Orissa

StateCommission

CDA/787/2001

Regional Manager, Bank of Baroda - Complainant(s)

Versus

Gopal Kumar Sharda - Opp.Party(s)

M/s. G. Kar & Assoc.

11 May 2020

ORDER

STATE CONSUMER DISPUTES REDRESSALCOMMISSION,ODISHA,CUTTACK

C.D.  APPEAL  NO. 787  OF 2001

(From an order dated 15.11.2001 passed by the District Forum, Keonjhar in C.D.Case No. 79 of 1998)

         

1.      Regional Manager,

          Bank of Baroda,

          171 – Bhouma Nagar, Unit – IV,

          Bhubaneswar, Dist – Khurda

2.      Senior Branch Manager,

          Bank of Baroda, Barbil Branch,

          At/Po – Barbil, Dist – Keonjhar

3.      Senior Branch Manager,

          Bank of Baroda,

           Basantapur Branch,

           Via – Naranpur, Dist. - Keonjhar

                                                                        …    Appellants

Vrs.

 1.      (a) Gopal Kumar Sharda, aged about 52 years,

                 S/o Late Kameswar Prasad Sharda

 

           (b) Sanjay Kumar Sharda, aged about 44 years,

                 S/o Late Kameswar Prasad Sharda

            (c) Sharwan Kumar Sharda, aged about 39 years,

                   S/o Late Kameswar Prasad Sharda,

                    All are resident of At – Baraja – Mda,

        Dist – Singhbhum (W)

 2.      M/s Deepak Minerals Industries (P) Ltd.,

           Main Road, Barbil, Dist. Keonjahr

            Represented through its Managing Director,

             Hari Charan Gupta,

              S/o Laxmi Ch.Gupta

 

 3.      Sri Hari Charan Gupta,

           Son of Laxmi Charan Gupta,

           C/o M/s Deepak Minerals Industries (P) Ltd,

            Main Road, Barbil – 758035, Keonjhar

  4.      Smt. Kanta Devi Gupta,

           W/o Hari Charan Gupta,

            Director,  M/s Deepak Minerals Industries (P) Ltd.,

            At – Main Road, Barbil – 758 035, Keonjhar  

                                                                                   …  Respondents         

                                         ____________                                               

        For the appellants      :  M/s G.Kar & Associates

        For respondent No.1  :  M/s R.K.Pattnaik & Associates

        For respondent Nos. 2 to 4 : None

                              ­­­­_____________

P R E S E N T:

            THE HON’BLE DR. JUSTICE D.P.CHOUDHURY, PRESIDENT

                                                     AND

                                      DR. S.MOHANTY, MEMBER

DATED THE  11^th  MAY, 2020

O R D E R

DR. D.P. CHOUDHURY, J., PRESIDENT

          The captioned appeal u/s 15 of the Consumer Protection Act (hereinafter called the ‘Act’ in short) arises out of order dated 15.11.2001 passed by the learned District Consumer Disputes Redressal Forum (in short District Forum), Keonjhar in C.D.Case No. 79 of 1998. For the sake of convenience appellants and respondent are herein arrayed as opposite parties and complainant as depicted by the learned District Forum respectively.

2.      The case of the complainant in brief is that the complainant forms Partnership firm constituted on 1.1.1989 and by virtue of clause – 11 of the partnership deed all the banking accounts of the firm are opened and operated by Kameswar Prasad Sarada. Accordingly, the complainant opened FDR Nos. 346500 dated 11.5.1990 and 346412 dated 22.3.1992 for value of Rs.1.00 lac each in the Bank of the opposite party. It is mentioned inter alia that Kameswar Prasad Sarada was only to operate the Bank account and he has been operating the Bank account even though the partnership firm was reconstituted from time to time and FDRs were also renewed from time to time. On 1.4.1993, out of seven partners four partners retired and subsequently, one  Hari Charan Gupta also retired on 1.4.1995. So the firm remained constituted with  Kameswar Prasad Sarada and his son  Sanjay Kumar Sarada. It is the further case of the complainant that on 15.11.1997, the complainant could not find out their FDRs in the office due to their misplacement and accordingly intimated to opposite party No.2 – Bank. Then opposite party No.2 verbally informed the complainant that the FDRs have been encashed. The complainant enquired about how the FDRs were encashed without the signature of authorised signatory Kameswar Prasad Sarada. The complainant alleged that this is a gross deficiency in service on the part of the opposite parties. So lawyer’s notice was sent to the opposite parties and it was informed on 11.4.1998 by the opposite parties that FDR No. 346500 dated 11.5.1990 with maturity value of Rs.1,81,695/- and FDR No. 655103 dated 25.6.1994 with maturity value of Rs.1,79,116/- of Basantpur Branch were  transferred to Barbil Branch of the complainant and both have been adjusted against the Over Draft account of one M/s Deepak Minerals Industries (P) Ltd. The complainant has no instruction to the opposite parties to adjust such maturity amount against the Over Draft account of M/s Deepak Minerals Industries (P) Ltd. Since the act of the opposite parties  is gross deficiency of service having adjusted the maturity amount against the Over Draft loan account of M/s Deepak Minerals Industries (P) Ltd. without any authority of the complainant, the complainant was obliged to file the complaint  before the learned District Forum praying therein to direct opposite party No.2 to pay Rs.3,60,811/- with interest thereon at the rate of 13% per annum from 1.1.1996 till payment and to pay Rs.10,000/- towards compensation for the injury caused to the complainant.

3.      The opposite parties filed their written version and it appears from the written version that the complaint petition is not maintainable and there is no cause of action under this Act to file the case. The case suffers from non-joinder and mis-joinder of parties as said Hari Charan Gupta and M/s Deepak Minerals Industries (P) Ltd. being necessary parties have not been impleded in the complaint. It is further averred that there is no deficiency of service on the part of the opposite parties. The case of the opposite parties is that the complainant’s firm having seven partners, opened one Current Account in the Bank of Baroda, Barbil Branch on 8.8.1989 with operative instruction to operate the account jointly by Kameswar Prasad Sarada and Hari Charan Gupta. On 22.3.1990 an amount of Rs.1.00 lac and Rs.2.00 lacs have been transferred from C.D.Account of M/s Sarada Transporters to the fixed deposit account in the name of the complainant’s firm. So Bank has issued FDR Nos. 346412 and 346413 for Rs.1.00 lac and Rs.2.00 lacs respectively on 22.3.1990 to M/s Sarada Transporters which was received by one S.S.Sharma representative of the firm. On 23.3.1990 FDR No. 346412 dated 22.3.1990 for Rs.1.00 lac in the name of complainant’s firm transferred to Bank of Baroda, Basantpur Branch at the instance of the firm. This FDR has been transferred to Bank of Baroda,  Barbil Branch from Basantpur Branch through FDR No. 655103 dated 22.3.1992 for Rs.1,21,840/- at the instance of the parties. On 11.5.1990 FDR of Rs.1.00 lac was prepared under FDR No.346500 for 2 years in the name of M/s Sharada Transporters. This FDR has been received by Hari Charan Gupta one of the partners who also took part to open the account jointly with complainant. Since Hari Charan Gupta is the Managing Director of M/s Deepak Minerals Industries (P) Ltd. opened a current account with Bank of Baroda, Barbil Branch on 22.8.1994 and availed an Over Draft of Rs.3,60,000/- against  different fixed deposits in the name of Hari Charan Gupta, M/s Deepak Trading Co. and M/s Sarada Transporters. Subsequently, credit limit has been increased to Rs.6.00 lacs. Since Hari Charan Gupta who is a partner of complainant’s firm has adjusted the maturity value of FDR Nos. 346500 and 656103 of M/s Sarada Transporters in the Over Draft account of M/s Deepak Minerals Industries (P) Ltd. on 1.1.1996 and accordingly, M/s Deepak Minerals Industries (P) Ltd. has shown this amount of Rs.3,60,811/- as loan from M/s Sarada Transporters in their Books of Accounts. Thus, the opposite parties claimed that these facts have not been stated by the complainant. For that the complaint is not maintainable due to suppression of material facts. As the FDRs in question have been operated by Hari Charan Gupta who happens to be the partner of M/s Sarada Transporter and also  Managing Director of  M/s Deepak Minerals Industries (P) Ltd.,  Bank has not done any wrong by adjusting against said matured amount. The complainant has cunningly not made Hari Charan Gupta as a party being hand in gloves with him and put the opposite parties to harassment by bringing such concocted case against them. As there is no deficiency of service, the case of the complainant is not maintainable and as such, the complaint  should be dismissed.

4.      After hearing both the parties, the learned District Forum found that the FDRs vide Ext. C & D are pledged and adjusted with the loan account of M/s Deepak Minerals Industries (P) Ltd. by the opposite parties and intimation in this regard only was sent to the complainant on 11.4.1998 through Ext. E. Also they found that Hari Charan Gupta was not authorised by the complainant’s firm to pledge such FDRs of complainant’s firm to adjust the loan or Over Draft accounts of M/s Deepak Minerals Industries (P) Ltd. The opposite parties have failed to produce any evidence that Hari Charan Gupta was authorised to pledge and withdraw the FDRs in dispute on behalf of the complainant’s firm. The said act of the opposite parties is clear violation of the instruction of complainant’s firm, the opposite parties have got deficiency of service and as such, the complainant’s firm is entitled legally to get back the FDRs amount. They relied upon one decision of the Hon’ble National Commission and allowed the complaint by directing the opposite parties to pay Rs.3,60,811/- with 10% interest per annum from 1.1.1996 till final payment to the complainant and also further directed to pay  Rs.500/- towards cost of  litigation.

5.      Learned counsel for the appellant further submitted that learned District Forum has committed wrong by allowing the complaint which is not maintainable. According to him, there is no deficiency in service on the part of the opposite parties Bank. Learned District Forum have erred in law by not appreciating the factual aspect and legal aspect in proper perspective. Learned District Forum have not applied its judicial mind to the facts of the case and the materials produced before it.

6.      Learned counsel for the appellant further submitted that the complainant firm has opened account in the Bank of the appellants where there is instruction for operation of Bank accounts jointly by complainant and Hari Charan Gupta and with the knowledge of the complainant’s firm the concerned FDRs have been opened and the said  FDRs have been renewed from time to time at the instruction of Hari Charan Gupta who was one of the partners of the complainant’s firm and also  Managing Director of M/s Deepak Minerals  Industries (P) Ltd. The opposite party has got lien over all the FDRs including FDRs in question as available from the written version of the opposite party. The fact of retirement of Hari Charan Gupta from the partnership firm of the complainant was not made available to the opposite parties by the complainant and it only informed on 20.12.1997 that  Hari Charan Gupta has retired from the partnership in 1995. There was instruction from the side of the complainant for pledging the FDRs in question through Hari Charan Gupta and accordingly, matured amount of said FDRs have been transferred to meet the loan amount of M/s Deepak Minerals Industries (P) Ltd. on 1.1.1996. Had there been presence of Hari Charan Gupta and M/s Deepak Minerals  Industries (P) Ltd. before the District Forum, the matter could have been enquired into detail and there was also written version before the District Forum to make those persons as party but the complainant has not made them party. So there was suppression of material fact by the complainant and this aspect has been ignored by the District Forum for which the impugned order suffers from illegality and irregularity.

7.      Learned counsel for the appellant further submitted that the maturity amount of two FDRs in the name of the complainant’s firm since being operated by one of their partners whose retirement was not intimated before 1.1.1996 to the Bank, there is no any deficiency in service by the opposite parties to transfer the maturity amount of these FDRs against Over Draft account of M/s Deepak Minerals Industries (P) Ltd. where Hari Charan Gupta is the Managing Director. According to him, the opposite parties have not committed any illegality by encashing the FDRs against the loan account of one firm i.e. M/s Deepak Minerals Industries (P) Ltd. The consent of the complainant’s firm was impliedly taken by the conduct of the concerned firm because the concerned complainant firm neither intimated about the retirement of Hari Charan Gupta from their Company in 1995 nor they produced the FDRs before the Bank to prove their bonafideness and further conduct of the complainant firm purportedly made about non-availability of FDRs with them and asked the Bank to give the xerox copies of the FDRs. Learned District Forum has committed error by not appreciating all these facts and without any material on record has observed that the opposite parties have got deficiency in service by encashing the FDRs to meet the loan amount of one M/s Deepak Minerals  Industries (P) Ltd. without knowledge or consent of complainant’s partnership firm. It is further submitted on behalf of the appellant that the order of the learned District Forum is to be set aside and appeal to be allowed with cost.

8.      Learned counsel for the respondent submitted that there was deficiency in service and unfair trade practice on the part of the opposite parties for neither taking consent of the complainant firm nor of its authorised partner, namely, Kameswar Prasad Sarada while encashing the FDRs in question. Further, it is submitted on behalf of the respondent that the learned District Forum have well appreciated the fact and also applied the same correctly to allow the complaint. So he supported the impugned order fully.

9.      Basing on the pleading and the contention of the learned counsel for both the parties two points involved to be decided in the appeal.

i)       whether the complainant before the District Forum has proved deficiency in service and unfair trade practice allegedly committed by the opposite parties?

ii)      whether the case is bad for non-joinder of necessary party?

Point No.1

10.    It is well settled in law that the consumer dispute is to be adjudged basing on the principle applicable to dispose of a civil suit. It is also trite in law to observe that if none of the parties adduced evidence, the case of complainant fails. So the onus lies on the complainant to prove the fact as alleged by him before the learned District Forum. It is not unknown to the legal luminaries that when the onus is to be shifted to the opposite parties to prove their pleas.  Now in the instant case, we have to see whether the complainant has proved the fact of the case as alleged by him before the learned District Forum.

11.    It is the case of the complainant that there was partnership firm and clause – 11 shows that the Bank accounts of the firm is to be operated by one of the partners namely Kameswar Prasad Sarada who is in fact  representing the partnership firm before the District Forum. It is also pleaded by the complainant that in the year 1993, four of the partners retired and three partners namely, Kameswar Prasad Sarada, his son Sanjay Kumar Sarada and Hari Charan Gupta continued as partners of the firm till 31.3.1995 and on 1.4.1995 Hari Charan Gupta also retired. It is further available from the complaint that the FDR Nos. in question namely, 346500 and 346412 have been opened in the name of the complainant firm and Kameswar Prasad Sarada was only authorised to operate those FDRs and at no point of time the complainant has authorised  Hari Charan Gupta to operate the Bank transaction or FDRs as the case may be. In the year 1997, they found that the FDRs have been missing from the firm and accordingly, they asked the Bank to send the copies of the FDRs and then only the complainant firm came to know that the FDRs have been encashed. On the other hand, the opposite parties submitted that the partnership firm had opened the account and FDRs being operated by one Hari Charan Gupta who was not made a party, and Sri Gupta was to operate the FDR accounts and also it is pleaded by the opposite parties that said FDRs along with other FDRs  in the name of one M/s Deepak Minerals Industries (P) Ltd. have been pledged to the Bank to meet the loan amount availed  by  Hari Charan Gupta, who happens also the Managing Director of M/s Deepak Minerals  Industries (P) Ltd. Also it is the case of the opposite parties that there is no deficiency of service and no information was made about retirement of Hari Charan Gupta who was actually operating the FDRs. From the aforesaid pleading, it is for the complainant to prove the facts alleged by him against the opposite parties as stated earlier. Here the statutory provision is required to be looked into to find out what should be done if the complaint is filed. Sub-section - 1 of Section - 12 of the Act said that complaint will be filed before the District Forum by the consumer who has alleged about either deficiency in service or unfair trade practice as alleged. Thereafter, the District Forum has to proceed with the complaint either to reject or to allow the same. While considering the complaint, as per section - 13 of the Act, the District Forum has to observe the procedure on admission of complaint. Sub-section 2 of section – 13 prescribed  as hereunder:-

                             “xxxx            xxxx               xxxx

(2) The District Forum shall, if the (complaints admitted) by it under Section 12 relates to goods in respect of which the procedure specified in Sub-section (1) cannot be followed, or if the complaint relates to any services,

(a) refer a copy of such complaint to the opposite party directing him to give his version of the case within a period of thirty days or such extended period not exceeding fifteen days as may be granted by the District Forum.

(b) where the opposite party, on receipt of a copy of the complaint, referred to him under Clause (a) denies or disputes the allegations contained in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceed to settle the consumer dispute,

(i) on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint, or

(ii) (ex parte on the basis of evidence) brought to its notice by the complainant where the opposite party omits or fails to take any action to represent his case within the time given by the Forum.

(c) where the complainant fails to appear on the date of hearing before the District Forum, the District Forum may either dismiss the complaint for default or decide it on merits.”

          From the aforesaid sub-section, it is made clear that after the written version is filed by the opposite parties, the District Forum would proceed to settle the consumer dispute on the basis of evidence brought to its notice by the complainant and the opposite party, where the opposite party denies or disputes the allegations contained in the complaint. Now the word ‘evidence’ is very crucial one to be observed.   In the decision of Ramnarayan Mor and another vs. State of Maharashtra 1964 SCR (5) 1034, it has been held by the Hon’ble Apex Court as follows:-

“The expression ‘evidence’ as defined in s.3 of the Evidence Act gives merely the dictionary meaning of the word and it has no application for interpreting the word ‘evidence’ in sub-s.(6). The expression ‘evidence’ is used throughout the criminal procedure as meaning judicial evidence i.e., oral evidence tested by cross-examination if any and documents which have been proved and which are relevant and admissible. The expression ‘documents produced for inspection of the court’ under s.3 of the Evidence Act means merely “for inspection of the Court” and the court cannot base its findings on the contents of such documents.”

12.    From the aforesaid decision, it is clear that evidence means either oral evidence or documentary evidence. Oral evidence and documentary evidence are to be construed as per provision of Evidence Act. The word ‘evidence’ has not defined in the Act. So the Evidence Act has to be followed. Even if it is a Consumer Forum which is a quasi judicial in nature and also facts that 50% of the Bench is presided by the persons of judicial background, the “evidence” must be understood as per the Evidence Act. So the District Forum cannot simply rely upon any material produced without evidence being adduced by the parties in proper manner. The manner of adducing evidence has been mentioned in the C.P.C. It is true that the entire provision of C.P.C. are not applicable but some provisions of C.P.C. are applicable as per the statute and rules made thereunder. So, in our view, the “evidence” must be led by the parties in accordance with the principle of Evidence Act.

 13.   In the instant case, surprisingly, it is found that  Ext.1 to 11 has been marked but no witness has been examined to mark the Exhibits. The order sheet available in the lower court record will indicate how it is marked. The order dated 28.9.1999 is placed below for proper appreciation.

                             “ Sl.No. 26 Dated 28.9.99

President is present. Members are present. G.P. for complainant files Hazira. Marked as Ext. 1 to 11 filed by the complainant. Adv for OPs filed time petition for the reasons stated therein. Copy served. Time is allowed. Put up on 6.10.99 for hearing of the case.”

14.    The aforesaid order does not indicate who produced Exts. 1 to 11 and how the documents have been marked as Exhibits when on the same date, the opposite parties have filed time petition for adjournment of the case. It is well known in the cannons of law that a witness is required to file examination in chief through affidavit whereunder the documents have to be filed and the court is required to follow the provisions under C.P.C. and the documents are to be marked as exhibits according to relevancy and admissibility of them. It is true that provision of C.P.C. should be obviated to grant relief under the Act. It is true that the Act is made for quick remedy to the consumers. So the quick action on the part of the District Forum is required but that does not mean that basic principle of leading evidence or marking of documents as exhibits would be totally ignored and over come. Therefore, the documents i.e., Exts. 1 to 11 should have been marked by following the principle of law of evidence.

15.    In view of what stated above, on examination of the evidence of complainant, it appears that the complainant has not followed the proper procedure of adducing evidence and the District Forum has not also paid attention to such manner of accepting evidence. However, basing on the materials, the case has to be judged. It appears that Ext. 1 is the notice of the lawyer of the complainant to the opposite parties. So the office copy being prepared under the uniform carbon purpose is marked as Ext. 1. Thereafter, it appears that some postal receipts and acknowledgments have been marked as Ext. 2 to 7. These documents also cannot be thrown away from consideration. Ext. 8 is the reply of opposite party No.3 Bank to the lawyer of complainant’s firm. So there is no any objection to such documents. From perusal of the letter of the lawyer of the complainant and the reply, it assimilates that the FDRs of complainant’s firm was being operated by Hari Charan Gupta.  It also appears from the letter of the complainant that the FDRs have not been with them on the ground that they have been misplaced whereas the reply of the opposite party Bank shows that FDR No. 346412 dated 22.3.1990 with value of Rs.1.00 lac was received by the Basantpur Branch of Bank of Baroda from their Barbil Branch and that was again retransferred from Barbil Branch vide renewal FDR No. 655103 on 25.6.1994 and its maturity value as on 22.6.1994 was Rs.1,62,535/-. This FDR was renewed as per the request of the complainant firm. Again as per the request of the complainant firm, they returned the proceeds of the FDR No. 655103 to Barbil Branch of the Bank of Baroda. Against this letter, there is nothing mentioned in the complaint. Now the copy of the three Partnership Deeds has been filed and marked as Exts. 9, 10 and 11. The normal procedure for producing any copy of the private document is to first produce the original document and has to be proved by the witness who has prepared or whose signature is appended thereon or who has witnessed preparation of such documents. There is no explanation from the side of the complainant what happened to the original deeds of the partnership. If these are copies, of course true copy being attested by one Gazetted Officer could have been filed. There must be some explanation from the side of the complainant why the original documents were not filed. In absence of such explanation or the circumstances leading to adduce secondary evidence, the documents per se should not have been taken into consideration. However, Ext. 9 the partnership deed only shows that on 1.1.1989 seven persons including Kameswar Prasad Sarada and Hari Charan Gupta constituted complainant’s firm. Ext. 10 shows that on 1.4.1993 four partners retired and the partnership was reconstituted with Kameswar Prasad Sarada, Sanjay Kumar Sarada and Hari Charan Gupta. Then Ext. 11 shows that on 1.4.1995 Hari Charan Gupta retired and the partnership firm was reconstituted with Kameswar Prasad Sarada and Sanjay Kumar Sarada. Of course, the opposite parties have not stated anything about this reconstitution of the partnership firm as they are not aware of the same except knowing facts of the reconstitution of the same from the pleading of the complainant. The complainant has not produced any copy of the FDRs and no explanation is submitted by the complainant in this regard as the complainant has withdrawn himself from the witness box to state as to what happened to the FDRs and copies of the FDRs, if the complainant firm is very much concerned about the FDRs.

16.    So the complainant has neither produced the oral evidence nor produced the admissible relevant evidence. However, from the pleadings, it appears that as per clause – 11 of the original partnership deed one Kameswar Prasad Sarada was authorised to operate the Bank accounts of the concerned firm.

17.    On the other hand, the document filed vide Ext. 8 shows that the FDR No. 655103 is being retransferred between the branches of Basantpur to Barbil only on the request of the complainant’s firm. So far the FDR No. 346500 dated 11.5.1990, the same appears to have not received by Basantpur Branch. If at all there documents are relied upon by the complainant, same do not prove the allegations of the complainant. Thus, it would be construed that the complainant has never proved the allegation by virtue of evidence adduced by him.  

18.    On the other hand, the opposite parties have led evidence by examining one witness DW - 1 by producing the documents to prove that they have discharged their duty in accordance with the norms of the Bank. The DW - 1 who is the Senior Branch Manager duly authorised by the opposite parties Bank has proved the request of the complainant firm to open an account and the same is Ext. A/1 which also bears signature of all the partners of complainant firm. He also proved the concerned FDR No. 366500 vide Ext. C/1 and FDR No. 655103 vide Ext. D/1 which are disputed FDRs. He has also proved the letter in original dated 11.4.1998 to the complainant firm about the whereabouts of the FDRs on the request made by the complainant’s firm. He has also been cross examined. Of course, it is revealed from his cross examination that he has joined the Branch on 29.6.1998 and he has no personal knowledge of any transactions before that. So whatever he stated as has been available from the documents. Now, after further cross examination it reveals from the evidence that the Bank has no any knowledge about retirement of Hari Charan Gupta from the complainant’s firm. On perusal of documents vide Ext. A/1, it appears that complainant opened an account at Bank of Baroda, Barbil Branch and there was instruction that the account will be operated jointly by two persons namely, Kameswar Prasad Sarada and Hari Charan Gupta and Ext. A/1 contain the signatures of all the partners. Ext. C/1 shows that the FDR No. 346500 was opened on 11.5.1990 for two years for Rs.1.00 lac and later it became Rs.1,81,695/- by 11.12.1994 and this FDR is found to have been deposited by Hari Charan Gupta on behalf of the complainant firm. Similarly, Ext. D/1 shows that FDR No. 655103 after the transfer to Barbil Branch has got maturity value of Rs.1,21,840/- and subsequently,  in 1994, it matured with Rs.1,79,116/- and this FDR also  opened under the signature of Hari Charan Gupta for the complainant firm and it has also been renewed by Sri Gupta. So Ext. C/1 and Ext.D/1 no doubt have been operated by Hari Charan Gupta on behalf of the complainant firm throughout. But Ext. A/1 which is made to be operated jointly by Kameswar Prasad Sarada and Hari Charan Gupta led to have no relation with Ext. C/1 and Ext. D/1 as  Ext. A/1 only allowed to operate the accounts by these two persons on behalf of the firm, particularly to operate the check books. So the operation of Ext. C/1 and Ext. D/1 on behalf of the complainant firm by Hari Charan Gupta cannot be said to have been any connection with the earlier request by the firm to operate jointly by Kameswar Prasad Sarada and Hari Charan Gupta. However, Hari Charan Gupta has already operated the account on behalf of the firm time to time as he was one of the partners of the complainant’s firm which lead to believe that he must have been delegated by firm to operate the FDR accounts. This belief is reasonable due to continuous conduct of Sri Gupta towards operation of account of M/s Sarada Transporters. There is no any fruitful cross examination to DW -1 to elicit that opposite parties have been informed by the complainant about the retirement of partner like Hari Charan Gupta in 1995.

19.    Moreover, Ext. C/1 and Ext. D/1 further show that these two FDRs have been under lien with the opposite parties Bank. The complainant has not brought anything during cross examination of DW - 1 that these FDRs were opened by Hari Charan Gupta without the knowledge of the complainant’s firm particularly when the seal of the firm has also been available on the FDRs. Not only this but also the FDRs being of the year 1990 and 1992 when Hari Charan Gupta admittedly was the partner of the complainant’s firm, the fact of lien over the same must have been disclosed by Hari Charan Gupta who is not a party to the case and by Kameswar Prasad Sarada who is not also examined on behalf of the complainant to state the truth. Apart from this, it is reiterated that there is nothing available from the evidence of Ext. C/1 and Ext. D/1 that intimation was given to the opposite parties about the retirement of Hari Charan Gupta in 1995. Ext. E is information to the complainant’s firm on 11.4.1998 about the FDRs and the information only shows that the matured amount has been transferred to the Over Draft account of M/s Deepak Minerals Industries (P) Ltd. as per the request on 1.1.1996. In absence of Hari Charan Gupta being impleaded as a party to the case and in absence of the statement of the complainant on oath, Ext. - E can be relied upon to construe that there was request on behalf of the complainant firm for utilising the matured amount of those two FDRs in favour of M/s Deepak Minerals Industries (P) Ltd. This conclusion can be arrived as having been found misplaced, complainant requested the Bank to supply the status of the FDRs. When FDRs are not being with the complainant and there is  no any intimation as to the retirement of Hari Charan Gupta from the complainant’s firm in 1995, the evidence of DW - 1 along with other documents shows preponderance of probability that under the instruction of complainant’s firm FDRs were created for the said amount through Hari Charan Gupta who was one of the partners of the complainant’s firm and at their instance the same have been encashed to meet the loan amount of M/s Deepak Minerals  Industries (P) Ltd. where  Hari Charan Gupta is the Managing Director.

20.    From evaluating the evidence of both parties, it appears that the complainant has failed to prove to show the deficiency in service or unfair trade practice by the opposite parties, rather the evidence of the opposite parties are more probable to show that they have acted as per the request of the complainant firm. Learned District Forum has simply observed in one para that Hari Charan Gupta being not authorised by the complainant firm and not competent to adjust the FDRs of M/s Sarada Transporters to the loan and Over Draft account of M/s Deepak Minerals Industries (P) Ltd. and the opposite parties also could not produce any evidence to show that Hari Charan Gupta was authorised to withdraw the FDRs on behalf of the complainant’s firm. The observation of the learned District Forum does not disclose what evidence has been analysed by them so as to come to this conclusion. Moreover, the observation of the learned District Forum lost sight of the fact that there was no intimation given by the complainant’s firm to the opposite parties Bank about the retirement of Hari Charan Gupta and complainant has also pleaded the same fact. Moreover, the final opinion given by the learned District Forum that the transaction in the present case by the Bank was not legally done, the complainant’s firm is legally entitled to the same but nowhere in the judgment of the District Forum they have observed that the deficiency or unfair trade practice was well proved by the complainant to discharge the onus. It must be remembered that the District Forum is a statutory Forum and it must abide by the legal requirement under the statute. The statute is clear to show what is deficiency in service and what is unfair trade practice. When the opposite parties have proved their act bonafidely, the complainant has suppressed the material fact and did not choose to make Hari Charan Gupta as a party and did not choose to inform the Bank about the retirement of Hari Charan Gupta, the finding of the learned District Forum about the observation that legal consequence to follow about the transaction of pledge etc. binding on the Bank cannot be sustained. From the aforesaid analysis,   it is held that there is no deficiency in service proved or unfair trade practice made by the opposite parties Bank. Point No.1 is answered accordingly.

Point No.2

21.    From the aforesaid discussion, it is clear that neither Hari Charan Gupta nor M/s Deepak Minerals Industries (P) Ltd. have been made party in this case in spite of the objection made by the opposite parties before the District Forum. It is also observed in the aforesaid para that Hari Charan Gupta is a necessary party and he was to give the details of the transactions between him and the complainant’s firm so as to find out a clear picture to the case as per direction made above. According to Order – 1 Rule – 9 of C.P.C. a suit is bad for mis-joinder or non-joinder of parties. When Hari Charan Gupta and M/s Deepak Minerals Industries (P) Ltd. being necessary parties have not been impleaded and the objection thereto has also been made by the opposite parties, the complaint is bad for non-joinder of necessary parties. It is true that the case can be returned to the District Forum for rehearing by impleading those parties but unfortunately, this is a matter of 2001, which is supposed to be disposed of within time as per the statute. Hence, we are of the view that the complaint is not maintainable and bad for non-joinder of necessary parties as sated above. Point No.2 is answered accordingly.

CONCLUSION

22.    Learned counsel for the respondent relying upon a decision stated that in the similar case the Hon’ble National Commission reported in 1995(2) CPR – 29 (NC) (Regional Manager, Union Bank of India and another versus Maharaja Swai Jai Singh Benevolent Trust) has found deficiency in service. Since the fact of that case is not similar to the fact of this case, the decision relied upon by the learned District Forum is not applicable to this case.

23.    For the forgoing reason, it is held that there is no deficiency of service and unfair trade practice on the part of the opposite parties Bank, rather the case is bad for non-joinder of necessary parties. So the impugned order of the District Forum is set aside and the appeal is allowed. No cost. Free copy of this order be given to the respective parties. Statutory fees if deposited be returned to the appellants forthwith.

           DFR be sent back forthwith.​                                     

                                                                                        ................................

                                                                                  (Dr.D.P.Choudhury), President

                                                                                ......................

                                                                                   (Dr.S.Mohanty), Member