SURYAKANT AGGARWAL. filed a consumer case on 13 Jun 2023 against BANK OF INDIA. in the Panchkula Consumer Court. The case no is CC/212/2021 and the judgment uploaded on 21 Jun 2023.
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, PANCHKULA.
Consumer Complaint No | : | 212 of 2021 |
Date of Institution | : | 08.04.2021 |
Date of Decision | : | 13.06.2023 |
1. Suryakant Aggarwal s/o Late Sh.Kanhiya Lal Aggarwal.
2. Smt. Poonam Aggarwal w/o Sh. Suryakant Aggarwal.
Both R/o House No.474, Sector-11, Panchkula-134109 ..….Complainants
Versus
1. Bank of India, Sector-16, Panchkula through its Branch Head/ Assistant General Manager.
2. Sh. Virender Mahajan S/o Sh. R.K. Mahajan R/o House No.711, Sector-12, Panchkula, the then Manager Credit, Bank of India, Sector-16, Panchkula.
3. Smt. Kamlesh Gill w/o Sh. Surender Gill R/o House No.474-B, Adardh Nagar, Naya Gaon, District Mohali(Punjab), working as an officer in Bank of India, Sector-16, Branch, Panchkula.
……Opposite Parties
COMPLAINT UNDER
Before: Sh. Satpal, President.
Dr. Sushma Garg, Member.
Dr. Barhm Parkash Yadav, Member.
For the Parties: Sh.Diwan Sharma, Advocate for complainants.
Sh.Samjot Singh Thind, Advocate for OPs No.1 to 3.
ORDER
(Satpal, President)
1.Briefly stated, the facts, as alleged in the present complaint, are that the complainants were in need of some funds for establishing their business for earning their livelihood and in this regard, they were introduced to Sh.Virender Mahajan, the then Manager Credit Bank of India(OP No.2) by Sh.Kalsi, whom they were knowing since last 10/11 years; said Sh. Virender Maharjan(OP No.2) agreed to sanction the loan of Rs.25,00,000/- against the security of their residential house no .474, Sector-11, Panchkula. The complainants deposited the title deed of their house with OP no.2, who after getting the title deed verified from the record of Housing Board, Panchkula and taking a search report from their counsel, sanctioned a loan of Rs.25,00,000/- and thereafter, certain documents were got signed from the complainants, which included saving bank account opening form as well. The complainants were assured that the loan amount would be disbursed to them on 30.11.2017 and they would be able to withdraw the same after getting a cheque book from Delhi office of Bank within few days. On 01.12.2017, the complainant no.1 visited the branch of the Op’s bank for collecting the passbook of his account and also to know the status of the loan applied by him. He met Sh. Mahajan/OP No.2 and asked Sh. Mahajan about the status of his loan applicant and issuance of passbook of saving bank account. It is stated that Sh. Mahajan informed the complainants that his saving bank account was opened on 30.12.2017 itself and he supplied the passbook of the said SB account to the complainant. Sh. Mahajan also informed the complainant that the loan of Rs.25.00 lakh was sanctioned and an amount of Rs.24,70,500/- was credited in the saving bank account of the complainant on 30.11.2017 itself. He also informed the complainant that a sum of Rs.24,50,000/- was transferred in the account of Sh. Karamjit Kalsi from the account of the complainants. The complainant was stunned and surprised and asked Sh. Mahajan as to how the alleged loan amount of Rs. 24,70,500/- was credited in the newly opened saving bank account of the complainant without issuing any loan cheque and how such a big amount of Rs.24,50,000/- was transferred in the account of Sh. Kalsi without any legal mandate of the complainants. It is stated that amount of Rs.24,50,000/- was transferred in the account of said Sh. Kalsi on the basis of withdrawal slip only. Information under RTI Act was sought on 03.01.2018; legal notice was got sent by complainants on 08.01.2018, through their counsel. It is stated that an application was submitted with Deputy Commissioner of Police, Panchkula on 09.01.2018, on the basis of which, an FIR 53 dated 17.03.2018 was registered in Police Station, Sector-14, Panchkula, which is pending for further proceedings in the court of Chief Judicial Magistrate, Panchkula. The complainants received a notice dated 25.04.2018 issued under Section 13(2) of the SARRAESI Act by Sh. Piyush Bardhan, AGM/ authorized officer of the OP’s bank, whereby a demand of Rs.25,93,272/- outstanding as on 30.03.2018 was made. The complainant raised objections against the said notice dated 25.04.2018 vide objection dated 11.06.2018. The said objections raised by the complainants were rejected vide letter dated 30.06.2018 by the Assistant General Manager. During investigation by the police authorities in the said FIR No.53 dated 17.03.2018, statements of the complainants and others witnesses and other concerned persons were recorded by the Investigation Officer and those were filed in the Court of CJM, Panchkula with the final report filed under Section 173 CrPC. The authorized officer of the bank issued a possession notice dated 18.02.2020 and took the symbolic possession of the residential house of the complainants illegally on 18.02.2020 under Section 13(4) of the SARFAESI Act.. The complainants vide their letter dated 09.03.2020 requested the OP’s Bank to withdraw the said notice and to re-credit the amount of Rs.24.50 lakh in their account and recover the alleged amount from those officials/officers of the bank, who have been party to the fraud. The complainants have received no response to their said letter dated 09.03.2020 till today. However, the complainants have received a notice dated 25.02.2021 from Debt Recovery Tribunal-II, Chandigarh and have come to know that the OP’s Bank has filed an original application no.1135 of 2020 for recovery of Rs.35,97,566.76. It is alleged that the OPs have been deficient and negligent in rendering services to the complainant on two counts, i.e. the disbursement of the loan amount of Rs.24,70,500/- was made by way of vouchers without the authority of the complainants and ii) after crediting the said amount of Rs. 24,70,500/- in the account of the complainants immediately, an amount of Rs.24.50 lakhs was transferred into the account no. 671410100005216 of Sh.Karamjit Kalsi without any authorization or mandate signed by the complainants. Surprisingly, the said amount of Rs.24.50 lakh was transferred in the account of Sh. Karamjit Kalsi on the basis of a withdrawal slip, which was signed by the complainants no.1 for withdrawal of petty cash, which as per the rules and regulations of the bank, could be Rs.25,000/- only but the said withdrawal slip was fraudulently used as a transfer voucher. The OP Bank has indulged into unfair trade practice as it has initiated action for recovery of the illegal and unlawful amount, which was never disbursed to the complainants but was fraudulently transferred in the account of Sh. Kalsi by flouting all the banking norms/laws and practice; and filed the OA No.1135 of 2020 before DRT-II, Chandigarh. It is alleged that the proceedings initiated under the SARFAESI Act are illegal and invalid because no amount was ever disbursed to the complainants. Due to the act and conduct on the part of the OP, the complainant has suffered a great mental agony, physical harassment and financial loss; hence, the present complaint.
2.Upon notice, the OPs have appeared through counsel and filed written statement contesting the complaint by raising preliminary objection qua the complainant has concealed the material facts; no cause of action has accrued in favour of the complainants. The present complaint is not maintainable before the Commission as the adjudication of the same would involve an elaborate evidence, whereas examination, cross examination of witnesses would be required, which is not feasible under summary procedure being adopted under Consumer Protection Act. On merits, it is stated that the disbursement of loan amount of Rs.24,70,000/- was made in the account no.671410110012067 of the complainants no.1 on 30.11.2017 at their request. It is denied that Sh. Kalsi is having good relation with Sh.Virender Mahajan(OP No.2). It is submitted that the complainants had approached the OP No.2 bank for obtaining the loan facility. It is submitted that both the complainants came to the bank at their own. It is specifically wrong, incorrect and denied that Sh. Mahajan got certain papers and documents signed by the complainants on printed performa of the bank, which were blank in natures and the complainants signed on the said documents at the place where cross marking was made by pencil by Sh.Mahajan. The complainants visited the branch of OP No.1 and signed the documents, after reading, understanding and admitting the same as correct. It is denied that the OP No.2 had advised the complainants that they could withdraw the loan amount after receipt of the cheque book from the Delhi and they could get the pass book on 01.12.2017. It is submitted that account holder can withdraw through withdrawal form etc. It is submitted that a sum of Rs.24,50,000/- was transferred on 30.11.2017 on the request of the complainants in the account of Karamjit Kalsi from the saving account of the complainants. It is submitted that the said amount of Rs.24,50,000/- was transferred in the account of Sh. Kalsi from the saving account of the complainants on 30.11.2017 after following and adopting the proper legal procedure. It is admitted that the FIR has been got registered, wherein the Ops have joined the investigation and got recorded their statements. Regarding the proceedings initiated under SARFAESI Act, it is submitted that the same have been initiated legally as the complainant had not deposited the amount as per norms and guidelines of the reserve bank of India. It is specifically denied that withdrawal form dated 30.11.2017 purportedly signed by the complainants Sh.Suryukant Sharma, was used as transfer voucher in a illegal manner. It is submitted that the complainants themselves had requested the OP no.1 for transfer of the amount to the account of Sh.Kalsi and had signed the withdrawal form and deposited at their own. It is submitted that Symbolic position of house no. 474, Sector-11, Panchkula has been taken by issuing notice under Section 13(4) of the SARFAESI Act. It is denied that there was any lapses and deficiency on the part of the Ops. It is submitted that the OP has filed the OA No.1135 of 2020 in DRT for recovery of the loan amount with interest; thus, it has been prayed that there is no deficiency in service on the part of the OPs and the complaint is liable to be dismissed.
3.To prove the case, the learned counsel for the complainant has tendered affidavits as Annexure C-A along with document Annexure C-1 to C-14 in evidence and closed the evidence by making a separate statement. On the other hand, the ld. counsel for the OPs No.1 to 3 has tendered affidavit Annexure R-A, R-B & R-C along with documents as Annexure R-A/1 & A/2 and closed the evidence.
4. We have heard the learned counsels for both the parties, complainant and gone through the entire record including the written arguments filed by the complainant as well as OP, minutely and carefully.
5. Admittedly, the loan amounting to Rs. 25,00,000/- was sanctioned by OP No.1, out of which, an amount of Rs.24,70,500/- was credited/disbursed into the saving account no.671410110012067 of the complainants. As per version of OP’s, a sum of Rs.24,50,000/- was debited vide withdrawal slip(Annexure C-9) from the said saving account no.671410110012067of the complainants and was credited, on the basis of withdrawal form/transfer voucher, into the account no. 671410100005216 of Sh.Karamjit Kalsi on 30.11.2017 itself.
6.The complainants have disputed the correctness and genuineness of said transfer of Rs.24,50,000/-, on the basis of mere withdrawal slip, into the account no.671410100005216 of Sh.Karamjit Kalsi on 30.11.2017. The complainants have the alleged lapses and deficiencies on the part of the OPs on several counts, which are enumerated as under:-
Concluding the arguments, the learned counsel has prayed acceptance of the complaint by granting the relief as claimed in the complaint.
7.On the other hand, the learned counsel on behalf of the OPs reiterating the averments as made in the written statement as also the affidavit, (Annexure R-A, R-B & R-C) of Sh.Paramjit Singh, Assistant General Manager, Branch Manager, Bank of Indi, Sector-16, Panchkula(Hr.), Smt. Kamlesh Gill, officerScale-II (Manager), presently posted at Bank of India, Branch Dhanas, UT Chandigarh and Sh. Virender Mahajan, r/o #711, Sector-12, Panchkula(HR.) respectively have refuted all the allegations leveled by the complainants. It is contended that the proper procedure was followed by the OPs while transferring the amount of Rs. 24,50,000/- from thesaving account no. 671410110012067 of the complainants into the account no. 671410100005216 of Sh.Karamjit Kalsi on 30.11.2017 on the basis of transfer voucher. It is contended that the complainant no.1 had duly authorized the Ops, by putting his signature(complainant no.1) on the basis of transfer voucher, to transfer the said amount of Rs.24,50,000/- from the saving account no. 671410110012067 of the complainants into the account no. 671410100005216 of Sh.Karamjit Kalsi on 30.11.2017. Continuing the arguments, the learned counsel has raised the objections qua the maintainability of the complaint stating that proceedings under SARFAESI Act have already been initiated against complainants; thus, as per Section 34 of said Act, no action can be taken under Consumer Protection Act. Concluding the arguments, the learned counsel has prayed for dismissal of the complaint being frivolous, baseless and meritless.
8.After hearing the learned counsels for both the parties, it emerges that the whole controversy between the parties revolves around the following banking transactions:-
In support of his contentions, the learned counsel has placed reliance upon the judgment dated 06.09.2021 delivered by the Hon’ble Punjab and Haryana High Court in CWP No.4916 of 2020 in case titled as Allahabad Bank Vs. District Magistrate, Ludhiana & Ors.
9.As per complainant’s version, the OPs were contacted by them qua the alleged transfer of Rs.24,50,000/- from their saving account no. 671410110012067 into the account no. 671410100005216 of the said Kalsi on the basis ofmere withdrawalform. Further,as percomplainant’s version, information under Right to Information Act, 2005 was sought on 03.01.2018 qua the allegedfraudulenttransferof sumof Rs.24,50,500/- from their savingaccount no. 671410110012067 into account no.671410100005216 of Sh.Karamjit Kalsi. Further, the legal notice(Annexure C-2) was sentby the learned counsel on behalf of the complainant to Assistant General Manager, Branch Head Bank of India, Sector-16, Panchkula on 08.01.2020 and the matter was allegedly reportedby the complainants to the policeon 08.01.2018, on the basis of which, FIR No.53 was registered on 17.03.2018 in P.S. Sector-14, Panchkula. Furthermore, the action as envisaged under SARFAESI Act, 2002 was initiated by the OPs against the complainants on 25.4.2018 and the same is being contested before the appropriate authority. In addition to above the OA No.1135 of 2020 filed by OP No.1 in DRT in 2020 is also being contested by the complainants by filing reply/ objections.
10.From the above narratedfactual position, it is evidentthat thecause of actionhadarisenon 30.11.2017 itself and the complainants had objected on 08.01.2020 to the allegedly fraudulenttransfer of Rs.24,50,000/- from their saving account no. 671410110012067 into account no.671410100005216 of Sh.Karamjit Kalsi by way of legal noticeas well as lodgingof FIR etc.
11.Pertinently, the present complaint was instituted on 18.04.2021 i.e. after a period of about more than three years three months, whereas Section 69(1) of the CP Act provides a period of two years, from the date, on which, the cause of action has arisen, for filing the complaint before the Commission. Section 69(2) provides that a complaint may be entertained after the period specified in sub-section (1), if the complainantsatisfies the District Commission, the State Commission or the National Commission, as the case may be, that he/she had sufficientcause for not filing the complaint `within such period.
12.No justification, much less valid and proper has been furnished by the complainants qua the filing of the present complaint beyond the prescribed period of limitation.
13.The issues of limitation, delay and lapses as well as condonation of delay have been examined and explained by the Hon’ble Apex Court in various judicial pronouncements. The Hon’ble Apex Court in the case titled as Brijesh Kumar & Ors. Vs. State of Haryana & Ors. vide its judgement delivered on 24.03.2014 in Special Leave Petition(Civil) Nos.6609-6613 of 2014 has dealt at length on the issue of limitation. For the sake of convenience and clarity, the relevant paras of the said judgment are reproduced as under:-
9.In P.K.Ramachandran Vs. State of Kerala & Anr., AIR 1998 SC 2276, the Apex Court while considering a case of condonation of delay of 565 days, wherein no explanation much less a reasonable or satisfactory explanation for condonation of delay had been given, held as under: Law of limitation may harshly affect a particular party but it has to be applied with all its rigour when the statute so prescribes and the Courts have no power to extend the period of limitation on equitable grounds.
10.While considering a similar issue, this court in Esha Bhattacharjee Vs. Raghunathpur Nafar Academy & Ors. (2013) 12 SCC 649 laid down various principles inter alia:-
x x x
v) Lack of bona fides imputable to a party seeking condonation of delay is a significant and relevant fact.
vi) The concept of liberal approach has to encapsule the conception of reasonableness and it cannot be allowed a totally unfettered free play xxx
ix) The conduct, behaviour and attitude of a party relating to its inaction or negligence are relevant factors to be taken into consideration. It is so as the fundamental principle is that the courts are required to weigh the scale of balance of justice in respect of both parties and the said principle cannot be given a total go by in the name of liberal approach.
xxxxvii) The increasing tendency to perceive delay as a non-serious mater and, hence, lackadaisical propensity can be exhibited in a nonchalant manner requires to be curbed, of course, within legal parameters. (See also: Basawaraj Vs. Land Acquisition Officer(2013) 14 SCC 81).
11. The courts should not adopt an injustice-oriented approach in rejecting the application for condonation of delay. However, the court while allowing such application has to draw a distinction between delay and inordinate delay for want of bona fides of an inaction or negligence would deprive a party of the protection of Section 5 of the Limitation Act, 1963. Sufficient cause is a condition precedent for exercise of discretion by the Court for condoning the delay. This Court has time and again held that when mandatory provision is not complied with and that delay is not properly, satisfactorily and convincingly explained, the court cannot condone the delay on sympathetic grounds alone.
The Hon’ble Supreme Court in the case titled as Kandimalia Raghavaiah & Co. Vs. National Insurance Co.& Anr, in Civil Appeal No.4962 of 2002 decided on 10.06.2009 has dealt with the issue of limitation as well as cause of action at length in its paras no.11,12 & 13 which are reproduced as under:-
11.Section 24A of the Act bars any fora set up under the Act, from admitting a complaint, unless complaint is filed within two years from the date of which the cause of action has arisen. The provision expressly casts a duty on the commission, admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date of which the cause of action had arisen.
12.Recently, in State Bank of India Vs. B.S.Agricultural Industries (I) JT 2009 (4) SC 191, this Court, while dealing with the same provision, has held:-
8. “It would be seen from the aforesaid provision that it is peremptory in nature, and requires consumer forum to see before it admits the complaint that it has been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint if sufficient cause is shown. The expression, ‘shall not admit a complaint’ occurring in Section 24A is sort of a legislative command to the consumer forum to examine on its own whether the complaint has been filed within limitation period prescribed thereunder. As a matter of law, the consumer forum must deal with the complaint on merits only if the complaint has been filed within two years from the date of accrual of cause of action and if beyond the said period, the sufficient cause has been shown and delay condoned for the reasons recorded in writing. In other words, it is the duty of the consumer forum to take notice of Section 24 A and give effect to it. If the complaint is barred by time and yet, the consumer forum decides the complaint on merits, the forum would be committing an illegality and; therefore, the aggrieved party would be entitled to have such order set aside. [Also see: Union of India & Anr. Vs. British India Corporation Ltd. & Ors.,(2003)9 SCC 50 and Haryana Urban Development Authority vs. B.K.Sood, (2006) 1 SCC 164.]
13.The term “cause of action” is neither defined in the Act nor in the Civil Procedure Code, 1908 but is of wide import. It has different meaning in different contexts, that is when used in the context of territorial jurisdiction or limitation or the accrual of right to sue.
Generally, it is described as “bundle of facts”, which if proved or admitted entitle the plaintiff to the relief prayed for. Pithily stated, “cause of action” means the cause of action for which the suit is brought. “Cause of action” is cause of action which gives occasion for and forms the foundation of the suit. (See: Sidramappa vs. Rajeshetty & Ors.(1970) 1 SCC 186). In the context of limitation with reference to a fire insurance policy, undoubtedly, the date of accrual of cause of action has to be the date on which the fire breaks out.
14.Keeping in view the aforementioned legal position, we advert to the facts of the present case and find that no explanation, much less valid and adequate has been provided by the complainants, which prevented them to file the present complaint within the prescribed period of limitation. Even no application for condonation of delay explaining the sufficient cause has been filed alongwith the complaint.
15.In view of the aforementioned legal position, the present complaint has been found not maintainable under the Consumer Protection Act, 2019 being time barred.
16.Now, we advert to Section 34 of the SARFAESI Act, 2002, wherein no injunction can be granted by the Civil Court or other authority in the matter, wherein the proceedings under the Act(supra)have been initiated by secured creditors i.e. bank/financial institution against the borrower i.e. consumer. Section 34 of SARFAESI Act, for the sake of clarity and convenience, is reproduced as under:-
34. Civil court not to have jurisdiction.—No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993).
17.As per Section 34 reproduced above, no injunction can be granted by the Consumer Commission against the OPs.
18.Lastly, it is of utmost importance and relevance to mention here that the controversy between the parties revolves around the allegedly transfer of sum of Rs.24,50,500/- from the saving account no. 671410110012067of the complainants in the account no. 671410100005216 of Sh.Karamjit Kalsi of Kalsi on the basis of mere withdrawal slips/transfer voucher in a fraudulent manner. In our considered opinion, Intricate and complicated questions of facts are involved in the present complaint, which can’t be decided in a summary procedure being adopted under the Consumer Protection Act, 2019.
19. In view of the aforementioned factual as well as legal position, the present complaint under the Consumer Protection Act is not maintainable. However, in the interest of justice, without commenting on the merits of the case, we deem it appropriate to dispose of the present complaint with the direction to the complainants to approach the appropriate Tribunal/Authority/Court as per law, if they are so advised. The complainants shall be at liberty to file an application before the concerned Court/Authority/Tribunal under Section 14 of the limitation Act for excluding the period spent before this Commission for the purposes of computation of limitation in terms and observations made by the Hon’ble Apex Court in the case of “Luxmi Engineering Works Vs. PSG Industrial Institute 1995(III) SCC P.583”.
20.The original papers/documents, if any, attached with the present complaint be returned to the complainants on their request after retaining the photocopy of the same on record. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.
Announced on: 13.06.2023
Dr.Barhm Parkash Yadav Dr.Sushma Garg Satpal
Member Member President
Note: Each and every page of this order has been duly signed by me.
Satpal
President
CC.212 of 2021
Present: Sh.Diwan Sharma, Advocate for complainants.
Sh.Samjot Singh Thind, Advocate for OPs No.1 to 3.
Reply has been filed by OPs No.1 to 3 through their counsel in response to application dated 26.05.2023 moved by the complainant seeking relief.
Remaining arguments heard. Now, to come upon 13.06.2023 for orders.
Dt.05.06.2023
Dr.Barhm Parkash Yadav Dr.Sushma Garg Satpal
Member Member President
Present: Sh.Diwan Sharma, Advocate for complainants.
Sh.Samjot Singh Thind, Advocate for OPs No.1 to 3.
Vide a separate order of even date, the present complaint is disposed of accordingly.
The application filed by the complainants on 26.5.2023 seeking interim relief also stands disposed of in terms of the main order passed in the complaint.
A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.
Dt.13.06.2023
Dr.Barhm Parkash Yadav Dr.Sushma Garg Satpal
Member Member President
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