MRS. VISWALAKSHMI SESIDHARAN AND ORS.versusTHE BRANCH MANAGER, SYNDICATE BANK, BELGAUM

A             MRS. VISWALAKSHMI SESIDHARAN AND ORS.
                                        ·v.
       THE BRANCH MANAGER, SYNDICATE BANK, BELGAUM

                              FEBRUARY 13, 1997

B               (K. RAMASWAMY, S. SAGHIR AHMAD AND
                              G.B. PATIANAIK, JJ.]

          Conswner Protection Ac~ 1986.

C          Deficiency in servic~laim for damages--Consumers obtained loan
   from Banlc--Bank did not release a part of the amount-Consumer filing
    claim petition against the Bank-In a letter to the Bank, consumer admitted
    their failure to repay the instalments due to slump in market-Held, the
    admission stands in the way of the consumers to plead at the later stage that
D · they suffered loss on account of the deficiency in service-Orders of Tribunal
    and the National Commissibn dismissing the claim do not wa"ant inter-
    ference-Merely filing of the suit b}' the Bank does not put a bar on the
    Tribunal to go into the meri_ts in the complaint.

          CIVIL APPELLATf: JURISDICTION: Special Leave Petition (C)
E   No. 4-077 of 1997.

          From the Judgment and Order dated 6.10.95 of the National
    Consumers Disputes Redressal Commission, New Delhi in F.A. No. 177
    of 1993.
F
           Prem Malhotra for the Petitioners.

           The following Order of the Court was delivered :

           This Special Leave Petition arises from the order of the National
G Consumer Disputes Redressal Commission, New Delhi. The petitioners
  had loan taken from the respondent-Bank on two accounts, one for a
  sum of Rs. 1,50,000 and the other for Rs. 3,00,000. It would appear that
  the Bank had disbursed a sum of Rs. 1.47 lacs and the balance amount
  was not released to the petitioners. It was their case, in the complaint
H laid before the District Forum, that due to deficiency in service, namely,
                                      50
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            VISWALAKSHMI SASIDHARAN v. BRANCH MANAGER, SYNDICATE BANK 51

          failure to disburse the total amount contracted under the agreement, the A
          petitioner could not carry on the business and discharge the obligations
          to pay the labour charges and, therefore, could not manufacture the
         products for which orders had been served. Since, there was slump in
          the market, they could not discharge the contract for repayment. Accord-
         ingly, they filed the complaint for damages in the sum of Rs. 9,50,000. B
         The Tribunals below dismissed the case and the National Commission
         confirmed the dismissal of the complaint on the three grounds. First, the
         petitioner had not complied with the conditions of the agreement of
         repayment. Thereby they committed breach of the contract. They cannot,
         therefore, complain of the defieiency of service. Another ground given C
         was that the suit was filed by the Bank for recovery on the premise that
         the Tribunal could not go into that question. Thirdly, ~t was Stated that
         in a letter addressed by the petitioners to the Bank that they had admitted
         that the failure to pay the instalments was due to slump in the market of
         the finished products and, therefore, they could not repay the loan.        D
                Though we find that there is not much force in the findings
          recorded by the eourts below on the first two grounds, the last ground
          merits acceptance. If pursuant to the contract the Bank did not disburse
          the amount and if there was any resultant default in the payment on E
          account thereof, that may be a defence open to the petitioners in the suit
          and also furnishes right to complain of deficiency in service to seek
         redressal under the Consumer Prot9ction Act. On that ground, the relief
         could not be rejected and the question was required to be gone into.
         Secondly, the mere filing of the suit for recovery of the amount may not F
         be an absolute bar on the Commission to go into that question for the
         reason that the issue· before the Civil Court is not the deficiency in the
         service unless that is specifically raised as a defence in the suit. However,
         we think that is one of defaults in the payment of the instalments. Under
         those circumstances, merely filing of the suit by the Bank does not put G
         a bar on the Tribunal to go into. the merits in the compla'int. Each case
         requires examination on the facts of the case. On the other hand, we find
         force in the reasoning given by the Tribunal on third point. 'It .is the
?        petition~rs' case that they were u~able to produce the goods and have
         them marked to pay back the loan in instalments. 1t was not the case H
    52                      SUPREME COURT REPORTS               (1997) 2 s.c.R:

A   that it was due to deficiency in service. On he other hand, it is admitted
    that due to slump in the market they could not sell the goods, realise the
    price of the finished product and pay back the loan to the Bank. That
    admission stands in their way to plead at the later stage that they suffered
    loss on account of the deficiency in service. Under those circumstances,
B   we do not find any ground warranting interference.

           The special leave petition is dismissed.

    R.P.                                                     Petition dismissed.




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