BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.397 of 2018

Date of Instt. 25.09.2018

Date of Decision:28.06.2022

Kanwal Raj Sachdeva, age 74 years, son of Sh. Tilak Raj Sachdeva, resident of H. No.365/7, Central Town, Jalandhar.

..........Complainant

Versus

1.       Bank of Baroda, Nehru Garden Road Branch, through its Manager, Jalandhar.

2.       Manager, Bank of Baroda, Nehru Garden Road Branch,          Jalandhar.

….….. Opposite Parties

3.       Vijay Sachdeva, wife of Sh. Kanwal Raj Sachdeva, resident of 365/7, Central Town, Jalandhar at present in USA.

….….. Proforma Party

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)

                   Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. Gopal Thakur, Adv. Counsel for the Complainant.

                   Sh. A. P. S. Pathania, Adv. Counsel for the OPs No.1 & 2.

Order

Dr. Harveen Bhardwaj(President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant took the bank locker, reference is made to the locker number-088 ©, the locker was taken by the complainant Kanwal Raj Sachdeva and later on the complainant gave the name of OP No.3 and made it joint locker with OP No.3. The OP No.3 had taken the flight, gone to USA on 07.09.2018, as such the OP No.1 not being in India, is impleaded as proforma party, seeking no relief against the OPs. The present complaint is not adverse to the interest of the OP No.3. The OP No.3 is wife of the complainant. The complainant took the locker approx 35 years ago and have been keeping his valuable jewellery and cash in the locker i.e. bearing No.088 ©, the complainant alongwith his wife had kept the jewellery in the said locker. The complainant took the locker as the complainant has to go to abroad sometime. The complainant took a locker bearing no.088 © on rent from OP No.1 & 2, the said locker was taken by the complainant for more than 35 years ago and the complainant kept jewellery i.e. two gold sets (weighing about 6.5 tolas) and one Rani Haar (gold) i.e. 10 tolas i.e. family traditional Rani Haar, two gold karahs (weighin 4 tolas), two silver glass (weighing 900 gms), two pairs gold topes (earrings) (weighing 1 tola), one diamond solitaire ring, worth Rs.1,00,000/-. So, the value of the jewellery is approximately Rs.7,80,000/-, the same were kept by complainant. Apart from the value of the gold, there is a sentimental value for the complainant regarding Rani Haar weighing 10 tolas. The complainant had been paying locker rent in lump-sum and paid the locker rent upto 04.04.2017, there was a demand notice for recovery of locker rent i.e. Rs.2006/- dated 04.04.2017 as alleged by the OPs.  The complainant had been paying rent of lump sum. The complainant had been paying the locker rent in lump-sum, paid upto 04.04.2017 and there was alleged demand notice for recovery of rent i.e. Rs.2006/- dated 04.04.2017 as alleged by the OPs No.1 and 2. The complainant went to the bank in order to operate the locker i.e. on 05.07.2018, the complainant was shocked to learn that the locker in absence of the complainant, without the consent of the complainant was broke opened, the complainant enquired about his articles in the locker but no response was given by the OPs No.1 and 2. The complainant got submitted the legal notice through his counsel on 14.08.2018, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to deliver the belongings to the complainant worth Rs.7,80,000/- and further OPs be directed to pay Rs.1,00,000/- as damages for causing an undue harassment to the complainant and Rs.50,000/- as litigation expenses.

2.                Notice of the complaint was given to the OPs, who filed reply and contested the complaint by taking preliminary objections that the complaint is not maintainable. Neither there is the negligence nor there is deficiency in service nor the answering OPs are indulged in any unfair trade practices. Under these circumstances, the present complaint is clearly the misuse of process of law and is liable to be dismissed. The true facts are that the complainant is having a locker No.088© on rent with the OP No.1 in joint name. However, it is submitted that the complainant did not operate the said locker within the period of 6 months continuously and the rent become over-due and the complainant did not visit for making the payments of rent, in that event as per the instructions, the OP decided to initiate the proceedings to break open the bank lockers including the locker of the complainant in their branch at N. G. Road, Jalandhar and in this regard the complainant was sent with the prior notices that the answering OP will be forced to break open the safe deposit vaults, if they will not come forward to deposit the due rent amount. Thereafter the OP after issuing the said notices break open the said lockers after following the due process. Subsequent to giving of the prior notices, the OP gave the publications in the daily newspapers that some of the locker holders are making the default in payment of rent and the branches of the Bank of Baroda where the bank locker holders are not making the payment including Nehru Garden Road Branch, Nakodar Branch, Goraya Branch and also Nawanshahr Branch, Banga Branch, Bathinda Main Branch and the area of Jammu. The newspapers publication was made in Hindi, English and Punjabi language newspapers. Only thereafter the process was initiated to break open the lockers where the rent was due by the complainant. As per the process adopted by the bank, in the presence of the bank officials, independent witnesses, bank account holders, bank panel Advocate etc., the bank locker of the complainant was opened/drilled by the safe vault deposit company official and as per the inventory list there was nothing in the bank locker of the complainant. So there is no question that the complainant had put certain expensive gold jewelry items, diamonds and diamond sets of approximately having value of Rs.7,80,000/- as mentioned by the complainant in his complaint. The above said process has been adopted in terms of the bank circular No.BR:100:134 dated 02.09.2008 regarding letter out of vacant lockers and recovering of over due rent. As per the process, it is stipulated that at least three notices requesting for payment of overdue rent are to be sent under the certificate of posting at reasonable intervals and it is further mentioned that it should be ensured that the locker is broken open within the period of six months from the date when the rent become overdue. It is further averred that the complainant has no locus-standi to file the present complaint. The complainant has filed a false, frivolous and baseless complaint against the answering OP in order to drag the officials of the OP in unnecessary litigation. The present complaint is stopped under the principles of estoppels. The complaint is bad for non-joinder and mis-joinder of necessary parties. On merits, the factum with regard to taking locker by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties produced on the file their respective evidence.

5.                We have heard the learned counsel for the respective parties and have also gone through the case file as well as written arguments submitted by the counsel for the complainant very minutely.

6.                It is admitted and proved fact that the complainant took the bank locker number 088 (c) from the OPs No.1 and 2. It is alleged that he had kept in the locker the articles i.e. two gold sets (weighing about 6.5 tolas) and one Rani Haar (gold) i.e. 10 tolas i.e. family traditional Rani Haar, two gold karahs (weighing 4 tolas), two silver glass (weighing 900 gms), two pairs gold topes (earrings) (weighing 1 tola), one diamond solitaire ring, worth Rs.1,00,000/-. It has been alleged by the complainant that he has made the payment of rent upto 04.04.2017. It has been further alleged that the notice was issued by the OP for the recovery of rent i.e. Rs.2006/- dated 04.04.2017. When the complainant went to operate the locker on 05.07.2018, he found that the above mentioned articles were missing as his locker was broken open by the OPs without the consent of the complainant. He has suffered a loss of Rs.7,80,000/- and of sentimental values towards the Rani Haar of gold weighing 10 tolas kept by the complainant and has also suffered the mental harassment.

7.                The complainant has proved on record the receipts of rent Ex.C-1 to Ex.C-3. Perusal of the rent receipts show that the complainant has paid rent upto 24.04.2015 for the locker number 88. The complainant has also proved on record the notice issued by the OP demanding the rent of locker upto 04.04.2017 as Rs.2006/- and again notice Ex.C-7 shows that the demand of Rs.2600/- + S. T.  has been made by the OP for the rent upto 04.04.2017. These documents have been admitted and proved by the OP as Ex.OP-2 and Ex.OP-3 respectively.

8.                The contention of the OP is that the rent has not been paid upto date. As per the regulations if the rent remained unpaid, the bank has right to brake open the locker. The OPs has also relied upon the inventory showing that no article was found from the locker when the same was broken open in the presence of the witnesses. The OPs have alleged that the process has been adopted in terms of the bank circular number BR:100:134 dated 02.09.2008 regarding letting out of vacant lockers and recovering of over-due rent. As per the process, three notices are to be issued requesting the customer to pay the due rent and it should be ensured that the locker is broken open within the period of six months from the date when the rent becomes overdue. The circular has been relied upon as Ex.OP-1. As per the circular, three notices under registered cover were sent to the complainant, vide Ex.OP-2, Ex.OP-3 and Ex.OP-4. A separate letter was also written to the complainant informing the complainant that there is a non-payment of rental for 10 months, therefore they have become entitled to break open the locker and notice was issued to be present at the time of making inventory. The postal receipts showing the issuance of the above said letter and notices have been proved as Ex.OP-6 to Ex.OP-9. As per the circular, the publication has also been done in the newspaper of Hindi, English and Punjabi, which has been proved as Ex.OP-10 to Ex.OP-12, in which there is a specific reference of the locker number of the complainant showing the defaulters in payment of rent of lockers. Ex.OP-13 has been proved as the inventory allegedly prepared by the OPs after breaking open of the locker of the complainant in the presence of the witnesses and no content was found in the locker at the time of breaking open the locker. As per the law referred by the counsel for the OPs, in a Civil Appeal No.3966 of 2010, decided on 19.02.2021 by Hon’ble Supreme Court, titled as ‘Amitabha Dasgupta Vs. United Bank of India & Ors.’, the Hon’ble Supreme Court has observed that the bank has a separate duty of care with regard to locker management. The Hon’ble Supreme Court has given the guidelines to be followed by the bank while managing the locker of the customer and the Hon’ble Supreme Court has further observed that banks cannot wash of their hands and claim that they bear no liability towards their customers for the operation of the locker. It has been further observed by the Hon’ble Supreme Court that banks should not have liberty to impose unilateral and unfair terms on the consumers. With regard to the negligence and responsibility of the bank in the present case, the facts of the above said case are not applicable to the facts of the present case as in the above mentioned case the rent dues were cleared by the consumer before the breaking open the locker by the bank and it was admitted by the bank regarding the negligence in breaking open the locker inspite of clearance of dues. In those circumstances, the Hon’ble Supreme Court has held that the breaking open of locker was in blatant disregard to responsibilities that bank owed to customer as a service provider, but in the present case as discussed above the complainant had not cleared the dues. The Complainant has alleged that he had cleared the dues upto 04.04.2017, but no receipt of rent showing that the rent was cleared upto 04.04.2017 has been proved on record by the complainant. The receipts proved by the complainant belong to the year 2013, 2014 & 2015. As per the Circular Ex.OP-1, due notices were sent to the complainant alongwith separate letter and publication in newspapers. The notices were sent under registered cover. So, in all these circumstances, there is no negligence on the part of the OPs being service provider rather the complainant has defaulted in clearing the rental dues of the locker.

9.                Now the question arises with regard to the loss of the articles allegedly kept in the locker by the complainant. The OPs have disputed the fact of keeping the gold articles in the locker. The number of gold articles as alleged by the complainant alongwith the Rani Haar and the factum of depositing the above said articles in the locker itself is a contested fact. It requires extensive evidence and cross examination of witnesses and same cannot be decided in summary proceedings before this Commission and only civil Court is competent to decide such like complicated dispute. We are supported by the law laid down by the Hon’ble Supreme Court in Civil Appeal No.3966 of 2010, dated of decision 19.02.2021 titled as ‘Amitabha Dasgupta Vs. United Bank of India & Ors. Thus, as per the law laid down by the Hon’ble Supreme Court, in order to prove the fact that the gold articles alleged by the complainant were actually in the custody of the bank and those have been missing from the locker and the OPs are intentionally not returning the gold articles or the same have been stolen from the locker, the complainant must seek the remedy for filing the civil suit for seeking this relief or should avail any other remedy available under law. Accordingly, the complaint is disposed of. This complaint could not be decided within stipulated time frame due to rush of work.       

10.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr.Harveen Bhardwaj     

28.06.2022         Member                          Member           President