BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,

ERNAKULAM.

Date of filing : 13/02/2013

Date of Order : 10/06/2015

Present :-

Shri. Cherian. K. Kuriakose, President.

Shri. Sheen Jose, Member.

Smt. V.K. Beena Kumari, Member.

C.C. No. 115/2013

Between

And

O R D E R

Cherian. K. Kuriakose, President.

The complainant Sri. Shahul Hameed, a businessman, permanently residing at Kochi is maintaining an NRE account with the 1^st opposite party at Pathanamthitta, since 1993. On 24-05-2011, the complainant approached M/s. Bank of Baroda, Pathanamthitta branch and deposited a DD for US Dollars 28762.62 in FCNR Term Deposit for a term of 12 months, so that the complainant could withdraw the amount in US dollars at any time during the said period. The complainant approached the 1^st opposite party during September 2011 for withdrawing the above said deposit as he was in urgent need of foreign currency as the conversion value reached Rs. 57/- per dollar. The manager of the 1^st opposite party bank informed the complainant that the said deposit was transferred to forward booking from FCNR term deposit by the previous Manager, and therefore, he cannot release the amount in US dollars. The matter was taken up with the Deputy General Manager, the Head office of Bank of Baroda the 2^nd opposite party. He replied that there was no agreement with the bank and the complainant to release the amount in US dollars. However, the opposite parties did not take any positive action to release the deposit in US Dollars. The 1^st opposite party had credited some amount in Indian rupees in the month June 2012 in his NRE account, which is against the instructions and the interests of the complainant. Before crediting the amount with the account of the complainant, the 1^st opposite party had sent a scanned copy of the RLFCD deposit relief to the complainant. The receipt shows that the amount was originally deposited in the FCNR term deposit which fetches 1.73% interest. The complainant had sent a lawyer notice dated 21-12-2012 to the opposite party to release the deposit in US dollars, that did not find any result. The 2^nd opposite party had told the complainant that by transferring account in RLFCD account that would fetch 9% interest and if his account is continued in FCNR account that would have fetched only 1.73% interest. Therefore, it was on the request of the complainant, they deposited the amount in RFLCD account. The complainant had suffered huge loss and mental suffering due to the action of the opposite parties by changing the nature of his account, without his permission. Hence, the complainant pray for an order directing the opposite parties to release the amount in US dollars along with interest on the principal amount. The complainant also seeks compensation of Rs. 5 lakhs in addition to the costs of the proceedings.

2. The opposite parties appeared and filed a joint version contending inter-alia as follows :-

The complaint was filed suppressing material facts with ulterior motives. The opposite party had taken due care and caution to ensure that the complainant is benefited, in so far as his investment is concerned. The complainant is not a “consumer” under the provisions of the Consumer Protection Act and hence the complaint is not maintainable. The investment was made by the complainant without obtaining any consent of the opposite party for facilitating such an investment and the bank had provided only assistance for opening such an investment without charging for such services. The complainant had approached the opposite party on 24-05-2011 and enquired about the various investment schemes available to the NRIs. The two options with regard to the RLFCD account and FCNR account were detailed to the complainant. It was on understanding both scheme properly, the complainant had open an account under RLFCD scheme and deposited US dollars 28,762.62 by way of a demand draft drawn on a foreign bank and instructed the bank to invest the proceeds of the draft on the RLFCD scheme. The date of the maturity of the investment as on 06-06-2012 was intimated to the complainant. As per RLFCD investment, the maturity proceeds of the deposit is to be made in Indian Rupee at the contracted rate, which are then to be credited to the NRE Account of the depositor. The allegation that the complainant's request was to invest the amount in US dollars is totally untenable. The complaint is therefore sought to be dismissed.

3. The evidence in this case consisted of Exts. A1 to A5 on the side of the complainant and he was examined as PW1. DW1 and DW2 were examined on the side of the opposite parties. Heard the learned counsel on both sides.

4. On the above pleadings, the following issues were settled for consideration :-

1. Whether the complainant has proved that he had made a deposit with the 1^st opposite party bank on a specific understanding and agreement that the amount deposited in US dollars shall be returned to him after the maturity period in the very same currency as alleged?

2. The reliefs, if any, allowable to the complainant?

3. Regarding costs?

5. Issue No. i. :- The complainant approached the 1^st opposite party on 24-05-2011 to deposit the dollars. Ext. A1 is the deposit receipt issued on 06-06-2011 for a period of one year under RLFCD scheme. The amount deposited as per Ext. A1 is 28,762.62 US dollars. The deposit was for 12 months at 1.73% of interest. On going through Ext. A1, it is seen that the amount received by the 1^st opposite party was 28,762.62 US dollars on a specific understanding that on 06-06-2012 the date of maturity the complainant would be given back 29,268.51 US dollars at the rate of interest calculated 1.73%. The printed heading of the receipt shows that it is a FCNR Term Deposit Receipt. It is true that beneath the same it is seen written by pen that it is RLFCD. If that be so, the rate of interest should have been 9% instead of 1.73%. Therefore, it is crystal clear that the intention of the parties at the time of deposit and acceptance of the amount was to give back a specific amount irrespective of the fact that whether there is fluctuation in the exchange value of US dollars as on the date of maturity.

6. The learned counsel for the opposite parties vehemently argued that the complainant is not a consumer in as much as the transaction is a purely commercial transaction and the complainant was demanding the money equivalent as on the date of maturity of the deposit. Ext. A1 does not give any material to believe such a statement. The complainant is an account holder with the 1^st opposite party bank and he has been charged the service charges for holding the account, and therefore, he is a consumer entitled to file a complaint before this Forum. The 2^nd opposite party is placed at Ernakulam and this Forum is having territorial jurisdiction as well. Ext. A2 dated 03-10-2011 was written by the complainant to the 2^nd opposite party stating that he did not enter into any agreement or make any request for changing the nature of deposit, and therefore, appropriate direction was sought to be given to the 1^st opposite party, through Advocate Arun Valenchery. The complainant had caused to issue a lawyer notice calling upon to release the deposit with interest in US dollars or to pay the highest conversion value in Indian Rupees to the complainant. Ext. A4 is a letter issued by the Senior Branch Manager stating that on maturity, the opposite parties shall convert the deposit in Indian Rupees along with the principal and interest and only a sum of Rs. 13,86,465/- was in the NRI account of the complainant on 06-06-2012 as per the scheme RLFCD. It was also stated in that letter that the amount of Rs. 28,762.72 US dollars was booked at a higher conversion rate of Rs. 47.23 for one year, when the exchange rate was between 44 and 45 per dollar. On going by Ext. A1, the explanation with regard to the value diminished or value escalated in respect of the conversion rate is immaterial. The contract between the complainant and the 1^st opposite party as per Ext. A5 is clinging and clear that the maturity value shown in Ext. A1 has to be handed over to the complainant in terms of the US dollars as per the agreement. The 1^st opposite party has committed serious deficiency in taking a contention that the scheme has been changed and further that there was telephonic agreement between the parties to the contrary. We find that there is clear deficiency in service in the matter, warranting interference by this Forum. The issue is therefore found accordingly in favour of the complainant.

7. Issue Nos. ii. and iii. :- The complainant was examined as PW1. It is seen from Ext. A4 that the amount was Rs. 13,86,465/-, which is inclusive of principal and interest has been credited to his account on 06-06-2012 and that the amount would be a higher amount than what was allowable under the FCNR scheme. The deposit of such an amount was not on the request of the complainant. It was a voluntary deposit by the bank in the account of the complainant. At the same time, we direct that the 1^st opposite party to comply in letter and spirit the mandate of Ext. A1 as agreed by the 1^st opposite party by paying an amount of 29,268.51 US dollars as on 06-06-2012 and to work out interest at the rate of 18% on that amount till the date of payment and that payment should be made in Indian Rupees. The complainant is also entitled to cost of the proceedings, which we estimate at Rs. 10,000/-.

8. In the result, the complaint is allowed and the following orders are passed for compliance within one month from the date of receipt of a copy of this order :

1. An order is passed against the 1^st opposite party to make a payment of 29,268.51 US dollars, with interest @ 18% on that amount as per the conversion value as on 06-06-2012.

2. The 1^st opposite party shall also pay Rs. 10,000/- to the complainant towards costs of the proceedings.

Pronounced in the open Forum on this the 10^th day of June 2015

Sd/- Cherian. K. Kuriakose, President.
Sd/- Sheen Jose, Member.

Sd/- V.K. Beena Kumari, Member.

Forwarded/By order,

Senior Superintendent.

A P P E N D I X

Complainant's Exhibits :-

Opposite party's Exhibits :: Nil