Cases Referred:-

1. State Bank of India –vrs- Jawaharlal (NC), CPR XI-XII-1995(3), Pg-632.
2. Pitambar Deoram Mali vrs Manager, DHULE Dist. Central Co-Operative Bank, 2003,CPJ-IV, Pg-518.
3. Mr. Anumati  -vrs-  Punjab National Bank (NC), 2002, CPJ-III, Pg-230.
4. C.Lalitha Raj –vrs- The Assistant General Manager, State Bank of India & others in W.P. No. 19096 of 2011 & M.P. No.1 of 2010 of Madras High Court, Order dtd. 16/3/2012.
5. ING VYSYA Bank Ltd. –vrs- Y.G. SHREERAM SHETY (NC) 2006, CPJ, Pg-182.
6. ASIANTRADING Company –vrs- Executive Engineer, 1995, CPJ-II, Pg-250. 
7. Kandimalla Raghavaiah & Co. –vrs- National Insurance Co. & another (SC) in Civil Appeal No. 4962 of 2002 order dtd. 10/07/2009.
8. Aparna Balaso Power-Madhe & others –vrs- Sunil Anamad Rao Patil and Another, 2016(4) CPR,723(NC).

                                                                                    O R D E R

SRI BIJOY KUMAR DAS,PRESIDENT:-

                    Deficiency in service in respect of ‘Put into hold’ and illegal appropriation of deposited amount on Complainant’s Saving Bank Account are the allegations arrayed against the Opp.Parties.

2.                  Complaint, in brief reveals that, Complainant is a brilliant student and studying +3 Science, at Salipur College and in order to receive the scholarship amount, granted by Govt. of Odisha and Govt. of India opened a Saving Bank Account with State Bank of India, Chandol Branch (OP-1), bearing  A/C No. 33120083500. It is stated that, at the time of opening of S/B Account, Complainant was a ‘minor’, hence her father was represented as ‘guardian’ in the said S/ B Account. It is alleged that, without any information to the Complainant, Op.No.1-Bank deducted a total amount of Rs. 3228/- on dt.4.2.2015 and on dt.23.7.2015 and adjusted the said amount against the loan Account of Complainant’s farther bearing No. 34411545662, for which Complainant faced a lot of financial difficulties to prosecuting her studies. It is also alleged that, when the illegal debit was brought into the Notice of Op No. 1 Bank, Complainant found that her S/B Account has been ‘Put into hold’ by OP No.1-Bank on the instruction of Op No.2-Branch and Op No.1, Branch clearly expressed their inability to make the S/B Account operational, unless the ‘hold’ is lifted. In the circumstances, in spite of financial hardship and mental agony, the parents of the Complainant decided to continue her study by borrowing money from different sources. It is further revealed from the complainant petition that, Op-Bank cannot put on hold the Account of the Complainant for default in payment of loan dues if any, as per the guidelines of Reserve Bank of India (RBI), on certain cases, with a 3 months Notice Bank can ‘freeze’ the account, if the KYC norms are not fulfilled and the present dispute does not fall into that category. Being harassed on the illegal action of the OP-Bank, Complainant issued a legal Notice on dt. 10.1.2018. Complaint is filed, seeking direction of the Forum against Op-1&2 to pay the compensation claimed amount of Rs. 1 lakh, which includes the illegal deduction of Rs. 3228/- and needs further direction to set-aside the action of Op-1&2 of putting on hold the S/B Account No. 33120083500.

3.               Upon receipt of Notice Op-Bank(Op-1 to 3) appeared through their Ld. Counsel Mr. R.P.Lenka and filed joint written statement into the proceeding denying the allegations of ‘deficiency in service’ and challenging the maintainability of the complainant  on and on point of limitation provided U/S 24(A) of C.P.Act, 1986. On facts of the dispute OP-Bank in their written statement averred that, Complainant’s father namely, Jugal Kishore Lenka (OP-4, in the proceeding) availed a KCC loan from State Bank of India, Mahal Branch (Op-2) vide loan Account No. 30469000800 with customer identification File (CIF) No. 85275949702. Due to default in repayment of loan dues, the loan of the Op-4 declared as NPA (Nonperforming Asset). It is averred that Op-4, Complainant’s father Jugal Kishore Lenka opened a S/B Account bearing No. 33120083500 on dt. 11/7/2013 on its Chandol Branch, along with his daughter by using the same CIF number 8827594702,  though there is no legal bar to open a S/B Account in the name of a ‘minor’ by using separate CIF number. So the S/B Account opened in the name of the Complainant was treated as ‘Joint Account” and the Op-4, father of the Complainant was a principal Account holder. Written Statement reveals that Op-Bank has rightly debited the amount, and ‘Put into hold’ in the S/B Account of the Complainant on exercising the power of general lien U/S 171 of contract Act and the root of action on the said. S/B account of complainant was generated due to mentioning of  single and same CIF number both on the S/B Account of the Complainant and K.C.C. loan Account of Op-4, the father of the Complainant. It is also averred that, Op-Bank has not committed any ‘deficiency in service’ as Op-1 & 2 Bank are the custodian of public fund and to recover the public money has taken lawful steps by debiting and ‘put on hold’ of the S/B Account of the complainant as her father Op-4 was defaulter in respect of repayment of loan dues and an amount of Rs. 32,227 is pending on the Op-4 as on dt. 29/3/2017.

4.               Op-4, Jugal Kishore Lenka, father of the Complainant filed reply by stating that, as the complainant is remaining busy in her study, he has operated the Bank Account to fulfill the needs of his daughter-Complainant and  no option was given by Op-Bank to the complainant or Op-4 while opening of S/B Account of complainant/Op-4 on use of CIF number. The replies of OP No.4 reveals that, in order to meet the study expenses of Complainant, OP-4 has arranged money from different sources, when the Op-Bank did not allow to operate the S/B Account. A resolution of borrowing money from S.H.G. is attached into the dispute as Annexure-A/4 and OP No.4 supports the version of the Complainant.

5.                     Heard the arguments advanced by Ld. Counsel for complainant and Op-Bank, also the Op-4, Jugal Kishore Lenka, father of the Complainant perused the documents filed by complainant, which are marked as Exhibit-A-1(1) to A-8(1), Op ( 1 to 3) Bank’s documents marked as Exhibit-B-1(1) to B-9(2) and the sole document filed byOP-4 is marked as Exhibit-C-1(1).

Admitted facts of the Dispute

                        The admitted facts of the dispute are that Complainant being a ‘Minor’ opened a S/B Account along with her father Jugal Kishore Lenka(OP-4) as a guardian on State Bank of India, Chandol Branch (Op-1) bearing S/B Account  No. 33120083500. It is also admitted that an amount of Rs. 3228/- was debited from the Complainant’s S/B Account in the year Feb& July-2015 for default in repayment of KCC loan dues of Complainant’s father (Op-4). Again the Complainant’s S/B Account was ‘put into hold’ by the Op-Bank for which Complainant is unable to transact in the S/B Account in question.

Limitation

                        The contesting Op-Bank raised the point of limitation by contending that, the present complaint is barred U/S 24-A of C.P.Act 1986. It is the plea of the Op-Bank that, under section 24-A of the Act provides a time limit of 2 years to file a consumer complaint from the accrual date of ‘cause of action’ and as per the complaint the amount was debited from the complainant’s S/B Account in the year-2015 and complaint is filed in the year-2018. Hence, it is a time-barred complaint. In support of their plea, Op-Bank cited decisions of Honbl’e Apex Court in Civil Appeal No. 4962 of 2002, order dtd. 10/7/2009 in case of  Kandhamal Raghaviah Co. Vrs National Insurance Co. Ltd. and in case of  ASIAN TRADING Co. Vrs Executive Engineer, P.H.E.D of Honbl’e National Commission reported on 1995(II) CPJ 250. Countering the point of limitation, Complainant states that after illegal debit of the amount in the year 2015, the Op-Bank subsequently ‘Put into hold’ the complainant’s Saving Bank Account  and from the date of putting hold of the Account, without any information/ Notice and when Complainant came to know  the date of putting hold of account and filing of the present complaint are well within the time–limit provided U/S 24-A of C.P.Act, 1986. In support of her stand, Complainant filed a decision of Honbl’e National Commission reported in 2016(4) CPR Pg-723 in case of Aparna Balaso Power-Madhe & others –vrs- Sunil Anamad Rao Patil and Another. The decisions cited by OP-Bank are different to the case in hand. Hon’ble Apex Court in case of Kandimala Ragaviah observed the date of cause of action which relates to date of setting fire to the factory and date of lodging of claim before the insurance company. Another decision in case of Asian Trading Company-Vrs-Executive Engineer,P.H.E.D.,where National Commission observerd the complaint as time-barred as it is filed after four years of passing of order of repair or replacement. On the otherhand, the decision of Hon’ble National Commission in case of Aparna Balaso Pawar is nearer  to the case in hand. In the cited decision Hon’ble National Commission opined that after maturity of FDR’s and till its disbursement OP-Bank pays the interest for the delayed period. Hence, the delayed period is a continuing cause of action. In the present dispute though the appropriation was on the year 2015,but the S/B Account was operational and the account was put into hold in the year 2016.

                        Considering the pleas and Exhibits i.e, statement of Account (Exhibit-B.2(4) ) of complainant’s S/B Account and Exhibit B-1(3) the loan Account of OP No.4, it is clear that the appropriation of amount and put in hold in complainant’s S/B Account are ‘bundle of facts’ by which cause of action arose and complaint is filed within 2 years from the date of cause of action. “Hence, as per the law and citation the actions of the OP-Bank are continuous cause of action”.  

Legal Status of the S/B Account in question

                        It is the case of complainant that, in order to receive the Govt. Scholarship a S/B Account was opened in the name of the Complainant being A/C no. 33120083500 at State Bank of India, Chandol Branch(Op-1) alongwith her father, Jugal Kishore Lenka(Op-4) as on the date of opening of S/B Account Complainant was a ‘Minor’. On the other hand contesting Op-Bank states that there is no legal bar to open a S/B Account in the name of a ‘Minor’. But, Op-4 father of the complainant by using the CIF No.85275949702 which was allotted to him by Op-2 Branch, while availing the K.C.C. loan account No. 304469000800. As per the Op-Bank, the S/B Account in question was ‘joint Account’ regarding using same CIF number allotted to him prior to opening of the S/B Account of complainant.

                        We perused the documents(Exhibits) filed by Complainant and Op-bank, in relation to  opening of S/B Account of Complainant bearing No. 33120083500. Complainant filed attested Xerox copy of the letter of Headmaster Hariank High School vide letter No. 111 dtd 23/6/13 addressed to the Op-1, Branch Manager (ExhibitA-4(I), attested Xerox copy of letter No. 133 dtd. 20/7/2013 of Headmaster Hariank high School. Addressed to the Dist. Education Officer, Kendrapara, Exhibit-A-5 (1), and attested Xerox copy of office order of Dist. Education Officer, Kendrapara bearing order No. 20169/M dtd. 2/4/2018 Exhibit-A-6(1). Op-Bank’s S/B Account opening Application from of complainant bearing S/B Account No. 33120083500 marked as Exhibit-B-3(1) to B-3(5). On perusal Exhibit-A-4 (1) and A-5(1), the letter addressed by the Headmaster of Hariank High School to the Op-1-Bank and Dist. Education Officer, Kendrapara clearly reveals that, the Complainant’s S/B Account was opened on the instructions of the Government authorities for deposit of N.M.M.S.(NATIONAL MEANS-CUM-MERIT SCHOLARSHIP), scholarship and it is equally revealed that, Complainant has to open the said Account jointly alongwith her father. The Op-Bank does not speak a single sentence regarding knowledge or receipt of letter of Headmaster, Hariank High School [Exhibit-A-4(1)]. The plea of Op-Bank in respect of opening of single S/B Account in the name of Complainant being a ‘Minor’ is defeated as per the said letter, Exhibit-A-4(1) and office order of Dist. Educational Officer, Kendrapara [Exhibit-A-6(1)], as it was  Govt. instruction to be complied by the student-beneficiary and his/her parents, further there is  no legal bar before the Op-4, the father of the complainant to withdrawn the amount on behalf of his minor daughter, as the purpose of opening of joint Account in the name of the beneficiary-Complainant relates to her study and the father operates the bank Account on behalf of minor being the natural guardian. On perusal of Exhibit-B-6(1) to B-6(6), the withdrawal application of Complainant’s S/B Account, where the Op-Bank allowed the Op-4 the father of the complainant to withdraw the  amount from the year-2013 to dt. 10.1.2015 on the disputed S/B Account without raising any objection.

Customer Identification File (CIF) and Banker’s general lien U/S171 of Indian contract Act.

                        Countering the allegations of the complainant regarding illegal debit of amount and ‘Put into hold’ of S/B Account in question, the contesting Op-Bank contended that, as the S/B Account of the complainant opened by using CIF number of her father which was allotted to Op-4 while taking the KCC loan from Op-2 Branch and on default in repayment of KCC loan dues and on the instruction of Op-2 Branch, the amount was debited on the year 2015 and ‘Put into hold’, in the year-2016 by exercising the power of general lien U/S-171 of Contract Act. The Exhibits i.e. B-2(1) and B-3(i) reveals that in both the Account the CIF number mentioned as 85275949702. In our opinion the CIF number is used by the Bank authorities for identification of the customer, except that it does not create any bailment/pledge in favour of the Bank authorities. We do not agree with the submission of   Ld. Counsel for Op-Bank that as the CIF number was similar in the loan account of Op-4 and Complainant’s S/B account,  the bank authorities are entitled to appropriate the loan dues and ‘put into hold’ by not committing any error. In support Op-Bank filed detailed guidelines of CIF, which are marked as Exhibit-B-8(1) to B-8(4). But no where the guidelines empowers the Bank authorities to appropriate any dues or ‘Put into hold’ in case of same CIF number. It is also clear from the guidelines that, the CIF number is used by the Bank authorities to receive the information of different Accounts, loans, FDR’s, de-mat Accounts etc. of customer. In the present case, the complainant’s S/B Account is a separate Account, which is operated by her father in capacity of a natural guardian on the instruction of the Govt.                              

Bankers general lien U/S 171 of India Contract Act.

            As we have observed earlier the Status of the S/B Account in question of Complainant bearing No. 33120083500, which was not bailed/pledged before the Op-Bank against the KCC loan of complainant’s father Op-4. Further, the contesting Op-Bank has not disclosed the initiation of actions if any, against Op-4, father of the Complainant for recovering loan dues relates to Account No. 34411545662. (KCC loan Account) and Op-Bank without using such legal options has tried to recover the loan dues from Complainants’ S/B Account in question. Hence, exercising power of banker’s general lien U/S 171 of contract Act by Op-Bank on the ground of ‘similar CIF’ number does not create any legal rights in favour of the  Op-Bank to initiate action to recover the loan dues of complainant’s father Op-4. In support of their plea, Op-Bank cited a number of decisions reported in, CPR XI-XII-1995(3) in case of State Bank of India vrs Jawaharlal, decision of Honbl’e Maharastra State C.D.R. Commission in case of Pitambar Deoram Mali vrs Manager, DHULE Dist. Central Co-Operative Bank, reported in 2003, CPJ-IV, Pg-58, decision of Honbl’e Madras High Court in case of C.Lalitha Raj vrs the A.G.M. State bank of India in W.P. No. 19096 of 2011 & M.P. No. 1 of 2010, order dtd. 16/3/2012 and decision of Honbl’e National consumer Disputes Redressal Commission, in case of Mr. Anumati vrs Punjab National Bank reported on 2002, CPJ-111, Pg-230. The decision  cited by the Op- Bank are not relevant into the case in hand, as the facts of the disputes are different from present one in the cited decisions the Honbl’e higher Courts/Commissions on exercise of Banker’s general lien U/S 171 of Indian contract Act viewed that under provisions of general lien the Bank has the authority to appropriate/withheld the amount. After reading the citations carefully, we observed that in the cited case laws the amount adjusted/recover from the parties either is a joint account holder or a guarantor to the loan account, and the same principle cannot be applicable to the case in hand. As the disputed S/B account is opened and operates for the purpose of receive of scholarship amount from the Govt. to continue the further study of the Complainant, where the father of the complainant acts as an operation-in-charge of the Account on behalf of his minor-daughter on the instructions of the Govt.  Complainant also filed a decision of Honbl’e National Commission reported in 2006 CPJ. Pg-182 in case of  ING VYSYA Bank Ltd. vrs Y.G. SHREERAM SHETY,  where Honbl’e National Commission opined that “Banker” can’t exercise its power of general lien U/S 171 contract  Act, by straightaway appropriate the money deposited by a guarantor in FDR without any bailment and informing the guarantor. However, in its context, we are of unanimous view that the appropriation of amount from Complainant’s S/B Account and ‘Put into hold’ are the illegal and arbitrary action of the Op-Bank and by adopting a wrong method to recover the loan dues on the plea of allotment of same CIF number.   

Account freeze and Account Hold  

                        Complainant alleges that, the OP-Bank has no authority to freeze/put on hold the account of the complainant/customer except in different circumstances, where KYC norms are not complied. Here is a distinction between ‘Account freeze’ and ‘Account hold’. In case of ‘Account freeze’ the transactions in the account is completely stopped, but in case of ‘Account hold’ a certain part of the dues or outstandings of the bank are ‘put into hold’. In the present dispute, the OP-Bank has ‘put into hold’ in to the complainant’s S/B Account. The RBI guide lines cited by complainant are not applicable to the present proceeding. The same action of the OP-Bank has discussed earlier and needs no elaboration.

Deficiency in Service

             The contesting OP-Bank justifying their action in appropriating and withholding the amount in Complainant’s S/B Account submitted that no deficiency in service has been committed as they are the custodian of the public funds and to recover the loan outstanding dues of complainant’s father(OP No.4), OP-Bank initiated the actions. In this regard, earlier we have discussed at a length. So far the submission of ‘custodian of  public funds is concerned, we are of the opinion that, if the OP-Bank adopts this type of actions to recover the loan outstanding dues, then the result of this action cannot be imagined, where future of a student like complainant who receives the scholarships from Government to prosecute her studies may be derailed and sealed the future prospect of a brilliant student. Apart from this type of action of recovery of loan dues from a student’s account, the OP-Bank has more legal options lie before them to recover the loan dues of the OP No.4, the father of the complainant and without using the legal options, straightway appropriating and put in hold in the complainant’s S/B Account is not a fair action of the OP-Bank.  In our unanimous view the actions of the OP-Bank is treated as ‘deficiency in service’, which definitely caused financial loss and mental agony to the complainant and his family member to continue the study of the complainant on the burden of payment of hostel dues, study materials etc. It is not disclosed from the written statement of OP-Bank that, whether the illegal actions of OP No.1 & 2 Branch were within the knowledge of the Regional Manager, State Bank of India(OP No.3) ? So, we do not express any observations in functioning of OP No.3. But OP No.1 and Op No.2 -Bank are squarely responsible for the illegal action taken against complainant’s S/B Account bearing No.33120083500.                        

                 Complainant in his complaint prayed for a compensation of Rs.1 lakh from OP No.1 & 2, which includes illegal deduction of Rs.3,228/- and further prays for setting aside  of ‘hold’ on complainant’s S/B Account. Considering the award of compensation, we, are of the opinion that claim of compensation of Rs.1 lakh is in a higher side and no such evidences are put forth before this Forum to substantiate the claim, but the emotional loss and mental agony cannot be measured in a monetary form, hence, we reduce the compensation amount from Rs. 1 Lakhs to Rs.50,000/-(Rupees Fifty thousand)only as the Complainant’s S/B Account ‘Put into hold on dt. 12/7/2016 by Op-Bank for an amount of Rs. 30,000/- till filing of the present dispute.                   

                       Complainant deserves refund of Rs.3228/- with permissible interest which were illegally debited from her S/B Account by the OP No.1-Bank on the instruction of OP No.2-Bank, equally the ‘hold’ in the complainant’s S/B Account is to be lifted immediately and a compensation of Rs.50,000/-(Rupees Fifty thousand)only is awarded in favour of complainant as cost for mental agony and financial loss. The I.A. case No.7/18 which arises out of the present C.C.Case is hereby vacated as per our observation.                                                                                      

                        Having observations reflected above it is directed that OP-Bank shall credit an amount of Rs.3228/- with simple rate interest per annum calculating from dtd.30.07.2015 to till its realization alongwith Rs.50,000/-(Rupees Fifty thousand)only as compensation amount. The total ordered amount shall be credit to the complainant’s S/B Account bearing No.33120083500 by the Op-Bank within one month from receipt of this order, failing which action will be initiated against the OP-Bank as per the provisions of C.P.Act,1986.

                         I differ with

                         following observation.       I,agree.   

                                    Sd/-                            Sd/-                          Sd/-

                             MEMBER                    MEMBER                 PRESIDENT 

Difference of opinion by the Learned Male Member Sj.N.N.Dash:-

               While agree on the majority of observations of this case bearing No.C.C.21/2018, the undersigned differs on the quantum of compensation awarded  i.e. Rs.50,000/- which appears to be on a higher side since the principal amount adjusted by the OP-Bank was Rs.3228/-. I hold the view that the compensation should be Rs.5,000/-(Rupees Five thousand)only and I agree with the rest of order of this case.

                                                                        ( Nayanananda Dash)

                                                                                Member           

                            Complainant is allowed in part on contest on majority view.                                         

                               Pronounced in the open Court, this the 25th day of May,2018.

                                          I, agree.

                                              Sd/-                            Sd/-

                                        MEMBER                    PRESIDENT 

List of Exhibits on behalf of Complainant:- 

List of Exhibits on behalf of Op. No. 1 to 3:- 

List of Exhibits on behalf of Op. No. 4:- 

                                  Sd/-                           Sd/-                           Sd/-

                              MEMBER                MEMBER              PRESIDENT