Syndicate Bank vs SUPREME MEDICAL AGENCIES

IT is not necessary for us to mention the facts of the case as admittedly the complainant-respondent (hereinafter called the complainant), had filed a complaint before the District Consumer Disputes Redressal Forum, Ludhiana (hereinafter called the District Forum), regarding the same subject-matter regarding which he had filed a civil suit for declaration and mandatory injunction in the Court of Sh. B.R. Garg, PCS, Civil Judge (Junior Division), Ludhiana. Though the complainant unfortunately did not mention about the factum that before filing the complaint before the District Forum he had already filed a civil suit regarding the same matter in a Civil Court. This fact was brought into the notice by the opposite party when it was mentioned by the opposite party in Para No. 1 of the affidavit filed by Sh. A.K. Madan, Manager, Syndicate Bank, Ludhiana that the complainant had filed a civil suit for declaration and mandatory injunction regarding the same subject-matter, which was pending in the Court of Sh. B.R. Garg, PCS, Civil Judge, Junior Division, Ludhiana and was fixed for 3.9.1997. This factual position stated by the opposite party stands unrebutted by the complainant-respondent. Filing of a civil suit in a Civil Court regarding the same matter has been admitted by the complainant in his rejoinder filed before the District Forum. Though, it has been mentioned in the rejoinder that there was no bar to file the complaint and civil suit simultaneously. The opposite party contended before the District Forum that when the complainant had filed the civil suit before the Civil Court and was still pending, then he could not pursue the same remedy before the District Forum. The District Forum by repelling their contention has held that there was no bar to file a civil suit regarding the same matter, which has been agitated before the District Forum. He based his decision on the basis of an authority of the Hon''ble Supreme Court in case of V. Sasidharan v. Branch Manager, Syndicate Bank, III (1997) CPJ 8 (SC)=1997 ISJ (Banking) 343. The District Forum has inferred from that judgment that it has clearly been held by the Hon''ble Supreme Court that filing of civil suit was not bar for the Consumer Forums to decide the question of deficiency in rendering service.

IN our considered view, District Forum has not properly appreciated the law laid down by the Supreme Court in Sasidharan''s case (supra). That case arose from special leave petition arising from the order of the National Consumer Disputes Redressal Commission, New Delhi. The petitioner had taken a loan from the respondent-Bank on two accounts - one for a sum of Rs. 1,50,000/- and other for Rs. 3,00,000/-. The Bank had disbursed a sum of Rs. 1,47,000/- and the balance amount was not released to the petitioner. The petitioner''s case in the complaint laid before the District Forum was that due to deficiency in service, namely, failure to disburse the total amount contracted under the agreement, the petitioner could not carry on the business and discharge the obligations to pay the labour charges and, therefore, could not manufacture the products for which orders had been served. Since, there was slump in the market, they could not discharge the contract for repayment. It was in these circumstances that they had filed the complaint for damages in the sum of Rs. 9,50,000/-. The District Forum had dismissed the case and the National Commission had confirmed the dismissal of the complaint on the three grounds. First the petitioner had not complied with the conditions of the agreement of repayment, thereby they committed breach of the contract. They could not, therefore, complain of the deficiency of service. Another ground given was that the suit was filed by the Bank for recovery on the premises that the Tribunal could not go into that question. Thirdly, it was stated that in a letter addressed by the petitioners to the Bank that they had admitted that the failure to pay the instalments was due to slump in the market of the finished products and, therefore, they could not repay the loan. The Hon''ble Supreme Court found that there was not much force in the findings recorded by the Courts below on the first two grounds, the last ground merits acceptance. The relevant portion of the order of Hon''ble Supreme Court is reproduced as under : "Though we find that there is not much force in the findings recorded by the Courts below on the first two grounds, the last ground merits acceptance. If pursuant to the contract the Bank did not disburse the amount and if there was any resultant default in the payment on account thereof, that may be a defence open to the petitioner in the suit and also furnished right to complain of deficiency in service to seek redressal under the Consumer Protection Act. On that ground, the relief could not be rejected and the question was required to be gone into. Secondly, the mere filing of the suit for recovery of the amount may not be an absolute bar on the Commission to go into that question for the reason that the issue before the Civil Courts is not the deficiency in the service unless that is specifically raised as a defence in the suit. However, we think that is one of defaults in the payment of the instalments. Under those circumstances, merely filing of the suit by the Bank does not put a bar on the Tribunal to go into the merits in the complaint. Each case requires examination on the facts of the case. On the other hand, we find force in the reasoning given by the Tribunal on the third point. It is the petitioner''s case that they were unable to produce the goods and have them marketed to pay back the loan in instalments. It was not the case that it was due to deficiency in service. On the other hand, it is admitted that due to slump in the market they could not sell the goods, realise the price of the finished produce and pay back the loan to the Bank. That admission stands in their way to plead at the later stage that they suffered loss on account of the deficiency in service. Under those circumstances, we do not find any ground warranting interference."

In Sasidharan''s case (supra), it was not the complainant, but it was the Bank who had filed the suit in a Civil Court for recovery of the amount on the premises that the Tribunal could not go into that question. It was in the particular circumstances of the case that the Hon''ble Supreme Court observed that mere filing of the suit for recovery by the Bank of the amount may not be an absolute bar on the Commission to go into that question for the reasons that the issue before the Civil Court is not the deficiency in service unless that is specifically raised as a defence in the suit. It was in those circumstances that the Supreme Court held that mere filing of the suit by Bank did not put a bar on the FORA to go into the merits in the complaint and it has been specifically held by the Supreme Court that "Each case requires examination in the facts of the case".

The facts of the case in hand are thus entirely different from the facts mentioned in the case decided by the Hon''ble Supreme Court.

A question has oftenly been raised that whether a case has been pending in a Civil Court, can a party initiate an action on the same or similar facts before the Consumer Forum or the Commission. The National Commission has held in number of cases that if the facts of two cases - one pending in a Civil Court and the other before the Consumer Forum/Commission are specifically the same, the Consumer Forum or the Commission will not exercise their jurisdiction on the ground that the matter is subjudice before the ordinary Court. Some of the cases are being mentioned hereunder : (1) I (1991) CPJ 330 (NC)=1991 (1) CPR 1, M/s. Oswal Fine Arts v. M/s. H.M.T., Madras. (2) III (1998) CPJ 1 (NC), Branch Manager, Bank of Maharashtra v. M/s. Deepali Enterprises. In any case, it has been clearly held by the Hon''ble Supreme Court in Sasidharan''s case (supra), that each case requires examination on the facts of the case.

IN the case in hand, it was the complainant himself who had filed a civil suit before the Civil Court on the same matter and on the same cause of action, before filing the complaint before the District Forum. In these circumstances, parallel proceedings before the Civil Court and the District Forum could not go on. The right course for the District Forum was to shut his hand on the complaint and would have advised the complainant to pursue his remedy before the Civil Court. In these circumstances, we allow this appeal with costs, which are quantified as Rs. 500/- and consequently set aside the order dated 4.11.1997 of the District Forum. The complainant is at liberty to pursue his case already filed before the Civil Court. Appeal allowed with costs.