bhattacharyya,

Member,

State Commission

 

 

 

 

For the Appellant:                                                Mr. Bibhal Nandi Majumder, Adv.

For the Respondent:                                            Ms. Puspita Chakraborty, Adv.

Date of Hearing & Delivery of Judgment:          06.07.2019.

 

 

J U D G M E N T [O R A L]

 

U.B. Saha, J,

The instant appeal is directed against the judgment dated 08.01.2019 passed by the learned District Consumer Disputes Redressal Forum (hereinafter referred to as District Forum), West Tripura, Agartala in Case No.C.C.26 of 2018 whereby and whereunder the learned District Forum dismissed the complaint petition on the ground that Bunge India Pvt. Ltd., in whose favour the Bank Guarantee was given, was not made party by the complainant in the complaint petition.

2. Heard Mr. Bibhal Nandi Majumder, Ld. Counsel appearing on behalf of the appellant, Smt. Sikha Banik Roy (hereinafter referred to as complainant) as well as Ms. Puspita Chakraborty, Ld. Counsel appearing for the respondent, Indian Bank (hereinafter referred to as opposite party/Bank).
3. Facts needed to be discussed are as follows:-
4. Complainant, Smt. Sikha Banik Roy, filed an application under Section 12 of the Consumer Protection Act, 1986 through her authorized representative, Sri Subrata Saha before the learned District Forum alleging that the complainant is the Proprietor of Somraj Agency and she had been engaged as a Super Stockiest  by the Bunge India Pvt. Ltd., a Company registered under the Companies Act, 1956 dealing with oil and fats which is 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 of Rs.10,00,000/- in favour of Bunge India Pvt. Ltd. as security. The complainant had accordingly approached the opposite party-Indian Bank, Agartala Branch for issuing a Bank Guarantee for the aforesaid amount. The opposite party in compliance with request of the complainant issued a Bank Guarantee in favour of the Bunge India Pvt. Ltd. for an amount of Rs.10,00,000/- on 15.01.2015, being Bank Guarantee No.2/2014 having its validity till 14.01.2016 with further claim period of thirty days. The complainant alleged that she had been doing her business with the Bunge India Pvt. Ltd. with sincerity and dedication and also obtained products from the said Company, but suddenly, the Company stopped business transactions with her on and from 31.05.2015. The complainant stated that on 15.12.2015, she sent a letter to the opposite party requesting them not to make any payment against the Bank Guarantee on any claim made by the Bunge India Pvt. Ltd. She further stated that the opposite party-Indian Bank by a letter dated 23.02.2016 informed her that the Bunge India Pvt. Ltd. made a claim of Rs.4,95,708/-. Confronted with the letter of the opposite party, the complainant sent a legal notice through her Counsel dated 20.03.2016 to the opposite party calling upon them to revoke the Bank Guarantee No.2/2014 which was issued in favour of the Bunge India Pvt. Ltd. and also not to make any payment in favour of the beneficiary i.e. the Bunge India Pvt. Ltd. The complainant thereafter instituted Title Suit No.31 of 2016 before the Civil Judge, Senior Division, Court No.2, Tripura wherein she had prayed for issuing direction upon the opposite party not to pay the amount of Rs.4,95,708/- which was claimed by the Bunge India Pvt. Ltd. In the said Title Suit, the opposite party appeared and filed its written statement wherein the opposite party 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 Bunge India Pvt. Ltd. also appeared, but did not file any written statement. In the said case, the Learned Court passed an interim order of injunction directing the opposite party-Indian Bank not to make any payment to the Bunge India Pvt. Ltd. until disposal of the suit filed by the complainant. The complainant also stated in her complaint that on 20.09.2016, the opposite party called 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 had withdrawn the suit on the ground that the validity period of the Bank Guarantee had already expired. The complainant again alleged that thereafter, she had approached the opposite party number of times for releasing the Bank Guarantee, but the opposite party did not make any response. On 09.12.2017, the complainant made a written demand to the opposite party for release of the Bank Guarantee. The opposite party 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 that thereafter she received a communication from the opposite party 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 as to whom the amount should be disbursed. The complainant again alleged that the opposite party was fully aware about withdrawal of suit by the complainant and as such the opposite party cannot expect any order concerning the matter to be passed by the Learned Court. The complainant further stated that the Bunge India Pvt. Ltd. did not raise any demand to the complainant which indicates the complainant did not have any amount due to be paid to the Bunge India Pvt. Ltd.  Hence, the complainant filed the complaint petition alleging deficiency of service against the opposite party-Bank and prayed for passing necessary order directing the opposite party to release the Bank Guarantee No.2/2014 dated 15.01.2015 in favour of the complainant and also to pay compensation along with cost of litigation.

5. The opposite party contested the complaint by filing its written objection denying the claim of the complainant. The opposite party stated that the complaint is bad for non-joinder of necessary parties. They also stated that as the Bunge India Pvt. Ltd. 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 opposite party, as such, requested the complainant to procure an appropriate order from the Competent Court so that the opposite party can lawfully release the amount. They had denied any deficiency of service towards the complainant by them. 
6. In support of the complaint, the complainant and her authorized representative, Sri Subrata Saha were examined as PW No.1 and 2 respectively. The complainant had produced copy of Power of Attorney, copy of the Bank Guarantee, letters, Copy of Advocate Notice and copy of letter which were marked as Exhibit-I series.
7. On the other hand, the opposite party had examined one witness, namely, Sri Anupam Sarkar, Manager, Indian Bank, Agartala Branch. He had produced some documentary evidence, namely, letter from the Bunge Indian Pvt. Ltd., letter to Somraj Agency, letters to Bunge Indian Pvt. Ltd. which were marked as Exhibit-A series.
8. On the basis of the pleadings of the parties and evidence on record, the learned District Forum framed the following issues for deciding the case:-

1. Whether there was any deficiency of service committed by the opposite party towards the complainant?
2. Whether the complainant is entitled to get any compensation/relief?
9. After hearing the parties and considering the evidence, the learned District Forum dismissed the complaint petition as stated (supra).
10. Mr. Nandi Majumder, Ld. Counsel for the appellant while urging for setting aside the impugned judgment would contend that the learned District Forum failed to consider the fact that the Bunge Indian Pvt. Ltd. never claimed any money to the complainant within the period of Bank Guarantee. He again submits that in absence of any demand from the Bunge Indian Pvt. Ltd., the complainant cannot be said a defaulter and unless complainant is a defaulter, the Bank cannot utilize the Bank Guarantee in favour of the Bunge Indian Pvt. Ltd. He has further submitted that the Bank Guarantee was given on 15.01.2015 and lifespan of Bank Guarantee was valid till 14.01.2016. He has finally submitted that the Bunge Indian Pvt. Ltd. in whose favour the Bank Guarantee was given asked for recovery of outstanding balance amounting to Rs.4,95,708/- only on 30.01.2016 i.e. beyond the lifespan of the Bank Guarantee i.e. 14.01.2016 whereas from the Bank Guarantee it appears that “The Bank shall be liable to pay the Guaranteed amount or any part thereof under this Bank Guarantee only and only if claim is submitted by the Beneficiary on or before 14.01.2016” thus, the learned District Forum failed to consider the aforesaid facts and came to a wrong conclusion that Bunge Indian Pvt. Ltd. is a necessary party.
11. Per contra, Ms. Chakraborty, Ld. Counsel while supporting the impugned judgment would contend that both Bunge Indian Pvt. Ltd. and the complainant are demanding the benefit of Bank Guarantee for which the Bank is not in a position to release the Bank Guarantee in favour of the complainant. She further submits that without any proper order from the Court, the Bank is not in a position to revoke the Bank Guarantee in favour of the complainant.
12. We have gone through the impugned judgment from which it appears that the learned District Forum did not discuss anything regarding the lifetime of the Bank Guarantee. More so, when in the Bank Guarantee, there is a specific clause that the Bank shall be liable to pay the guaranteed amount or any part thereof under the Bank Guarantee only and only if the claim is submitted by the beneficiary on or before 14.01.2016 and fact remains that within that period, the beneficiary, the Bunge Indian Pvt. Ltd., did not claim any benefit from the Bank Guarantee. The instant case is filed after the lifespan of the Bank Guarantee i.e. after the validity and more so, there is no prayer against the Bunge Indian Pvt. Ltd.   

In view of the above, we are of the considered opinion that it is necessary to interfere with the impugned judgment. Accordingly, the same is interfered with and consequent thereto, the impugned judgment is set aside. The matter is remanded to the learned District Forum to decide the case afresh after considering the observations of this Commission as stated (supra). The learned District Forum is also directed to issue proper notice upon the parties for their appearance. As the matter is pending since 2018, it would be proper to dispose of the matter within a period of two months. The appeal is disposed of.

Send down the records to the learned District Forum, West Tripura, Agartala.