PER MR SUBHASH CHANDRA, PRESIDING MEMBER

        This review petition filed under section 21(b) of the Consumer Protection Act, 1986 (in short, the ‘Act’) assails the order of the State Consumer Dispute Redressal Commission, Odisha (in short, ‘State Commission’) in First Appeal No. 76 of 2014 dated ­­28.02.2014 dismissing the appeal against the order of the District Forum, Sundargarh II, Rourkela (in short, ‘District Forum’) in Consumer Complaint no. 49 of 2012 dated 23.12.2013.

2.     The brief facts of the case are that on 11.12.2007, the petitioner who had a savings bank account no. 3598 with the Central Bank of India, Bisra was issued a receipt for a Money Multiplier Deposit Certificate (MMDC) bearing number 249369 for Rs 70,000/- in his name. The MMDC was for 48 months and was to carry interest @ 9.25% and mature on 05.01.2012 with a value of Rs 1,00,842/-. When the certificate was presented for encashment at the bank on 05.01.2012, the same was accepted against receipt. However, on 09.01.2012 the petitioner was informed that the certificate had been issued inadvertently by mistake and that as the the amount of Rs 70,000/- had not been debited from his account, the MMDC could not be encashed. Alleging deficiency in service, the respondent approached the District Forum which ordered in his favour in CC 49 of 2012 dated 23.12.2013 as below:

“During the course of hearing, learned counsel for the OP Bank agreed that, non-deposit of Rs.70,000/- required to obtain the MMDC certificate can be well established from the document vide Annexure B. He agreed that in case of any deposit by a customer he is to fill up the deposit slip mentioning the denomination of the notes/ money if paid in case, but annexure A did not disclose the same and another document, i.e., Annexure B clearly expresses that the complainant on 11.12.2007 has instructed the OP Bank to pay him Rs.70,000/- from his SB Account no.3589, which clearly established that no deposit was ever made by the complainant on 11.12.2007 but the MMDC was issued by the bank by mistake.

We cannot agree with the said aforesaid submissions of the learned advocate for the OP Bank due to absence of any figure amounting to Rs.70,000/-, in the statement particulars on the very date, as appeared from Annexure C. Taking into consideration, the evidence on record, facts and circumstances of the case and after hearing the arguments of the respective counsels for the parties, we came to the conclusions that, the OP Bank failed to pay the matured value of the MMDC even after its maturity, thereby rendered deficiency service in respect to the complainant due to non-payment of the matured value amounting to Rs.1,00,842/- and causing unnecessary delay for which complainant has been deprived of from getting his legitimate claim.

We therefore, after allowing the complaint direct the OP Bank to pay a sum of Rs.1,00,842/- only to the complainant along with Rs.20,000/- only as compensation towards mental agony, harassment including Rs.1000/- towards costs, within one month from the date of receipt of copy of this order, failing which interest @ 9% per annum on the awarded amount shall be paid from the date of default till its payment.”

3.     Aggrieved by this order the respondent bank approached the State Commission in first appeal no. 76 of 2014 which came to be disposed of on 28.02.2017 in his favour by way of the following order:

“There is no dispute that Annexure A, the deposit slip shows that a sum of Rs.70,000/- was deposited on 11.12.2007, but as per the withdrawal slip annexure B, respondent applied for withdrawal of Rs.70,000/- on the same date, i.e., 11.12.2007, but in fact nothing was deducted from the SB Account of the respondent on that date as noticed from the statement of account placed in the record. In the deposit slip, the denomination of the currency note/ money has not been reflected. There is also no reason why the appellant, a nationalized Bank would come forward with a false case that the MMDC was issued in favour of the respondent without any consideration. In our considered opinion, Rs.70,000/- was not paid by respondent towards granting of the MMDC. The MMDC was issued by mistake without consideration. Section 72 of the Indian Contract Act envisages, that a person to whom money has been paid or anything delivered by mistake or under coercion must pay or return it. In the instant case, MMDC was issued in favour of the respondent by mistake. So it ought to be returned to the appellant the deposit of the MMDC by the respondent with appellant is deemed to have returned to the latter.

Accordingly, the appeal is allowed and the impugned order is set aside”.

4.     The petitioner is now before this Commission by way of a revision petitioner with a prayer to set aside this order of the State Commission on the grounds that the fora below failed to appreciate the fact that a MMDC had been issued to him by it against payment of the amount in cash which was supported by deposit slip.

5.     Parties have filed the short synopsis of their arguments. Heard the learned counsels for the revisionist and the petitioner in person and perused the records carefully. In the instant case there are divergent findings on facts by the District Forum and the State Commission in favour of the parties. The revision petitioner has urged the same grounds that he had urged in the lower fora and relied upon the evidence led by him before the District Forum as well as the State Commission. He has highlighted material irregularity in the finding of the State Commission in the impugned order of the State Commission that “In the deposit slip the denomination of the currency note/money has not been reflected. There is also no reason why the appellant, a nationalized Bank would come forward with a false case that the MMDC was issued in favour of the respondent without any consideration. In our considered opinion, Rs 70,000/- was not paid by the respondent towards granting of the MMDC. The MMDC was issued by mistake without consideration.” He has relied upon the judgement of the Hon’ble Supreme Court in Lourdes Society Snehanjali Girls Hostel and Ors vs H & R Johnson (India) Ltd., and Ors – (2016) 8 SCC 286 which held that:

“17. The National Commission has to exercise the jurisdiction vested in it only if the State Commission or the District Forum has either failed to exercise their jurisdiction or exercised when the same was not vested in them or exceeded their jurisdiction by acting illegally or with material irregularity. In the instant case, the National Commission has certainly exceeded its jurisdiction by setting aside the concurrent finding of fact recorded in the order passed by the State Commission which is based upon valid and cogent reasons.”

6.     The respondent has reiterated the same arguments urged before the lower fora and relied upon the passbook of the petitioner to highlight the absence of any transaction of Rs 70,000/- on the date of issue of the MMDC. Defence is also taken that the issue of the certificate was inadvertently done in error and that this fact came to notice when the certificate was presented for encashment. It is also urged that as a Nationalised Bank, the respondent has no other motive.

7.     This Commission in exercise of its revisional jurisdiction Commission is not required to re-assess and re-appreciate the evidence on record. The findings of the lower fora are concurrent on facts. It can interfere with the concurrent findings of the foras below only on the grounds that the findings are either perverse or that the fora below have acted without jurisdiction. Findings can be concluded to be perverse only when they are based on either evidence that have not been produced or based on conjecture or surmises i.e. evidence which are either not part of the record or when material evidence on record is not considered. The power of this Commission to review under section 26 (b) of the Consumer Protection Act, 1986 is therefore, limited to cases where some prima facie error appears in the impugned order. Different interpretation of same sets of facts has been held to be not permissible by the Hon’ble Supreme Court.

8.     The Hon’ble Supreme Court in Rubi (Chandra) Dutta vs United India Insurance Co. Ltd., (2011) 11 SCC 269, has held as under:

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums. The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts. This is not the manner in which revisional powers should be invoked. In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed. It was not a case where such a view could have been taken by setting aside the concurrent findings of two Fora.”

9.     The Hon’ble Supreme Court has reiterated this principle in the case of Lourdes Society Snehanjali Girls Hostel (supra).

10.   The Hon’ble Supreme Court in T Ramalingeswara Rao (Dead) Through LRs and Ors vs N Madhava Rao and Ors., - AIR 2019 SC 1777 dated 05.04.2019 has also held as under:

“12. When the two Courts below have recorded concurrent findings of fact against the Plaintiffs, which are based on appreciation of facts and evidence, in our view, such findings being concurrent in nature are binding on the High court. It is only when such findings are found to be against any provision of law or against the pleading or evidence or are found to be perverse, a case for interference may call for by the High Court in its second appellate jurisdiction.”

11.   The respondent bank has not denied the issuance of the MMDC to the petitioner. It has contested the deposit of Rs 70,000/- by the petitioner but has not been able to explain the deposit slip issued by it.  Findings of the State Commission with regard to the deposit slip and intention of the respondent bank do not appear to be based on any evidence but rather on surmise. This amounts to material irregularity. It is therefore apt that this Commission exercise its revisional jurisdiction.

12.   In view of the above, I find merit in the revision petition and allow the same. The order of the State Commission in FA 76 of 2014 dated 28.02.2017 is set aside and the order of the District Forum in CC No. 49 of 2012 is affirmed.