Complainant Mohinder Singh through the present complaint filed under Section 12 of the Consumer Protection Act, 1986 (for short, ‘the Act’) has sought issuance of necessary directions to the opposite party to pay the amount of FDR No.131012 dated 20.6.2014 at present value till its realization. The opposite party be also directed to pay Rs.50,000/- for mental harassment, agony and deficiency in service on the part of the opposite party alongwith Rs.15,000/- as litigation expenses.

2.           The case of the complainant in brief is that he is retired Inspector from Punjab Roadways in the year 2008 and is senior citizen. He got his money deposited vide FDRF/D 651904 dated 24.11.2012 amounting to RS. 4.00 lacs in the bank of opposite party and the same was matured on 5.4.2014. He approached  the opposite party on 5.4.2014 for withdrawing the amount of the said FDR but the employees of the opposite party adjusted Rs.1.00 lakh in his loan account and again without taking his consent and will  issued a new FDR no. 130735 dated 7.4.2014 amounting to Rs.3,44,436/- and maturity  value of Rs.3,78,342/- and matured on 7.4.2015. On 20.6.2014 again without giving any notice,  consent and his will  the opposite party issued new FDR no. 131012 dated 20.6.2014 amounting to Rs.3,48,975/- maturity value of which is Rs.3,91,907/- and was matured on 7.9.2015. He is senior citizen of age 65 years and his wife is also an old lady and he needs money for his day to day expenses and for medicines of his wife. He requested for withdrawal of the amount of the FDR no. 131012 dated 20.6.2014 but the opposite party are not giving his money. He approached the opposite party many times but they lingering the matter on one pretext or the other. Thus, there is deficiency in service on the part of the opposite party. A legal notice through his counsel was also issued to the opposite party but they did not pay any heed to his genuine request.  Hence this complaint.

3.       Upon notice, opposite party filed its written reply through their counsel stating therein that complainant stood Guarantor in the loan case of M/s.Balkar Karyana & Hardware Store Prop. Balkar Singh son of Veeru resident of Vill.Chack Bhagwan Tehsil and Distt.Gurdaspur who raised the loan of Rs.8,00,000/- on 7.2.2013 and complainant deposited the said FDR as Security in that loan case but the account of the said loanee became irregular and he did not pay even the interest to the bank inspite of repeated request and demand and then Manager of the bank issued a notice dated 13.11.2013 which was duly received by complainant Mohinder Singh in person and notice was issued to the borrower through registered letter and inspite of this, account remained irregular and finally legal notice through Advocate was also issued to complainant as well as borrower vide dated 13.3.2014 but inspite of the legal notice which was served upon complainant and borrower the account remained irregular. The liability to return the loan to the bank was co-extensive and crystallize of the outstanding balance Plus future interest/penal interest at the agreed/stipulated rate and liability of the loanee and guarantor is joint and several one with immediate effect, so the loanee & guarantor are jointly and severally liable to repay the loan amount and since the notice was served upon complainant for making the payment, the bank has got every legal right to keep the account of the guarantor under bank lien for further enforcing the right of set off for recovery of the bank dues. Complainant has duly acknowledged the receipt of legal notice and replied to the counsel of the bank vide his reply dated 18.3.2014.The bank further intimated complainant on 05.04.2014 that ‘your amount of FDR shall be set off against the loan in which you are guarantor and if the same is not repaid to the bank, the bank will set of your FDR amount against the loan which is kept under the right of the banker’s lien and the opposite party asked complainant either to make the payment of the loan amount the borrower are pay our self as per immediate liability’. All other contents of the present complaint have been denied by the opposite party in its written reply. Lastly, the complaint has been prayed to be dismissed with costs. 

4        Mohinder Singh complainant tendered into evidence his own affidavit Ex.CW1/A and of  Rachhpal Singh Ex.CW2/A, alongwith other documents Ex.C1 to Ex.C5 and closed the evidence. 

5.       Sh.Sukhdev Lal, Manager of Punjab & Sind Bank tendered into evidence his own affidavit Ex.OP-1, alongwith other documents Ex.OP-2 to Ex.OP-7 and closed the evidence.

6.        We have thoroughly examined the available evidence on the record file so as to interpret the meaning and purpose of each document and also the scope of adverse inference for some documents ignored to be produced by the contesting litigants. We find that the present dispute pertains to appropriation of the complainant’s funds (available as ‘deposits’ with the OP Bank) towards regularization/liquidation of the overdue repayment amount in a third party Loan A/c to which the complainant had stood surety for its repayment. The OP Bank claims having advanced a Loan of Rs 8.0 Lac to M/s Balkar Karyana & Hardware Store (on 07.02.2013) in which the complainant (being the Guarantor) had deposited the said FDR as security and thus in exercise of the Bankers’ Right of General Lien and Right to set-off balances, the OP Bank (after serving due notices upon the complainant) had appropriated a part of the proceeds to liquidate the Loan overdue. However, we find that the OP Bank has failed to produce any cogent/documentary or other evidence on the records of the proceedings proving the pledge of complainant’s ‘Deposit Instrument(s)’ in the said Loan account. The Banks’ claim pleadings as to its Banker’s Right of General Lien and Right to Set-off balances shall not be applicable here as these rights are enforceable to similarly-titled accounts (only) and surely not to ‘credits’ handed over for a specific defined purpose. Even there is no mention of FDR’s in the list of assets Ex. OP5. The FDR is dated 20.06.2014 (para 4 of the complaint ) and the alleged loan is dated 7.2.2013(para 4 of the written statement). The OP Bank has acted in a totally/legally ignorant (illegal) manner amounting to ‘unfair trade practice’ including ‘deficiency in service’ and is thus liable to an adverse ‘award’ under the Act.

7.       In the light of the all above, we partly allow the present complaint and thus ORDER the OP Bank to repay/refund the full proceeds of the ‘Fixed Deposits’ in question with up to date compounded  interest (at the applicable fixed deposit Bank Rate) besides Rs.5,000/- as compensation and Rs.3,000/- as cost of litigation to the complainant within 30 days of the receipt of the copy of these orders otherwise the aggregate awarded amount shall attract addition interest @ 9% PA from the date of the orders till actual payment.  

8.       Copy of the order be communicated to the parties free of charges. After compliance, file be consigned to records.

(Naveen Puri)

                                                                                       President.                                                                                                     

ANNOUNCED:                                                   (Jagdeep Kaur)

September 17, 2015                                                           Member.          

*MK*