BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II, U.T. CHANDIGARH

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Complaint Case No   : 441 of 2010

Date of Institution :  19.07.2010

Date of  Decision   :  22.02.2011

Sham Kumar Sharma, #2189, Sector 37-C, Chandigarh.

….…Complainant

V E R S U S

[1]     Deputy General Manager, State Bank of India, Sector 17, Bank Square, Chandigarh.

[2]  The Branch Manager, State Bank of India, Sector 30, Chandigarh.

                           ..…Opposite Parties

CORAM:     SH.LAKSHMAN SHARMA               PRESIDENT

SH.ASHOK RAJ BHANDARI                MEMBER

            MRS. MADHU MUTNEJA                 MEMBER

PRESENT: Sh. Gagan Aggarwal, Adv. for the Complainant along with Sh. Sham Kumar Sharma, Complainant in person.

         Sh. K.S. Arya, Adv. for the OPs.

PER ASHOK RAJ BHANDARI, MEMBER

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          Concisely put, the Complainant had opened a Recurring Deposit Account No. 1409 with the OP No. 2 on 30.12.1981 in the denomination of Rs.100/- per month and continued to deposit monthly installments till May, 1988 without any interruption and had, thus deposited a sum of Rs.7800/-, which fact is discernible from statement of account Annexure C-1.  Thereafter, due to severe health reasons and on account of his service exigencies, the Complainant could not be able to approach the OP Bank for receiving the said amount and during the interregnum his pass-book was also not traceable. However, on locating the said pass-book, when the Complainant approached the OP Bank on 24.3.2010, to his utter surprise, he was informed that the old record has been destroyed, due to which they were not able to pay back the said amount. It was averred that as per Rule 5 of Recurring Deposit Scheme, extract of which is reproduced in Para 6 of the complaint, the Complainant was entitled to get a sum of Rs.16,315/-, along with up-to-date interest on the said account from the OP Bank, which they failed to release, despite repeated requests, personal entreaties and serving of legal notice. Hence, the present complaint has been filed, alleging the above act of OPs as gross deficiency in service and unfair trade practice, directing the OPs to release the payment of Rs.16,315/- along with interest @24% per annnum and further, to pay compensation of Rs.50,000/- on account of mental harassment and agony, along with cost of litigation.

2]        Notice of the complaint was sent to OPs seeking their version of the case.

3]        OPs in their joint written statement/ reply, have taken a preliminary objection stating that the Recurring Deposit Account in question was opened on 30.12.1981 and admittedly, the last payment was deposited by the Complainant in May, 1988. The present complaint has been filed in July, 2010 and, therefore, the same cannot be filed in the Consumer Forum at this stage, being barred by the law of limitation. On this ground, as per the OPs, the complaint is liable to be dismissed summarily on the ground of limitation itself.

          On merits, while admitting the core facts of the case/reply, pleaded that the Complainant opened a Recurring Deposit A/c No. 1409 in the denomination of Rs.100/- per month on 30.12.1981, but lastly deposited the installment in the month of May, 1988. Thereafter, the Complainant failed to maintain the account and suddenly, he found the pass-book on 24.3.2010 in relation to the said account and thereafter, claimed the payment thereof. It was asserted that it was not feasible for the OPs to maintain such an old record of every individual, especially when there was no operation in the account for such a long period. As per practice, such like amounts were kept in Sundry Account known as Deposit at Call (for short the ‘DAC’). However, no such record of the Complainant was available in DAC being maintained by the OPs. Therefore, in all probability, the Complainant had withdrawn his due amount. All other material contentions of the Complainant were controverted. Pleading that there was no deficiency in service on their part, a prayer has been made for dismissal of the complaint with heavy costs.

4]        Parties led evidence in support of their contentions.

5]        We have carefully gone through the entire case thoroughly, including the complaint and the relevant documents tendered by the complainant / OPs No.1 & 2. We also heard the arguments put forth by the learned counsel for the parties. As a result of the detailed analysis of the entire case, the following points/issues have clearly emerged and certain conclusions/arrived at, accordingly:-

i]   The basic facts of the case in respect of the Complainant having opened a Recurring Deposit Account No. 1409 on 30.12.1981 in the denomination of Rs.100/- per month for a period of 10 years, with the date of maturity as 30.12.1991 and that the installments in the account were paid by the Complainant till May, 1988 with the total of Rs.7800/- and that thereafter, no installments were paid by the Complainant, have all been admitted. The only dispute between the parties is that as per the Complainant, he could not deposit the subsequent installments after May 1988, on account of a number of reasons, including his ill health, undergoing surgery and also frequent transfers on posting, due to which he could not operate the Recurring Deposit Account and the installments remained pending for payment. The Complainant says that it was only on 24.3.2010 that he could locate his pass-book and then made a claim with the OPs for the payment of the balance standing in the Recurring Deposit Account, along with interest, but his claim was not paid by the OPs so far.

ii]  The OPs, in their joint reply/ written statement, while admitting the factual matrix of the case, have pleaded that the Complainant had failed to maintain the account beyond May, 1988 and it was not feasible for them to maintain records of such an old account, especially when there was no operation in the account for such a long period. The OPs further say that as per the Banking practice, such like amounts were kept in a Sundry Account known as “Deposit at Call” (DAC) and no such record of the Complainant was available in the DAC, being maintained by the OPs. From these pleadings, the OPs have concluded that in all probability, the Complainant had withdrawn his due amount and that nothing was payable to him as of now. In support of their case, the OPs have also annexed Annexure C-1, which purports to be the details of DAC account and as per the OPs, the name of the Complainant or his Account No. do not appear in the list and from this document, the OPs say that since name of the Complainant is not in the list, he must have obtained the payment of his dues earlier. On these grounds, the OPs have prayed that the complaint may be dismissed with costs, as there is no merit in the same.

iii] After going into the details of the present case, we find that the fundamental facts of the case have been admitted by both the Parties. The only dispute, which remains is in respect of as to whether the OPs have paid back the outstanding amount in the Recurring Deposit Account of the Complainant to him so far or not. The Complainant has pleaded and has also submitted an affidavit stating that he has not received the payment of his dues from the OPs, so far. On the contrary, the OPs say that the Complainant has already received the payment of his dues and as such nothing remains payable to him. The basis of the pleadings of the OPs is that since all the old accounts are shifted to a separate account known as ‘Deposit at Call’ (DAC) and after going through the list of depositors, whose money was lying in the DAC, the name of the Complainant does not exist there, therefore, OPs say that in all probability the Complainant had already withdrawn his due amount. The reasoning given by the OPs, as well as justification tendered by them is just not fair, reasonable and hence, not tenable. The learned counsel for the OPs was repeatedly asked to furnish some proof of payment made by the OP Bank to the Complainant at any stage after May, 1988, but no such proof was forthcoming from the OPs. The entire arguments put forth by the OPs was merely a guess work and at best a remote probability of the Complainant having received the payment, which cannot be accepted at its face value. It is quite clear and well established that the Complainant has not received the payment of the dues payable to him, so far.  

iv]  Another objection taken by the OPs is in respect of limitation period for filing the complaint. The OPs say that the last payment of installment made by the Complainant was in May, 1988; whereas, the present complaint has been filed on 19.7.2010. Stating that clearly, the case is time barred, as the same has not been filed within the period of two years from the date of the cause of action i.e. 31.05.1988.  To rebut the contention of the OPs, the learned counsel for the Complainant has placed on record two authorities, the head notes of which are reproduced hereinbelow:-

(i) In case, Punjab State Co-operative Bank Limited and another Versus Devinder Cheema, reported as 2003(2) CLT, Hon’ble State Consumer Disputes Redressal Commission, U.T. Chandigarh, has held as under:-

“Consumer Protection act, 1986, Section 24-A – Limitation – Bank wrongly debiting Rs.60,000/- from Complainant’s Savings Bank Account without his knowledge and consent and crediting it to another Saving Bank Account on 12.6.1997 – Plea of appellants/ OP that complaint filed beyond two years from the date of cause of action is barred by limitation repelled – Since the Savings Bank Account is still in operation with the Bank, the wrong debit entry of a sum of Rs.60,000/- would give a recurring cause of action to the Complainant – District Forum rightly held that the complaint was filed within the prescribed period of limitation.”

(ii) In case, Jaswant Sugar Mills Limited Versus Punjab National Bank and Anr., reported as 2010 (1) CLT 281, Hon’ble National Consumer Disputes Redressal Commission, New Delhi, has held as under:-

“Consumer Protection act, 1986, Section 24-A – Limitation – Banking service – FDR – maturity amount – contention that complaint barred by limitation repelled – Complainant became aware of the amount of FDR of 1982 not being paid from the statement of account supplied by the Bank in November, 1996 – Bank thereafter assuring the Complainant that it was looking into the matter uptill 19.3.1998 – complaint filed in the year 2000 held not barred by limitation.”  

v]   From the above authorities, it is quite clear that there is a similar situation, facts and circumstances in the present case and as  such, there is a continuing cause of action, as the Recurring Deposit Account in question has not formally been closed by the OPs. The only thing the OP Bank has probably done is to transfer the outstanding amount lying in the said account to another account, known as “Deposit at Call” (DAC). But this is only a question of transfer book entry from one banking account to another and does not make any difference whether the amount in question remained in account ‘A’ or ‘B’. All the same, the entire amount continued to remain with the Bank. Further, when the Complainant wrote to the OP Bank on 8.4.2010 for making payment of Rs.16,315/-, after adjusting the amount of 42 unpaid installments, as also penalty of Rs.42/-, as per Rule 5 of the Recurring Deposit Account, the letter was duly acknowledged by the OP Bank by saying that they had received the photocopy of the pass-book and further, that the old records are not available and have been destroyed (Annexure C-2). In Annexure C-3, the Local Head of the OP Bank has also acknowledged the complaint received by them from the Complainant. Subsequently, on 18.5.2010, OP No. 2 wrote to the Complainant to submit original pass-book of Recurring Deposit Account No. 1409 for further necessary action. All this clearly shows that the issue in respect of the payment of outstanding dues in the Recurring Deposit Account of the Complainant had remained fully alive till as late as the year 2010 and was continuing till May, 2010. Even the Bank had not taken any objection in respect of the case being time barred in its entire correspondence with the Complainant and they can’t be allowed to do so at this stage. Thus, there is no bar of limitation for filing the present complaint and in our opinion, the same is well within the time prescribed for the stated purpose. 

6]        Keeping the above said detailed study of the case, in our considered opinion, the Complainant has a very solid case in his favour, which has a lot of merit, weight and substance and the same deserves acceptance. We, therefore, decide the complaint in favour of the Complainant and against the OPs, as surely and certainly there is not only deficiency in service on the part of the OPs in not paying the genuine and bonafide claim of the Complainant, who happens to be a 50% permanently disabled senior citizen, but also there is unfair trade practice on their part, on account of denying the Complainant his dues by simply saying that the old records were not available with them as the same had been destroyed, which is, to say the least, quite arbitrary, unreasonable and even illegal. No customer of the Bank could be allowed to suffer at the hands of the Bank on account of destruction of certain records by the Bank at their own whims and fancies and which is purely their internal procedural matter and has nothing to do with the customers’ vested interests, who must get their genuine and bonafide dues back from the Bank, as they had put in their hard earned money with the Bank in the shape of deposits with the fervent hope of getting back the same on maturity. Hence, we decide the complaint in favour of the Complainant and against the OPs and pass the following order.

7]        The OPs shall, jointly and severally, make the following payments to the Complainant:-

(i)  The OPs shall pay the sum of Rs.16,315/- to the Complainant, being the amount deposited by the Complainant and having become payable to him along with interest on the date of maturity i.e. 31.5.1991, as per the Recurring Deposit Account Scheme of the OP Bank.

(ii) The OPs shall pay a compensation of Rs.10,000/- for causing physical harassment, mental agony and pain to the Complainant, on account of non-settlement of his Recurring Deposit Account, without giving any justification and that too for a period of about two decades or so.

(iii)   The OPs shall pay a sum of Rs.7,000/- as litigation costs to the Complainant.

8]        The aforesaid order be complied with by the OPs, within a period of 30 days from the receipt of its certified copy, failing which OPs shall, jointly and severally, pay Rs.26,315/-, along with interest @18% per annum from the date of filing the present complaint i.e. 19.07.2010, till the date of realization, besides paying the costs of litigation of Rs.7,000/-.

9]      Certified copy of this order be communicated to the parties, free of charge. After compliance, the file be consigned to the record room.

Announced

22.02.2011

                          Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

     Sd/-                                          

                                   (ASHOK RAJ BHANDARI)

MEMBER

                                      Sd/-    

(MRS. MADHU MUTNEJA)

MEMBER