APPEARED AT THE TIME OF ARGUMENTS

PRONOUNCED ON :  09^th APRIL 2018

O R D E R

PER DR. B.C. GUPTA, MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 against the order dated 29.03.2011, passed by the Punjab State Consumer Disputes Redressal Commission (hereinafter referred to as ‘the State Commission’) in First Appeal No. 1011/2005, “Punjab & Sind Bank versus Sandhu Cold Storage,” vide which, it was directed that ‘the remaining amount shall be paid by the appellant to the respondent within 6 months’.

2.        This case has an interesting history.  The complainant M/s. Sandhu Cold Storage was maintaining current account CA/1133 with the opposite party (OP)/Petitioner Punjab & Sind Bank (hereinafter referred to as the Bank).  The complainant had obtained term loan and cash credit limit also from the said Bank.  The issue in question revolves around the fact that a sum of ₹4 lakh from the current account of the complainant was adjusted against the term loan/cash credit limit account.  The case of the complainant is that the Bank had no right to transfer the said amount to the term loan without his consent.  Alleging deficiency in service on the part of the Bank, the consumer complaint was filed, seeking directions to the OP to make payment of ₹4 lakh to the complainant with interest.  In reply to the complainant, the Bank admitted that they had adjusted ₹3,50,000/- in the term loan account and ₹50,000/- in the CC Limit account of the complainant.  They also stated that they had initiated proceedings for recovery of huge amount of ₹28,85,566/- + interest from the complainant.  The Bank stated that they had a general lien on the moveable or immoveable properties of the borrower and they had every right to transfer the said amount.

3.       The District Forum vide their order dated 07.01.2005, allowed the consumer complaint and gave directions to the OP bank to refund ₹4 lakhs with interest @12% p.a. from the date of transferring the amount in the term loan account and cash credit account till realisation.  The OP was further directed to pay ₹4 lakhs as loss suffered by the complainant due to non-purchase of potatoes for their business and ₹10,000/- as compensation against harassment/litigation cost etc.  Being aggrieved against the said order of the District Forum, the Bank challenged the same before the State Commission by way of an appeal, FA No. 1011/2005.  However, the said appeal was dismissed as withdrawn vide order dated 14.07.2009 of the State Commission, which reads as follows:-

“The learned counsel for the appellant submits that parties have settled the matter out of court and appeal be dismissed as withdrawn.  Dismissed as withdrawn.”

4.       The complainant filed an execution application for enforcement of the order passed by the District Forum.  On the other hand, the Bank filed M.A. No. 2242/2009 before the State Commission for recall of the order dated 14.07.2009 and for the stay of the execution proceedings.  It was stated in the said application that in the main recovery case between the Bank and the complainant, the settlement proposal of ₹45.29 lakhs against the outstanding amount of ₹92 lakhs had been accepted after giving rebate to the complainant.  The stand of the Bank was that after the One Time Settlement (hereinafter referred to as OTS) had been made, the complainant should not have filed execution application for the enforcement of the order of the District Forum.  The State Commission vide their order dated 18.03.2010, accepted the application for recall of their own order dated 14.07.2009 and listed the appeal for hearing on 17.05.2010.  The complainant filed a revision petition against this order before this Commission.  The revision petition was allowed vide order dated 08.03.2011 of this Commission, and it was held that the State Commission could not have recalled their order dated 14.07.2009 and restored the appeal.  The Bank challenged the order of this Commission by way of Special Leave Petition (SLP) before the Hon’ble Supreme Court, which was dismissed vide order dated 10.05.2011.  However, after the order dated 08.03.2011 of this Commission was passed, the State Commission passed another order dated 29.03.2011 in FA No. 1011/2005, in which it was stated that the order dated 14.07.2009 in FA No. 1011/2005 holds good and the said appeal stands dismissed as withdrawn.  The State Commission, however, directed that the ‘remaining amount shall be paid by the appellant Bank to the respondent/complainant within two months from the receipt of the copy of the order’.  The present revision petition has been filed, challenging the said direction in the order dated 29.03.2011.

5.       During hearing before this Commission, the learned counsel for the Bank has drawn attention to an application dated 21.01.2008, submitted by the complainant before the Bank, in which it was stated that they were ready for OTS to the tune of ₹45.29 lakh.  The learned counsel argued that the said proposal had been submitted, after the passing of the order dated 07.01.2005 by the District Forum and during the pendency of Appeal No. 1011/2005 before the State Commission.  The proposal was accepted by the Bank vide their letter dated 06.02.2008 and after this OTS, the appeal was withdrawn from the State Commission under the belief that the matter stood finally settled between the parties.  The complainant, therefore, should not have filed the execution application before the District Forum.  The Bank had, therefore, initiated proceedings for recall of the order dated 14.07.2009 of the State Commission, which was allowed by them vide order dated 18.03.2010.  The learned counsel argued that since all accounts between the parties had been settled as full and final after the OTS, the consumer fora below should not have entertained the execution proceedings.  The learned counsel further argued that after the order of the National Commission dated 08.03.2011 duly affirmed by the Hon’ble Supreme Court, the State Commission had no jurisdiction to pass the order dated 29.03.2011 and to give a direction that remaining amount shall be paid by the Bank to the complainants.  The learned counsel pleaded that the directions contained in the order dated 29.03.2011 should be set aside.

6.       The learned counsel for the respondent/complainant argued, however, that the order of the State Commission dated 14.07.2009 by which, the appeal of the Bank was dismissed as withdrawn, had been upheld by the Hon’ble Supreme Court of India.  In so far as the correspondence regarding the OTS between the parties was concerned, there was no mention in the same about the consumer complaint, or the direction made by the District Forum in the consumer complaint.  The State Commission had simply given consequential direction for the payment of the remaining amount to the complainant under the orders of the District Forum.  The present petition was, therefore, without any force and should be dismissed. 

7.       In reply, the learned counsel for the petitioner Bank stated that there was direct nexus between the loan account of the complainant and the direction given by the District Forum.  In case, the loan account had been settled through OTS, the direction given by the consumer fora could not be enforced.

8.       I have examined the entire material on record and given a thoughtful consideration to the arguments advanced before me.

9.       The basic issue that merits consideration in the matter is that the consumer complaint was filed against the action of the Bank in transferring a sum of ₹4 lakh from the current account of the complainant in the Term loan/CC Limit account of the complainant.  The recovery proceedings under the loan advanced to the complainant were already in progress.  The District Forum held that the Bank had no right to transfer the amount of ₹4 lakh to the Term loan/Cash Credit account and hence, the action of the Bank in doing so, had resulted in business loss to the complainant.  Accordingly, they gave directions for the payment of an amount of ₹4 lakh to the complainant alongwith 12% p.a. and in addition, also allowed payment of ₹4 lakh for loss in business.  On the other hand, the stand of the Bank is that after the order of the District Forum had been passed on 07.01.2005, the OTS was reached between the parties as a result of which, all the liabilities etc. were settled and hence, the direction given by the District Forum could not be enforced.  They, therefore, requested the State Commission to dismiss the appeal pending before them as withdrawn.  Accordingly, the said appeal was dismissed as withdrawn vide order dated 14.07.2009.

10.     As the things stand today, although the order dated 14.07.2009 was ordered to be recalled by the State Commission vide their order dated 18.03.2010, the said order was reversed by this Commission vide order dated 08.03.2011 in the revision petition filed before this Commission.  An SLP against the order dated 08.03.2011 was dismissed by the Hon’ble Supreme Court vide order dated 10.05.2011. It is evident, therefore, from these facts that the order passed by the State Commission on 14.07.2009 had attained finality, rather the State Commission had become “functus officio”, after the passing of the orders dated 08.03.2011 by this Commission.  It is not understood, therefore, how the State Commission re-heard the First Appeal No. 1011/2005 and passed another order on 29.03.2011.  In so far as the release of amount of ₹25,000/- as mentioned in the order dated 29.03.2011 is concerned, the State Commission could have issued direction for release of this amount on an application filed before them, but the State Commission could not have issued any further directions in FA No. 1011/2005.  It is evident, therefore, that in so far as, the State Commission is concerned, their order dated 14.07.2009 has to be taken as the final order passed by them.  The impugned order dated 29.03.2011 is, therefore, set aside, but the direction to release amount of ₹25,000/- to the Appellant Bank before them is maintained. 

11.       Based on the discussion above, the District Forum is directed to decide the execution proceedings before them, treating the order dated 14.07.2009 passed by the State Commission to be the final order.  The District Forum after hearing the parties in detail in the execution proceedings, shall pass a well-reasoned order based on the observations in this order.  The revision petition stands disposed off accordingly.  There shall be no order as to costs.