BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANGALORE
Dated this the 3rd March 2017
PRESENT
SRI VISHWESHWARA BHAT D : HON’BLE PRESIDENT
SMT. LAVANYA M. RAI : HON’BLE MEMBER
ORDERS IN
C.C.No.88/2015
(Admitted on 19.02.2015)
Mr. N.T. Rajgopal,
S/o Late N. Thirumaleshwara Bhat,
Aged about 55 years,
Vate House, Ujrupade Post,
Puttur Tq, D.K.
….. COMPLAINANT
(Advocate for the Complainant: Sri SD)
VERSUS
Manager,
Corporation Bank,
Bolwar Branch,
Puttur Taluk, D.K.
….......OPPOSITE PARTY
(Advocate for the Opposite Party: Sri KPVR)
ORDER DELIVERED BY HON’BLE PRESIDENT
SRI VISHWESHWARA BHAT D:
The above complaint filed under Section 12 of the Consumer Protection Act by the complainant against opposite party alleging deficiency in service claiming certain reliefs.
The brief facts of the case are as under:
The complainant claims an FD kept by him with opposite party Rs.55,056/ had matured on 17.10.2014 for Rs.63,122/ On 18.10.2014 complainant surrendered the original FD receipt to opposite party it was retained by opposite party seeking some time to pay deposit amout but strangely on 10.11.2014 he received letter from opposite party that he had general lien on the deposit and as complainant has not cleared the loan account No. CCCK/01/050002 and letter dated 20.11.2014 to set off the fixed deposit which is under challenged before this Forum as per complaint No.CC.428/2014. The claim of opposite party is barred by time and had no force of law. Opposite party cannot exercise general lien. The said loan of complainant secured by pledging immovable properties at Balnadu Village of Puttur Taluk as per S.No:310 in extent 1.41 acres, 99/2A in extent 0.97 cents and 99/2B in extent 1.40 acres of land there is sufficient security for realization of the loan amount, opposite party cannot exercise general lien over the deposit and not followed the rules before exercising the general lien as opposite party did not pay the amount despite legal notice. Hence seeks remedy.
II. Opposite party in the written version contends that general lien on the loan towards sum due towards the loan in respect of the loan on matured value near during pendency of CC No.428/2014 against opposite party filed by the complaint there is no ground for filing the present complaint as the said complaint is still pending. Considering this complaint is premature hence seeks dismissal of the complaint.
2. In support of the above complainants Mr. N.T. Rajgopal filed affidavit evidence as CW1 and answered the interrogatories served on him and produced documents got marked Ex.C1 to C6 as detailed in the annexure here below. On behalf of the opposite party Mr. Ibrahim (RW1) Branch Manager also filed affidavit evidence and answered the interrogatories served him.
III. In view of the above said facts, the points for consideration in the case are:
- Whether the Complainant is a consumer and the dispute between the parties?
- If so, whether the Complainant is entitled for any of the reliefs claimed?
- What order?
The learned counsels for both sides filed notes of arguments. We have considered entire case filed on record including evidence tendered by the parties and notes arguments of the parties. Our findings on the points are as under follows
Point No. (i): Affirmative
Point No. (ii): Affirmative
Point No. (iii): As per the final order
REASONS
IV. POINTS No. (i): The relationship of consumer and service provider between the depositor and bank where the amount is deposited and that opposite party adjusted the amount of the FD under general lien which was objected by complainant and thereby dispute between the parties is established as contemplated under section 2 (1) (e) of the C P Act. Hence we answer point No.1 in the affirmative.
POINTS No. (ii): The facts and dispute except the question of opposite party’s are admitted. Bankers do have general lien under Section 171 of Indian Contract Act under section 171 reads thus:
171. General Lien of bankers, factors, wharfingers, attorneys and policy brokers. Bankers, factors, wharfingers, attorneys of a High Court and policy brokers may, in the absence of a contract to the contrary, retain, as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
2. The learned author T.S Venkatesa Iyers on the Law of Contracts and Tenders 7th edition 2nd volume page 526 in respect of Bankers Lien by referring to a judgment rendered by Kerala High Court In Union Bank of India vs. K. V. Venugopalam, one who kept a fixed deposit in the bank has this to say and other case laws the following reads thus:
In Union Bank of India vs. K. V. Venugopalam, the Kerala High Court clarified as to when the doctrine of Banker Line would be pressed into service in these words. Money lodged in the banks as fixed deposit is a loan to the Bank. The banker in connection with the fixed deposits is a debtor. Money put in fixed deposit therefore constitutes a debt in the hands of the banker and a debt cannot be a suitable subject for a linen, because a lien is a right recognised in a creditor to retain another mans property until the debt is paid. The bank being a debtor in respect of the money in fixed deposit had no right to press into service the doctrine of bankers lien and retain the money in fixed deposit. Subject to the condition of acting in good faith, the banker will not be affected by the customers infirmity of title, where the securities are negotiable, though, where they are non-negotiable, he will have to take them subject to equities.
Thus on going through the above it is clear that in respect of fixed deposit the banker is only a debtor with liability to return the amount on the maturity of the fixed deposits. The fixed deposit receipt is not a negotiation instrument. As such the contention of opposite party that the bank can claim benefit under section 171 of the Indian Contract Act is not tenable. The contention of that the general lien to adjust the funds due from opposite party a debtor to depositor i.e. the complainant visa vis the depositor the complainant cannot escape liability to refund the amount with accrued interest promised at the time of deposit. Hence when opposite party a service provider did not pay the amount of the fixed deposit to complainant there is definitely deficiency in service by opposite party to complainant. Hence we answer point No.2 in the affirmative.
2. As such opposite party shall be directed to pay Rs.63,122 with interest at 9% from 17.10.14 till the date of payment. Opposite party shall also be directed to pay Rs.15,000/ as compensation along with cost apart from directing to pay another sum of Rs.5000/ as advocates fee is just and proper.
POINTS No. (iii): Wherefore the following
ORDER
The complaint is allowed with cost. Opposite party is directed to pay Rs.63,122/ (Rupees Sixty Three thousand One hundred Twenty Two only) with interest at 9% from 17.10.14 till the date of payment.
2. Opposite party shall pay Rs.15,000/ (Rupees Fifteen thousand only) as compensation to complainant.
3. Advocate fee fixed at Rs.5,000/ (Rupees Five thousand only).
4. Payment shall be made within 30 days from the date of this order.
Copy of this order as per statutory requirements, be forwarded to the parties free of cost and file shall be consigned to record room.
(Page No.1 to 7 directly typed by steno on computer system to the dictation of President revised and pronounced in the open court on this the 3rd March 2017
MEMBER PRESIDENT
(LAVANYA M. RAI) (VISHWESHWARA BHAT D)
D.K. District Consumer Forum D.K. District Consumer Forum
Mangalore. Mangalore.
ANNEXURE
Witnesses examined on behalf of the Complainant:
CW1 Mr. N.T. Rajgopal
Documents marked on behalf of the Complainant:
Ex.C1: 10.04.2013: Copy of the Fixed Deposit
Ex.C2: 10.11.2014: Notice of general lien of the OP
Ex.C3: 20.11.2014: Notice of setoff by the OP
Ex.C4: 02.02.2015: O/C of the Regd. lawyer’s notice
Ex.C5: 03.02.2015: Postal Acknowledgement of Op
Ex.C6: : R.T.Cs. (3)
Witnesses examined on behalf of the Opposite Parties:
RW1 Mr. Ibrahim, Branch Manager
Documents marked on behalf of the Opposite Parties:
Nil
Dated: 03.3.2017 PRESIDENT
