Aggrieved by the dismissal of its complaints bearing No. S.C. Case No. 04/0/2005 and 5/0/2005, vide common order dated 28.11.2008 passed by the West Bengal State -3- Consumer Disputes Redressal Commission, Kolkata (in short, he State Commission), the original complainant, M/s Kesoram Industries Limited has filed the present appeals. Since the complaints filed by the appellant before the State Commission were on similar/identical facts except that in complaint case No. 4 of 2005, it was in relation to a cash and credit account No. 10336 which the complainant was maintaining at Red Cross Branch of Allahabad Bank, Kolkata and the other in respect of account No. 400016 at Stephens House Branch, Kolkata, the State Commission considered it advisable and rightly so to answer both the complaints by means of a common order impugned before us. For the same reasons, we also dispose of these appeals by this common order. 2. We have heard Ms. Asha G. Gutgutia, learned counsel representing the appellant and Mr. Abhilash, learned counsel representing the respondents and have given our thoughtful consideration to their respective submissions and have perused the entire material placed on record. -4- 3. The appeals have been filed after delay of 122 days, alongwith the applications for condonation of delay. For the reasons stated in the applications for condonation of delay, we are of the opinion that the appellant has been able to show sufficient cause entitling them for condonation of delay. Accordingly, we condone the delay in filing these appeals subject to payment of cost of Rs. 10,000/- to the respondents. 4. The complaints before the State Commission were filed seeking certain amounts of compensation i.e. Rs. 30 lakh towards loss/damage suffered by the complainant, alleging deficiency in service and adoption of unfair practice by the opposite parties-Banks in making certain debit entries ( according to the complainant in wrongful manner) in cash and credit accounts of the complainant by the respective branches of the Banks and not supplying relevant documents/statement/unpaid over due bills in respect of which debit entries were made by the opposite parties-banks. The complaints were resisted by the opposite parties-banks not -5- disputing the factual position about making certain debit entries in the accounts of the complainant as alleged by them. It was sought to be explained that neither the remittance nor the over due bills were received from upcountry branch/other banks and, therefore, as per terms of agreement and relevant Regulations, the banks were justified in making debit entries in the cash credit accounts of the complainant to the extent the remittances were not received. It was denied that the bank has committed any deficiency in service or had adopted unfair practice as alleged by the complainant. It would appear that before filing the complaints, the complainant had served a legal notice upon the opposite parties-Banks and had also approached the Banking Ombudsman for redressal of their grievance but without success. The State Commission going by the pleadings of the parties, the evidence and the material brought on record, however, dismissed the complaint. One of the reason which has weighed heavily with the State Commission in dismissing the complaints was that the complainant had failed to establish any deficiency in service on the part of the opposite parties-banks so -6- much so that it has not answered the set of questionnaire served on it from the side of the opposite parties and, therefore, by invoking the provisions of Order 11 Rule 8 and order 12 Rule 2(A) of the Code of Civil Procedure. The State Commission drew adverse inference by observing as under:- (D) Therefore, on the point of evidence we find that the Complainant has not been able to file any tangible evidence to prove its case and the ops having rightly objected to acceptance of any evidence on affidavit sought to be filed by the Complainant on 26.6.08 i.e. well after the conclusion of the arguments by the Complainant on 12.6.08 is also found to be in order. Thus the Complainant can be stated to have voluntarily forfeited the opportunity of relying upon the documents filed by it and alleged statements of reconciliation of accounts statement etc. having been undated and unsigned can also not be relied upon. Therefore the documents concerned do not have any reliability & evidential value and consequently the alleged claim against the OPs have no basis or proof for reliability and therefore are not sustainable. This being the position we can accept the OPscontention that the Complaints are essentially statement based and not on evidence based assertion, which being devoid of any proof of evidence, have no legs to stand. We rely on citation (2007) (10) SCC 195 and AIR (2007) (NOC) 2632 MAT in such regard. (E) We also find that the Complainant has not tendered any original documents to rely upon the matter having not put forward any tangible evidence as to its various allegations of deficiency of service, dereliction of duties and causing financial loss and harassment to it by the Ops. No evidence was also laid by the complaint as to how the Ops were not -7- directly connected with the business of the Complainant or the given transactins and alleged deficiency of service on the said transactions on the basis of the agreement signed between the parties were not directly connected with profit making activities of the Complainant, points which were asserted by the Complainant but were not followed with any proof, a fact which was repeatedly agitated by the OPs during argument. The Complainant also has not replied to the questionnaire submitted by the OPs on affirmation, which is contrary to order (ii) of rule (8) of C.P.C. where interrogations are required to be answered by affidavit. The Complainant further did not prefer questionnaire on the evidence-on-affidavit of the OPs, thereby providing for the documents to be deemed to have been admitted by the Complainant under order 12 rule 2(A) of the CPC. Under facts and circumstances abovesaid the complaints namely under Section sc/4/0/05 & SC/5/0/05, are liable to be dismissed on contest without costs. 5. Learned counsel for the appellant would assail the order passed by the State Commission primarily on the ground that it is not based on correct and proper appreciation of the respective please of the parties and the evidence and material produced on record. In this connection, learned counsel for the appellant has vehemently argued that the State Commission has misdirected itself by recording a finding in regard to the complainant having not led sufficient evidence to establish its case as set up in the -8- complaints when it had produced certain affidavits, though belatedly. She further submits that no proper opportunity was granted to the complainant to answer the questionnaire served by the opposite parties and that the complainant is in a position to answer the same if proper opportunity is allowed even at this stage. It was next contended by her that in view of categorical and unambiguous admissions made by the opposite parties in the written version of defence which they had filed before the State Commission in response to the averments and allegations of the complaints, perhaps no further evidence was required and the matter could have been answered straightway by the State Commission based on the said admissions made by the opposite parties in their written version of defence. 6. In this regard, our attention has been invited to paragraphs 6 and 7 of the written version of defence dated 3.8.2005 filed by the opposite parties before the State Commission which are to the following effect :- 6. With regard to the statement contained in Paragraph Nos.6 & 7 it is stated that the Complainant never took any steps to reimburse the amount against unpaid bills in spite of reminders -9- made by the Opposite party No.1. It is admitted by Opposite Party No.1 that the Opposite Party No.1 originated the letter under reference BR/ADV/STH/96/159 dated 17th May, 1996 informing debit of Rs.7,56,770.58 on 17th May, 1996 to the cash credit account of the Complainant in respect of claim against the old outstanding bills discounted from 8 August, 1987 to 28th December, 1993 by the Opposite Party No.1 for which no payment was made by the upcountry collecting banks to whom the bills were sent for collection. The Opposite Party No.1 exercised all its diligent efforts, as a prudent banker, with the collecting upcountry branches for remittance/payment against those bills alternatively return of unpaid bills. 7. With regard to the statement contained in Paragraph Nos.8 & 9 it is disputed that the Opposite Party No.1 debited the aforesaid amount to the cash credit account of Complainant despite receipts of the bill amounts from the drawees and/banks of the overdue bills. It is admitted that the documents/bills relating to the overdue bills for which debit was made to the cash credit account of the Complainant, were not received back by the Opposite Party No.1 from upcountry branches and/or other banks. Hence the returning of those unpaid bills to the Complainant did not arrive. The recovery of overdue bills and resultant debit was necessitated to save the account from becoming non-performing assets. 7. On the strength of the above admissions made/clarifications afforded by the opposite parties, learned counsel for the appellant submits that the opposite parties are guilty of deficiency in service because they have not only failed to receive the remittances of over due bills from upcountry branch -10- and/or other banks but even failed to receive back the unpaid over due bills. It was also contended that the action of the opposite parties-banks in debiting certain amounts in cash and credit accounts of the complainant on account of non-receipt of remittances, was not in consonance with the Bank Regulation Act, 1949. In any case, her submission is that the despite repeated demands, the opposite parties bank had failed to give a true account/return the documents on the strength of which the debit entries were made in the accounts of the complainant. 8. On the other hand, learned counsel appearing for the respondent has supported the impugned order of the State Commission and has urged that even if submissions and allegations of the complainants are deemed to be true even then no deficiency in service or adoption of unfair practice can be said to have been made out on the part of the opposite parties-banks. He justified debiting of entries in the cash and credit accounts of the complainant by following the due procedure and in accordance with the agreement entered between the parties in -11- relation to the crediting and debiting the amount of the over due bills/vouchers. 9. Having given our thoughtful consideration to the above contentions, we are of the view that the complaints have not received the kind of consideration which it deserved at the hands of State Commission. It would appear that the State Commission has not fully adverted to the pleadings of the opposite parties which according to the complainant contain certain admissions of factual position and has focused its entire attention to non-compliance of certain formalities and based on the same has non-suited the complainant. 10. In these circumstances, we consider it a fit case where the complaints should be remitted back to the State Commission for deciding the same afresh in accordance with law, after affording due opportunities to the parties to make their submissions on all possible aspects involved in the matter. If the State Commission considers it necessary that the complainant should answer the questionnaire served by the opposite parties, the complainants may be allowed one opportunities to do that. -12- 11. In the result, the appeals are partly allowed and the impugned order passed by the State Commission dismissing the complaints is hereby set aside and the complaints are remitted to the board of the State Commission for deciding the same afresh in the above terms. The parties are left to bear their own costs in these proceedings. The parties are directed to appear before the State Commission on 6.12.2010 for receiving further directions in the matter. The State Commission is requested to dispose of the complaints afresh expeditiously, preferably within a period of four months from the date of appearance of the parties.