BANK OF INDIA vs SADHU RAM GUPTA

IN these two appeals Nos. 3 of 1992and 4of 1992 in which Bank of INdia, Bathinda Branch, is the appellant, as common question arises for consideration, they are disposed of by a common order. By these appeals, the opposite party- appellant questions the legality and correctness of the orders dated 16.12.1991 passed by the District Forum, Bathinda, in complaints Nos. 88 and 89 of 1991.

IN view of the short point involved, it is not necessary to recount the facts in detail. Suffice it to state that the complainant-respondent had filed complaint No. 88 of 1991 purporting to be under Section 12 of the Consumer Protection Act, 1986 (for short, the Act) against the opposite party praying that the latter be directed to release the amount of F.D.R. No. 16/344 to the complainant alongwith interest and credit the same to his account in that bank and also be awarded compensation of Rs. 25,000/- for the harassment and business loss suffered by him. The opposite party-appellant contested the complaint on various grounds by filing the version of the case dated 21.10.1991. Besides raising the question of jurisdiction of the District Forum to entertain the complaint, in the additional plea it was submitted by the opposite party that it had filed a suit for the recovery of Rs. 1,18,500/- against M/s T.R. Medicals, Bathinda in the Court of Sub Judge First Class, Bathinda and the complainant Shri Sadhu Ram Gupta being the guarantor for the payment of loan on behalf of the said firm, was made a party in that suit and that the said suit was fixed for 25.1.1992 for recording evidence of the plaintiff (Opposite Party in the complaint). It was also alleged by the opposite party that since the property pledged by the loanees could not have satisfied the decree passed in favour of the opposite party (Bank of INdia), the latter submitted an application under Order 38 Rule 5, C.P.C. for the attachment of the complainant''s two fixed deposit receipts No. 16/346and 16/345 for Rs. 32141.95 and Rs. 65000/- respectively or otherwise he may be directed to furnish security to the tune of Rs. 1,50,000/- so that the Bank of INdia may not suffer any loss in case the suit was decreed in its favour. At this stage, it is pertinent to mention here that a rejoinder was filed by Sadhu Ram Gupta complainant in that case and the fact of institution of the suit was admitted by him. It was, however, submitted by him in that suit that M/s T.R. Medicals, Bathinda had taken the loan but the complain- ant was not responsible to pay anything on behalf of the said firm. It was further submitted by the complainant that the institution of the suit by the opposite party did not preclude the complainant from pursuing the remedy under the Act. The District Forum, Bathinda tried the com- plaint and granted relief to the complainant vide its order dated 16.12.1991. The District Forum had observed : - "If the Bank does not comply with the demand of the consumer with regard to repayment of the amount due to him under the F.D.R. It a mounts to deficiency in service within the meaning of Section 2(g) of the Consumer Protection Act, 1986, and the complainant becomes a consumer as defined in Section 2(d) of the said Act."

"The Counsel for the respondent further submitted that the said matter is pending in the Civil Court and is sub-judice and, therefore, this Forum has no power to give any direction. In our view the matter is not sub-judice because in the civil suit the point for determination is whether the complainant stood guarantor with the bank for repayment of any advance allegedly given to M/s T.R. Medicals. That point is not for adjudication before us. We are only to see whether there is deficiency in service by the Bank."

In consequence, the District Forum directed the Bank of India to release the amount of the F.D.Rs. alongwith interest and also awarded Rs. 1,000/- as compensation to the complainant for the delay and inconvenience caused to the complainant by the non-encashment of the F.D.Rs. by the respondent.

Being aggrieved, the opposite party-appellant has filed this appeal as aforesaid. Mr. B.S. Bhatia, learned Counsel for the opposite party has vehemently argued before us that the suit for the recovery of Rs. 1,18,500/- against M/s T.R. Medicals Bathinda is still pending before the Sub Judge First Class, Bathinda and the complainant being the guarantor for the payment of the loan on behalf of the said firm, is a party to the suit in respect of the aforesaid two F.D.Rs. The learned Counsel has also referred us to an application under Order 38, Rule 5, C.P.C. filed by the opposite party on 30.8.1991 wherein it has been prayed that the F.D.Rs. of the complainant be attached. The learned Counsel has urged that the complainant had suppressed the material fact in the complaint that he had executed a letter of appropriation on 8.9.1990 wherein he had given the right to the Bank of India to set off the credit balance due to the complainant on ''Term Deposits'' against the complainant''s liability as a guarantor and that the subject matter of the complaint as well as the suit being identical, the District Forum had no jurisdiction to try the complaint.

ON the other hand, the learned Counsel for the complainant-respondent has submitted that the reliefs claimed by his client could be granted under Section 14(1) of the Act and there is no bar in regard to the maintainability of the complaint. After hearing the learned Counsel for the parties and considering the record with requisite care, we find that there is substance in the contention of the learned Counsel for the opposite party - appellant. It was held by the National Commission in Consumer Unity and Protection Centre v. Nadiad Municipality and Others (Original Petition No. 7/88 decided on May 10, 1989) that where the matter is sub-judice before the High Court it would not be appropriate that the National Commission should go into the merits of the case. This question was re-examined in Dr. Indira Sanghi Managing Director of H.M.T. v. Karnataka State Electricity Board (Original Petition No. 4/88 decided on July 24, 1989), the National Commission observed as under : "We have unhesitatingly come to the conclusion that 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 ground, we decline to go into the merits of this case and reject this petition."

THE District Forum had completely gone wrong when it held in the impugned order that the matter was not sub-judice because in the civil suit, the point for determination was whether the complainant stood guar- antor with the bank for repayment of any advance allegedly given to M/s T.R. Medicals and that point was not for adjudication before the Forum. A perusal of copy of the plaint as well as the application under Order 38, Rule 5, C.P.C. filed before the Sub Judge First Class, Bathinda clearly indicates that the subject matter of the complaint as well as the suit is identical. In the suit, the opposite party had prayed for the attachment of the aforementioned F.D.Rs. of the complainant. THE reliefs which were claimed in the complaint as well as the suit being substantially the same, the District Forum could not have gone into the merits of the case and granted the reliefs to the complainant. THE order passed by the District Forum is completely contrary to the principles laid down by the National Commission in the aforesaid decisions. In the complaint, the complainant had prayed for the release of the amounts of the aforesaid two Fixed Deposit Receipts. The contention of the learned Counsel for the State Bank of India was that the complainant was not entitled to the amounts of the F.D.Rs. as the bank was entitled to appropriate the amounts due to the complain- ant being a guarantor for the amounts due to M/s T.R. Medicals. Further, the document Annexure ''A'' filed by the opposite party before the District Forum shows that there was an agreement entered into between the com plainant and the Bank of India, Bathinda Branch on 8.9.1990 wherein it is clearly stated as follows : - "1. I/we hereby confirm and agree that in addition to your right of general lien which you have as banker, you shall also have the right at any time and without prior notice to me/us to set off any credit balances due to me/us whether in my/our Current/Savings Account or in respect of moneys kept by me/us on term deposit or deposits with- drawable after notice (hereinafter referred to collectively as "term deposits") at any of your branches, against the outstanding debit balance of my/our loan/overdraft/ Cash Credit or other advance account/s with you or against any liability incurred or to be incurred by me/us to you whether under or in respect of guarantees or bills or otherwise howsoever and whether such liability be actual or contingent. 2. I/We also authorize you to withdraw and appropriate the amounts of any such bal- ances of term deposits and also the interest accruing thereon, before the due date thereof, for satisfaction of the amounts due in my/our said various advance accounts with you and/or in satisfaction of my/our other liabilities (actual or contingent) to you, without any prior reference or notice to me/us."

We find substance in the contention of the learned Counsel for the appellant. In the face of the undertaking given by the complainant, it is not open to him to contend that the amounts due on the fixed deposits must be refunded to him. In this state of affairs, there is no default or deficiency of service on the part of the bank for not releasing the'' amounts of the F.D.Rs. to the complainant.

FOR the aforesaid reasons, we accept the appeals, set aside the orders of the District FORum and dismiss the complaints. However, we leave the parties to bear their own costs. Appeal allowed.