BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL COMMISSION, JALANDHAR.

Complaint No.395 of 2021

      Date of Instt. 30.11.2021

      Date of Decision: 26.06.2024

Akshat Gupta (aged 31 years) s/o Sh. Kamal Gupta r/o 509, Cheema Nagar, Near PPR Mall, Mithapur Road, Jalandhar.

..........Complainant

Versus

1.       State Bank of India, Jalandhar personal banking branch, 37 Cool      Road, Jalandhar City, through its Manager.

2.       Senior Manager, State Bank of India, Jalandhar personal, banking     branch, 37 cool road, Jalandhar City.

….…..Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Dr. Harveen Bhardwaj             (President)

                   Smt. Jyotsna                            (Member)                                          Sh. Jaswant Singh Dhillon       (Member)   

Present:       Sh. V. K. Gupta, Adv. Counsel for Complainant.

                    Sh. A. K. Arora, Adv. Counsel for OPs.

Order

Dr. Harveen Bhardwaj (President)

1.                The instant complaint has been filed by the complainant, wherein it is alleged that the complainant is the account holder of saving account No.6501818130 with the OPs as such is the consumer of the OP. The complainant had opened some FDR accounts with the OPs, which are on record. All these FDR's accounts were opened by complainant from his personal income and savings and entire amount of these FDR's were transferred from his personal account with OP bearing account no65018181030. It is made clear that complainant is sole and exclusive owner and holder of these FDRs which is evident from the fact that Bank used to deduct TDS (Income Tax) from the accrued interest and used to deposit the same with the Income Tax department against Permanent Account Number (PAN) of complainant. However, due to love and affection names of father/mother were added as a second applicant in these FDR's, though no amount was transferred/contributed by the mother/father of complainant. Further the operation of accounts was either or survivor and standing instructions were given to opposite parties for auto renewal of these fixed deposits. The complainant has opened these FDR's accounts with long tenure intentionally with an objective for future requirements and to earn more interest. These FDRs are free from all sorts of encumbrances/charges or lien. The complainant approached to OPs on 20.08.2021 to verify actual status of above-mentioned FDR's as he was in need of money and requested concerned clerk/official to provide copies of the statement of accounts of these FDR accounts. After receipt of statement of accounts of FDR's complainant shocked to learn that FDR's pertaining to the account numbers 65184870833, 65215750718, 65215752818, 65215752885, are already en-cashed on 03.12.2019 on account of personal use. The complainant was highly surprised and shocked as he never got en- cashed these FDR and he never gave any request for the liquidation of these FDR's then how the FDRs are liquidated for his personal use. Immediately complainant requested the concerned clerk to provide the request letter submitted for the liquidation of FDR's. That said clerk failed to provide any request letter to that effect and has intimated complainant that in-fact these FDRs are liquidated by the bank itself in order to liquidate the outstanding dues of some OD limit jointly availed by father and mother of complainant. The complainant immediately requested concerned officials to provide complete detail with respect to OD facility availed by his father and mother, earlier he shows his reluctance to provide the same. When complainant asked him that he will call the police authorities and the media persons he agreed to provide entire details, and he informed complainant that father and the mother of complainant have two FDR accounts with the Bank i.e. FDR no.65045009791 for Rs.34,00,000/- with maturity value of Rs.84,84,510-00 and FDR account number 65045010071 for Rs.28,00,000-00 with maturity value Rs.69,87,244-00. Against both these FDRs they have availed Over Draft facility from the Bank i.e. Rs.30,60,000-00 and Rs.26,92,000-00 respectively. It is also informed to complainant that there was some overdue amount left in said OD account after adjusting the FDR no.65045009791 and 65045010071 as such to adjust said amount above mentioned FDR's were liquidated by the bank and proceeds were transferred to satisfaction of the dues of the Bank. The complainant immediately enquired that whether any charge or lien was over the FDR's obtained by complainant then the answer from the Bank official was in negative as no charge was ever created. More-over even the original FDRs receipts are lying in possession of complainant till date. Thereafter complainant raised objection against the act of Bank on two accounts firstly that as per RBI norms in case any person has availed "Over draft" facility against FDR then by no stretch of imagination Bank will permit any excess in OD limit since as per RBI guidelines FD margin is kept so that overdue does not exceeds the Face value of the FDR and interest thereon. As such Bank was supposed to liquidate the FDR no.65045009791 and 65045010071 when the overdue in OD accounts exceeded the face value and interest on FDR no.65045009791 and 65045010071 Secondly since all the FDR's i.e. 65184870833, 65215750718, 65215752818, 65215752885 were obtained by complainant Bank was bound to issue notice to complainant before liquidating the FDRs. Thereafter on demand of complainant concerned official failed to provide any such notice issued to complainant. Thereafter complainant requested the branch Manager to refund the amount of the complainant with immediate effect but of no use. Thereafter complainant got issued legal notice dated 10.09.2021 to the OP, but all in vain and as such, necessity arose to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay all the FDRs with upto date interest as calculated in the table. Further, to remove hold on funds imposed on account No.65045006348, 65119424559. Further, OPs be directed to pay Rs.5,00,000/- as compensation for causing mental tension and harassment to the complainant and Rs.50,000/- as litigation expenses.

2.                Notice of the complaint was sent to the OPs, who filed reply and contested the complaint by taking preliminary objections that  the complainant is estopped by his own act & conduct from filing the present complaint. It is further averred that the present dispute cannot be settled in a summary manner, since complicated questions of law and facts are involved in the present case, thus this commission is not a appropriate forum to decide the present dispute between the complainant and the opposite parties. The said case cannot be decided without leading evidence and as such the matter is liable to be referred to the Civil Court, which is the only Forum for decision of the said case on merits after leading evidence by both the parties and giving opportunity of cross examination of the witnesses. It is further averred that the FDRs of the complainant were credited by the respondent bank on 3.12.2019 in the Saving bank account of the Kamal Gupta & Yoshita Gupta and the said fact was well within the knowledge of the complainant that the FDRs, which is the subject matter of the present complaint have been credited by the respondent bank on 03.12.2019. The complainant kept mum over the matter for a period of about two years and has no right whatsoever to file the present complaint against the OP. It is further averred that there is no deficiency of service or unfair trade practices on the part of the OPs and that being so, the present complaint is not maintainable before this Commission. On merits, the factum with regard to open some FDR account with the OPs by the complainant is admitted, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

3.                Rejoinder to the written statement filed by the complainant, whereby reasserted the entire facts as narrated in the complaint and denied the allegations raised in the written statement. 

4.                In order to prove their respective versions, both the parties have produced on the file their respective evidence.

5.                We have heard the arguments from learned counsel for the respective parties and have also gone through the case file very minutely.

6.                 It is admitted that the complainant is the account holder of saving account No.65018181030 with the OPs, which is evident from Ex.C-1, the statement of account of the complainant. The parents of the complainant namely Kamal Gupta and Yoshita Gupta had two FDRs accounts with the bank bearing FDR No.65045009791 for Rs.34,00,000/- with maturity value of Rs.84,84,510/- and FDR account No.65045010071 for Rs.28,00,000/- with maturity value of Rs.69,87,244/-. Both the parents of the complainant had availed the over draft facility on their FDRs from the bank for Rs.30,60,000/- and Rs.26,92,000/- respectively. There is a dispute regarding the liquidation of the FDRs of the complainant by the bank in order to adjust the overdue amount left in the OD account of the parents of the complainant. The parents of the complainant alongwith the brother of the complainant have filed the four complaints challenging the deficiency in service by the OPs for liquidating the FDRs of the complainant without the consent of the complainant and without notice to the complainant illegally and unlawfully. The unfair trade practice has been alleged by the complainant and his family members. The family members have filed four complaints. The present complaint alongwith three other complaint pending in this commission are being decided today only since the subject matter in all the complaints is interlinked.

7.                The complainant has alleged that he got opened the FDRs from his personal income and saving. In his complaint, he has mentioned the FDRs as Ex.C-2 to Ex.C-7, total six in numbers, which were got opened by him alongwith Yoshita Gupta his mother and Kamal Gupta, his father, but from his own saving account. It has been alleged by the OP that there are second account holders also, therefore, they are also owners of the FDRs as the same are in the joint names of the complainant and his parents. The complainant has produced on record the documents showing that the FDRs were got opened by the complainant from his own account and no amount was ever transferred to his account from the account of his father or mother. The complainant has alleged since it was his independent account and no undertaking was there by the complainant to liquidate his FDRs in case of overdue in the accounts of the parents of the complainant, therefore, the complainant has challenged the legality of the act of the OPs and has also alleged deficiency in service and unfair trade practice.

8.                In the complaint, the complainant has alleged that he got the FDR No.65215752818 in the name of Akshit Gupta and Yoshita Gupta for Rs.1,25,000/- and value date was 05.11.2014, maturity date is 05.10.2019. As per Ex.C-12, on 05.11.2014, the amount of Rs.1,25,000/- was transferred from the account 65018181030 i.e. from the account of the complainant Akshit Gupta and FDR was prepared on 05.11.2014, vide Ex.C-2 and maturity value was Rs.1,93,641/-. Similarly, the amount of Rs.1,10,374/- mentioned against the account No.65215752885 was transferred from the account of complainant as per Ex.C-13 and the FDR was prepared on 05.11.2014 with maturity value of Rs.1,70,983/-, vide Ex.C-3. The amount of Rs.52,616/- against account No.65215750718 FDR was prepared on 05.11.2014 with maturity value of Rs.81,509/-. An amount of Rs.1,55,000/- against account No.65045006348 was transferred from the account of the complainant as per Ex.C-9 and the FDR was prepared with the maturity value on 01.11.2018 of Rs.3,86,794/-. The amount of Rs.12,683/- against account No.65119424559 was transferred. Ex.C-8 shows the withdrawal of Rs.12,683/- from the account of the complainant and FDR was prepared, vide Ex.C-7 with the maturity value of Rs.16,176/-. Rs.2,00,000/- were transferred in the account of 65184870833 of complainant and the FDR of Rs.2,00,000/- was prepared on 02.01.2014 with maturity value Rs.2,61,210/- as per Ex.C-6. All these documents discussed above i.e. the account statement and FDR clearly show that the FDRs were got prepared by the complainant having first name in all the FDRs. The amount was not transferred in the account of the complainant from the account of the parents of the complainant, but even if for the sake of arguments, it is assumed that the amount was transferred in the account of the complainant from the account of the parents of the complainant, then there is no bar in doing so as the parents have every right to transfer any amount in the account of their Children. The onus is upon the OPs to prove that the parents of the complainant namely Yoshita Gupta and Kamal Gupta have deposited the amount in the account of the complainant purposely having intention not to repay the loan, but there is no such plea or defence or proof given by the OPs. The matter is between the children and parents.  The OPs have nothing to do with this. The OPs business are getting interest and the interest from the loan given by the OPs to their consumers as per rules only. The OPs cannot go beyond the conditions and rules and RBI guidelines of the policy. Ex.C17 show that the messages were sent to the complainant by the OPs that the hold has been placed on his account No.65045006348 for Rs.3,55,746/-, account No.65119424559 for Rs.18,691/-, Account No.6527179074 for Rs.2,34,000/- and XXXXX424004 for Rs.18,691/-. This is not the case of the OP that notice was sent to the complainant before sending message or before liquidating the FDRs. Perusal of the FDRs Ex.C5 to Ex.C7 clearly shows that the instructions have been written on the back of these FDRs. The contents of these instructions nowhere show that the bank has been ever authorized by the complainant to adjust the amount for the repayment of overdue amount of any third person i.e. not belonging to the complainant may it be the father or mother of the complainant having different FDRs in their names. The instructions only relate regarding the renewal of the deposit automatically in order to save the customer/consumer from any loss of interest. Except this, there is no such instruction or undertaking by the complainant to the bank to disburse or adjust the amount in any other account or in the FDR account of the parents of the complainant. The act of the OP in liquidating the FDRs of the complainant without his consent and without notice is wrong, illegal and this is clear cut unfair trade practice. Though, Smt. Yoshita Gupta and Kamal Gupta are the second holders of the FDRs, but the first name is of Akshat Gupta and not of Kamal Gupta and Yoshita Gupta and there are no instructions from Yoshita Gupta and Kamal Gupta to adjust the amount in their FDRs having account No.65045009791 and 65045010071. More so, the first account holder is Akshat Gupta i.e. the complainant. More so, the FDRs Ex.C-2 to Ex.C-6 clearly shows that these FDRs have been referred to Akshat Gupta i.e. the complainant only with no other name either of Yoshita Gupta or of Kamal Gupta. Perusal of Ex.OP1-2/5 to Ex.OP1-2/10 shows that the FDRs have been closed by the bank belonging to the complainant mentioning the reason for personal use, but there is no reference for what personal use nor there is any letter of request for releasing or closing the FDRs for personal use. These FDRs were closed and the amount was debited and adjusted in FDRs account of parents of complainant without the consent and notice and knowledge of the complainant. Even there is no document filed on record by the OP to show that there was any lien or charge over the FDRs of the complainant because of which the hold was put on the FDRs of the complainant and the FDRs were liquidated. Even the Ombudsman has categorically mentioned the rules in its decision vide Ex.C-20 by mentioning, that ‘With reference to the trailing mail, we advise that bank's submission w.r.t. the captioned complaint has been examined and accordingly Banking Ombudsman's decision in this regard is "We may close it. But one thing is clear that in FD margin is kept so that overdue does not exceed the face value and interest thereon. This was not followed which bank should keep in mind in future". In the written statement, the OP has alleged that the OP has got general right of set off on these FDRs, since both Kamal Gutpa and Yoshita Gupta have taken loans from the complainant and loan account of both the borrowers became irregular and both the borrowers did not liquidate their loan account. In reconciliation meeting also it was mentioned that the bank is to act as per existing law, but the OP has not produced on record any existing law or any rule or any guidelines or policy of RBI to show that the OP has got right of set off on these FDRs, which are not related to the loan amount. This fact has clearly been observed even by the Ombudsman that bank cannot do this as the FDR margin is kept so that overdue does exceed the face value.

9.                It has been held by the Hon'ble National Commission in a Revision Petition No.2227 of 2007, decided on 16.08.2007, titled as ‘Sangli Bank Ltd. Vs. Mrs. Sushila Bajaj & Anr.’ that ‘Nonpayment of a matured Fixed Deposit Receipts by bank Deficiency in service Complaint allowed by forum below Revision petition filed Held, bank had an intention to recover loan taken by complainant's son against such Fixed Deposit Receipts though plea of Bank's lien over such Fixed Deposit Receipts was not taken Deficiency in service proved No case made out for interference’. It has been held by the Hon’ble Supreme Court in Civil Appeal No.6945 of 2004, decided on 25.10.2004, titled as ‘Anumati Vs. Punjab National Bank’ that ‘Joint Fixed Deposit Receipt Attachment and set-off of joint account against individual liability of one of the joint holders of account/receipt is not permissible in the absence of express consent or undertaking of the other joint holder of it If the amount of joint account is appropriated by the bank for individual liability of one, and other joint holder is refused the payment against the terms of option allowed to be exercised at the time of opening of the account, it is certainly a deficiency and defect in the service and the Bank is liable to make good the loss to the account.’ It has been held by the Hon’ble State Commission, in an Appeal No.1238 of 2004, decided on 05.04.2006 titled as ‘Kewal Krishan & another Vs. Allahabad Bank’ that ‘Complainant along with his wile had made a fixed deposit of Rs. 38,982/- is respondent bank which was to mature on 14.07.04 on 'either or survivor basis' - Maturity value of the same was Rs. 52,426/- Complainant had an unregistered firm in the name of M/s R.C. Sales Corporation of which he was the sole proprietor The firm had taken loan from the bank to the tune of Rs. 20,000/- A sum of Rs. 24,457,65/- was outstanding against the firm which was deducted from the amount of complainant as per order of District Forum giving rise to present appeal. The complainant had never given any authority to bank to appropriate the amount from his personal account for non-payment of loan by Corporation Appropriation of amount is not in consonance with the spirit of Section 171 of the Contract Act Amount of complainant and his wife could not be appropriated without the permission of both of them Respondent's Bank directed to pay the entire maturity value along with interest is the date of payment Appeal allowed.’ It has been held by the Hon’ble State Commission, Maharashtra, in First Appeal Nos.166 to 168 of 2009, decided on 13.01.2012, titled as ‘Shriman Malojiraje Sahakari Bank Ltd. & Anr. Vs. Shri Atmaram Pandurang Bobade’ that ‘Plea of Bank that deposit receipts stand as security for a loan taken by another person - No documents were produced regarding consent of complainant for such security - Held, said dishonour is a failure on part of opponent Bank in discharging their contractual obligation - Deficiency in service - Direction to Bank opponent to honour payment of fix deposit.’

10.              Even the undertakings given by the parents namely Yoshita Gupta and Kamal Gupta Ex.OP1-2/3 and Ex.OP1-2/4 nowhere shows that they have ever undertaken that in case of any overdue, the amount shall be adjusted from the FDRs in which they are second party alongwith their son. More so, the banks as per the RBI rules and guidelines and Ombudsman observation keep the margin in the FDRs, so that overdue does not exceed the face value and the interest thereon. This is responsibility of the OPs how to calculate and how to fix the margin in the FDRS and they cannot take the advantage of the accounts of the other relative/consumers in their bank. This is clear cut unfair trade practice on behalf of the OPs and deficiency in service and thus, the complainant is entitled for the relief.  

11.              In view of the above detailed discussion, the complaint of the complainant is partly allowed and OPs are directed to refund the money of FDRs belonging to the complainant, bearing Account No.65215752818 having maturity value of Rs.1,93,641/-, Account No.65215752885 having maturity value of Rs.1,70,983/-, Account No.65215750718 having maturity value of Rs.81,509/- and Account No.65184870833 having maturity value of Rs.2,61,210/- with interest @ 9% per annum from the date of closing/liquidation the FDR, till its realization. Further, OPs are directed to remove hold on funds imposed on account No.65045006348 and 65119424559. Further, OPs are directed to pay a compensation to the complainant, to the tune of Rs.20,000/- for causing mental tension and harassment to the complainant and Rs.10,000/- as litigation expenses. The entire compliance be made within 45 days from the date of receipt of the copy of order. This complaint could not be decided within stipulated time frame due to rush of work.

12.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated          Jaswant Singh Dhillon    Jyotsna               Dr. Harveen Bhardwaj     

26.06.2024         Member                          Member              President