Chandigarh

DF-II

CC/325/2019

Yoginder Diwan - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Adv. Karan S Gill & Navan Bir Gill

15 Mar 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-II,

U.T. CHANDIGARH

 

Consumer Complaint  No	:	325 of 2019
Date  of  Institution	:	15.05.2019
Date   of   Decision	:	15.03.2023

 

 

 

 

 

1]  Yoginder Diwan son of Sh.Devi Dayal Diwan,

2]  Kanan Diwan wife of Sh.Yoginder Diwan son of Sh.Devi Dayal Diwan,

Both residents of #1536, Sector 33-D, Chandigarh.  

 

            …..Complainants

 

Versus

1]  Punjab National Bank, through its Assistant General Manager (AGM), Large Corporate Branch, Sector 17, Chandigarh.

2]  Chief Manager, Punjab National Bank, Large Corporate Branch, Sector 17, Chandigarh.

    ….. Opposite Parties

 

BEFORE:  MR.AMRINDER SINGH SIDHU,       PRESIDENT

MRS.PRITI MALHOTRA             MEMBER 

                MR.B.M.SHARMA                 MEMBER

 

                               

Argued by  : Sh.Karan S.Gill, Counsel of the complainant.

              Sh.Gaurav Tangri, Counsel of OPs

 

PER B. M. SHARMA, MEMBER

         The case of the complainants is that they are Senior Citizens and maintaining Savings Bank Account No.2912000100027954 with OP Bank and holding Two FDRs bearing Account No.291200DP00012515 with maturity Value of Rs.1,36,528/- and No.291200DP00011710 with maturity value of Rs.1,35,759/-.  It is stated that the complainants on 30.3.2019 received a message (SMS) from OP Bank that entire credit balance of Rs.4,65,031/- standing in their savings account stands withdrawn/debited towards NPA Recovery of M/s Hill Crest Foods (Ann.C-1).  Apart from this, the OP Bank also declined to encash the above mentioned FDRs of complainant and hold the entire amount thereof for adjusting the same in NPA account of M/s Hill Crest Foods (Ann.C-2 & C-3).  It is submitted that the Complainant No.1 is neither a Partner nor a Co-borrower nor a Guarantor of M/s Hill Crest Foods and the Complainant No.2 is the Partner of M/s. Hill Crest Foods.

        It is pleaded that the complainants have never authorized OPs to apportion any of their amounts deposited with them towards any outstanding dues or default of any business entities for the reason that the said money was saved by them for use in their old age so that they do not have to depend on anyone.  It is also pleaded that the complainants have requested the OPs to return the illegally apportioned amount from their saving account and release the FDRs amount but the same was refused even though there was no lien available against the said account and securities entrusted to them for safe custody and there was no standing instruction or mandate from complainants to use the proceeds in respect of the said balance available by way of reduction of their bank balance. Hence, this complaint has been filed alleging the said act & conduct of the OPs as deficiency in service and unfair trade practice.

 

2]      The Opposite Parties have filed joint written version and while admitting the factual matrix of the case, stated that M/s Hillcrest Foods is a partnership firm of four partners namely – Sh.Parveen Diwan, Smt.Kanan Diwan (complainant No.2), Smt.Pali Diwan and M/s Himalayan Vegefruit Ltd.  It is stated that M/s Hill Crest Foods had availed a cash credit facility of Rs.15 Crores from OP and since the said firm failed to repay the amount, its account was declared as “Non Performing Asset” on 30.6.2018, thereafter, the OP Bank invoked the provisions of Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 against the firm and its partners for the recovery of the amount. It is submitted that since complainant No.2 Smt.Kanan Diwan is a partner of M/s Hill Crest Foods and is liable to repay the said amount, the OP Bank rightly withdrawn the amount of Rs.4,65,031/- from the joint savings amount of complainants as admittedly the said money had been transferred by complainant No.2 in said joint savings account after the account of M/s Hill Crest Foods was declared as “Non Performing Asset” on 30.6.2018 and after issuance of notice under Section 13(2) of the SARFAESI Act, just to avoid her liability (Ann.R-3 & R-4). It is pleaded that since a lien is also applicable to negotiable instruments including FDRs which are remitted to the Bank by the customer for the purpose of collection, there is no gainsaying that such a lien extends to FDRs also which are deposited by the customer.  It is also pleaded that the Bank has general lien over all forms of securities deposited by or on behalf of the customer in the ordinary course of banking business and that the general lien is valuable right of the banker judicially recognized and in the absence of agreement to the contrary.  It is further pleaded that the banker has a general lien over such securities and has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customers debit balance.  It is stated that the OP Bank is within his rights to withhold the payment of fixed deposit which is protected by concept of Banker’s lien.  Denying other allegations and pleading no deficiency in service, the OPs have prayed for dismissal of the complaint.

 

 

3]      Complainant filed replications controverting the stand of OPs as in their reply.

4]      Parties led evidence in support of their contentions.

 

5]      We have heard the ld.Counsel for the parties and have gone through the documents on record including written arguments.

 

6]      The perusal of the file reveals that in Para No.6 of the complainant, it has been admitted that the complainant No.2 is the Partner of M/s Hill Crest Foods. Ann.R-1 (Pg. 26) i.e. notice issued by OP Bank under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), 2002, it shows that Smt.Kanan Diwan, Complainant No.2 stood as Guarantor against the Credit Facilities availed by M/s Hillcrest Foods.  Ann.R-3 (Statement of Account of Himalayan Fruit Products) one of the Mortgagor & Guarantor (Ann.R-1), proves the credit/transfer of amounts from that Company into the account of Complainant NO.2-Kanan Diwan at different intervals. Further it is not denied by the complainants that proceedings under Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI), 2002 has been initiated against them by the OP Bank, which otherwise proved from Ann.R-2.

 

7]      From the above discussion as well as record, it is clear the complainant No.2 one of the partner of M/s Hillcrest Foods as well as guarantor, having outstanding liability towards the OP Bank, is liable to repay the said amount, so the OP Bank has rightly acted. It is settled law that borrower and guarantor stands on the same footing and they have the same liability towards any outstanding financial dues of a bank or financial institution.  We are of the opinion that the OP Bank has acted rightly & legally in order to protect the public money by putting lien on the FDRs of complainants as well as crediting the balance at their saving account under relevant act. Therefore, no deficiency in service is made out against the OPs.

 

8]      In view of the facts & circumstances of the case and above findings, we are of the opinion that no case of deficiency in service is made out against the OPs.  Therefore, the present complaint is dismissed being without merit. No order as to costs.

         Certified copy of this order be sent to the parties, free of charge. After compliance, file be consigned to record room.

Announced

15^th March, 2023           

                                                                                       Sd/-

 (AMRINDER SINGH SIDHU)

PRESIDENT

 

Sd/-

(PRITI MALHOTRA)

MEMBER

 

Sd/-

(B.M.SHARMA)

MEMBER