ALFRED BENEDICT vs MANIPAL HOSPITAL

PETITIONER was the opposite party before the District Forum, where the complainant filed a complaint alleging deficiency in service.

VERY briefly the facts leading to filing the complaint were that the complainant had stood as a guarantor in respect of a loan given to one Pawan Construction and Cement (P) Ltd. , for which he had also pledged FDR of Rs. 60,000 maturing on 3. 10. 98. It was the case of the complainant that even after the total amount of Rs. 10. 5 lakh was paid by the borrower, namely, Pawan Construction and Cement (P) Ltd. , yet the appellant Bank while returned the mortgage documents but the FDR amount was not released in favour of the respondent / complainant, hence a complaint was filed before the District Forum. Since the petitioner did not appear before the District Forum, an ex parte order was passed allowing the complaint and directing the petitioner to pay a sum of Rs. 5,166 along with interest @12% p. a. as also compensation of Rs. 1,000 for mental agony and cost of Rs. 500. Not satisfied with this relief, an appeal was filed by the respondent before the State Commission, who allowed the appeal and directed the petitioner to pay Rs. 69,490 along with interest @ 10% p. a. from the date of the order along with cost of Rs. 5,000. Aggrieved by this order this revision petition has been filed before us.

The first ground taken by the petitioner before us is that the order was passed behind his back. We asked the petitioner to produce the copies of the order-sheets maintained by the District Forum, State Commission, which have been brought on record.

AFTER hearing the learned Counsel for the parties and perusal of material on record, we find that vide order dated 3. 2. 2004, the District Forum noticed that notice was served on the petitioner and the service report was on record; despite that, no body was present throughout and the District Forum passed the order ex parte. Before the State Commission also we find that a registered notice was issued for appearance on 12. 1. 06, yet no one appeared from the petitioner, hence State Commission passed the ex parte order. It is the case of the petitioner that they were never served. In view of the aforementioned circumstances, we find that the petitioner has no legs to stand on, as both the lower Fora have specifically, categorically and in unequivocal terms stated that notices were issued yet it is the choice of party to appear or otherwise but this would also deprive them to take a stand later on that they were not served and hence the principles of natural justice are not being followed. We are afraid we do not see any merit in this contention in view of the aforementioned circumstances. They were duly served. To appear or not to appear is the privilege of the party. On merits also we see that the Bank and the borrower Pawan Construction and Cement (P) Ltd. had agreed at a compromise by which Rs. 10. 5 lakh was to be paid by the borrower to the bank. Once this information reached the complainant, he then approached the bank to release the documents as also the matured amount.

IT needs to be appreciated that the complainant stood surety for a loan and since he was not a party to the ''one Time Settlement'' (OTS), no liability could be fastened on the complainant on that account. Before us it was argued by the learned Counsel for the petitioner that FDR amount has already been adjusted before the settlement but no such document or material has been brought on record. The constant stand of the petitioner as communicated to the complainant was that only after receipt of the compromised amount, i. e. , Rs. 10. 5 lakh, the FDR amount shall be released. Since the complainant was never a party of the settlement the terms of the settlement between the borrower and the lender, in our view, the old guarantee could not have been invoked against the complainant. It has nowhere been mentioned in the petition before us that the petitioners have not received the agreed amount from the borrower-whatever the OTS amount was, or whatever this figure of settlement was arrived at after adjusting the FDR amount of the guarantor / complainant? In the absence of anything to the contrary, we are clearly of the view that even on merits the petitioner has no case as after having received the compromised amount, the petitioner could not retain the money of the complainant, as no details are on record that for arriving at an amount of settlement (Rs. 10. 5 lakh), adjustment of FDR amount of the guarantor had already been taken care of by adjustment.

IN the aforementioned circumstances, we find no merit in the revision petition, hence dismissed. Revision Petition dismissed.