Punjab

Ludhiana

CC/15/200

Inderjit Singh - Complainant(s)

Versus

Bank ofMaharashtra - Opp.Party(s)

Rahul Adv.

14 Jul 2016

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 200 of 24.03.2015

Date of Decision            :   14.07.2016

 

1.Inderjit Singh son of Tara Singh.

2.Harjeet Kaur wife of Tara Singh,

   Both residents of 1297, St. No.12/7, Dashmesh Nagar, Gill Road, Ludhiana.

 

….. Complainants

                                                         Versus

 

1.Bank of Maharashtra, Gill Road Branch, Ludhiana through its Branch Manager.

2.The Branch Manager Bank of Maharashtra, Gill Road Branch, Ludhiana.

 

…Opposite parties

 

 

          (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

MRS. BABITA, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainants                    :        Sh.Anil Kaushal, Advocate     

For OPs                         :        Sh.H.P.S.Gill, Advocate

 

PER G.K.DHIR, PRESIDENT

 

1.                Complainants claims to be maintaining their bank account No.20052115740 with Ops. Even the complainant no.2 is having FDRs bearing account No.60174981134, receipt No.149520 and account No.60110288393, receipt no. 958992 with OPs. So, complainants are consumers of OPs. On 13.11.2014, Ops sent a letter to the complainants for intimating as if their account has been put on hold because one cheque bearing No.370491 drawn on Union Bank of India, Gill Road, Ludhiana on 28.08.2007 for amount of Rs.30,000/- was sent through clearance, but the same was returned unpaid. That amount of Rs.30,000/- alleged to be recoverable from the complainants since from 28.8.2007 as per letter of OPs. Thereafter, complainants made representations to the OPs, but they did not permit the complainants to operate their account and nor the amount of FDRs lying in the account of the complainants had been released prematurely. Rather, OPs flatly refused to permit the complainants to operate their accounts. After lapse of 7 years, now OPs intimated illegally as if cheque pertains to Rohit Steel Industries. Complainants asked OPs as to why the dishonoured cheque in original not returned back to the complainants. Complainants claims that had the cheque in original  been returned to them by OPs, then they would have filed        complaint under Section 138 of Negotiable Instruments Act or could have taken other steps for recovering the amount from payee of the cheque. Act of OPs alleged to unreasonable and unwarranted resulting in great hardship and mental agony to the complainants. Prayer made for directions to Ops to permit the complainants to operate their accounts and remove the hold on over all the accounts. Compensation for mental harassment and agony of Rs.1 lac claimed by pleading deficiency in service on the part of OPs.

2.                 In the written statement filed by OPs, it is pleaded interalia as if the complaint is not maintainable because complainants have not approached this Forum with clean hands. Rather, it is claimed that complainants wants to mis-appropriate the public money, due to which, OPs have right to prosecute the complainants. Admittedly, the complainants are having bank account/FDRs as alleged in the complaint. However, it is claimed that complainants do not fall within the definition of consumers. Admittedly, Ops sent letters to the complainants for put on hold their accounts because cheque bearing No.370491 drawn on Union Bank of India, Gill Road Branch, Ludhiana of amount of Rs.30,000/- sent through clearance remained uncashed. That amount alleged to be recoverable from the complainants. Even the lien is marked on the FDRs bearing No.60174981134 and 60110288393. Representations made by the complainants to Ops were baseless regarding release of FDRs because they have right of general lien over the FDRs for recovery of balance due from the complainants, which is Rs.30,000/-. Presently the maturity value is more than double, which the complainants are bound to pay. When the cheque issued in favour of complainant no.2 by M/s Rohit Steel Industries presented for collection with OPs, then amount of Rs.30,000/- was credited in the account of the complainants and they withdrew the same from their saving account No.20052115740. However, that amount could not be debited inadvertently in the account of the complainants. Complainants were intimated about the fate of the cheque by handing over the same to them. Even the complainants were called upon to deposit the amount of Rs.30,000/-, but despite promise, they failed to deposit the same, despite repeated requests and demands. Ultimately, Ops sent letters dated 23.01.2015, 16.02.2015, 26.02.2015 and 2.3.2015, but the complainants did not respond to those letters. It is claimed that there is conspiracy between the complainants and M/s Rohit Steel Industries to defraud the Ops by way of misappropriation of the amount of Rs.30,000/-. Letters sent to M/s Rohit Steel Industries, 1397, Street No.8, Dashmesh Nagar, Gill Road, Ludhiana even remained un-replied till date. It is claimed that a man of ordinary prudence cannot wait for 7 years for return of cheque and as such, story put forth by the complainant is baseless and false. Complainants are bound to compensate the OPs for committing fraud with respect to the mis-appropriation of Rs.30,000/- above referred.

3.                Complainants to prove their case tendered in evidence affidavit Ex.CA of complainant no.1 Sh.Inderjit Singh along with documents Ex.C1 to Ex.C7 and thereafter, counsel for the complainants closed the evidence.

4.                On the other hand, counsel for OPs tendered in evidence affidavit Ex.RA of Sh.D.K.Mahajan, Chief Manager of OPs Bank Branch along with documents Ex.R1 and Ex.R2 and thereafter, closed the evidence.

5.                          Written arguments submitted by OPs, but not by the complainants. Oral arguments of counsel for the parties heard and records gone through minutely. 

6.                Undisputedly, the complainants have their saving bank account and accounts of FDRs with Op bank. Dispute in that respect has not been raised in the written statement or in the written arguments submitted on behalf of OPs. Accounts of the complainant put on hold allegedly due to wrong withdrawal of Rs.30,000/-. As the complainants holding accounts with OP bank and as such certainly the complainants are consumers of OPs because complainants availing services of OPs on payment of charges qua maintaining their accounts with them.

7.                Bank service is service as defined under the Consumer Protection Act, 1986 and as such, customer hiring such service is a consumer within the meaning of Section 2(d) of the Consumer Protection Act,1986 is the preposition of law laid down in case of Biratunga S.C.S.Ltd.(Mini Bank) vs. Sangram Keshari Pati and others-AIR 2006 Orissa-97. So, complainants are consumers.

8.                As the saving bank account No.20052115740 of complainants was put on hold and that is why, they filed application Ex.C1 dated 11.11.2014 with Ops for requesting them to permit them to operate the account. In response to this letter Ex.C1, Chief Manager of Ludhiana Branch of OP bank informed the complainants that amount of Rs.30,000/- withdrawn on the basis of cheque No.370491 has not been debited in their account and that is why, the said amount recoverable from the complainants since from 28.8.2007. Complainant no.2 Smt.Harjit Kaur holding two FDRs of Rs.1 lac each with OP bank and OP bank not permitting the complainants to operate these FDRs. If at all amount of Rs.30,000/- alone is recoverable due to wrong disbursal of this amount on the basis of uncleared cheque, then OP bank cannot claim lien over the entire amount of Rs.2 lac because lien to remain to the extent of liability of complainants(if any).

9.                It is submitted in the written statement that cheque bearing No.370491 drawn on Union Bank of India dated 24.8.2007 was returned to the complainants. However, letter Ex.C7 is there on record to show that returned cheque No.370491 dated 24.8.2007 issued by Rohit Steel Industries drawn on Union Bank of India for an amount of Rs.30,000/- had been returned by Union Bank of India unpaid and the same remained lying with OPs for sometimes, but at present the same is not traceable. This letter Ex.C7 signed by Sh.D.K.Mahajan, Chief Manager of Ludhiana Branch of OP Bank. In view of clear cut admission of OPs through Ex.C7(letter dated 21.3.2015), now OPs estopped from claiming that cheque has been returned back to the complainants. If really the cheque in question would have been returned to the complainants by the OPs, then there was no need to mention in Ex.C7 the fact that the said cheque has become untraceable now, albeit the same was lying earlier with OP bank. So, plea taken in the written statement in this respect is false because document like Ex.C7 cannot tell lie being sent by the OPs to the complainants just 3 days prior to filing of the present complaint.

10.              If at all Ops to exercise their right of lien, then they must have given opportunity of personal hearing to the complainants before enforcing that lien because transaction of wrong disbursal is of 28.8.2007. It is duty of the officials of OPs to maintain the record properly by incorporating the credit/debit entries. That duty was not duly performed by OPs. Rather, contents of letter Ex.C7 establishes that mistake of non incorporation of debit entry qua amount of Rs.30,000/- concerning the cheque in question came to the knowledge of OPs recently. If such mistake came to the knowledge of OPs recently at the time of issue of letter Ex.C7 of date 21.3.2015, then for rectifying that mistake, OPs must have given an opportunity of hearing to the complainants, so that they may present their point of view. That opportunity virtually provided through letter Ex.C7 because through that letter complainants were called upon to deposit Rs.30,000/- immediately in their account, so that debit entry may be incorporated.

11.              Complainants sent letters Ex.C3 and Ex.C4 to Ops for calling upon them to return their unpaid cheque and it was in response to those letters that letter Ex.C7 was sent on 21.3.2015 virtually for informing the complainants that returned cheque is not traceable, though earlier the same was lying with Ops. So, non return of the disputed cheque despite demand amounts to deficiency in service on the part of OPs, particularly when afterthought version incorporated in the written statement qua cheque being already returned to the complainants.

12.              Ops have produced on record copies of statements of account of Rohit Steel Industries Ex.R1 and of account of complainant no.2 Smt.Harjit Kaur Ex.R2 for showing that entry of debit of Rs.30,000/- is not incorporated in the account of the complainants, despite return of the cheque in question. So, OP bank was having a general lien on the accounts of the complainants. That lien is to the extent of adjustment of amount due to the bank from the customer only and not beyond that. In case of Syndicate Bank vs. Vijay Kumar, AIR 1992 SC 1066, it has been held that in mercantile system the bank has a general lien over all forms of securities or negotiable instruments deposited by or on behalf of the customers in the ordinary course of banking business. The Bank has the liberty to adjust from the proceeds of the two FDR’s towards the dues to the bank and if there is any balance left that would belong to the depositor. So, bank after exercising its right of lien with respect to disputed amount of Rs.30,000/- must have disbursed the balance  amount to the complainants. Even that has   not been done by the Ops because accounts of the complainants put on hold and as such, deficiency in service on the part of OPs is there.

13.              Bank has lien over the cash credit account and proceeds of fixed deposit of the customer in view of Section 171 of the Indian Contract Act, 1872 as per law laid down in case of Krishna Kishore Kar vs. United Commercial Bank and another-AIR 1982 Calcutta-62. However, balance can be adjusted by appropriating amount lying in separate account in exercise of its general lien in view of Section 171 of Indian Contract Act, 1872. OP bank has to work out the details of due amount to be recovered from the complainants and then disclose about the same to the complainants before effecting recovery in exercise of their right of lien under Section 171 of Indian Contract Act, 1872. This is at least the requirement of principles of natural justice. Banker’s lien under Section 172 extends to FDRs also is the proposition of law laid down in case of State Bank of India vs. Smt. Goutmi Devi Gupta-AIR 2002 Madhya Pradesh 81. Bank has right of set-off loan account by transferring the amount lying deposited in current account of the customer in view of Section 171 of Indian Contract Act, 1872 is also the proposition of law laid down in case of Canara Bank, represented by its Senior Manager, Narayanaguda, Hyderabad and others vs. M/s Taraka Prabhu Publishers Pvt. Ltd. and others-AIR 1991 Andhra Pradesh-258. The general banker’s lien  to be exercised by the bank as a protection against loss on account or loss of loan or overdraft is the preposition of law laid down in case of Punjab National Bank Limited vs. Satyapal Virmani- AIR 1956 Punjab 118 (Vol.43, C.44 May). So even if the general banker’s lien under Section 171 of Indian Contract Act, 1872 can be exercised by the OP bank in respect of the alleged loss of Rs.30,000/-, despite that principles of natural justice requires that due opportunity of hearing must have been given to the complainants by disclosing them the details of the loss amount including interest( if any). The amount in FDRs of the complainant no.2 is more than that of disputed loss amount of Rs.30,000/- and as such, withholding of the  amount of Rs.2 lac of the        FDRs Ex.C5 and Ex.C6 is illegal. Withholding of the amount in excess of the actual loss amount certainly is deficiency in service on the part of OPs because complainants were prevented from utilization of their due amount due to action of withholding of account. As the complainants have been deprived from utilizing of their due amount and as such, they suffered mental loss and agony. However, OP bank cannot be denied their right of general lien in view of Section 171 of Indian Contract Act, 1872 and as such, OP bank must serve a fresh notice on the complainants by disclosing the details of amount of loss along with interest (if any). That notice must be served in writing by the OPs on the complainants and thereafter, complainants would be given right of personal hearing before taking final decision by OP bank qua the recoverable amount. After adjudging the due amount, OP bank will permit the complainants to operate their accounts with respect to the balance due to the complainants.

14.              Therefore, as a sequel of the above discussion, the present complaint allowed in terms that OP bank may exercise their right of banker’s lien in view of section 171 of Indian Contract Act, 1872 after serving notice in writing on the complainants disclosing the due amount along with interest(if any). Such notice must be served in writing by the OPs on the complainants within 30 days from the date of receipt of copy of this order. After receipt of that notice in writing, complainants will have their right to file written response with Ops within 30 days from the date of receipt of such notice. Ops after hearing the complainants will decide about the recoverable amount and  disburse the balance amount to the complainants as per their wish. Decision in that respect must be taken finally by the OPs within 30 days from the date of receipt of written response from the complainants as referred above. Compensation for mental harassment of Rs.5000/- and litigation expenses of Rs.5000/- more allowed in favour of the complainants and against OPs. Payment of compensation and litigation amounts be made within 30 days from the date of receipt of copy of this order. Copies of order be supplied to the parties free of costs as per rules.

15.                        File be indexed and consigned to record room.

 

                                      (Babita)                            (G.K.Dhir)

                              Member                            President

Announced in Open Forum

Dated:14.07.2016

Gurpreet Sharma.