Punjab

Sangrur

CC/450/2014

Ramesh Kumar - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Shri Vinay Jindal

18 Feb 2015

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SANGRUR.

 

                                                               

                                                Complaint No.    450

                                                Instituted on:      06.08.2014

                                                Decided on:       18.02.2015

1. Ramesh Kumar son of Ramji Dass;

2. Shashi Rani wife of Shri Ramesh Kumar C/o M/s. Shiva Commission Agency, Shop No.23, New Grain Market, Dhuri.

                                                                ..Complainants

                                Versus

Punjab National Bank, Main Branch, Near Railway Crossing, Dhuri, District Sangrur through its Chief Manager.

                                                        …Opposite party

 

For the complainants   :       Shri Vinay Jindal, Advocate.

For OP                      :       Shri Harsh Jindal, Advocate.

 

 

Quorum:    Sukhpal Singh Gill, President

                K.C.Sharma, Member

                Sarita Garg, Member

 

Order by : K.C.Sharma, Member.

 

1.             Shri Ramesh Kumar and Smt. Shashi Rani, complainants (referred to as complainants in short) have preferred the present complaint against the opposite party (referred to as OP in short) on the ground that the complainants are having saving accounts bearing number 0140000100153144 and 0140000100227254 with the OP and they stood guarantor to the over draft limit having OD account number 0140009300050598 in the name of M/s. Shiva Gram Udyog Samiti, Village Dhura with the OP and as such, the complainants deposited NSCs worth Rs.1,53,000/- by Shri Ramesh Kumar and NSCs worth Rs.20,000/- by Smt. Shashi Rani on account of security to secure the loan amount of Rs.2,76,973/- by M/s. Shiva Gram Udyog Samiti, Village Dhura.

 

2.             It is further averred in the complaint that the OP got encashed the above said NSCs and the amount received against the NSCs was wrongly and illegally credited into the OD limit account of M/s. Shiva Gram Udyog Samiti.  It is also averred that the OP neither asked M/s. Shiva Gram Udyog Samiti to clear the dues, if any, nor asked the complainants to get cleared the outstanding amount against the Samiti.   It is further averred that the OP has wrongly misappropriated the amount of the NSCs of the complainants, as such breached the terms and conditions of the guarantee agreement.  It is further averred that the complainants have come to know that an amount of Rs.2,12,193.42 is lying credited in the OD account number 0140009300050598 of M/s. Shiva Gram Udyog Samiti, whereas the said Samiti has no right upon the said amount. The complainants also wrote letters to the OP for payment of the said amount even vide letter dated 2.6.2014 against which the OP replied that the amount can be withdrawn against the signatures of the two office bearers of the Samiti.  It is further stated that the complainants are entitled to recover the entire amount from the OP which has been received by the OP by encashing the NSCs of Rs.1,73,000/- (maturity amount Rs.2,76,973/-) along with interest from the OP.  The complainants also got issued legal notice dated 24.6.2014 upon the OP through their counsel Shri Vinay Jindal for payment of Rs.2,12,193.42 lying excess in the OD account of M/s. Shiva Gram Udyog Samiti, but no payment was made and Op sent reply stated that the same can be withdrawn under the signatures of the two bearers of the Samiti.  It is further averred that the amount of guarantors cannot be withdrawn by any one.  Thus, alleging deficiency in service on the part of the OP, the complainants have prayed that the OP be directed to pay to the complainants an amount of Rs.2,12,193.42 lying excess in OD account number 0140009300050598 of M/s. Shiva Gram Udyog Samiti, Village Dhura along with interest from the date of maturity of the NSCs till payment and further claimed compensation and litigation expenses to the tune of Rs.90,000/-.

 

3.             In reply, legal objections are taken up on the grounds that the complaint is not maintainable, that the complainants are estopped from filing the present complaint and that the complainants have not come to the Forum with clean hands.  On merits, it has been admitted that the complainants have their saving bank accounts with the OP. It has been stated that the payment of the said NSCs has been transferred in the name of the Samiti as per rules and regulations of the OP. It is further stated that the complainants had already granted the consent to the OP bank at the time of executing the guarantee papers and other papers in favour of the OP bank. It has been stated that the Op has not misappropriated the amount of the complainants nor has breached any terms and conditions of the guarantee agreement.  It is further stated that the amount lying in the account of the Samiti can be withdrawn only under the joint signatures of the office bearers of the Samiti and the complainants have no locus standi to receive the amount.  The other allegations levelled in the complaint have been denied.

 

4.             The learned counsel for the complainants has produced Ex.C-1 to Ex.C-2 affidavits, Ex.C-3 to Ex.C-4 copies of passbook, Ex.C-5 copy of legal notice, Ex.C-6 reply to legal notice, Ex.C-7 copy of letter dated 2.6.2014, Ex.C-8 to Ex.C-28 copies of NSCs and closed evidence. On the other hand, the learned counsel for the OP has produced Ex.OP-1 affidavit, Ex.OP-2 copy of resolution, Ex.OP-3 copy of letter dated 23.01.2012 and closed evidence.

 

5.             We have carefully perused the complaint, version of the opposite parties and heard the arguments of the learned counsel for the parties. In our opinion, the complaint merits acceptance, for these reasons.

 

6.             It is an admitted fact of the OP that the complainants stood guarantor for the loan taken by M/s. Shiva Gram Udyog Samiti, Village Dhura with the OP bank for which the NSCs for Rs.1,53,000/- belonging to Ramesh Kumar and NSC worth Rs.20,000/- belonging to Smt. Shashi Rani were handed over to the OP as surety. It is also not in dispute that the OP bank had encashed the above said NSCs and whole of the proceeds of the NSCs were kept in the account of M/s. Shiva Gram Udyog Samiti.

 

7.             After hearing the arguments of the learned counsel for the parties and on perusal of the documents placed on record, we find that the main point of controversy in the present complaint is with regard to the non refund of the excess amount to the guarantors, who are complainants in this complaint after adjusting the loan amount out of the proceeds of the NSCs of the guarantors.  The version of the complainants is that after adjustment of the loan amount of M/s. Shiva Gram Udyog Samiti, in which the complainants had kept the NSCs as guarantors, the OP has not refunded the excess amount and before appropriate proceeds of the NSCs, the OP had not raised any demand and no notice was served upon them.   Whereas the version of the OP is that since the amount has been credited into the account of the Samiti, so as per rules of the Samiti, after the written request of the authorised members of the Samiti, the excess amount lying in the account of the Samiti can be refunded.

 

8.             In support of its version, the OP has placed on record the document Ex.OP-2, copy of resolution of the Samiti, in which the account was to be operated upon by two signatories.  The OP has also placed on record the document Ex.Op-3, in which the complainant in the capacity of Vice President of the Samiti has requested to stop the payment and has also requested that the account should be operated by three signatories.  The Op has relied upon the document Ex.C-3 and has not refunded the amount to any member, whereas if the OP should rely upon the document Ex.OP-2, as O/D limit was set up on the basis of the same and the OP should has not relied upon the document Ex.OP-3 as the same was signed by only one signatory and that too in the capacity of the member of the Samiti and not as a guarantor.  The complainants though were the members of the society, but they had kept their own NSCs in the O/D limit as guarantee and the OP should have given the notice to the complainants before adjusting the proceeds of their NSCs and should have also raised the demand and notice should have been served to the Samiti also before adjusting the loan amount.

 

9.             We have gone through the guarantee deed of the bank submitted by the learned counsel for the complainants  which reads as “So long as any money remains owing under this guarantee, the Bank shall have lien on all moneys standing to the credit of the Guarantor(s) and on any securities or goods in the hands of the Bank belonging to any of the Guarantor(s) and the Bank shall be entitled to appropriate/set off/realize the same.”  And further clause 17 of the same documents reads as ‘any notice by the bank in writing under this guarantee or a demand in writing shall be deemed to have been duly given to the Guarantor(s) by sending the same by post addressed to him/her/them at the address herein written.”  But, in the present case, the OP has neither given any notice to the Samiti nor any notice has been sent to the guarantors and has not paid the remaining amount to the guarantors. Rather the amount of the guarantors has been credited to the account of the Samiti and has been treated the amount of the Samiti.  Whereas the OP should have appropriated only the due amount in the account of the Samiti and should have refunded the remaining excess amount to the complainants, who are the guarantors in the loan account.

10.            The learned counsel for the OP has argued that the complainants are not the consumers as they have lodged the complaint in the capacity of the guarantor of the said Samiti. But, we are unable to accept such a contention of the learned counsel for the OP. Reliance can be placed on the decision of the Punjab State Commission in Morinda Cooperative Sugar Mills Limited versus State Bank of Patiala and another CPC 1995(1) 484  wherein it has been held that guarantor for the loanee is also a consumer.  Again the West Bengal State Commission in UCO BANK versus Dr. Sisir Kumar Kar 2000(2) CPJ 326 has held that the guarantor is a consumer and he can very much maintain the complaint against the OP bank. It is an admitted fact that the complainants stood guarantor only for the default amount and in the present case, the OP has kept the whole of the proceeds of the NSCs, whereas the OP should not transfer the remaining amount belonging to the complainants in the account of the Samiti, which itself is a clear cut case of deficiency in service on the part of the OP bank.    

11.            In view of our above discussion, we allow the complaint and direct the OP to pay to the complainants a sum of Rs.2,12,193.42 along with interest @ 9% per annum from the date of receipt of payment by the OP from the post office against the NSCs in question till realisation. We further direct the Op to pay to the complainants a sum of Rs.11,000/- on account of litigation expenses.

 

12.            This order of ours be complied with within a period of thirty days of its communication. A copy of this order be issued to the parties free of cost. File be consigned to records.

                Pronounced.

                February 18, 2015.

                                                        (Sukhpal Singh Gill)

                                                           President

 

 

                                                              (K.C.Sharma)

                                                                Member

 

 

                                                                                                                                                                (Sarita Garg)

                                                                    Member