Manik Chandra Ghatak v. Branch Manager, United Bank Of India
2024-08-12
Arijit Banerjee
body2024
DailyLaw.ai
JUDGMENT : ARIJIT BANERJEE, J. 1. This civil revisional application is directed against an order dated February 21, 2019, whereby the petitioner’s Revision Petition No. 1609 of 2016 filed under section 21(b) of the Consumer Protection Act, 1986 (in short CPA) was dismissed by the National Consumer Disputes Redressal Commission ( in short NCDRC). 2. The brief facts of the case are that the petitioner obtained two loans of Rs. 60,000/- each from the respondent bank. As security, he had mortgaged two LIC policies with the bank. As per the terms of the loan agreement, he was required to deposit the EMIs regularly, which he failed to do since 2009. 3. The petitioner says that when he tried to deposit the premium in connection with the two LIC policies in November, 2012, he came to know that those policies had been surrendered by the respondent bank and the value thereof was remitted to the bank by LIC. 4. The petitioner filed a complaint before the Consumer Disputes Forum at Port Blair, against the respondent bank. He claimed compensation to the tune of Rs. 15,74,786/- and interest thereon for the alleged loss that he had suffered by reason of surrender of the two LIC policies by the bank. He contended that no notice of demand was served on him by the bank. No prior intimation was given to him that the LIC policies would be surrendered on account of his default in payment of EMIs. 5. By an order dated April 29, 2015, the Consumer Disputes Forum held as follows:- “It has been admitted by the complainant that he did not pay any amount of E.M.I since 2009. It is expected that the complainant being an educated and prudent person had the knowledge as to what steps the bank might have taken in case the payment of the amount of the E.M.I.s of his loan account remaining unpaid for long. There is no evidence at all to show that the Complainant had approached the bank when he could not pay the amount of instalment for a substantial period.
There is no evidence at all to show that the Complainant had approached the bank when he could not pay the amount of instalment for a substantial period. It must have been very well within his knowledge that the bank would have surrendered his two LIC policies kept mortgaged against his loan if the payment of E.M.I.s of the loan is not made for long, and this would bring immense financial loss for him, the anxiety of which is found to have been largely expressed by him in the petition of complaint. As the complainant did not pay the said loan or the amount of the E.M.I. of said loan and kept it pending over the years. In such circumstances, we don’t find anything against the act of the bank in realizing the amount of loan by way o surrendering the two LIC policies which had been kept mortgaged against the said loan. And the said act of the bank cannot be said to have amounted to deficiency in service on the part of the O.P.” 6. Accordingly, the District Forum issued the following directions: “ That the instant case is allowed in part on contest. The Complainant is entitled to get interest on Rs. 38,652/- being the excess amount after realization of O.P.’s claim which had been kept idle in the loan account. The O.P. bank is directed to pay interest @ 18% per annum on the said amount for the period from 19/10/2011 to 24/11/2012 within 30 days, from this day, in default, the Complainant can realize the said amount in accordance with law.” 7. The petitioner challenged the said order before the State Consumer Disputes Redressal Forum (in short the State Commission), Port Blair by filing Appeal No. 05/2015. By an order dated March 16, 2016, the State Commission dismissed the appeal, observing as follows:- “ There is specific evidence of record to show that the appellant has not repaid the loan not even a single furthing of the loan. The bank proceeded for the recovery of the loan and gave a demand notice to the appellant vide its reference no. UBI/JGT/ADV/03/11 dated 04/08/2011. There is evidence on record which is also not disputed that the appellant is a Lecturer of Dr.B.R. Ambedkar, Govt. Polytechnic, Port Blair. The notice was addressed to the appellant in that address. Much has been argued by the 14.
UBI/JGT/ADV/03/11 dated 04/08/2011. There is evidence on record which is also not disputed that the appellant is a Lecturer of Dr.B.R. Ambedkar, Govt. Polytechnic, Port Blair. The notice was addressed to the appellant in that address. Much has been argued by the 14. Counsel of the appellant that there was no notice of demand from the bank before taking step for surrendering the policies of the appellant. It has been argued that natural justice demands issuance of notice before the recovery of the loan. The evidence is Oath vs. Oath. The evidence of the respondent has a supporting document viz; the demand notice. It is Exhibit-t’. It was marked as such with objection. We have discussed about the activities of the bank. The bank/respondent have no scope to create a document on a subsequent date giving the earlier date as the banking operation is a day to day affair. We repeat that a bank cannot by pass its activity keeping something blank for future redress. It is improbable to create such a document like that of demand notice on a subsequent date giving the earlier date. If it is to be done, the entire subsequent day to day transactions of the bank will have a telling effect regarding its documentation part. There is no evidence on record that the respondent and the appellant were not in a good terms. There is no evidence on record that there was an enmity between them. The respondent being a public organisation is always accountable for its activity. If we have to accept the argument advances by the Ld. Counsel of the appellant then we have to express that the demand notice is a fake document. The Commission cannot express like that without any substantive evidence specially, when the banking business/financial transaction is a daily affair wherein the bank cannot avoid documentation of its each day’s action in black and white. Taking the aforesaid reasoning in our mind, we find reason to express that the respondent issued notice of demand to the appellant before surrendering the LIC policies. There is no document in the record to show that the respondent/O.P bank was under mandatory obligation to declare the concerned account as Non Performing Asset (NPA). The appellant/complainant did not produce any papers regarding rules and regulations to be followed by the bank to declare an account NPA.
There is no document in the record to show that the respondent/O.P bank was under mandatory obligation to declare the concerned account as Non Performing Asset (NPA). The appellant/complainant did not produce any papers regarding rules and regulations to be followed by the bank to declare an account NPA. We are, therefore, not in a position to agree with the argument advances by the IA. Counsel of the appellant touching the above said point. The Cardinal principle of law is that the complainant is to sail his boat by the help of his own fuel meaning thereby the complainant is to prove his case with the help of his evidence. He cannot bank upon the lacunae of his adversary to prove his case. We repeat that the complainant gave an undertaking that he will repay the loan amount within one year but has not honoured his undertaking by his own action. He being responsible person holding a high office in its personal life earning a sizeable pay packet month by month, enjoyed the public money and has ultimately has approached the arena of justice with tainted hand. He has not approached for justice with a clean hand. He cannot cry for natural justice.” 8. The petitioner carried the State Commission’s order to the NCDRC by filing Revision Petition No. 1609 of 2016. The NCDRC by the order dated February 1, 2019, which is the subject matter of challenge in the present revisional application, observed that its jurisdiction under section 21(b) of the CPA, 1986, is very limited. It is not permissible for the NCDRC to reassess or re-appreciate evidence and on that basis reach a different conclusion. NCDRC cannot substitute its opinion in the place and stead of the findings of the fora below which are based on proven facts. The revisional jurisdiction can be exercised by the NCDRC only where the petitioner demonstrates jurisdictional error or that miscarriage of justice had occurred. The NCDRC referred to the decision of the Hon’ble Supreme Court in the case of Rubi (Chandra) Dutta vs. M/s United India Insurance Company Ltd. reported at (2011) 11 SCC 269 in support of its opinion that the revisional power of NCDRC can be exercised only if there is, prima facie, jurisdictional error in the impugned order or miscarriage of justice.
The operative portion of the order of the NCDRC reads as follows :- “ As regards the jurisdictional error is concerned, no fact has been brought to my notice to show any jurisdictional error in the impugned order. As regards the miscarriage of justice is concerned, it is the admitted fact that the Petitioner/Complainant had defaulted in making the payment of EMIs since 2009 and policies were forfeited only on 28.09.2011. Since the Complainant is a defaulter and the policies were mortgaged by him, the forfeiture of the same for recovery of the loan amount cannot be said to have caused any miscarriage of justice to the Complainant/Petitioner. The District Forum has also noted that the Complainant is an educated man and very well aware that he had to regularly pay the EMIs and he himself was a defaulter. I found no illegality or irregularity in the impugned order. The Revision Petition has no merits and the same is dismissed in limine.” 9. Being aggrieved by the order of the NCDRC, the petitioner has challenged the same by way of this application under Article 227 of the Constitution of India. 10. Learned advocate for the petitioner has argued really one point i.e. no notice of demand was served on the petitioner by the bank prior to recovery of the outstanding dues by surrendering the mortgaged LIC policies. Further, no prior intimation was given to the petitioner that the bank is proposing to recover the outstanding loan amount by encashing the securities i.e. LIC policies. Without such notice of demand or prior intimation, the bank could not have surrendered the LIC policies. Such act of the bank is illegal and has caused huge monetary loss to the petitioner. 11. Several decisions have been referred to by the learned advocate for the petitioner which all pertain to the merits of the disputes between the parties. I consciously refrain from dealing with or discussing such decisions since the same would not be relevant for deciding the present civil revisional application, the scope of which is very limited. 12. Let me note a few decisions of the Hon’ble Supreme Court on the scope of Article 227 of the Constitution of India :- (i) Trimbak Gangadhar Telang vs. Ramchandra Ganesh Bhide reported at AIR 1977 SC 1222 .
12. Let me note a few decisions of the Hon’ble Supreme Court on the scope of Article 227 of the Constitution of India :- (i) Trimbak Gangadhar Telang vs. Ramchandra Ganesh Bhide reported at AIR 1977 SC 1222 . It was held that only when an order of a Tribunal is violative of the fundamental basic principles of justice and fair play or where a patent or flagrant error in procedure or law has occurred or where the order passed results in manifest injustice, that a Court can justifiably intervene under Article 227 of the Constitution of India. (ii) Achutananda Baiday vs. Prafullya Kumar Gayen reported at (1997) 5 SCC 76 . It was held that the power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to High Court, have done what they were required to do. The High Court can interfere under Article 227 of the Constitution of India in cases of erroneous assumption or acting beyond its jurisdiction, refusal to exercise jurisdiction, error of law apparent on record as distinguished from a mere mistake of law, arbitrary or capricious exercise of authority or discretion, a patent error in procedure, arriving at a finding which is perverse or based on no material, or resulting in manifest injustice. As regards finding of fact of the inferior court, the High Court should not quash the judgment of the subordinate court merely on the ground that its finding of fact was erroneous. However, it will be open to the High Court in exercise of the powers under Article 227 of the Constitution of India to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. (iii) Khimji Vidhu vs. Premier High School reported at AIR 2000 SC 3495 . In this case, both the trial court as well as the appellate court, on the basis of material on record came to the conclusion that the respondent had used the spaces and passages, which had not been let out to them, in a manner other than for use of ingress and egress and had committed breach of terms of the tenancy of vital nature.
The Hon’ble Supreme Court held that the High Court could not have interfered with this finding of fact, in exercise of its jurisdiction under Article 227 of the Constitution of India. Jurisdiction under Article 227 of the Constitution of India must be sparingly exercised and may be exercised to correct errors of jurisdiction and the like but not to upset pure findings of fact, which falls in the domain of an appellate court only. The High Court, therefore, exceeded the jurisdiction vested in it by upsetting finding of facts and the impugned order suffers from a jurisdictional defect. (iv) Savita Chemicals (P) Ltd. vs. Dyes & Chemical Workers’ Union reported at (1992) 2 SCC 143. In this case, the Hon’ble Supreme Court held that under Article 227 of the Constitution of India, the High Court could not have set aside any finding reached by the lower authorities where two views were possible and unless those findings were found to be patently bad and suffering from clear error of law. (v) Estralla Rubber vs. Dass Estate (P) Ltd. reported at (2001) 8 SCC 97 . The Hon’ble Apex Court held that the exercise of power under Article 227 of the Constitution of India involves a duty of the High Court to keep inferior Courts and Tribunal within the bounds of their authority and to see that they do duty expected or required of them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the subordinate Courts or Tribunals. Exercise of this power and interfering with the orders of the Courts or Tribunals is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if the High Court does not interfere, a grave injustice will remain uncorrected. The High Court while acting under Article 227 cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record.
The High Court while acting under Article 227 cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the face of the record. The Hon’ble Supreme Court noted its observation in the earlier case of Bathutmal Raichand Oswal vs. Laxmibai R. Tarta and another reported at (1975) 1 SCC 858 to the effect that the power of superintendence under Article 227 cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as a court of appeal and that the High Court in exercising its jurisdiction under Article 227 cannot convert itself into a court of appeal when the legislature has not conferred a right of appeal. (vi) Ouseph Mathai vs. M. Abdul Khadir reported at (2002) 1 SCC 319 . It was held that no doubt Article 227 confers on the High Court a right of superintendence over all Courts and Tribunals throughout the territories in relation to which it exercises the jurisdiction but no corresponding right is conferred upon a litigant to invoke the jurisdiction under that Article as a matter of right. The power under Article 227 casts a duty upon the High Court to keep the inferior Courts and Tribunals within the limits of their authority, ensuring the performance of duties by such Courts and Tribunals in accordance with law. Only wrong decision may not be a ground for the exercise of jurisdiction under Article 227 unless the wrong is referable to grave dereliction of duty and flagrant abuse of power by the subordinate Courts and Tribunals resulting in grave injustice to any party. (vii) Sadhana Lodh vs. National Insurance Co. Ltd. reported at (2003) 3 SCC 524 . In exercising the supervisory power under Article 227 of the Constitution of India, the High Court does not act as an Appellate Court or the Tribunal. It is also not permissible to a High Court on a petition filed under Article 227 of the Constitution of India to review or re-weigh the evidence upon which the inferior Court or Tribunal purports to have passed the order or to correct errors of law in the decision. (viii) Surya Dev Rai vs. Ram Chander Rai reported at (2003) 6 SCC 675 .
(viii) Surya Dev Rai vs. Ram Chander Rai reported at (2003) 6 SCC 675 . The power of the superintendence under Article 227 of the Constitution of India cannot be invoked to correct an error of fact which only a superior court can do in exercise of its statutory power as the court of appeal. The High Court cannot, in exercise of its jurisdiction under Article 227, convert itself into a court of appeal. 13. In a recent decision rendered by the Hon’ble Supreme Court on February 23, 2022, in the case of Puri Investments vs. Young Friends and Co. and others reported at 2022 SCC OnLine SC 283, inter alia, the following observations were made in the context of exercise of jurisdiction by the High Court under Article 227 of the Constitution:- “15. We are in agreement with the High Court's enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court. 16. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. …… 17. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse. 18. For these reasons, we set aside the judgment of the High Court and restore the Appellate Tribunal's findings.” 14.
This is impermissible. The finding of the High Court that the appellate forum's decision was perverse and the manner in which such finding was arrived at was itself perverse. 18. For these reasons, we set aside the judgment of the High Court and restore the Appellate Tribunal's findings.” 14. The principle of law that can be culled out from the aforesaid decisions is that the jurisdiction of the High Court under Article 227 of the Constitution of India, is a supervisory one. It is exercised to keep the inferior Courts and Tribunals within their jurisdictional limits and to intervene where miscarriage of justice has occurred due to some patent error in the order impugned which appears on the face of the records. Power under Article 227 is not to be exercised to correct errors of fact which only an appellate Court can do. If no appeal has been provided against an order of an inferior Court or Tribunal, the High Court cannot, in exercise of power under Article 227 of the Constitution of India assume the role of an appellate Court and rectify such factual error. 15. In the facts of the present case, I do not find any jurisdictional error on the part of NCDRC. It has rightly held that while exercising revisional jurisdiction under Section 21(b) of CPA, 1986, it was not acting as an appellate forum. The NCDRC noted that the District Forum and the State Commission came to the finding that notice of demand was served on the petitioner herein. It rightly observed that it could not interfere with factual findings arrived at by the lower fora. 16. NCDRC also held that there has been no miscarriage of justice by reason of the order of the State Commission affirming the order of the District Forum since admittedly the petitioner is a defaulter and owed money to the bank. 17. In my consider opinion, there is no such illegality or procedural impropriety in the order impugned in this application, as would persuade me to interfere. 18. It is not that the first two fora came to factual findings based on no evidence at all. The State Commission has found that demand notice was served by the bank on the present petitioner. The relevant portion of the State Commission’s order in this regard, has been extracted above. 19.
18. It is not that the first two fora came to factual findings based on no evidence at all. The State Commission has found that demand notice was served by the bank on the present petitioner. The relevant portion of the State Commission’s order in this regard, has been extracted above. 19. Therefore, I see that there was some evidence of service of notice of demand by the bank on the present petitioner. In exercise of jurisdiction under Article 227 of the Constitution, I cannot go into the issue of the quality or quantity of the evidence on record nor can I re-assess the evidence. 20. NCDRC was justified in holding that it should not re-evaluate the evidence on record for coming to a different finding. 21. The petitioner has not made out any ground for exercise of the High Court’s supervisory jurisdiction under Article 227 of the Constitution of India. This application accordingly fails and is dismissed. However, there shall be no order as to costs. 22. Urgent certified server copies, if applied for, be issued to the parties upon compliance of due formalities.