COMPLAINT ABOUT FAULTY SERVICE OF BANKS
2. The court is on tour at Layyah.
3. The case is at the stage of the decision. The arguments were heard on the previous date. I have perused the file in the light of the arguments. Now I proceed to dispose off the complaint in accordance with the findings in the following paragraphs.
4. Briefly stated the grievance of the claimant is to the effect that a banker cheque amounting to Rs.2,25,000/- drawn against his current account No.0100831-4 at UBL/ defendant No.2 deposited by one Khanik Khan at the bank of defendant No.1 was returned with Memo from the bank of defendant No.2 about insufficient funds due to which the claimant had to suffer litigation. It is alleged by the claimant that defendants were collusive with the depositor; that the cheque was not issued by him; that the same was expired by two years; that the writing was made on it with different pens; that he had no transaction with the depositor. He has requested for providing adequate relief by acceptance of his application.
5. The ex-parte defendant No.1 had initially contested the complaint by filing his separate written statement in which it is asserted that the MCB was bound to forward the cheque without any objection to UBL and raised certain objections against the maintainability of the complaint with request for dismissal.
6. The contesting defendant No.2 has raised certain preliminary objections in his separate written statement including the objection about the lack of jurisdiction of this court; that the claimant has not intimated about expiry or misplacing or theft of the cheque; that the cheque was not expired; that there was no collusion of the bank with the depositor; that the bank has good reputation; that the detail of alleged loss has not been explained by the claimant; that the cheque was returned in accordance with rules and regulations; that the Consumer Act cannot be applied on the transaction; that the complaint is filed to blackmail; that the complaint is false and frivolous. It is requested that the complaint should be dismissed with grant of special costs to the answering defendant.
7. It is pertinent to note that evidence is necessary to be recorded under S.30 of PCP Act 2005 for disposal of the complaints by the Consumer Courts but since the procedural laws known as the Code of Civil Procedure, 1908; the Code of Criminal Procedure, 1898; the Qanun-e-Shahadat Order, 1984; the Bankers? Books Evidence Act, 1891; special rules of evidence u/s 118 of the Negotiable Instruments Act, 1891 are not strictly applicable to the proceedings of the Consumer Courts, as such regular evidence is not being recorded in this court in such cases where the points for determination are mostly based on the copies of the admitted documents available in the file of the complaint or admitted in the pleadings.
8. In the present case, however the claimant was directed to produce the evidence by observing that preliminary/legal objections are to be determined properly on the basis of the evidence through the appointment of the local commissioner (LLC) for recording the evidence with reference of Amended Rule 6 on page 37 of the Revised National Judicial Policy 2009 read with Order XXVI (26) of CPC vide order dated 20-11-2011 and the evidence of the claimant has been recorded in ex-parte manner because the defendant no.2 was also proceeded against ex-parte for certain period after which it was allowed to contest.
9. It is further observed that in such cases where regular evidence is not recorded, it is proper and necessary to treat the copies of the documents annexed with the complaint and written statement including the documents filed during the pendency of the complaint, as prima facie proof and evidence of the parties for reaching to the safe and just conclusion in such cases which can be effectively disposed off without recording regular evidence, therefore the contention of learned counsel for the parties was accepted vide order dated 11-04-2012 for decision of the case without completion of the evidence.
10. Documents referred in the ex-pate evidence of the claimant consist of the two affidavits of the claimant; affidavit of one Mohammad Saleem as witness; copy of bank receipt; copies of the Memorandums; copy of legal notice; copy of CNIC of the claimant. The original disputed cheque and original Memo has also been filed during the pendency of the case.
11. As far as the objection about the jurisdiction of learned Banking Court is concerned, it is observed that I am conscious of the ruling of Honourable High Court cited as 1988 CLC 1718 in Para 22 to the effect that; "It is settled law that once the Legislature has made any special law for a particular purpose prescribing a forum or a Tribunal for decision of any dispute the Courts should not encourage deviation from such course."
12. A perusal of the law shows that it is provided in S. 3 of PCP Act 2005 that "the provisions of the Act shall be in addition to and not in derogation of the provisions of any other law for the time being in force". The intent of the legislature is therefore deemed to be to the effect that the provisions of Consumer Law should not be derogated? by any other law being special law.
13. It is therefore observed that the jurisdiction of the Banking Court comes into operation when the matter relates to the loan or mortgage while the jurisdiction of the consumer court is not barred when the matter relates to the services alleged to be faulty and such dispute can be validly determined by the Consumer court in which the services are found to be faulty. Since the present case does not relate to the terms and conditions of the loan as such I find that the jurisdiction of this court is not barred.
14. A thorough study of the Banking laws shows that the history of legislation of the Banking Laws consist of the previously repealed laws namely Banking Companies (Recovery of Loans)
Ordinance, 1979; the Banking Tribunals Ordinance, 1984; the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 succeeded by the Financial Institutions (Recovery of Finances) Ordinance, 2001 as the latest law in the field. The Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 is repealed by S. 29 but S. 15 of the said Act is still applicable on the old cases according to said section.
15. A perusal of the current law shows that the terms defined in S. 2 consist of the Financial Institutions, Banking Court, Customer, Finance, Obligation, Rules.
16. It is provided in S. 3 that the costumer shall be liable to fulfill his obligation "apart from such other civil and criminal liabilities that he may incur under the contract or rules or any other law for the time being in force".
17. It is provided in S. 4 that "the provisions of this ordinance shall have effect notwithstanding anything inconsistent therewith contained in any other law for the being in force".
18. The Banking Court is established u/s. 5. The powers of the Banking Court are provided in S. 7. The old cases pending under Banking Companies (Recovery of Loans, Advances, Credits and Finances)
Act, 1997 have been transferred to the Banking Courts established under the new law also under S.
7. The old cases pending under Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 have been transferred to the Banking Courts established under the new law also under S. 7.
19. The procedure for the filing of the suits for recovery of written off finances etc is provided in S. 8.
The procedure of the Banking Courts is provided in S. 9. The disposal of the suit is provided in S. 13.
The decree in suit relating to mortgages is provided in S. 14. The sale of mortgaged property is provided in S. 15.
20. Attachment before judgment, injunction and appointment of receivers is provided in S. 16.
Attestation of Banking Documents is provided in S. 18. Execution of decree and sale with or without intervention of Banking Court is provided in S. 19. The provisions relating to certain offences are provided in S. 20. The restriction on transfer of assets and properties is provided in S. 23. Saving clause about the Limitation Act is provided in S. 24.
21. No court is allowed to call in question any decision of the Banking Court and finality of the order of the Banking Court is attached in S. 27. Indemnity to the employees of the financial institutions is provided in S. 28.
22. S. 15 of the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997 is still applicable on the old cases according to S. 29 of the said law even after the repeal of said law.
23. As far as the request for grant of damages is concerned, it is observed that it is settled law that the manufacturer or service provider is not liable for any damages except a return of the consideration or a part thereof and the costs, specifically where the consumer has not suffered any damages from the product or provision of service except lack of utility/ benefit.
24. It is pertinent to note that the grant of damages is curtailed even under Contract Act, 1872 in which it is provided in S.73 to 75 that the damages should be proportionate to the loss and not excessive by mentioning that such compensation for loss or damage caused by breach of contract is not to be given for any remote and indirect loss or damage sustained by reason of the breach. It is an embargo placed by the general law of contracts upon the powers of the courts about grant of damages.
25. It is also observed that further embargo on the quantum of damages to be awarded by the consumers courts has been placed by the law provided in S. 4, 10, 13 & 15 of PCP Act by declaring that the manufacturer or service provider shall be liable to a consumer for damages proximately caused by anticipated use of the product or provision of services that have caused damage but he shall not be liable for any damages except a return of the consideration or a part thereof and the costs in such cases where the consumer has not suffered any damages from the provision of service except lack of benefit or loss of utility as such I find that the claimant is not entitled to the recovery of the damages or compensation or litigation charges.
26. I have observed that since the disputed cheque was dated 03-01-2009 and presented on 05- 01-2011 and since the same was deemed to be valid for six month from the date mentioned in the same as such defendant No.1 was liable to return the same to the depositor with the said objection and the same being clearly time barred should not have been sent for clearing to defendant No.2.
The failure to return the cheque amounts to faulty service for which ex-parte defendant No.1 is liable to be burdened with the damages. The valuation of the damages is hereby fixed at the value equal to the value of the disputed cheque i.e., Rs.2,25,000/-. The contesting defendant No.2 is not found to be at fault in the given circumstances.
27. In accordance with above discussion, the complaint is partly accepted against ex-parte defendant No.1 for recovery of Rs.2,25,000/- as damages from the bank of defendant No.1 in favour of the claimant.
28. Parties are left to bear their own costs.
29. This order would become final u/s 34 of PCP Act 2005, if the appeal is not preferred within period of 30 days under S.33 of PCP Act 2005 & Rule 18 of PCP Rules 2009 in accordance with the Rules of Procedure of Honourable High Court.
30. In case of delay in compliance, the claimant is entitled to get the order implemented by filing the application for implementation with reference to S.31, 32 & 36 of PCP Act, 2005, if so required with the warning to defendant No.1 that the costs to be incurred for and during the application for implementation would be liable to be recovered from the concerned bank.
31. One attested copy of this order is directed to be provided to the claimant and one copy to the defendants jointly on filing the applications without court fee tickets even if filed on plain papers free of charge by entry with signatures in token of receiving in Dak Register with the clarification that extra copies would be liable to be issued at their own expenses.
32. The file of this complaint is to be consigned to the record room of this court duly page marked with proper index and after due completion and made available for issuance of attested copies and kept under safe custody till the period fixed for destruction in accordance with the Rules & Orders of Honourable Lahore High Court.