BEFORE THE DISTRICT CONSUMER DISPUTES
REDRESSAL FORUM, JALANDHAR.
Complaint No.394 of 2015
Date of Instt. 07.09.2015
Date of Decision: 26.04.2017
Jyoti Sarup age 67 years S/o Late Lahori Mal R/o House No.414, J.P. Nagar, Jalandhar Mobile No.94638-46011
..........Complainant
Versus
1. M/s Indusind Bank 10-R Model Town, Mall Road, Jalandhar (Punjab) through its Principal Officer.
2. Miss Komal Khurana employee M/s Indusind Bank 10-R Model Town, Mall Road, Jalandhar. .........Opposite parties
Complaint Under Consumer Protection Act.
Before: Sh. Karnail Singh, (President),
Sh. Parminder Sharma (Member)
Present: Sh. Rajneesh Dev, Adv Counsel for complainant.
Sh. Vinay Kant, Adv and Sh. Amit Shekri, Adv Counsel for OP No.1 and 2.
Order
Karnail Singh (President)
1. The instant complaint presented by complainant, wherein stated that he is maintaining Saving Bank Account No.157696546011 and 100004078378 with OP No.1, as such he is consumer under the Law. That on 07.05.2015, complainant alongwith his wife Raj Rani went to the office of OP No.1 in connection with FDR deposit, in this connection he met OP No.2 being employee of OP No.1 being dealing hand.
2. That OP No.2 cancelled previous sweeping FDR Account of complainant and made a new FDR bearing interest of 11.50% per annum as she claimed a scheme in the bank. When the complainant suspected high rate of interest, she said it is correct information and the complainant may transfer saving bank funds in new FDR, on this assurance, the complainant agreed, OP No.2 took signature on papers related to OP No.1 for FDR of Rs.3,00,000/-. That after few days the complainant demanded the documents of new FDR from OP No.2 she told that she had parked the funds of the complainant in Reliance Mutual Fund-Tax Saving of Rs.3,00,000/- without consent and knowledge of the complainant. The funds are lying locked for three years, OPs have mentioned wrong mobile number, wrong name of nominee, wrong address of complainant on Reliance Mutual Funds so that the company may not contact with the complainant.
3. That after coming to know about malpractices by the OPs, the complainant met with the OPs, on making complaint, OP No.2 gave in writing “ I will commit you, I will return you within month & full amount credit to your account”. Due to non compliance of undertaking a notice dated 16.05.2015 was issued through E-mail, on this Bank Manager gave assurance that losses be met with. The OPs have played malpractice, committed misdeeds with public for their personal deeds, which amounts to unfair trade practice and deficiency of service. As such the present complaint filed with the prayer that OPs may be directed to return/transfer Rs.3,00,000/- in the saving account of complainant i.e. 157696546011 and 100004078378, along with interest @ 24% p.a. on Rs.3,00,000/- from 07.05.2015 till realization in the bank account of the complainant and further OPs may be directed to pay Rs.50,000/- as compensation and Rs.11,000/- as litigation expenses with interest 24% p.a. till realization.
4. Notice of the complaint was given to opposite parties and accordingly OP No.1 and 2 filed joint reply and contested the complaint of the complainant by taking a preliminary plea that the complainant is not a consumer of OPs because OP No.1 and 2 has to do nothing with the present dispute being raised by the complainant. The complainant out of his sweet free will invested in Reliance Mutual Funds after going through the Application Form, offer document, product brochure as provided by mutual fund company and has signed the application form for purchase of mutual fund. The application form duly signed by the complainant is placed on the file. OP No.1 has only acted as intermediate for reference of complainant to mutual fund company. Moreover, the complainant reiterated the facts that he invested in mutual fund of his own will by issuing a satisfaction letter dated 25.05.2015 in favour of the bank. It is matter of fact that the mutual funds are subject to market risks and the investment in the said funds are speculative transactions and do not fall under the purview of Consumer Protection Act. Besides this, the OP No.1 and 2 are not having any other role in the dealing between the complainant and the mutual fund company. After the sale of the mutual funds entire services pertaining to the said investment are to be provided by the mutual fund company and not by the OPs. So, this being the case, the complaint against the OP No.1 and 2 is misconceived and not maintainable and is liable to be dismissed and further alleged that the complaint of the complainant is a gross misuse of the process of law and same is liable to be dismissed with costs and even the complaint of the complainant is false, frivolous and unsustainable both in law and on facts and even no cause of action has arisen in favour of the complainant against the OPs and further alleged that there is no privity of contract between complainant and OP No.1 and 2 and therefore the present complaint is liable to be dismissed. It is further submitted that there is no negligence or deficiency on the part of the OPs in rendering services to the complainant and therefore the present complaint is liable to be dismissed. On merits, Para No.1 and 2 admitted as matter of record but remaining allegations of the complaint are categorically denied.
5. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of the complainant Ex.CA and additional affidavit Ex.CB alongwith some documents Ex.C1 to Ex.C7 and closed the evidence.
6. Similarly, Counsel for the OP No.1 and 2 tendered into evidence affidavit Ex.OP-1 and some documents Ex.OP-2 and Ex.OP-3 and closed the evidence on behalf of OP No.1 and 2.
7. We have heard the learned counsel for the respective party and also gone through the case file very minutely.
8. In this case, the first question raised by the learned counsel for the complainant is that the OP has brought on the file one letter Ex.OP3 dated 25.05.2015, but the said letter was never written by the complainant to the OP nor it was scribed by the complainant, the reference of the said letter has first come in the reply of the OP and accordingly the complainant rebutted the said letter through his additional affidavit Ex.CB by stating that the said letter is not in the hand writing of the complainant rather it was prepared in his absence. It is a forged and fabricated document and make a request that an appropriate criminal action be taken against the OP No.2 and in support of this version, the counsel for the complainant has referred a judgment of Hon'ble State Commission cited in A.I.R. 2008 Allahabad 120 Prahlad Kumar Gupta and Another Vs. State of UP and Others. On the same point, he further made reliance a judgment of Hon'ble High Court of Jammu and Kashmir cited in 2015(4) R.C.R (Civil) 414 Oriental Insurance Company Limited and Others Vs. Safa-ul-Ganai and Others.
9. We have considered the submissions of learned counsel for the complainant and also gone through the case file as well as judgments referred by him and find that no doubt if it is established on the file that a forged and fabricated document is produced on the file then an inquiry can be ordered under Section 340 Cr. P.C to be conducted and then the criminal proceedings can be initiated but we have to see whether in this case, the complainant is able to establish that the said letter Ex.OP3 is false and fabricated document. For that purpose, the complainant has not brought on the file any cogent and convincing evidence rather if we go through the said letter and compared the signature of the complainant with the signature on complaint then we can say without any hesitation that the said letter Ex.OP3 is signed by the complainant though the wording of the letter is not with the hand writing of the complainant but it is natural phenomenon that whenever any educated person put his signature on any paper then he must go through the contents of that document but it is not acceptable, plausible to accept that the said letter Ex.OP3 was ever got the signature of the complainant on a blank paper. So, from any angle it is not established that the said document is forged and fabricated.
10. Further the counsel for the complainant make much stress on the document Ex.C5 and alleged that through this document OP No.2 gave undertaking that she will return the whole amount by depositing in the account of the complainant but we think it is primary duty of the complainant to establish that the said document Ex.C5 is signed by the OP No.2 but there is not even Iota of evidence available on the file to prove that the said document Ex.C5 is signed by OP No.2. So, question for giving any undertaking by OP No.2 is not established.
11. Apart from above, there is an other legal aspect in this case which requires deep discussion, admittedly in this case the complainant himself filed a document Ex.C1 which is a complaint filed by the complainant before Bank Ombudsman, Chandigarh, so, it means when the complainant has already made a complaint to Ombudsman then the second complaint in Consumer Forum is not maintainable, though under Section 3 of the Consumer Protection Act, it is additional remedy with the party to file a complaint in the Consumer Forum but if he has not availed the other remedy but in this case, the complainant himself brought on the file a document Ex.C1 which itself shows that the complainant has already availed the remedy to file a complaint before Ombudsman and as such we find the present complaint is not maintainable.
12. So, for the concern of main relief of the complainant that his amount of Rs.3,00,000/- from his accounts was transferred by OP No.2 in a Reliance Mutual Fund tax saving without the consent and knowledge of the complainant, because the complainant has agreed to transfer the said amount for making a new FDR but the OP No.2 cleverly converted the said amount into Reliance Mutual Fund, this submission of the complainant is not admissible or acceptable because if we go through the application form, it is required to be filled at the time of purchase Reliance Mutual Fund policy then it is established that the said document is apparently signed by the complainant and the plea of the complainant that only second page has been shown to the complainant where got his signature but from that page, we can easily assess that the form is not for getting FDR rather it is for Reliance policy. So, the version of the complainant that wrongly and illegally his amount was invested in the mutual fund is not established, so for the question of not providing investment advisory services without getting registered with SEBI as per regulations 2013 but if the OP Bank has given investment advice to the complainant without any registration or license then appropriate action can be taken against the bank under the said act of SEBI not in this case.
13. Coming to an other legal aspect which has raised by the OP in the written statement that the complainant has purchased reliance mutual fund tax saving policy which is virtually based on market risk and investment in the said fund are speculative transaction and do not fall under the purview of the Consumer Protection Act. This version of the OP is apparently correct because if we go through the document produced by complainant himself i.e. Ex.C2 and on the reverse side of the page, it is categorically mentioned that mutual fund investment are subject to market risk. So, it means the investment allegedly made by the complainant in market share which may rise or down, if so then it is absolutely covered under the purview of commercial purpose and if so then the complaint of the complainant before Consumer Forum is not maintainable.
14. In the light of above detailed discussion, we do not find any force in the argument of the learned counsel for the complainant. Therefore, the complaint of the complainant is dismissed. Complaint could not be decided within stipulated time frame due to rush of work.
15. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.
Dated Parminder Sharma Karnail Singh
26.04.2017 Member President
