Delhi

StateCommission

CC/09/341

SRI RAM - Complainant(s)

Versus

CITI BANK NA AND ORS. - Opp.Party(s)

20 Dec 2017

ORDER

IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                                                    Date of Arguments:   20.12.2017

                                                                     Date of Decision:      04.01.2018

Complaint No. 341/2009

In the matter of:

Sri Ram

S/o Shri Sunehri Lal

R/o H.No. 1097, New Janta Colony

NIT, Air Force Road

Faridabad

Haryana – 121 001                                                                                         ……Complainant                    

                                                            Versus

1. Citi Bank NA

33, Basant Lok

Vasant Vihar

New Delhi-110057                                                                          …..Opposite Party 1

 

         2. Mr. Pankaj Kumar

             Manager

Citi Bank NA

33, Basant Lok

Vasant Vihar

New Delhi-110057.                                                                      ….Opposite Party 2

 

3. Ashok Kumar

S/o Shri Atma Ram

R/o Gali No. 57

Surya Nagar

​           Hissar 

            Haryana

 

Also at

Village Dhartul

Tehsil Duhana

Distt. Hissar

Haryana                                                                                  …..Oppsite Party No. 3

 

 

 

 

CORAM

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member

1.Whether reporters of local newspaper be allowed to see the judgment?  Yes/No

2. To be referred to the reporter or not? Yes/No

SHRI O.P. GUPTA(MEMBER JUDICIAL)

 

                                                                                JUDGEMENT

            The case of the complainant is that he is gardener in the Municipal Corporation, Faridabad.  OP 3 was his tenant at Ground Floor, House No. 1097, New Janta Colony, NIT, Air Force Road, Faridabad-121001.  Complainant was also residing in same building.  Complainant and his brother had agricultural land in village Saidpur, Alwar.  The same was sold and the complainant received Rs.1,65,00,000/- towards his share from the said sale.  He deposited the same in saving bank account with ICICI Bank Ltd., Faridabad.  OP 3 had family like relations with the complainant who came to know about the sale transaction.  He persuaded complainant to transfer the said amount from ICICI Bank Ltd. Faridabad to OP 1 i.e. City Bank, Vasant Vihar, New Delhi on the pretext that OP 2 namely Sh.Pankaj Kumar, Manager in the said branch was known to him and would get complainant more interest.  Complainant agreed.  On 27.12.2006 new saving bank account No. 5136284225 was opened with OP 1.  OP 3 introduced the said account inspite of the fact that he was not having any account with OP 2.  OP 2 aided OP 3 in doing so.  Complainant transferred Rs. 58,00,000/- from ICICI Bank Ltd., Faridabad to new account in City Bank, Vasant Vihar , New Delhi on 28.12.06.

2.         In June 2007 complainant decided to purchase agricultural land with the above money in OP 1 bank.  Rs. 15,00,000/- were paid by him as earnest money.  Complainant had to pay full and final payment of Rs. 25,00,000/- before October, 2007 to get the sale registered in his name.  He visited OP 1 in September 2007 to withdraw Rs. 30,00,000/- from his account. He was told that he had no balance as all the money i.e. Rs. 58,00,000/- had been withdrawn from his account.  On hearing so he was shocked and protested that it was not possible as he had not effectively operated the account. OP had assured him to get the matter investigated.  He approached OP 1 from time to time.  OP 1 remained silent.  Later on he realized from bank statement that maximum money had been withdrawn from his account through ATM Card No.5081252209297702  which he had never received.  The withdrawal from ATM was Rs. 32,94,000/-which occurred between 11.01.07 to 23.05.07.  Infact statement indicated that  money was withdrawn very frequently almost 4 to 5 times a day and  likewise  almost every  alternate day.  ATM Card and ATM password of the complainant went in unsafe hand.

3.         Complainant expressed his inability to pay the sum of Rs. 25,00,000/- lacs to the seller.  He requested the seller to return the earnest money which seller refused to return.  Later with the help and efforts of senior and important persons of the society the seller returned  Rs.5,00,000/- only.  Thus complainant had to suffer net loss of Rs. 10,00,000/-.

4.         OP 1 had only one answer  that the bank had issued one cheque book, one ATM card, one ATM password No.(6797) and one IPIN password (net banking password) which were sent to complainant through courier at his residence. Complainant repeatedly informed OP 1 that it did not receive any such courier from OP 1 bank.

5.         In the mean while complainant of his own detected that OP 3 at the back of complainant accepted ATM card, password and cheque book sent by OP 1.  Complainant  caught hold of OP 3 who admitted that in connivance with Manager of OP 1 he accepted the ATM Card, cheque book and ATM password sent by OP 1 through courier and  forged the signature of complainant on the acknowledgement receipt.  OP 3 sworn two affidavits dated 28.09.07 and 03.10.2007 admitting his guilt and modus operandi adopted in withdrawing the amount.  Copies of the said affidavit are Annexure B and C.

6.         Having no help from OP 1 complainant immediately lodged FIR No.558 dated 17.09.08  against OP 1 copy of which is Annexure D.  Application for anticipatory bail by OP 3 was rejected by court of Session Judge, Faridabad vide order dated 02.03.09.  Application for anticipatory bail was dismissed by High Court of Punjab and Haryana vide order dated 30.03.09.  OP 3 was arrested and was in jail at the time of filing the present complaint.  Copies of police report and orders are Annexure E, F & G.

7.         OP 1 bank has no trace of the acknowledgement/receipts to show the identity of the person who allegedly received the documents.  The complainant sent legal notice dated 25.03.09 to OP 1  copy of which is Annexure ‘H’.  OP 1 sent reply after almost two months on 20.05.09 that matter was under investigation. He sent an application under RTI Act to supply copy of acknowledgement receipt bearing signature of the person who received the ATM card.  Copy of the application is Annexure J.  The bank failed to give any reply.  Vide letter dated 27.04.09 the OP 1 bank informed that it has no details of the acknowledgement receipt of ATM and IPIN password of the complainant.  OP 1 bank alleged that according to their record ATM/Debit card and cheque book were received by Sri Ram (complainant). The complainant filed complaint against OP 1 with Central Information Commissioner on 25.06.09.  He also filed complaint before Ombudsman (Banking), RBI Building Sansad Marg on 11.08.09.  He  received letter dated 10.07.09 from OP 1 seeking more time to investigate the matter. Infact after one month he received another letter dated 10.08.09 from OP 1 Bank admitting  its negligence.  OP 1 stated that he had no acknowledgement receipt signed by the person who allegedly accepted the delivery of ATM Card, pass work and cheque book.  It was most shocking and surprising that OP 1 Bank took almost two years to disclose that it was not in possession of acknowledgement receipt.  OP 1 was aware of its negligence of delivering the documents to wrong person and was  buying time to avoid any legal action. Thus OP 1 is liable for financial loss suffered by the complainant.

8.         OP 1 failed to verify with the complainant about the delivery of ATM card, password, cheque book etc.  OP 1 did not take any steps to inquire from complainant whether the ATM card, password and cheque book had been duly received by the complainant or not? Many times deliveries are accepted by servant, tenant and other people in the house having access to the affairs of the concerned person and acknowledgement receipts are signed by them.  In such cases the person receiving the documents can always misuse the property of the concerned person. OP 1 ought to have cross checked with the complainant whether the documents have been received by him.  Hence this complaint for recovery of Rs. 34,92,000/- which are illegally withdrawn from his account through ATM card, Rs. 10,00,000/- towards forfeiture of the earnest money paid by him to the seller, Rs. 5,00,000/- due to harassment and mental agony, Rs.2,06,000/- towards legal miscellaneous expenditure and interest at the rate of 18% per month from 01.01.07.

9.         Cause of action arose in Sept., 2007 when complainant visited OP 1 bank and found that all the balance has been illegally withdrawn from his account due to gross negligence of bank.  The cause of action further arose on receipt of letters dated 27.04.09 and 10.08.09 from Bank disclosing that it was not in possession of acknowledgement  receipt signed by the person who accepted the consignment.  The complaint has been filed on 21.12.09.

10.       OP 3 was served by publication in Punjab Kesari dated 31.08.12 for 17.12.12 but did not appear and has been proceeded exparte.

11.       OP 1 & 2 filed WS raising preliminary objection that complainant has not approached this Commission with clear hands and is guilty of concealing facts.  The complaint raises several disputed questions of facts which cannot be decided in summary proceedings under Consumer Protection Act. The same require proper trial involving summoning and cross examination of witnesses.  The complainant has lodged FIR in Faridabad against OP 3 and investigation is going on.  Thus pending investigation, present complaint is not maintainable as there cannot be two parallel proceedings.  The complaint is abuse of process of courts and the same has been filed as a shortcut to recover the money which has been siphoned off by OP No.3. Complainant has admitted that money was illegally withdrawn by OP 3 who undertook to pay the same by issuing  post dated  cheques, the cheques were dishonoured.  The complaint is hopelessly  barred by limitation.  The cause of action was identified by the complainant  in September,2007 whereas the complaint has been filed in December 2009. On merit OP had denied that there was collusion between OP 2 & OP 3.  OPs do not require  a witness to account opening  form to have an account with OP 1 bank.  Depositing cheque dated 28.12.06 for Rs. 58,00,000/- (Rs. Fifty eight lakhs) with OP 1 bank has been admitted.  A welcome pack containing ATM Card and cheque book was dispatched vide Blue Dart courier bearing airways bill no. 32339580560 to registered address of the complainant.  By way of abundant precaution pin  number of ATM card and password of internet banking  was dispatched through different courier i.e. First Flight Courier by airways bill no. ZC4769605 to the regd. Address of the complainant to rule out any possibility of ATM card and password getting delivered in wrong hand. The same were duly received  by complainant as he stated in the FIR that OP 3 had stolen cheques from complainant’s cheque book. The fact that complainant has received cheque book alongwith ATM card is also evident from the fact that complainant is not disputing issuance of cheques by him.  Negligence, if any, has been on the part of the complainant who failed to secure his ATM card and password confidential.  In his affidavit dated 28.09.07 and 03.10.07 OP 3 nowhere stated that he committed crime in collusion with OP 2.  It is case of misappropriation by OP 3 by indulging in impersonation and forgery. OP 1 vide letter dated 03.11.08 sent bank account statement and account opening form of complainant to Investigating Officer. Again vide letter dated 07.11.08, bank account statement, account opening form and six cheques debited  to complainant’s account, details of dispatch/delivery of ATM card and PIN were sent to Investigating Officer.  In response to letter dated 08.11.08 from Investigating Officer, OP 1 vide letter dated 20.11.08 informed IO that it was unable to provide proof of delivery of ATM Card, cheque book and CCTV record as the same pertained to the year 2007.  As per process City Bank purges all records more than six months old due to security reasons.  After completion of investigation, OP 1 replied to complainant’s letter dated 27.04.09 giving details of courier consignment and its receipt by complainant.  Complainant was supposed to take care of his right and make inquiry about his ATM Card and cheque book.  He is liable for contributory negligence.

12.       Complainant filed replication reaffirming his own case.  He filed evidence by affidavit.

13.       On the other hand  OP 1 & 2 filed affidavit of Shri Jagdish Salwan, Manager, City Bank in evidence. 

14.       Complainant moved an application for condonation  of delay  for filing complaint on 27.06.16.  The same recites that there is delay of 36 days in filing application for condonation of delay which was caused due to the reasons that wife of counsel for complainant was unwell and expired on 26.04.16.  Application has not been drafted properly.  Complainant sought time to move application for condonation of delay in filing complaint which had already been filed in 2009.  Any how, OP understood the same in correct perspective as in reply that it stated that complainant had tried to put blame on OP to justify the delay.  Cause of acation arose on 28.09.07 whereas complaint was filed on 18.12.09.

15.       In any event the condonation has been allowed vide order dased 27.07.17 and the same has not been challenged by the OP. So the same has been become final.

16.       Now coming to the facts of the case it may be observed that OP 1 & 2 have substantially admitted the case of the complainant.  They have admitted opening of account by the complainant , introduction of complainant by OP 3, factum that OP 3 had no account with OP 1 bank.  The complainant is a gardener by profession who is quite illiterate.  The way in which he has put his signature on police report, complaint, affidavit show that he is unable to sign properly in hindi even.  He has specifically mentioned in the police report that OP 3 mentioned his own mobile number in the account opening form, in connivance with OP 2/Manager of OP 1 bank.  This shows how much faith he had in OP 3.  How innocent villager he is?  He belongs to Alwar Distt., Rajasthan  where he had land. Her opened a new bank account in OP 1 bank in Delhi and got the sale proceed of his land in Alwar transferred from his ICICI Bank, Faridabad to OP 1 Bank at the instance of OP 3.

17.       OP 3 admitted withdrawal by him through his two affidavits exhibit CW-1 – CW-4.  He is facing trial in Faridabad court.  All these lend support to the case of the complainant.

18.       OP 1 bank has tried to take shelter from so called admission in FIR that OP 3 committed theft of cheques from his cheque book to mean that cheque book was received by complainant.  OP 1 bank has also tried to take advantage  of the fact that complainant mentioned in FIR that OP 3 had stolen cheques from the complainant’s cheque book.  We have  carefully  gone through the contents of the FIR .  What the complainant has mentioned is that cheques were stolen from his cheque book and not from cheque book in his custody.  Cheque book would always remain belonging to the complainant irrespective of the fact as to in whose possession the same is.  It is more so when the matter is viewed in the background to which complainants relates.  He is an illiterate villager. He cannot be expected to draw fine distinction between his cheque book and cheque book in his possession.  He is a layman and used  common language without foreseeing the complications thereof.

19.       The objection of the OP that complicated questions are involved which cannot be decided in summary procedure under Consumer Protection Act is to be mentioned for being rejected only. Every case require one or the other disputed question. For adjudication  thereof some evidence and some arguments are required but that does not mean that every such case should be returned as being beyond scope of Consumer Protection Act.  At this juncture reference with advantage may be made to the decision of Hon’ble Supreme Court  in  CCI Chambers Cooperative  Housing Society vs. Development Credit Bank AIR (2004) SC 184 in which it was held that merely in case service  expert  for proving signatures and writing are required, Consumer Court cannot refuse to entertain the case.  Similarly in Dr. J.J.Merchants vs. Srinath Chaturvedi AIR (2002) 2931 it was held that where negligence of experts is alleged, case may be decided by Consumer Court.  Decision in Sutlej Textile vs. PNB I (2010) CPJ 312 National Commission is to the same effect.

20.       Plea of two parallel proceedings, one before Police and other before Consumer Court being  perused simultaneously, cannot be sustained.  The object of the two is different. Purpose  of criminal prosecution is punishment  by sending a person behind the bar.  Whereas purpose  before consumer court is Redressal of grievance viz. recovery of amount wrongfully deprived.  It is a known fact that criminal prosecution takes lengthy time.  It is so in the present case. The criminal case is still pending at the grass root level before Magistrate.  A consumer cannot be expected to wait for a decade.  By that time his complaint before consumer court would be barred by limitation.

21.       Defence of the OP 1 bank that OP 3 in his affidavit dated 28.09.07 and 03.10.07 nowhere stated that he committed alleged crime in collusion with OP No. 2 is a farce upon farce.  No sane person would admit that he connived with a particular person.  The connivance is to be inferred.

22.       Now there are two versions before this Commission.  One is that there is connivance between complainant and OP No.3.Other is that there is connivance between OP No. 2 & OP No.3.  There can be no fruitful purpose behind connivance between complainant and OP No. 3.  No prudent person would connive with someone to empty his own bank account and then pursue a case for more than a decade. As against this connivance between OP No. 2 and OP No. 3 is very much plausible.  OP No. 2 may become greedy by accepting  a fraction of the amount and allow OP No. 3 to withdraw amount running in lakhs of rupees.

23. Connivance between OP No. 2 and OP No. 3 is apparent from the facts that he allowed OP No. 3 to  introduce the account opening  of complainant  despite the fact that OP No. 3 had no account in the same bank. It may be that there is no requirement of insisting introduction by a person already having account with the same bank. But that is the practice which is followed and preferred by every bank. The object of introduction  is to ensure the identity  and credibilkity of the person trying to open a new account.  When introducer himself is stranger to bank, introduction by him would lose the purpose.

24.       In para 15 of the WS OP 1 has pleaded that it is quite possible that after having authorized OP 3 to receive the ATM card and PIN number from the answering respondent( OP No. 1 & OP No. 2) the complainant was disputing the same  only upon being betrayed by OP No. 3.  This shows the weakest possibility being comprehended by OP No. 1 & OP No. 2. OP No. 1 & 2 did not dare to assert that complainant authorized OP 3 to do so. 

25.       OP 1 bank did not take pain to deliver proof of delivery of cheque book  and ATM PIN, password despite repeated request by complainant. There was no fun in withholding the same for two years  till completion of investigation.  It is still more interesting to note that after two years the bank wants to take shelter that records are destroyed after six months.

26.       Non asking by complainant regarding issue of ATM card, cheque book  and pin number  simply shows that he was not aware about the said new procedure.  Sight cannot be lost of the fact that we are dealing with 2006 when ATM was a new device.

27.       Now what is relevant is the manner of withdrawal.  131 entries of withdrawal through ATM over a small period of Jan, 2007 to May 2007 i.e four months.  There are more than one withdrawal through ATM in one day.  For example there are five withdrawal through ATM on 11.01.07 itself,  five withdrawals through ATM on 13.01.07, seven withdrawals on 15.01.07 and so on and soforth.  The sum total of withdrawal made on 11.01.07 alone is Rs. One lakh, sum total of withdrawal on 15.01.07 is Rs. 2.7 lakh.  All this is shocking.  Should a suspicion not have arisen in the mind of the bank manager that what was happening? Should he not have conveyed this message to the complainant?  Should he not verify from the complainant whether the withdrawals are being made by him or under his authority?

24.       Even now a days there is limit of withdrawal through ATM on one day which is probably around Rs. 25,000/-.  This was much lesser in 2006 and 2007.  Why OP 1 bank allowed withdrawal of lakhs of rupees in one day , that too in piecemeal. Four withdrawals and five withdrawals  is a matter of serious concern.

25.       National Commission  held in  in Bhadra N. Dalal vs. Bank of India IV (2011) CPJ 330 that when withdrawals through ATMs are in excess of limit permissible, there is negligence on the part of bank and  bank was directed to refund the amount with interest. The same squarely covers the case in hand.

26.       Counsel for OP referred to circular of RBI No. RBI/2010-11/449 DPSS.co.pd/2224/02.14.003/2010-2011 dated 29.03.11 to show that by that time the bank was required to send SMS for withdrawal of above Rs. 5,000/- only.  The minimum limit of Rs. 5,000/- was dispensed with by said circular. We fail to appreciate how this circular helps the OP bank.  In the instant case withdrawals were above Rs. 20,000/-.  It is not that complainant has not given any mobile number for sending alert by way of SMS. It is  different matter that mobile number of OP 3 was given but bank has not taken defence that it sent alert sms on mobile of OP 3 which means that no sms alert was ever sent on any phone.  This again leads to inference of malafide connivance on the part of the OP 2 Manager with OP 3.

27.       Viewed from any angle,  it is a case of blatant failure, negligence, deficiency, unfair trade practice on the part of OP 1 bank which needs to be curbed by strong hand.  A sum of Rs. 35,00,000/- approxm. in 2007 when said amount had intrinsic value equivalent  of which would now be more than two times.

28.       In any event the relationship of customer and service provider was between complainant and OP 1 bank.  Complainant has locus to recover the amount from personal assets of OP 2, Manager.  OP 1 bank must first pay the amount to the complainant,  thereafter it may recover the same from OP 2, Manager who was its employee either on the basis of inquiry if already held or on the basis of inquiry which may be initiated now.  OP 1 Bank is given liberty to do the needful in accordance with law.

29.       Similarly complainant has no case against OP 3, before consumer court. It is not a regular civil court where rights and liability of strangers can also be adjudicated.  Scope of inquiry before consumer court is confined to persons who have relation of consumer and service provider.

30.       For  the foregoing  reasons OP 1 Bank is directed to refund Rs. 32,94,000/- alongwith interest @ 9% per annum  from respective  dates of withdrawal till the date of refund.  The  complainant must have suffered a lot of mental agony during these ten years as the amount involved was heavy.  No amount of compensation can meet his agony but the same is fairly assessed at Rs. 50,000/- per year i.e. Rs. 5,00,000/- in all.  That would include cost of litigation also.  Order will be complied with by OP 1 bank within 45 days from the receipt of copy of this order.

            Copy of the order be sent to all the parties free of cost as per statutory requirement.

 

(ANIL SRIVASTAVA)                                                                                         (O.P.GUPTA)

MEMBER                                                                                             MEMBER(JUDICIAL)

 

 

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