State Consumer Disputes Redressal Commission
Andaman & Nicobar Islands
Port Blair
Present : Justice Arunabha Basu, President .
Smti Biji Thomas, Member.
Shri Basudev Dass, Member.
Appeal No. 5 of 2009
Shri S. Balaji, Proprietor of Sri Balaji Printers, Mohanpura vegetable market, first floor, shop No.110, S/o Shri K .Swamyanathan, Port Blair.
......... Appellant
VS
Syndicate Bank, Port Blair Branch, Port Blair. &
The Manager, Syndicate Bank, Port Blair.
……..Respondent
Judgment
Dated: 16.03.2012
The appeal is directed against the judgment and order dated 31-09-2009 passed by the Ld. District Forum, whereby, and where under the Ld. Forum dismissed the application filed by the appellant herein in connection with CD Case No. 5 of 2009.
The case of the appellant reflected in the complaint filed before the District Forum is based on the fact that the appellant obtained loan to the extent of Rs. 87, 500/- from the respondent bank being the Syndicate Bank situated at Port Blair Branch. The said loan was obtained for printing purpose and it is clearly stated in the application that the loan was taken to earn the livelihood of the complainant. Subsequently this island was hit with natural calamities due to Tsunami causing extensive damage and destruction to the life and property of the inhabitants of Andaman & Nicobar Islands. Subsequently the Govt. of India issued a notification bearing No. U-13034 /116/2005- ANL dated 30-03-2006. The said Circular allowed certain financial benefits in favour of small traders and businessman in Andaman & Nicobar Islands in the manner as stated in the Circular. However, benefit of the Circular was denied by the respondent, and interest on the amount was illegally recovered by the respondent.
The Ld. Forum while dismissing the complaint was of the view that the Forum is empowered to entertain a complaint when it has the jurisdiction to do so in terms of section 11 of the Consumer Protection Act 1986 ( hearin after ‘D’ Act).
The Ld. Forum was also of the view that so far as the bank is concerned, it is not voluntarily residing and carrying on business by working for own personal gain, rather, each and every work to be performed in office is for running financial institution for rendering services to the public at large.
Ld. Forum was also of the view that the dispute between the parties cannot be decided under the Act and the appropriate Forum will be the competent court of civil jurisdiction. Ld. Forum was also of the view that number of parties is required to be added in this case.
The only point that requires to be determined is whether the order passed by the Ld. Form is sustainable in the eyes of law and also in the fact and circumstances of the present case. So far the question and jurisdiction of Forum is concerned we are unable to subscribe to the view of Ld. Forum in view of the fact that there is no dispute between the parties about the loan transaction between appellant and respondent. The respondent herein is carrying business in its capacity as bank in this place which is within the territorial jurisdiction of the Forum. It is also not disputed that the transaction between the appellant and respondent took place and appellant was granted loan of Rs. 87,500/- but the appellant claimed a waiver consequent to the revival package issued by the Govt. of India by its communication dated 30-03-2006, while respondent denied the same by relying on terms and conditions of the agreement entered between the parties.
Section 11 of the Act which has been quoted by the forum on the point of jurisdiction clearly stipulates that where the party carries on business or has a branch office. These clearly indicate that when the concern is carrying business or it has a branch office in a particular place the said concern may be impleaded as opposite party in the given circumstances of a particular case. So far as the present case is concerned the question of the jurisdiction was not even raised by the respondent. The question of jurisdiction was taken by the Forum on its own. The transaction between the appellant and respondent took place within the territorial jurisdiction of the Forum as because loan was prayed by the appellant at Port Blair to the respondent bank and the same was sanctioned here.
The Forum appears to have viewed the matter from a different perspective which in our view is not applicable in the present case. The role of the bank as service provider has been decided by the Supreme Court in Standard Chartered Bank Ltd., -Vs- B.N. Raman (Dr.) reported (2006) 5 SCC 727. The relevant portion of the judgement is reproduced below:-
Banking is a commercial function. “Banking” means acceptance, for the purpose of lending or investment of deposit of money from the public, repayable on demand or otherwise. The intention of the 1986 Act is to protect consumers of such services rendered by the Banks. Banks provide or render service / facility to its customer or even non-customers. Such customers are consumers within the meaning of Section 2 (1) (d) (ii) of the Act.
Under these circumstances we are not in a position to accept the findings of the Ld. Forum on this point.
The Ld. Forum was of the view that the matter is required to be decided before the civil court of competent jurisdiction. In this connection, it must be pointed out that under the provision of the Act speedy and summary remedy is provided to the consumer for any of the relief as provided under the Act. Complicated question of civil nature where elaborate evidence is to be considered may not be decided by the Forum. In this connection we shall refer to a decision of Supreme Court in Indian Medical Association -Vs- P.P. Shanta reported in (1995) 6 SCC 651. The Hon’ble Supreme Court held “The fora at various levels have been constituted under the Act with the avowed object of providing summary and speedy remedy in conformity with the principles of natural justice, taking care of such grievances as are amenable to their jurisdiction. The said fora have been established and conferred with the jurisdiction in addition to the conventional courts. The principal object sought to be achieved by establishing them is to relieve the conventional courts of their burden which is ever-increasing and whereat the disposal is delayed because of the complicated and detailed procedure which at times is accompanied by technicalities. Merely because recording of evidence is required, or some questions of fact and law arise which would need to be investigated and determined, cannot be a ground for shutting the doors of any forum under the Act to the person aggrieved”.
In Lucknow development authority –Vs- M. K. Gupta reported in (1994) 1 SCC 243 the Hon’ble Supreme Court held that the provision of the Act are to be constituted widely to give effect to the object and purpose of the Act. It is seen that Section 3 envisages that the provisions of the Act are in addition to and are not in derogation of any other law in force.
These being the position the finding of the District Forum that the matter should be agitated before Civil Court cannot be accept by us. So far as the present case is concerned the interpretation of the Circular and its applicability in the given Circumstances in this particular case will be crucial here to decide the issue. While interpreting the Circular plain and simple meaning of the words used in the Circular must be accepted. However, we deliberately refrain ourselves from entering into that question as we are of the view that matter is required to be remitted to Ld. Forum for fresh consideration under law. However, we are of the view that the Forum has jurisdiction to entertain the matter and to decide the case and there appears to be no complication in the matter for decision by the Civil Court.
So far as the present case is concerned we find from the LCR that the Forum did not allow the parties to adduce evidence, save and accept, admitting certain documents as exhibit. Exhibit 1 is Circular relied on by the appellant as well as by the respondent is the main evidence in this case. But lack of opportunities by the appellant to adduce evidence may have complicated the matter.
Moreover, in this case an application was filed to implead Shri. Swaminathan as co-complainant but the same was rejected by Ld. Forum as the same was not pressed by the Ld. Advocate for the appellant. The Forum did not take into account the recital in para 31 of complaint where it has been alleged that a sum of Rs.4668/- was deducted by the respondent from the pension account of the said person.
It appears from the record that the said person acted as guarantor in the agreement entered between appellant and respondent. The said person in our view was certainly an aggrieved party and also a necessary party for the purpose of this case. We are not entering into a debate as to the circumstances under which the petition was not pressed by the Ld. Advocate for the appellant. But we are of the view that the present case should have been heard and decided in presence of the said person. Ld. Forum has also stated that State and Director of Industries are necessary parties in this case. We are unable to accept the logic in the findings of the Ld. Forum. The service was provided by the respondent Bank, deficiency in service if any, was alleged to have been committed by the respondent Bank and the relief if any, is to be provided accordingly. Neither State nor Director of Industries can be necessary parties because nobody will go against the Circular not even the respondent Bank. Under these circumstances, we are of the view that the complaint should have been heard and decided by the Ld. Forum after considering all the aspects as mentioned above.
We are of the view that the matter is required to be remitted back to Ld. Forum to decide the matter afresh after giving an opportunity to the parties to adduce evidence. The appellant is also permitted to file necessary application to implead Shri. K. Swaminathan which shall be decided by Ld. Forum before proceeding to the case and recording evidence that may be adduced by the parties.
In the result, appeal succeeds.
Hence it is ordered:
Appeal is allowed on contest without cost. The judgement and order passed by Ld. Forum in connection with CD Case No. 5 of 2009 is hereby set aside. Appellant is permitted to file an application to implead Mr. K. Swaminathan and the Forum shall decide the application after hearing both the parties in the matter. The Forum shall also permit the parties to adduce evidence if they are willing to do so. The Forum shall arrive at fresh finding of the case after hearing argument that may be adduced by both the parties and it is expected that the matter shall be decided within the period of 45 days from the date which is fixed by us. Parties are directed to appear before the Ld. Forum on 23-03-2012. The Forum shall decide the case within a period of 45 days from 23-03-2012.
Let a copy of judgement alongwith LCR to be returned to Ld. Forum. Let copy of judgement be supplied to Ld. Advocate for the appellant and Ld. Advocate for respondent free of cost.
