MISUSE OF PROCESS OF LAW :

CONSUMER CAN BE PENALIZED  FOR FALSE COMPLAINT

 

We observe in day to day proceedings before the civil courts ,how all the preventive provisions made under Civil Procedure Code are misused.    Purpose of law and process laid down after serious efforts putforth by the eminent lawmen and  judicially are generally defeated which are actually actually  made  to facilitate the common man to get justice.We see how  proceedings in a case  can be dragged to minimum two years by filing number of  applications under Sec.151 of CPC. taking the shelter of preventive provision-‘in the interest of justice’ This is the section which allows anyone to file application` Such application  can be  on jurisdiction point, mis-joinder of  parties, non-joinder of parties, time limitation, question of  locus standi etc.etc. and each application is to be replied  by  the other party followed by arguments. By the time one application is disposed off,one year is passed.

    Keeping in  view the prevailing system under CPC ,provisions of summery procedure were made very carefully  Under  Section 13 of the Consumer Protection Act by the parliament.  Civil Procedure Code is not followed in strict sense by the forums but still there are attempts to make Consumer Courts also like Civil Courts by the opposite parties.   Day in and day out while filing reply to the complaint ,there is a list of preliminary objections without application of mind, a sterio type paper down loaded from the computer stating – court does not have jurisdiction as per this clause or that clause    It was as back as in 1995 when Supreme Court had held that Section 3 of the CP Act is an additional remedy available to the consumer but till date this objection is always taken by one and all and consumers are misguided and mislead  by giving them false hopes of winning the case on flimsy grounds.

Filing of false claim for petty benefits is a common thing but there are very serious things coming before these forums which are to be dealt with heavy hands.Section 26 of consumer protection act is added to the act through amendment  for the purpose of dealing with such alarming situations .Section 26 reads as hereunder:

“Where a complaint is instituted before the district forum,state commission or the national commission ,is found to be frivolous or vexatious ,it shall for the reasons recorded in writing ,dismiss and make an order that the complainant shall pay to the opposite party such cost not exceeding ten thousand rupees as may be specified in the order”

  Here is a unique case which falls under this section and  needs to be high lighted in order to caution the people concerned. A Govt. public sector  files a complaint against a nationalized bank for deficiency in services due to loss of a cheque amounting to Rs three lacs  which was presented before the bank for realization It is prayed before the forum for direction to the OP bank for refund of the amount of cheque along with compensation OP bank admits the loss of cheque in the process of clearance but states the said cheque can be stopped for payment and also wants to know if such cheque is presented by anyone or realized by wrong person fraudulently Complainant organization during the proceedings was suggested by the forum to make cheque issuing authority also a party to dispute in order to avoid misuse of cheque by any one and also to have clear picture of the things But complainat shows inability to give address and other whereabouts of the cheque issuing authority with whom they stated are not dealing any more They also did not agree to make them party It was an  alarming situation and forum could not rule out any conspiracy between the two litigating parties.The said cheque could have been misplaced in connivance of the employees of both the offices and realization of cheque amount from the bank under the plea of  deficiency in services must be the motive It is also not ruled out that later on the cheque amount could be recovered from the cheque issuing authority in some other form by some official and  this may be the reason for not disclosing the address of the said authority It is pertinent to mention here that before a Govt organization deals with some other organization and starts some transaction ,they do check all the whereabouts about their business and keep records of their branches and addresses and even take undertaking etc in case of any default or breach of contract A bussiness organization who has the capacity to deal with Govt organization cannot suddenly vanish away and Govt officers cannot efford to sit idle putting no efforts to trace them It was strange to note that complainant did not take any single action to prevent the misuse of the cheque of such huge amount but opts  to hold bank liable for the loss In other words loss of Govt money to be paid by other Govt fund and let anyone enjoy the fruit of lost cheque

    Now coming to the question before the forum, bank is admittedly deficient in service for negligently handeling the cheque which can also be a human error if we prima facie look at it. But what is the actual loss is the main  question The said cheque is not presented or realized by anyone then why it cannot be obtained from the debtor again due to loss of it Complainant is not ready to trace the party Why should we not call such a situation  a false case or misuse of process The bank can be fined for the negligence heavily but can they be ordered for refund of the total amount when complainant does not disclose the true facts.Is it not a frivilouse complaint to be dealt under sec.26 of the act Let us know what is section 26 of consumer protection act

                                                                                                                                                             In yet another case,  a subscriber of telephone files complaint against MTNL for deficiency in service on the plea that his telephone was dis-connected due to non-payment of bill whereas complainant had already submitted cheque with OP.  OP replied that the said cheque was post dated which could not be noted and in routine was submitted for realization which came back due to post date .  Complainant was informed  about it and was advised to make payment giving him sufficient time.   Instead of making payment ,complainant contacted  the Ministry”s office, got instruction to MTNL for restoration of  the phone, which was disconnected after waiting for considerable time.  Te phone was restored with a request  to make payment within stipulated time but complainant neither made the payment for the bill in dispute nor for current bills.  MTNL disconnected the phone again .  Complainant files case before the Consumer Court for deficiency in service.                                                                                                                                                                                    The question is -what  deficiency? The first question is why post dated cheque is given when one is  supposed  to make payment on due date, failing which liable to pay late charges.  In this way complainant has saved late charges.  In routine if cheque is presented by mistake, that is just a human error and not deliberate act.  By contacting Ministry and then putting pressure and getting phone restored is deliberate act.  Fine, department admits, by mistake cheque was presented before date but should the subscriber be allowed to use the phone and not make the payment.  One error by MTNL does not make the complainant entitled to free use of phone for rest of his life They definitely have the right to disconnect the same for non-payment .  It is a false complaint with the intention  to get benefit of his own wrong.  Complainant was made to pay compensation to MTNL under Sec.26 of the Act.  Complainant did not prefer appeal, neither contacted further the Ministry.  The MTNL was compensated by the complainant for filing false complaint.

 An owner of a car gets his car decorated from one car garage by paying a cheque of Rs.10000/-.  Car goes out of order on the next day on the way to Agra.  Owner gets in touch with garage to repair the car free of cost,but  garage refused to do so.  Complainant submits bill for Rs.21000/- before the Forum stating he had to bear the expenses for getting his car repaired on which he had paid Rs.10000/- just before two days.  OP reveals that the said cheque of Rs.10000/- was bounced due to short of funds, a notice by OP under 138 of NI Act was served upon the complainant and this complaint is the result of that notice.  Not only that Rs.10000/-was paid against accessory like AC etc. fitted in the car and no mechanical job was done in the car.  The bill so presented by complainant for an amount of Rs.21000/- was false and got  from a friend of the complainant.who also runs a garage.  This was a false case  by a person who tried to save himself from the criminal proceedings  against him due to his  own mischief.  A careful scrutiny of such cases is the need of the day where this welfare act is being misused by the cheats and frauds and trying to take shelter of their own wrongs.  Such anti social elements are to be caught and penalized heavily under Section 26 of the Act.                                                                                                                                                                                                                                                                          -

Reference cases;

K Jayaraman v The Poona ahaospital &research center 1994(1)CPR 23

“Where the complaint is malafide ,vexatious and frivolous and opposite party has to incure expences for contesting the complaint ,redressal for a should saddle the complainant with cost ”

Orissa vegetable oil complex ltd v state of Orissa ,1994(1)CPR 32

 

 

 

“Marely because no court fee is payable for lodging the complaint ,parties have the tendency to misuse the provisions of the consumer protection act in matters not falling within the perview .This tendency must be discouraged by imposing cost on complainant”

 

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