Ld. Advocate(s)

                                                For Complainant: self

                                                For OP/OPs : Suvankar Bhattacharya

                        Date of filing of the case                          :06.05.2022

                        Date of Disposal  of the case                   :23.04.2024

Final Order / Judgment dtd.23.04.2024

          The concise fact of the case of the complainant Adhar Prasanna Dutta had a Bank Account with Canara Bank Krishnagar Branch bearing account no.127000175005. The OP Canara Bank Krishnagar Branch opened one fake loan account in the name of the complainant without his consent and authorisation for Rs.15,50,000/- through cheque without signature and authentication for opening an account on 30.09.2021. OP Bank withdrew Rs. 15, 50,000/- from that said fake loan account and transferred it to the complainant’s saving account without the knowledge of the complainant. The complainant immediately asked the Branch Manager on the same date after receiving SMS about the reasons but the OP failed to give any reason. On the contrary Branch Manager secretly debited the whole amount of Rs.15,50,000/-  on the same date from the complainant’s saving Account without  his consent. Thereafter, the complainant informed it to the senior authorities of the Bank, the vigilance team and the complaint cell by written mail on 11.11.2021. The complainant also discussed the same with the vigilance officer of Canara Bank Mr. N. Chinna Babu with a request to ascertain the fraud. Despite that the Bank Authorities did not pay any heed to the same. Even after six months of the incident the OP only provided the Saving Account statement but denied to give account transaction details. Again the complainant sent one e-mail on 23.03.2022 but the OP Bank did not give any explanation to the same. This type of fraudulent conduct of the OP bank caused mental pressure and agony to the complaint who is a senior citizen. The said misdeed of the OP caused harassment and agony to the complainant for which he prayed for compensation of Rs.2, 00,000/-. So the complainant filed the present case with the prayer for compensation of Rs.2,00,000/- for harassment and mental pain and agony  and to close the fake loan account immediately with proper written explanation.

The OP contested the case by filing written version denying all the major allegations.  The OP Canara Bank Krishnagar Branch file W/V challenging the case as not maintainable and barred by limitation as well as the complainant is not a consumer under the law.

 The positive defence case of the OP Canara Bank in brief is that the complainant is a bonafide customer of OP. On 05.08.2021 the complainant filed one written application requesting the OP that “We have an account no. 3324101002031 along with FD account of Rs. 31,00,000/-. We want to avail term loan CC against our FD”. You have been requested to please consider our term loan / CC account rate of interest not more than 1% of FD rate or that we transferred our account bulk deposit or CC account from another bank in future.  It be mentioned that in order to sanction an OD against their own deposit with concession ROI not more than 1% of FD rate, which comes under the power of AGM- RO- CAC.  After receiving the said letter on 05.08.2021 the OP forwarded the request letter dtd. 10.08.2021. Having received the said letter the Higher Authority considered the proposal based on the customer’s request letter. Having received the green signal, the OP informed the matter to the complainant on 28.09.2021 and after receiving consent from the complainant on the same date the OP prepared the loan paper and called on both the claimants to put their signature on the said loan document.  The Complainant no 2 came to the branch of the OP with a request letter duly signed by both the claimants and requested the OP to disburse the loan. The OP again requested the complainant no.2 to bring his father to sign the filled up loan documents. Accordingly, the complainant no. 2 went to bring his father with a request to continue the process of disbursement. The OP in good faith and relying upon the sweet words of the complaint, the OP opened the said OD and disbursed the loan of Rs. 15,50,000/- through Saving Account  No3324101002031.  There was an addition or deletion charge of Rs. 59/-. The complainant informed the OP that they will not pay any account charges for the OD and if any charge is imposed the complainant will not avail the OD. OP informed that they have no power of waiver of any charge. Since there was total unwillingness on the part of the complainants to avail OD so the OP finding no other alternative reversed all the transaction and closed the OD on 28.09.2021.  The OP again requested the complainant to sign the loan papers which are supposed to sign on the same date but the complainant assured the OP Bank to visit next day to open OD account against own deposit, it requires NF 969 account opening form and signature card. Those documents are not agreement but the request from the borrowers with term and condition as NF form which was primarily accepted. The total banking system is depended upon the good faith and good services. OP relied upon the words of the complainant in order to open the said OD. Since there was refusal on the part of the complainant to execute necessary documents so the complainant cannot be treated as a consumer under the OP and there was no deficiency in service.”

OP therefore, claimed that the complaint should be rejected with sufficient cost.

The conflicting pleading of the party led this Commission to ascertain the following points.

Points for Determination

Point No.1.

Whether the present case is maintainable in law for barred by limitation.

Point No.2.

          Whether the complainant is entitled to get the relief as prayed for.

Point No.3.

          To what other relief if any the complainant is entitled to get.

Decision with Reasons

Point No.1.

 The OP challenged the status of the complainant as not Consumer. The complainant categorically pleaded that the OP had conducted some fraudulent transaction by which the complainant suffered loss. From the   evidence in the case record it transpires that the complainant answered that “He had document to show that he is a consumer under the OP”. It further appears that the OP put a question to the complainant as to whether he submitted any written letter jointly with the complainant no.2 on 05.08.2021 with a request for over draft facility against his deposited amount. The complainant answered “yes” as per Bank formalities. The said question answer signifies that the complainant had deposited some amount against which over draft facility was sought for. So unless the complainant is a customer under the OP no.2 this type of banking transaction cannot take place.

 It further appears that the nature of the transaction between the complainant and the OP took place for financial purpose and not for any other non banking purpose. So the relation between the complainant and the OP falls within the relation of consumer and service provider.

 So, the complainant is held a consumer under the C.P.Act.

Accordingly, Point No. 1 is therefore decided in favour of the complainant.

Point No.2 and 3

Both the 2 and 3 are very closely inter linked with each other and as such 1 these are taken up together for brevity and convenience of discussion.

The complainant in order to substantiate the case filed and prove the following the documents.

Annexure: A is the certificate issued by Bank regarding mistake done by them in crediting   account dtd. 30.09.2021.

 Annexure: B is the letter by the Assistant General manager of OP bank to the complainant dtd. 19.05.2022.

Annexure: C is a letter by complainant to the Arunjit Dutta of vigilance with Canara bank dtd. 11.11.2021.

 Annexure: C is the another letter by the OP Bank to N. Chinna  Babu dtd. 09.12.2021.

 Annexure : C is the another letter dtd. 11.12.2021 issued by the complainant to Arunjit Dutta.

 Annexure: D is the letter by Aruinjit Dutta to N. Chinna Babu dtd. 13.12.2021.

 Annexure: E is the letter by the complainant to Arunjit Dutta dtd. 23.12.2022.

 Annexure E is the another letter by the complainant to Aruinjit Dutta dtd 26.12.2022.

The complainant categorically stated that the OP Bank opened one fake loan account in the name of the complainant without their consent bearing account number 127000175005 for Rs.15,50,000/-

without signature or authorisation of the complainant on 30.09.2021. As part of the said transaction the Bank first withdrawn Rs.15,50,000/- from the said fake loan account and transferred to the complainant’s saving account. On the same day the Branch Manager of the OP bank secretly debited the said amount of Rs. 15,50,000/-from the saving account of the complainant without their consent and without any cheque or instruction from the complainant and without their signature. The said allegation stands fortified from the evidence of the complainant. OP no. 1 stated  in cross examination  against question no. 6 that the Branch Manager informed him that if special concession on loan interest is proved by the higher authority, both of us as  joint  loan applicant need mandatory signature on the loan form and agreement paper.  Only then the loan will be disbursed. When he asked me to take loan for that purpose, I informed him that even after eye operation my father was still suffering from several eye problems and it was not possible for him to come to the bank at that time. It was not even possible for him to sign anywhere at that time. So even if we got the loan, it was not possible for them to take the loan at that moment.

 So from the aforesaid answer in cross examination it is crystal clear that the complainant was not in a position to take loan at the relevant time.

 The complainant further stated in the cross examination against question no. 8 that “Branch Manager informed him on that date, if that the special concession loan is approved by the higher authority of the bank, then both the joint holder have to sign the loan and agreement. As the first holder of the loan applicant my father is a senior citizen who was suffering from eye problems due to his eye operation at that time, so he was not able to sign at that time. So on that day there was no more acceptance of correction of loan form. That the complainant was not willing to take the loan is further evident from the answer given in the cross examination. The complainant categorically stated in answer to question 10 of cross examination by the OP that instead of keeping the customer interest intact in this unethical and fake finance, the bank authorities have completely embarrassed us as customer by hiding all the information. Only we could find out that a new fake account was opened in our name by Canara Bank Krishnagar Branch without our knowledge and Rs.15,50,000/- was withdrawn from it without our signature as a customer. We have just received the trace of the withdrawal of this amount through mobile SMS. When we repeatedly asked the Bank Authorities for detailed information about this unethical and fake financial transaction and its reasons and whether more money was withdrawn from this bank for the loan in our name, they kept us in dark without giving any information”.

An answer given in cross examination has a special effect. So it appears that huge amount of loan transaction done without the knowledge of the complainant which tantamount to mental pain and agony to the complainant.

 If the said transaction was genuine then the bank could not have reversed the entire transaction. The complainant in course of argument hammered this point. The argument has reasonable force in as much as the complainant stated in cross examination against answer to question no.13 stating inter alia that till today they are not properly aware about the fake account opened in their name without informing them. That is why they repeatedly asked the bank authority for the reason for opening this fake account but without getting any response they filed this case.”

 The documentary evidence also corroborate the contention of the complainant.  Annexure : A is a certificate issued by the Manager OP Bank dtd. 30.09.2021 wherein it is categorically certified that we had mistakenly credited the account number 3324101002031 belonging  to Mr. Adhar Prasanna Dutta  and Mr Arunjit Dutta by Rs. 15,50,000/-  due to operational  error and  have also reversed the wrong transaction on the same day. We are heartily sorry for any inconvenience cause”.

This certificate strengthened the allegation of the complainant.

 Annexure B is a specific answer given by Assistant General Manager to the complainant dtd. 19.05.2022 against the complaint of the complainant.  In the said letter OP bank stated inter alia that “We have cross examined the merit of your complaint and taken due cognizance of action of branch and action has been initiated against the official concerned. We regret for the inconvenience and hardship caused to you. We assure you not to give further room for any such complaints for future.”

 So through the aforesaid letter OP admitted their fault and lacuna with an assurance for not recurring such type of incident.     

Other documents also disclosed that Bank Authority and the complainant exchanged different correspondences on the basis of the specific allegation and action taken by the OP Bank.

 Complainant further argued that due to eye operation the complainant Adhar Prasanna Dutta could not go to the bank. So it is crystal clear that he never signed any document for taking the loan and as such there is violation of KYC.

 The argument is reasonable force since previously we have found that the OP Bank admitted that it was their mistake.

 After perusing the case record it appears that OP bank could not substantiate their defence case.

OP could not file any document to show that the complainant signed any document like loan agreement or application for loan account. The complainant also categorically answered in question no. 10 during cross examination filed reply to questionnaire that the said amount was not transferred to their line saving account as per their letter dtd. 28.09.2021. The authenticity of any such information is unknown to them.

The question is completely baseless since “We have not signed any loan account form, loan agreement paper as per bank rule for opening a loan account,”

So the question of transferring money to the account does not arise.

 The OP tried to establish that the transaction was reversed by the Bank as per request of the complainant to close the said OD over phone.

 The complainant answered against question no. 12 in cross examination That “we have never requested the fraudulent bank authority to close the fake account in any way.”

 The OP tried to establish their case by putting so many questions during cross examination but the complainant refuted and discarded all questions during cross examination. It is important to consider that the complainant categorically stated in answer to question no. 19 that “We have not received any rejection document by banking ombudsman till date. The complainant also answered to question no 20 as to whether you ever executed any documents in regard to the said proposed OD that “never”. That is why my claim as complainant is that the OD account fraudulently opened in our name by the bank without our knowledge.”

OP tried to make out defence case that the OP received one application on 05.08.2021 with a request to avail term loan CC against their FD for Rs. 31,00,000/- at the rate of not more than 1% of FD rate. After receiving the said application the OP forwarded the request letter on 10.08.2021. The Higher authority of OP considered the proposal based on customer request letter. After receiving said green signal from the higher authority the OP informed it to the complainant and after receiving the consent from the complainant the OP prepared the loan paper.

 But OP could not file those documents which they have marked as Annexure : A, B and C. The OP further contended that the complainant filed a request letter for disbursing the said loan which is marked as Annexure  D. OP also could not file that  document.

It is further defence case that OP relied upon the sweet words of the complainant and opened the said OD as per the request and disbursed the amount of Rs. 15, 50,000/- to their saving account.

 It is hard to believe that a Bank would disburse the loan just on the sweet word of the customer without sufficient documents. Any plea taken in a case should be reasonably proved with cogent and succinct evidence. In absence of specific and sufficient evidence it cannot be considered that the OP could establish the defence case in their favour. Previously we have found that the complainant duly proved the case through oral and documentary evidence which the OP could not discard.

OP seems to have filed some copy of letter dtd. 05.08.2021 by Adhar Prasanna  Dutta  to the OP Bank, recommendation letter dtd. 10.08 but the  year is not legible.  Another recommendation by the OP Bank dtd. 31.08.2021. Another letter by Adhar Prasanna Dutta  to the Branch Manager.

Complainant challenged all these documents. Ld. Adv for the complainant argued that these documents are filed after the trial and argument is over so these documents should not be taken into consideration. The argument as reasonable force as such as the original documents of Annexure A to D filed by the complainant after the trial is over  and argument is completed. So since the complainant challenged the said documents so the court does not take cognizance of this document since the complainant has been deprived of cross examining over those documents. So it does not help the OP and also does not reduce the specific evidence led by the complainant.

 In the back drop of the aforesaid discussion and having assessed the evidence in the case record, the commission is of the view that the complainant proved the case up to the hilt against the OP.

Accordingly, Point no. 2 and 3 are answered in affirmative and decided in favour of the complainant.

          In the result the complainant case succeeds on contest with cost.

Hence,

It is

Ordered

that the complaint case no.CC/46/2022 be and the same is allowed on contest against the OP with cost of Rs.5000/-(Rupees five thousand). The complainant do get an award for a sum of Rs. 2,00,000/-(Rupees two lakh)  towards compensation  for harassment and mental pain and agony. OP Bank is directed to stop the loan account of the complainant as per the provision of Banking Rules and Regulations set forth by the RBI guide line.  The OP is directed to pay Rs. 2,05,000/- to the complainant  within  30 days from the date passing the final order failing which the entire award money shall carry an interest @ 8% per annum from the date of passing the award till the date of its realisation.

All Interim Applications (I.A) stand disposed of  accordingly.

D.A to note in the trial register.

The case is accordingly disposed of.

Let a copy of this final order be supplied to both the parties at free of costs.         

Dictated & corrected by me

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                PRESIDENT

(Shri   HARADHAN MUKHOPADHYAY,)                                      ................................................

                                                                                                                          PRESIDENT

                                                                                              (Shri   HARADHAN MUKHOPADHYAY,)

I  concur,

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MEMBER                                                                

(NIROD  BARAN   ROY  CHOWDHURY)