DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016.

Case No. 45/2010

Sh. Paritosh Jain

R/o  C-77, Lajpat Nagar –II,

Delhi-110024.                                                   …… Complainant.

Versus

IDBI Bank Limited, 1/6,

Siri Fort Institutional Area  

Khel Gaon  Marg,

New Delhi-110049                                            ..….Opposite Party

                                    Date of Institution      : 25.01.2010                                                           Date of Order     :             25.05.2017

Coram:

Sh. N.K. Goel, President

Ms. Naina Bakshi, Member

O R D E R

The case of the Complainant who is a Chartered Accountant, in nutshell, is that  he and his family have D-mat and saving accounts with the OP  for the last about  8 years  and during this  period he has taken loan against pledge of shares and paid  approximately Rs. 10 lacs as interest; during this period not even a single  cheque  deposited by him  or issued by him is dishonoured; that he holds account No. 010653700002608 with OP; that  on 22.12.2008  Mr. Sandeep and Mr. Ravi head of Branch  sold  certain shares from my account illegally  and without obtaining  approval from him; that on every notice issued by the bank he personally met the concerned officer of the bank.  On every date he deposited the shares or cash in the margin account; that 
on 29.12.2008  a representative of the OP came to his office and handed over a letter dated 27.12.2008 with the instructions that his account  is marked with the lien of Rs. 1,35,000/- even after  selling  his shares; that he had already issued the cheque before 27.12.2008  to the broker for the purchase of shares which are sold by the bank without any reason and  are in process to the credit of broker;  that  instead of honouring the cheque the bank has dishonoured  his cheque and  due to this fact his broker refused to honour his transaction for the purchase of shares . For this reason he suffered heavy loss due to the change in the value of the shares besides the loss of his reputation. He repeatedly asked for the details of his D-mat list of shares alongwith the basis of calculating shortfall in margin account but every time OP gave different reasons and not providing the necessary details; that on 29.1.2009 he sent a  notice through International Consumer Rights Protection Council, Thane(West), India before taking any action against the OP  but the notice was not  responded to.  According to the Complainant there is an unfair trade practice and deficiency in service on the  part of  the OP.  Hence it is prayed as under:-

“Relief  be granted  to the complainant by instructing to the opposite party  to Buy Back  the shares which they  have illegally sold, namely 125 shares of ABB Alstom Power Ltd.,  1300 shares of Balrampur Chini and 65 shares  of Financial Technology Ltd. valued at Rs. 1,26,554.45/-  on the  date of sale and credit  the same  to the account of complainant and to pay compensation of Rs. 2,00,000/- against the losses, mental agony, harassment and inconvenience suffered by complainant due to defective services of the Opposite Party.”

In the reply  the OP has stated that the Complainant and his family members maintain the following saving bank accounts with OP:-

Saving A/cs No.         Name                            Date of  Opening.

01014000159647        Prishotosh KumarJain 14.02.2005

O131060615400                   Shweta Jain                 04.08.2005

010104000121859     Shilpi Jain                     16.03.2004        

          It is denied that any share of the Complainant has been sold unauthorisedly.  It is submitted that the loan account of the Complainant  together with other loan  account of his  daughter and wife were continuously overdrawn since 01.10.2008;  that the  OP on several occasions (over  phone  and by  personal visits) requested the complainant  to regularize the above said accounts by paying back  the overdue amount.  The OP also sent notices to the Complainant on 07.10.2008, 17.10.2008 and 20.11.2008  informing  the Complaint about the overdue amount requesting him to regularize  the said account/accounts but, however, the Complainant failed,  refused, neglected to deposit the overdue  amount; that since  the Complainant ignored the OP’s entire request  over phone, person visits and reminder letters, the OP sent notice on 26.11.2008 and again on 05.12.2008  giving the Complainant a final opportunity to  deposit the overdue amount; that despite the receipt of the letters on 01.12.2008 and 06.12.2008 the Complainant  blatantly   ignored  the request of the OP.  It is stated that  it was clearly mentioned in all the notices and the  final  notice  that in case the complainant  did not regularize the accounts  OP would be  forced  to sell the pledged securities and net sale proceeds would be adjusted to recover the overdue amount in the account; that the OP did wait till 21.12.2008 even after serving the final  notices and requested the Complainant  to regularize  the accounts but neither  the Complainant responded  to the request of the OP nor paid the overdue amount  till 22.12.2008; that  since the OP was left with no other alternative,  at the last moment  the OP sold the  pledged securities  on 22.12. 2008; that due to the  intervening holidays on 25.12.2008  and 28.12.2008  the OP  received  the final payment   of sale proceeds  on 29.12.2008 and credited the loan account ; that the OP has sold the pledged securities equivalent to the amount overdrawn  from the Loan account  on 21.12.2008 and since the value  of the shares linked  to the marked and varied as per the market  the OP intimated the Complainant  that  all the cost including shortfall, if any, will be recovered  from his charged account .  It is further stated that despite being aware that his account and his family members accounts were running in overdue condition the complainant clandestinely deposited a cheque of Rs.  2,90,000/- in his saving account 01014000159647 which was credited  on 24.12.2008  and the same time (sic) was withdrawn thereafter after issuing  cheque to different parties; that the OP did not receive any information  from the customer about  such deposit in his account; that on a casual verification of the accounts of the Complainant on 27.12.2008 the OP found that a credit balance of Rs.135423.66 was lying in the saving account of the Complainant ; that the OP  immediately contacted the Complainant and when the OP realized that the Complainant was  an intentional defaulter the OP marked  a lien on the above said Rs.1.35 lacs on 27.12.2008 by exercising the power of  Banker’s  General Lien and the same was also informed to the Complainant by telephone  as well as by serving  a notice on the same day also by personally delivering the notice through special messenger on the same day. Other averments made in the complaint have been denied. It is prayed that the complaint be dismissed.

          The Complainant has filed rejoinder and has denied the averments made in the reply. 

          The Complainant has filed his own affidavit in evidence. No affidavit in evidence has been filed on behalf of the OP.  Rather the defence of the OP stood struck off vide order dated 21.12.2011 passed  by our predecessors.

Written arguments have been filed on behalf of the Complainant.  We have heard the counsel for the Complainant and have also gone through the record. 

In his affidavit the Complainant has stated in para 6 &7 as under:-

“6.     It is submitted that the customer is required   to lodge the shares held in various companies in demat form in the D-mat account maintained with the opposite party and based on the current market value of the said shares ,  the opposite party permits credit to the customer up to 50% to 60% of the value of the share.  The said permitted credit when used by the customer is the Loan against Share.  The Opposite Party charges interest on the loan amount so used.

7.      That for the purpose of keeping the necessary security for the loan used by the customer, the opposite party is required  to keep an uptodate account  and if the value of the shares should fall in the market , the opposite party has the duty to  communicate with the customer so that either further security(shares) are deposited or the loan sum is deposited back to bring the same within the permissible sanctioned limits.  If the customer should not heed to the request  of the bank , the bank is empowered to recover its loan by selling the shares available in the demat  accounts.”

 In para 10 of his  affidavit  the Complainant  has stated that on 22.12.2008 the OP  sold certain  share shares of  approximately of the value of Rs. 1,35,000/- from  account No. 010653700002608  illegally and without obtaining  approval from the Complainant  on the false pretext that there was  shortage  of margin  money. According to the Complainant  he had informed the bank (Mr. Sandeep) that the  Complainant  would deposit a pay order  drawn  on Syndicate Bank by the evening that day  and  the bank and they should not sell  any shares from his account  but even while pay order of Rs. 2,90,000/-  was deposited by the Complainant, the bank sold  the said shares.

 On the other hand, the case of the OP is that the OP Bank has sold the pledged shares equivalent to the amount overdrawn from the loan account on 22.12.2008 after the Complainant had not responded to the various letters and notices issued to him to clear the outstanding amount and since 25.012.2008 and 28.12.2008 were the two intervening holidays the final payment of sale proceeds was credited to the loan account on 29.12.2008. Therefore, the sale of shares for recovery of the overdue payment till 22.12.2008 had taken place on 22.12.2008 and the Complainant also deposited a cheque of Rs. 2,90,000/-  in his saving account on the same date which was credited on 24.12.2008.  The OP created a general lien on the amount of Rs 1,35,433/-.  The OP found that the account of the Complainant on 27.12.2008 had a credit balance of Rs. 1,35,433.66 and immediately thereafter  the OP contacted the Complainant and told to him that since he was an intentional defaulter and  the bank  had created a lien on the amount of  Rs.1,35,000 on 27.12.2008 by exercising the power of banker’s general lien.  These facts are not in dispute though according to the Complainant the general lien created by the OP Bank was without any reason.  As per the Complainant himself, he had come to know on 22.12.2008 that the two employees of the OP Bank had sold his shares from his account.  Therefore, possibility cannot be ruled out that it was only after receiving of the information about the sale of the shares that the Complainant had deposited the amount of Rs. 2,90,000/- in his saving account thereafter. He has not denied  about the  receipt of the letters, reminders, final notices from the OP before 22.12.2008.  Therefore, we are of the considered opinion that the probabilities and the circumstances are in favour of the OP. Therefore, we hold that the complainant has failed to prove deficiency in service or unfair trade practice on the part of the OP.  

In view of the above discussion, we do not find any merits in the complaint and dismiss the same with no order as to costs.

          Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations.  Thereafter file be consigned to record room.

  Announced on 25.05.2017