JUSTICE SUDIP AHLUWALIA, MEMBER

 

2. The factual background, in brief, is that the Complainant maintained a Savings account with the Respondent No. 1/Bank, operated in accordance with standard banking procedures and bylaws. The Respondent No. 3, acting as a guarantor for the Respondent No. 2, executed a memo guarantee certificate (Nirdharit Prapattra) by depositing the original title deed of his property with the Respondent No. 1. The Complainant was to receive an amount of Rs. 8,35,000/- at an annual interest rate of 24% from the Respondent No. 2. To this end, the sum of Rs. 8,35,000/- was deposited into the Complainant's account with the consent of the Respondent No. 2. Subsequently, the Complainant issued a cheque for Rs. 2,33,000/- in favour of one Surender Kumar on a day when his savings account held a balance of Rs. 8,35,000/-. Despite sufficient funds, the cheque issued by the Complainant was dishonoured, and the Complainant was notified of this on 10.07.2009. The Respondent No. 1, allegedly in collusion with the Respondent No. 2, froze the Complainant's account without prior notice. The Respondent No. 1's arbitrary exercise of power constitutes a deficiency in service, causing the Complainant not only financial loss but also reputational damage. Upon visiting the Bank on 21.08.2009 for an inquiry, the Complainant was provided with a photocopy of a notice indicating a lien on his account. The Respondent No. 1 acted arbitrarily, despite lacking the legal authority to perform such an act. Distressed by the deficient service, the Complainant lodged his complaint before the District Forum, Sriganganagar.  

3. The District Forum vide its Order dated 20.12.2012 dismissed the complaint. Aggrieved with the Order of the District Forum, the Petitioner filed Appeal before the Ld. State Commission, which vide the impugned Order dated 16.05.2017 dismissed the same, and upheld the Order of the District Forum. The relevant extracts of the impugned Order are set out as below – 

“…An amount of Rs 8,35,000 was deposited in complainant’s account, the complainant was also guarantor. The property which was secured against bank guarantee, same was invoked. Bank was entitled to freeze the account of the complainant to recover its dues/debts, same was done by bank.

In the aforesaid circumstances, there is no deficiency of service on the part of Opp. Party no. 1. There is no infirmity in the dismissal order passed by the Ld. Consumer forum, therefore, this present appeal is liable to be dismissed. Hence, the present appeal is being dismissed.”

 

4. Ld. Counsel for Petitioner has argued that the Petitioner was neither a constituent nor a guarantor of the partnership firm. The firm discharged its obligation of Rs. 8,35,000/- to the Petitioner by issuing a cheque against its liability, which was issued with the concurrence of all the partners. The cheque was deposited by the Petitioner in his savings account and was subsequently honoured by the Respondent No. 1. The cheques bore the signature of the Petitioner as he was an authorized signatory on behalf of the partnership firm, and due to the invocation of bank guarantees by the District E-Mitra Society, the Respondent No. 1 initially froze the Petitioner's savings account and subsequently offset the amount in his savings account against the liability of the partnership firm, justifying that the amount was transferred from the firm's account to his account with the intention of thwarting the recovery of the due amount; That the Bank acted unlawfully, bypassing all procedures and arbitrarily exercising administrative powers, which constitutes a deficiency in service; That the impugned Order contradicts the "General Principle of Lien and/or Set Off" under Banking laws. To offset any liability towards any account of any individual/company/firm, mutuality is crucial to the validity of a set off, and in order for one demand to be offset against another, both must mutually exist between the same parties; Hence the impugned Order is liable to be set aside.

5. Ld. Counsel for Respondent No. 1 has argued that the impugned Order has correctly dismissed the Appeal and upheld the Order of the District Forum, dismissing the Complaint, as the Petitioner had illegally transferred an amount of Rs. 8,35,000/- from the Current Bank account of the Respondent No. 2 to his own Savings Account maintained with the Respondent No. 1 Bank. The transfer was made with the intention to obstruct the recovery of legitimate dues by the Bank from the Respondent No. 2; That the Petitioner himself has conceded that he was the authorized signatory of the Respondent No. 2, and had signed the cheque in his favour, following the invocation of the Bank Guarantee of the Respondent No. 2 by the beneficiary, i.e., District E-Mitra Society; That the Petitioner has failed to provide any statement or any other documentary evidence to support his claims that an amount of Rs. 8,35,000/- was due and recoverable by him from the Respondent No. 2; That the Petitioner was adequately notified via a letter dated 21.08.2009 by the Respondent No. 1, informing about the exercise of a banker's lien on his Savings Account; That given the unique circumstances of the case, the freezing of the Petitioner's Bank account and the debit of the amount therein for the recovery of the amount due from the Respondent No. 2 was legally valid and permissible; That the Petitioner has failed to prove any conspiracy on the part of the Respondent No. 1 and Respondent No. 3 against him.

6. Ld. Counsel for Respondent No. 3 has argued that the Petitioner has admitted to transferring amounts of Rs. 12,90,000/- and Rs. 8,35,000/- via two cheques and this establishes that the Respondent No. 1 is entitled to recover a loan amount of Rs. 20,00,000/- from the Respondent No. 2, which was paid to the District E-Mitra Society in the form of a Bank guarantee; That the Petitioner orchestrated this fraudulent transfer to prevent this recovery and upon becoming aware of this, the bank froze the Petitioner's account to facilitate the recovery. Therefore, there is no deficiency on the part of the Bank, and the Petition is liable to be dismissed. 

7. This Commission has heard both the Ld. Counsel for Petitioner and Respondents, and perused the material available on record.

8. It is not in dispute that the Petitioner himself was the Authorised Signatory for the Bank Account of the Opposite Party No. 2- M/s. Bajranj Lal Suresh Chand & Associates. He is therefore presumed to have been well aware that the Bank Guarantee of Rs. 20.00 lakhs could be realised by debiting that amount from the aforesaid Account. Nevertheless he transferred amounts of Rs. 12.90 lakhs and Rs. 8.35 lakhs by using two cheques which, prima facie, would indicate that it was done with a view to prevent invocation of the Bank Guarantee by District E-Mitra Society.

9. In the circumstances, as per Section 171 of the Indian Contract Act, the Bank was well within its right to ensure that it may not suffer any financial loss due to such wrongful withdrawal of the amount by the own Authorised Signatory of the particular Bank Account against which the Bank Guarantee had been provided, as the Bank undoubtedly had a general lien over the amounts in both the Accounts of the Opposite Party No. 2 as the Petitioner/Complainant himself, which were also maintained in the self-same Branch.  Both the Ld. Fora below were therefore justified in holding that there was no illegality on the part of the Bank because the Complainant’s own act was clearly an attempt to thwart invocation of the Bank Guarantee against the Opposite Party/ Respondent No. 2.

10. It is well settled that in its revisional jurisdiction, this Commission cannot go into re-appreciation of evidence in a case of concurrent findings, and the scope available to this Forum in its revisional jurisdiction is very limited. The Hon’ble Apex Court in “Rajiv Shukla Vs. Gold Rush Sales and Services Ltd. & Anr., Civil Appeal No. 5928 of 2022, decided on September 8, 2022”; in this regard has observed inter alia –

 “7.1 At this stage, it is required to be noted that on appreciation of evidence on record the District Forum as well as the State Commission concurrently found that the car delivered was used car.  Such findings of facts recorded by the District Forum and the State Commission were not required to be interfered by the National Commission in exercise of the revisional jurisdiction.  It is required to be noted that while passing the impugned judgment and order the National Commission was exercising the revisional jurisdiction vested under Section 21 of the Consumer Protection Act, 1986.  As per Section 21(b) the National Commission shall have jurisdiction to call for the records and pass appropriate orders in any consumer dispute which is pending before or has been decided by any State Commission where it appears to the National Commission that such State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise a jurisdiction so vested, or has acted in the exercise of its jurisdiction illegally or with material irregularity.  Thus, the powers of the National Commission are very limited.  Only in a case where it is found that the State Commission has exercised its jurisdiction not vested in it by law, or has failed to exercise the jurisdiction so vested illegally or with material irregularity, the National Commission would be justified in exercising the revisional jurisdiction.  In exercising of revisional jurisdiction the National Commission has no jurisdiction to interfere with the concurrent findings recorded by the District Forum and the State Commission which are on appreciation of evidence on record.  Therefore, while passing the impugned judgment and order the National Commission has acted beyond the scope and ambit of the revisional jurisdiction conferred under Section 21 (b) of the Consumer Protection Act.”

11. Again in Mrs. Rubi (Chandra) Dutta Vs. M/s United India Insurance Co. Ltd., Civil Appeal No. 2588 of 2011, decided on 18.3.2011, the Apex Court had set aside the decision of this Commission by virtue of which the concurrent decisions of the Ld. District Forum and the State Commission, which had gone in favour of the Complainant, were set aside with the following observations –

“23. Also, it is to be noted that the revisional powers of the National Commission are derived from Section 21 (b) of the Act, under which the said power can be exercised only if there is some prima facie jurisdictional error appearing in the impugned order, and only then, may the same be set aside. In our considered opinion there was no jurisdictional error or miscarriage of justice, which could have warranted the National Commission to have taken a different view than what was taken by the two Forums.  The decision of the National Commission rests not on the basis of some legal principle that was ignored by the Courts below, but on a different (and in our opinion, an erroneous) interpretation of the same set of facts.  This is not the manner in which revisional powers should be invoked.  In this view of the matter, we are of the considered opinion that the jurisdiction conferred on the National Commission under Section 21 (b) of the Act has been transgressed.  It was not a case where such a view could have been taken by setting aside the concurrent findings of two fora.”

 

12. Consequently, this Commission finds no grounds whatsoever to interfere with the concurrent decisions of both the Ld. Fora below.  The Revision Petition is therefore dismissed.  Parties to bear their own costs. 

13. Pending application(s), if any, also stand disposed off as having been rendered infructuous.