Mrs. Viswalakshmi
Sasidharan & Ors Vs. The Branch Manager, Syndicate Bank, Belgaum [1997] INSC 161 (13 February 1997)
K.
RAMASWAMY, S. SAGHIR AHMAD, G.B. PATTANAIK
ACT:
HEAD NOTE:
O R D
E R
This Special Leave Petition arises from the order of the National Consumer
Disputes Redressal Commission, New Delhi. The
petitioners had loan taken from the respondent Bank on two accounts, one for a
sum of Rs.1,50,000/- and the other for Rs. 3,00,000/-. It would appear that the
Bank had disbursed a sum of Rs 1.47 lacs and the balance amount was not
released to the petitioners. It was their case, in the complaint laid before
the District Forum, that due to deficiency in service, namely, failure to
disburse the total amount contracted under the agreement, the petitioner could
not carry on the business and discharge the obligations to pay the labour
charges and, therefore, could not manufacture the products for which orders had
been served. Since, there was Since, there was slump in the market, they could
not discharge the contract for repayment. Accordingly, they filed the complaint
for damages in the sum of Rs.9.50,000/-.
The
Tribunals below dismissed the case and the National Commission confirmed the
dismissal of the complaint on three grounds. First, the petitioner had not
complied with the conditions of the agreement of repayment, thereby they
committed breach of the contract. They cannot, therefore, complain of the
deficiency of service. Another ground given was that the suit was filed by the
Bank for recovery on the premise that the Tribunal could not go into that
question.
Thirdly
it was filed by the bank for recovery on the premise that the Tribunal could
not go into the question. Thirdly, it was stated that in a letter addressed b
the petitioners to the Bank that they had admitted that the failure to pay the instalments
was due to slump in the market of the finished products and, therefore, they
could not repay the loan.
Though
we find that there is not much force in the findings recorded by the courts
below on the first tow grounds, the last grounds merits acceptance. It pursuant
to the contract the Bank did not disburse the amount and if there was any
resultant default in the payment on account thereof, that may be a defence open
to the petitioners in the suit and also furnishes right to complain of
deficiency in service to seek redressal under the Consumer Protection Act. On
that Ground, the relief could not be rejected and the question was required to
be gone into. Secondly, the mere filing of the suit for recovery of the amount
may not be an absolute bar on the commission to go into that question for the
reason that the issue before that Civil Court is not the deficiency in the
service unless that is specifically raised as defence in the suit. However, we
think that is one of defaults in the payment of the instalments. Under those
circumstances, merely filing of the suit by the Bank does not put a bar on the
Tribunal to go into the merits in the complaint. Each case requires examination
on the facts of the case. On the other hand, we find force in reasoning given
by the Tribunal on third point, It is the petitioner's case that they were
unable to produce the goods and have them marketed to pay back the loan in instalments.
It was not the case that it was due to deficiency in service. On the other
hand, it is admitted that due to slump in the market they could not sell the
goods, realise the price of the finished product and pay back the loan to the
Bank. That admission stands in their way to plead at the late stage that they
suffered loss on account of the deficiency in service. Under those
circumstances, we do not find any ground warranting interference.
The
leave petition is dismissed.
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