F.A.No. 372 OF 2006 AGAINST C.D.No.116 OF 2005
 DISTRICT FORUM MAHABUBNAGAR

Between:

C.S.Kumar S/o late Sri Krishnama Charyulu
Age 57 yrs, Occ: Legal Practitioner,
R/o H.No.11-65, Marlu, Near Teacher’s Colony,
Mahabubnagar.
                                                                   Appellant/complainant

A N D

1.    Manager, Canara Bank
Mahabubnagar Branch

2.    Regional Manager,
Canara Bank,
Kurnool                                            Respondents/opposite parties

Counsel for the appellant               Sri N.Chandrahar Rao
Counsel for the respondent            Sri Deepak Bhattacharjee

          QUORUM:      SRI SYED ABDULLAH, PRESIDING MEMBER
                                                        &

                              SRI R.LAKSHMINARSIMHA RAO, MEMBER

                      FRIDAY THE FIFTH DAY OF JUNE                        

                                         TWO THOUSAND NINE

          Oral Order ( As per Sri R.Lakshminarsimha Rao, Member)

***

The unsuccessful complainant is the appellant. The appellant preferred the appeal being aggrieved by the order dated 10.01.2006 passed by  the District Forum, Mahabubnagar in C.C.No.116 of 2005 holding that the appellant is not entitled to claim the amount covered under Fixed Deposit Receipt  pertaining to  his  son.

          The facts of the case in brief are that the appellant  handed over two fixed deposit receipts bearing numbers  0115 dated 2-03-2002 for Rs.1,00,000/-  and 0327 dated 11-12-2001 for Rs.6,00,000/- for the purpose of overdraft loan facility to PHRM degree college, Mahabubnagar in the year 2001 and  on being informed  by the respondent no.1 that the  respondent no.2 had not accorded permission for overdraft facility , the appellant had pledged his FDR and informed the respondent no.1 in regard to the other FDR that it belongs to his son C.V.R.Praveen who had deposited the amount after raising educational loan no.1/2001 from Andhra Bank, Mahabubnagar and therefore lien cannot be made of his son’s deposit receipt. The FD pertaining to his son got matured on 11-12-2004.The Respondent no.1 did neither return the FDR nor did he pay the amount on maturity.  The amount covered under the FDR pertaining to the appellant, it was appropriated on 31.12.2004 towards the OD   loan account number 5562/2002  of PHRM degree college. The appellant had got issued two notices in the month of March, 2004 to the respondent no.1 and a notice to the respondent no.2. There was no reply from the respondents. The Hon’ble High Court disposed of the writ petition no. 25279 of 2004 filed by the appellant with a direction to  the Banking Ombudsman to dispose of the complaint of the appellant. The   Banking Ombudsman has not disposed of the complaint.

     The respondents contested the claim. It was contended that the appellant has no locus standi to file the complaint without authorization from his son C.V.Praveen. The Management of the PHRM college passed a resolution and requested the respondent no.1 to enhance their OD limit and offered three fixed deposit receipts worth Rs.11,00,000/- as security. The appellant was one of the members of the Committee. The respondent no.1 accepted the security and sanctioned OD limit up to Rs.10.4 lakh. Three fixed deposit receipts were kept as pledge for sanction of the loan and the same was done with the consent of the appellant. The appellant has filed a case no. 469/2004-2005 before the Banking Ombudsman for the same cause of action and the case was pending as on the date of filing the complaint. Hence, the complaint is not maintainable. The appellant had handed over the two FDRs through the secretary of the secretary of the college. There was pledge over the FD bonds , one belonging to the complainant and another of  his son and no fresh pledge is required. On receipt of the notice dated 31-01-2005 the respondent no.1 called the appellant to the bank and informed him that as the bonds were taken by the bank by creating lien over the same for the OD loan of PHRM college. The complainant is not a consumer. The contents of the complaint reveal that it required a detailed and elaborate enquiry. The secretary of the college is a necessary party and the complaint is bad for non joinder of necessary parties. There was no deficiency in service on the part of the respondents.

          Basing on the evidence i.e,  ExA1 to A21, and Exs.B1 to B16, the District Forum has dismissed the complaint holding the appellant as the consumer in regard to the FDR belonging to him and he is not the consumer so far as the FDR pertaining to his son.

          The points for consideration are

i)                   Whether the complaint is maintainable?

ii)                 Whether there was any deficiency in service on the part of the respondents?

iii)              To what relief?

POINT NO1:  It was held by the District Forum that the FDR 0327 dated 11-12-2001 for Rs.6,00,000/- was in the name of the son of the appellant C.V.Praveen who deposited the amount with Andhra Bank and repelled the contention of the appellant that he was a beneficiary of the service since the interest accrued on the deposit was credited to his account.   Before the District Forum the appellant attempted to establish that being the possessor of the FDR pertaining to his son and nominee appointed thereof, he would fit in the definition of the consumer. The District Forum rejected the contention holding that mere possession of the FDR and the complainant being the custodian of the FDR, he cannot claim to be consumer. It is true that the FDR was issued by Andhra Bank in the name of the son of the appellant. Hence, the son of the appellant C.V.Praveen only has the authority to deal with it. He has not raised any objection when his FDR was handed over to the Respondent No.1 by the appellant through the secretary of PHRM College. However, the silence on the part of the son of the appellant does not itself be a ground for the appellant to contend that he is a consumer.

          The appellant had not produced any evidence in support of his contention that the interest accrued on the deposit under the FDR pertaining to his son was credited to his account. The other limb of his argument that being the nominee appointed by his son for the FDR, he would still be a consumer does not stand to any reason since the role of the nominee under an FDR would come into picture only after the death of the depositor since during the life time of the depositor it is exclusively his authority to deal with the FDR but not the nominee. The District Forum has rightly held that in the capacity of the nominee and during the life time of the deposit holder,  the complainant cannot claim to be a consumer.

In regard to the authorization ExA-20 issued by the son of the appellant on 22-10-2005, the District Forum followed hyper technical approach holding that there was no authorization on 12-08-2005 on which date the complaint was filed. Admittedly, the son of the appellant had been to the USA on 22.10.2005,  it would consume time for the authorization to reach the appellant. The difference must be borne in mind where there is no authorization to file the complaint and the case where the authorization was obtained subsequent to the filing of the complaint. The view of the district forum that there was no authorization for the appellant to file the complaint as on the date of filing of the complaint is erroneous. The complaint is maintainable very much on the basis of the authorization issued by the son of the appellant.

POINT NO.2: The son of the appellant had consciously handed over his FDR to the appellant who in turn delivered it to the Secretary of PHRM College.  The Secretary of PHRM College handed over the FDR to the respondent no.1.  The respondent no.1 states that the appellant suppressed the fact that he was the member of the committee of the PHRM College and as such permitted the Secretary to pledge the FDRs pertaining to him and his son.  There is no denial of fact that in pursuance of resolution passed by the Committee of the College, enhancement for OD loan facility was approved by the respondents subject to furnishing of security by the committee of the college.  The three FDRs which inlcude the two FDRs pertaining to the appellant and his son were handed over to the respondent no.1.  However, the Third Party Letter of Pledge of Valuable Securities, Ex.A6 does not contain the signature of the son of the appellant.  Hence, the respondents have to show how they exercised their right of lien over the FDR pertaining to the son of the appellant.  At the same time it cannot be lost sight of the fact that the appellant had got issued legal notice through his advocate on 26.3.2004 stating that the FD bond pertaining to his son, the appellant kept it as security which was to be replaced with the property documents.  At the very outset it is to be noted that the appellant without any authority had kept the FDR of his son as security to the enhancement of OD facility of the PHRM College.  Secondly, the appellant claims that the FDR was to be returned on it being replaced with the title documents of immoveable property.  Except the legal notice there is no other evidence in support of the claim of the appellant for returning the FDR in question to him.  The appellant being not the owner of the document cannot claim it back from the respondents.  The son of the appellant who is the depositor and in whose name the FDR in question was issued is the proper person to seek for return of the FDR and even he is also cannot be held to be a consumer for the reason that he has not availed any service from the respondents.  The son of the appellant deposited the amount covered under the FDR with Andhra Bank, Medak Branch.  The Secretary, PHRM College had handed over the FDRs to the Canara Bank.  Therefore, the question of availing services by the son of the appellant from the Canara Bank does not arise.  The appellant had lodged complaint against the respondents and an FIR was issued u/s 406, 409 and 423 of IPC against the respondents.  The appellant has not stated as to what happened to the case.  In the circumstances  the rights of the respondents and that of the appellant over the FDR in question cannot be determined by a Consumer Forum.      He has to seek his remedy in the appropriate court of law.  So far as the part of the respondents is concerned, the  District Forum has rightly held that there was no deficiency in service on the part of the respondents.  Hence, the point is answered against the appellant. 

POINT NO.3: In the result, the appeal is dismissed confirming the order of the District Forum, Mahaboobnagar.  No costs. 

                                                                             PRESIDING MEMBER

                                                                                      MEMBER

                                                                     Dt.05.06.2009