HIGH COURT OF JAMMU & KASHMIR AND LADAKH

AT JAMMU

OWP No. 1119/2010

The Citizen Cooperative Bank Ltd.

and another

…..Appellant(s)/Petitioner(s)

Through: Mr. Sanjay Kakkar, Advocate

q

vs

Tarlochan Singh and another

.…. Respondent(s)

Through: Mr. Anuj Dewan Raina, Advocate and

Mr. Mazher Ali Khan, Advocate for R-1

Mr. Udhay Bhaskar, Advocate for R-2

Coram: HON’BLE MR. JUSTICE RAJNESH OSWAL, JUDGE

HON’BLE MR. JUSTICE MOHAN LAL, JUDGE

ORDER

1.

Through the medium of present writ petition, the petitioners have

sought quashing of order dated 25.08.2010 passed by J&K State

Consumer Disputes Redressal Commission, Jammu passed in File

No. Appeal 2916/2007 titled, <Citizens= Cooperative Bank Ltd.

V/s Tarlochan Singh & Anr. Prayer has also been made for

quashing the order dated 10.08.2007 passed by the Divisional

Forum, Jammu (Constituted under the Jammu and Kashmir

Consumer Protection Act, 1987).

2.

Both the orders have been impugned on the ground that Forums

below have failed to appreciate that under the letter of

Hypothecation executed by the respondent No. 1 in favour of the

petitioner Bank, the respondent No. 1 was under obligation to get

the equipment insured in the joint names of the petitioner Bank and

the respondent No. 1. The petitioner No. 2 on the request of

respondent No. 1 got the equipment insured under the Fire and

Sr. No. 1

2 OWP No. 1119/2010

Burglary Policies which was well within the knowledge of

respondent No. 1. Therefore, the respondent No. 1 could not have

proceeded against the petitioner for rendering deficient services by

not getting the equipments i.e. computers insured for other risks.

3.

Response stands filed by the respondent No. 1 in which it has been

stated that disputed questions of facts have been raised by the

petitioners, those cannot be considered in the petition filed under

Article 226 of the Constitution of India. It is also stated that as per

settled terms of contract, the petitioner bank has failed to perform

its legal obligation to secure the assets by obtaining relevant

insurance policy besides policies covering Fire and Burglary risk.

4.

Respondent No. 2 has also filed the response in which it has been

stated that the petitioner bank had insured the computers of the

respondent No. 1 under two different policies i.e. Fire Policy and

Burglary Policy where only the risks of computers due to fire and

burglary were covered and risk of damage to the computer due to

electrical breakdown was not covered under said policies. So, the

respondent No. 2 was not under any obligation to settle the claim of

the respondent No. 1.

5.

Mr. Sanjay Kakkar, learned counsel for the petitioners vehemently

argued that the petitioners were under no legal obligation to get the

assets of the respondent No. 1 insured and he places reliance upon

Para 4 of letter of Hypothecation dated 26.12.2001. Mr. Kakkar also

placed much reliance upon the judgment passed in case titled,

8Haryana Pesticides Vs. Bank of Rajasthan Ltd.9 reported in 2004

0 AIR(P&H) 83.

3 OWP No. 1119/2010

6.

Per contra, Mr. Anuj Dewan Raina, learned counsel for the

respondent No. 1 vehemently argued that no doubt, the respondent

No. 1 was under obligation to get the assets insured under letter of

Hypothecation but nonetheless, risks other than fire were to be

prescribed by the bank and in the instant case, the bank obtained the

insurance policy for the assets against the risk of fire and burglary

only and had the Bank intimated the respondent No. 1 about any

other risk then even on refusal on the part of the respondent No. 1,

the Bank could have obtained policy for other risks.

7.

Heard and perused the record.

8.

The admitted facts are that the respondent No. 1 had obtained loan

from the