Complainant in person
Advocate Tryambake S.S. for the Opponents
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Per Hon’ble Shri. V. P. Utpat, President
:- JUDGMENT :-
Date – 3rd April 2013
This complaint is filed by the account holder of the Opponent Bank for deficiency in service. Brief facts are as follows-
[1] The complainant is a retired Officer and senior citizen. He had opened various accounts in Opponent No.1. He had saving account with the Opponent No.2 since last six years prior to the filing of the complaint. He had kept F.D. with the Opponents. On 31/12/2011 at about 12 p.m. he had visited branch of the Opponent No. 2 for withdrawing Rs.20,000/- from saving account. The amount of Rs.50,400/- were in balance of the said account while leaving the premises of the Bank by accepting Rs.20,000/-. The said amount was snatched by Bank Authorities forcibly. The Bank has also with held term deposits of the complainant worth Rs.4,50,000/-. When complainant had made inquiries about action of the Opponent No.2 it was informed that he had availed education loan for his son Rohit Bhole from Khadki Branch and balance amount of Rs.3,20,000/- is outstanding in the loan account. According to the complainant he never signed any loan document and opponents have no legal right to seize the saving account as well as term deposits without notice and without sufficient reason. The act of the opponents amounts to deficiency in service hence the complainant has demanded compensation of Rs.10,00,000/- for mental and physical harassment, Rs.8,00,000/- by way of damages for trouble caused due to freezing of account and term deposits, cost to the tune of Rs.10,000/-, Advocate fees Rs.10,000/-. The total claim of the complainant is Rs.18,20,000/-.
[2] The Opponents appeared and resisted the claim by filing written version and denied the contents of the complaint in toto. It is flatly denied that the opponents have caused deficiency in service as alleged. The contents as regards the harassment to the complainant are also denied. It is the case of the opponents that the complainant and his son Rohit Bhole approached to the Khadki Branch and applied for education loan. The initial amount of Rs.1,10,000/- was enhanced upto Rs.1,92,700/-. Complainant himself and his son had executed agreement for term loan request letters on various dates. The repayment of the said loan was to be started after five years from the disbursement of loan. However as per the schedule neither the complainant nor his son paid single installment. As the complainant is borrower of the opponents, the opponents have every right to keep lien on the amount kept in saving account as well as term deposits. The right of the Bank is called and recognized as ‘ Right of set off ’. Hence by with holding the accounts of the complainant the opponents have not caused any deficiency in service. The complaint is false and frivolous. Complainant himself had returned the amount of Rs.20,000/- which was withdrawn by him. The opponents have prayed for dismissal of the claim as the complainant is defaulter borrower and is liable to pay the loan amount of Rs.3,35,561/-.
[3] After scrutinizing the documentary evidence which is adduced on behalf of both parties, considering the affidavits and arguments of both parties, following points arise for my determination. The points, findings and the reasons thereon are as follows-
Sr.No. | POINTS | FINDINGS |
1 | Whether the opponents have caused deficiency in service by with holding the term deposits as well as saving account ? | In the negative |
2 | Whether the complainant is entitled for any relief ? | In the negative |
3 | What order ? | Complaint is dismissed |
REASONS
As to the Point Nos. 1 to 3 –
It reveals from the documentary evidence which has been adduced on behalf of the complainant that the complainant had opened saving account with the branch of the Opponent and on the date of alleged incident there was sufficient balance in his account. The facts as regards withdrawal of Rs.20,000/- on 31/12/2011 by the complainant from his saving account is not at all disputed by the Opponents. In order to substantiate this fact the statement of complainant which is recorded by police on 19/1/2012 is produced by the complainant himself and in that statement he had admitted this fact. He had also admitted that the Bank had locked his saving account hence the amount which was wrongly paid was returned by him. The reverse entry was also taken in the passbook.
It is the case of the complainant that he has no concern with the loan account which is standing in the name of his son and his son is not a party to that loan transaction. In order to rebut this contention the opponent has produced voluminous documents alongwith list such as original loan application, agreement for term loan executed by complainant as well as his son, the extract of loan account which is disclosing that the amount of Rs.2,33,253/- was outstanding. It is crystal clear that the complainant did not approach this Forum with clean hands. He has suppressed material fact that he had obtained education loan for his son and that is outstanding.
According to the complainant eventhough it is accepted for the sake of convenience that certain amount is due from him the opponent has no legitimate right to withheld the F.D. as well as saving account which is in his name as there is no nexus between these two transactions. Complainant has failed to establish with cogent documentary evidence that amount of Rs.4,50,000/- was kept in Fixed Deposit as alleged.
The learned Advocate for the Opponents argued before me that the banker has lien over securities received from customer in ordinary course of banking business and has right to use proceeds in respect of balance that may be due from customer by way of reduction of customer’s debit balance. He has placed reliance upon the judgment between Syndicate Bank vs. Vijay Kumar and others (05.03.1992 – SC) which has been reported in AIR 1992 SC 1066. The entire law as regards banker’s lien is thoroughly discussed in the said ruling and ultimately it has been observed that,
“The Banker has lien over F.D.R. s and the Banker had right to hold it. As per the definition Banker’s lien on negotiable securities has been judicially defined as “an implied pledge”. A banker has, in absence of agreement to the contrary, a lien on all bills received from a customer in the ordinary course of banking business in respect of any balance that may be due from such customer”
Prima-facie it has been established that the education loan is due from the complainant as well as from his son. In such circumstances I have no hesitation to held that the Opponents have every right to withhold the F.D.R. as well as saving account by way of lien as well as right of set off u/s 171 of Indian Contract Act.
The learned Advocate for the Opponents also argued that if the Bank has refused withdrawal of the amount from the saving account when loan amount is due then that does not amount to deficiency in service.
As it reveals from the ruling cited by the learned Advocate for the Opponents, the Opponents have rightly withheld the amounts of F.D. and saving account. In my opinion there is no deficiency in service hence complainant is not entitled for any compensation.
I answer points accordingly and pass the following order-
* ORDER *
1. The complaint is dismissed.
2. As per peculiar circumstances parties to bear their own
costs.
Copy of order be supplied to both the parties free of cost.
Place-Pune
Date- 03/04/2013
