Usha Enterprises vs SENIOR BRANCH MANAGER, STATE BANK OF INDIA

WHETHER the redressal agencies under the Act should strike formal issues and adjudicate upon them seriatim in the trial of consumer disputes ? This is inter-alia the significant question in this appeal.

IN this order of affirmance the facts merit notice with relative brevity. Sh, Mahesh Chand Gupta, a partner of M/s Usha Enterprises had preferred the complaint on the allegations that the said firm had opened an Account No. 42151 in its name on the 23rd of April, 1992, with the Panipat branch of the State Bank of INdia. The allegation was that the complainant had issued a cheque on the 27th of August, 1992 in favour of M/s Oriental Assurance Company Ltd. for the coverage of insurance risk for the vehicle belonging to the firm. The primal grievance was that the said cheque was not honoured by the bank despite the fact that there was a credit balance of Rs. 57006/- standing in the firm''s name on the date and the same was returned with the remarks "disputed case" to the INsurance Company. On enquiry from the bank the complainant was informed that an ex-partner of the firm had written a letter to them on the basis of which the account had been declared disputed. Aggrieved thereby the complaint was preferred for alleged deficiency in the banking service and the compensation of Rs. 35,000/- was sought. It would appear that since the Senior Branch Manager of the State Bank of India alone had been made a party without formally impleading the State Bank as well an appearance was put in by the then incumbent of the said office Sh. O.P. Gupta. In his written statement he stoutly controverted all the allegations of the complainant and took up the firm plea that the amount of the cheque had necessarily to be withheld because of a hot dispute betwixt the partners of the firm with regard thereto. It was pointed out that the matter had gone to such a length that the criminal proceedings had been initiated by one of the partners against the others. The technical pleas taken included the one that the complaint was not maintainable against him in person because the State Bank of India being a corporate body had not been arrayed an opposite party as such.

On the pleadings of the parties the District Forum proceeded to strick issues with meticulous technicality as under :- (1) Whether the respondent has failed to render services with respect to Account No. 42151 in the name of the firm and had thus caused loss to the complainant to the tune of Rs. 35000/-as alleged in para Nos. 1, 2 & 3 of the complaint ? OPP (2) Whether the complaint against respondent is not maintainable as it is not a juristic person ? OPR (3) Whether the complaint is vague, if so, to what effect ? OPR (4) Whether Mahesh Chand Gupta alone has no locus standi to file the complaint on behalf of M/s Us ha Enterprises ? OPR (5) Whether the complaint is bad for non-joiner of Krishan Bhardwaj other partner of the firm ? OPR (6) Whether Account No. 42151 was opened after 31.3.1992 on behalf of re-constituted firm M/s Usha Enterprises with two partners, if so, to what effect ? OPP (7) Relief.

IN support of his case the appellant chose to rest contents by tendering certain documents without even putting in his own affidavit evidence on the record. The respondent Sh. O.P. Gupta however stepped into the witness box and deposed on oath as RW1. The District Forum in its remarkably detailed and exhaustive order took up each issue separately and recorded clear cut findings thereon. It held on Issue No. 1 that the respondent had bona-fide stopped the payment of the cheque because of a raging dispute betwixt the three original partners of the firm and further no loss occurred to the complainant. On Issue No. 2 it was found that the complaint against the respondent Sh. O.P. Gupta the incumbent of the office of the Senior Branch Manager, Panipat in his individual capacity was not maintainable because the State Bank of INdia as such had not been arrayed as an opposite party therein. IN Issue No. 4 it was held that the complaint had been preferred by Mahesh Gupta in his individual capacity and he. had no locus standi because the actual consumer was the firm M/s Usha Enterprises. On Issue No. 5 the finding was that the case was one of non-joinder because Sh. Krishan Bhardwaj, a partner of the firm had not been impleaded in the proceedings. Lastly on Issue No. 6 it was held that the respondent-banker genuinely believed that there were serious disputes civil and criminal betwixt the two brother, partners on one side and Sh. Krishan Bhardwaj on the other and therefore he was entitled to stop the payment out of disputed Account No. 42151. INevitably the complaint was dismissed on the said findings. Mr. B.K. Jain, the learned Counsel for the appellant apparently attuned to the niceties of civil procedure had meticulously taken us to the findings recorded on each of the seven issues and sought to assail them separately. Not only that the submission was that some material issues had not infact been struck and the claim was that findings on each particular issue against the appellant be either reversed or the matter remanded for a fresh trial on additional issues.

ERE one appraises the aforesaid submission, the larger question that loomed forth is whether the District Forum was right in straying into the technicalities, of the Civil Procedure Code under Order XIV of the first schedule thereto for the settlement of issues and the determination of the suit on issues of law or on issues agreed upon within this nascent consumer jurisdiction. In addressing one self to this question, the larger approach thereto is not merely relevant, but perhaps paramount. The total perspective of the Consumer Protection Act would perhaps leaves no manner of doubt that the intent Parliament was to create a simple, summary and expeditious jurisdiction for the disposal of consumer disputes. The whole thrust of the legislation seems to be a scrupulous avoidance of technical procedure and the exclusion of all Court fees and the formalities of pleadings etc. Is one to set at naught the spirit of this beneficent legislation by bringing through the back door the intricacies of procedural road-blocks, which afflict the civil jurisdiction by a strained process of interpretation ? This indeed is the gut question. It is against the aforesaid back-drop that the pristine simplicity of procedure mandated by the Act deserves to be highlighted. In the compact statute, merely four Sections namely 11 to 14 pertaining to jurisdiction, the manner of preferring a complaint, the procedure for its trial and the findings to be recorded is all that Parliament has laid down for the redressal of consumer disputes. As would be shown hereafter, the technicalities of the Civil Procedure Code and the Indian Evidence Act have deliberately & expressly been kept at bay by necessary implication. Turning now to Section 13 which in terms governs the procedure and the trial of complaints, one is at once heartened by the refreshing simplicity thereof. All that is mandated is that on the receipt of a complaint, notice be issued and if in the reply the claim is disputed, then in the case to which Sub-section (1) applies, the procedure of testing a sample in an appropriate laboratory be followed and the matter be accordingly, determined. In the alternative where any such laboratory test is not directed, the mandate of the legislature is to forthwith settle the consumer dispute on the basis of evidence brought to its notice. It is obvious from the plain reading of this Section that no formality of pleadings is envisaged and in terms no settlement of issues formally is either mandated or even hinted at by implication.

THE same results seems to follow from the Consumer Protection Rules framed under the Act and one may refer with particularity to the Haryana Consumer Protection Rules, 1988 as amended from time to time within this jurisdiction. THEse rules again are a model of simplicity and the relevant one for the trial of complaints are merely Sub-rules (7) to (10) of Rule 7 It is unnecessary to delve into them deeply because it is writ large thereon that no formality of procedure is envisaged and not the least hint of any striking of issues is required. What is more is that under the rules the adjudication has to be finalised in a time frame of 90 to 150 days.

WHAT appears to be manifest on the larger conspectus becomes pointedly so when reference is made to Sub-section (4) of Section 13. Clauses (i) to (vi) thereof in detail mention that the District Forum shall have the powers as are vested in a Civil Court under the Code of Civil Procedure only in those matters. These are with regard to the summoning of witnesses, the discovery and production of document, the reception of evidence on affidavit, the requisition of the report of the appropriate laboratory and the issuing of a Commission for the examination of any witness. The residuary clauses is with regard to the matters" which may be prescribed and as already noticed no technicalities have been prescribed by the framers of the rules hereunder. It needs no great erudition to infer there from that barring the aforesaid provisions of the Code of Civil Procedure, the rest of it is by necessary implication excluded out of the ken of the consumer jurisdiction. It bears repetition that though the larger principle enjoined by considerations of equity, natural justice and fair play, where so embodied in the Code may be applied to the consumer jurisdiction, the technicalities of the Civil Procedure are certainly not to be imported within this field, through an interpretative process. One may now turn to Order XIV of the first schedule of the Civil Procedure Code, which mandates the settlement of issues. A reading of Rules 1 to 7 thereof would make it manifest that the same is embedded firmly on the formalities of pleadings, which are earlier enjoined by the Code in detail by orders VI, VII and VIII. It visualise material propositions of fact or law affirmed by one party and denied by the other and it is on that foundational base that the structure of the framing of formal issues is rested, here as in the consumer jurisdiction, there is admittedly no formality of pleadings, the striking of issues has indeed no foundation to be rested upon. It is therefore obvious that Order XIV of the first schedule is by necessary implication excluded from the consumer jurisdiction. Even otherwise in the absence of any statutory provision with regard to the formality of pleadings applying the provisions of Order XIV would be contrary to the sound canons of interpretation. Indeed it appears to us that in the face of both the express and implied exclusion of Order XIV in the consumer jurisdiction to import and apply the same therein by a process of construction, would invite the classic rebuke of the Lord Chancellor of England in the celebrated words that it would become "a naked usurpation of the legislative function in the thin guise of interpretation".

Before closing the discussion, it is perhaps equally instructive to refer to the definition of a complaint in Clause (c) of Section 2(1) and to Section 34 with regard to the findings which the redressal agencies are to arrive at in a complaint. This would make manifest that the core question in the consumer disputes in utlimately pristinely simple, and, therefore, excludes the technicalities of striking formal issues. In the case of sale of goods, the primal issue is whether the same are established to be defective and in the context of the hiring of services whether there is a deficiency therein. By virtue of the recent Amending Act of 1993, the issue of unfair trade practice or restrictive trade practice and goods which are hazardous to life and safety have now been brought within the fold of consumer jurisdiction. Of course, the issue of price in excess of that fixed by or under any law would be equally within this limited field wherein alone the consumer jurisdiction can have play.

IT is true that there is an acute paucity of formal procedure in the Act and the rules framed there under. But in this situation, the redressal agencies cannot in the classic words of Lord Denning in Seaford Court Estates Ltd. v. Asher, (1992 (2) KB 481) simply fold their hands and blame the draftsman of the Act and the rules. They must set to work on the constructive task of effectuating the true intention of Parliament in providing this beneficent jurisdiction. This Commission has taken the view that where the exigencies of the situation so mandate, it is necessary to devise the requisite procedure. IT would be wasteful to tread the same ground afresh because it is well covered in the following observations in I (1993) CPJ 46 ''A.P.J. School Faridabad v. M.K. Malhotra and Others'':- "Herein what prominently meets the eye is the fact of the acute paucity of procedural provisions both in the Act itself and the rules framed there under. IT bears repetition that Sections 12,13 and 14 of the Act and the relevant provisions of the Haryana Consumer Protection Rules leave wide gaps in the procedure necessary for the trial of a lis within the consumer jurisdiction. IT is in this situation of a virtual procedural vacuum that the redressal agencies have necessarily to fall back on the well-accepted rule of devising its own procedure in the absence of a clear prescription."

In meaningfully carrying the burden of devising their own procedure, the redressal agencies have to tinge it with liberality in the true spirit of the Act and not constrict it by hyper-technicality. It is an adage of the law that procedure is the hand-maiden of justice. This should not be easily allowed to become a road block in the administration thereof. It appears to us that the striking of formal issues under Order XIV of the Civil Procedure Code would introduce all the elements of complexity thereof, within the consumer jurisdiction, which perhaps would not only be pointless, but indeed may work public mischief by slowing down the expeditious pace of adjudication (as prescribed by the time frame of 90/150 days in the rules) both during the trial and the appellate and revisional levels. In the larger perspective, it has to be forcefully said that the consumer jurisprudence has to be tailored to its own peculiar needs and it should not be allowed to be ham-strung by the legalese of the innumerable procedural provisions of the Code of Civil Procedure. Informed jurisprudential opinion is now tilting to the view that the technicalities of the formal civil procedure have become a bane of the process in the Civil Courts of the country and this is not to be easily and unwittingly imported into the nascent consumer field.

EQUALLY one must also take the cue from the innumerable orders of the National Commission in its original jurisdiction when trying complaints. No decision of the said Commission could be brought to our notice in the myriads of complaints decided by it, since the very inception of the consumer jurisdiction, in which that Apex body had chosen to strike formal issues. This is so even in the context that the stakes of original trials at their level are financially at the highest and its pecuniary jurisdiction is unlimited. The precedents of the National Commission, therefore, clearly lend support to the view that the formal striking of issues is a thing alien to the expeditious and summary consumer jurisdiction. What has been said above in the context of the orders of the National Commission is equally more forcefully attracted with regard to those recorded by this Commission in the trial of numerous complaints before us. It can be stated without fear of contradiction that since the very inception of this Commission in 1989, there has never arisen the need or necessity of striking any formal issues in the complaints, even though complex or high financial stakes may have fallen for adjudication. In the wake of the aforesaid in-depth discussion, the answer to the question posed at the out-set has to be rendered in the negative. It is held that the redressal agencies under the Act should not strike formal issues or adjudicate upon them seriatum in the trial of consumer disputes.

ONCE it is held as above, it is obvious that one does not have to get enmeshed into the individual findings on the seven issues framed. The present case is also typical of the gut issue that was involved namely whether there was any deficiency in the Banking service extended out by the respondent-State Bank of India. On the said question, the District Forum in an exhaustive discussion, came to the conclusion that the respondent had the soundest foundational base for with-holding the payment of a cheque in a disputed account and had genuinely and bona-fide done so. Inevitably, in this situation, there would be no deficiency in services, which could possibly entitle relief to the complainant. It suffices to mention that the learned Counsel for the appellant could pose no meaningful challenge to this crucial finding arrived at by the District Forum. In a judgment of affirmance, we deem it wasteful to tread the same ground again and it suffices to say that for the reasons recorded by the District Forum, we would affirm its view that no default in the Banking service can be laid at the door of respondents.

THOUGH, the aforesaid finding concludes the matter against the appellant, we may also record that we agree with the conclusions of the District Forum on the other issues as well. For the fore-going reasons, this appeal must fail and hereby dismissed however, without any order as to costs. Appeal dismissed without costs.