KERAL A STATE CONSUMER DISPUTES REDRESSAL COMMISSION
VAZHUTHACAUD THIRUVANANTHAPURAM
CC.04/2008
JUDGMENT DATED 27.10.2012
PRESENT
SHRI.K.CHANDRADAS NADAR -- JUDICIAL MEMBER
Stanley Lawrence Pereira,
S/o Lawence A.Pereira,
C/o Nobert Miranda Serene, -- COMPLAINANT
PRA No.139, Pottakuzhi, Pattom.P.O.
Thiruvaanthapuram.
(By Adv.G.S.Kalkura)
Vs.
M/s.Standard Chartered Bank,
HDFC House, M.G.Road,
Ravipuram Junction, -- OPP.PARTY
Ernakulam, reptd. by its Manager.
(By Adv.Sreekala Krishnadas)
JUDGMENT
SHRI.K.CHANDRADAS NADAR,JUDICIAL MEMBER
This is a complaint filed under Section 17 of the Consumer Protection Act.
2. The opposite party is the Standard Chartered Bank, Ernakulam Branch represented by its Manager. It is alleged by the complainant that he was a customer of ANZ Grindlays Bank and had deposited a total amount of Rs.32,18,336/- for a period of three years with automatic renewal for further period and with maturity amount due as 51,58,912/-. The opposite party had taken over the ANZ Grindlays Bank with all its assets and liabilities. The four fixed deposits were renewed for a further period of 3 years and the amount due on maturity in the year 2002 came to Rs.67,37,797/-. The complainant was employed abroad at Abu Dhabi. He had apart from his job his own business enterprise. For the purpose of his business the complainant had availed a loan of AED 3,00,000/- amounting to Rs.35,00,000/- approximately from ANZ Grindlays Bank Abu Dhabi and as security for the said amount the complainant offered the 4 fixed deposits to the bank and signed security documents. As per the terms and conditions of the loan, it had to be repaid in 48 instalments of AED 7466/- per month. The complainant repaid 16 monthly instalments at the said rate up to December 2000 but could not effect subsequent payments due to unforeseen developments. The subsequent monthly instalments which was outstanding amounted to AED 218712/- equivalent to Rs. 26,00,000/-. At that point of time, the deposits offered by the complainant as security had a face value of Rs.58,99,349/-. The fixed deposit receipts were offered as security only for recovery of unpaid balance amount of Rs.26,00,000/-. The complainant was illegally imprisoned in Abu Dhabi Jail for several years. The United Appellate Court of Abu Dhabi, Penal Division found that the complainant was totally innocent of all the charges and he was acquitted as per letter dated 10.4.05. Immediately, after the pronouncement of the Judgment he returned back to India. On returning to India, he requested the opposite party to transfer the proceeds of the deposits referred to earlier to the Bank of Baroda, Palayam Branch, Thiruvananthapuram. There was no response from the opposite party to the letter dated 22.11.05. Hence as per letter dated 28.11.05 he once again requested the opposite party to transfer the proceeds of the fixed deposits to the SB Account maintained at Bank of Baroda, Palayam Branch. There was no positive response to the said letter also. The complainant was surprised and shocked when he was informed that the opposite party was not maintaining any account of the complainant. The papers connected with the fixed deposits of the complainant were not available with the opposite party. However, the complainant was asked to come over to the branch after few weeks. On 31.3.06 when the complainant again visited the opposite party bank, a statement was worked out by the Manager on the scribbling pad without reference to any account showing that the amount due to the complainant was only Rs.9,83,816/-. The manager of the opposite party/Bank could not explain how such a figure was arrived at. There was no documentary evidence as to how the said figure was arrived at. No account book or any ledger book were perused for arriving at such a figure. The opposite party claimed that an amount of AED 140952 amounting to Rs.16 lakhs was adjusted as balance due under the loans availed by the complainant. It is alleged that the complainant had not offered as security the fixed deposit receipts for any other loan. The other loan was availed on the strength of the undertaking given by the employer of the complainant. The amount covered by the 2nd loan was Rs.16 lakhs. The security given for the said loan was transfer of salary and terminal benefits. The opposite party has no manner of right to adjust the fixed deposits to any other loan account for which the fixed deposits were not given as security, even if there was any outstanding amount. The said adjustments were made without the consent or knowledge of the complainant. The complainant had at no point of time given permission to the bank to transfer the proceeds of the fixed deposits to Abu Dhabi. There was no necessity to transfer all the 4 fixed deposits to Abu Dhabi Branch also. As per letter dated 5.4.06 complainant requested the opposite party to effect payment along with the actual statement of accounts.
3. Meanwhile, the complainant approached the Banking Ombudsman seeking settlement of accounts of the complainant. The opposite parties did not respond. They did not produce the statement of account or any documentary evidence before the Ombudsman. However, the Ombudsman dismissed the matter without assigning any reason or recording any evidence from the complainant. He challenged the decision of the Ombudsman before the Hon’ble High Court of Kerala in WP(C ) No.13603/06. The Hon. High Court as per Judgment dated 5.12.07 quashed the order of the Ombudsman and permitted the complainant to approach a competent Forum of his choice for reliefs. The complainant sought to condone the delay in approaching this Commission on the ground that he was bonafide pursuing the remedies before the Banking Ombudsman and the Hon. High Court and the delay was condone. Deficiency in service on the part of the opposite party is alleged mainly because of their failure to retain the admitted amount due to the complainant in his account. It is further alleged that the opposite party is pressurizing the complainant to execute various documents to set their records straight after making illegal adjustment. It is also alleged that the opposite party had illegally made unjust enrichment by retaining substantial amount belonging to the complainant. Due to their deficiency in service, negligence and default, the complainant has suffered considerable mental agony and hardship. He claimed refund of the entire balance amount covered by the fixed deposits with interest at the rate of 12% per annum after effecting adjustment of the actual amount due under the loan for which fixed deposits were offered as security. He further claimed compensation of Rs.1 lakh and an amount of Rs.25,000/- towards expenses. As per the relief portion in the complaint the balance net amount due to the complainant was Rs.50,38,711/-.
4. The opposite party filed version admitting that the complainant was a customer of ANZ Grindlays Bank, which merged with standard Chartered Bank (opposite party). It is further admitted that the complainant held four fixed deposits in the bank in the joint names of the complainant and one Mr.Paul Sajan Pereira. The opposite party contended that the said Mr.Paul Sajan Pereira and the complainant had availed credit facilities from ANZ Grindlays Bank, Abu Dhabi. The facility was availed on the basis of various documents executed by both and was given on the basis of charge created over the fixed deposits maintained by them with ANZ Grindlays Bank, Ernakulam. The agreements creating charge over the deposits were executed by the petitioner and Mr.Paul Sajan Pereira. They intimated the banks branch at Ernakulam about the creation of the charge as per notices dated 13.8.96, 12.9.96, 30.12.96 & 19.1.97. The complainant committed default in repaying the loans and therefore ANZ Grindlays Bank Abu Dhabi, enforced the charge over the deposits held by its Branch at Ernakulam as per instruction dated 26.12.2000. Accordingly an amount of Rs.57,41,667.42, the total value of the deposits as on the date was transferred and remitted to the Abu Dhabi Branch. A sum of Rs.9,83,816.87 was the balance amount after appropriating the loan amount. The said amount is still lying with the ANZ Grindlays Bank, Abu Dhabi as the same was neither claimed by the complainant nor by Mr.Paul Sajan Pereira. Hence the amount if at all to be paid by the opposite party is limited to Rs.9,83,816.87. The complainant approached the bank on 22.11.05 requesting them to transfer the present value of the deposits to NRE account No.513 with Bank of Baroda, Palayam Branch, Thiruvananthapuram. The said letter was issued with fraudulent intention to cheat the opposite party and to obtain unlawful gain. On receipt of the letter, the opposite party orally requested the complainant to submit documents to prove identify, signature and address of both the account holders along with a letter duly signed by them. The same was required as per bank norms since the account was lying dormant for more than 8 years. Letter dated 25.11.05 was issued by the opposite party to the same effect. But the complainant never approached the opposite party with any document as requested. But in turn sent letter to the banking Ombudsman on 28.11.05. The petitioner visited the opposite party bank immediately after they filed all documents with the Ombudsman. The bank officials handed over the statement of the loan account and explained the details by working out the same in a scribbling pad. The crooked petitioner snatched the paper and has produced the same before this Commission. The opposite party was also ready and willing to make payment at any time provided the complainant produced documents to prove identity, signature and address of both account holders with a letter duly signed by both since the deposits stood in the joint names of the complainant and Paul Sajan Pereira . But instead of approaching the bank, the complainant approached the Hon. High Court. It is contended that the bank transferred the funds to the Abu Dhabi branch on the basis of the authorization and charge created by the complainant and Mr.Paul. The writ petition was allowed and the complainant is permitted to approach any other forum. The complainant cannot be permitted to do forum shopping. The complainant has un-necessarily dragged the opposite party to three rounds of legal battle. Hence the complaint is liable to be dismissed.
5. The complainant gave evidence as PW1. Exts.P1 to P14 were marked on his side. No oral evidence is adduced by the opposite party. Exts.R1 to R 21 were marked on their side.
6. The points that arise for determination are:-
1. Whether on the proved facts and circumstances
deficiency in service on the part of the opposite party is
established?
2. If so what are the reliefs, if any, to be granted to the
complainant?
7. POINTS NOs.1& 2;-
It is admitted that the complainant was a customer of ANZ Grindlays Bank, Ernakulam and he held 4 fixed deposits in the said bank. The total amount deposited in 1996 was Rs.32,18,336/-. Admittedly the ANZ Grindlays Bank was subsequently merged with the opposite party standard chartered bank. It is also not in dispute that the complainant and his son had availed two loans from ANZ Grindlays Bank, Abu Dhabi for the purpose of their business. The allegation in the complaint is that the 4 fixed deposits were offered as security only for the first loan of AED 3 lakhs amounting to Rs.35 lakhs approximately. The complainant insists that he had not offered as security, the four fixed deposits for the second loan subsequently availed. Both the assets and liabilities of ANZ Grindlays Bank were taken over by the standard chartered bank. It appears that the complainant was put in Abu Dhabi Jail for quite some time. He was ultimately acquitted of the charges against him as per Judgment of the United Appellate Court of Abu Dhabi dated 10.4.05. In the meanwhile no repayment of the loans availed was made. It is admitted that the complainant had paid promptly the instalments due till he was jailed in Abu Dhabi. It appears that as per instruction issued from the Abu Dhabi Branch of the opposite party dated 26.12.2000 an amount of Rs.57,41467.42 towards the total value of the 4 fixed deposits on that date was transferred and remitted to the Abu Dhabi Branch. But, it is pertinent to notice that on the date on which the amount was transferred to Abu Dhabi Branch a sum of Rs.9,83,877.87 was available as balance after appropriating the entire amount due under the loan accounts. Though, the opposite party has claimed that they have produced a detailed statement of account from the Abu Dhabi branch before the Ombudsman and before this Commission, Ext.R10 the alleged detailed statement of accounts is not that much detailed. The contention of the opposite party is that the amount if at all to be paid to the complainant, is limited to Rs.9,83,816.87 mentioned above.
8. It is in the above background, the complainant initially approached Ombudsman and subsequently the Hon.High Court of Kerala challenging the order of the Ombudsman. Ext.P13 is the copy of the order of the Hon’ble High Court permitting the complainant to proceed in an appropriate Forum. This aspect is not challenged. It was accordingly, the complainant approached this Commission. The delay in filing the complaint is already condoned in the light of the circumstances explained earlier. The question is whether on the admitted facts and revealed facts deficiency in service on the part of the opposite party can be found. I have referred to the definite admission of the opposite party that as on the date of adjusting the fixed deposit amounts towards the 2 loan accounts, balance amount of Rs.9,83,816.87 was due to the complainant. Yet all the fixed deposits were transferred to Abu Dhabi Branch. According to the opposite party, Exts.R1 to R4 authorizes them to do so. Exts.R1 to R4 only creates charge over the fixed deposits due under the loans availed from the Abu Dhabi Branch. The executants were the complainant and his son. Exts.R5 to R8 are only notices creating charge which confirm the creation of the charge. The question is whether creation of charge over fixed deposits authorizes the opposite party to transfer even the legitimate balance due to the complainant. It is pertinent to notice that the fixed deposits were made with the Ernakulam Branch of the Bank. The creation of charge authorizes the opposite party to transfer amounts sufficient to satisfy the loan accounts for which charge was created and nothing more. It follows that the opposite party ought to have transferred only such amount as was required to satisfy the loan accounts. It is true that according to the complainant he specifically created charge only for the amounts due under the first loan. But nevertheless amount was due from the complainant and his son to the bank under valid loans availed by them. Being deposits held by the bank from the same persons they might have been justified in adjusting the fixed deposits towards the loan accounts and no deficiency in service can be spelled out because of that. But no circumstance justifies the transfer of the legitimate balance due to the complainant and his son to a foreign branch. Being the balance amount in fixed deposits the bank ought to have held the amount at the Ernakulam Branch itself. The deposits were automatically renewable. Further it is an amount which was utilized by the bank in the normal course of business and they have derived benefit from the amount. But no renewed deposit was made. Therefore, the complainant is entitled to claim interest for the said amount from 26.12.2000 when adjustment was made. The opposite party has committed deficiency in service on these aspects.
9. It is contended by the opposite party that the amount due was not disbursed because documents such as identity, signature etc. demanded from both complainant and his son were not given. The case of the complainant appears to be that the authorization by his son was really given. But he deposed that copy of the authorization is not with him. His son made no request to the bank to release the amount to the complainant. At the same time, he admitted that deposits are in the name of his son as well. But the formalities as per law will have to be complied with by the complainant before getting the amount released. It follows that suitable reliefs and directions will have to be issued to rectify the deficiency in service on the part of the opposite party. The points are found accordingly.
In the result, the complaint is allowed as below. The opposite party is directed to furnish detailed statement of accounts relating to the 2 loans availed by the complainant from the Abu Dhabi Branch up to 26.12.2000 and detailed statement of the amount due as per the 4 fixed deposits made by him, as on the said date. After adjusting the loan amounts the actual balance not less than Rs.9,83,816.87 (or the actual amount if more) shall be disbursed to the complainant with interest at the rate of 9% per annum from 26.12.2000 till the date of realization on production of documents relating to the identity, proof of signature and address of both the complainant and his son Paul Sajan Pereira. The complainant is allowed to realize Rs.20,000/- as compensation for the deficiency in service committed by the opposite party and Rs.10,000/- towards costs. The order shall be complied with within one month from the date of this order.
K.CHANDRADAS NADAR -- JUDICIAL MEMBER
SL
APPENDIX
EXHIBITS FOR THE COMPLAINANT
Ext.P1 : True copy of the fixed deposit receipt of Rs.5,77,479/-
Dated 5.8.06.
Ext.P2 : True copy of the fixed deposit receipt of Rs.9,68,000/-
dated 4.9.96.
Ext.P3 : True copy of the fixed deposit receipts of Rs.7,00,000/-
Dated 14.11.96.
Ext.P4 : True Copy of the fixed deposit receipt of Rs.9,72,857.28
dated 21.1.97.
Ext.P5 : True copy of the Judgment of the United Appellate
Court of Abu Dhabi dated 10.4.05.
Ext.P6 : True copy of the letter issued by the complainant to the
opposite party dated 22.11.05.
Ext.P7 : True copy of the notice on the scribbling pad issued by
the Manager of the opposite party bank dated 31.3.06.
Ext.P8 : True copy of the letter of sanction of the loan account
issued by the opposite party dated 20.7.97.
Ext.P9 : True copy of the undertaking made by the employer of
the complainant in favour of the opposite party
dated 7.7.97.
Ext.P10 : True copy of the letter sent by the complainant to the
opposite party dated 5.4.06.
Ext.P11 : True copy of the complaint filed before the Banking
Ombudsman.
Ext.P12 : True copy of the communication dated 10.4.06.
Ext.P13 : True copy of the judgment in W.P.(c ) 13603/06
dated 5.12.07.
Ext.P14 : True copy of the statement of account worked out by
the complainant before filing the complaint.
EXHIBITS FOR THE OPPOSITE PARTY
Ext.R1 : Agreement executed by the petitioner and Paul Sajan
Pereira dated 18.8.96.
Ext.R2 : Agreement executed by the petitioner/Stanly L Pereira
and Paul Sajan Pereira dated 12.9.96.
Ext.R3 : Agreement executed by the petitioner and Paul Sajan
Pereira dated 30.12.96.
Ext.R4 : Agreement executed by the petitioner and Paul Sajan
Pereira dated 19.1.97.
Ext.R5 : Agreement executed by Paul Sajan Pereira dated
18.8.96.
Ext.R6 : Agreement executed by Stanly Lawrence Pereira dated
12.9.96.
Ext.R7 : Agreement executed by Stanly Lawrence Pereira dated
30.12.96.
Ext.R8 : Agreement executed by “ “ “ dtd.19.1.97
Ext.R9 : Outgoing call receipt.
Ext.R10 : Receipt of standard chartered Grindlays statement.
Ext.R11 : Letter issued from Stanly Pereira to the Branch Head,
HDFC House, Kochi dated 22.11.05.
Ext.R12 : Reply letter issued to Lawrence Pereira, Ernakulam to
Mr.Pereira dated 25.11.05.
Ext.P13 : Letter issued to the Banking Ombudsman, Reserve
Bank of India, Thiruvananthapuram dated 28.11.05.
Ext.P14 : Office of the Banking Ombudsman letter issued to
Stanly Lawrence Pereira dated 30.11.05.
Ext.P15 : Office of the Banking Ombudsman letter issued to
Sri.P.V.Raveendran dated 13.1.06.
Ext.P16 : Office of the Banking Ombudsman issued a letter to
Stanly Lawrence Pereira dated 16.2.06.
Ext.P17 : The Deputy Secretary, Reserve Bank of India issued a
letter to Stanly Lawrence Pereira and Mr.Paul Sajan
Pereira dated 1.3.06.
Ext.P18 : Deputy Secretary Office of the Banking Ombudsman
sent a letter to Vijaykumar, Asst. Secretary dated
6.3.06.
Ext.P19 : The Hon. Banking Ombudsman, Reserve Bank of India
sent a letter notice to Stanly Lawrence Pereira dated
20.3.06.
Ext.P20 : M/s. Standard Chartered Bank, HDFC House issued a
letter to Mr.Hari.M.K, Branch Manager dated 5.4.06.
Ext.P21 : The Deputy Secretary, Reserve Bank of India issued a
letter to Mr. Stanly Lawrence Pereira dated 10.7.06.
COMPLAINANT WITNESS
PW1 : Stanly Lawrence Pereira
OPPOSITE PARTIES WITNESS: NIL
K.CHANDRADAS NADAR -- JUDICIAL MEMBER
SL
