NCDRC

NCDRC

RP/580/2013

ORIENTAL BANK OF COMMERCE - Complainant(s)

Versus

SUSHIL KUMAR JAIN - Opp.Party(s)

MR. H.P. BHARDWAJ

29 Sep 2014

ORDER

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
 
REVISION PETITION NO. 580 OF 2013
 
(Against the Order dated 22/10/2012 in Appeal No. 1509/2010 of the State Commission Haryana)
WITH
IA/1030/2013,IA/5555/2013
1. ORIENTAL BANK OF COMMERCE
(THROUGH: BRANCH MANAGER) VI & PO HATT,TEHSIL SAFIDONM
JIND
HARYANA
...........Petitioner(s)
Versus 
1. SUSHIL KUMAR JAIN
S/O SHRI RAM KUMAR, R/O ANAJ MANI SAFIDON
JIND
HARYANA
...........Respondent(s)

BEFORE: 
 HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER
 HON'BLE MR. SURESH CHANDRA, MEMBER

For the Petitioner :MR. H.P. BHARDWAJ
For the Respondent :MR. GAUTAM GODARA

Dated : 29 Sep 2014
ORDER

JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER

1.         Briefly stated facts for the disposal of this revision petition are that respondent Sushil Kumar Jain is an insurance agent.  He had good relations with the officers of the respondent bank and he introduced several accounts to the bank.

2.         The petitioner Bank wrote letters dated 04.08.2004 and 13.09.2004 to the respondent complainant alleging that he had withdrawn money from the accounts of some of those account holders by depositing cheques issued in their favour by the LIC in those accounts which were found to be fake.  Thus, vide said letters the respondent was required to deposit the amount involved i.e. Rs.1,40,000/- and Rs.4,59,191/- respectively.  In response to those letters, the respondent deposited a total sum of Rs.5,99,191/- in the sundry account during the month of August and September 2004.

3.         FIR under section 420, 467 and 471 r/w section 120B IPC was registered in respect of those unauthorised withdrawals through fake accounts allegedly opened on the introduction of the respondent.  After the investigation, chargesheet against the respondent complainant was filed.  He, however, was acquitted  in the aforesaid criminal case by JMIC Safidon vide judgment dated 04.05.2009.

4.         Before the acquittal, the respondent complainant had filed the writ petition before the Hon’ble Court of Punjab and Haryana wherein Hon’ble High Court vide order dated 17.11.2008 had directed the petitioner Bank to convert the aforesaid sundry deposit of Rs.5,99,191/- into a fixed deposit.  The petitioner Bank pursuant to the order of the Hon’ble converted the sundry account into the fixed deposit w.e.f. 17.11.2008.  After the acquittal of the respondent, the amount of the FDR has been paid to him alongwith interest for the period 17.11.2008 onwards.

5.         The grievance of the complainant is that he is entitled to the interest on FDR rates from the date of deposit of the amounts in sundry account till 16.11.2008. As the aforesaid interest was not paid by the petitioner, the respondent filed the consumer complaint.

6.         Upon notice, the petitioner resisted the complaint.  In the written statement, the petitioner took the plea that prior to 17.11.2008, the amount deposited by the respondent complainant was deposited in the sundry account and as such no interest is payable on the said amount.

7.         On appraisal of the pleadings of the parties and the evidence adduced, the District Forum allowed the complaint and directed as under:

“In view of the above mentioned circumstances, the complaint is allowed and the opposite party bank is directed to pay interest @ 10.6% p.a. on Rs.5,99,191/- from the date of deposit in the sundry account of the bank by converting the deposited amount in the FDR.”

8.         Being aggrieved of the order of the District Forum, the petitioner preferred an appeal and the State Commission Haryana dismissed the appeal with following observations:

Complainant – respondent being involved in a criminal case the disputed amount was got deposited from him.  Initially the OP-bank put the amount in sundry account and later it being challenged by way of civil writ petition no.17328 of 2007 titled Sushil Kumar Jain Versus Oriental Bank of Commerce.  Vide order dated 17.11.2008 the Hon’ble High Court ordered the amount in question to be converted into fixed deposit with bank’s lien, so that interest can be earned, on the ground and disbursement could be made as per order of the Court where criminal case is pending.  The order passed by the Hon’ble High Court is reproduced as under:

Learned counsel for the Bank states that the Bank is willing to convert the sundry account into fixed deposit amount with banker’s lien, so that interest can be earned on the amount and disbursement could be made as per order of the Court where criminal case is pending.

In view of the above, we direct respondent no.1 to convert the amount into fixed deposit and inform the Court where criminal proceedings are pending and made disbursement as per directions which may be issued by the Court where the criminal case is pending.

The  complainant being acquitted of the charges sought refund of the amount.  The OP-bank refunded the amount, however, allowed interest only from the date or order of Hon’ble High Court and not from the date of deposit raising plea that the amount deposited in sundry account does not earn any interest.  Bank being a financial institution earns from the deposits, besides in view of the consent given by the bank before Hon’ble High Court, while disposing of writ petition OP-bank could not deny interest from the date of deposit.  There was no reservation as such in the order passed by the Hon’ble High Court that interest would be paid only from the date of order.  The District Froum after considering each and every aspect of the case has rightly accepted the complaint and issued direction to the opposite party, as mentioned above.

                        No ground to interference in the impugned order is called for.

                        Finding no merit in this appeal, it is dismissed.”

 

9.         Mr. H.R.Bhardwaj, Advocate, counsel for the petitioner has contended that the orders of the foras below are not sustainable for the reason that both the foras below have ignored the fact that respondent complainant is not a consumer qua the sundry deposit made by him as the amount was not deposited is not in the capacity of the customer of the bank but as a security for the amount allegedly withdrawn by the respondent from the fake accounts of the insurance policy holders which were introduced by him.  It is further contended that impugned order is based upon the incorrect appreciation of the order of the Hon’ble High Court dated 17.11.2008.

 10.      Learned Shri Gautam Gaudhara, Advocate for the respondent on the contrary has argued in support of impugned order.  It is contended that undisputedly the amount was deposited by the respondent pursuant to the letters dated 04.08.04 and 13.09. 2004 and the said amount remained with the petitioner Bank during the period in dispute.  Therefore, the bank cannot  escape the liability of paying the interest on the same.

11.       In order to appreciate the contention of the parties, it would be useful to  have a look on the letters dated 04.08.2004 and 13.09.2004 sent by the petitioner to the respondent.  The said letters are reproduced thus:

 

 

 

Letter dated : 04.08.2004

“Sh. Sushil Kumar Jain

Safidon Mandi

 

Dear Sir,

 

            Sub:    SB Accounts opened on your introduction

It is submitted that on 21.05.2002 SB Account No. 4265 in the name of Shiv Kumar, Raj Kumar, Rakesh Kumar s/o Sh. Prem Kumar and SB A/C No. 4266 in the name of Santosh Devi, Hari Ram, Rekha Rani and on 25.06.2002 SB A/C N. 4288 in the name of Manju, Abhishek and Aditya were opened in our branch on your introduction bearing SB A/c No.3660.  Your goodself has withdrawn money from those accounts on behalf of above account holder.  Those accounts have been found fake during the course of investigation by the vigilance officer.  As such, you are requested to deposit the amount involved in those accounts i.e. Rs.1,40,000/- (Rupees one lac forty thousand only) at the earliest.

Yours faithfully

Manager”

 

 

Letter dated 13.09.2004

 

Dear Sir,

Sub:    Accounts opened on your introduction.

In continuation of this office letter No. even dated 04.08.04, it is submitted that the following SB Account were opened on your introduction and payments were taken by yourself in these accounts which have found fake during the course of investigation.

                                                                                                     LIC Cheque amount

SB A/C No. 3675

Sh. Rambilas s/o Sadhu Ram

Safidon

Amount of LIC cheque was collected in this account and payment was withdrawn by you.

69197

SB A/C 3719

1. Shashi Aggarwal

w/o Sh.Mukesh Kumar

2.  Kiran Aggarwal

w/o Narender Kumar

3.  Anil Kumar

s/o Ram Karan Aggarwal

 

LIC Cheque favouring Kisan Aggarwal for Rs.

LIC Cheque fvg. Shashi Aggarwal for Rs.

LIC cheque fvg. Anil were collected in this A/C and payment was withdrawn by you

             

 

14780

14780

54211

S/B A/C No.4116

Hari Ram s/o Sadhu Ram, Uma Garg w/o Brij Mohan

 

LIC cheque fvg. Uma Devi

LIC cheque fvg. Hari Ram were collected in this account and amount was transferred to you SB A/C 4118 and subsequently withdrawn by your self.

204276

101947

                                                                                     Total =   459191

You are requested to deposit the amount of Rs.459191-00 in this office at the earliest.

Yours faithfully

Manager

Copy is forwarded to the Asstt. Gen. Manager, Regional Office, Rohtak for information and necessary action.”

 

12.       On perusal of the above letters, it is clear that after coming to know about the aforesaid alleged fraudulent withdrawals through fake accounts opened in the names of several LIC policy holders, the petitioner Bank had called upon the respondent to deposit the amount withdrawn from said accounts till the conclusion of the investigation into the allegations.  Admittedly, FIR in respect of those transactions was registered at P.S. Safidon and the complainant was chargesheeted in that case.  Therefore, the petitioner Bank cannot be faulted in writing those letters to the complainant to safeguard its financial interest.

13.       Undisputedly, in furtherance of the above request made by the Bank, the respondent complainant instead of contesting the request opted to deposit the amount in question in the sundry account at the time of deposit.  It is not the case of the respondent that at the time of deposit, he insisted on depositing the said amount in the fixed deposit.  Therefore, in our considered opinion, the respondent complainant now after his acquittal from trial cannot insist on interest on the said amount at FDR rates particularly when no one prevented the respondent at that stage from insisting that since the amount was being deposited as a security only, it should be kept in fixed deposit.  As the amount was deposited in the sundry account as per the banking rules and norms, the deposit did not earn any interest.  Therefore, the petitioner cannot be faulted for declining to pay any interest on the said deposit.   Even in the writ petition filed before the Hon’ble High Court of Punjab & Haryana in the year 2007, the only prayer of the respondent was for direction to the petitioner to allow the withdrawal of the amount lying deposited in the petitioner’s bank in the sundry account.  There was no prayer made in the writ petition for release of said amount with interest applicable to the fixed deposit or the saving account.  Thus it is clear that all through, intention of the parties was to seek refund of the amount kept as security in sundry account.

14.       The observations of the Hon’ble High Court of Punjab & Haryana while disposing the Civil Writ Petition filed by the respondent is noted as under:

“Learned counsel for the Bank states that the Bank is willing to convert the sundry account into fixed deposit amount with banker’s lien, so that interest can be earned on the amount and disbursement could be made as per order of the Court where criminal case is pending.

In view of the above, we direct respondent no.1 to convert the amount into fixed deposit and inform the Court where criminal proceedings are pending and made disbursement as per directions which may be issued by the Court where the criminal case is pending.”

15.       The above directions of the Hon’ble High Court are based upon the statement at Bar made by learned counsel for the petitioner.  It is nowhere mentioned in the order that the sundry deposit account would be converted into fixed deposit account retrospectively.  Even if we analyse the statement made at the Bar by learned counsel for the petitioner, he only offered to convert the sundry account into fixed deposit account with banker’s lien and he never consented to convert the sundry account into fixed deposit account from the date of deposit by the respondent.

16.       Thus, in our view, the impugned order of the State Commission is based upon misinterpretation of the statement made by learned counsel for the petitioner in the writ petition and the above noted order of the High Court.

17.       Admittedly, the amount in question was deposited by the respondent in sundry account which do not carry any interest.  Therefore, the petitioner Bank cannot be held deficient in service in refusing to pay any interest on the sundry account against the norms of the bank.

18.       In view of the discussion above, we are of the opinion that orders of the foras below are based upon incorrect appreciation of facts.  As such, the orders of foras below cannot be sustained.  Revision petition is, therefore, allowed, orders of foras below are set aside and complaint is dismissed.

 
......................J
AJIT BHARIHOKE
PRESIDING MEMBER
......................
SURESH CHANDRA
MEMBER

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