BEFORE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD
C.C.92 of 2013
Between:
Shruti Agarwal,
w/o Ajay Kumar
age : 31 years, occ : Business,
H.no.1-2-593/17, Domalguda
Hyderabad – 500 029
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.93 of 2013
Between:
Shruti Agarwal,
w/o Ajay Agarwal,
age : 31 years, occ : Business,
H.no.1-2-593/17, Domalguda
Hyderabad – 500 029
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.94 of 2013
Between:
Vineet Agarwal,
w/o Aavdesh Agarwal
age : 32 years, occ : Business,
Flat no. 506, Varun Apartments,
Rajbhavan road, Somajiguda, HYDERABAD
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.95 of 2013
Between:
Vineet Agarwal,
w/o Aavdesh Agarwal
age : 32 years, occ : Business,
Flat no. 506, Varun Apartments,
Rajbhavan road, Somajiguda, HYDERABAD
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.96 of 2013
Between:
Abdul Haneef,
S/o Abdul Wahab,
Age : 23 years, Occ : Service
H.no.8-2-36/3, Sneha colony,
Old Bowenpally, Secunderabad
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.97 of 2013
Between:
Abdul Haneef,
S/o Abdul Wahab,
Age : 23 years, Occ : Service
H.no.8-2-36/3, Sneha colony,
Old Bowenpally, Secunderabad
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.98 of 2013
Between:
Arokia Swamy Mahir
S/o late Xavier Mahir
Age :37 years, Occ : Service
H.No.286/1, Hanuman Temple
Secunderabad
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.99 of 2013
Between:
Arokia Swamy Mahir
S/o late Xavier Mahir
Age :37 years, Occ : Service
H.No.286/1, Hanuman Temple
Secunderabad
Represented by GPA Holder
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.100 of 2013
Between:
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 33 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
C.C.101 of 2013
Between:
Radhika Agarwal, W/o Sanjay Agarwal,
Age : 34 years, occ : Business,
R/o , 1-2-593/17, Domalguda,
Hyderabad – 500 029 .. Complainant
And
1.State Bank of India
Rep. by : the Asst. General Manager, Mr. S. J. Mohan
Personal Banking Division
Hyderabad Main branch
Bank Street, Koti
Hyderabad – 500 095.
2.State Bank of India,
Rep. by : The Chief Manager,
Personal Banking Division
Hyderabad Main Branch
Bank street, Koti,
Hyderabad – 500 095 , opposite parties
Counsel for the Complainant : Mr. T. Sunil Kumar
Counsel for the Opposite parties : M/s. M. Narender Reddy .
QUORUM:
HON’BLE SRI JUSTICE GOPALA KRISHNA TAMADA, PRESIDENT
AND
SRI R. LAKSHMINARASIMHA RAO, HON’BLE MEMBER
WEDNESDAY, THE NINETH DAY OF JULY
TWO THOUSAND FOURTEEN
Oral Order : ( As per Sri R. Lakshminarasimha Rao , Hon’ble Member )
****
1 All the 10 ( ten) complaints bear the same facts and arise out of similar circumstances. As such, the complaints are disposed of by common order. CC number 92/2013 is taken as lead case.
2 The averments of the compliant are that the complainant deposited a sum of Rs.50 lakhs under deposit Account No. 31931940253 with the opposite party Bank. The Opposite party bank issued fixed deposit receipt for maturity value of Rs.54,78,792/-and the maturity date of deposit is 7.9.2012. On 17.09.2011, the opposite party bank addressed letter to the complainant informing her that the amount of Rs.50 lakhs deposited by her with the bank was appropriated towards the loan Account of M/s. Ghanshyamdas Gems & Jewels.
3.The complainant expressed her protest by addressing letter dated 28.09.2011 in regard to appropriation of the deposit amount to the loan account of M/s. Ghanshyamdas Gems & Jewels. She had not given any instructions therefor and she is not the partner of the firm as also she never stood as guarantor to the loan transactions of M/s. Ghanshyamdas Gems & Jewels. The complainant requested the opposite party bank to restore her deposit to its original account. On 17.10.2011 the complainant filed complaint before Banking Ombudsman who closed the complaint on the premise of requirement of detailed investigation and consideration of elaborate technical and oral evidence as also the matter being not covered by the Banking Ombudsman scheme, 2006.
4.The complainant filed an application under the provisions of RTI Act on 19.10.2011 seeking information about her deposits and the information was not furnished. The appeal filed by the complainant was also dismissed. The further appeal filed by the complainant was allowed permitting her to inspect the records and furnishing of copies of the documents to her by the opposite party bank.
5.The complainant has not retained pay-in-slip at the time of opening of fixed deposit account that it may be marked lien in favour of M/s. Ghanshyamdas Gems & Jewels. The opposite party bank replaced the pay-in-slip with a fabricated document to suit its requirement. The complainant filed writ petition number 32485 of 2011 with the High Court of A.P. wherein the opposite party stated that on instructions of the Managing Director of M/s. MBS Jewelers Private Limited and Managing partner of M/s. Ghanshyamdas Gems & Jewels it had cancelled the TDR and deposited the proceeds to the account of M/s. Ghanshyamdas Gems & Jewels on 17.09.2011.
6.The complainant is not a party to any of the civil and criminal proceedings initiated by the opposite party bank. There is no single word about the complainant in the charge sheet filed; by the CBI in the complaint lodged by the opposite party bank. The finding in a criminal proceeding cannot be a ground for the civil case. The complainant had withdrawn the writ petition with liberty to pursue other legal remedies available under law.
7.The Corporate centre , Mumbai of the opposite party bank issued e-circular number NBG/S&P-ADVANCES/2005-06 dated 20.05.2005 pertaining to the instructions to be followed all its branches in dealing with the loans/lien against fixed deposits. The opposite party appropriated the amount under the fixed deposit receipt to the loan account of the third party without the consent and authorization of the complainant. The complainant filed another application on 6.11.2012 under the provisions of the RBI Act requesting the CPIO of the opposite party bank to furnish copy of account opening form that was submitted by her at the time of opening the fixed deposit account. The application was rejected and the appeal filed by her was allowed directing the CPIO to provide the copy of application form to the complainant.
8.The complainant visited the office of the opposite party bank at New Delhi on 26.4.2013 and obtained copies of screen shot of the computer system of the opposite party bank in regard to her fixed deposit account and she came to know that a lien was created on her deposit on 16.09.2011 and the amount was appropriated on 17.09.2011. The Opposite party bank pleaded that instructions appropriating the fixed deposit amount was given on 7.9.2011. The complainant submitted the OP bank is liable to pay the amount of Rs.50 lakhs with interest, compensation and costs.
9.The opposite party bank resisted the claim on the premise that the complainant suppressed the facts of the business dealings of her family members with the opposite party bank. The family members of the complainant are the partners of the partnership firm, M/s. M/s. Ghanshyamdas Gems & Jewels and they are carrying on the business of manufacturing, purchase and sale of gold ornaments, bullion gold, precious stones, imitation jewellery etc. The firm has availed various facilities from the OP bank for about nine years.
10.On request of M/s. Ghanshyamdas Gems & Jewels on 21.06.2010 the opposite party bank enhanced credit facility under “ Bank Metal Gold Scheme” from the existing facility of 11 kgs gold which is equivalent to Rs.2.20 crores to Rs.30 kgs gold equivalent to Rs.6.00 crores as per the terms of sanctioned letter dated 21.6.2010. The firm and its partners have to repay each gold withdrawl within a maximum period of 180 days from the date of disbursement of gold or five days before expiry of bank guarantee period, whichever is earlier or the predetermined due date in cash at the prevailing rate which includes international price of gold Plus VAT and commission and other charges. The credit facility should be covered by 110 percentage bank guarantee issued by the Bank acceptable to the opposite party or 110% of TDRs to be placed with the OP bank with lien marked thereon.
11.The firm, M/s. Ghanshyamdas Gems & Jewels, represented by its partners who included the husband of the complainant accepted the terms stipulated in the sanctioned letter and agreed to repay the outstanding amounts in its gold Metal loan account with the opposite party bank together with interest. As security for repayment of the gold metal loan limit of 30 kgs, the firm represented by its managing partner who is the elder brother of the complainant’s husband executed master agreement on 21.6.2010 and loan agreement on 22.6.2010 in consideration of which the OP bank extended the gold metal loan limit.
12.The opposite party bank enhanced the gold metal loan limit in accordance with terms of the sanctioned letter dated 21.6.2010. The firm furnished bank guarantee number 0207/ILG000516 dated 3.3.2011 for Rs. Seven crores from Punjab national Bank, Abids, Hyderabad. The issuance of bank guarantee was confirmed through letter dated 4.3.2011. A fax message was sent by Punjab National Bank. Lakdikapul, Hyderabad confirming the issuance of the bank guarantee. By furnishing the bank guarantee, the firm utilized credit facility under bank “ metal gold Scheme” and received 30 kgs of gold from the opposite party on 4.3.2011.
13.On further requested by the firm, M/s. Ghanshyamdas Gems & Jewels, the opposite party bank enhanced the credit facility under “ metal gold scheme” from 30 kgs to 135 kgs as per the terms of the sanctioned letter dated 18.3.2011. The firm accepting the terms stipulated in the sanctioned letter, agreed to repay the outstanding amount in its gold metal loan account with interest. The firm executed supplemental metal ( gold ) loan agreement on 19.3.2011 in consideration of which the OP bank enhanced the said credit facility and in compliance of the terms of the sanctioned letter, the firm furnished bank guarantee dated 18.3.2011 for Rs.23 crores from Punjab National Bank, Abids, Hyderabad which was confirmed by letter from the bank.
14.On further request of the firm, M/s. Ghanshyamdas Gems & Jewels, the opposite party bank enhanced the credit facility under bank metal gold scheme from 135 kgs to 250 kgs as per the terms and conditions of the sanctioned letter dated 21.4.2011. As security for repayment of enhanced credit facility under Bank metal gold scheme of 250 kgs, the firm executed supplemental metal ( gold) loan agreement and furnished bank gurantee number 0207/LG000623 dated 21.4.2011 for Rs.30 crores from Punjab National Bank, Abids, Hyderabad. The issuance of bank guarantee was confirmed through letter dated 21.4.2011 and 22.4.2011 from the bank.
15. The opposite party noticing fluactuation in the Gold Bullion market in the month of August, 2011 and in order to maintain sufficient margin by way of bank guarantee, called upon M/s. Ghanshyamdas Gems & Jewels to submit bank guarantee. In response to which the firm submitted bank guarantee number 0207/LG001167 dated 17.8.2011 for Rs.12 corres issued Punjab National Bank, Abids, Hyderabad. After receiving the bank dated 17.8.2011, the OP bank had sent fax message on 17.8.2011 to Punjab National Bank,. In response to which at telephonic message was received by the Opposite party bank raising a doubt on the genuineness of the bank guarantee issued for Rs.12 crores,
16.The opposite party bank though letter dated 17.8.2011 requested the Punjab national Bank, Bank Street, Hyderabad and its circular office to confirm the genuineness of the four bank guarantee submitted by M/s. Ghanshyamdas Gems & Jewels. The Punjab National Bank through reply dated 18.8.2011 denied the issuance of the four bank guarantees submitted by M/s. Ghanshyamdas Gems & Jewels. The opposite eparty bank through its letter dated 20.8.2011 invoked three Bank guarantees dated 3.3.2011, 18.3.2011 and 21.4.2011 and demanded the payment of the amount under the three bank guarantees. The Punjab National Bank ;through its letter dated 22.8.2011 denied the issuance of confirmation letter with regard to the three bank guarantees and informed the OP bank that all the confirmation letters are fabricated.
17.The opposite party bank through its correspondence with the Punjab National Bank noticed the malafide and fraudulent acts of M/s. Ghanshyamdas Gems & Jewels in delivering the fabricated bank guarantees for availing credit facility under bank metal gold scheme. The Manaing partner of the firm through letter dated 24.8.2011 promised the OP bank to close part of the gold metal loan by 30.08.2011 and the entire balance by 30.09.2011 which promise was not kept completely except making payment of Rs. 5 crores by transfer of funds from the current account of the firm and by way of transfer of funds from the TDRs of the complainant, Radhika Agarwal, Arokia swamy Mahir, Vineet Agarwal and Abdul Haneef, the complainants in CC numbers 100 of 2013 & 101 of 2013, 98 of 2013 and 99 of 2013, 94 of 2013 and 95 of 2013, 96 of 2013 and 97 of 2013.
18.The partners of M/s. M/s. Ghanshyamdas Gems & Jewels took assistance of another account holder M/s. MBS Jewellers private limited and requested the OP for amicable settlement of the account of the firm. M/s. MBS Jewellers had sent cheque for Rs.2,85,00,000/- along with letter dated 7.9.2011 and paid cash of Rs.15 lakhs for crediting to the account of M/s. Ghanshyamdas Gems & Jewels. At the time the Managing partner of M/s. Ghanshyamdas Gems & Jewels requested the Opposite party bank initially to open the term deposits of Rs.50 lakhs each in the names of Abdul Haneef, MA aroki Swamy, Shruthi Gupta, Radhika Agarwal and Vineet Agarwal and he handed over the signed deposit vouchers and also furnished their KYC particulars to the OP bank.
19.M/s. MBS Jewelers Private Limited had sent cheque drawn on SBH to the OP bank and discounted the same on 7.9.2011 by sending the cheque for clearance and deposited the proceedings of the cheque for Rs.2,85,00,000/- in the system suspense account dated 7.9.2011 along with the cash of Rs.15 lakhs. Thereafter, after clearance from the SBH, the term deposit receips were issued on 10.09.2011 in the names of Abdul Haneef, MA aroki Swamy, Scruthi Gupta, Radhika Agarwal and Vineet Agarwal. On instructions of the Managing Director of MBS Jewelers Private Limited and Managing partner of M/s. Ghanshyamdas Gems & Jewels cancelled the six TDRs and deposited the proceeds to the account of M/s. Ghanshyamdas Gems & Jewels on 17.09.2011. Thereafter, the firm and its partners have not paid the entire outstanding debt to the opposite party bank.
20.The Opposite party bank lodged complaint with the DIG of Police, CBI, Bangalore on 15.09.2011and the complaint is pending for investigation. The firm M/s. Ghanshyamdas Gems & Jewels fabricated the three bank guarantees and thereby the credit facility became unsecured. The opposite party bank through telegraphic notice dated 21.09.2011 demanded the firm and its partners to pay the entire outstanding loan amount and on their failure to do so the OP bank filed OA 457of 2011 before the Debt Recovery Tribunal, Hyderabad for recovery of Rs.62,00,43,259/- against the firm and its partners including the husband of the complainant and the application is pending disposal
21.The complainant filed the present complaint knowing well about the criminal proceedings with CBI and recovery proceedings with the Debt Recovery Tribunal the OP bank issued letter dated 17.9.2011 in ordinary course of business without referring to the fraudulent acts and the complainant cannot take the advantage of the letter. The complainant has not deposited any money for issue of TDRs. The complainant is one of the family members of the partners of M/s. Ghanshyamdas Gems & Jewels and she is aware of their fraudulent acts. There is no deficiency in service on the part of Opposite party bank and the Opposite party bank prayed for dismissal of the complaint.
22.The complainant filed her affidavit and 12 documents and on behalf of the opposite party its Chief Manager filed his affidavit and 24 documents. The documents filed on both sides are not marked in evidence.
23.Counsel on both sides filed written arguments
24.Now the points for consideration are:
i)Whether the complaint involving plea of fabricated documents can be tried by this Commission?
ii)Whether there is deficiency in service on the part of the opposite party bank in appropriating the amount covered under FDR to the Bank ‘metal gold loan’ account of M/s Ghanshyamdas Gems & Jewels?
iii)To what relief?
25. POINTS NO.1& 2: The facts beyond any dispute are that the complainant’s family members, 1.Sanjay Kumar, 2. Balakishan, 3. Smt. Parimala Bai, 4. Ajay Kumar (the complainant’s husband), 5. Vinay Kumar and 6. Mrs.Shanta Bai are the partners of Firm, ‘M/s Ghanshyamdas Gems and Jewels which has been carrying on the business of manufacturing, purchase and sale of gold ornaments, Bullion Gold, precious stones, imitation jewelry etc., and the Firm has availed various facilities from the opposite party-bank. It is not disputed that ‘M/s Ghanshyamdas Gems and Jewels availed credit facility on 21.04.2011 under Bank ‘Metal Gold Scheme’ subject to the terms of sanction letter dated 21.04.2011 and the limit of the credit facility had been enhanced for four times on request of the Firm made from time to time and basing on Bank guarantee for the first three times and bank guarantee and appropriation of amount covered under TDRs for the fourth time.
26. The opposite party-bank filed criminal case on the file of IV Metropolitan Magistrate, Hyderabad and civil case, O.A.No.490 of 2011 and 556 of 2011 with the Debt recovery Tribunal stating that the partners of M/s Ghanshaym Das fabricated bank guarantee and confirmation letters and prior to the date of filing of the cases, as part of amicable settlement the managing partner of M/s Ghanshyamdas Gems and Jewels, Sanjay Kumar required the opposite party bank to open the term deposits of Rs.50.00 lakhs in the name of each of the complainants and he submitted the signed deposit vouchers as also the KYC particulars of each of the depositors.
27 While things stood thus, the complainant filed Writ Petition No.32485 of 2011 before the High Court which was withdrawn with liberty to avail other available remedies and thereafter, the complainant filed the present complaint seeking for the amount of Rs.50.00 lakhs covered under the TDR . The complainant claims that she has no concern with the civil and criminal cases filed by the opposite party bank and the pay-in-slip showing that she created lien against the deposit in favour of Ghanshyamdas Gems and Jewels is not the pay-in-slip submitted by her and that the hand writing and signature in it is not of her and that the opposite party has fabricated the document .
28 The learned counsel for the complainant has submitted that the complainant deposited the amount of Rs.50.00 lakhs with the opposite party bank on 07.09.2011 for a period of one year and without any instructions from the complainant, the opposite party cannot appropriate the deposited amount. He has submitted that the complainant is not involved in civil or criminal case filed by the opposite party and that the opposite party has made contradictory statements in regard to deposit and appropriation of the deposited amount before the Hon’ble High Court, CBI, Banking Ombudsman, Debt Recovery Tribunal and before this Commission.
29 The learned counsel has submitted that she has not deposed the contents of the statement dated 11.01.2012 before the CBI and the CBI hand in glove created the statement. He has contended that it is settled law that criminal proceedings and civil proceedings are independent of each other and the statement recorded by the investigating officer under Section 161 of Cr.P.C. is inadmissible evidence and it cannot be used in the present case. He has relied upon the decision of the Hon’ble Supreme Court in “Anumati vs Punjab National Bank” in support of his contention that without authorization of the depositor, the bank cannot appropriate the deposited amount.
30 The learned counsel for the opposite party-bank has contended that the managing partner of M/s Ghanshyamdas Gems and Jewels got deposited the amount of Rs.50.00 lakhs in the names of each of the complainants and on instructions of the managing director of M/s MBS Jewelers and the managing partner of M/s Ghanshyamdas Gems and Jewels, 6 TDRs were cancelled and the amount thereof was appropriated to the loan account of M/s Ghanshyamdas Gems and Jewels. He has submitted that the complainant has not deposited any amount and the issue involved in the O.A No. 490 of 2011 and OA No. 556 of 2011 pending before the Debt Recovery Tribunal, Court of additional Metropolitan Magistrate and the present complaint is the same and that question of facts cannot be decided in summary proceedings.
31 The complainant has stated that the pay-in-slip is not in her hand writing and the signature therein is not that of her as also that the opposite party has replaced the pay-in-slip submitted by her with other pay-in-slip. The matter involved is depositing of the amount under term deposit and the identity of the person who deposited as also the person entitled to appropriate the deposited amount or receive the amount on maturity which involves elaborate examination of the parties and consideration of documentary evidence. Paragraph 8 of the complaint reads as under:
“That the complainant was shocked to notice that an alleged instruction on the pay-in-slip is said to be written by the complainant which states that “ kindly mark lien against my deposit in favour of Ghanshyamdas Gems & jewels”. The alleged instruction was never written by the complainant on the pay-in-slip that she has submitted to the opposite party at the time of opening the fixed deposit a/cs and the same were replaced by the opposite party which can be verified from forged signature and hand writing of the complainant. The party-in-slips were replaced was forged and fabricated by the opposite party’s to suit their requirement”.
32 Thus, the complainant is claiming the documents filed by the other party as forged and created for the purpose of the case and the complainant, apart from making the allegation of forgery; she has stated that the opposite party has created lien, on the deposit amount, without her consent and knowledge. All such complex and complicated questions of facts cannot be decided in summary proceedings before this Commission.
33 The learned counsel on behalf of the complainants in C.C.No. 100 of 2013 and C.C.No. 101 of 2013 submitted that the facts of the cases and those of the other cases are different in that view of the matter that the complainants therein are not involved in any civil or criminal cases and without their authorization the deposited amount cannot be appropriated. He relied on the decision in “Anumati and another vs Punjab National Bank” (supra).
34 We have considered the facts of C.C.no. 92 of 2013 and C.C.No. 100 of 2013 and C.C.No. 101 of 2013 and do not find any variation in the facts except the plea that the pay-in-slip is fabricated to the extent of handwriting of the complainants. The ratio laid in the aforementioned decision is that in case of death of one of the joint depositors, the other depositor becomes the sole depositor and without his knowledge and consent, the Bank cannot appropriate the deposit amount.
35 IN “ORIENTAL INSURANCE COMPANY LTD VS MUNIMAHESH PATEL” IV (2006) CPJ 1 , the insurance company disputed the genuineness of the documents and the hon’ble Supreme Court held that where the matter involves adjudication of issues involving disputed factual questions, Consumer Forum cannot adjudicate the matter and the complainant was entitled to seek relief in court of competent jurisdiction. The Apex Court held:
“9. The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondent’s wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher.
10. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the documents (i.e. proposal forms) produced by the appellant.
11. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured should not have granted the relief in the manner done.
12. The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate Court of Law and not by the Commission.
13. Above being the position, the Commission was not justified to deal with the matter in the manner as was done. In our view, the directions of the State Commission were more appropriate keeping in line with the nature of dispute. Accordingly, the appeal is allowed but with no order as to costs”.
36 The National Commission has on several occasions considered the scope of consumer complaint to be decided by civil court where the dispute involves the allegation of forgery of the customer’s signature on cheque by the manger or the official of the Bank and held that such matter cannot be decided in summary proceedings before Consumer Forum.
37 National Commission held in ”Safe Home Developers and Contractors vs S.S.B. Ltd” IV (2012) CPJ 729 that:
“Basis of complaint is encashment of about 250 forged and fabricated cheques by the opposite party which were not issued by the complainant or their authorized signatories. These cheques pertain to period commencing from 16.05.2006 to 5.11.2008. Record also contains opinion of Addl .Chief Examiner of Documents, C.I.D. Maharashtra State, Mumbai dated 22.10.2010 which is in two pages, but without any reasoning for the purpose of proving a document genuine or forged. Handwriting expert have to take photos of the documents and has to compare them with the genuine signatures and has to give reasons for proving signatures to be genuine or forged. This opinion neither contains reasoning for similarities/dissimilarities nor contains any photos of any documents. Detailed examination in chief as well as cross examination of handwriting expert will be required-“
38 The National Commission in Safe Home Developers (supra), referred to the decisions of the Hon’ble Supreme Court in “Synco Industries vs State Bank of Bikaner & Jaipur and Others” I(2002)CPJ 16 and “Trai Foods Ltd vs National Insurance Company Ltd and others” III(2012)CPJ 17 that where detailed evidence is required to be led by both parties to prove the claim and damages the complainant suffered , necessarily the parties have to be relegated to Civil Court.
39 In Trai Foods Ltd(supra), the Supreme Court considered the nature and scope of the dispute amenable to consume forum and civil court as under:
“The only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the Civil Courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy. The Consumer Forums have been given the responsibility of achieving this object. They were not meant to duplicate the civil courts, and subject the litigants to delays which have become endemic in the Civil Courts.
“Although the reasons given in the impugned order of the Commission for referring the present matter to the Civil Court is cryptic, we have been through the records filed before us and are satisfied that the Commission’s decision was correct. There is no doubt having regard to the nature of the claim, the large amount of damage claimed, and the extensive inquiry inot the evidence which would be necessary in order to resolve the disputes between the parties that this is not matter to be decided summarily at all”
40 In the case on hand, as mentioned above, detailed examination of the parties and the witnesses and consideration of the facts which are of complicated in nature cannot be decided in summary proceedings. The matter involves examination and cross examination of witnesses and appreciation of documentary evidence as also finding out whether the documents are fabricated for the purpose of the claim. Therefore, on application of the ratio laid in the aforementioned decisions to the facts of the cases, we are of the view that the parties are to be relegated to civil court.
41 In the result, the complaints are dismissed with liberty to the complainants to approach to the Civil Court or any other Forum. In the event the complainants approached the Civil Court, the period spent between the filing of the claim before the District Forum and the disposal of the matter today by us will be excluded under Section 14 of the Limitation Act, 1963in the light of the decision of the Hon’ble Supreme Court in “Trai Foods Ltd vs National Insurance Company Ltd and others” reported in III (2012) CPJ 17”.
PRESIDENT
MEMBER
DATED :09.07.2014
CC. 92 & 93 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
DOCUMENTS FILED BUT NOT MARKED
FOR THE COMPLAINANT
01Copy of Fixed Deposit receipt 10.09.2011
02Copy of SBI letter dated 17.09.2011
03Copy of letter dated 09.10.2011 issued by the complainant
04Copy of the complaint filed with the RBI Ombudsman dt. 17.10.2011
05Copy of the order of the RBI Ombudsman
06Copy of the a/c opening form
07Copy of the pay-in-slip dt. 07.09.2011
08Copy f the order passed by the CIC, New Delhi dt. 04.02.2013.
09Copy of e-circular issued by SBI, Mumbai, dt. 20.05.2005.
10Copy of the complaint filed by SBI with CBI, Bangalore dt. 1.09.2011
11Copy of the screen shoots pertaining to the fixed deposit a/c.
12Copy of the TDS certificate dt. 27.08.2012.
FOR THE OPPOSITE PARTIES :
Cases from CC 92 2013 to CC 101/13
1Additional Counter in WP 32485/11 dated 08.12.12.
2Memo of evidence ( Oral) in RC-4E/2011, dated ….01.12
3Statement of Sukesh Gupta, dated 05.01.12.
4Statement of Arokia Swamy Mahri, dated 10.01.12.
5Statement of Abdul Haneef & imran dated 10.01.12.
6Statement of Vineet Agarwal dated 11.01.12
7Statement of Shruthi Gupta dated 1.01.12.
8Vouchers dated 07.09.11
9Letters of the Bank dated 17.09.11
10Counter Affidavit in WP 32485/11 dated 17.02.12
11Application OA 457/11 before DRT, Hyd dated 26.09.11
12Order in OA No. 457/11 dated 27.09.11
13Order in OA No. 457/11 dated 21.10.11
14Order in OA No. 457/11 dated 01.12.11
15Order in OA No. 457/11 dated 16.12.11
16Order in OA No. 457/11 dated 19.01.11
17FIR No. 4/2011 with CBI, Bangalore dated 19.10.11
18Letter of MBS Jewellers P t. Ltd dated 26.09.11
19Additional Counter in WP 32485/11 dated 07.11.12
20Charge sheet RC -4(E)/2011
CBI, BS &FC, Bangalore dated 23.06.12
21Statement of Account
22Writ petition and affidavit in WP No32485/11,dt. ……12.11
23Counter claim in OA No. 490/2011 dated 19.06.12.
24Counter claim in OA no. 556/2011 dated 19.06.12.
CC. 94 & CC 95 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
DOCUMENTS FILED BUT NOT MARKED
FOR THE COMPLAINANT
01Copy of Fixed Deposit receipt with the maturity date 05.03.2012
02Complaint at RBI Ombudsman
03Copy of the e-mil dt. 7.4.2012 of the RBI Ombudsman
04Copy of the RTI Application dt. 26.07.2012
05Copy of the letter dt. 05.11.2012 of the CPIO of SBI
06Copy of the pay-in-slip
07e-circular No. NBG/S&P-ADVACES/12005-06 dt.20.05.2005 issued by the State Bank fo India, corporate centre, Mumbai
08copy of the CBI complaint dt. 15.09.2011.
CC. 96 & CC 97 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
DOCUMENTS FILED BUT NOT MARKED
FOR THE COMPLAINANT
01Copy of Fixed Deposit receipt with the maturity date 07.09.2012
02Letter dt. 17.09.2011 issued by the opposite party
03Legal notice dated 18.10.2011 issued by the complainant
04Pay-in-slip 2 nos dt. 07.09.2011
05The opposite party filed a counter affidavit in a writ petition no. 32485 of 2011 with the Hon’ble High Court of Andhra Pradesh
06Coy of the charge sheet filed by CBI
07Copy of the order of the A P High Court
08e-circular No. NBG/S&P-ADVACES/12005-06 dt.20.05.2005 issued by the State Bank fo India, corporate centre, Mumbai
09copy of the complaint dt. 15.09.2011 to CBI
10copy of the screen shoots
11copy of the TDS Certificate
CC. 98 & CC 99 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
1 DOCUMENTS FILED BUT NOT MARKED
FOR THE COMPLAINANT
01Copy of Fixed Deposit receipt with the maturity date 07.09.2012
02Letter dt. 17.09.2011 issued by the opposite party
03Legal notice dated 18.10.2011 issued by the complainant
04Pay-in-slip 2 nos dt. 07.09.2011
05The opposite party filed a counter affidavit in a writ petition no. 32485 of 2011 with the Hon’ble High Court of Andhra Pradesh
06Coy of the charge sheet filed by CBI
07Copy of the order of the A P High Court
08e-circular No. NBG/S&P-ADVACES/12005-06 dt.20.05.2005 issued by the State Bank of India, corporate centre, Mumbai
09copy of the complaint dt. 15.09.2011 to CBI
10copy of the screen shoots
11 copy of the TDS Certificate
CC. 100 & CC 101 of 2013
APPENDIX OF EVIDENCE
WITNESSES EXAMINED
FOR THE COMPLAINANT : NONE
FOR THE OPPOSIE PARTIES : NONE
1 DOCUMENTS FILED BUT NOT MARKED
FOR THE COMPLAINANT
01Copy of Fixed Deposit receipt date 08.09.2011
02Letter dt. 17.09.2011 issued by the opposite party
03Copy of the letter dt. 28.09.2011
04Copy of the complaint filed with the RBI Ombudsman dt. 17.10.2011
05Copy of the order of the RBI Ombudsman
06Copy of the a/c opening form
07Pay-in-slips dt. 07.09.2011
08Copy of the order passed by the CIC, New Delhi dt. 04.02.2013
09Copy of e-circular issued by SBI, Mumbai dt. 20.05.2005
10Copy of the complaint filed by SBI with CBI, Bangalore dt. 15.09.2011
11Copy of the screen shoots pertaining to the fixed deposit a/c.
12 copy of the TDS Certificate dt. 27.08.2012
PRESIDENT
MEMBER
DATED : 09.07.2014.
