Kesoram Industries Limited & Ors vs Allahabad Bank & Ors
2011 Latest Caselaw 1786 Del

           *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                    Date of decision: 28th March, 2011

+                         WP(C) NO.3038/2010

KESORAM INDUSTRIES LIMITED & ORS          ..... Petitioner
               Through: Ms. Asha G.Gutgutia and Mr. Niloy
                         Dasgupta, Advocates

                                     Versus

ALLAHABAD BANK & ORS                                      ..... Respondents
                Through:                None.


CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1.     Whether reporters of Local papers may                     No
       be allowed to see the judgment?

2.     To be referred to the reporter or not?                    No

3.     Whether the judgment should be reported                   No
       in the Digest?


RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India impugns

the order dated 12 th January, 2009 of the National Consumer Disputes

Redressal Commission, New Delhi dismissing in limine the appeal

preferred by the petitioner against the order dated 31 st March, 2008 of the

State Consumer Disputes Redressal Commission, West Bengal dismissing

the complaint filed by the petitioner against the respondent Bank. This

petition came up first before this Court only on 5th May, 2010. However,

the petitioner had preferred a review of the order dated 12 th January, 2009

of the National Commission and which review was also dismissed on

27th August, 2009. Not only so, the petitioner filed

SLP (Civil) No. 19246/2009 to the Supreme Court which was also

dismissed in limine on 7th December, 2009. It is after waiting for about

six months that the present petition was filed.

2. As aforesaid, the petition came up first before this Court on 5th

May, 2010 when the counsel for the petitioner sought adjournment to

move necessary application before the Supreme Court to seek leave of the

Supreme Court to present the present petition. Thereafter the matter was

adjourned from time to time. No notice has been issued. The counsel for

the petitioner today contends that it was on a wrong assumption of law

that it was earlier stated that the application will be moved before the

Apex Court for leave to prefer this petition; infact no such leave is

necessary. Reliance is placed on -

1. Kunhayammed Vs. State of Kerala AIR 2000 SC 2587;

2. Indian Oil Corporation Ltd Vs. State of Bihar AIR 1986 SC 1780;

3. State of Kerala Vs. Kondottyparambanmoosa (2008) 8 SCC 65;

4. R.B. Ramlingam Vs. R.B. Bhvaneswari (2009) 2 SCC 689;

5. Nawab Shaqafath Ali Khan Vs.Nawad Imdad Jah Bahadur (2009) 5 SCC 162; and

6. S. Nagaraj Vs. B.R. Vasudeva Murthy (2010) 3 SCC 353

to contend that even after the dismissal of the SLP in limine, this writ

petition for judicial review of the order of the National Commission

would be maintainable.

3. On inquiry as to on what ground judicial review is sought of the

order of the National Commission, it is contended that the National

Commission had heard the counsel for the petitioner at the time of

admission, only on the aspect of whether, owing to the transaction

between the petitioner and the respondent Bank being of a commercial

nature, the consumer complaint was at all maintainable. Reliance in this

regard is placed on a copy of the written arguments stated to have been

filed before the National Commission. It is contended that the petitioner

was however surprised to see that the order of the National Commission

dismissing the appeal (without issuing notice to the respondent Bank) was

on merits.

4. Else the facts as emerge are, that the petitioner had in January, 1984

opened an account with the respondent Bank to receive and make

payment of refund warrants issued by the petitioner to its customers; the

respondent Bank on 13th February, 1997 requested the petitioner not to

issue any further Refund Warrants/orders; the petitioner claims to have

heeded to the said request and contends that since the life of the Refund

Warrants was of six months, the Refund Warrants issued till 13th

February, 1997 could have been debited to the said account for maximum

six months and not thereafter; that the respondent Bank on 20th April,

1999 certified to the petitioner that the petitioner had a credit balance of

Rs.4,94,024.80p in the said account; however subsequently the respondent

Bank debited a huge amount of Rs.45,55,257.45p in the said account and

ultimately claimed a debit balance of Rs.42,77,444.64p in the said

account.

5. The complaint of the petitioner before the State Commission was

that the Bank had kept the petitioner in total darkness with respect to the

amount so debited. The petitioner claimed the relief of refund of the

credit balance of Rs.4,94,024.80p (supra) together with interest and also

damages for harassment of Rs.20 lac.

6. The Bank contested the complaint aforesaid inter alia on the

ground that the transaction between the parties being for commercial

purpose, the consumer complaint was not maintainable and on the ground

that as per the arrangement of the Bank with the petitioner, the Bank was

to honour the Refund Warrants out of its own monies and to claim

reimbursement from the petitioner; that on reconciliation of the accounts

of all the branches of the respondent Bank which had honoured the said

Refund Warrants, the amount debited to the account of the petitioner was

found due; that the petitioner inspite of requests had failed to give the

requisite information to the respondent Bank and which led to the delay in

collating of the entries.

7. The State Commission negatived the contention of the respondent

Bank of the complaint being not maintainable and held the complaint to

be maintainable. However, no deficiency was found in the services

rendered by the Bank to the petitioner and rather it was found that the

huge debit balance occurred due to the failure of the petitioner to make

timely deposit of funds in its account in proportion to the Refund

Warrants issued by it. Accordingly the complaint was dismissed.

8. The National Commission in appeal held that the State Commission

had given cogent reasons for holding that no deficiency in service on the

part of the respondent Bank was proved and observed that no case for

interference in the order of the State Commission was made out.

9. The aforesaid would show that the order of the State Commission

as well as the National Commission are based on findings of fact of the

petitioner having not established any deficiency in service on the part of

the respondent Bank.

10. I have minutely perused the writ petition. No ground for judicial

review of the said finding of fact is made out. The ground urged by the

counsel for the petitioner of the hearing before the National Commission

having been on the maintainability and the petitioner having not been

heard on merits cannot be accepted. It may be mentioned that it is not as if

the State Commission had decided the aspect of maintainability against

the petitioner; the said aspect was decided in favour of the petitioner and

there is no reason to believe that the occasion for hearing only on the

aspect of the maintainability would have arisen. Moreover at the time of

admission, the matter is considered from all aspects and not from the point

of maintainability only. The petitioner in any case had an opportunity of

review and availed of the same as well and the National Commission has

held no case for review to have been made out. Thus, the said argument

cannot be the basis of judicial review.

11. On merits the only ground made out in this petition is that after

having shown the credit balance as aforesaid the respondent Bank could

not have shown the debit balance. However, the State Commission has

given a reason therefor i.e. that since the account had to be collated from

a large number of branches and the petitioner was not cooperating in

reconciliation thus the debit balance could not be reflected in the accounts

immediately. The said finding is again a finding of fact not capable of

interference under Article 226.

No case for interference is thus made out. Dismissed. No order as

to costs.

RAJIV SAHAI ENDLAW (JUDGE) 28th March, 2011 M.