U.RAJENDRAN vs TAMILNADU MERCANTILE BANK LTD.

THE facts leading to this appeal are that there was a Muthukuvial Deposit No. 276 with the Calcutta Branch of the respondent Bank in the joint names of minors R. Mathav Rajan, R. Yazhini and A. Baskaran due for payment on 8.12.1987 for Rs. 10,900/-. There was also a Cash Certificate No. 5 in the above joint names and it was due for payment on 8.12.1988 for Rs. 100/-. There was another Cash Certificate No. 9 in the joint names of minor R. Mathav Rajan and A. Baskaran which was due for payment on 8.12.1987 for Rs. 500/-. There was yet another Cash Certificate No. 10 in the joint names of R. Yazhini (minor) and A. Baskaran which was due for payment for Rs. 500/- on 8.12.1988. The appellant U. Rajendran, who was complainant before the State Commission, Madras is father of the above named minors and brother-in-law of A. Baskaran. According to the allegations in the complaint, when the said deposits became due for payment, the complainant and Shri A. Baskaran made a joint demand to pay the entire amount to the complainant. In spite of numerous letters, demands on phone and by telegrams, the amount was not paid by the Bank. On the other hand, the Bank informed Shri A. Baskaran that the repayment was withheld pending one criminal enquiry against him. It may be mentioned here that Shri A. Baskaran was earlier employed with Calcutta branch of the respondent-Bank and loss had occurred in that branch. (Complaint against him and others was filed under various sections of Indian Penal Code and Prevention of Corruption Act. The investigation was later on taken over by C.B.I, and it is still pending). Shri A. Baskaran and the complainant jointly filed a civil suit for the recovery of the Muthukuvial Deposit. It was filed by the joint depositors, During the pendency of that suit, the complainant filed the complaint, which has given rise to this appeal, under the Consumer Protection Act, 1986 before the State Commission, Madras against the Bank claiming the maturity amounts of the above deposit and the cash certificates with interest at the rate of 18 per cent per annum, compounded quarterly from the date of maturity till payment. Compensation in the sum of Rs. 1,20,000/- was also claimed for the suffering and losses alleged to have been inflicted upon him by the willful, fraudulent and negligent acts of the Bank.

IT may be mentioned here that the above referred civil suit was decreed for the disbursement of the deposit amount together with interest at the rate of 9 per cent per annum from the date of maturity of the deposit till payment before the filing of the complaint before the State Commission. The decree has since been satisfied by the Bank. The complaint was resisted by the opposite party on various preliminary grounds. It is not necessary to refer to them in detail. Suffice it to say that the material pleas were that the claim for damages was barred under Order 2, Rule 2, Civil Procedure Code as no such claim was made by the claimant in the suit filed by him and that the claimant had chosen one forum i.e. Civil Court for obtaining relief and therefore, in respect of the same cause of action, he can not choose another forum particularly when ''interest'' was awarded by the Civil Court in lieu of damage. On merits it was pleaded by the Bank that they acted with perfect bonafides in the matter of disbursement of the deposit amount and no negligence was involved in the matter. They made reference to the loss caused in one of its branches in which Shri A. Baskaran, one of the depositors, was employed and to the C.B.I, enquiry pending against him and others. According to them they had a very genuine and bonafide reason for withholding the payment as they were in dilemma whether it would be proper or not to disburse the amount during the pendency of the enquiry.

THE State Commission held that in the civil suit the complainant ought to have claimed compensation for non-payment of the matured amount as it formed part of the cause of action and he can not take advantage of the forum to do so and seek the jurisdiction of this Forum to claim compensation. For arriving at that conclusion reliance was placed upon Order 2, Rule 2, Civil Procedure Code. Therefore the claim in respect of the fixed deposit of Rs. 10,900/- and compensation for nonpayment was held not maintainable about the Cash Certificates it was remarked: In respect of the other three amounts, it is admitted that these amounts have been paid on 1.4.1991, and a joint memo has been filed by the Counsel on both sides. The memo is to following effects: "The Tamilnadu Mercantile Bank Ltd;, the Opposite Party in the above complaint agrees to pay on the three deposits for Rs. 500/-, Rs. 500/- and Rs. 100/- interest at the rate of 12 per cent per annum from 8.12.1987 and 8.12.1988 respectively until 31st March, 1991. The complaint was decided accordingly with a direction to the opposite party to pay interest as per the joint memo.

FEELING aggrieved of that Order, the claimant has filed this First Appeal. The claimant vehemently argued that Order 2, Rule 2, Civil Procedure Code has not been made applicable to the proceedings before the various forums constituted under the Consumer Protection Act, 1986 and therefore, the State Commission was not right in relying upon that provision. We do not think it necessary to go into that argument in detail. Section 3 of the said Act lays down that the provisions of the Act are in addition to and not in derogation of the provisions of any other law for the time being in force. Thus there were two remedies open to the claimant. He could have filed a civil suit for the recovery of the amount or he could have instituted proceedings under the Act of 1986. The complainant chose the first referred remedy and filed a civil suit for the recovery of the Muthukuvial Deposit which was decreed. For delayed payment by the Bank, he has been allowed interest. He can not be now permitted to institute proceedings under the Act of 1986 about that deposit and for compensation about non-payment on maturity. If he is allowed to do so, it will amount to abuse of the process of law. A party can not be permitted to harass the opponent twice for the same cause of action.

THE complainant further argued that the State Commission has wrongly remarked that the amount of Cash Certificates had been paid on 1.4.1991. That mistake is immaterial. As is clear from the counter filed by the opposite party to the memo of appeal, the maturity amount of those Cash Certificates with interest as agreed has since been paid to the complainant by the Bank.

BEFORE parting with this Order we may mention here that we are not satisfied with the conduct of the Bank. If they were in doubt whether the deposit could be repaid to the claimant and Shri A. Baskaran pending C.B.I. enquiry, they could have referred the matter to the C.B.I. Officers for clarification. They should not have delayed the matter for such a long time. In the light of our observations made in para No. 6, we dismiss the present appeal but make no Order for costs.