By Smt. C.S. Sulekha Beevi, President<br /> <br /> <br /> 1. Brief facts of the case are as follows:-<br /> Complainant availed agricultural loan of Rs.25,000/- on 8-8-2001 with opposite party as Kissan Credit Card account No.584. On 20-3-2003 complainant started a Nithya Nidhi Deposit (NND a/c No.4256) with opposite party. On 25-3-2004 he withdrew an amount of Rs.4682/- from Nithya Nidhi Deposit account and remitted to his agricultural loan thereby renewing the loan. The balance as on 3/04 in Nithya Nidhi Deposit account was Rs.9118/-. Complainant approached opposite party to withdraw this amount in Nithya Nidhi Deposit account. Opposite party declined permission informing him that he could withdaw amount from Nithya Nidhi Deposit account only after closing the agricultural loan. The balance in Kissan Credit Card loan account as on 25-3-2004 was Rs.25,000/-. Thereafter complainant again approached opposite party with cash of Rs.16314/- and sought permission to withdraw Rs.9118/- in the Nithya Nidhi Deposit account in order to close the Kissan Credit Card loan account. Opposite party refused permission. Hence the complaint.<br /> <br /> 2. Opposite party filed version admitting both the accounts, held by complainant. Opposite party resists the claim contending that on 25-3-2004 complainant directly transferred Rs.4682/- from Nithya Nidhi Deposit account to Kissan Credit Card loan account. Thereby the Nithya Nidhi Deposit account became connected with loan account and further transfer of any amount from Nithya Nidhi Deposit account was not possible as per Bank's regulations and the nearest possible date of adjustment of any amount from Nithya Nidhi Deposit account was 8-8-2004 which is the tenable date of Kissan Credit Card loan account. That there is no deficiency in service and complaint is liable to be dismissed.<br /> <br /> 3. Evidence in this case consists of affidavits filed by both sides. Exts.A1 to A7 marked on the side of complainant. Exts.B1 to B7 marked on behalf of opposite party. Either side has not adduced any oral evidence. Due to vacancy in the post of President in 2003, there was no sitting of Forum for a long time. This case first came up before us on 10-8-2007 and was finally heard on 28-1-2008.<br /> <br /> 4. The points that arise for consideration are (i) Whether opposite party has committed any deficiency in service? (ii) If so reliefs and costs.<br /> <br /> 5. Point (i):- The undisputed fact of this case is that complainant was holding an agricultural loan (hereafter mentioned as KCC loan account) and Nithya Nidhi Deposit (hereafter mentioned as NND a/c) with opposite party. The balance in KCC loan a/c on 25-3-2004 is Rs.25,000/- and the balance in NND a/c on the same date is Rs.9118/-. Admittedly at the start of NND a/c it was not connected/linked with KCC loan account. Opposite party contends that complainant had directly transferred Rs.4682/- from NND account to KCC loan account on 25-3-2004. From this date onwards NND account became linked with KCC loan account. To prove that NND account became linked with KCC loan account opposite party relies on Ext.B7 which is the ledger extract of NND account. It is submitted that the endorsement made on the top of Ext.B7 makes the NND account linked with loan account. This endorsement in Ext.B7 is “KCC 584”. According to opposite party once the NND account is linked with loan account. Opposite party was unable to allow complainant to adjust any amount from NND account to loan account as per Bank's regulations. Ext.B1 and B2 are the documents relied to support this contention. Ext.B1 is the Circular No.142/98 dated, 23-12-1998. Ext.B2 is Memo No.58/02 dated, 22-8-02. The conditions if any in Ext.B1 and B2 apply only to NND account which are linked with loan account, or NND account which are offered as collateral security to loan account. Counsel for opposite party submitted that when complainant had directly transferred Rs.4682/- to KCC loan account, the NND account became linked with KCC loan account. It is also submitted that instead of directly transferring if the complainant had withdrawn Rs.4682/- from NND account and then remitted it in KCC loan account the NND account would not have been linked with KCC loan account. No evidence is adduced to support what is the procedure adopted by opposite party bank to link NND account which is not initially linked with loan account. Opposite party has not obtained any written consent from complainant to link NND account with KCC loan account. Opposite party has no case that complainant has offered NND account as collateral security for KCC loan account. Thus opposite party has unilaterally varied the terms of agreement and linked the NND account with KCC loan account. Complainant contends that KCC loan was sanctioned on the security of landed property. This is denied by opposite party. We do not further delve into the question whether there is sufficient security for KCC loan account since opposite party has already sanctioned the loan and further opposite party has no case that complainant was offered NND account as a collateral security for KCC account. The question to be considered is whether opposite party was justifiable in refusing permission to withdraw amount from NND account.<br /> <br /> 6. According to complainant he withdrew Rs.4682/- on 25-3-2004 and remitted in KCC loan account. Thereafter he approached opposite party to withdraw some amount from NND account. He was informed by opposite party that he could not withdraw any amount without closing KCC loan account. Later he approached opposite party with cash of Rs.16314/- and requested permission to withdaw Rs.9118/- from NND account in order to remit in KCC loan account and clear all dues in KCC loan account. Complainant alleges that opposite party refused this and therefore he remitted cash of Rs.16314/- in KCC loan account. Ext.A2 proves that complainant has remitted Rs.16314/- in KCC loan account on 27-5-2004. Complainant then caused Ext.A5 lawyer notice dated, 7-6-2004 to opposite party requesting opposite party to permit him to withdraw the amount in NND account in order to close the KCC loan account. Ext.A6 is the reply dated, 23-6-2004 issued by Advocate Sri.Pisharody on behalf of opposite party. In Ext.A6 it is stated that there is a lien over NND account and the NND account is linked to KCC loan account. Therefore NND account cannot be closed and that money cannot be transferred to loan account, since loan account is not over due. It is further stated in Ext.A6 that if complainant furnished a written request to close NND account and credit the amount to loan account, opposite party was prepared to do so. This contention of opposite party in Ext.A7 that only because complainant did not furnish written request to close NND account. Opposite party was unable to transfer the amount is reiterated in the version and is the main resistance put forward by opposite party. We are unable to accept this contention for the reason that Ext.A4 dated, 30-4-2004 is the copy of the request made by complainant to opposite party to close NND account. Complainant pleads as well as affirms that the request given to opposite party along with revenue stamp was torn off in front of him by opposite party. Opposite party denies receipt of Ext.A4 and contends that it is fabricated after receipt of Ext.A7 reply notice. Even assuming that Ext.A4 is fabricated after receiving Ext.A7 reply notice, the evidence tendered and materials on record establish and prove that opposite party did refuse permission to close NND account or transfer any amount from NND account. This is affirmed by opposite party in para 4 of the counter affidavit and supported by Ext.A7 and pleadings. Ext.A7 is dated, 23-6-2004. If on 23-6-2004 opposite party was willing to allow the complainant to transfer amount from NND account to KCC account on furnishing a written request by complainant, there is no reasonable explanation why opposite party refused to adjust the amount earlier. Further the contention that opposite party has lien over NND account cannot be accepted. NND account belongs to the category of Fixed deposit. In Ext.A1 it is stated that NND account is a deposit for a fixed period by daily deposit scheme. A banker has no right of general lien over fixed deposits. As per the decision rendered in 1990 (1) KLT 262, Union Bank of India Vs. Venugopalan the bank being a debtor, in respect of money held in fixed deposit, has no right, to press into service the doctrine of banker's lien and retain money in fixed deposit. This decision was referred to by Hon'ble National Commission in ING Vysya Bank Ltd. Vs. Y. G. Sreeram Setty 2006 NCJ 357 (NC) and has held that a banker cannot exercise it's lien under Sec.171 Contract Act and straightaway appropriate the money deposited in F.D.R., by guarantor without informing the guarantor. Interestingly opposite party has, herein, exercised lien over NND account, for repayment of a loan, which complainant intended to pre close.<br /> <br /> 7. From the above discussions we are able to conclude that opposite party refused to close NND account and transfer the amount to loan account for the reason that NND account is linked with KCC loan account and that opposite party has a right of lien over KCC loan account. No consent was obtained from complainant. Therefore we hold that opposite party cannot link NND account to the KCC loan account and retain the amount exercising lien without obtaining prior consent of the complainant. For the above reasons we find opposite party deficient in service.<br /> <br /> 8. Point (ii):- Complainant prays for permission to withdraw the balance of Rs.9118/- from NND account and to exempt from paying interest in KCC loan account from 27-5-2004 onwards. He also claims compensation of Rs.25,000/- towards monetary loss and mental agony. Ext.B7 shows opposite party has already adjusted the balance in NND account to KCC loan account and closed the KCC loan account. Ext.B6 is the letter dated 29-01-07 informing complainant that the amount has been adjusted to KCC loan account as per instructions of Area Manager. In Ext.B6 it is stated after adjusting the balance in NND account a further sum of Rs.425/- was adjusted to KCC loan account to close it and a balance of Rs.1130/- is still to be paid by complainant. If KCC loan was closed how a balance of Rs.1130/- is outstanding is not made clear by opposite party. It is not brought out in evidence or argument what is the amount together with interest transferred from NND account to KCC loan account. Similarly which is the date of closing KCC loan account and what is the balance on the date of closing is not brought clear by opposite party. On 25-7-2004 when complainant remitted Rs.16314/- into KCC loan account the balance outstanding was Rs.8734/-. If complainant was permitted to withdraw Rs.9118/- from NND account on the same day he would be able to pre close KCC loan account and would also receive a balance of Rs.384/-, complainant could also have saved the balance of Rs.425/- in his S.B. Account. Thus due to the refusal of opposite party to withdraw the amount in NND account complainant has lost an amount of Rs.809/- in excess and incurred a liability of Rs.1130/-. Complainant is entitled to be exempted from payment of interest into KCC loan account<br /> <br /> from 27-5-2004, KCC loan account has already been closed. We hold complainant is not liable to pay any further amount to KCC loan account. Complainant is entitled to interest on the amount of Rs.9118/- held in NND account. We hold that a compensation of Rs.3000/- towards monetory loss and Rs.2000/- towards mental agony would serve justice to the complainant.<br /> <br /> 9. In the result we allow the complaint and order that complainant is exempted from paying any amount or interest in KCC loan account from 27-5-2004 and thus exempted from paying Rs.1130/- to opposite party. The NND account and KCC loan account found to be adjusted. We order opposite party to pay a compensation of Rs.3000/- (Rupees three thousand only) towards monetory loss and Rs.2000/- (Rupees two thousand only) towards mental agony to the complainant along with costs of Rs.1000/- (Rupees one thousand only) within three weeks from the date of receipt of copy of this order.<br /> <br /> Dated this 15th day of February, 2008.<br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> APPENDIX<br /> <br /> <br /> Witness examined on the side of the complainant : Nil <br /> Documents marked on the side of the complainant : Ext.A1 to A7<br /> Ext.A1 : NND Pass book dated, 20-3-2003 received from opposite party <br /> to complainant.<br /> Ext.A2 : Kissan Credit Card dated, 8-8-2001 received from opposite party <br /> to complainant.<br /> Ext.A3 : Loan chalan receipt for Rs.16314/- dated, 27-5-2004 received <br /> from opposite party to complainant.<br /> Ext.A4 : Photo copy of the request dated, 30-4-2004 by complainant to <br /> opposite party.<br /> Ext.A5 : Photo copy of the registered lawyer notice dated, 7-6-2004 sent by <br /> complainant's counsel to opposite party.<br /> Ext.A6 : Acknowledgement received from opposite party to complainant.<br /> Ext.A7 : Photo copy of the registered reply notice dated, 23-6-2004 sent by <br /> opposite party's counsel to complainant .<br /> <br /> Witness examined on the side of the opposite parties : Nil<br /> Documents marked on the side of the opposite parties : Ext.B1 to B7<br /> <br /> Ext.B1 : Photo copy of the Circular No. 142/98 dated, 23-12-1998.<br /> Ext.B2 : Photo copy of the Memo No.58/02 dated, 22-8-2002.<br /> Ext.B3 : Photo copy of the letter dated, 2-9-2004 sent by Area Manager<br /> to complainant.<br /> Ext.B4 : Photo copy of the loan application dated, 8-8-2001 from complainant <br /> to opposite party.<br /> Ext.B5 : Photo copy of the Memorandum of Agreement for Agricultural Loans<br /> between complainant and opposite party.<br /> Ext.B6 : Carbon copy of the letter dated, 29-01-2007 sent by opposite party to<br /> complainant.<br /> Ext.B7 : Photo copy of the NND loan ledger dated, 29-01-2007.<br /> <br /> <br /> <br /> <br /> C.S. SULEKHA BEEVI, PRESIDENT<br /> <br /> <br /> <br /> <br /> K.T.SIDHIQ, MEMBER<br />