Date of Judgment : 28.07.2015

          The instant appeal is directed against the judgment and order dated 29.04.2014 passed by Ld. District Consumer Disputes Redresal Forum, Dakshin Dinajpur in complaint case being No.87 of 2013 allowing the same on contest against OP without cost, directing the OP Bank to pay a sum of Rs.37,790/- only as matured value to the complainant Brojendranath Barman in respect of his Recurring Deposit A/c. No.366603/394 by issuing an a/c. payee cheque in his name within 30 days from the date of the order, further directing the OP Bank to pay a sum of Rs.5000/- only as compensation to the complainant by issuing another a/c. payee cheque in his favour within the aforesaid period out of which the complainant should deposit a sum of Rs.1000/- only in the State Consumer Welfare Fund (A/c. No.0093000100310261) payable at PNB, Balurghat Branch within 7 days from the date of receipt of those cheques, direction was also given to the OP to deposit the said cheques to the Forum within the above mentioned period. 

Being aggrieved by and dissatisfied with the impugned order the OP has preferred the instant appeal before this Commission on the ground, inter alia, that Ld. District Forum has erred in not considering the fact that since the borrower Shri Samir Das, has been absconding and as the loan account has been marked as NPA, the responsibility to liquidate the loan lies upon the guarantor, Shri Brojendranath Barman, the respondent in the instant case.

          The case of the complainant, in brief, is that the complainant had opened a recurring deposit account being No.366603/394 under the OP Bank for a period of one year commencing from 6.10.2012 and the matured value of the RD A/c. had come to Rs.37,790/- after completion of the said span of time.  The complainant, after completion of the said span of time, submitted a prayer for disbursement of the matured amount to the OP Bank authority but OP did not respond to that and kept mum over the matter which caused harassment to the complainant.  Accordingly, the complainant has prayed for direction upon the OP to hand over the matured amount of Rs.37,730/- lying under the RD A/c. vide A/c.No. 366603/394, to pay a sum of Rs.50,000/- towards compensation for mental pain and harassment including compensation for loss of the original       article   of the complainant and Rs.5000/- towards cost of litigation.

          The OP contested the case and filed written version denying and disputing all material allegations levelled against him contending, inter alia, that the complainant was a RD Account holder and the RD Accpount was under bank lien in respect of the loan account of Samir Das in favour of whom the complainant stood as guarantor.  It is further contended in the written version that since the loanee Samir Das defaulted to liquidate the loan, the Bank exercised its right of lien and realised the amount lying with the account towards liquidation of loan.  The OP specifically stated that the complainant put his signature in the loan documents as he stood guarantor and therefore, he was very much aware of the fact that the loanee defaulted in making payment.

          The OP prayed for dismissal of the petition of complaint.

          In course of hearing of the appeal Ld. Advocate for the appellant has submitted that since the loanee defaulted in making payment of the loan, the guarantor should repay the same and the Bank has every right to realise the loan amount from the guarantor.  In support of his contention Ld. Advocate for the appellant has cited the decision reported in 2014(1) CPR 505 (NC) [State Bank of Patiala – vs – Kusum Kalra].

          Ld. Advocate for the respondent/complainant has submitted that there is no document in the record that the RD A/c. of the complainant is under bank lien and therefore, the bank cannot realised the amount from the said account.

          Having heard the submissions made by the Ld. Advocates for the parties and on perusal of the record it appears to us that the complainant/respondent stood as guarantor in respect of a loan of Rs.4,00,00/- by one Samir Das disbursed by the appellant Bank.  It further appears from the copy of FIR lodged by the Bank with the Balurghat P.S. that the said loanee Samir Das has been absconding.  However, a guarantee is a promise by one person (called guarantor or the surety) to    answer    and be liable for the person or future debt of another person (called principal debtor) in case of his default, such promise being made to the person to whom the principal debtor is or will become liable.  Further, section 171 of the Indian Contract Act 1872 provides for the lien of bankers, factors, wharfingers, attorneys and policy brokers. As per section 171 of Indian Contract Act 1872, the appellant Bank in the instant case has every right to realise the loan amount from the recurring deposit of the respondent/complainant.  The decision filed by the Ld. Advocate for the appellant is squarely applicable to the instant case.

      In view of the discussion made hereinabove we are of opinion that the Ld. District Forum was not justified enough in passing award in favour of the complainant.

          In the result, appeal succeeds.

          Hence, ORDERED that the instant appeal is allowed on contest without cost.  The impugned order is set aside consequently the complaint is dismissed.