FIRST  APPEAL NO. 169 OF 2008

FIRST  APPEAL NO. 230 OF 2008

         Heard learned counsel for the appellant - Bank. None appears for the respondent/complainant.

2.      Since both the appeals arise out of common impugned order    passed by the learned District Forum, Jharsuguda   in C.D. Case Nos. 42 of 2007, both the appeals are heard together. This common order shall govern the result of both the appeals.

3.      These appeals are filed u/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.

4.     The case of the complainant in nutshell is that the complainant being a businessman has got separate business. Her husband took over draft on 3.9.1999. Accordingly, he pledged securities like National Savings Certificate and Kisan Vikas Patra etc. It is alleged inter alia that on 21.2.2007 complainant received a letter from  OP No.1 stating that the National Savings Certificate  pledged with the Bank  against over draft account No. 630 of Modi Associates and adjusted an amount of Rs.4,37,709.08 outside one account namely, Sai Industrial Products where the Proprietor Modi Associates was also the promoter. After receiving letter dated 21.2.2007 complainant was astonished because she was no way connected with the Sai Industrial Products and wrote a letter to OP No.1 but to no effect. Finding no other way, the complainant filed the complaint.

5.      OP No. 1 filed written version stating that complainant has availed loan for commercial purpose by pledging the National Savings Certificate and KVP. It is also pleaded that OP No.1 has filed civil suit before the Civil Judge (Sr. Division), Jharsuguda which is sub-judice, as such the case is not maintainable.

6.      After hearing both parties, learned District Forum passed the following impugned order:-

                   “xxx   xxx   xxx

In result, we direct the OP No.1 Senior Manager, Punjab National Bank, Jharsuguda to returned  the matured value of the National Savings Certificate/Kisan Vikas Patra encashed and adjusted against Sai Industrial Products of the complainant and release all National Savings Certificate/Kisan Vikas Patra with the OP No.1 against S.O.D. account No.630 within three months of this order, failing which 9% interest will be charged. In view of the facts and circumstances of the case we award sum of Rs.10,000/- (Rupees ten thousand only) towards the mental agony, harassment, unfair trade practice, deficiency of service and cost of litigation to the complainant within three months from the date of order, failing which 9% interest will be charged.”

7.      Learned counsel for the appellant submitted that learned District Forum without appreciating the materials on record passed the illegal and wrong order. He further submitted that the Bank has lien over the property as per the agreement between the parties. There is no any deficiency in service or unfair trade practice adopted by the OPs. Therefore, he submitted to set aside the impugned order by allowing the appeal.

8.      Considered the submission of learned counsel for the appellant and perused the DFR including the impugned order.

9.      It is admitted fact that the complainant has availed loan from OP No.1 on 3.3.1999. At the same time, she purchased the National Savings Certificate, and KVP. It is not in dispute that the complainant wanted to expand the business of her husband. Of course for same cause of action admittedly there is a civil suit pending before the learned Civil Judge (Sr. Division), Jharsuguda. When there is civil suit already pending for the same cause of action, it is not appropriate to proceed with the consumer case but learned District Forum ignoring such fact has passed the order. Moreover, when admittedly, the National Savings Certificate and KVP have been already mortgaged against the over draft loan amount, it must be held that u/s 177 to 182 of Indian Contract Act, Bank has got General lien over the pleaded documents and it can utilize against any other debt to be discharged by properties of Sai Products who is promoter of Company which is indebted to Bank in question. The NSC and KVP are nothing but worthy of money for realization of debt money. Considering the materials, we are of the view that the OP No.1 having kept lien over such documents has not committed any deficiency in service for realizing the loan amount by keeping double charge over said debt.  Apart from this, the purpose of taking loan was expanding business of her husband. It is well settled in law that expanding business by the complainant is always taken as a commercial purpose. In such circumstances, the consumer complaint is not maintainable as the over draft is availed for commercial purpose by mortgaging the aforesaid NSC and KVP which has been utilized by Bank - OP.

10.    In view of aforesaid analysis, we do not agree with the view taken by the learned District Forum. Hence, the impugned order is liable to be set aside and it is set aside. FA No. 169 of 2008 is allowed and FA No. 230 of 2008 stands dismissed. No cost.

         DFR be sent back forthwith.

       Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.