RESERVED
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
UTTAR PRADESH, LUCKNOW
APPEAL NO. 586 OF 2015
(Against judgment and order dated 26-02-2015 in Complaint
Case No. 427/2012 of the District Consumer Commission, Gorakhpur)
- Branch Manager
Allahabad Bank
Branch Bastiya, Post-Karam Deva,
- General Manager
Allahabad Bank
Head Office Kolkata
Mahesh Kumar
S/O Shri Sitaram
R/O Village Mahendra Bazar
PS Khajni Sikariganj
BEFORE:
HON'BLE MR. RAJENDRA SINGH, PRESIDING MEMBER
HON’BLE MR. VIKAS SAXENA, MEMBER
For the Appellant : Sri Sharad Kumar Shukla, Advocate.
For the Respondent : Sri Alok Ranjan, Advocate.
Dated : 17-08-2022
JUDGMENT
PER MR. VIKAS SAXENA, MEMBER
This appeal has been filed by the Opposite party of the main Complaint, the Allahabad Bank, Gorakhpur, against the judgment and order dated 26.02.2015 passed by the District Consumer Forum Gorakhpur in Comp. No.427, 2012, Mahesh Kumar vs. Allahabad Bank and others. In the said judgment, compensation and other reliefs have been awarded to the plaintiff accepting the Complaint of the plaintiff.
The plaintiff submitted the complaint with the averments that he had been issued an FD by the O.P., Allahabad Bank on 06.07.2009 for a sum of
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Rs.25,000/- for a period of 36 months and its maturity was on 06.07.2012 with the maturity amount Rs.31,243/-. On 24.08.2012, the plaintiff applied to the opposite party for the payment of the maturity amount, but the payment was not made despite his repeated requests, being aggrieved he submitted the Complaint.
During the proceedings in the complaint, the appellant/opposite-party submitted its written statement where in the bank has put its defense that the appellant has opened a saving bank account number 2835 with the appellant bank. In this account on date 06-07-2009, more than Rs. 25,000/– was the balance. On the said date, the complainant applied for issue of a fixed deposit receipt of Rs. 25,000/- by debiting the said account. For the transfer of the amount, the complainant submitted a debit voucher of the same amount. As the complainant was a regular customer of the bank, the employees of the bank honoured his credibility and issue the fixed deposit receipt without verifying the fact that whether the account was actually debited for the amount Rs. 25,000/- or not. The amount was not actually debited from the savings bank account of the complainant as the debit voucher was not carrying his signatures of the complainant and the column of the signatures was left blank on it. The fixed deposit receipt was actually, void as no consideration was passed for issuing the fixed deposit in the name of the complainant. Though, this receipt was issued owing to negligence on the part of the appellant, yet on the maturity time of the FD, the complainant was not entitled for the maturity amount Rs.31,243/–. It is contended by the appellate bank that the Ld. District Consumer Forum without considering the fact that the agreement of fixed deposits was a nullity, has decreed the complaint, therefore, the impugned judgement is erroneous and liable to be set aside.
On hearing both the parties, The Learned District Consumer commission awarded the complaint on the grounds that if the debit voucher dated 06. 07. 2009 was unsigned, in that case the bank has a duty to inform the complainant and bring to his notice that the debit voucher was not bearing his signatures. The bank could have informed the complainant that the fixed deposit was without consideration as the amount for the same was not debited due to lack of his signatures on the debit voucher and either the fixed deposit
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would have been cancelled or the amount for the same could have been demanded from the complainant. As no such action was taken by the appellant bank therefore the bank was liable to pay the amount of the fixed deposit on its maturity. For these reasons The District Consumer Commission disbelieved the version of the appellant bank and awarded the fixed deposit amount to the complainant by the impugned judgement. Being aggrieved of the judgement the appellant bank instituted this appeal.
The main grounds taken in the memo of the appeal are these that debit voucher submitted by the complainant in the lieu of The Fixed Deposit Receipt was not the effective as the signatures of the complainant were absent on the debit voucher and consequently, the amount of the deposit receipt Rs. 25,000/– was not debited from the account of the complainant bearing number 2835.The fixed deposit was issued due to human error of the employees of the appellant bank. The complainant was himself negligent as he did not verify his account and notice that the amount was not debited from his account. This was his duty to inform the bank that the amount from his account was not withdrawn and the Fixed Deposit Receipt was issued without consideration. The learned District Commission overlooked these important aspects and allowed the complaint erroneously and illegally. Therefore, the impugned judgement dated 26. 02. 2015 is fit to be set aside and appeal deserves to be allowed.
We have heard elaborate arguments of the Counsel of the appellants Shri Sharad Kumar Shukla, Advocate and Shri Alok Ranjan Advocate and perused all the records.
The complainant has claimed the amount of fixed deposit on the basis of the fact that the fixed deposit receipt has been issued by the appellant bank in his name. On the other hand, the bank has claimed that although, the fixed deposit receipt was issued in the name of the complainant, the debit voucher given by the complainant for issuing the fixed deposit was not having his signature on it. For this reason, the amount from his account could not be debited and hence no consideration was passed to the bank in lieu of the fixed deposit. Consequently, the fixed deposit issued in the name of the complainant, was a nullity being without any consideration. The most
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important consideration before this appellate bench is that the complainant could not show his account in question with the bank which has any debit for the amount of the fixed deposit claimed by the complainant. Besides, the complainant also could not show that the amount of the fixed deposit was passed by him to the bank from another account or by cash or by any other means. In fact, the complainant was unable to show how does the amount of the fixed deposit was paid by him to the bank. The account number given by the bank is having number 2835, a balance – sheet of the same account has been submitted by the bank which shows no debit of the amount of the fixed deposit. In this way, the complainant was unable to show that the consideration for the fixed deposit was actually passed to the bank and therefore, one and only conclusion can be drawn that the fixed deposit in question was issued without any consideration and hence the part of contract of the fixed deposit was not performed by the complainant. For this reason, the bank cannot be compelled to perform its part of the contract.
The evidence submitted by both the parties clearly shows that the fixed deposit in question was issued without consideration in the name of the complainant and by invoking this contract the complainant wants an unlawful enrichment. The law discourages such kind of unlawful enrichment and it has been provided in law that if an obligation not under the contract but in a relationship that resembles to a contract arises, then it should be fulfilled by the party/person and if any advantage has been taken by one party in such a relationship, it has two return and restore the same to the party at the receiving end. It has been given in chapter IV of The Indian Contract Act, 1872 that an obligation obtained under certain relations resembling those created by a contract should be discharged as if it has been created under a contract. Section 70 and 71 of The Indian Contract Act, 1872 provides if a person enjoys benefit of a non-gratuitous act or finds any goods or sum of money paid under mistake, is liable to return and restore it. The sections are reproduced here under –
70. Obligation of person enjoying benefit of non-gratuitous act.—Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the
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former in respect of, or to restore, the thing so done or delivered1.
Illustrations
(a) A, a tradesman, leaves goods at B‟s house by mistake. B treats the goods as his own. He is bound to pay A for them.
(b) A saves B‟s property from fire. A is not entitled to compensation from B, if the circumstances show that he intended to act gratuitously.
71. Responsibility of finder of goods.—A person who finds goods belonging to another, and takes them into his custody, is subject to the same responsibility as a bailee.
In this case the position of the complainant can be at the most that of finder of goods or a sum of money because in case, had the amount under fixed deposit being paid to him, it would have been under mistake by the bank for the reason that the consideration for making the FDR was not actually paid. For this situation section 72 of The Indian Contract at, 1872 provides that –
72. Liability of person to whom money is paid, or thing delivered, by mistake or under coercion.—A person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it.
Illustrations
(a) A and B jointly owe 100 rupees to C, A alone pays the amount to C, and B, not knowing this fact, pays 100 rupees over again to C. C is bound to repay the amount to B.
(b) A railway company refuses to deliver up certain goods to the consignee, except upon the payment of an illegal charge for carriage. The consignee pays the sum charged in order to obtain the goods. He is entitled to recover so much of the charge as was illegally excessive.
The above mentioned Section provides that even if the money has been paid in the fixed deposit in question, the complainant has an obligation to return the money to the bank because the fixed deposit was created without any consideration to be paid by the complainant and the position of him was that of the person to whom money has been paid under mistake because, no consideration was paid under the agreement of the fixed deposit, no contract was created in favour of the complainant and in case any money would has been paid to him this would have been a payment by mistake by the bank and
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the relationship between the complainant and the bank was thus created is resembling those created by a contract and money is paid to the complainant has to be returned and restored according to section 70 of The Indian Contract Act, 1872. In no case the agreement of this fixed deposit can be invoked in other words, the appellant bank cannot be compelled to perform his part of the agreement by paying the money under an invalid fixed deposit which was a nullity in absence of any consideration. Therefore, relief sought in the complaint cannot be granted to the complainant because no obligation of the bank has been created as without consideration paid a valid contract between them has not been created.
The District Consumer Commission has granted the relief sought in the complaint and allowed the complaint on the reasoning that, even if, the fixed deposit was created by mistake of employees of the bank, and obligation has been created against the bank pay the money described in the fixed deposit receipt. In view of this bench, the law does not permit unlawful enrichment at the cost of an innocent party, who by mistake entered into and contract considering that the consideration in the contract has been paid or would be paid later. On the above reasons the complainant cannot be allowed but the Learned District Commission has allowed the complaint therefore we find that the impugned judgement is liable to be set aside and appeals deserves to be allowed.
ORDER
The appeal is allowed. The impugned judgement is set aside.
Both the parties shall be their own costs.
Let copy of this order be made available to the parties as per rules.
The Stenographer is requested to upload this order on the website of this Commission today itself.
( Shri Rajendra Singh ) ( Vikas Saxena )
Member Member
Pnt.
Court-2
