DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PALAKKAD
Dated this the 09th day of January, 2023
Present : Sri.Vinay Menon V., President
: Smt.Vidya A., Member
: Sri.Krishnankutty N.K., Member Date of Filing: 17/09/2021
CC/150/2021
Gigitha,
Managing Partner,
M/s Sahil Auto Fuels, Indian Oil dealers,
Shekharipuram, Kalpathy, Palakkad – 678 003. - Complainant
(By Adv. V. Shanmughanandan)
Vs
The Manager,
HDFC Bank, Palakkad Branch,
N.J. Complex, College Road
Palakkad – 678 001 - Opposite party
(By Adv. K.A. Kailas)
O R D E R I N P R E L I M I N A R Y I S S U E
By Sri. Vinay Menon V., President
1. Abridged pleadings are that the complainant’s Firm is an account holder of the opposite party bank. In view of the high value transactions made in the account of the complainant, the complainant had sought the opposite parties to waive the cash handling charges at the time of opening of account on 27/06/2019. The opposite party had verbally agreed not to levy cash handling charges. But the opposite parties debited huge amounts contrary to the verbal assurances and agreement made between the complainant and the opposite party.
The complainant, aggrieved by the bank debiting amounts each month as cash handling charges, contrary to the oral assurances granted by the opposite party, filed a complaint before the Banking Ombudsman. The Ombudsman disposed the complaint, granting liberty to the complainant to the approach any other
Forum for redressal of the complainant’s grievance.
Relying thereon, this complaint is filed seeking return of the amounts debited by way of cash handling charges amounting to Rs. 92,618.18/- and for compensation and incidental and ancillary reliefs.
2. Opposite parties filed version contesting the complaint pleadings on grounds interalia addressing of the issues by the Banking Ombudsman.
3. Based on the pleadings, this Commission framed 6 issues, out of which the first issue is with regard to maintainability. The said issue is:
“1. Whether the complaint is barred by ‘Res Judicata’?“
The complaint was posted for hearing based on issues 1 and 2. Since issue no. 2 was only secondary to the above issue, it was not considered at the time of hearing on the question of Res judicata.
4. As stated supra, the complainant had filed a complaint before the Banking Ombudsman. Said complaint was numbered as CMS 202021015004832. Said complaint was disposed off on 17/02/2021. Copy of the said order is produced before this Commission.
5. Relevant portions of the order of the Banking Ombudsman closing the complainant’s complaint are reproduced herein below:
“2. We have carefully examined your complaint, bank’s submission, your feedback and other documents made available to this forum.
3. In this regard, HDFC Bank has submitted that you were provided with a copy of bank’s schedule of charges while opening the account and submitted material evidence to this forum which was duly signed by you. Hence, your allegation that bank made you sign blank documents before opening the account is not justified. Further, bank submitted that the letter submitted by you requesting the bank not to levy cash deposit charges was not favorably considered by the bank and no assurances, in writing, was provided to you by the bank, accepting your request. Hence, bank expressed its inability to refund the charges levied in the account.
4. In view of the foregoing, as no deficiency can be attributed to bank, we are constrained to treat your complaint as closed under Clause 13(a) of the Banking Ombudsman scheme 2006 (As amended upto July 01, 2017).
5. The Appeal option under the Scheme is not available for cases closed under the said Clause. However, you are at liberty to approach any other forum for redressal of your grievance, if you so desire.”
6. A perusal of the said order makes it abundantly clear that the dispute in both these proceedings are based on the same set of facts and same cause of action between the same parties. After considering the merits of the case, based on the pleadings and evidence adduced by the contesting parties, the Banking Ombudsman had arrived at a studied conclusion. On the basis of the said conclusion, the complaint was closed, on merits.
7. Banking Ombudsman is a Quasi Judicial Statutory Creature, just as this Commission. The law empowers and vest authority with the Ombudsman to adjudicate upon matters stated in the Statute. Thus vested with the authority, the Ombudsman had adjudicated upon the case of the complainant. The order passed by the Ombudsman is one passed legally by an authority vested with the authority to pass it. Hence order in CMS 202021015004832 dated 17/02/2021 is legally valid and binding on the parties thereto.
Eventhough this Commission is also vested with the authority to look into the facts and circumstances of the case and adjudicate thereon, we are refraining from doing so, as such an endeavour would be an abuse of the process of law. Any adjudication would also have the impact of sitting in appeal over the adjudicatory process and judicial findings arrived at by the Banking Ombudsman. Any contradicting findings would lead to an absurdity in the eye of law and would embarrass the process of law.
8. Complainant claims that since the Ombudsman has given a carte blanche to the complainant to seek remedy elsewhere, this Complaint is maintainable before this Commission. We beg to differ.
Complaints can be filed before this Commission in accordance with the provisions of the Consumer Protection Act, 2019 and the Rules and Regulation forming part thereof. Such complaints filed will be subject to the provisions of the Act, as well as the basic tenets of lex loci. Merely because the Banking Ombudsman made a statement (paragraph 5 of the order in CMS 202021015004832 dated 17/02/2021) will not confer any right upon the complainant to file a complaint before this Commission, nor a duty upon this Commission to adjudicate the dispute of the complainant in the given set of facts and circumstances of this case.
Not material or relevant to the facts and circumstance of the case, but we make an observation that the complainant had the option and recourse to file an Original Petition before the Hon’ble High Court of Kerala u/ Art. 227 of the Constitution of India, assailing the order of the Banking Ombudsman.
9. In the result, we hold that this Complaint is barred by Res Judicata. This Complaint is accordingly dismissed.
Parties are directed to suffer their respective costs.
Pronounced in open court on this the 09th day of January, 2023.
Sd/-
Vinay Menon V
President
Sd/-
Vidya.A
Member
Sd/- Krishnankutty N.K.
Member
NB : Parties are directed to take back all extra set of documents submitted in the proceedings in accordance with Regulation 20(5) of the Consumer Protection (Consumer Commission Procedure) Regulations, 2020 failing which they will be weeded out.
