BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.136 of 2015

Date of Instt. 01.04.2015

Date of Decision: 14.06.2017

1. Vijay Kumar Chopra son of Sh. P.N. Chopra,

2. Girish Chopra son of Sh. P.N. Chopra,

3. Devika Chopra d/o Sh. Girish Chopra,

4. Arjun Chopra son of Sh. Vijay Chopra,

All residents of 3322, Ist Floor, Sector 15-D, Chandigarh

..........Complainants

Versus

1. Oriental Bank of Commerce, H.O. Harsha Bhawan “E” Block, Cannaught Place, New Delhi, Through its Managing Director.

2. Oriental Bank of Commerce, B.O. New Railway Road, Jalandhar through its Branch Manager.

.........Opposite parties

Complaint Under the Consumer Protection Act.

Before: Sh. Karnail Singh (President)

Sh. Parminder Sharma (Member)

Present: Sh. DK Gupta, Adv Counsel for complainants.

Sh. Ashish Bhandari, Adv Counsel for OP No.1 and 2.

Order

Karnail Singh (President)

1. This complaint filed by complainants, wherein alleged that complainants deposited the following FDRs and NSCs with the OP Bank as security for grant of cash credit limit and overdraft limit to meet working capital requirements of M/s Chopra Industrial Complex with Punjab Co-op Bank, Railway Road, Jalandhar which was amalgamated with Oriental Bank of Commerce by Reserve Bank of India and Oriental Bank of Commerce had taken over all the assets and liabilities of erstwhile Punjab Co-op Bank. Details of which is as under:-

DETAILS OF KVP/NSCs

DETAILS OF FDRs

2. That OPs filed a recovery suit for Rs.1,15,945/- before the Civil Courts at Jalandhar against M/s Chopra Industrial Complex, EJ-236, Chahar Bagh, Jalandhar City and Others. The said suit was decreed by the Court of Smt. Manjinder Kaur, CJ(JD), Jalandhar vide judgment and decree dated 22.01.2007. That an appeal was filed against said judgment and decree by M/s Chopra Industrial Complex and Others, which was decided by the Court of Sh. Jatinder Pal Singh Khurmi, Addl. District Judge, Jalandhar vide judgment and decree dated 06.08.2011, whereby the claim of the bank was dismissed. In the said appeal, the version of the M/s Chopra Industrial Complex and Others was accepted by the Court and the account statement submitted in the suit i.e. Ex.D2, was admitted by the Appellate Court to be correct. In appeal, the Court categorically held that the FDRs and CDRs which were deposited by the complainant as security of loan granted as overdraft limit to M/s Chopra Industrial Complex were liable to be adjusted on the date of maturity but it was not done so as per accounts statement submitted by appellants.

3. That as per account statements which was submitted as Ex.D2 and accepted by the Court to be correct, the following FDRs and NSC/KVPs were not liable to be adjusted:-

FDRs

and the FDR (mentioned below) dated 09.11.1995 with maturity dated 08.11.1996, sum of Rs.1,07,157.88/- was liable to be adjusted and sum of Rs.33,529.12/- was liable to be shown as deposit in the account of Sh. Vijay Chopra on 08.11.1996.

DETAILS OF KVP/NSCs

4. That now the originals aforementioned NSC/KVPs and the FDRs mentioned at Sr. No.(A,B,C,D) are still lying with OPs and the amount against these documents is lying deposited with OPs. That plaintiffs are in need of funds, so they intend to withdraw the amount lying deposited against the above noted documents alongwith interest thereon @ 14% on quarterly compounding basis.

5. That a legal notice dated 09.09.2014 was sent to the defendants vide registered post through counsel, calling them to make payment of amount of NSC/KVPs and FDRs mentioned at Serial No.(A, B, C and D) alongwith interest @14% p.a on quarterly compounding basis but in spite of service of notice, neither any payment has been made nor any reply to the said notice was sent. That the act of non-refund of amount of deposit lying in the shape of NSC/KVPs and FDRs mentioned at Sr. No.A, B, C and D to the complainants along with interest thereon amounts to deficiency in service and unfair trade practice. Hence the present complaint filed with the prayer that the complaint of the complainant may be accepted and OPs be directed to refund the amount of NSC/KVPs and FDRs mentioned at Sr. No.(A, B, C and D) along with interest @ 14% p.a. on quarterly compounding basis paid till the date of payment alongwith Rs.50,000/- on account of litigation expenses, harassment and mental agony due to unfair trade practice and deficiency in service of OP No.2, in the interest of justice.

6. Notice of the complaint was given to the OPs and accordingly both the OPs appeared through their counsel and filed reply and contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form and further submitted that the present complaint is hopelessly time barred. As per own version of the complainant, loan/overdraft credit facility was obtained by the complainants on 05.10.1993 against the alleged FDRs and NSC from Punjab Co-Operative Bank and even otherwise the exparte judgment and decree was passed by the Court of Sh. Jatinder Pal Singh Khurmi way back on 06.08.2011 at the back of the OPs, therefore, the present consumer complaint dated 01.04.2015, is hopelessly time barred and liable to be dismissed straight away on this score alone and further averred that complainants have got no cause of action to file the present complaint against the OPs and even the complaint of the complainant is bad for non-joinder and mis-joinder of necessary parties because the borrower M/s Chopra Industrial Complex, who had obtained the Credit Facility from the OPs, has not been impleaded in the present complaint, therefore, the present complaint is liable to be dismissed and further alleged that the complainants have got no locus standi to file the present complaint and further alleged that this Forum has no jurisdiction to entertain or decide the present complaint because the matter had been sub-judice with the Civil Court. Remedy both in Civil Court and Consumer Forum can not be availed by the complainants. Only Civil Court was competent to entertain the complaint. It is further submitted that the complainants have not come to the Court with clean hands. They have suppressed and concealed true and actual facts from this Forum. The actual facts are that the complainants had obtained an Overdraft Credit Limit Facility of Rs.1,05,000/- on 05.10.1993, against the FDRs and NSCs at rate of interest 0.50% over BPLR, which was 16.50% p.a with monthly rests from Punjab Co-operative Bank, which was subsequently merged with OPs. Subsequently, additional Credit Facility of Rs.1,25,000/- was granted on 05.10.1994. Apart from this, a sister concern of complainants M/s Chopra Industrial Complex namely M/s Kemgalore consisting of partners Girishi Kumar and Smt. Sumita Chopra also obtained a Cash Credit (Hypothecation) Limit on Rs.2.25 Lacs from the Punjab Co-operative Bank Ltd on 09.11.1995 with personal guarantee of complainants Vijay Kumar Chopra @ 19.50% interest p.a and the FDRs/CDRs were also pledged to secure the credit facility of M/s Kemgalore. Subsequently, the outstanding amount of Rs.139721.40, outstanding against M/s Kamgalore in the account of M/s Chopra Industrial Complex and the account of M/s Kemgalore was got closed by the complainant, after debiting the outstanding amount aforesaid in the account of M/s Chopra Industrial Complex. The CDRs were being renewed with prevailing interest at the instructions of the complainants till these were appropriated/credited in the loan account of M/s Chopra Industrial Complex. Later on, some FDRs/CDRs were credited towards the Overdraft Limit. In respect of remaining outstanding amount, the OPs filed a suit for recovery of Rs.1,15,945/- with interest which was decreed by the Court of Smt. Manjinder Kaur, Civil Judge (JD), Jalandhar vide its judgment and decree dated 22.01.2008, vide which she was pleased to decree the suit alongwith 12% interest p.a against M/s Chopra Industrial Complex, complainants No.1 and 2 and Smt. Sunita. Now through the present complaint, the OPs have come to know that the appeal was accepted exparte at the back of the OPs. Except of NSCs bearing No.941434, 374806, 954606, 533583 and 098024, all the other pledged securities i.e. FDRs has been appropriated. No KVP had been pledged. Only NSCs had been pledged. However, it is pertinent to mention here that the said appeal was decided exparte as the counsel for the OPs had been de-empanelled by the OPs and the case was not contested on account of that reason by the concerned advocate. It is pertinent to mention here that the Court of Sh. Jatinder Pal Singh Khurmi, Addl. District Judge, Jalandhar had nowhere held that the appellants or complainants were entitled to get back the NSC and had only held that these FDRs were not adjusted in time by the Bank. Rather it shows that these NSC/KVPs were still lying with the Bank and are not yet accounted for and were to be accounted for by the Bank and there is no order for returning any FDR, NSC or Kisan Vikas Patras. Rather the Court has been candid that these securities were to be adjusted and credited in the loan account. It is further averred that the present complaint contains facts which are technical in nature and requires thorough evidence and complex question of facts and law which can be determined only by the Civil Court after thorough evidence and not by the Consumer Forum on summary basis. On merits, Para No.1 and 2 are admitted, whereas the other allegations as made in the complaint are categorically denied.

7. In order to prove the case of the complainant, counsel for the complainant tendered into evidence affidavit of two complainants i.e.Vijay Kumar Chopra and Girish Chopra as Ex.CW1/A and Ex.CW2/A. Apart from that, the complainant also tendered into evidence some documents Ex.C1 to Ex.C15 and closed the evidence.

8. Similarly, counsel for the OP No.1 and 2 tendered into evidence affidavits Ex.OP-A and Ex.OP-B alongwith document i.e. Copy of Statement of Account as Ex.OP/C and closed the evidence.

9. We have heard the learned counsel for the respective parties and also gone through the case file very minutely.

10. We have taken into consideration the respective submission of both the counsel for the party and then find that the claim of the complainant is only that the FDRs mentioned in Para No.4 i.e. Serial No.A to D are lying with the OPs even after maturity but despite demand of the complainant for return of the same, the OP No.2 is not ready to return the said FDRs and simply make a request to give direction to OP No.2 to return the said FDRs at Serial No. A to D alongwith interest @ 14% as well as compensation and litigation expenses.

11. No doubt in regard to all the FDRs including mentioning in Para No.4, Serial No. A to D, were involved in previous civil litigation pending and decided between the parties and copy of the judgment of the Appellate Court is brought on the file by the complainant Ex.C1, when the complainants pledged all the FDRs NSC/KVPs against a loan facility, availed from the OP No.2 in the shape of Cash Credit Limit and there is no “No Due Certificate”, issued by the OP No.2 has been brought on file to establish that no amount is due towards the complainant in regard to loan facility in the shape of Loan/Over Draft Credit Facility and as per version of the OPs that the loan amount has not been adjusted till today and as such the FDRs and NSC are not accounted for. So, in the absence of any “No Due Certificate”, issued by OP that no loan amount is due against the complainants, this Forum cannot pass the order for return of the FDRs.

12. Apart from above, the matter has been already decided by the Civil Court and there was an appropriate opportunity with the complainants to take a plea in the written statement or file a counter claim for return of the disputed FDRs but for the best known reason, the complainant has not opted that remedy before the Civil Court, where the matter has been finally adjudicated and now this Forum cannot interfere in the already passed judgment of the Civil Court. The remedy with the complainant is only to approach the Civil Court for the relief claimed and as such we do not find any force in the argument of the learned counsel for the complainant. Therefore, the complaint is dismissed with no order of cost. Parties will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.

13. 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

14.06.2017 Member President