DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,

PATIALA.

                                      Consumer Complaint No.268 of 9.11.2015

                                      Decided on:   3.5.2017

Kamlesh Pahuja, W/o Sh.Rameh Pahuja R/o H.No.2993, Anand Nagar, Rajpura, District Patiala.

                                                                   …………...Complainant

                                      Versus

Central Bank of India, Preet Palace, Gurudwara Road, Rajpura, District Patiala through its Chief Manager.

                                                                   …………Opposite Party

                                      Complaint under Section 12 of the

                                      Consumer Protection Act, 1986.

QUORUM

                                      Smt. Neena Sandhu, President

                                      Smt. Neelam Gupta, Member                              

ARGUED BY:

                                      Sh.Naveen Trehan,Advocate,counsel for complainant.

                                      Sh.Sumit Mehta,Advocate,counsel for opposite party.

 ORDER

                                    SMT.NEENA SANDHU, PRESIDENT

                 Smt.Kamlesh Pahuja has filed this complaint under Section 12 of the Consumer Protection Act,1986 ( hereinafter referred to as the Act) against the Opposite Party (hereinafter referred to as the O.P.) .The brief facts of the complaint are as under:

2.                That the complainant was an employee of the OP. However, due to patently illegal orders, her services were terminated by the OP.  It is averred that she was having  FD accounts bearing Nos.3046620918 and 3046621106 with the OP for an amount of Rs.28,734/-each. The said amount for the FDRs was   deposited on 25.5.2009. The FDRs  were renewed on 18.5.2010,1.9.2012 and 17.7.2015. The FDRs were to mature on 1.9.2015 with the maturity amount of Rs.48,890/-each.On maturity,she approached the OP for the payment of the FDs but the OPs on one pretext or the other delayed the payment. She sent both the FDs  to the OPs on 16.10.2015 through her son but the OP refused to receive the same. But after repeated visits to it , it received the same on 21.10.2015.She sent a letter to the OP for the encashment of the said FDs.On 26.10.2015, she received a letter from the bank that the bank has to recover Rs.1172318(Rs.1395002-Rs.222684/-) alongwith interest  and other charges from her. It is averred that the recoverable amount is morethan the proceeds of the above FDs and the OP misappropriated the  proceeds of the above FDs and committed deficiency in service . Hence this complaint with a prayer for a direction to the OP to pay the maturity amount of 48890/-each for both the FDS alongwith interest and Rs.1,20,000/- as compensation for causing mental agony and physical harassment.

praying for the following reliefs:-

3.                On notice, the OP appeared and filed the written version taking preliminary  objections that the complaint is not maintainable; that the complainant is  not a consumer. The complainant was only an employee of the OP bank and was dismissed for cheating the bank. She returned Rs.2.00lacs as part of the defrauded/embezzled amount. The OP in exercise of its general lien on the amounts of the complainant withheld the amount for appropriation and adjustment towards the amount defrauded/embezzled by her. She did not hire nor engage any services of the OP thus she has no locus standi to file the complaint.The  dispute between the parties is of civil nature, which cannot be adjudicated in summary manner.On merits , after reiterating the above stated facts , it is stated that relationship between the complainant and OP is of debtor and creditor as the complainant was yet to return the whole amount defrauded/embezzled/misappropriated  by her.The complainant did not hire any services of the OP, she did not pay any consideration/charges for any services whatsoever.On 16.6.2011, it came to the notice of the bank that complainant while working in the branch embezzled huge amount of the OP.During examination of accounting record, Rs.1395002/- was worked out as embezzled by the complainant. She admitted the same and returned in part Rs.2,00,000/- out of the embezzled amount. She was placed under suspension on 17.6.2011 and after detailed enquiry she was dismissed. It is further stated that the period of opening of the accounts in which amounts were tendered to the bank is covered by the fraud/cheating done by the complainant.The bank has every right to recover the amount taken away by the complainant.There is no deficiency of service on the part of the OP and the complaint is liable to be dismissed.

4.                In evidence, the ld. counsel for the complainant has tendered in evidence Ex.CA, affidavit of the complainant alongwith documents Exs.C1 to C7 and closed the evidence.

                   The ld. counsel for the OP tendered in evidence Ex.OPA, affidavit of Sh.Virender Singh Yadav alongwith documents Exs.OP1 to OP25 and closed the evidence.

5.                We have heard the ld.counsel for the parties, gone through the written arguments filed by the ld.counsel for the parties and have also gone through the record of the case,carefully.

6.                The ld. counsel for the complainant has submitted that the complainant purchased two FDRs bearing Nos. 3046620918 and 3046621106 for a sum of Rs.28.734/-each on 25.5.2009 from the OP and got  the same renewed from time to time. On 1.9.2015, after the maturity period,  she sent both the FDRs to the OP for encashment but it refused to release the maturity amount.

7.                On the contrary, the ld. counsel for the OP has submitted that complainant was the employee of the OP bank and during her service she  embezzled a sum of Rs.1395002/- of the bank,  therefore, her services were terminated. Out of the embezzled amount, she had already paid Rs.2lac to the bank and for the recovery of the rest of the amount the OP bank had filed a recovery suit against her and the same is pending before the Civil Court, Rajpura. He further submitted that the bank in exercise of its general lien on the amount of the complainant has withheld the amount of the FDRs for appropriation and adjustments towards amount defrauded/embezzled/misappropriated by her .

8.                From the perusal of FDRs it is evident that the FDR bearing             No.3046620918,Ex.C2 is  in the name of Miss Mansi Gandani, Savitri and Kamlesh Pahuja & FDR bearing no.046621106 Ex.C3 is in the name of Savitra Gandani, Mansi and Kamlesh Pahuja. However, this complaint for issuance of directions to the OP for release of the maturity amount has been filed only by Smt.Kamlesh Pahuja. She has not placed on record any document to show that no objection regarding filing of complaint by her has been given by other two co-owners of the FDRs. The plea of the complainant is that she had purchased the  said two FDRs from her own source and the other two co-owners are just name lenders . Even if we believe this contention of the complainant, even then, this fact cannot be ignored that she  had misappropriated the funds of the bank and the bank has terminated her services . From the record it is borne out that she had already deposited Rs.2lac on account of  embezzlement. The bank has also filed a  recovery suit against her which is still pending  . It may be stated that bank has a right to exercise lien under Section 171 of Indian Contract Act, 1872 against the dues from constituents/customers and it can withhold the credit of  the amount of the said FDRs for the safeguard of its interest.  In the case of Syndicate Bank Versus Vijay Kumar (SC): Law Finder Doc ID # 50993 ,the Hon’ble Supreme Court, has held that “Banker has a general lien over such securities or bills received from a customer in the ordinary course of banking business and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customers’s debit balance-Such a lien is also applicable to negotiable instruments including FDRs which are remitted to the Bank by the customer for the purpose of collection”  Even, in the case titled as ICICI Bank Ltd. & Ors Vs. Partha Sarathi Sinha, 2014(1)CLT 215(WB) , it has been held that bank had lien over the other bank accounts of customers and the set off was within the competence of the bank”.Taking these facts and circumstances into consideration no direction can be issued to the Bank for release of the maturity amount to the complainant.

 9.                  In view of the aforesaid discussion, we  do not find any merit in the complaint and the same is hereby dismissed without any order as to costs. Certified copies of the order be sent to the parties free of costs under the Rules. Thereafter file be indexed and consigned to the Record Room.

ANNOUNCED

DATED:3.5.2017                  

                                                                   NEENA SANDHU

                                                                       PRESIDENT

                                                                   NEELAM GUPTA

                                                                         MEMBER