AGARWAL DYEING INDUSTRIES vs Rajasthan Financial Corporation

MESSRS. Agarwal Dyeing Industries, Pali, has filed this complaint under Section 12 read with Section 17(1)(a) of the Consumer Protection Act, 1986 (''the Act'' herein) against Rajasthan Financial Corporation, Jaipur and two others on 1,0.1.90. In view of the conclusion to which we have arrived at, it is not necessary to state the facts in detail. Suffice it to state that the complainant has prayed that the opposite parties may be directed to pay Rs. 6,29,487 jointly or severally together with interest @ 18.5 per annum from the date of filing of the complaint until realisation. It may be stated that in Para 12 of the complaint, the complainant alleged that the opposite parties Nos. 1 to 3 may be asked to pay to the complainant the amount of interest realised on subsidy. The amount so mentioned is Rs. 56,355. Besides this, a sum of Rs. 1,16,232 has been claimed on the ground that the opposite parties have realised interest on interest on the subsidy and penal interest. Rs. 18,000/- have been claimed on account of the rebate which the complainant could not get. An amount of Rs. 14,400 has also been claimed on account of interest on the rebate amount from 8.1.89 to 8.1.90. The other particulars of the amounts are mentioned in Paras 12 and 14 of the complaint. Opposite party No. 1 filed the version of the case on 21.5.90 contesting the complaint. Some preliminary objections were raised about the maintainability of the complaint. The principal objections are : 1. that the complaint is not maintainable in regard to subsidy amount.

THAT the relationship between the complainant and the opposite parties was THAT of the financier and a loanee and such complaints cannot be entertained under the Consumer Protection Act. Both the parties have filed documents in support of the respective pleadings. In support of the complaint, affidavit of Mr. Ram Prakash Agarwal together with photo-stat copies of the documents were filed. 2. Mr. D.P. Pujari, learned Counsel for the opposite party No. 1 filed affidavit of Mr. N.L. Khunteta. The complaint was fixed for arguments on 13th of August, 1990. It was adjourned on THAT day and the next date fixed for arguments was 9.10.90. On THAT date, the learned Counsel for the opposite party No. 1 submitted photostat copies of the summons under Order 5 Rule 1 and 5 CPC issued to opposite party No. 3 in Civil Original Suit No. 41 of 1990, Plaint filed by the complainant against opposite party No. 1 and two others. Copy of show-cause notice in Civil Misc. Case No. 31 of 90, and application under Order 39 Rules 1 & 2 and 151 CPC in Civil Misc. Case No, 31 of 90 and affidavit of Ram Prakash Agarwal in support of the application. Learned Counsel for the opposite party No. 1, Mr. D.P. Pujari, argued THAT as the Civil Suit in respect of the matter has been instituted by the complainant in the Court of Munsif, Pali and as THAT suit is pending, the complaint should be dismissed. We heard learned Counsel for the complainant and opposite party No. 1 on the above question.

We have carefully considered the complaint and the reliefs sought by him. In the plaint which the complainant has filed in the Court of Munsif, Pali, the following reliefs have been sought against the defendants including opposite party No. 1 : Plaint is dated 12.2.90. Thus, the Civil Suit was instituted after the filing of the complaint on 10.1.90. The averments in the plaint are practically identical in regard to certain matters. Some of the reliefs claimed are practically the same. The complainant submitted an application under Order 39 Rules 1 & 2 and 151 CPC for issuing a temporary injunction. In that application, the complainant has prayed that a temporary injunction should be issued against the defendants restraining them that until the decision of the suit they should not interfere with his possession and that they should not initiate any proceedings under Sections 30 and 29 of the State Financial Corporation. In addition to this, a temporary injunction was also sought prohibiting them from realising any amount. Learned Counsel for the complainant contended that there is no bar in regard to the maintainability of the complaint and in his connection, he invited our attention to Section 3 of the Act which says that the provisions of the Act are in addition to and not in derogation of the provisions of any law for the time being in force. It is not necessary for us to make a probe in the matter in view of the various authoritative pronouncements made by the National Commission, New Delhi. It was held in Consumer Unity and Protection Centre v. Nadiad Municipality and others (Original Petition No. 7/88 decided on May 10,1989 by the National Commission) that where the matter is a sub judice before the High Court, it would not be appropriate that National Commission should go into the merits of the case. Before the National Commission there was a complaint under the Act. This question was re-examined in Dr. Indira Sanghi, Managing Director, HMT v. Karnataka State Electricity Board (Original Petition No. 4/88 decided on July 24,1989), wherein it was observed as under : "....We have unhesitatingly come to the conclusion that this petition has to fail on the short ground that the subject matter of the complaint put forward before this Commission is sub judice in the City Civil Court, Bangalore where the petitioner has filed a suit claiming practically the identical reliefs. On this short grounds, we decline to go into the merits of this case and reject this petition...."

AGAIN in Mr. M.L. Joseph v. State Bank of India, Trichur (Original Petition No. 12/89) decided on August 23,1989 by the National Commission, it was held that : - ".... .Having regard to the facts set out in the counter affidavit filed on behalf of the State Bank of India, we are of the view that this matter falls in the realms of Civil disputes which has to be settled by Civil Court. It is seen from the counter affidavit that a suit is pending in the Sub-Court, Trichur..."

Following respectfully, the aforesaid decisions we have taken a view in Bansilal Meena v. Rajasthan Financial Corporation and another (Complainant Case No. 57/89 decided on Nov. 7,1989) that when the matter is sub-judice before the Civil Court in respect of the complaint filed before the Commission, it will not be appropriate that the Commission should go into the merits of the complaint. It was observed by us as under : "We are of the opinion that this complaint should fail on the short ground that the subject matter of the complaint put forward by the complainant before this Commission is sub judice in the Court of Munsif Magistrate No. 2, Jaipur City, Jaipur, where the complainant has filed a suit claiming identical reliefs. On this short ground we decline to go into the merits of the case and reject the complaint"

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THESE decisions of the National Commission were relied on by us in Chairman, Rajasthan Housing Board, Jaipur and another v. Shri Syamlal Somani (Appeal No. 62 of 89) decided on December 18,1989 and Bansilal Meena v. Rajasthan Financial Corporation and another (Complaint Case No. 57/89) decided on November 7,1989. The crucial test that should be applied is whether a suit in respect of the subject matter is pending before a Civil Court or not. The reliefs which are claimed in the complaint as well as in the suit are practically identical or not. The aforesaid two tests are satisfied in this case. We are of opinion that this complaint should fail on the short ground that the subject matter of the complaint put forward by the complainant before this Commission is subjudice in the Court of Munsif, Pali where the complainant has filed suit No. 41 of 1990 claiming practically some common reliefs. On this short ground we decline to go into the merits of the complaint The complaint is rejected on the limited ground. In the circumstances of the case, the parties shall bear their respective costs. Complaint rejected.