BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.28 of 2015
Date of Instt. 30.01.2015
Date of Decision :04.08.2015
Manjit Singh Kandola son of Gurdas Singh R/o VillageHappowal, Tehsil Banga District Nawanshahr, now known as Shaheed Bhagat Singh Nagar.
..........Complainant Versus
1. Kotak Mohindra Mutual Fund, GT Road, Near Bus Stand, Jalandhar Branch through its Branch Manager.
2. Kotak Mahindra Mutual Fund, Kotal Mohindra Asset Management Company Limited, 6th Floor, Zone-IV, Kotak Infinity Building No.21, Infinity Park, Office Western Express Highway General A.K.Vaidya Marg, Malad (E) Mumbai-400097, India, Registered Officer:-36-38-A, 3rd Floor, Nariman Bhavan 227, Nariman Point, Mumbai-400021, India through its Senior Manager/Authorized Representative.
.........Opposite parties
Complaint Under Section 12 of the Consumer Protection Act.
Before: S. Jaspal Singh Bhatia (President)
Ms. Jyotsna Thatai (Member)
Sh.Parminder Sharma (Member)
Present: Sh.Gurinder Saini Adv., counsel for complainant.
Sh.Vikas Sood Adv., counsel for opposite parties.
Order
J.S.Bhatia (President)
1. The complainant has filed the present complaint under section 12 of the Consumer Protection Act, against the opposite parties on the averments that the complainant is a Non Resident Indian, but at present is residing in Village Happowal, Tehsil Banga, District Shaheed Bhagat Singh Nagar(Nawanshahr). The complainant had invested Rs.6,40,000/- in Mutual Funds of Kotak Mohindra Mutual Fund on 14.11.2007 through Centurion Bank of Punjab, in which the complainant was maintaining an account. The said bank now stands merged with HDFC Bank Limited. After about six years of the investment of the money in Mutual Fund, the complainant had applied for the redemption of the amount invested by him in Mutual Fund on 22.2.2013 and at that time, the investment made by the complainant had swelled to Rs.6,46,117.58/-. At the time of investment made in the Mutual Fund, the complainant had furnished to Kotak Mahindra Mutual Fund his bank details, his date of birth and other requisite informations for the purpose of identification of the investor. On the making of the request for redemption of the amount, the complainant was assured by Kotak Mohindra Mutual Fund staff members that the amount due to the complainant shall be transferred to his account within the next three working days. The complainant then checked his account with HDFC Bank Ltd on 1.3.2013 but to his utter surprise, no amount had been transferred to his aforesaid account by Kotak Mohindra Mutual Fund and as such, he again visited the Jalandhar Branch of Kotak Mohindra Mutual Fund and inquired about the status of the payment. He was shocked to learn on that day that the amount of Rs.6,46,117.58/- which was legally payable to the complainant on account of redemption, already stood transferred into account No.4803155000006596 to Karur Vyasa Bank. The complainant then immediately told them that he has no account in the aforesaid bank, as such, how the amount could be transferred to the aforesaid account. The staff of Kotak Mahindra Mutual Fund, Jalandhar branch then came up with a plea that the bank details had been changed as per the request received by them through courier service purporting to have been sent by the complainant, whereas, in fact, the complainant had never changed his bank details. Therefore, it became apparent that the amount which was due to the complainant had been illegally transferred to the aforesaid account being held by some other person, as a result of some conspiracy hatched by the officials of Kotak Mahindra Mutual Fund with the person holding the account of Karur Vyasa Bank in order to deprive the complainant of an amount of Rs.6,46,117.58/-. Aggrieved by the aforesaid illegal act, the complainant had made an application addressed to the Senior Superintendent of Police, Jalandhar for the registration of the case and at the same time, the matter was referred to the superior of Kotak Mahindra Mutual Fund. Acting on the complaint made by the complainant, Kotak Asset Management Company Limited acting on behalf Kotak Mahindra Mutual Fund, offered to transfer Rs.5,86,977.48/- to the complainant by transferring the said amount to his account maintained by him with Centurion Bank of Punjab now merged with HDFC Bank Limited. While making the said offer, they told to the complainant that he should furnish an undertaking that he shall not take any criminal action against the employees of Kotak Mahindra Mutual Fund. Despite the fact that the full amount was not being refunded to the complainant and he being interested in getting back his full amount agreed to write a letter to the aforesaid company to the effect that he would not take any criminal action against the employees of Kotak Mahindra Mutual Fund. He had to write the aforesaid letter because the complainant was placed in a very peculiar circumstances at that point of time and was in danger of loosing the whole of the amount. The said undertaking does not in any manner affect his writing from claiming the full amount from Kotak Mahindra Mutual Fund on account of the redemption of the investment made by him. Only a sum of Rs.5,86,977.48/- has been refunded to the complainant on 22.11.2013. Therefore, he is still entitled to the payment of the remaining amount of Rs.59,140.10/-. On such like averments the complainant has prayed for directing the opposite parties to refund him the remaining amount of Rs.59,140.10/- alongwith interest. He has also claimed damages and litigation expenses.
2. Upon notice, opposite parties appeared and filed their written reply pleading that on 12.2.2013, the complainant at KMAMC's Ludhiana Branch placed a request for change of address from the existing address i.e Centurion Bank of Punjab, GT Road, Phagwara, Punjab to a new address i.e H.No.17, Urban Estate, Phagwara, Kapurthala, Punjab-144401. KMAMC processed the said request only upon checking that the signature on the said request matched with the specimen signature of the complainant registered in KMAMC's records and the address mentioned in the driving license (being the document in support thereof) matching with the new address mentioned in the said request. On the same day itself, the complainant also submitted requests for change of bank account from the original bank account i.e bank account Centurion Bank of Punjab, Account No.112401000008840 to the account No.430315500000 6596 maintained with Karur Vysya Bank, Jalandhar (KVB Bank Account) and for change of status from NRI to Resident. The necessary documents such as original cheque duly cancelled pertaining to the KVB Bank account and the notarized copy of PAN Card were submitted at the time of making the aforesaid request for change in the bank account details which were in accordance with the documents taken for processing such investor requests. The opposite parties again processed the said request only upon checking that the signatures on the said request matched with the specimen signatures of the complainant registered in KMAMC's record and that the documents so received in support thereof has been duly attested or notarised. On 22.2.2013, an investor request was received in respect of his folio. The said request was duly processed on 28.2.2013 as the same was found to be in order i.e like the other investor requests the signature on the redemption request matched that of the signatures of the complainant as registered in the records of the opposite parties. Thus the opposite parties as per process, duly credited the redemption proceeds of Rs.646117.58/- in the KVB Bank account. The opposite parties hereby repeat and reiterate that the above mentioned facts and circumstances and the documents submitted in support of the aforesaid statement/averments/contentions make it amply clear that the opposite parties at all times have exercised due diligence and promptness in exercise of its obligations and have never been negligent in rendering its duties. It was surprising to receive the letter dated 4.3.2013 from the complainant stating that he had not received the redemption monies and that he did not have any bank account at KVB. The opposite parties internally investigated the matter and despite their processing of the redemption request in accordance with the standard processes and procedures, only with a view of help the complainant, approached KVB to ascertain the status of the monies remitted in the KVB Bank account. The opposite parties addressed a letter to KVB dated 4.3.2013 informing the later about the receipt of the complainant's letter complaining that the KVB Bank account was not his bank account, that it appeared that an unknown person had allegedly opened the KVB Bank account in the name of the complainant who was now in the process of filing a FIR with the police authorities on the grounds that this unknown person had allegedly defrauded him by opening a false account with the same name. Further, the opposite parties requested KVB to freeze the KVB Bank account immediately on the basis of the receipt of this letter. This was followed by the subsequent letters dated 13.3.2013 addressed by the opposite parties to KVB enclosing the complaint filed by the complainant before the Senior Superintendent of Police, Jalandhar, and calling upon KVB to initiate the necessary action at their end and freeze the KVB Bank account and requesting KVB to transfer redemption proceeds back to the bank account of the opposite parties maintained with HDFC Bank. The opposite parties from time to time apprised the complainant of their discussions with the officials of KVB in respect of the recovery of the redemption proceeds. It is clearly evident from the aforesaid communications addressed to KVB that they had only bonafide intentions and spared no efforts to help the complainant to recover the redemption proceeds from KVB despite their proper processing of the investor requests, so that the said monies could be given to the complainant. Meanwhile the officials of KVB addressed a letter dated 24.9.2013 to the opposite parties seeking details that had already been provided by them in terms of their earlier communications dated 4th March and 13 March 2013 and informing them that KVB would part with the funds lying in the KVB Bank account subject to KMAMC furnishing an indemnity bond in the fomer's favour. The opposite parties also during the course of their discussion with the officials of KVB learnt that an amount of Rs.60,000/- had already been withdrawn from the KVB Bank account before the freezing of the account. The opposite parties submit that only due to their consistent efforts and repeated follow up with KVB, on 22.11.2013 the remaining redemption proceeds of Rs.5,86,997.48/- were credited to the complainant's saving account bearing No.112401000008840 maintained with the Centurion Bank of Punjab as per his request and accordingly the opposite parties addressed a letter to the complainant informing him of the said credit of the remaining redemption proceeds. They denied other material averments of the complainant.
3. In support of his complaint, learned counsel for the complainant has tendered into evidence affidavit Ex.CA alongwith copies of documents Ex.C1 to Ex.C3 and closed evidence.
4. On the other hand, learned counsel for the opposite parties has tendered affidavit Ex.OA alongwith copies of documents Ex.OP1, Ex.O3 to Ex.O26 and closed evidence.
5. We have carefully gone through the record and also heard the learned counsel for the parties.
6. It is not disputed that complainant had invested Rs.6,40,000/- in Mutual Fund of opposite parties on 14.11.2007 through Centurion Bank of Punjab in which the complainant was having his account. The said bank now stands merged with HDFC Bank Limited. It is also not disputed that complainant had applied for redemption of the amount invested by him in the above said mutual fund. Ultimately, the complainant came to know that the redemption amount of Rs.646117.58/- which was legally payable to him already stood transferred to the account No.4803155000006596 to Karur Vyasa Bank. According to the complainant, he was having no account in the above said bank and the above said bank account has been opened by some other person fraudulently. On the other hand, the version of the opposite parties is that the complainant submitted request for change of his bank account from his original bank account to account No.4303155000006596 maintained with Karur Vysya Bank, Jalandhar and for change of status from NRI to Resident. According to the opposite parties, the complainant has also applied for change of his address and both these requests were accompanied by necessary documents. Further according to the opposite parties on the request of the complainant, the amount was transferred to the above said account number of KVB. Further according to the opposite parties, when the complainant informed the opposite parties, he has never opened any account in KVB, the opposite parties immediately came into action and the account was got frozen but before that Rs.60,000/- had already been withdrawn from the bank account of KVB. Further according to the opposite parties, the remaining amount of Rs.586977.48/- was transferred to the account of the complainant. The question of forgery is involved in the present case. The opposite parties have produced copy of letter purported to have been written by the complainant to the opposite parties for change of his address and bank details. In this request, name of the bank is mentioned as KVB. This request is accompanied by a signed blank cancelled cheque which is meant for transfer of amount by way of NEFT directly in the account. Ex.O10 is copy of driving license of the complainant and Ex.O11 is copy of PAN Card duly attested by Notary Public. Whether all these documents are forged and fabricated one can only be determined after detail inquiry and evidence of both the parties. Further whether someone else impersonating as Manjit Singh has opened account in KVB or not can only be determined after detailed evidence and in the presence of KVB. It may be mentioned here that KVB is not party in the present proceedings. The bank opens accounts after following KYC norm, as per instruction of Reserve Bank of India. So complicated question of facts involving forgery are involved in this case. To decide forgery the appropriate forum is civil court. In M/s. Bajaj Allianz Life Insurance Co. Ltd and others Vs. Bhupinder Singh, First appeal No. 297 of 2011, decided on 09.01.2012 by Hon'ble State Commission of Union Territory, Chandigarh it has been observed as under:-
"In Reliance Industries Ltd.’s case (supra, it was held that when the questions of fraud and cheating are involved in regard to the claim of the complainant, which require thorough scrutiny including the examination of various documents and supporting oral evidence, the Consumer Fora cannot adjudicate upon the matter. It was further held that the questions of fraud, cheating and conspiracy could be satisfactorily resolved, by the Civil Court. Similar principle of law, was laid down in M/s Sincihal Swaroop Ispat Ltd.’s case (supra) decided the National Commission. Since the disputed, complicated and complex questions are involved, as to whether, Annexure R-1, proposal form and declaration bear the signatures of Jai Teging Singh and whether Annexure R-2, assignment form bear his signatures and the signatures of the complainant or were forged by the Opposite Party No.3. In our opinion, for proving the same elaborate examination of the witnesses, their cross-examination, and a lot of documentary evidence, are required. Not only this, even comparison of the disputed signatures of Jai Teging Singh on the proposal form, as also, on the assignment notice and disputed signatures of his father, on the said form, is required to be made by the Forensic Expert, with their specimen signatures/standard signatures, to arrive a truth. Such disputed, complex and complicated matters can only be adjudicated upon by a competent Court of Civil Jurisdiction. The principle of law, laid down in the aforesaid cases, is fully applicable to the facts of the instant case. The submission of the Counsel for the appellant, being correct, is accepted."
Similarly, in case Daljit Singh Dogra Vs. ING Vysya Bank Ltd and others 2009 (4) CLT page 22, the Hon'ble State Commission of Punjab has observed as under:-
" All these facts and circumstances narrated here-in-above clearly lead us to the conclusion that disputed questions arises in this complaint which need a detailed and thorough investigation in to the facts which is incapable of being undertaken in these summary proceedings under the Consumer Protection Act, 1986.
Hon'ble Supreme Court in the judgment reported as Punj Lyoyd Limited Vs. Corporate Risks India Pvt. Ltd. 1(2009) CPJ 10 (SC) was pleased to observe that the parties can be relegated to the civil court after notice to the opposite party and after coming to know the nature of pleadings of the parties and the nature of questions involved in the complaint which needed to be answered and the scope of inquiry Hon'ble Supreme Court discussed the whole law on the subject and was pleased to observe as under:-
"When pleadings of both the parties were made available
before the Commission, only then the Commission
should have formed an opinion as to the nature and
scope of inquiry i.e. whether the facts which arose
for decision on the basis of the pleadings
of the parties required a detailed and complicated
investigation of facts which was incapable of being
undertaken in a summary and speedy manner,
then only the Commission should have justifiably
formed an opinion on the need of relegating the
complaint to a Civil Court.
We reach the conclusion that the nature and scope of inquiry involved in the complaint needs complicated investigation of facts which cannot be undertaken in these summary proceedings. It needs lot of evidence documentary, oral and expert.
7. In Oriental Insurance Co.Ltd Vs. Munimahesh Patel 2006(3) Apex Court Judgment 365 (SC), it has been held by Hon'ble Supreme Court as under:-
"Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that Commission accepted that insured was not a teacher. Complainant raised dispute about genuineness of the document (i.e proposal forms) produced by the appellant.
The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done.
The nature of the proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by a appropriate court of law and not by the Commission".
8. The ratio of these authority is applicable on the facts of the present case. The question of alleged forgery involved in the present case can not be effectively decided in the present summary proceedings and particularly in absence of KVB as a party. In our opinion, to decide the controversy involved in the present case the appropriate forum is civil court.
9. In view of above discussion, the complainant is relegated to civil court and the present complaint is dismissed with no order as to cost. Copies of the order be sent to the parties free of costs under rules. File be consigned to the record room.
Dated Parminder Sharma Jyotsna Thatai Jaspal Singh Bhatia
04.08.2015 Member Member President
