Before the District Consumer Disputes Redressal Forum, Room No. 208 2nd Floor, District Administrative Complex, Tarn Taran
Consumer Complaint No : 22 of 2017
Date of Institution : 12.04.2017
Date of Decision : 23.12.2019
Talbir Singh Gill son of Gurdev Singh resident of Ward No. 6 near Gurudwara, Nanakpuri, Patti Tehsil Patti, District Tarn Taran, now resident of 7325/15, Street Delta, British Colombia, Canada, through his special Power of attorney holder Baljit Singh son of Sukhchain Singh resident of Ward No. 1, Kandiala Road Patti, Tehsil Patti, District Tarn Taran
...Complainant
Versus
- Punjab National Bank, Branch Gharyala, Tehsil Patti, District Tarn Taran through its Branch Manager,
- Sukhaj Kaur Bajwa wife of Sukhjit Singh Bajwa resident of 2/8 Walsh Street, Broadmeadowns, VIC-3047 Australia.
…Opposite Parties.
Complaint Under Section 12 and 13 of the Consumer Protection Act, 1986.
Quorum: Sh. Charanjit Singh, President
Smt. Jaswinder Kaur, Member
For Complainant Sh. Jagdeep Mehta Advocate
For Opposite Party No. 1 Sh. V.K. Dhawan Advocate
For Opposite Party No. 2 Exparte.
ORDERS:
Charanjit Singh, President;
1 The complainant has filed the present complaint under Section 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against Punjab National Bank, Branch Gharyala, Tehsil Patti, District Tarn Taran through its Branch Manager and another (Opposite Parties) on the allegations of deficiency in service and negligence in service on the part of opposite party No. 1 with the prayer to direct the opposite party No.1/ opposite party No. 1 bank to refund/ pay the amount of Rs. 5,15,000/- alongwith interest at the rate of 7.50% per annum against fixed deposit under account No. 2814/11 and FD No. RZQ968331 dated 17.9.2002 to the complainant immediately without any further delay and also prayed Rs.3,00,000/- as compensation and Rs. 40,000/- as costs of litigation.
2 The case of the complainant in brief is that the complainant is resident of Ward No. 6, near Gurudwara Nanakpuri, Patti, Tehsil Patti, District Tarn Taran, now resident of 7325/15, Street Delta, British Colombia, Canada having Passport No. K-5741174 and is a law abiding citizen. The complainant is the real son and legal representative of Balwinder Kaur wife of Gurdev Singh resident of Patti, Tehsil Patti, District Tarn Taran. The complainant executed one Special Power of attorney dated 4.3.2017 duly attested by Notary Public in favour of Baljit Singh son of Sukhchain Singh resident of Kandiala Road, Patti, Tehsil Patti, District Tarn Taran and authorised him to file the present case on his behalf. Balwinder Kaur wife of Late Sh. Gurdev Singh (Mother of the complainant) deposited a sum of Rs.5,15,000/- alongwith further interest at the rate of 7.50 % per annum against fixed deposit under account No.2814/11 and FD. No.RZQ968331 dated 17.09.2002. She was old aged lady and was suffering from various diseases since a long time and she died on 7.9.2013. Gurdev Singh (husband of Balwinder Kaur and Father of the complainant) was pre-deceased to Baiwinder Kaur. Balwinder Kaur was having one son namely Talbir Singh Gill (Complainant) and one daughter namely Sukhraj Kaur. The mutation regarding the inheritance of Baiwinder Kaur was sanctioned in favour of complainant only. As such, the complainant is only legal representative to file the present case and to refund the refund of FD Amount from opposite party No.1 bank Balwinder Kaur wife of Gurdev Singh (Mother of the complainant) has since expired on dated 13.9.2013 and after her death, Balwinder Kaur deceased is having one son namely Talbir Singh Gill (Complainant) and one daughter namely Sukhraj Kaur. Sukhraj Kaur daughter of Balwinder Kaur also authorized her real brother Talbir Singh complainant to withdraw the above said amount from the opposite party No.1 bank as she also signed behind the original F.D. Earlier the complainant came to India on 07.9.2013. On 13.9.2013 his mother, Balwinder Kaur died and he went back to Canada on 14.11.2013, after performing her last rites. On 18.2.2017, the complainant, again came to India and he found the above said FD from the papers of his mother Balwinder Kaur deceased lying in the house. The complainant immediately rushed to the opposite party No.1 bank for the inquiry and to refund of above mentioned FD. He approached to the branch Manager of Punjab National Bank, Gharyala and the manager of opposite party bank asked the complainant about the signatures of Sukhraj Kaur (sister of the complainant who is daughter of Balwinder Kaur). The complainant told the branch Manager of bank that Sukhraj Kaur daughter of Balwinder Kaur had already signed behind the FD. The complainant requested the manager of the bank to refund the amount of said FD alongwith interest. The complainant requested many times to refund the FD amount with interest. But the opposite party No. 1 bank was lingering on the matter under one pretext or another and he harassed the complainant so much without any sufficient reasons and the branch manager of bank also used filthy language against the complainant. On 2.3.2017, the complainant went to Punjab National bank, branch Gharyala again and he met with the branch Manager requested him to refund the above said FD amount along with interest. The opposite party No. 1 bank and branch Manager finally refused to return/refund the amount of FD to the complainant on that day. Due to inaction on the part of opposite party/ bank, the complainant got served legal notice to opposite party bank on 10.03.2017 through registered A.D. Post, through his Counsel. But the bank/opposite party did not take any action and not delivered the above mentioned FD amount to the complainant. So it is crystal clear that opposite party bank is harassing the complainant intentionally and is lingering on the matter without any cause. Sukhraj Kaur Bajwa wife of Sukhjit Singh Bajwa i.e. opposite party No.2 is a Performa opposite party only, she has been arrayed as opposite party No.2 just to avoid any complicacy in future. But no relief is claimed against her, opposite party No.2, she is agreed with the complainant to withdraw the above said F.D. amount from the concerned bank. Feeling dissatisfied by the act and conduct of the opposite parties, the complainant perforce has filed this complaint against the opposite parties.
3 After formal admission of the complaint, notice was issued to Opposite Party No. 1 appeared through counsel and filed written version by taking objection that the complainant has not come before this Forum with clean hands, and he has suppressed so many material facts from the Forum. So, he is guilty of suppressing very material facts from this Forum. So, the present complaint is liable to be dismissed with exemplary costs. The complainant has got no cause of action against the opposite party No.1 i.e. Punjab National Bank, Branch Gharyala, Tehsil Patti, District Tarn Taran. The present complaint is barred by limitation as the present complaint is not within time and the same can’t be admitted by the Consumer Forum unless the complainant is able to show that he had sufficient cause for not filing complaint within the prescribed period of limitation. This Forum had got no jurisdiction to try and entertain the present complaint as the matter involved in the present complaint is complicated one and can’t be decided in summary proceedings. The remedy of complainant lies somewhere else. The present complaint does not come within the provisions of Consumer Protection Act, 1986, as amended up-to date. Sh. Baljit Singh son of Sh.Sukhchain Singh had got no locus-standi or authority to file the present complaint before this Forum on behalf of the complainant. Said Baljit Singh son of Sukhchain Singh has got no legal authority or power to file the present complaint against the opposite party No.1 on behalf of the complainant is the Consumer Forum. So, the complaint is also liable to be dismissed on this very ground. Balwinder Kaur wife of Gurdev Singh deposited a sum of Rs. 5,15,000/- under account No.2814 vide FDR and the maturity value of the said available with opposite party No.1 bank, it has been noticed that over draft facility of Rs.4,50,000/- was sanctioned in favor of said Balwinder Kaur on 28.09.2002 having account No.279 and on 23.10.2004, maturity proceeds of said FDR was credited in the said over draft account on 23.10.2004. Thereafter, a sum of Rs.52,683/- was outstanding in her FDR account. Now an amount of Rs. 73,199/- including interest up-to 30.06.2017 is outstanding in the said account of said Smt.Balwinder Kaur. It might be stated by said Balwinder Kaur at the time of availing over draft facility from opposite party No.1 that the original FDR has been lost from her and she might have got prepared Duplicate FDR from the opposite party No.1 for availing over draft facility of Rs.4,50,000/- from the opposite party No.1 The said old record has already been destroyed as per rules. The matter in controversy is complicated one and can’t be decided in summary proceedings by the Consumer Forum. Mutation regarding the inheritance of said Balwinder Kaur in the name of complainant only has no legal value in the eyes of law. The complainant can’t get the benefit of the said alleged FDR as said Balwinder kaur (now deceased) might have stated at the time of availing over draft facility of Rs.4,50,000/- from the opposite party No.1 bank that the original FDR has been lost from her and she might have got prepared duplicate FDR for availing over draft facility of Rs.4,50,000/- from the opposite party No.1 Bank. No notice was ever served upon the opposite party No. 1 bank nor the opposite party No. 1 bank ever received the copy of notice nor ever refused to receive the copy of said notice. Now an amount of Rs. 73,199/- including interest up to 30.6.2017 is outstanding and a succession certificate is required to be obtained from the competent court of law by all the legal representatives of said Balwinder Kaur. The complainant as got no cause of action against the opposite party No. 1 bank in this Forum. The remedy of complainant lies somewhere else for getting succession certificate for getting said amount of Rs. 73,119/- including interest up to 30.6.2017 and further interest from 1.7.2017 till the date of payment of said amount from the opposite party no. 1 and all the other allegations in the complaint have been denied by the opposite party NO. 1 and prayer was made for dismissal of the complaint with costs.
4 Notice was sent to the opposite party No. 2 through registered cover AD for 8.6.2017 but none has appeared on behalf of opposite party No. 2, therefore, opposite party No. 2 was proceeded against exparte vide order dated 8.6.2017 of this Forum.
5 In order to prove his case, Ld. counsel for the complainant has tendered in evidence affidavit of Sukhraj Kaur Bajwa Ex. C-1, affidavit of Talbir Singh Gill Ex. C-2, affidavit of Talbir Singh Gill Ex. C-3 alongwith documents Ex. C-4 to Ex. C-11 and closed the evidence. The opposite party No. 1 tendered in evidence his affidavit Ex. OP1/1 alongwith documents Ex. OP1/2 to Ex. OP1/6 and closed the evidence.
6 We have heard the Ld. Counsel for the complainant and opposite party No. 1 and have gone through the evidence and documents placed on the file by the parties.
7 Ld. counsel for the complainant contended that the complainant is the real son and legal representative of Balwinder Kaur wife of Gurdev Singh resident of Patti, Tehsil Patti, District Tarn Taran. The complainant executed one Special Power of attorney dated 4.3.2017 duly attested by Notary Public in favour of Baljit Singh so of Sukhchain Singh resident of Kandiala Road, Patti, Tehsil Patti, District Tarn Taran and authorised him to file the present case on his behalf. Balwinder Kaur wife of Late Sh. Gurdev Singh (Mother of the complainant) deposited a sum of Rs.5,15,000/- alongwith further interest at the rate of 7.50 % per annum against fixed deposit under account No.2814/11 and FD. No.RZQ968331 dated 17.09.2002 and the original FDR is Ex. C-11. She was old aged lady and was suffering from various diseases since a long time and she died on 7.9.2013. Gurdev Singh (husband of Balwinder Kaur and Father of the complainant) was pre-deceased to Baiwinder Kaur. He further contended that Balwinder Kaur was having one son namely Talbir Singh Gill (Complainant) and one daughter namely Sukhraj Kaur. The mutation regarding the inheritance of Baiwinder Kaur was sanctioned in favour of complainant only and same is incorporated in the remarks colum of Jamabandi Ex. C-6. As such, the complainant is only legal representative to file the present case and to get the refund the FD Amount from opposite party No. 1 bank Balwinder Kaur wife of Gurdev Singh (Mother of the complainant) has since expired on dated 13.9.2013 and after her death, Balwinder Kaur deceased is having one son namely Talbir Singh Gill (Complainant) and one daughter namely Sukhraj Kaur. Sukhraj Kaur daughter of Balwinder Kaur also authorized her real brother Talbir Singh complainant to withdraw the above said amount from the opposite party No.1 bank as she also signed behind the original F.D. Earlier the complainant came to India on 7.9.2013. On 13.9.2013 his mother, Balwinder Kaur died and he went back to Canada on 14.11.2013, after performing her last rites. On 18.2.2017, the complainant, again came to India and he found the above said FD from the papers of his mother Balwinder Kaur (deceased) lying in the house. The complainant immediately rushed to the opposite party No. 1 bank for the inquiry and to refund of above mentioned FD. He approached to the branch Manager of Punjab National Bank, Gharyala and the manager of opposite party bank asked the complainant about the signatures of Sukhraj Kaur (sister of the complainant who is daughter of Balwinder Kaur). The complainant told the branch Manager of bank that Sukhraj Kaur daughter of Balwinder Kaur had already signed behind the FD. He further contended that the complainant requested the manager of the bank to refund the amount of said FD alongwith interest. The complainant requested many times to refund the FD amount with interest. But the opposite party No. 1 bank was lingering on the matter under one pretext or another and he harassed the complainant so much without any sufficient reasons and the branch manager of bank also used filthy language against the complainant. On 2.3.2017, the complainant went to Punjab National bank, branch Gharyala again and he met with the branch Manager requested him to refund the above said FD amount along with interest. The opposite party No.1 bank and branch Manager finally refused to return/refund the amount of FD to the complainant on that day. Due to inaction on the part of opposite party/ bank, the complainant got served legal notice to opposite party bank on 10.03.2017 through registered A.D. Post, through his Counsel Ex. C-8. But the bank/opposite party did not take any action and not delivered the above mentioned FD amount to the complainant. So it is crystal clear that opposite party bank is harassing the complainant intentionally and is lingering on the matter without any cause and prayed that the present complaint may be allowed. The Ld. counsel for the complainant has placed reliance on 2015(4)CPJ 466 titled Jagannath Mutreja Vs Uttar Pradesh Awas Evam Vikas Parishad and another of National Consumer Disputes Redressal Commission, New Delhi , 2014(2) CPR 373 titled Col. T.S. Bakshi Rtd. Vs Star Health and Allied Insurance Co. Ltd,. through its branch Manager of National Consumer Disputes Redressal Commission New Delhi and 2015(2) CLT 605 titled Amutha Vs St Josepth Hospital and others of State Consumer Disputes Redressal Commission Pondicherry.
8 Ld. counsel for the opposite party No.1 contended that the complainant has suppressed so many material facts from the Forum. The complainant has got no cause of action against the opposite party No.1. The present complaint is barred by limitation as the present complaint is not within time and the same can’t be admitted by the Consumer Forum unless the complainant is able to show that he had sufficient cause for not filing complaint within the prescribed period of limitation. This Forum had got no jurisdiction to try and entertain the present complaint as the matter involved in the present complaint is complicated one and can’t be decided in summary proceedings. The remedy of complainant lies somewhere else. The present complaint does not come within the provisions of Consumer Protection Act, 1986, as amended up-to date. Sh. Baljit Singh son of Sh.Sukhchain Singh had got no locus-standi or authority to file the present complaint before this Forum on behalf of the complainant. Said Baljit Singh son of Sukhchain Singh has got no legal authority or power to file the present complaint against the opposite party No.1 on behalf of the complainant is the Consumer Forum. So, the complaint is also liable to be dismissed on this very ground. Balwinder Kaur wife of Gurdev Singh deposited a sum of Rs. 5,15,000/- under account No.2814 vide FDR and the maturity value of the said available with opposite party No.1 bank, it has been noticed that over draft facility of Rs.4,50,000/- was sanctioned in favor of said Balwinder Kaur on 28.09.2002 having account No.279 and on 23.10.2004, maturity proceeds of said FDR was credited in the said over draft account on 23.10.2004. Thereafter, a sum of Rs.52,683/- was outstanding in her FDR account. Now an amount of Rs. 73,199/- including interest up-to 30.06.2017 is outstanding in the said account of said Smt.Balwinder Kaur. It might be stated by said Balwinder Kaur at the time of availing over draft facility from opposite party No.1 that the original FDR has been lost from her and she might have got prepared Duplicate FDR from the opposite party No.1 for availing over draft facility of Rs.4,50,000/- from the opposite party No.1 The said old record has already been destroyed as per rules. The matter in controversy is complicated one and can’t be decided in summary proceedings by the Consumer Forum. Mutation regarding the inheritance of said Balwinder Kaur in the name of complainant only has no legal value in the eyes of law. The complainant can’t get the benefit of the said alleged FDR as said Balwinder kaur (now deceased) might have stated at the time of availing over draft facility of Rs.4,50,000/- from the opposite party No.1 bank that the original FDR has been lost from her and she might have got prepared duplicate FDR for availing over draft facility of Rs.4,50,000/- from the opposite party No.1 Bank. No notice was ever served upon the opposite party No. 1 bank nor the opposite party No. 1 bank ever received the copy of notice nor ever refused to receive the copy of said notice. Now an amount of Rs. 73,199/- including interest up to 30.6.2017 is outstanding and a succession certificate is required to be obtained from the competent court of law by all the legal representatives of said Balwinder Kaur. The complainant as got no cause of action against the opposite party No. 1 bank in this Forum. The remedy of complainant lies somewhere else for getting succession certificate for getting said amount of Rs. 73,119/- including interest up to 30.6.2017 and further interest from 1.7.2017 till the date of payment of said amount from the opposite party No. 1 and prayer was made for dismissal of the complaint with costs.
9 The point for adjudication is as to whether complaint is barred by time or not. The complainant has not withdrawn the money of the FDR. It was trust money deposited with OP No. 1/Bank. Article 22 of Limitation Act 1963 is relevant provision of law, which lays down that with regard to money deposited under an agreement with the bank, it shall be payable on demand, including money of a customer in the hands of his banker so payable. The cause of action arised from the date of demand in this case. In view of Article 22 of the Limitation Act 1963 and the fact that OPs could not return the money of the complainant and complaint cannot be held to be barred by time in any manner. The complaint is within time on account of this continuing cause of action in this case, because OPs were not returning the money deposited with it by the complainant despite demand raised by him. Reference be made to law laid down by National Commission in M/s J.D Finances (Regd.) & others versus Mohd. Tahir and others reported in 2015(2) CLT Page 308 that depositor had recurrent cause of action till money is returned to him. The contention of OPs is not accepted on this point.
10 The submission of OP No. 1 is that consumer complaint cannot be maintained before the Forum as complicated question of law and facts involved in this case and the present complaint is to be decided by competent civil court only. We find no force in it as Apex Court has held in Dr. J.J Merchant and another versus Shrinath Chutervedi reported in 2002(2) CPC Page 640/641 that CP Act provides sufficient safeguards, while deciding the case. Evidence of expert can be taken by way of affidavit and merely that disputes are decided summarily by the Forum is no ground to direct the complainant to approach a civil court. We again find no force in it because National Commission has held in “Bank of Baroda Lodra versus Gitaben Baldevbhai and others” reported in 2009(3) CPC Page 436-437 that since misappropriation took place in the bank, hence the order of awarding money to the complainant was affirmed. The controversy in the citied authority was pari materia with the facts in dispute of this case. Hon’ble Supreme Court has also held in C.C.I Chambers Co-operative Housing Society Limited versus Development Credit Bank Limited reported in 2004(1) CPC Page 1 that complaint cannot be refused to be entertained that complicated issue of law and fact is involved in the cited authority. Forged cheques were honoured and alteration made in figure. National Commission held the case not triable by Consumer Forum but by competent Civil Court and Supreme Court remanded the case to National Commission for fresh decision. National Commission has held in “Sutlej Textile and Industries Ltd. Versus Punjab National Bank” reported in 2009(3) CPC Page 565 that cashier of the bank unauthorizedly issued a cheque and thereby withdrew the amount of Rs.65 lac with the collusion with bank’s employees. It was held by National Commission that order of the State Commission relegating the complainant to civil court is not legally sustainable and case was according remanded to State Commission for fresh adjudication. National Commission has also held in “M/s J.D Financers (Regd.) & others versus Mohd. Tahir & others” reported in 2015(2) CLT 308 that depositors had a recurrent cause of action, till the money deposited by him with such firm was paid back to him. The cause of action in this case is also continuing one, because it is a recurring one till bank returned the deposited amount of complainant.
11 The complainant has placed on record original FDR Ex.C-11 on the file and on demand opposite party No. 1 has not given the money to the complainant against the FDR Ex. C-11. It is admitted by the opposite party No. 1 that Balwinder Kaur wife of Gurdev Singh deposited a sum of Rs. 5,15,000/- under account No.2814 vide FDR and the maturity value of the said available with opposite party No.1 bank, it has been noticed that over draft facility of Rs.4,50,000/- was sanctioned in favor of said Balwinder Kaur on 28.09.2002 having account No.279 and on 23.10.2004, maturity proceeds of said FDR was credited in the said over draft account on 23.10.2004. Thereafter, a sum of Rs.52,683/- was outstanding in her FDR account. Now an amount of Rs. 73,199/- including interest up-to 30.06.2017 is outstanding in the said account of said Smt.Balwinder Kaur. It is further case of the opposite party No. 1 that it might be stated by said Balwinder Kaur at the time of availing over draft facility from opposite party No.1 that the original FDR has been lost from her and she might have got prepared Duplicate FDR from the opposite party No.1 for availing over draft facility of Rs.4,50,000/- from the opposite party No.1 The said old record has already been destroyed as per rules. This plea of the opposite party No. 1 is not acceptable because the complainant has placed on record the original FDR Ex. C-11. If any duplicate FDR was issued to the complainant then the opposite party No. 1 must have received application from Balwinder Kaur for issuing the duplicate FDR. But the opposite party No. 1 has not placed on record any document regarding issuing duplicate FDR in favour of opposite party No. 1, any withdrawn form signed by Balwinder Kaur for issuing the amount as alleged by the opposite party No. 1. The opposite party No. 1 has stated that the original record has been destroyed as per rules. But the opposite party No. 1 has not placed on record any order of competent authority for weeded out the old record. Moreover, if amount in question relating to the FDR is due then the relevant record cannot be weeded out/ destroyed, it all creates doubt in the stand taken by the opposite party No. 1. By not releasing the maturity amount of FDR on demand by the opposite party No. 1, it creates deficiency in service and unfair trade practice on the part of the opposite party No. 1.
12 It is proved on record that Talbir Singh and Sukhraj Kaur are only L.Rs. of Balwinder Kaur and opposite party No. 1 has not taken any objection that Balwinder Kaur was having any other L.Rs except them. Moreover, the complainant has placed on record copy of Jamabandi Ex. C-6 in which mutation No. 4760 regarding the inheritance of Baiwinder Kaur was sanctioned in favour of complainant only. As such, the complainant is only has inherited the estate of Balwinder Kaur. Further more, the complainant has placed on record affidavit of Sukhraj Kaur Bajwa in which she has stated that “the deponent is totally aware and conscious while giving her consent in favour of her brother Talbir Singh Gill, and will not rise any objection in future if her brother receive any money regarding this complaint. In this way, the complainant only is entitled to receive the above money involved in the present complaint.
13 As a result of our above discussion the present complaint is partly allowed and we hold that OP No. 1/Bank is vicariously liable for wrongful act of its employees to the customers and consequently complaint is accepted and OP No. 1 is directed to make the payment of FDR Ex. C-11 alongwith interest prevalent time to time on the FDR to the complainant. The complainant is also held entitled to compensation of Rs. 7,500/- (Rs. Seventy five thousand only) for mental harassment and unfair trade practice on the part of OP No. 1 and 5,000/-(Rupees Five Thousand only) as costs of litigation. Opposite Party No. 1 is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Copy of order be supplied to the parties free of costs as per rules. File be consigned to record room.
Announced in Open Forum
Dated 23.12.2019
