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Judgment
Muzaffar Hussain Attar, J.—Respondents filed a complaint before the Divisional Forum under the J & K Consumer Protection Act, 1987
(for short Act of 1987) alleging deficiency in service on part of the petitioner-bank. The complainant pleaded in the complaint that he had opened
account No. 9665/100 in Khanyar Branch of Srinagar J & K Bank Ltd. (for short Bank). It was further pleaded that bank is rendering services,
and complainant is consumer in terms of Act of 1987. The facts giving rise to grievances are projected in paras 3, 4, and 5 of the complaint which
are reproduced as under:
That the last and present balance of Rs. 2,02,626 (rupees two lacs, two thousand six hundred and twenty six) is lying in the Account of the
complainant in Khanyar Branch of J & K Bank Ltd under Account No. 9665/100 as on 14.01.1999. Photo stat copy of the same is placed as
Annexure-B with this complaint.
That under law the O.P is bound to return the money to the complainant along the permissible rate of interest on demand. But as ill luck would
have it the O.P No. 2 has time and again refused to pay the said amount to the petitioner/complainant for one pretext or the other presumably for
ulterior considerations.
That the complainant lastly approached the O.P No. 2 on 14.01.1999 @ 11 A.M for the payment of his deposited amount that the O.P
candidly kept the complainant waiting upto 4P.M. and finally showed his in-ability to make the payment of the deposited money to the tune
indicated above. The O.P No. 2 even used even an abusive and language against the complainant and transferred the limits of decency and forgot
his position and relation with the complainant who happened to be the client of O.P No. 1 and such a consumer of the service rendered by O.P.
The complainant has suffered a grave mental agony by the behavior meted out to him by O.P No. 2besides he has furnished the goalwill and image
of O.P. No. 1. But under all canons of law the O.P No. 1 is vicariously liable for all actions of its servants/office bearers and as such O.P. No. 1 is
responsible for all omissions and commission of O.P. No. II.
For sake of honesty, it may not be out of place to mention over here that the money deposited by the complainant with O.P is his hard earned
labour-money as a salaried person and considerable portion of it has come from the sale of ornaments of complainant's wife. This deposited
amount was needed by the complainant for the purchase of small chunk of land for the construction of his residential house. The complainant had
paid Rs. 15,000 (fifteen thousand) to a land broker for purchase of 15 Marias of land and had struck a final deal with him on full payment. But due
to the refusal of the O.P. No. 2 to pay the amount deposited by the complainant in J & K Bank Ltd. at Khanyar Branch under Acct. No.
9665/100 (Saving Acct.) as indicated above on 14.01.1999 has caused a loss of Rs. 15,000/- to the complainant besides a mental agony and has
also lowered down the image of the complainant in his society particularly before his kith and kin and more particularly before his own wife. The
mental agony and infraction of status and honour suffered by the complainant, at the hands of O.P. No. 2 cannot be even compensated by an
amount of Rs. 1 lac (one lac rupees) but the complainant leaves the same to the Hon'ble/Court/Forum to fix the minimum payable on quantum and
realize the same from O.P for payment to the complainant.
The complainant prayed for payment of Rs. 15,000/- which was allegedly paid by him as advance money to the land broker and also prayed
that petitioner be directed to pay an amount of Rs. 1/- lac as compensation for subjecting the complainant to undergo mental agony.
On notice, petitioner-bank appeared before the Divisional Forum and filed reply to the complaint. Perusal of para 5 of the reply reveals that on
9th Jan. 1999 some third person approached the bank with a withdrawal form for Rs. 2,02,500/- purported to have been drawn by the
complainant on his S.B Account for encashment, which was not accepted by the bank. It was advised that account holder/complainant, should
come personally with the withdrawal form as the payment through withdrawal form cannot be made to a third person. Para 5 is reproduced as
under:
The averments of para 5 are concocted and baseless. It is submitted that on 09.01.1999 in fact some third person had approached answering
opposite party No. 2 with a withdrawal form for Rs. 2,02,500/- purported to have been drawn by the complainant on his SB Account for
encashment which was not accepted by the answering opposite party and instead he was advised to ask the account holder/complainant to come
personally with the withdrawal form as the payment by means of a withdrawal form cannot be made to a third person. The complainant
approached the opposite party No. 2 at about 4 P.M. when the banking transactions had already closed and therefore, was after making him to
understand that it would not be a payment in due course asked to come on next working day to get payment. It is vehemently denied that any
abusive language was used by the opposite parties. The opposite parties, it is submitted, cannot think of transgressing the limits of decency against
its clients. The averments contained in this para appears to be fabricated and are denied vehemently.
The Divisional Forum considered the complaint and dismissed the same vide its order dated 1st of Oct. 2001, by recording the reasons.
Relevant portion of the judgment is reproduced as under:
In the complaint, the case of the complainant is that he approached the O.P. 2 on 14.01.1999, while-as in the Affidavit he deposes that he
approached the O.P. 2 on 08.01.1999. The complainant has furnished his- personal Affidavit prepared on 17.02.2000 and is totally silent about
the drawing of the amount of Rs. 2,02,500.00 on 01.03.1999 and regarding the same has remained mum in his Affidavit and has concealed the
material fact before this room.
The stand of the O.P. 2 is supported by the entry showing in the original ledger, certified copy of which is on record, which has presumption of
correctness under Banking Law. From the perusal of the records it appears that there is no deficiency of service on the part of the opposite party
and the complaint has no merits. It deserves to be dismissed. This Forum orders accordingly.
Feeling aggrieved of the said order, statutory appeal was filed in terms of Section 17 of the Act of 1987 before the State Commission. It was
pleaded in the memo of appeal that complainant approached the bank on 9th Jan. 1999 for encashment of the amount. The complainant waited for
long time for encashment of the amount but the Chief Manager of the concerned branch informed the complainant that until and unless the
complainant shall produce his father before the bank officials, the payment will not be released. Para 3 and 4 of memo of appeal are reproduced as
under:
That the respondent No. 2 transferred the said amounts to the saving account of the appellant and after the transfer of the said amount to the
saving account of the appellant, the appellant submitted a withdrawal form to the respondent No. 2 for encashment of an amount of Rs. 2,02,500/-
. The respondent No. 2 issued a Token to the appellant and advised the appellant to wait for some time for encashment of the amount of Rs.
2,02,500/-. The appellant was made to wait for more than two hours and thereafter the appellant was conveyed by the respondent No. 2 that due
to the deficiency of the cash, the withdrawal of the appellant will not be honoured and the bank is not in a position to release the amount of the
appellant and accordingly the appellant was advised by the respondent No. 2 to approach the bank concerned on the following day for
encashment of the said amount of Rs. 2,02,500/-
That accordingly, the appellant had to approach the office/branch of the respondent No. 2 again on 09.01.1999 for encashment/of the amount
of Rs. 2,02,500/-. The appellant again furnished a withdrawal form duly filled in for withdrawal of the said amount and waited for a long time for
encashment of the said amount, but suddenly the appellant was called upon by the Chief Manager of the respondent No. 2 and was conveyed that
until and unless the appellant shall produce his father before the bank officials of the respondent No. 2, the payment shall not be released to the
appellant as the father of the appellant is a defaulter of the bank.
It is worthwhile to mention over here that the appellant begged before the respondent No. 2 that since he is residing separately from his father, as
such he has nothing to do with his father. The appellant is in a bad need of money as he has purchased a piece/chank of land for construction of his
house and has to make the payment to the landlord, but no heed was paid towards the repeated requests of the appellant and finally the appellant
was compelled to approach the grievance cell/customer service cell of the respondent at residency road, Srinagar whereon the appellant made the
request to one Tasaduq Hussain, who took the matter with the respondent No. 2 and talked on phone and again the appellant was advised to
approach the respondent No. 2, but still then the amount of the appellant was not released.
The State Commission vide its judgment dated 13.06.2002 while setting aside the judgment of Divisional Forum, accepted the complaint of the
complainant and directed the bank to pay Rs. 15000/- as compensation and Rs. 3000/- as litigation charges within four weeks after which interest
at the rate of 9% was ordered to be charged on the whole amount. The bank is aggrieved of the State Commission's order, and filed this petition.
Heard ld. Counsel for parties. Considered the matter.
Ld counsel for the petitioner referred to pleadings of the complaint, order of the Divisional Forum and the pleadings contained in memo of
appeal and submitted that the complainant has projected altogether different story in complaint and memo of appeal and it is only on the basis of
these grounds urged in the memo of appeal the State Commission has passed the order. The ld. Counsel further submitted that no opportunity was
granted to the bank to controvert the stand of complainant. Ld counsel submitted that as conflicting stands have been taken by the complainant, the
only consequence in law should have been dismissal of the appeal. The ld. Counsel submitted that, however, appeal was allowed totally on new set
of pleadings, neither projected nor proved before the Divisional Forum.
Ld. Counsel for the respondents initially raised objection about the maintainability of the writ on the ground of availability of appeal, but after
referring to Section 15 and 17 of the Act of 1987, the Id counsel submitted that no appeal in the circumstances of the present case is permitted by
the Statute. The ld. Counsel, however, submitted that writ of certiorari cannot be issued in the facts and circumstances of the case. The ld. Counsel
in this regard referred to and relied upon Division Bench Judgment of this Court in case titled J & K State and Ors. v. Altaf Ahmed reported in
1996 SLJ 230.
Ld. Counsel also referred to facts of the case to show that the Divisional Forum had primarily dismissed the complaint on the ground that in the
affidavit filed by the complainant on 17th Feb. 2000, no mention was made that the amount has been withdrawn by complainant on 1st of March
1999. The learned Counsel while referring to the judgment of the State Commission indicated that this fact was brought to the notice of Divisional
Forum, and submitted that order passed by the Divisional forum was in these circumstances not legal. Ld counsel further submitted that in the
affidavit filed by the complainant on 17th Feb. 2000, graphic details were given and the said affidavit has not been controverted by the bank. The
Id counsel thus submitted that the judgment passed by the State Commission being legal and valid does not call for any interference.
The Divisional Forum is a Forum created under the Act of 1987. The complaint is to be filed in accordance with the mandate of Act of 1987
and the complainant has to disclose the facts on the basis of which the relief is sought in the complaint. All the facts necessary for disposal of the
complaint are to be pleaded in the complaint. Pleadings of all necessary facts in the complaint enables the opposite party to meet the same. If all
the facts are not mentioned in the complaint and some details are given at the appellate stage then the opposite party would suffer, because in the
appeal he cannot file his reply. Otherwise, also the basis for seeking relief has to be projected in the complaint by giving all necessary details. If all
facts are not given in the complaint and thereafter are taken in the subsequent proceedings, the opposite party would definitely suffer as he will be
not in a position to meet the grounds urged in the subsequent pleadings. This would tentamount to violating the rights of the opposite party to
defend himself and in consequence resulting in, infringement of principles underlying the Doctrine of Principles of Natural Justice. No party can be
condemned unheard or taken by surprise by omitting some facts in the original pleadings and projecting same at appellate stage.
The complaint filed in terms of Act of 1987 becomes basis for considering the claim of the complainant. The evidence in the shape of affidavits
has to be in tune and in accordance with the pleadings contained in the complaint and reply filed thereto. The complaint is to be decided on the
basis of the averments made in the complaint and statutory authority is not authorized to travel beyond the pleadings made in the complaint.
Looking back on the facts of this case, the petitioner has projected one set of facts in his complaint and a different set of facts in his appeal.
The complaint and also evidence in support thereof was to be considered on the basis of the averments made in the complaint. Any evidence lead
which does not synchronize with the pleadings of the complaint, cannot be looked into that is the basic principle of law of the pleadings and
recording of finding on such pleadings by Tribunals and Courts of law. The affidavit filed on 17th Feb 2000 as also in the memo of appeal
complainant projected a different story. In the complaint it is no where projected that the bank had asked the complainant to produce his father.
The story thus projected in the affidavit dated 17.2.2000 and the memo of appeal could have not become basis for passing of the impugned
judgment. May be that the complainant had disclosed the factum of withdrawal of amount on 1st of March 1999 but that would not change the
nature of the case.
The State Commission has not recorded any finding by giving reasons as to how and in which circumstances there was deficiency of service on
part of the bank.
In this case, the impugned judgment has been passed in violation of principles of natural justice and the judgment relied upon by the ld. Counsel
for the complainant thus support case of the petitioner. Otherwise also when error is apparent on the face of record, which error as discussed in
this judgment does appear on the face of the record, the high prerogative writ of certiorari can be issued to correct such error.
It appears that Divisional Forum and State Commission have committed errors of law in exercise of jurisdiction by not considering the
complaint and the material/evidence produced in support thereof, in accordance with the established principles of law. No reference is made to
material available on record and no legal reason is recorded to accept/reject the same.
For the above stated reasons this petition succeeds. By issuance of writ of certiorari, the impugned judgment passed by respondent No. 1 is
quashed. The order passed by Divisional Forum also will not survive and by issuance of writ of certiorari order of the Divisional Forum which
forms annexure C of the petition is also quashed. The Divisional forum is directed to re-consider the whole matter in view of the observations made
in this judgment.
At request of ld. Counsel for parties made through their counsel, they will appear before Divisional Forum on 2 of Feb. 2010.