Present complaint under Section 12 of the Consumer Protection Act, 1986 as amended upto date has been filed by complainant Manjit Kaur against opposite party i.e. State Bank of India, Railway road, Kapurthala through its Manager seeking direction against them to encash FDR of Rs. 1,06,660/- alongwith interest and also for monetary compensation on account of deficiency in banking service. 2. Brief facts of the complaint lie in a narrow compass. Complainant deposited Rs.1,00,000/- as term deposit with the opposite party Bank at interest @ 6.5% p.a. vide receipt No. TD/A /30/280628 on 31/1/2007 for the period of six months i.e. from 31.1.2007 to 31/7/2007. After maturity period of abovesaid term deposit, , she got renewed the same for further six months. After second maturity of said term deposit , she again got a fresh term deposit of Rs.1,06,660/- with the opposite party at interest @ 8.75% p.a. vide receipt No. TDA/49/527897 on 31.1.2008 for the period of one year i.e. from 31/1/2008 to 31/1/2009. It is alleged that complainant requested the opposite party Bank to encash the term deposit of one year before its maturity as she was in need of money but it refused to encash the said term deposit having No. TDA/49/527897 despite her repeated requests and as such opposite party committed deficiency in service against which she is entitled to the reliefs claimed. 3. Opposite party appeared, controverted allegations of the complainant and resisted her claim. . Certain preliminary objections have been raised that complainant is not a consumer and that present complaint is not maintainable because the matter in dispute is also a subject matter of of civil suit pending in the Court of Additional Civil Judge (Senior Division) Kapurthala. On merits, it is alleged that complainant had defrauded and cheated the Bank by way of forgery i.e. by manufacturing a fake draft No. 0006437661 dated 16.2.2000 drawn by State Bank of India, Railway Road branch, Jalandhar payable at State Bank of India, Railway Road, Kapurthala and presented the same through her banker Vijaya Bank, Kapurthala which was cleared by the opposite party bank presuming it to be genuine as no intimation was received by the opposite party Bank from the issuing branch and subsequently it was found that aforesaid draft was a fake draft which was wrongly paid by the opposite party Bank.. A criminal complaint under Section 420, 467, 468, 471 IPV was registered against the accused and she was found guilty and sentenced to go imprisonment for a period of two years and to pay a fine of Rs.2000/-. On 10/5/2002 opposite party Bank also filed civil suit against the complainant and her banker which is pending before Additional Civil Judge, Kapurthala . Opposite party Bank also filed application imder order 38 Rule 5 CPC dated 30/8/2008 for attaching the deposit amount of Rs.1,00,000/-. It is further pleaded that complainant approached the Bank for compromise vide letter dated 30/1/2007 and undertook to deposit a sum of Rs. 2,10,000/- with the opposite party Bank and to withdraw the proceedings against her. On 31/1/2007 she deposited a sum of Rs.1,00,000/- under FDR No. 280628 for a period of six months and discharged the same in favour of the bank. . However, the opposite party bank could not withdraw from the criminal case as the same was non compoundable though compromise can be effected in civil suit pending between the parties provided the complainant repays the entire amount which she obtained in fraud and forgery alongwith interest. Therefore, the Bank has the right of Bankers General Lien against the said amount. Complainant has therefore no right to encash her deposit receipt without clearing bank's liability. As such there is no deficiency in banking service on the part of opposite party. 4. In support of her version complainant has produced in evidence her own affidavit Ex.C1 and documents Ex.C2 to C5. 5. On the other hand opposite party Bank has produced in evidence affidavit Ex.R1 and documents Ex.R2 to R6. 6. We have heard arguments of learned counsel for the parties and perused ocular as well as documentary evidence on the record. Learned counsel for the complainant has vehemently urged before us that opposite party Bank has no right to detain that FDR amount of Rs.2,00,000/- vide receipt No. TDA/49/527897 nor she is liable to pay any amount to the Bank. Moreover FDR vide receipt No.TDA/49/527897 dated 31.1.2008 for the amount of Rs.1,06,660/- is not subject matter of civil litigation nor even in the application under order 38 Rule 5 CPC in the civil court. She has, therefore, every right to get her FDR encashed from the opposite party Bank with permissible interest. On the other hand it has been counter-argued by learned counsel for the opposite party Bank that firstly complainant committed forgery and had drawn amount of Rs.2,10,000/- and cheated the bank on account of which she is liable to pay the amount in question. Opposite party Bank is, therefore, entitled to recover the amount under the Bankers General Lien ; moreso FDR amount is subject matter of civil litigation pending in the Civil Court. 7. We have considered rival contentions of counsel for the parties. We find merit in the contentions of learned counsel for the complainant. This fact is not disputed that initially complainant deposited Rs. 1,00,000/- as term deposit with the opposite party vide FDR receipt No. TDA/30/280628 for the period of six months vide Ex.C2 and further it was renewed vide Ex.C3 upto 31/1/2008. Later on she got fresh FDR vide term deposit of Rs.1,00,000/- for one year upto 31/1/2009. D.K. Gupta Chief Manager of opposite party Bank alleged vide affidavit Ex.R1 that complainant committed fraud with the Bank by forging one demand draft No.0006437661 of Rs.2,10,000/- and that she was convicted and sentenced under Section 420, 467, 468, 471 IPC vide judgment Ex.R3 dated 15/10/2005 by the Court of Additional CJM, Kapurthala.Bank has, therefore, got right to recover this amount and civil suit is already pending vide Ex.R2 alongwith application under order 38 Rule 5 CPC for attachment of the amount in question vide Ex.R4 dated 30/8/2008. Admittedly complainant was convicted and sentenced by the Criminal Court vide Ex.R3. The perusal of neither plaint Ex.R2 nor the application under order 38 Rule 5 CPC indicates that present FDR vide receipt No.TDA/49/527897 is subject matter of civil litigation but it pertained to FDR No. TD/A/30/280628 which was no longer in existence as having been got already encashed by getting fresh FDR. Therefore, this FDR vide receipt No.DA/49/527897 cannot be said to be a subject matter of civil litigation. 8. Apropos civil liability of complainant on the basis of alleged compromise Ex.R6 dated 30/1/2007 same is conditional one that amount of Rs.1,00,000/- from the FDR may be recovered subject to withdrawl of case against her as she was not at fault in this entire unfortunate episode. . If bank does not accept offer, amount of Rs.1,00,000/- may be returned. Therefore, no particulars of FDR were mentioned and moreso it was conditional one. No blanket authority was given to the bank to detain the FDR and credit the same towards her outstanding liability, if any. Counsel for the opposite party Bank has not shown any such rules and regulations authorizing the Bank to detain the deposit of complainant to recover the liability except in accordance with law and for which opposite party Bank has been pursuing the civil remedy against her. . Therefore, opposite party bank is deficient in banking service to refuse the encashment of FDR of the complainant/depositor. In the ultimate analysis of aforesaid discussion, we accept the complaint and direct the opposite party Bank to release FDR vide receipt No. TDA/49/527897 with permissible interest alongwith monetary compensation and cost of litigation to the extent of Rs.2000/- payable by the opposite party to the complainant within one month from the receipt of copy of this order. Let certified copies of judgment rendered be supplied/despatched to the parties without any unnecessary delay and thereafter file be consigned to record room. Announced ( Gulshan Prashar ) (Shashi Narang ) ( A.K. Sharma ) 24.10.2008 Members President
