Punjab

Ludhiana

CC/15/683

Spectrum Life Medical Device Pvt.Ltd. - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

24 Dec 2018

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. : 683 of 26.11.2015

   Date of Decision    :  24.12.2018 

 

Spectrum Life Medical Device Private Limited, SCO 17-F, Shaheed Bhagat Singh Nagar, Kabir Colony, Pakhowal Road, Ludhiana through its Managing Director Jaswinder Singh.

….. Complainant

Versus

1.Punjab National Bank, Rajpura Road, Near DMC Hospital, Ludhiana through its Branch Manager.

2.Punjab National Bank, Branch Office Queens Road, Amritsar through its Branch Manager.

3.Punjab National Bank, Circle Office, PNB House, Sector 17-B, Chandigarh-160017 through its Chief Manager.

…Opposite parties

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.VINOD GULATI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant            :         Sh.Prabhjot Singh, Advocate

For OPs                         :         Sh.Damandeep Singh, Advocate

PER G.K DHIR, PRESIDENT

1.                          Complainant through its Managing Director Sh.Jaswinder Singh filed complaint by claiming that it availed services of Ops by opening current account No.2406002100017070 with OP1 on 15.10.2015. Two cheques bearing No.892655 and No.892656 of amount of Rs.45,000/- each drawn on OP2 by EMC Super Speciality Hospital Private Limited, Amritsar through Sh.Pawan Arora were presented. Thereafter, OP2 sent SMS to his customer i.e.EMC Super Speciality Hospital Private Limited, Amritsar (hereinafter in short referred to as ‘EMC’) regarding intimation of clearance of said cheques. On receipt of SMS, OP2 vide letter dated 15.10.2013 (date wrongly mentioned because if cheque is of date 15.10.2015, then question of sending SMS on 15.10.2013 does not arise) informed complainant as if payment has been stopped by claiming that cheques have been lost in 2013. It is claimed that amount of above said cheques had already been credited to the account of complainant by that time. OP2 on receipt of above said letter, intimated OP1 by concocting a false story as if cheques have been stolen from the office of EMC. Intimation was given to complainant by OP1 vide email dated 31.10.2015 that amount of Rs.9 lac has been freezed by OP1. Complainant sent email to OP1 by giving complete justification and details of transaction between complainant and EMC. Request was submitted with OP1 to defreeze the account and to release the amount as early as possible. On receipt of email from complainant, OP1 sent letter to Managing Director of EMC on 13.11.2015 for requesting to take up the matter with complainant or to take appropriate orders from the Court for release of amount credited in the account of complainant. Request of complainant for   release/defreeze the amount numerous times has not been acceded to and that is why by claiming deficiency in service on the part of Ops, this complaint filed for seeking direction to Ops to release the amount of Rs.9 lac in the account of complainant along with interest @18% per annum from the date of freezing till realization. Compensation for mental agony and harassment of Rs.4 lac and litigation expenses of Rs.21,000/- more claimed.

2.                In joint reply filed by OP1 to OP3, it is claimed interalia as if complaint is not maintainable; complainant has not approached this Forum with clean hands because of suppression of material facts regarding pendency of civil suit tilted as EMC Super Speciality Hospital Private Limited versus Punjab National Bank and others in Court of Sh.Shaminder Pal Singh, Learned Civil Judge, Junior Division, Amritsar, in which, complainant is also impleaded as defendant no.3; complainant is not a consumer as defined in Consumer Protection Act and that there is no deficiency in service on the part of Ops. Rather, it is claimed that complainant has dragged Ops in this false complaint, despite the fact that proceedings are already pending in Civil Court, Amritsar. Though, dispute is between the complainant and EMC, but latter has not been impleaded as party in this case. It is claimed that complaint is not filed through competent person because the resolution authorizing the Managing Director Jaswinder Singh is not passed in a duly convened meeting with proper agenda. Each and every other averment of complaint denied, but by claiming that entry regarding deposit of cheque was incorporated as per rules along with second entry of debiting the account as per banking practice, which is known to all account holders. Ops acted as per intimation of drawer of the cheque and stopped payment as per rules and regulations of the bank. Complaint has been presented on false and frivolous allegations. Admittedly, email dated 31.10.2015 was sent by OP1 to the complainant. Complaint alleged to be filed with ulterior motive. The drawer of cheque called upon Ops for stopping the payment and as such, allegation of adoption    of unfair trade practice even denied specifically.

3.               Counsel for complainant tendered in evidence affidavit Ex.CA of complainant along with documents Ex.C1 to Ex.C14 and thereafter, closed the evidence.

4.                On the other hand, counsel for Ops tendered in evidence affidavit Ex.RA of Ms.Manjit Kaur, Sr.Manager of Punjab National Bank, Rajpura Road, Ludhiana along with documents Ex.R1 and Ex.R2 and then closed the evidence.

5.                          Written arguments in this case not submitted by any of the parties. Oral arguments alone addressed and those were heard. Records gone through minutely. 

6.                Admittedly, complainant holds saving account with OP1 and two cheques issued by EMC were presented by complainant with OP1 on 15.10.2015. It is vehemently contended by counsel for complainant that though earlier civil suit remained pending between EMC Super Speciality Hospital Private Limited versus Punjab Bank and others, but no stay order granted by Civil Court was in vogue at the time of presentation of the cheque and as such action of Ops in crediting the amount of cheques first in the account of complainant and then debiting the amount of Rs.9 lac from the account of complainant is an illegal and arbitrary practice adopted by Ops. However, counsel for Ops contends that credit entry has to be reversed because of intimation received from the drawer of cheque namely EMC Hospital that said cheques had been stolen and misused by the complainant. As and when allegations of theft levelled, then elaborate evidence required for ascertaining the same and as such, the party should be relegated to remedy of approaching Civil Court for getting that question decided. So whether or not any stay order was in vogue   at the time of presentation of cheque or making of credit and debit entry by Ops, despite that Ops were at liberty to probe as to whether cheques have been stolen or not. Only after such clarification, the encashment of cheques should have been done by Ops for avoiding misuse of cheques by the alleged burglar of the cheques.

7.                Copy of plaint of civil suit for permanent injunction for restraining Ops from releasing the amount of Rs.9 lac from freezed account of        complainant produced on record as Ex.R2. Perusal of Ex.R2 reveals that EMC Super Speciality Hospital Private Limited filed complaint against Punjab National Bank and others along with present complainant regarding two cheques in question dated 15.10.2015 on allegations that debit of amount of Rs.9 lac on the basis of these cheques had taken place as per SMS received on mobile phone of EMC Super Speciality Hospital Private Limited and that is why on inquiry into the matter, it was found as if complainant of the present case(defendant no.3 of civil suit) had stolen the cheques in question from EMC Hospital. So, allegations of theft virtually were levelled in the Civil suit filed by EMC Hospital against complainant of present case. When such allegations of theft were levelled through civil suit by the drawer of cheques in question, then certainly it was obligatory on the part of Ops not to encash the cheques until due verification in that respect done. That has been done by Ops and as such, they have not rendered deficient      services at all, just by making the credit entry first and then by reversing the entry through debit entry.

8.                Present complaint was filed on 26.11.2015, but civil suit titled as EMC Super Speciality Hospital Private Limited vs. Punjab National Bank and others referred above was filed on 17.11.2015 is a fact borne from the contents of copy of order of Civil Court presided by Sh.Shaminder Singh, Learned Civil Judge, Junior Division, Amritsar. That copy of order is produced during the course of arguments. So, it is obvious that a civil suit was filed by EMC Hospital at least nine days prior to the filing of present complaint. In that civil suit, an application u/o 39 rule 1 and 2 CPC was filed for claiming ad-interim injunction for restraining Ops from crediting the amount of chequs in question belonging to EMC Super Speciality Hospital in the account of present complainant. Notice of suit and of injunction application was ordered to be issued to the present Ops as well as complainant of case for 9.12.2015 is a fact borne from the contents of copy of order dated 17.11.2015 passed by the Court of Learned Civil Judge, Junior Division, Amritsar.

9.                However, on 07.11.2017, Court of Sh.Arjun Singh, Learned Civil Judge, Junior Division, Amritsar directed the parties to maintain status quo regarding the encashment of cheques for safeguarding the interest of parties. That order dated 7.11.2017 was challenged in appeal bearing Civil Appeal No.822/5875/4721 of 2017 dated 19.12.2017 in Court of Sh.Jaspinder Singh, Learned Additional District Judge, Amritsar. Learned Additional District Judge, Amritsar vide order dated 9.10.2018 vacated order of status quo by way of disposal of application u/o 39 rule 1 and 2 CPC. So perusal of copy of these orders produced during the course of arguments  reveals that the subject matter of civil suit is the same as is the subject matter of this complaint. Parallel proceedings are not permissible and as such, complaint is not maintainable in this Forum because when the matter is already pending before the Civil Court, then Consumer Forum must not entertain the complaint on the identical matter having the same subject matter. In holding this view, we are fortified by law laid in  case titled as Karam Singh vs. State Bank of India-1996(2)Consumer Law Today-441(Haryana State Consumer Disputes Redressal Commission, Chandigarh). Ratio of this case lays that when an identical or an allied cause of action is in seizin in the plenary courts of law, then redressal agencies under the Act must stay their hands because parallel proceedings not permissible. Ratio of this case is fully applicable to the facts of the present case and as such certainly consumer complaint is not maintainable being filed for initiating the proceedings parallel or identical to the proceedings of the Civil suit referred above. Though, the drawer of the cheques namely EMC Hospital claimed that cheques have been stolen by the complainant of the present case, but said hospital has not been impleaded as party in this case and as such, it is obvious that present complaint virtually has been filed for circumventing the orders to be passed by the Civil Court. Being so, this complaint not maintainable on account of that also because no one can be allowed to    circumvent the orders of a civil court having jurisdiction in the matter.

10.              Certainly as per law laid down in case titled as B.L.Joshi, 6, Braemar Avenue and others vs. Bank of Baroda, through its Director and others-2013(2)CPR-156(N.C.), Consumer Fora bound by orders pronounced by Civil Court. Even if that be the position, despite that the continuation of parallel proceedings  is not permissible and as such, just due to vacation of status quo   order passed by Civil Court alone, this Forum must not assume jurisdiction for granting relief qua the cause of action, which is the subject matter of civil suit also, more so when the drawer of the cheques, who is the sufferer/victim is not impleaded as party in this complaint and relief virtually is sought against the drawer of the cheques in question at his back through this complaint. That also amounts to misuse of the process of this Forum. In such circumstances, benefit from ratio of case titled as Bank of Baroda vs. Parasram Mangaram-I(1999)CPJ-79(N.C.) cannot be availed by counsel for complainant, even though ratio of cited case lays that freezing of bank account of the party not permissible at the instance of a person, who has sent notice to the bank describing him as partner of the partnership concern.

11.              As and when allegations of theft, forgery, cheating or of fraud are levelled, then for settlement of issue, elaborate evidence required to be adduced and as such Consumer Fora will have no jurisdiction to decide these questions in summary proceedings. In hold this view, we are fortified by law laid down in cases titled as P.N.Khanna vs. Bank of India-II(2015)CPJ-54(N.C.); Bright Transport Company vs. Sangli Sehkari Bank Ltd.,II(2012)CPJ-151(N.C.); Oriental Insurance Company Limited vs. Mani Mahesh Patel-VI(2006)SLT-436=2006(2)CPC-668(S.C.); Reliance Industries Limited vs. United India Insurance Company Limited-I(1998)CPJ-13(N.C.); M/s Singhal Swaroop Ispat Limited vs. United Commercial Bank-III(1992)CPJ-50(N.C.); Sangli Ram vs. General Manager, United India Insurance Company Limited-II(1994)CPJ-444; Harbans and company vs. State Bank of India-II(1994)CPJ-456; Ranju Devi vs. Branch Manager, State Bank of India-2015(4)CLT-131(JHK). Being so, this consumer complaint not maintainable, more so when allegations of theft of cheques in question requires to be deeply probed thoroughly on allowing of parties to adduce elaborate evidence. Being so, no deficiency in service on the part of Ops is made out and further complaint is not maintainable and as such, same deserves to be dismissed.

12.              Therefore, as a sequel of the above discussion, complaint dismissed, but without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

13.                        File be indexed and consigned to record room.

 

 (Vinod Gulati)                                        (G.K.Dhir)

 Member                                                     President

Announced in Open Forum

Dated:24.12.2018

Gurpreet Sharma.