KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 729/2015

JUDGMENT DATED: 23.08.2024

(Against the Order in C.C. 115/2013 of DCDRC, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN                : PRESIDENT

SRI. AJITH KUMAR D.                                                                : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                    : MEMBER

APPELLANTS:

1. Bank of Baroda, Pathanamthitta, Pathanamthitta Branch represented by its Branch Manager, Pathrose Mathai Building, Pathanamthitta-689 645.

2. Bank of Baroda, represented by its Deputy General Manager, Vasudev Building, T.D. Road, Kochi-682 011.

                              (By Adv. George Mathew)

                                                Vs.

RESPONDENT:

Shahul Hameed, Razeem Villa, Irumbanam P.O., Ernakulam-682 309.

                               (By Adv. Arun Valenchery)

JUDGMENT

SRI. AJITH KUMAR D.: JUDICIAL MEMBER

The appellants are the opposite parties in C.C. No. 115/2013 on the file of the District Consumer Disputes Redressal Commission, Ernakulam (District Commission for short).  As per the order dated 10.06.2015, the District Commission had allowed the complaint and directed the 1^st opposite party to pay 29,268.51 US dollars, with interest @ 18% as per the conversion value as on 06.06.2012 and to pay Rs. 10,000/- as costs.  Being aggrieved by the aforesaid order this appeal has been filed. 

2. The case of the complainant is that the complainant is maintaining an NRE account with the 1^st opposite party since 1993. On 24.05.2011, the complainant had deposited a DD of US Dollars 28762.62 in FCNR Term Deposit for 12 months, so that he could withdraw the amount in US dollars at any time during the said period. During September 2011 the complainant had approached the 1^st opposite party for withdrawal of the amount as he was in urgent need of foreign currency and the conversion value had reached Rs. 57/- per dollar. But the Manager told the complainant that the deposit was transferred to forward booking from FCNR term deposit by the previous Manager, and therefore, he cannot release the amount in US dollars. Though the complainant took up the matter with the Deputy General Manager, he received a reply that there was no agreement with the bank and the complainant to release the amount in US dollars.  The 1^st opposite party had credited some amount in Indian rupees in June 2012 in his NRE account.  Before crediting the amount, the 1^st opposite party had sent a scanned copy of the RLFCD deposit receipt to the complainant. The receipt shows that the amount was originally deposited in the FCNR term deposit with interest @ 1.73%.  On 21.12.2012 the complainant had caused issuance of a lawyer notice to the opposite parties to release the deposit in US dollars. The 2^nd opposite party told the complainant that by transferring the account in RLFCD the interest rate was @ 9% and if the account was continued in FCNR account the interest would fetch only 1.73%.  So, it was told that as per the request of the complainant, money was deposited in RFLCD account.  The complainant had suffered huge loss in causing a change regarding the nature of his account without his permission.  So, the complainant would seek for a direction to the opposite parties to release the amount in US dollars along with interest and compensation of Rs. 5 lakhs and costs. 

3.  The opposite parties had entered appearance and filed a joint version with the following contentions: The complainant had suppressed material facts. The opposite parties had taken due care and caution to ensure that the complainant was benefited. The complainant is not a “consumer” under the provisions of the Consumer Protection Act and hence the complaint was not maintainable. The investment was made without obtaining any consent of the opposite parties.  For facilitating such an investment, the bank had provided only assistance without any charges for the services. On 24.05.2011 the complainant had approached the 1^st opposite party and enquired about the various investment schemes available to the NRIs.  The two options with regard to the RLFCD account and FCNR account were detailed to the complainant. It was on understanding both the schemes, the complainant had opened an account under RLFCD scheme and deposited US dollars by way of a demand draft drawn on a foreign bank and instructed the opposite party to invest the proceeds in the RLFCD scheme. The date of maturity of the investment as on 06.06.2012 was intimated to the complainant. As per RLFCD investment, the maturity proceeds were made in Indian Rupee with the agreed rate of interest and credited to the NRE Account of the complainant. There is no deficiency in service on their part. They would seek for dismissal of the complaint.   

4. The evidence consists of the testimony of the complainant as PW1 and Exts. A1 to A5 on the side of the complainant.   DWs 1 and 2 were examined on the side of the opposite parties.

5.  The appellant would attack the finding of the District Commission for the reason that the order of the District Commission amounts to unjust enrichment of the complainant.  The appellants had remitted Rs. 13,86,465/- in the account of the complainant and as such the complainant did not suffer any loss.  On maturity of the deposit the amount was credited to the account of the complainant and hence the complainant is estopped from making a further claim.  The District Commission ought to have found that it lacked territorial jurisdiction to entertain the complaint as the entire transaction had taken place in Pathanamthitta.  The appellant would seek for setting aside the order passed by the District Commission.

6. At the appellate stage, a document was produced by the appellants as per I.A. No. 644/2024.  The request was allowed and the above document was marked as Ext. B1.  The counsel for the appellants had filed written notes of argument. 

7.  Heard both sides.  Perused the records.  The appellants had raised a preliminary objection that the bank never charged any amount with regard to the investment made by the complainant.  A service rendered for consideration is required for maintaining a complaint before the Consumer Disputes Redressal Commissions.  So, according to the learned counsel as the bank never charged any amount with respect to the transaction, no consumer dispute would arise.   The complainant is admittedly maintaining an account with the 1^st opposite party from 1993 onwards.  The bank had received the deposit and granted interest at a specified rate.  The whole amount deposited by the complainant was at the disposal of the bank.   The bank might have utilized that fund for banking business.  So the deposit itself amounts to consideration.  In this regard a ruling reported in 2008 KHC 7377 in “Prahlad Kumar Gupta Vs. State of UP & others” assumes significance. The principle enunciated in the aforesaid ruling is applicable to this case.  When the complainant makes a deposit in the bank that amount was at the disposal of the bank.  So it is not correct to say that the service rendered by the bank was a free service.  The objection raised by the appellants in this regard is found unsustainable.

8.  The second objection raised by the complainant is that the Ernakulam District Commission had no jurisdiction since the entire transactions had taken place within the jurisdictional limits of Pathanamthitta District .  According to the learned counsel Sec. 11(2) of the Consumer Protection Act, 1986 stipulates that the complaint had to be filed where the opposite parties do their business.  There is a specific plea in the complaint that the complainant had approached the 2^nd opposite party, the Deputy General Manager, Vasudev Building, TD Road, Kochi for the redressal of his grievances as his request for withdrawal was declined by the 1^st opposite party. The copy of the letter in this regard was also marked.  So a part of the cause of action arose within the limits of the Ernakulam District Commission.  Sec. 11(2)(c) of the Consumer Protection Act, 1986 stipulates that a complaint can be filed where the cause of action wholly or in part arises.  Since a part of the cause of action had arisen within the limits of the Ernakulam District Commission it is found that the complaint was maintainable before the District Commission, Ernakulam.  So the technical objection raised by the appellants in this regard is found unsustainable.  The learned counsel for the appellants would submit that a new deposit scheme was launched by the bank and on 06.12.2010 a circular was issued to all the branches wherein permission was granted to use the printed forms in FCNR deposits and according to the learned counsel there was no irregularity on the part of the bank in issuing a receipt intended for FCNR Scheme.  According to the appellants, the complainant had in fact intended to deposit the amount in the Indian Rupee linked scheme and later he sought for the withdrawal which was not permissible.   Ext. A1 is the copy of the deposit voucher.  The due date is shown as 06.06.2012.  The deposit voucher is a printed one intended for FCNR term deposit.  The conditions are also endorsed in Ext. A1.  Maturity value is shown as 29,268.51 US dollars.  Interest rate is also shown as 1.73%.  But a further entry is seen effected as RLFCD.  If the complainant had actually intended to deposit the amount as RLFCD the rate of interest ought to have been 9%.   Here the rate of interest is shown as 1.73% which is a clear indication that the intention of the complainant was to make the deposit in US dollars itself.  It is not a case of using the printed form for FCNR term deposit but the endorsement contained in Ext. A1 would clearly prove that the complainant had actually made the deposit as FCNR.  For making a deposit under RLFCD scheme an undertaking has to be obtained from the depositor which is a mandatory requirement. The complainant had specifically raised a contention that he never intended to make the deposit as RLFCD.  If the contention advanced by the opposite party is true and correct they could have caused production of the application form and the undertaking obtained from the complainant while making the deposit.  Since the complainant had raised a specific contention that the deposit was not made as RLFCD, one would expect the production of the application form and undertaking before the District Commission for proving the case of the opposite parties.  The opposite parties did not cause production of the best evidence, the application form and the undertaking if any obtained from the complainant while making the deposit.  The non-production of such a document would also indicate the falsity of the case set up by the opposite parties.  When the depositor wanted money to be kept as US dollars the Bank Manager had no authority to make a change in the nature of the account against the desire of the depositor.  If the complainant had actually made the deposit as RLFCD he ought not to have approached for the premature release of the amount.  His move for the premature release also indicates that the deposit was actually made in US dollars.  The appellant had also raised a contention that the complainant was estopped from raising any protest as the amount due was credited on expiration of the period stipulated in the deposit.  This contention is also found unsustainable for the reason that the complainant had already filed a request to the opposite party when his request to get the amount released before the stipulated period was declined.  He had filed a petition to the higher officials of the bank and it was not a case where the complainant remained silent.  So there is no question of estoppel.  The learned counsel for the appellant would place reliance upon a decision of the National Commission reported in (I) 2016 CPJ 618 (NC) in Navodaya Vidyalaya Samithi Vs. Chief Manager, Allahabad Bank & Ors. to canvass a proposition that the bank is not bound to allow premature termination of fixed deposit.  This decision has no application to the present dispute as the issue involved in this case is the unilateral decision taken by the bank in causing a change in the nature of the deposit.  The learned counsel would also cite a decision of Haryana State Commission reported in III (1994) CPJ 170.  It was a case where Haryana State Commission took a view that the complainant had already approached the Civil Court and hence he could not agitate the issue before the Consumer Disputes Redressal Commission.  This decision is also not applicable to the present situation. The District Commission has properly appreciated the evidence and reached a correct finding that there was deficiency in service on the part of the appellants.  We find no merit in this appeal.  Hence this appeal is dismissed. 

In the result, the appeal fails and is dismissed. Parties shall bear their respective costs. 

The respondent/complainant is permitted to receive the statutory deposit made by the appellants at the time of filing the appeal, on proper acknowledgment.

JUSTICE K. SURENDRA MOHAN : PRESIDENT

                                    AJITH KUMAR D.      : JUDICIAL MEMBER

                                                                                                         RADHAKRISHNAN K.R.  : MEMBER

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