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2009 DIGILAW 374 (JK)

Gh. Hassan Najar v. J&K Bank Ltd.

2009-07-30

G.D.Sharma, Rifat Aijaz

body2009
G.D. Sharma, J. 1. The complainant runs a band saw mill as well as manufactures wooden fruit boxes in the village of Ashpeer Sopore. Through the medium of this complaint, he has prayed for a relief in the sum of Rs. 5,02,000/- for the damages suffered to his stocks in trade due to floods which occurred on 28-04-1986. The allegations made in the complaint are that the complainant had borrowed loan from the OPs for running the abovesaid business and according to the terms and conditions of the agreement of loan, the OPs were under the legal liability to get the business premises alongwith stocks in trade insured with the insurance company and towards the fulfillment of that obligation he had paid a sum of Rs. 540/- from the sanctioned amount of loan to the OPs but on their part they had failed to get his business premises insured from the insurance company. That this dereliction of obligation amounted to deficiency in rendering service. The complainant suffered loss to the extent mentioned above to this saw mill and stocks in trade and is entitled to be compensated. 2. In the written version filed by the OPs the following preliminary objections are taken with regard to the maintainability of the claim: - 1. The complainant has filed the complaint on the same cause of action regarding which earlier complaint No. 25/1999 was filed and the Hon'ble commission vide its order dated 28.07.1999 had held the claim as time barred; 2. The Hon'ble High Court in appeal filed by the complainant (CIMA No. 93/1999) had held on 22.05.2000 that the complainant was free under law to lodge the claim against the OPs for a different cause of action i.e., deficiency in service but the present complaint has again been filed on the same cause of action; 3. The complainant does not fall under the definition of a "consumer" as he had obtained loan facility from the OPs to the extent of Rs. 25000/- only and under the terms and conditions of the agreement of loan he was liable to get the goods/material purchased from that amount to the extended limit of Rs. 50,000/-. The alleged claim of Rs. 5,02,000/- falls outside the terms and conditions of the loan agreement. 3. On facts, it is pleaded that the complainant in the year 1982 had obtained loan facility to the extent of Rs. 50,000/-. The alleged claim of Rs. 5,02,000/- falls outside the terms and conditions of the loan agreement. 3. On facts, it is pleaded that the complainant in the year 1982 had obtained loan facility to the extent of Rs. 25000/- and the loan advanced had not been liquidated. Subsequently, he made application for the remission of the interest accrued thereon from 01-01-1983 which was quantified at Rs. 63048/-. His application was accepted, but the principal liability of the borrowed amount at Rs. 35251/- remained outstanding against him which was fully liquidated by him on 15-09-1995. These facts are verifiable from the statement of accounts of the bank. 4. Heard the arguments. 5. Mr. Khyal, the attorney holder of the OPs has at the out-set raised preliminary objections with regard to the maintainability of the complaint. He has contended that the complaint has been filed on the same cause of action which he had projected in the earlier complaint no. 25/1999 which was dismissed by the Commission by holding that the claim was time barred. In order to buttress his arguments, he has referred to para 5 of the complaint wherein it is pleaded that the complainant had paid the premium to the OPs but they had failed to carry out its obligation for obtaining the insurance cover. This averment runs contrary to the admission made by the complainant in his annexure C-7 at page 19 attached with the earlier compliant no. 25/99. In para no. (v) of that representation (annexure C-7) for remission of the interest it is pleaded that flood havoc of the year 1986 had been immediately brought to the notice of the then Branch Manager to take up the matter with insurance company, but he did nothing. From this statement it is established that he had got his business premises insured with the insurance company. Not only that in para no. 10 of complainant no. 25/99 it is pleaded that the OPs therein did not take any action for the settlement of his claim with the insurer as the insurance policy had not been provided to him. The Hon'ble Commission in its order dated 28.7.1999 had held the claim as time barred as well as given a finding that it was not the duty of the OPs to raise the claim with the insurer and on the same cause of action present complaint again has been filed. The Hon'ble Commission in its order dated 28.7.1999 had held the claim as time barred as well as given a finding that it was not the duty of the OPs to raise the claim with the insurer and on the same cause of action present complaint again has been filed. 6. In rebuttal Mr. B.A. Zargar, the learned counsel of the complainant has contended that the relief claimed in both the complaints were different and in the present complaint reliefs have been sought against the OPs and not against the insurer as had been done in the previous compliant no. 25/99. The complainants admission made in annexure C8 (page 22) attached with complaint no. 25/99; to the effect that Branch Manager Sopore of National Insurance Company had informed him that his business premises were insured with that company vide cover note no. 3684/3103926/86, ignorance is pleaded and that complainant had signed the letter dated 24-07-96 at the instance of Branch Manager and the letter had been addressed to General Manager. In order to wriggle out from the above stated admissions made in annexures C7 and C8, the learned counsel has referred annexure B attached with the complaint which is a letter dated 15-7-91 written to General Manager, J&K Bank, Srinagar wherein request was made to settle the claim. He has referred to statement of account prepared by the OPs regarding his loan which is annexure D attached with the complaint and deduction of Rs. 540/- has been shown as premium amount of the insurance deducted from his loan account by the OPs, but insurance policy was not obtained and that was negligent act constituting deficiency in rendering service. 7. We have considered the respective contentions of counsel for the parties and perused the record. The factual appreciation of the facts of the case have established that the present complaint is a replica of the earlier compliant No. 25/1999. The order passed by this Commission on 28.7.1999 stands as resjudicata for the finding recorded therein. The Hon'ble High court vide its order dated 22.5.2000 in CIMA No. 93/1999 had given liberty to the complainant to make a claim against the OPs on a different cause of action. On the facts and in the circumstances of the case, we do not find any deficiency on the part of the OPs for rendering the service of advancing loan. On the facts and in the circumstances of the case, we do not find any deficiency on the part of the OPs for rendering the service of advancing loan. The contract of insurance if any could be entered by the complainant with the insurance company on the terms and conditions mutually acceptable and the financer bank in question i.e., OPs could not be made a party without their consent. Not only that, when the complaint was filed in the Commission on 17-07-2000, the complainant had no subsisting contract of loan between him and the OPs because after making payment of the amount in the sum of Rs. 35251/- on 15-09-1995 there remained no privity of contract between them. Even on facts there are the admissions made by the complainant in annexures C7 and C8 attached with the previous complaint no. 25/99 to the effect that National Insurance Company had insured the business premises including the stocks in trade under the insurance cover already mentioned above. All these facts have established that complainant has filed this second complaint on the same cause of action by twisting the facts and exaggerating the claims and impleading the officials of the financer bank. The dispatch of unilateral letter to them on 15-07-1991 (annexure B) will not give them a fresh or different cause of action to claim any relief. The complaint is found misconceived and vexatious filed not as a genuine consumer but as a greedy consumer to enrich himself through the misuse of the process of the Commission which practice is depreciated. Hence, we find the complaint as false and vexatious which is dismissed with a cost of Rs. 10,000/- (Rupees ten thousand only) to be paid to the OPs within one month. The complaint be consigned to records.