Delhi

StateCommission

FA/1261/2013

HDFC BANK LTD. - Complainant(s)

Versus

O.P. CHAUDHARY - Opp.Party(s)

27 Mar 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

 

Date of Decision:27.03.2017  

 

 

First Appeal- 1261/2013

 

(Arising out of the order dated 28.05.2012 & 07.10.13 passed in Execution Petition No.171/2011 in Complainant Case No. 632/2006 by the District Consumer Disputes Redressal Forum (VI), Vikas Bhawan, New Delhi)

 

 

HDFC Bank Ltd.,

Through its Managing Director,

Having its office at

Kasturba Gandhi Marg,

New Delhi.

        ….Appellant

 

 

Versus

 

O.P. Chaudhary,

Son of Late Shri L.D. Chaudhary,

Resident of 9, Birbal Road,

Jangpura Extn.,

New Delhi-110 014.

                                                                                       ….Respondent

 

 

CORAM

Justice Veena Birbal, President

Salma Noor, Member

 

1.     Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. Aggrieved with the orders dated 28.5.12 & 7.10.13 passed by the Consumer Disputes Redressal Forum (VI), Vikas Bhawan, New Delhi (in short, “the District Forum”) in Execution Petition No.107/11, the present appeal is filed by the appellant/OP.
2. The background leading to the filing of present appeal is as under:

 

                 A complaint under Section 12 of the Consumer Protection Act, 1986 (in short, the “Act”) was filed by the respondent herein i.e. complainant before the District Forum stating therein that he is running a regular account with appellant/OP bank for the past many years.  In the year 2003, he had approached appellant/OP bank for overdraft facility.  After much persuations, the appellant/OP agreed to the said request of respondent/complainant. For availing overdraft facility, the respondent/complainant had pledged LIC policies which were four in number i.e. 110059920, 50352803, 110059921 & 110078483 respectively.  It was alleged that the respondent/complainant regularly paid towards the overdraft to the appellant/OP.  In the month of August/September 2003,   the respondent/complainant asked the appellant/OP to give the entire details of loan account so that the same could be settled and also asked for the release of LIC policies.  The appellant/OP did not give the necessary details.  It was alleged that the appellant/OP had been receiving the amount due on the policies as all the policies were Money Back Policies and the respondent/complainant was to get the refund.  It was alleged that the appellant/OP deliberately and with malafide intention was adjusting the amount in the loan account despite the fact that the respondent/complainant had been paying money against overdraft regularly.  The respondent/complainant had sent various reminders for the release of policies.  But the same were not released.  Ultimately a complaint before the Ld. District Forum was filed by the respondent/complainant alleging deficiency in service on the part of appellant/OP.  A prayer was made seeking directions to the appellant/OP to release the LIC policies and to give the final figure of overdraft account.  The respondent/complainant also prayed compensation for causing mental harassment and litigation cost.

3. The aforesaid complaint was contested by the appellant/OP by filing written statement wherein pledging of four policies by respondent/complainant for taking overdraft facility was admitted.  It was alleged that the respondent/complainant had violated the terms and conditions of the overdraft facility and was not entitled for any relief.
4. Both the parties filed evidence before the Ld. District Forum in the form of affidavits.  The complaint was decided by Ld. District Forum vide order dated 6.12.07 wherein the following directions were issued:

“1.        OP is directed to release the LICs policies and give final figures of the overdraft account so that the same is settled by the complainant.  It be done within seven days.

 

2.         OP was deficient in service and caused mental agony and harassment to the complainant, for which OP will pay Rs.10,000/- to the complainant.

 

3.         OP will pay Rs.1,000/- to the complainant towards cost of litigation.

 

            This order be complied with within 30 days.”

 

5. The aforesaid order was challenged by the appellant/OP before this Commission by filing FA No.147/08.  The said appeal was dismissed vide order dated 5.10.10 and the order of the Ld. District Forum was affirmed.  The appellant/OP challenged the aforesaid order of State Commission in National Commission by filing Revision Petition No.154/11.  The said revision petition was also dismissed on 13.5.11.  Accordingly the order dated 6.12.07 allowing the complaint case by Ld. District Forum had become final.
6. The respondent/complainant had filed Execution Petition No.171/2011 seeking execution of order dated 6.12.07 passed in CC No.632/2006.  The appellant/OP filed an application in the aforesaid execution petition for bringing to the notice of the Ld. District Forum that it was not possible for the appellant/OP to release the LIC policies as per the order of the District Forum as the said policies had already been surrendered.  It was alleged that on 30.1.09, the respondent/complainant had to pay a sum of Rs.4,48,974.09 and the surrender value of the policies was Rs.3,21,078/- and even after adjusting the surrender value of the policies, the respondent/complainant had still to pay outstanding of Rs.1,27,896/-.  It was, therefore, prayed that application be allowed and the amount released from the policies be allowed to be adjusted in the outstanding amount which appellant/OP bank had to take from respondent/complainant.  It was stated that the appellant/OP was willing to pay the compensation and cost as awarded by the Ld. District Forum.
7. The aforesaid application was dismissed by the Ld. District Forum vide order dated 28.5.12.  The relevant portion of the order is reproduced as under:

“It is shown that one policy was surrendered on 28.1.2003, 2^nd policy on 8.12.2003, other on 18.7.2007, and last on 30.1.2009.  The surrender of last policy on 30.1.2009, after the order of Forum before finalizing of judicial process, amounts to contempt.  Even for the earlier three policies, surrendered the Forum, and State Commission faulted OP, for acting without consent, when complainant was ready to settle the small outstanding amount of Rs.5,787.16 paise.  The Ld District Forum, directed the policies to be returned but it was not possible, as policies had already been surrendered.  This part of the Forum’s order thus cannot be complied by OP, in terms of order.  In these circumstances, to do equity the OP should return the benefit drawn by it, by returning Rs.38,884/- against policy surrendered on 28.1.2003, Rs.69,906/- against policy surrendered on 8.12.2003, Rs.1,10,058/- against policy surrendered on 18.7.2007, and Rs.1,02,200/- for policy surrendered on 30.1.2009, totaling to Rs.3,21,048/-.

 

For contempt committed by selling policy on 30.1.2009, after order of Forum, while holding guilty OP of contempt, give opportunity to OP to purge the contempt by paying Rs.5 lakh to place complaint in the original position approximately.

 

In case of OP does not agree to purge itself of complaint in terms of above order, a reference shall be made to Hon’ble High Court for taking contempt proceedings.”

 

8. By the aforesaid order, Ld. District Forum observed that three policies were surrendered prior to passing of order dated 6.12.07 in CC No.632/2006.  However, the fourth policy was surrendered after passing of the aforesaid order of the District Forum.  By doing so, the appellant/OP had committed contempt by selling the last policy on 30.1.09 after the order of the Forum and gave an opportunity to appellant/OP to purge the contempt by paying Rs.5 lacs to place the respondent/complainant in original position and also ordered for the return of the benefits drawn by appellant/OP from the aforesaid policies.  The aforesaid order was not complied by appellant/OP.
9. Thereafter on the application of respondent/complainant, the Ld. District Forum issued notice to appellant/OP to appear on 17.8.12 and to show cause as to why the orders passed by the District Forum were not complied with.  Thereupon the appellant/OP had filed reply/objections to the execution petition reiterating the stand taken in the written statement as well as contents of earlier application dated 17.1.12 were reiterated stating its inability to comply with the order dated 6.12.07.  The appellant/OP also filed additional affidavit giving the details of total surrendered value of the policies and overdraft account of the respondent/complainant to show outstanding against respondent/complainant.  The said application was dismissed by the Ld. District Forum vide its order dated 7.10.13.  The aforesaid order reads as under:

“After passing of order on Execution dated 28.5.2012, the OP has sought to reagitate its case by moving an application dated 30.1.2013, to show that some amount is still outstanding against D.H. in overdraft Account.  The reply was taken from D.H.

 

We have heard both the parties.  The application is simply non-maintainable after OP had availed all legal remedies of appeal and revision in National Commission.  Any fresh material that could have been urged in Appeal or Revision cannot be urged now, and by principles of res-judicata, this Forum cannot entertain any plea of outstanding dues etc., OP has to bear and forget it.  Its applicant dated 30.1.2013 is dismissed.

 

OP has not complied the original order passed by Ld. Predecessor, by paying the cash compensation and litigation charges so far, nor it has obeyed the order of this Forum on 28.5.2012 in respect of equitable compensation for selling policy without consent and during pending of case and order to purge contempt by paying Rs.5 lakhs on that account as ordered in order of 28.5.2012.

 

In the circumstances, we direct OP to forthwith comply uncomplied order of earlier President dated 6.12.2007 and order of 28.5.12.  Falling which N.B.W of Executive Director of OP will be issued.

 

Copy of the order be sent to the parties free of cost.”

 

10. By the aforesaid order, Ld. District Forum observed that the appellant/OP had availed all the legal remedies against main order dated 6.12.07 up to National Commission, as such any fresh material could not be urged and the application to show the details of overdraft account was not maintainable.  It was held that Forum cannot entertain the plea of outstanding amount and appellant/OP had to bear and forget it.  The District Forum directed appellant/OP to comply with directions given in original order dated 6.12.07 and order dated 28.5.12 failing which Non Bailable Warrants of Executive Director of appellant/OP would be issued.
11. Aggrieved with the aforesaid two orders i.e. order dated 28.5.12 and 7.10.13, present appeal is filed.
12. Ld. Counsel for the appellant/OP has submitted that the Ld. District Forum wrongly passed the order dated 28.5.12.  It is contended that three policies had already been surrendered when order dated 6.12.07 was passed in CC No.632/2006.  It is stated that fourth policy had matured after passing of the order of the Ld. District Forum and the maturity proceeds had come automatically from the LIC to the account of respondent/complainant and no act was done by the appellant/OP.  No contempt was committed by appellant/OP.  In these circumstances, Ld. District Forum was not justified in passing the order dated 28.5.12.  It is contended that order dated 7.10.13 is also wrongly passed.  By the aforesaid order, the District Forum has modified the original order dated 6.12.07 passed in CC No.632/2006.  It is contended that benefits of policies have gone to the account of respondent/complainant.  In these circumstances, Ld. District Forum could have adjusted the amount in the overdraft account of respondent/complainant.
13. On the other hand, Ld. Counsel for respondent/complainant has submitted that challenge to the order dated 28.5.12 is time barring.  It is submitted that the appeal is filed on 28.10.13.  It is submitted that there is a delay of one year and four months and as such the aforesaid order has already attained finality.
14. We may mention that appellant/OP ought to have challenged the aforesaid orders by filing separate appeals.  Both the orders cannot be challenged in one appeal.  In any event, we have considered the submissions made.  The appeal is not accompanied by any application for condonation of delay.  There is a substantial delay in challenging the order dated 28.5.12 which has remained unexplained.  A valuable right has already accrued in favour of respondent/complainant due to inaction on the part of appellant/OP.  It will be inappropriate to take away such a right of respondent/complainant. In these circumstances, the challenge to aforesaid order is not maintainable being time barring.
15. As regards the impugned order dated 7.10.13, the Ld. District Forum has rightly held that application was not maintainable when appellant/OP had availed remedy up to National Commission by challenging original order dated 6.12.07 passed in CC No.632/2006.  By the aforesaid impugned order, the District Forum has only directed the appellant/OP to comply with the original order dated 6.12.07 and order dated 28.5.12, failing which Non Bailable Warrants will be issued. There is no illegality in   issuance of Non Bailable Warrants against Executive Director of appellant/OP.  Further the same have to be issued only in case of non-compliance of directions given by Ld. District Forum.  However, in the aforesaid order, the Ld. District Forum has also ordered that appellant/OP has to forget the outstanding.  By giving said direction, Ld. District Forum has exceeded its jurisdiction in as much as no such direction is there in the main order dated 6.12.07 whereby CC No.632/2006 was allowed.  In the main order, the Ld. District Forum has given directions to the appellant/OP to give final figures of the overdraft account so that the same is settled by the respondent/complainant.  In these circumstances, the direction given by Ld. District Forum to appellant/OP in execution proceedings to bear and forget outstanding is beyond its jurisdiction.  Accordingly the aforesaid direction is set aside.  The impugned order stands modified to aforesaid extent only.  The other directions given in the aforesaid order are upheld.
16. Appeal stands disposed of accordingly.
17. A copy of this order as per the statutory requirement be forwarded to the parties free of charge and also to the concerned District Forum.  The record of the District Forum be also sent back forthwith. Thereafter, the file be consigned to Record Room.

 

(Justice Veena Birbal)

President

 

 

(Salma Noor)

Member