Having respectfully gone through the cited decisions, in
my opinion, the State/National Forums have trappings of
Courts and are adjudicatory bodies, though not in strict sense
Courts, which decide and settle the consumers disputes and
matter connected therewith by adhering to the provisions of
Civil Procedure Code and these consumer Courts arejudiciary set up by the government to protect the consumer
rights and would fall within the meaning of Section 3 of Indian
Evidence Act.
It is admitted fact that refund vouchers were similar to
Cheques and like Cheque books, refund vouchers printed in
the specialized format were given by the defendant bank to the
plaintiff for issuance thereof as is reflected in the answer to
question No. 21 and 25 given by the sole witness of the
plaintiff. In the particular period of time since there was no
system of payment of Cheque at par in all the branches of the
country, instrument of refund voucher payable at par all the
branches in the country was introduced by the defendant bank
and such facility was given to the plaintiff by the arrangement.
It is well settled that in order to decide whether a
decision in an earlier litigation operates as res judicata, the
Court must look at the nature of the litigation, what were the
issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of
the parties and the evidence-on-record and the judgments
rendered by the said forums, in unequivocal term it is clear
that the issues involved in this suit were substantially the
issues before the State Consumer Disputes Redressal
Commission which stood decided by the judgment dated31.3.2008 which attained its finality with the merger of
judgment and order of the National Consumer Dispute
Redressal Commission.
In the context of the foregoing discussions, on critical
examination of the judgments of the said forums and
considering the nature of the litigation and the issues raised
and decided therein being similar to the facts and
circumstances of the instant case, the issues now cannot be
reopened and re-agitated as in my opinion the suit is barred by
the principle of res judicata within the meaning of Section 11 of
Code of Civil Procedure.
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present: The Hon’ble Justice Shivakant Prasad
CS 175 of 2010
M/s. Kesoram Industries Limited V Allahabad Bank
Judgment on : 03.04.2017
This is a suit for declaration and injunction.
The plaintiff’s case, in brief, is that the plaintiff is a
company incorporated under the Companies Act and carries on
business, inter alia, in retail sale of fabrics and other items.
The defendant is a nationalized bank and carries on banking
business.
Plaintiff issued Refund Warrants to its customers and the
customers could encash and obtain refund which the plaintiff
agreed to pay to them within six months of the date of issuancethereof and made arrangement with the defendant bank and on
14.1.1984 opened with the Stephen House Branch of the
defendant Bank, a cash credit account bearing no. 400016
with a limit of Rs. 9 Crores and also a customer Refund
Account No. 404 in the name of the customers of the plaintiff
(referred to as the ROB A/c. No. 404) to facilitate smooth
encashment of such refund vouchers which would be encashed
by all Branches of the defendant bank within the validity
period of six months and thereafter, the full particulars of such
payment would be obtained by the defendant bank and such
particulars would be supplied to the plaintiff for reconciliation
and after reconciliation the amount paid by way of such
encashment of the refund vouchers would be debited in the
said cash credit account of the plaintiff.
The defendant bank through its Stephen House Branch,
Kolkata sent regular statements to the plaintiff with details of
the transactions and copies of the encashed warrants/
vouchers disclosing the names of the payees and date and
amount of payment, so that the plaintiff could verify and
reconcile its own accounts.
By a letter dated 13.02.1997 the defendant bank called
upon the plaintiff not to issue any further refund voucher. After
28.2.1997 the plaintiff stopped issuing any refund voucher.
The defendant bank by its letter dated 17.3.1997 wantedconfirmation that no refund voucher was issued after
28.02.1997 and such confirmation was immediately given by
the plaintiff but the defendant arbitrarily debited the said ROB
A/c. No. 404 to the staggering amount of Rs. 45,55,257.45p in
or about 2000 showing a debit balance of Rs. 40,61,232.67p.
It is further contended that the defendant bank has not
produced any evidence of payment of any sum from the said
account after 31.8.1997 despite request by the plaintiff
contrary to the guidelines given by the Reserve Bank of India
and the provisions of the Banking Regulation Act, 1949.
Accordingly, the plaintiff has prayed for declaration that
any debit balance shown by the defendant in the ROB A/c. No.
404 in its Stephen House Branch is illegal, void and not
binding on the plaintiff and also prayed for injunction directing
the defendant to transfer the cash credit A/c. No. 400016 of
the plaintiff maintained in Stephen House Branch being a sum
of Rs. 4,94,024.80 and to give effect as on 19.5.1999 and for
decree of Rs. 1,20,00,000/-.
Defendant has contested the suit contending inter alia,
that the suit is not maintainable as barred by the law of
limitation and the principle of res-judicata inasmuch as for the
same allegations and contentions as contained in the plaint the
plaintiff made applications claiming the same reliefs before the
State Commission which was dismissed on March 31, 2008and appeal before National Consumer Disputes Redressal
Commission was dismissed on January 12, 2009 and so also
the review application dismissed on 27th August, 2009 finding
no error apparent on the face of record against which Special
Leave Petition to the Hon’ble Supreme Court was also
dismissed on December 7, 2000. Then, plaintiff filed Writ
Petition in the High Court at Delhi against the orders of
January 12, 2009 and August 27, 2009 of National Consumer
Disputes Redressal Commission, New Delhi.
Specific contention of the defendant Bank is that at the
request of the plaintiff, the ROB A/c. No. 404 was duly closed
in due time. The Certificate dated April 20, 1999 and the
statement of account showing credit balance of Rs.
4,94,024.80p in the ROB A/c. No. 404 as on March 31, 1999
was the correct position of the transactions and in debiting
ROB A/c. No. 404 of Rs. 45,55,275.45p, there was a debit
balance of Rs. 40,61,232.67p.
The particulars of the number of refund vouchers or their
date of issue or their date of validity were not informed to the
defendant.
Hence, it has been prayed that the suit be dismissed as
barred by the law of limitation and as res-judicata.On the above pleadings following issues are framed for
determination of the disputes between the parties:
1) Is the suit maintainable in its present form and prayer?
2) Is the suit barred by limitation?
3) Is the suit barred by principles of res judicata?
4) Whether the plaintiff liable to pay any sum or sums to
the defendant bank in respect of ROB Account No. 404
as claimed by the defendant or otherwise?
5) Whether the plaintiff is entitled to get the sum of Rs.
4,94,024.80p. transferred to its cash credit Account
No. 400016 or any other account in favour of the
plaintiff as if the same was made on 31.3.1999, the
date on which the existence of such credit balance is
certified by the defendant bank will all consequential
resulting benefits viz. interest thereof?
6) Whether the debit balance shown by the defendant in
the said ROB Account No. 404 in its Stephen House
Branch after 28.02.1997 is illegal, void and not binding
on the plaintiff?
7) Is there any sum realizable by the defendant from the
plaintiff?
8) Whether the plaintiff is entitled to a decree of
permanent injunction restraining the defendant bank
and its servants, officers or agents from enforcing orrealizing from the plaintiff any sum or part thereof in
respect of the said ROB Account No. 404 or taking any
steps against the plaintiff in any way whatsoever in
respect of the said ROB Account?
9) To what relief or reliefs, if any, is the plaintiff entitled?
Decision with reasons
Issue Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9:
All the above issues being interlinked are taken up
together for the sake of convenience in discussion and for
brevity.
Addressing the issues relating to law of limitation and
applicability of principles of res judicata. Mr. Arindam
Mukherjee, learned Advocate for the defendant submitted that
suit is barred by limitation because the cause of action in the
suit arose in 2000, when a certificate dated 07.04.2000 was
issued by the defendant claiming a debit balance of over Rs.
40,00,000/- to realize over Rs. 45,00,000/- from the plaintiff
after adjusting Rs. 5,00,000/- from the debit balance of Rs.
45,00,000/- whereas the suit filed was on 07.7.2010. And as
the issue involved in the suit was decided by the State and
National Dispute Redressal Forums, the suit is barred by
principles of res judicata and as such the suit is not
maintainable.Per contra, Ms. Asha Gourisaria Gutgutia, learned
Advocate appearing for the plaintiff submitted that the cause of
action to institute this suit arose firstly on 01.4.2000 when the
defendant for the first time claimed a debit balance in the said
ROB A/c. 404. Since the defendant is continuously increasing
this debit amount as stated hereinabove, each subsequent
addition to this debit balance constitute a part of cause of
action, as each addition is made within 31st March every year,
the claim of the plaintiff is not barred by limitation.
Ms. Gutgutia fortified her arguments, the suit was filed
in 2010, almost 10 years later, but the suit is not barred by
limitation on two scores. Firstly, it is settled principle of law
that claims of a bank is never barred by limitation as accrued
interest is periodically added to the principal. In this case, the
claim of the defendant bank has similarly increased over a
passage of time and the defendant has never ceased to make a
demand of its alleged dues. Each demand made by the
defendant constitutes a fresh cause of action and/or a
continuous cause of action, and the suit is based on this
continuous cause of action because the defendant bank has
continually made claims that there was a debit balance.
I am unable to agree with the first limb of submission
made by Ms. Gutgutia that it is settled law, claims of a bank is
never barred by limitation as accrued interest is periodicallyadded to the principal because in this case the defendant Bank
issued a certificate dated 07.4.2000 that the balance standing
at debit in the ROB A/c. 404 of the plaintiff as on 31.3.2000
was Rs. 40,61,232.67 and there is no claim as such made
showing continuous and recurring interest thereon. So, the
plaintiff had cause of action to sue the defendant when the
plaintiff by its letter dated 10.4.2000 requested the defendant
to reverse the wrong debit of Rs. 45,55,257.47 and close the
A/c. by transferring the resultant credit balance of Rs.
4,94,024.80 to C/C. A/c. 400016 disputing the account not
being operational since last two years.
Secondly, it is submitted that the plaintiff had
approached the different authorities under the Consumer
Protection Act, 1986 and had even moved the Hon’ble Supreme
Court which fact is well reflected from paragraph 12 of the
written statement to the effect that the plaintiff wrongly
invoked the jurisdiction of the State Consumer Disputes
Redressal Forum under the Consumer Protection Act, 1986
(hereinafter called as the ‘said Act’). In that context, it is
argued that the period consumed in the proceeding before the
various forums under the said Act, has to be excluded under
the provisions of Section 14 read with Section 15 of the
Limitation Act, the suit cannot be said to be barred by
limitation.I find on evidence that the orders collectively marked
Exhibit-F reflect that the claim of the plaintiff was dismissed by
an order dated 31.3.2008 of the State Consumer Disputes
Redressal Commission, West Bengal in SC Case No.
41/0/2005 and the First Appeal being No. 248 of 2008 before
the National Consumer Disputes Redressal Commission, New
Delhi was dismissed on 12.01.2009 and the review application
of the said appellate order and subsequent special leave
petition to the Hon’ble Supreme Court of India were dismissed
on 27.8.2009 and on 07.12.2009 respectively. The plaintiff also
filed a writ petition in the High Court at Delhi being aggrieved
by the orders dated 12.01.2009 and 27.8.2009 passed by
National Consumer Disputes Redressal Commission, New Delhi
which also stood dismissed.
Agreeing with the second limb of the submission,
therefore, the period consumed in the aforesaid proceedings
can be reckoned in calculation of the period of limitation of
three years in filing the present suit provided, findings in the
judgment and the order of the said fora are not barring the
present suit to re-agitate the similar prayer and relief by
application of principles of res judicata as embodied in Section
11 of Civil Procedure Code.
In this context, Ms. Gutgutia submitted that the State or
National Consumer Disputes Redressal Commission are notCourts, there can be no question of res judicata barring
institution of this suit.
Now, this Court is called upon to consider as to
applicability of the principles of res judicata under Section 11
of the CPC in the context of the pertinent question as to
whether the said State Forum or National Forum are Courts
and whether the decisions and findings before the various fora
under the said Act would be a bar for this Court to give relief in
the present suit as barred by principle of res judicata.
Ms. Gutgutia adverted my attention to the averments in
paragraph 12 of the written statement and contended that
there is an admission on the part of the defendant that the
plaintiff had wrongly invoked the jurisdiction of the forum, the
defendant bank is, therefore, estopped from contending that
the various forums under the said Act had proper jurisdiction.
It is pointed out relating to a settled principle of law that if any
party proceeds with due diligence before a forum, which lacks
jurisdiction, then such a proceeding cannot operate as a res
judicata. This aspect clearly takes the scope of enquiry in this
suit outside the purview of any order or finding by the various
forums under the said Act. It is, therefore, contended that in
any event, the forums constituted under the said Act, and the
forums dispensing justice under the said Act, are not courts
within the strictest meaning of the word “Court”. In this behalf,reference to interpretation clause of Section 3 of the Indian
Evidence Act, 1872 is made, because the forums dispensing
justice under the said Act, initially are not entitled to record
evidence and hence not Judges or Magistrates, as per Section 3
of the Indian Evidence Act. I do not agree on this point because
the said forums under the said Act are Judges and they are
authorized to take evidence-on-affidavits.
Only point which is required to be considered on merit is
whether the issues involved with this suit were same in the
proceeding before the said forums. Thus, the entire
proceedings, findings inter se between the parties arising out of
the invocation of the said Act, by the plaintiff are of
consequence and any way take away the jurisdiction of suit is
the issue to be decided by this Court and for that the decisions
held by the said forum and the issues and the prayers are
same has to be critically examined on perusal of the judgment
of the said forums. Reference has been made to a case in
Leonard Biermans Worker Union Vs. Second Industrial Tribunal
& Others reported in 1962 LLJ (1) 68 Cal. HC (page 6) and in the
case of Raghu Singh Vs. Barrakpur Coal Co. Limited & Other
(1967 LLJ (1) 483 Cal. HC have been relied upon to fortify the
submission aforesaid.
Ms. Gutgutia firstly adverted to the preamble of the
Consumer Protection Act 1986 which reads thus—“An Act to provide for better protection of the interest of
consumers and for that purpose to make provisions for
the establishment of consumer councils and other
authorities for the settlement of consumers’ disputes and
for matters connected therewith”
Secondly, the specific objects and reasons of protecting
the rights of the consumers inter alia, the specific object no. 4
which provides for speedy and simple redressal to consumer
disputes, quasi-judicial machinery is sought to be set up at the
District, State and Central levels to observe the principles of
natural justice and have been empowered to give relief of a
specific nature and to award, wherever appropriate,
compensation to consumers. Penalties for non-compliance of
the orders given by the quasi-judicial bodies have also been
provided.
Ms. Gutgutia has relied on a Special Bench decision
reported in AIR 2003 SC 1043 in case of State of Karnataka
Vs. Vishwa Barathi House Building Co-operative Society and
Others wherein it is held that in the event a complaint
involves complicated issues requiring recording of evidence of
experts, the complainant would be at liberty to approach the
Civil Court for appropriate relief.
It would be profitable to reproduce the observation in
paragraph 57 of the cited decision thus—“57. A bare perusal of the Section 25 of the Act clearly
shows that thereby a legal fiction has been created to the
effect that an order made by District Forum/State
Commission or National Commission will be deemed to be a
decree or order made by a civil Court is a suit. Legal fiction
so created has a specific purpose, i.e. for the purpose of
execution of the order passed by the Forum or Commission.
Only in the event the Forum/State Commission or the
National Commission is unable to execute its order, the same
may be sent to the civil Court for its execution. The High
Court, therefore, was not correct to hold that in each and
every case the order passed by the District Forum/State
Commission/National Commission are required to be sent to
the civil Courts for execution thereof.”
Thus, it would be evident from the principle laid in the
decision that the forums viz., State Commission or National
Commission are equated with that of the Court. It is true that
provision of Section 9 of the Code of Civil Procedure empowers
courts to try all Civil Suits unless barred. It is settled law that
bar of jurisdiction of Civil Court cannot be avoided on the
ground that the remedy under the statute is not adequate and
efficacious which may be a ground for a writ but is no ground
for a Civil Suit since jurisdiction are different. [See. Srikant Vs.
Corporation AIR 1995 SC 288 : (1994) 6 SCC 572].In my opinion, principle of law relating to res judicata is
based on the need of giving finality to judicial decisions. It
means issue decided cannot be adjudicated again. Primarily it
applies between the past litigation and future litigation. If the
decisions of said forums even not considered to be one in the
nature of the suit, they are the pronouncement by a judicial
forum and decisions thereof in a proceeding which reaches the
finality.
On being unsuccessful the plaintiff has filed the suit long
after the cause of action arose in the year 2000. The principles
also apply to quasi-judicial proceeding of the tribunals whether
civil or otherwise. It may be that all the provisions of the Civil
Procedure Code may not be applicable to Consumer Forums,
principle laid down in Section 11 of the Code of Civil Procedure
could be applicable. Therefore, I am not in agreement with
learned Advocate for the plaintiff that the complaint was filed
before the State Commission for deficiency in service by the
defendant bank by not providing the details of the debit entries
by it in the ROB A/c. No. 404 of the plaintiff company because
by the order dated 31st March 2008, the State Consumer
Disputes Redressal Commission, though held, that the
allegations of deficiency of service as against the opposite
parties have not been proved but the State Commission
detailed his judgment on the issues relating to the ROB A/c.no. 404 of the plaintiff company which order was carried in
Appeal before the National Consumer Dispute Redressal
Commission by which the judgment was affirmed in Appeal.
It requires for critical examination of the findings made
in paragraph 4 and 5 of the Judgment passed by National
Consumer Disputes Redressal Commission which are
reproduced as under for profitable consideration as to whether
principle of res judicata would apply in the instant case—
“4. Parties had led evidence by means of affidavit
and by producing the relevant record. On a
consideration of the same, the State Commission
upheld the pleas taken up by the opposite party Bank
and found no deficiency on the part of the bank in
debiting the said entries in the ROB account of the
complainant. The State Commission has given cogent
reasons for doing the same. The following
observations made by the State Commission in this
regard are relevant:
“It was evident from evidence that
the issue raised by OP No. 2 was not
resolved as a result of which the OPs
were compelled to honour huge number
of refund orders/warrants, much
beyond the quantum of fund available
at the given ROB A/c. No. 404 and all
efforts of reconciliation of account
in between the OP No. 2 and OP No. 3
with the complainant could not bedone for want of reciprocal
participation by the complainant and
all this while the Complainant failed
and neglected to provide sufficient
funds with OP No. 2 to
debit/complement to the paid
instrument. While there was a credit
balance of Rs. 4,94,024.80 on
31.03.1999 in the said ROB A/c. No.
404, the same amount was not
sufficient to cover the huge amount
due to the OP No. 2 on account of
huge refund orders/dividend warrants
paid by various paying branches of OP
No. 1 and finally when the
reconciliation took place after
effecting debits to the said ROB
Account there was a debit balance to
the extent of Rs. 42,77,444.64 in the
said account. The complainant’s
allegation and stance that this huge
debit balance occurred due to
inaction and negligence on the part
of the OPs has been proved to be
hollow and unfounded, in so much so
that it hardly took any action,
effective or otherwise, towards
deposit of fund in advance in
proportion to issue of refund
order/warrants/reconciliation and/or
resolution on the point of funding
the given ROB Account when it knew
very well as to the quantum of refund
orders/warrants being issued by the
complainant and knowing fully well
the validity of such, it could have
funded the said Account so that the
OP No. 2 was not put to strain in
honouring the agreement. The
complainant not having acted so, the
OP had to honour the commitment by
paying/reimbursing the given amounts
to its respective branches, out of
its own fund, which after adjustment
with the quantum available with the
ROB A/c. No. 404 amounted to Rs.
42,77,444.74.”5. The State Commission further observed that there
was no reasonable effort on the part of the
complainant either in taking up with the Bank
towards advance payment/reconciliation of the
accounts in relation to the refund orders already
issued by it and instead it chose to remain
silent/inactive while the opposite party had to honour
the commitment within its own resources beyond the
agreed terms executed between the parties.”
It is also found that the further steps were taken, first to
get the order reviewed by the National Commission itself; which
was also rejected but it cannot be said that the said
Commission had not given the fair hearing to the plaintiff by
adhering to the principle of natural justice. The plaintiff as an
offshoot to the same, further filed Special Leave Petition before
the Hon’ble Supreme Court to bring to its notice inter alia how
these Alternative Disputes Resolution quasi-judicial bodies are
functioning without observing the principles of natural justice
but the Hon’ble Supreme Court by order dated 07.12.2009
dismissed the said Special Leave Petition by simply recording
that the ‘Special Leave Petition is Dismissed.’
In this context Mr. Gutgutia submitted that the dismissal
of Special Leave Petition on non-admission of the Special Leave
Petition is not a bar on the petitioner to agitate the issuesbefore the appropriate Forum and referred to the case of Indian
Oil Corporation Limited Vs. State of Bihar and others reported in
AIR 1986 SC 1780 wherein it has been held thus—
“The dismissal of a special leave petition in limine by a nonspeaking
order does not justify any inference that by
necessary implication and contentions raised in the special
leave petition on the merits of the case have been rejected
by the Supreme Court. Neither on principle of public policy
analogous thereto, would the order of the Supreme Court
dismissing the special leave petition operate to bar the trial
of identical issues in a separate proceeding namely, the writ
proceeding before the High Court merely on the basis of an
uncertain assumption that the issues must have been
decided by the Supreme Court at least by implication.”
It has been observed in the cited decision at paragraph 8 thus—
“It is not the policy of this Court to entertain special leave
petitions and grant leave under Article 136 of the
Constitution save in those cases where some substantial
question of law of general or public importance is involved
or there is manifest injustice resulting from the impugned
order or judgment……….. It may also be observed that
having regard to the very heavy backlog of work in this
Court and the necessity to restrict the intake of fresh cases
by strictly following the criteria aforementioned, it has very
often been the practice of this Court to grant special leavein cases where the party cannot claim effective relief by
approaching the concerned High Court under Article 226 of
the Constitution.”
The principle laid in the judgment may apply in general
in a case of the present nature. But the facts and
circumstances of the cited decisions are not apposite to the
instant case.
Ms. Gutgutia further submitted that the Defendant Bank
did not give copies of honoured documents in violation of
section 45Y and 45Z of Banking Regulation Act which provides
for Power of Central Government to make rules for the
preservation of record- The Central Government may, after
consultation with the Reserve Bank and by notification in the
Official Gazette make rules specifying the period for which (a) a
Banking company shall preserve its books, accounts and other
documents; and (b) a Banking company shall preserve and
keep with itself different instruments paid by it and with regard
to return of paid instruments to customers (1) Where a
Banking company is required by its customer to return to him
a paid instrument before the expiry of the period specified by
rules made under Section 45Y, the Banking company shall not
return the instrument except after making and keeping in its
possession a true copy of all relevant parts of such instrument,
such copy being made by a mechanical or other process whichin itself ensures the accuracy of the copy (2) The Banking
company shall be entitled to recover from the customer the cost
of making such copies of the instrument.
The plaintiff before the trial has not produced in the
evidence, documents relating to arrangement made by it with
the defendant Bank and the schedule for reconciliation of
refund warrants/vouchers.. The plaintiff used to be supplied
with regular statement of transfer and refund vouchers but
they have not produced before the Court entire refund
vouchers and the statements thereto from the period of the
arrangement of issue of refund warrants/vouchers in favour of
their customers with the essential instruction to the Bank.
According to the defendant Bank the plaintiff had agreed to
provide funds in advance to the ROB A/c. No. 404 for the total
value of refund warrants before issuance of the same by the
plaintiff in favour of their various customers on designated
branches of the defendant Bank. Admittedly, refund
warrants/orders were payable at par on the designated paying
branches for handling the same by debiting the said ROB A/c.
It would appear from the letter dated 13th February, 1997
of Chief Manager, Defendant Bank addressed to the plaintiff
company which reads thus—“Ref. STH/MBD/97 dated 13th February, 97
Keshoram Industries Ltd.
9/1, R.N. Mukherjee Road,
Calcutta 700 001
Sub: Your Refund Order A/C No. DW 404
Dear Sir,
This has reference to the verbal discussion the undersigned had
with Mr. Arun Khandelwal of your office wherein we requested him not
to issue any more Refund Order instrument under the captioned
account until the problems arising out of such issuance are sorted out.
But we regret to observe that instruments being regularly
issued by you are presented to many of our branches throughout the
country including us through clearing which is simply aggravating the
problem.
You are therefore requested not to issue any such instrument
forthwith until and unless the problems referred below are sorted out.
a) You are not furnishing the volume and number of
instruments which you are issuing periodically either before
or after of issue.
b) As a result thereof funding of the said account is often done
considerably after our branches have honoured your
instruments out of their own fund.
We hope you will depute any senior official of your company to
discuss and sort out the matter at an early date.
Yours faithfully
Chief Manager”It further appears from the letter dated 16th January,
1998 that in reply the plaintiff company wrote to the Manager
of different branch but not in reply to the aforesaid letter of the
defendant Bank. The refund vouchers as produced by the
plaintiff Exhibit-1 is for the period from 03.4.1998 to
16.01.1999 showing closing balance as on 31.3.1999 sum of
Rs. 4,94,024,80. This amount has been given credit to the
plaintiff company and the Certificate in respect of the balance
standing in the account of the plaintiff Bank was given on
20.4.1999.
It would appear from the letter dated 10.4.2000
Exhibit-H that a request was made to the defendant Bank by
the plaintiff on receipt of bank statement and balance
confirmation certificate (Exhibit-B) to the tune of Rs.
40,61,202.07 showing a debit balance of Rs. 45,55,257.47 and
after giving credit balance of Rs. 4,94,024.00 as on 31.03.1999.
The statement of account enclosed with Exhibit-B shows that
the closing balance as on 30.3.2000 was a sum of Rs.
40,61,232.67 which has been certified by the Bank official of
the defendant Bank and well admitted by the plaintiff witness
as the balance confirmation certificate therefore, it cannot be
said that the defendant Bank did not adhere to the Banking
Regulation Act and Rules framed thereunder particularly Rule
45Y and 45Z aforesaid. If the plaintiff company did not issuerefund why it has not produced the document pertaining to the
said A/c. maintained by its department which has to clear the
claim of the customers and on the basis of the nature of the
payee used to be put in and the amount to be so disbursed.
There are two signatories of the company who were authorized
to operate the bank account and then it was given to the
beneficiaries. After receiving the vouchers they used to return
the documents to their controlling branch in Stephen House
and particular branch has to prepare list of their different
customers, different vouchers to be attached to the said list
and used to be submitted to the company. Admittedly, the
plaintiff authorized the bank to debit their cash credit account
directly as per rule and the money has to be transferred from
C/C account to customers refund account. (Question Nos. 13,
14, 15, 16 and 17). The statements of account clearly shows
that the amounts were paid to the plaintiff’s customers. The
State Commission has clearly observed and held in its
judgment that the plaintiff had not cooperated with the
defendant Bank in reconciliation since the same were required
to the collated from a large number of branches of the
defendant Bank. Save and except rendering the statement of
account with the certificate of confirmation of balance not
having been signed by the customer of the plaintiff company
herein that cannot be taken into sacrosanct in view of thecontention raised that the statements were issued without
collating and reconciling the refund warrants and their
particulars. It is expected from the plaintiff itself to have
produced all copies of refund vouchers issued by it to its
customers.
Reference is also made on behalf of the plaintiff in case of
Mysore State Electricity Board Vs. Bangalore Woollen, Cotton
and Silk Mills Limited and Others reported in AIR 1963 SC 1128
wherein it has been held, “tribunals are those bodies of men
who are appointed to decide controversies arising under certain
special laws all tribunals are not courts though all courts are
tribunal followed in 2012(8) SCC 243 Bar Council of India versus
Union of India”.
In case of Harinagar Sugar Mills Limited Vs. Shyam
Sundar Jhunjhunwala and others reported in AIR 1961 SC 1669
it was held inter alia- Court means court of Civil judicature and
tribunals which decide controversies arising under certain
special laws.
In case of State of Gujarat and Another Versus Gujarat
Revenue Tribunal Bar Association and Another reported in 2012
(10) SCC 353 the Hon’ble Apex Court has held that all courts
are tribunals but all tribunals are not courts.In case of Charan Singh v. Healing Touch Hospital and
others [(2000) 7 SCC 668] it was observed in paragraph 11 by
the Hon’ble Apex Court thus—
“11. Consumer Protection Act is one of the benevolent
pieces of legislation intended to protect a large body of
consumers from exploitation. The Act provides for an
alternative system of consumer justice by summary
trial. The authorities under the Act quasi-judicial
powers for redressal of consumer disputed and it is
one of the postulates of such a body that it arrive at a
conclusion on reason. The necessity to provide
reasons, howsoever, brief in support of its conclusion
by such a forum, is too obvious to be reiterated and
needs no emphasising. Obligation to give reasons not
only introduces clarity but it also excludes, or at any
rate minimizes, the chances of arbitrariness and the
higher forum can test the correctness of those
reasons.”
Having respectfully gone through the cited decisions, in
my opinion, the State/National Forums have trappings of
Courts and are adjudicatory bodies, though not in strict sense
Courts, which decide and settle the consumers disputes and
matter connected therewith by adhering to the provisions of
Civil Procedure Code and these consumer Courts arejudiciary set up by the government to protect the consumer
rights and would fall within the meaning of Section 3 of Indian
Evidence Act.
It is admitted fact that refund vouchers were similar to
Cheques and like Cheque books, refund vouchers printed in
the specialized format were given by the defendant bank to the
plaintiff for issuance thereof as is reflected in the answer to
question No. 21 and 25 given by the sole witness of the
plaintiff. In the particular period of time since there was no
system of payment of Cheque at par in all the branches of the
country, instrument of refund voucher payable at par all the
branches in the country was introduced by the defendant bank
and such facility was given to the plaintiff by the arrangement.
It is well settled that in order to decide whether a
decision in an earlier litigation operates as res judicata, the
Court must look at the nature of the litigation, what were the
issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of
the parties and the evidence-on-record and the judgments
rendered by the said forums, in unequivocal term it is clear
that the issues involved in this suit were substantially the
issues before the State Consumer Disputes Redressal
Commission which stood decided by the judgment dated31.3.2008 which attained its finality with the merger of
judgment and order of the National Consumer Dispute
Redressal Commission.
In the context of the foregoing discussions, on critical
examination of the judgments of the said forums and
considering the nature of the litigation and the issues raised
and decided therein being similar to the facts and
circumstances of the instant case, the issues now cannot be
reopened and re-agitated as in my opinion the suit is barred by
the principle of res judicata within the meaning of Section 11 of
Code of Civil Procedure.
Thus, the above issues are answered in the negative and
decided against the defendant.
In the result suit fails, hence, ordered, that the suit be
and the same is dismissed on contest, however, without any
order as to costs.
Department and all parties to act on the signed
photocopy of this judgement.
(SHIVAKANT PRASAD, J.)
my opinion, the State/National Forums have trappings of
Courts and are adjudicatory bodies, though not in strict sense
Courts, which decide and settle the consumers disputes and
matter connected therewith by adhering to the provisions of
Civil Procedure Code and these consumer Courts arejudiciary set up by the government to protect the consumer
rights and would fall within the meaning of Section 3 of Indian
Evidence Act.
It is admitted fact that refund vouchers were similar to
Cheques and like Cheque books, refund vouchers printed in
the specialized format were given by the defendant bank to the
plaintiff for issuance thereof as is reflected in the answer to
question No. 21 and 25 given by the sole witness of the
plaintiff. In the particular period of time since there was no
system of payment of Cheque at par in all the branches of the
country, instrument of refund voucher payable at par all the
branches in the country was introduced by the defendant bank
and such facility was given to the plaintiff by the arrangement.
It is well settled that in order to decide whether a
decision in an earlier litigation operates as res judicata, the
Court must look at the nature of the litigation, what were the
issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of
the parties and the evidence-on-record and the judgments
rendered by the said forums, in unequivocal term it is clear
that the issues involved in this suit were substantially the
issues before the State Consumer Disputes Redressal
Commission which stood decided by the judgment dated31.3.2008 which attained its finality with the merger of
judgment and order of the National Consumer Dispute
Redressal Commission.
In the context of the foregoing discussions, on critical
examination of the judgments of the said forums and
considering the nature of the litigation and the issues raised
and decided therein being similar to the facts and
circumstances of the instant case, the issues now cannot be
reopened and re-agitated as in my opinion the suit is barred by
the principle of res judicata within the meaning of Section 11 of
Code of Civil Procedure.
IN THE HIGH COURT AT CALCUTTA
ORDINARY ORIGINAL CIVIL JURISDICTION
ORIGINAL SIDE
Present: The Hon’ble Justice Shivakant Prasad
CS 175 of 2010
M/s. Kesoram Industries Limited V Allahabad Bank
Judgment on : 03.04.2017
This is a suit for declaration and injunction.
The plaintiff’s case, in brief, is that the plaintiff is a
company incorporated under the Companies Act and carries on
business, inter alia, in retail sale of fabrics and other items.
The defendant is a nationalized bank and carries on banking
business.
Plaintiff issued Refund Warrants to its customers and the
customers could encash and obtain refund which the plaintiff
agreed to pay to them within six months of the date of issuancethereof and made arrangement with the defendant bank and on
14.1.1984 opened with the Stephen House Branch of the
defendant Bank, a cash credit account bearing no. 400016
with a limit of Rs. 9 Crores and also a customer Refund
Account No. 404 in the name of the customers of the plaintiff
(referred to as the ROB A/c. No. 404) to facilitate smooth
encashment of such refund vouchers which would be encashed
by all Branches of the defendant bank within the validity
period of six months and thereafter, the full particulars of such
payment would be obtained by the defendant bank and such
particulars would be supplied to the plaintiff for reconciliation
and after reconciliation the amount paid by way of such
encashment of the refund vouchers would be debited in the
said cash credit account of the plaintiff.
The defendant bank through its Stephen House Branch,
Kolkata sent regular statements to the plaintiff with details of
the transactions and copies of the encashed warrants/
vouchers disclosing the names of the payees and date and
amount of payment, so that the plaintiff could verify and
reconcile its own accounts.
By a letter dated 13.02.1997 the defendant bank called
upon the plaintiff not to issue any further refund voucher. After
28.2.1997 the plaintiff stopped issuing any refund voucher.
The defendant bank by its letter dated 17.3.1997 wantedconfirmation that no refund voucher was issued after
28.02.1997 and such confirmation was immediately given by
the plaintiff but the defendant arbitrarily debited the said ROB
A/c. No. 404 to the staggering amount of Rs. 45,55,257.45p in
or about 2000 showing a debit balance of Rs. 40,61,232.67p.
It is further contended that the defendant bank has not
produced any evidence of payment of any sum from the said
account after 31.8.1997 despite request by the plaintiff
contrary to the guidelines given by the Reserve Bank of India
and the provisions of the Banking Regulation Act, 1949.
Accordingly, the plaintiff has prayed for declaration that
any debit balance shown by the defendant in the ROB A/c. No.
404 in its Stephen House Branch is illegal, void and not
binding on the plaintiff and also prayed for injunction directing
the defendant to transfer the cash credit A/c. No. 400016 of
the plaintiff maintained in Stephen House Branch being a sum
of Rs. 4,94,024.80 and to give effect as on 19.5.1999 and for
decree of Rs. 1,20,00,000/-.
Defendant has contested the suit contending inter alia,
that the suit is not maintainable as barred by the law of
limitation and the principle of res-judicata inasmuch as for the
same allegations and contentions as contained in the plaint the
plaintiff made applications claiming the same reliefs before the
State Commission which was dismissed on March 31, 2008and appeal before National Consumer Disputes Redressal
Commission was dismissed on January 12, 2009 and so also
the review application dismissed on 27th August, 2009 finding
no error apparent on the face of record against which Special
Leave Petition to the Hon’ble Supreme Court was also
dismissed on December 7, 2000. Then, plaintiff filed Writ
Petition in the High Court at Delhi against the orders of
January 12, 2009 and August 27, 2009 of National Consumer
Disputes Redressal Commission, New Delhi.
Specific contention of the defendant Bank is that at the
request of the plaintiff, the ROB A/c. No. 404 was duly closed
in due time. The Certificate dated April 20, 1999 and the
statement of account showing credit balance of Rs.
4,94,024.80p in the ROB A/c. No. 404 as on March 31, 1999
was the correct position of the transactions and in debiting
ROB A/c. No. 404 of Rs. 45,55,275.45p, there was a debit
balance of Rs. 40,61,232.67p.
The particulars of the number of refund vouchers or their
date of issue or their date of validity were not informed to the
defendant.
Hence, it has been prayed that the suit be dismissed as
barred by the law of limitation and as res-judicata.On the above pleadings following issues are framed for
determination of the disputes between the parties:
1) Is the suit maintainable in its present form and prayer?
2) Is the suit barred by limitation?
3) Is the suit barred by principles of res judicata?
4) Whether the plaintiff liable to pay any sum or sums to
the defendant bank in respect of ROB Account No. 404
as claimed by the defendant or otherwise?
5) Whether the plaintiff is entitled to get the sum of Rs.
4,94,024.80p. transferred to its cash credit Account
No. 400016 or any other account in favour of the
plaintiff as if the same was made on 31.3.1999, the
date on which the existence of such credit balance is
certified by the defendant bank will all consequential
resulting benefits viz. interest thereof?
6) Whether the debit balance shown by the defendant in
the said ROB Account No. 404 in its Stephen House
Branch after 28.02.1997 is illegal, void and not binding
on the plaintiff?
7) Is there any sum realizable by the defendant from the
plaintiff?
8) Whether the plaintiff is entitled to a decree of
permanent injunction restraining the defendant bank
and its servants, officers or agents from enforcing orrealizing from the plaintiff any sum or part thereof in
respect of the said ROB Account No. 404 or taking any
steps against the plaintiff in any way whatsoever in
respect of the said ROB Account?
9) To what relief or reliefs, if any, is the plaintiff entitled?
Decision with reasons
Issue Nos. 1, 2, 3, 4, 5, 6, 7, 8 and 9:
All the above issues being interlinked are taken up
together for the sake of convenience in discussion and for
brevity.
Addressing the issues relating to law of limitation and
applicability of principles of res judicata. Mr. Arindam
Mukherjee, learned Advocate for the defendant submitted that
suit is barred by limitation because the cause of action in the
suit arose in 2000, when a certificate dated 07.04.2000 was
issued by the defendant claiming a debit balance of over Rs.
40,00,000/- to realize over Rs. 45,00,000/- from the plaintiff
after adjusting Rs. 5,00,000/- from the debit balance of Rs.
45,00,000/- whereas the suit filed was on 07.7.2010. And as
the issue involved in the suit was decided by the State and
National Dispute Redressal Forums, the suit is barred by
principles of res judicata and as such the suit is not
maintainable.Per contra, Ms. Asha Gourisaria Gutgutia, learned
Advocate appearing for the plaintiff submitted that the cause of
action to institute this suit arose firstly on 01.4.2000 when the
defendant for the first time claimed a debit balance in the said
ROB A/c. 404. Since the defendant is continuously increasing
this debit amount as stated hereinabove, each subsequent
addition to this debit balance constitute a part of cause of
action, as each addition is made within 31st March every year,
the claim of the plaintiff is not barred by limitation.
Ms. Gutgutia fortified her arguments, the suit was filed
in 2010, almost 10 years later, but the suit is not barred by
limitation on two scores. Firstly, it is settled principle of law
that claims of a bank is never barred by limitation as accrued
interest is periodically added to the principal. In this case, the
claim of the defendant bank has similarly increased over a
passage of time and the defendant has never ceased to make a
demand of its alleged dues. Each demand made by the
defendant constitutes a fresh cause of action and/or a
continuous cause of action, and the suit is based on this
continuous cause of action because the defendant bank has
continually made claims that there was a debit balance.
I am unable to agree with the first limb of submission
made by Ms. Gutgutia that it is settled law, claims of a bank is
never barred by limitation as accrued interest is periodicallyadded to the principal because in this case the defendant Bank
issued a certificate dated 07.4.2000 that the balance standing
at debit in the ROB A/c. 404 of the plaintiff as on 31.3.2000
was Rs. 40,61,232.67 and there is no claim as such made
showing continuous and recurring interest thereon. So, the
plaintiff had cause of action to sue the defendant when the
plaintiff by its letter dated 10.4.2000 requested the defendant
to reverse the wrong debit of Rs. 45,55,257.47 and close the
A/c. by transferring the resultant credit balance of Rs.
4,94,024.80 to C/C. A/c. 400016 disputing the account not
being operational since last two years.
Secondly, it is submitted that the plaintiff had
approached the different authorities under the Consumer
Protection Act, 1986 and had even moved the Hon’ble Supreme
Court which fact is well reflected from paragraph 12 of the
written statement to the effect that the plaintiff wrongly
invoked the jurisdiction of the State Consumer Disputes
Redressal Forum under the Consumer Protection Act, 1986
(hereinafter called as the ‘said Act’). In that context, it is
argued that the period consumed in the proceeding before the
various forums under the said Act, has to be excluded under
the provisions of Section 14 read with Section 15 of the
Limitation Act, the suit cannot be said to be barred by
limitation.I find on evidence that the orders collectively marked
Exhibit-F reflect that the claim of the plaintiff was dismissed by
an order dated 31.3.2008 of the State Consumer Disputes
Redressal Commission, West Bengal in SC Case No.
41/0/2005 and the First Appeal being No. 248 of 2008 before
the National Consumer Disputes Redressal Commission, New
Delhi was dismissed on 12.01.2009 and the review application
of the said appellate order and subsequent special leave
petition to the Hon’ble Supreme Court of India were dismissed
on 27.8.2009 and on 07.12.2009 respectively. The plaintiff also
filed a writ petition in the High Court at Delhi being aggrieved
by the orders dated 12.01.2009 and 27.8.2009 passed by
National Consumer Disputes Redressal Commission, New Delhi
which also stood dismissed.
Agreeing with the second limb of the submission,
therefore, the period consumed in the aforesaid proceedings
can be reckoned in calculation of the period of limitation of
three years in filing the present suit provided, findings in the
judgment and the order of the said fora are not barring the
present suit to re-agitate the similar prayer and relief by
application of principles of res judicata as embodied in Section
11 of Civil Procedure Code.
In this context, Ms. Gutgutia submitted that the State or
National Consumer Disputes Redressal Commission are notCourts, there can be no question of res judicata barring
institution of this suit.
Now, this Court is called upon to consider as to
applicability of the principles of res judicata under Section 11
of the CPC in the context of the pertinent question as to
whether the said State Forum or National Forum are Courts
and whether the decisions and findings before the various fora
under the said Act would be a bar for this Court to give relief in
the present suit as barred by principle of res judicata.
Ms. Gutgutia adverted my attention to the averments in
paragraph 12 of the written statement and contended that
there is an admission on the part of the defendant that the
plaintiff had wrongly invoked the jurisdiction of the forum, the
defendant bank is, therefore, estopped from contending that
the various forums under the said Act had proper jurisdiction.
It is pointed out relating to a settled principle of law that if any
party proceeds with due diligence before a forum, which lacks
jurisdiction, then such a proceeding cannot operate as a res
judicata. This aspect clearly takes the scope of enquiry in this
suit outside the purview of any order or finding by the various
forums under the said Act. It is, therefore, contended that in
any event, the forums constituted under the said Act, and the
forums dispensing justice under the said Act, are not courts
within the strictest meaning of the word “Court”. In this behalf,reference to interpretation clause of Section 3 of the Indian
Evidence Act, 1872 is made, because the forums dispensing
justice under the said Act, initially are not entitled to record
evidence and hence not Judges or Magistrates, as per Section 3
of the Indian Evidence Act. I do not agree on this point because
the said forums under the said Act are Judges and they are
authorized to take evidence-on-affidavits.
Only point which is required to be considered on merit is
whether the issues involved with this suit were same in the
proceeding before the said forums. Thus, the entire
proceedings, findings inter se between the parties arising out of
the invocation of the said Act, by the plaintiff are of
consequence and any way take away the jurisdiction of suit is
the issue to be decided by this Court and for that the decisions
held by the said forum and the issues and the prayers are
same has to be critically examined on perusal of the judgment
of the said forums. Reference has been made to a case in
Leonard Biermans Worker Union Vs. Second Industrial Tribunal
& Others reported in 1962 LLJ (1) 68 Cal. HC (page 6) and in the
case of Raghu Singh Vs. Barrakpur Coal Co. Limited & Other
(1967 LLJ (1) 483 Cal. HC have been relied upon to fortify the
submission aforesaid.
Ms. Gutgutia firstly adverted to the preamble of the
Consumer Protection Act 1986 which reads thus—“An Act to provide for better protection of the interest of
consumers and for that purpose to make provisions for
the establishment of consumer councils and other
authorities for the settlement of consumers’ disputes and
for matters connected therewith”
Secondly, the specific objects and reasons of protecting
the rights of the consumers inter alia, the specific object no. 4
which provides for speedy and simple redressal to consumer
disputes, quasi-judicial machinery is sought to be set up at the
District, State and Central levels to observe the principles of
natural justice and have been empowered to give relief of a
specific nature and to award, wherever appropriate,
compensation to consumers. Penalties for non-compliance of
the orders given by the quasi-judicial bodies have also been
provided.
Ms. Gutgutia has relied on a Special Bench decision
reported in AIR 2003 SC 1043 in case of State of Karnataka
Vs. Vishwa Barathi House Building Co-operative Society and
Others wherein it is held that in the event a complaint
involves complicated issues requiring recording of evidence of
experts, the complainant would be at liberty to approach the
Civil Court for appropriate relief.
It would be profitable to reproduce the observation in
paragraph 57 of the cited decision thus—“57. A bare perusal of the Section 25 of the Act clearly
shows that thereby a legal fiction has been created to the
effect that an order made by District Forum/State
Commission or National Commission will be deemed to be a
decree or order made by a civil Court is a suit. Legal fiction
so created has a specific purpose, i.e. for the purpose of
execution of the order passed by the Forum or Commission.
Only in the event the Forum/State Commission or the
National Commission is unable to execute its order, the same
may be sent to the civil Court for its execution. The High
Court, therefore, was not correct to hold that in each and
every case the order passed by the District Forum/State
Commission/National Commission are required to be sent to
the civil Courts for execution thereof.”
Thus, it would be evident from the principle laid in the
decision that the forums viz., State Commission or National
Commission are equated with that of the Court. It is true that
provision of Section 9 of the Code of Civil Procedure empowers
courts to try all Civil Suits unless barred. It is settled law that
bar of jurisdiction of Civil Court cannot be avoided on the
ground that the remedy under the statute is not adequate and
efficacious which may be a ground for a writ but is no ground
for a Civil Suit since jurisdiction are different. [See. Srikant Vs.
Corporation AIR 1995 SC 288 : (1994) 6 SCC 572].In my opinion, principle of law relating to res judicata is
based on the need of giving finality to judicial decisions. It
means issue decided cannot be adjudicated again. Primarily it
applies between the past litigation and future litigation. If the
decisions of said forums even not considered to be one in the
nature of the suit, they are the pronouncement by a judicial
forum and decisions thereof in a proceeding which reaches the
finality.
On being unsuccessful the plaintiff has filed the suit long
after the cause of action arose in the year 2000. The principles
also apply to quasi-judicial proceeding of the tribunals whether
civil or otherwise. It may be that all the provisions of the Civil
Procedure Code may not be applicable to Consumer Forums,
principle laid down in Section 11 of the Code of Civil Procedure
could be applicable. Therefore, I am not in agreement with
learned Advocate for the plaintiff that the complaint was filed
before the State Commission for deficiency in service by the
defendant bank by not providing the details of the debit entries
by it in the ROB A/c. No. 404 of the plaintiff company because
by the order dated 31st March 2008, the State Consumer
Disputes Redressal Commission, though held, that the
allegations of deficiency of service as against the opposite
parties have not been proved but the State Commission
detailed his judgment on the issues relating to the ROB A/c.no. 404 of the plaintiff company which order was carried in
Appeal before the National Consumer Dispute Redressal
Commission by which the judgment was affirmed in Appeal.
It requires for critical examination of the findings made
in paragraph 4 and 5 of the Judgment passed by National
Consumer Disputes Redressal Commission which are
reproduced as under for profitable consideration as to whether
principle of res judicata would apply in the instant case—
“4. Parties had led evidence by means of affidavit
and by producing the relevant record. On a
consideration of the same, the State Commission
upheld the pleas taken up by the opposite party Bank
and found no deficiency on the part of the bank in
debiting the said entries in the ROB account of the
complainant. The State Commission has given cogent
reasons for doing the same. The following
observations made by the State Commission in this
regard are relevant:
“It was evident from evidence that
the issue raised by OP No. 2 was not
resolved as a result of which the OPs
were compelled to honour huge number
of refund orders/warrants, much
beyond the quantum of fund available
at the given ROB A/c. No. 404 and all
efforts of reconciliation of account
in between the OP No. 2 and OP No. 3
with the complainant could not bedone for want of reciprocal
participation by the complainant and
all this while the Complainant failed
and neglected to provide sufficient
funds with OP No. 2 to
debit/complement to the paid
instrument. While there was a credit
balance of Rs. 4,94,024.80 on
31.03.1999 in the said ROB A/c. No.
404, the same amount was not
sufficient to cover the huge amount
due to the OP No. 2 on account of
huge refund orders/dividend warrants
paid by various paying branches of OP
No. 1 and finally when the
reconciliation took place after
effecting debits to the said ROB
Account there was a debit balance to
the extent of Rs. 42,77,444.64 in the
said account. The complainant’s
allegation and stance that this huge
debit balance occurred due to
inaction and negligence on the part
of the OPs has been proved to be
hollow and unfounded, in so much so
that it hardly took any action,
effective or otherwise, towards
deposit of fund in advance in
proportion to issue of refund
order/warrants/reconciliation and/or
resolution on the point of funding
the given ROB Account when it knew
very well as to the quantum of refund
orders/warrants being issued by the
complainant and knowing fully well
the validity of such, it could have
funded the said Account so that the
OP No. 2 was not put to strain in
honouring the agreement. The
complainant not having acted so, the
OP had to honour the commitment by
paying/reimbursing the given amounts
to its respective branches, out of
its own fund, which after adjustment
with the quantum available with the
ROB A/c. No. 404 amounted to Rs.
42,77,444.74.”5. The State Commission further observed that there
was no reasonable effort on the part of the
complainant either in taking up with the Bank
towards advance payment/reconciliation of the
accounts in relation to the refund orders already
issued by it and instead it chose to remain
silent/inactive while the opposite party had to honour
the commitment within its own resources beyond the
agreed terms executed between the parties.”
It is also found that the further steps were taken, first to
get the order reviewed by the National Commission itself; which
was also rejected but it cannot be said that the said
Commission had not given the fair hearing to the plaintiff by
adhering to the principle of natural justice. The plaintiff as an
offshoot to the same, further filed Special Leave Petition before
the Hon’ble Supreme Court to bring to its notice inter alia how
these Alternative Disputes Resolution quasi-judicial bodies are
functioning without observing the principles of natural justice
but the Hon’ble Supreme Court by order dated 07.12.2009
dismissed the said Special Leave Petition by simply recording
that the ‘Special Leave Petition is Dismissed.’
In this context Mr. Gutgutia submitted that the dismissal
of Special Leave Petition on non-admission of the Special Leave
Petition is not a bar on the petitioner to agitate the issuesbefore the appropriate Forum and referred to the case of Indian
Oil Corporation Limited Vs. State of Bihar and others reported in
AIR 1986 SC 1780 wherein it has been held thus—
“The dismissal of a special leave petition in limine by a nonspeaking
order does not justify any inference that by
necessary implication and contentions raised in the special
leave petition on the merits of the case have been rejected
by the Supreme Court. Neither on principle of public policy
analogous thereto, would the order of the Supreme Court
dismissing the special leave petition operate to bar the trial
of identical issues in a separate proceeding namely, the writ
proceeding before the High Court merely on the basis of an
uncertain assumption that the issues must have been
decided by the Supreme Court at least by implication.”
It has been observed in the cited decision at paragraph 8 thus—
“It is not the policy of this Court to entertain special leave
petitions and grant leave under Article 136 of the
Constitution save in those cases where some substantial
question of law of general or public importance is involved
or there is manifest injustice resulting from the impugned
order or judgment……….. It may also be observed that
having regard to the very heavy backlog of work in this
Court and the necessity to restrict the intake of fresh cases
by strictly following the criteria aforementioned, it has very
often been the practice of this Court to grant special leavein cases where the party cannot claim effective relief by
approaching the concerned High Court under Article 226 of
the Constitution.”
The principle laid in the judgment may apply in general
in a case of the present nature. But the facts and
circumstances of the cited decisions are not apposite to the
instant case.
Ms. Gutgutia further submitted that the Defendant Bank
did not give copies of honoured documents in violation of
section 45Y and 45Z of Banking Regulation Act which provides
for Power of Central Government to make rules for the
preservation of record- The Central Government may, after
consultation with the Reserve Bank and by notification in the
Official Gazette make rules specifying the period for which (a) a
Banking company shall preserve its books, accounts and other
documents; and (b) a Banking company shall preserve and
keep with itself different instruments paid by it and with regard
to return of paid instruments to customers (1) Where a
Banking company is required by its customer to return to him
a paid instrument before the expiry of the period specified by
rules made under Section 45Y, the Banking company shall not
return the instrument except after making and keeping in its
possession a true copy of all relevant parts of such instrument,
such copy being made by a mechanical or other process whichin itself ensures the accuracy of the copy (2) The Banking
company shall be entitled to recover from the customer the cost
of making such copies of the instrument.
The plaintiff before the trial has not produced in the
evidence, documents relating to arrangement made by it with
the defendant Bank and the schedule for reconciliation of
refund warrants/vouchers.. The plaintiff used to be supplied
with regular statement of transfer and refund vouchers but
they have not produced before the Court entire refund
vouchers and the statements thereto from the period of the
arrangement of issue of refund warrants/vouchers in favour of
their customers with the essential instruction to the Bank.
According to the defendant Bank the plaintiff had agreed to
provide funds in advance to the ROB A/c. No. 404 for the total
value of refund warrants before issuance of the same by the
plaintiff in favour of their various customers on designated
branches of the defendant Bank. Admittedly, refund
warrants/orders were payable at par on the designated paying
branches for handling the same by debiting the said ROB A/c.
It would appear from the letter dated 13th February, 1997
of Chief Manager, Defendant Bank addressed to the plaintiff
company which reads thus—“Ref. STH/MBD/97 dated 13th February, 97
Keshoram Industries Ltd.
9/1, R.N. Mukherjee Road,
Calcutta 700 001
Sub: Your Refund Order A/C No. DW 404
Dear Sir,
This has reference to the verbal discussion the undersigned had
with Mr. Arun Khandelwal of your office wherein we requested him not
to issue any more Refund Order instrument under the captioned
account until the problems arising out of such issuance are sorted out.
But we regret to observe that instruments being regularly
issued by you are presented to many of our branches throughout the
country including us through clearing which is simply aggravating the
problem.
You are therefore requested not to issue any such instrument
forthwith until and unless the problems referred below are sorted out.
a) You are not furnishing the volume and number of
instruments which you are issuing periodically either before
or after of issue.
b) As a result thereof funding of the said account is often done
considerably after our branches have honoured your
instruments out of their own fund.
We hope you will depute any senior official of your company to
discuss and sort out the matter at an early date.
Yours faithfully
Chief Manager”It further appears from the letter dated 16th January,
1998 that in reply the plaintiff company wrote to the Manager
of different branch but not in reply to the aforesaid letter of the
defendant Bank. The refund vouchers as produced by the
plaintiff Exhibit-1 is for the period from 03.4.1998 to
16.01.1999 showing closing balance as on 31.3.1999 sum of
Rs. 4,94,024,80. This amount has been given credit to the
plaintiff company and the Certificate in respect of the balance
standing in the account of the plaintiff Bank was given on
20.4.1999.
It would appear from the letter dated 10.4.2000
Exhibit-H that a request was made to the defendant Bank by
the plaintiff on receipt of bank statement and balance
confirmation certificate (Exhibit-B) to the tune of Rs.
40,61,202.07 showing a debit balance of Rs. 45,55,257.47 and
after giving credit balance of Rs. 4,94,024.00 as on 31.03.1999.
The statement of account enclosed with Exhibit-B shows that
the closing balance as on 30.3.2000 was a sum of Rs.
40,61,232.67 which has been certified by the Bank official of
the defendant Bank and well admitted by the plaintiff witness
as the balance confirmation certificate therefore, it cannot be
said that the defendant Bank did not adhere to the Banking
Regulation Act and Rules framed thereunder particularly Rule
45Y and 45Z aforesaid. If the plaintiff company did not issuerefund why it has not produced the document pertaining to the
said A/c. maintained by its department which has to clear the
claim of the customers and on the basis of the nature of the
payee used to be put in and the amount to be so disbursed.
There are two signatories of the company who were authorized
to operate the bank account and then it was given to the
beneficiaries. After receiving the vouchers they used to return
the documents to their controlling branch in Stephen House
and particular branch has to prepare list of their different
customers, different vouchers to be attached to the said list
and used to be submitted to the company. Admittedly, the
plaintiff authorized the bank to debit their cash credit account
directly as per rule and the money has to be transferred from
C/C account to customers refund account. (Question Nos. 13,
14, 15, 16 and 17). The statements of account clearly shows
that the amounts were paid to the plaintiff’s customers. The
State Commission has clearly observed and held in its
judgment that the plaintiff had not cooperated with the
defendant Bank in reconciliation since the same were required
to the collated from a large number of branches of the
defendant Bank. Save and except rendering the statement of
account with the certificate of confirmation of balance not
having been signed by the customer of the plaintiff company
herein that cannot be taken into sacrosanct in view of thecontention raised that the statements were issued without
collating and reconciling the refund warrants and their
particulars. It is expected from the plaintiff itself to have
produced all copies of refund vouchers issued by it to its
customers.
Reference is also made on behalf of the plaintiff in case of
Mysore State Electricity Board Vs. Bangalore Woollen, Cotton
and Silk Mills Limited and Others reported in AIR 1963 SC 1128
wherein it has been held, “tribunals are those bodies of men
who are appointed to decide controversies arising under certain
special laws all tribunals are not courts though all courts are
tribunal followed in 2012(8) SCC 243 Bar Council of India versus
Union of India”.
In case of Harinagar Sugar Mills Limited Vs. Shyam
Sundar Jhunjhunwala and others reported in AIR 1961 SC 1669
it was held inter alia- Court means court of Civil judicature and
tribunals which decide controversies arising under certain
special laws.
In case of State of Gujarat and Another Versus Gujarat
Revenue Tribunal Bar Association and Another reported in 2012
(10) SCC 353 the Hon’ble Apex Court has held that all courts
are tribunals but all tribunals are not courts.In case of Charan Singh v. Healing Touch Hospital and
others [(2000) 7 SCC 668] it was observed in paragraph 11 by
the Hon’ble Apex Court thus—
“11. Consumer Protection Act is one of the benevolent
pieces of legislation intended to protect a large body of
consumers from exploitation. The Act provides for an
alternative system of consumer justice by summary
trial. The authorities under the Act quasi-judicial
powers for redressal of consumer disputed and it is
one of the postulates of such a body that it arrive at a
conclusion on reason. The necessity to provide
reasons, howsoever, brief in support of its conclusion
by such a forum, is too obvious to be reiterated and
needs no emphasising. Obligation to give reasons not
only introduces clarity but it also excludes, or at any
rate minimizes, the chances of arbitrariness and the
higher forum can test the correctness of those
reasons.”
Having respectfully gone through the cited decisions, in
my opinion, the State/National Forums have trappings of
Courts and are adjudicatory bodies, though not in strict sense
Courts, which decide and settle the consumers disputes and
matter connected therewith by adhering to the provisions of
Civil Procedure Code and these consumer Courts arejudiciary set up by the government to protect the consumer
rights and would fall within the meaning of Section 3 of Indian
Evidence Act.
It is admitted fact that refund vouchers were similar to
Cheques and like Cheque books, refund vouchers printed in
the specialized format were given by the defendant bank to the
plaintiff for issuance thereof as is reflected in the answer to
question No. 21 and 25 given by the sole witness of the
plaintiff. In the particular period of time since there was no
system of payment of Cheque at par in all the branches of the
country, instrument of refund voucher payable at par all the
branches in the country was introduced by the defendant bank
and such facility was given to the plaintiff by the arrangement.
It is well settled that in order to decide whether a
decision in an earlier litigation operates as res judicata, the
Court must look at the nature of the litigation, what were the
issues raised therein and what was actually decided in it.
In the present case having gone through the pleading of
the parties and the evidence-on-record and the judgments
rendered by the said forums, in unequivocal term it is clear
that the issues involved in this suit were substantially the
issues before the State Consumer Disputes Redressal
Commission which stood decided by the judgment dated31.3.2008 which attained its finality with the merger of
judgment and order of the National Consumer Dispute
Redressal Commission.
In the context of the foregoing discussions, on critical
examination of the judgments of the said forums and
considering the nature of the litigation and the issues raised
and decided therein being similar to the facts and
circumstances of the instant case, the issues now cannot be
reopened and re-agitated as in my opinion the suit is barred by
the principle of res judicata within the meaning of Section 11 of
Code of Civil Procedure.
Thus, the above issues are answered in the negative and
decided against the defendant.
In the result suit fails, hence, ordered, that the suit be
and the same is dismissed on contest, however, without any
order as to costs.
Department and all parties to act on the signed
photocopy of this judgement.
(SHIVAKANT PRASAD, J.)
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