NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSIONNEW DELHIREVISION PETITION NO. 194 OF 2009
(Against the Order dated 24/12/2008 in Appeal No. 76/2006 of the State Commission Uttaranchal)
1. VINOD KUMAR TAYALM/s. Premsukh Construction Compnay. B-28, Model House, New No. 2 G.40, Vidhi Vihar New Tehri Uttarakhand
...........Petitioner(s)
Versus
1. PUNJAB NATIONAL BANK & ORS.Manager Punjab National Bank New Tehri Uttaranchal 2. CHAIRMAN CUM MANAGER DIRECTOR THDC LTD H.N. A-10, Sector. -1 Kribhko Bhawan ,4th Floor Noida -201301U.P
...........Respondent(s)
BEFORE:
HON'BLE MR. JUSTICE B.N.P. SINGH ,PRESIDING MEMBER
For the Petitioner :
NEMO
For the Respondent :
NEMO
Dated : 16 Mar 2010
ORDER
Learned counsel for petitioner and respondents were heard on admission. M/s. Premsukh Construction Company of which petitioner happens to be a partner was assigned construction of administrative building of Tehri Hydro Power Development Corporation (in short THDC) on 16.12.2009. Petitioner had pledged its FDR to respondent of maturity value of Rs. 6,12,648/- as a security against deficiency in construction, if noticed in future, which it had secured against bank guarantee furnished by them. After respondent bank paid maturity value of FDR to respondent No. 2, issue became debatable, petitioner company raising issue of propriety of Petitioner Company to pay maturity value of FDR to Corporation notwithstanding there being no complain about deficiency in construction of project for about a year of its completion. That apart, petitioner company had also a grouse that even when validity period of bank guarantee had not been extended by them beyond 30.09.2004, it was not permissible for Bank to release maturity value of FDR to Corporation. Aggrieved with release of maturity value of FDR without instruction from them, a consumer complaint came to be filed with District Forum. Bank did not appear in proceeding, on notice. However, District Forum, in view of provision of Section 20 of Agreement executed between the parties about settlement of dispute within parameters of Arbitration Act, dismissed complaint for want of jurisdiction. Appeal too, filed by petitioner company did not bear desired result and petitioner was unsuited by State Commission too, holding that since FDR was used for commercial purposes, petitioner company had not qualified to be a consumer to maintain a complaint before consumer fora. State Commission, accordingly, also held that since Petitioner Company had availed services of Bank for commercial purposes, complaint was not maintainable with consumer grievance redressal agency. Petitioner was unsuited by State Commission also on merit as maturity value of FDR was released to Corporation during its validity period which was extended by Corporation. Certain salient features of the case, however, need to be noticed. Through bank guarantee, respondent Bank had accepted security deposit of Rs. 5,95,000/- furnishable to THDC by petitioner company. FDR was pledged with Bank with stipulation that it was to be released by Bank on submission of No Demand Certificate from THDC. It is nobodys case that such No Demand Certificate was ever issued by Corporation to enable petitioner company to secure release of maturity value of FDR from Bank. That apart, initially, validity period of FDR was only up to 07.09.1999 which could be extended on request of Corporation and such decision for extension of validity of FDR was not to be questioned. Yet, inclusion of a clause in bank guarantee in following terms clinches the issue:- 2. Notwithstanding anything to the contrary, your decision as to whether the contractor has made any such default or defaults and the amount or amounts to which you are entitled by reasons thereof will be binding on us and we shall not be entitled to ask you to establish your claim or claims under this Guarantee but will unconditionally pay the same forthwith on your demand without any protest of demur. If these stipulations made in bank guarantee is to be given due consideration, defence of petitioner that since no deficiency in construction of project was ever raised by Corporation even after completion of one year of the project, looses much of its significance, as it was immaterial whether there was any deficiency in construction or otherwise which could have bound the bank to not release bank guarantee in favour of Corporation. That apart, if there was inter se dispute between petitioner Company and Corporation with regard to deficiency in construction of project, if any, Bank had not to share this issue with them. Bank rather was obliged to pay bank guarantee forthwith on demand without any protest or raising any question about issue of defect in construction of project, even if raised by petitioner Company. Since validity period of bank guarantee was extended by Corporation for which they had authority, no eye-brows can be raised on this ground too, for release of maturity value of bank guarantee to respondent no. 2. Nobody has a case that bank guarantee was released to Corporation after expiry of its validity period. Despite all persuasive arguments made by learned counsel for petitioner company, I am of considered view that finding of State Commission did not suffer infirmity warranting interference in revision. Revision petition being without substance, is accordingly dismissed, with no order as to cost.
......................JB.N.P. SINGHPRESIDING MEMBER
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