O R D E R
BABU LAL, PRESIDENT
The complainant has filed the present complaint against the O.P u/sec. 12 of Consumer Protection Act, 1986. The facts as alleged in the complaint are that in the month of September, 2011 on the insistence of the Branch Manager of O.P bank the complainant had opened a one year duration FDR with the O.P bank by issuing a cheque of Rs.1,20,000/- from complainant saving account with ICICI bank vide cheque No.551 dated 06.09.2011. As a good practice the complainant made her husband a joint owner to avail the ‘either or survivor’ clause benefits. It is alleged that the said FDR matured in the month of September, 2012 but the O.P bank refused to redeem it and coerced the complainant into renewing it for another one year term. It is also alleged that O.P bank is contractually bound to redeem complainant FDs No.3140672517 which matured on 9th September, 2013 having maturity value of Rs.1,44,082/- plus interest and penalty till date. It is also alleged that the Branch Manager forcibly kept the original FDR and gave the complainant a Photostat copy of the same. It is alleged that the complainant wrote to the Regional Officer and Zonal Offices in this regard of the O.P bank vide its letter dated 18.09.2013 requesting to redeem the FDR but the O.P threatened with the attachment of the said FDR against the loan account of the husband and father-in-law of the complainant in their join name which clearly shows the intention to harassment and again wrote letter on 29.10.2013 but O.P bank declined the request to redeem the said FDR with them. On these facts complainant prays that O.P be directed to redeem the full amount of the FDR of Rs.1,44,082/- along with interest @ 9.25% till date, apart from cost and compensation as claimed.
2. O.P appeared and filed written statement. It has not been denied that complainant complainant had opened a one year duration FDR with the O.P bank by issuing a cheque of Rs.1,20,000/- from complainant saving account with ICICI bank vide cheque No.551 dated 06.09.2011. It is submitted by O.P that complainant has concealed the material facts with regard to the loan facility as availed by her husband namely Sh.Rahul Verma and her father-in-law namely Mr. Ramesh Kumar. It is alleged that housing loan of Rs.20 lacs was applied by the aforesaid Sh. Rahul Verma and Sh. Ramesh Kumar vide loan application dated 09.04.2009. It is also alleged that the same loan was sanctioned to them on 18.04.2009 on which date they also executed and signed various loan security documents including creation of equitable mortgage of their immovable property i.e. H. No. 81, Pocket E-5, 2nd Floor Sector-16, Rohini, Delhi without roof rights. Since the aforesaid borrowers failed to repay the amount and failed to maintain the financial discipline by not paying installments of the loan in time along with interest, the loan was categorized on NPA on 30.03.2013. It is alleged that O.P bank accordingly took remedy against the borrowers including under securitization Act and have now also filed recovery suit before debt recovery Tribunal-III, New Delhi for the recovery of total outstanding amount of Rs.21,00,380/- due as on 07.12.2012. It is also alleged that the complainant in the present complaint had not only concealed all the aforesaid material facts but also has deliberately tried to show very miserable picture regarding herself and regarding FDR in the name of Rahul Verma (First Holder) and the complainant the bank has to recover total amount outstanding in the aforesaid loan of Rahul Verma and after following all norms, procedures and applicable laws in the present matter, appropriated the maturity amount of the same FDR i.e. Rs.1,46,541/- in the aforesaid housing loan account No.3044380400 in the name of Sh. Rahul Verma and Sh. Ramesh Verma on 05.12.2013 and had already intimated the same facts to Mr. Rahul Verma and the complainant vide letter dated 05.12.2012 sent through speed post. Therefore, there was no deficiency of service on the part of the O.P. Dismissal of the complaint has been prayed for.
3. Complainant has filed her affidavit in evidence testifying all the facts as alleged in the complaint. Documents have been exhibited as Ex.CW-1/1 to CW-1/5. On the other hand Sh. Rampal Singh Harit, Branch Manager of O.P has filed his affidavit in evidence on behalf of O.P. Written submissions have also been filed by the parties.
4. We have carefully gone through the record of the case and also heard submissions of A.R. of the complainant and Ld. Counsel for the O.P.
5. From the perusal of the record we find that complainant had opened FDR in sum of Rs.1,20,000/- issued by O.P bank on 06.09.2011 which matured in September, 2012. There is no dispute that FDR No.3140672517 is in the name of complainant and her husband ‘either or survivor’. The complainant had presented the same for redemption, however the O.P has refuse to make the payment. Case of the O.P is that husband of the complainant, who is the joint owner of the FDR along with complainant, had raised a loan from it and failed to make the payment thereof. Therefore, since the FDR also belongs to the husband of the complainant as ‘either or survivor’, under section 171 of Contract Act bank has lien over the property of the borrower, hence lien has been exercised by the O.P. In this case facts are not disputed and the simple question is whether is FDR jointly owned by two person as ‘either or survivor’, the bank can adjust the amount of the FDR against debt outstanding against one of the joint owners under section 171 Contract Act and exercised the lien the same?
6. We may point out here that the complainant in this case is neither the granter nor the person who had stood surety for her husband in respect of loan raised by him. Secondly it is not the case of the O.P that the FDR in the name of complainant and her husband had been pledged with it or was kept with it as security by complainant or her husband. The loan is payable by one husband of the complainant, and as joint owner of the FDR and bank wants to adjust the same towards payment of amount outstanding towards husband of the complainant. In this respect the O.P has relied upon an authorities reported as Punjab National Bank Ltd. Vs Satyapal Virmani AIR 1956 PB 118, Firm Jaikishen Dass Jinda Ram and Ors. Vs Central Bank of India AIR 1960 PB 1, A.S.S.R. St. Veerappa Chettiar Vs J.V. Pirri & Anr. AIR 1940 MAD 436 and State of Sikkim Vs The Jammu and Kashmir Bank Ltd. AIR 2005 SIK 12. In these authorities it has been held that under section 171 of the Indian Contract Act under the banking law, the banking law recognized that a person whose name appears on a deposit in the joint names, the first name holder of the deposit would be entitled in law to receive the monies under deposit. However, in Anumati Vs Punjab National Bank Appeal (civil) 6945 of 2004 decided by Hon’ble Supreme Court on 25.10.2004 in S.L.P (C) No.15786 of 2002, this question has been specifically deat with by Hon’ble Supreme Court. In the said judgment it has been held by Hon’ble Supreme Court as follows:-
“The bank is thus a debtor to the account holders in respect of the amount deposited a debt which is repayable by the bank to the account holders with interest on the expiry of an agreed period. An “either or survivor” clause in such an account means that the amount payable by the bank on maturity of the fixed deposit may be paid to either of the account holders by the bank in order to obtain a valid discharge. In other words under a tripartite agreement between the joint account holders inter se and the bank, the bank may, on maturity, make payment only to either of them. This tripartite agreement cannot be bilaterally modified by one of the joint account holders for example by pledging the account with any third party including the bank itself in its capacity of creditor, so that the amount becomes payable to such third party, without the consent of the joint account holder.”
7. In view of this authority, it has also been held that parties to a joint account are not automatically authorized to pledge instruments against each other’s credit. According to Sheldon and Fidler’s practice and Law of Banking, a banker should not lend money to the parties to a joint account, either by means by an overdraft or in any other way, without obtaining from each of the parties an undertaking to be severally as well as jointly liable to pay the loan. The banker has no right to set off the credit balance in the joint account except in respect of another joint account of the same parties (ibid).
8. In view of this authorities refer to above when the complainant has not pledge the FDR with the O.P, the O.P cannot withhold the amount and refuse payment to the complainant, merely because her husband had taken a loan from the bank and defaulted in payment thereof. Reason is obvious that the complainant was not a party to the contract on loan between her husband and with Bank and the complainant had not secured the loan by way of guarantor nor the complainant had given undertaking in writing to become liable to pay the amount in case her husband defaulted. Accordingly O.P is directed to refund the amount due under the fixed deposit with interest which accrued on the said fixed deposit till the date the amount is paid. In the peculiar facts and circumstances of the case, parties are left to bear their own cost. Complaint is disposed of accordingly.
Copy of the order be sent to the parties by Registered post and file be consigned to record room.
Announced this 21st day of February, 2015..
(BABU LAL) (D.R. TAMTA) (SHAHINA)
President Member Member
