Date of Filing:  10.06.2013.                                                           Date of Final Order: 31.03.2014

        The Petition/Complaint has been filed by Shri Asis Bhattacrarjee, aged 59 years, an employee of W.B. State Electricity Board, stating that he took House Building Loan of Rs.3,00, 000/-against F.D.R etc with mortgage of his house from the SBI, Khagrabari Branch. The loan was sanctioned in three installments @ of Rs.1,00,000/-each on 15-01-2004, 17-03-2004 & 21-05-2004 respectively. The Bank received Fixed Deposit Certificates (NSCs) of Rs.17,000/-on maturity the amount of NSCs, valued double of it and refundable at the time to release him from liability of HBL. He cleared the Loan by last payment of Rs.5,102/- on 30-12-2011 and requested the O.P. to return the NSCs but to no good. Besides, the TDR was adjusted by the bank from mature value of NSCs amounting to Rs.39,193/- on 19-07-2010, during the pendency of loan, without his permission and informed him.

          He approached the Assistant Director, Consumer Affair & FBP, Cooch Behar and appeared there on 28-12-2012 and also sent a letter to the Chief General Manager, SBI but it was fruitless. The cause of action arose w. e. f. 30-12-2011 for non-returning the NSCs and dragging the matter. It has been further alleged that the shifting of burden to Post Office does not arise as the petitioner submitted these NSCs towards security of loan on condition to return these after payment of the Bank Loan. The petitioner requested the O.P Bank to re-invest the NSCs after maturity; the bank took his blank signature in TDR Voucher. He could ascertain that those were neither re-invested nor traceable for which he apprehends that the Bank Officers have misappropriated the NSCS by encashment from Post Office for the Opposite Party No.1.

He has prayed for awarding :

1. N.S.C. …………………………………………… Rs.10,000/- Maturity -  Rs.17,452/-
2. N.S.C. …………………………………………… Rs.1,000/-
3. N.S.C. …………………………………………… Rs.1,000/-
4. N.S.C. …………………………………………… Rs.5,000/-

                                                                                                              Maturity -  Rs.13,308.40

                                                                                                               Total -       Rs.30,760.40

        Travelling Expenses for going to Regional Office of S.B.I.          Rs.1500/-

       (Sky Star Building) 3 days @ Rs.500 X 3

       Mental Pain & agony suffering -                                                     Rs.20,000/-

       Other expenses for going to Khagrabari by Rickshaw                    Rs.4,800/-

       3 to 4 times per month for one year –

       Legal expenses for Tagid & Demand Letter with filing cost -        Rs.5,660/-

       Interest for withhold of the amount for 6 years from                      Rs.21,923/-

       2007 to 2013 -                                                                      ___________________

       Total claim for withholding of the amount with non-payment       Rs.84,643.40

          The Proceedings of the case speak that on 10-06-2013 Shri Asis Bhattacharjee  has filed his petition of complaint, enclosing some Xerox copies of papers and an Affidavit, before this Forum and the case was registered as DF-51/2013.After admission hearing Notice was issued. On 27-06-2013 the O.P.No.1 Bank represented by Mr. Ashim  Sarkar, Sr. Manager has entered appearance through Ld. Advocate Mr. Surajit Dattar, under authorization by “Agentnama,” who took adjournment for filing W/V on 16-07-2013;  but he remained absent without step and this Forum fixed the case in Ex-Parte Hearing on 25-07-2013. On 25-07-2013 the Opposite Party No.1 filed two petitions (1) A Petition  for vacating the Ex-Parte Hearing order and allow him to contest the case and (2) A Petition for adding  the Post Master, Head Post Office, Cooch Behar, P.O. & District Cooch Behar as Opposite Party No.2, as a necessary party in this case, of  which (1) was  allowed  & (2) was kept on record, with direction to file the Written Version on 13-0802013 and hearing the Petition (2); but on that date also prayer was filed for time and it was allowed subject to payment (cost precedent) of Rs.500/- fixing 29-08-2013 and it was filed on that date without Payment of cost. The cost of Rs.500/- was imposed on 19-08-2013 and Rs.100/- on 21-01-2014, payable to the “Consumer Welfare Fund”, West Bengal in spite of direction of the Forum.

           On 20-09-2013, the prayer in the Petition No.(2) of the Opposite Party No.1 as to adding the party was allowed and the Postmaster HPO, Cooch Behar was added as O.P.No.2 and Notice was issued fixing 08-10-2013 for S/R and appearance. On that date Shri Brajagopal Sarkar, the Post Master, Cooch Behar HPO entered his appearance through the L. Govt. Pleader Mr. Netai Chandra Dey who took time to file the W/V and it was allowed fixing 08-11-2013. It was accordingly filed on that date on affidavit. 02-12-2013 was fixed for filing Evidence of both sides but on that date the complainant filed his Evidence on affidavit. The O.P. No.2 filed his Evidence on 13-12-2013 on affidavit. It appears that the O.P. No.1 entered appearance on 20-06-2013 and till 02-01-2014 has taken 6 adjournments  showing multi-various grounds/plea and on that date , quoting the provisions of the Act and Rules there under 21-01-2014 was fixed for Argument, with liberty to file the Evidence and, Written Argument if any 2 days before the date of argument but on that date also the Ld. Advocate took time on cost of Rs.100/- to file the Evidence on 03-02-2014. On that date the O.P. No.1 filed his “Affidavit before the Notary Public, Sadar, Cooch Behar.” which  was treated as “Evidence on affidavit” u/s 13(4)(iii) of the C.P.Act.1986. On 18-02-2014 the complainant filed a statement suo-moto after supply of copy to the Ld. G.P. On 25-02-2014 he filed voluminous documents, under a List of Documents for marking Exhibits. Those have been marked accordingly in this case as Exhibits 1 to 6(series).On the said date the O.P.No.2 filed Written Argument with annexure “A”, “B”, “C” attested copy of documents. The Ld. Advocate at the time of oral argument submitted that one from every branch/person shall remain present at the Clearing House at SBI Sagardighi Square for information of out-station cheques clearance and he has placed a Certificate of the Chief Manager of the SBI, Cooch Behar Branch, in CR. It speaks that Clearing House at SBI, Cooch Behar, at Sagardighi Square is functioning as per the schedule where the representatives of all the Financial Institutions of this locality present as per their requirement. 1^st Clearing Monday-Friday Closing Time-11:20 AM, Saturday Closing Time-10:35 AM, 2^nd Clearing Monday-Friday Closing Time-15:20, Saturday Closing Time-13:05PM.

          The Written Version of the O.P.No.1 speaks that the case is barred by limitation, non-joinder/mis-joinder of necessary party besides other matters as are raised in a civil suit, have been raised at length and further that this case does not fall within the purview of Consumer Protection Act and it is liable to be dismissed in lemine with cost. He however stated the actual fact of the case that the Complainant signed his NSC against his house building A/C. No. (01593011080) New 1130626343 which has been maintained for the Opposite Party and after maturity of the said NSC the Opposite Party claim for maturity amount before the Cooch Behar H.O. and Gunjabari Post Office who have issued cheques and it were sent for collection to clearing house but those were neither credited in the party account nor re-invested the said maturity amount.

         That the NSC issued on 19-05-2001, 19-12-2001, 19-12-2000 & 19-12-2000 and the maturity date was 17-05-2007, 19-12-2006, 19-12-2006 & 19-12-2006 and it is also a duty of the Complainant to inform the Opposite Party for sending such NSC to the concern Post Office on the date of maturity and for this reason Complainant is also liable for non-reminder regarding such NSC; because it is not possible to know for the Opposite Party S.B.I., Khagrabari Branch when the customer’s NSC matured because it is not recorded in Bank’s books.

         Accordingly, the Opposite Party issued letter to the Cooch Behar Head Post Office for issue duplicate cheque but the said Post Office denied the matter and hence he has also prayed before this Ld. Forum to add the Head Post Office, Cooch Behar as the necessary party. The Opposite Party informed the present position/status of the NSC to the Complainant and also has lodged a G.D entry at Kotwali P.S for issue of duplicate cheque by the concern Post Office. It has been alleged that the Complainant intentionally filed this case to squeeze some money from the OP even knowing the facts very well. In this aspect he has filed Xerox copies of some documents (Sl. No. 1 to 15) under firisti (unsigned).

          The Opposite Party No. 2 i.e. the Post Master (H.S.G-1) Cooch Behar H.P.O. has stated in his written version dated 08-11-2013 that the case is not maintainable as it was misconceive and misconstrued both on the points of facts & Law, mis-joinder/non-joinder of necessary parties etc.. The Complainant has taken loan of Rs. 3,00,000/- by depositing NSCs and even after repayment of loan the said NSCs have not been returned to the concerned person, so the matter relates to the Bank and the Complainant and not of the Opposite Party No. 2. The Opposite Party No. 2 admitted that the copies of NSCs supplied by Shri Asis Banerjee relates to NSCs as follows :

      All the above NSCs were pledged in favour of State Bank of India, Khagrabari, Cooch Behar on 21-04-2004 vide Letter No.BM28/No.93 dated 17-01-2004 issued by the Branch Manager Khagrabari ADB, Cooch Behar. Thereafter, the said bank issued instruction under Letter No.BM/31 dated 09-08-2007 to make arrangement towards payment on maturity of the said NSCs for credit to the loan account.  On the basis of the said letter, postal cheque, bearing No. V164653 was issued on 29-08-2007 with Rs.13,617/- for the maturity payment against 3 NSCs at Sl. No.2 to 4 above & sent to the Branch Manager, SBI Khagrabari, ADB Cooch Behar vide- Cooch Behar HORL No.0265 dated 30-08-2007.

          As to the NSC mentioned at Sl. No. 1 above it is stated on the basis of documents submitted by Gunjabari TSO that the said NSC was also pledged in favour of State Bank of India, Khagrabari, ADB Cooch Behar on 02-07-2004 vide Letter No.BM No.28/94 dated 17-04-2004 issued by the Branch Manager, Khagrabari ADB Cooch Behar. Then on receipt of instruction from SBI, Khagrabari ADB under Letter NO.BM/31 dated 09-08-2007 cheque bearing No.V164491 was issued on 22-08-2007 with Rs.17,605/- & sent to the BM, SBI Khagrabari ADB.

           Finally he prayed for dismissing the case against him.

         Now, let us go through the so called “evidence in chief of petition of the Complainant on affidavit” dated 02-12-2013 in which he has stated that the Opposite Party bank avoided payment of NSCs in spite of clearing the bank loan and failed to return the NSCs in original, as it was security loan. When the bank loan was re-paid in full with interest, how  the Bank en-cashed the NSC (1) and received Rs. 17,605/- on 02-08-2007 and discharged on 13-08-2007 by cheque No. 164491 and another cheque with main Branch of Cooch Behar Post Office by cheque No. 164653 for Rs. 13,653/- dated 19-08-2007 for (2-4) 3 Nos. of NSC. The NSCs were en-cashed by the bank by virtue of the format stating the endorsement “Application for Transfer of Post Office Savings Certificate as Security”. He has enclosed Xerox copy of such unsigned endorsement by reflecting the particulars of the 4 Nos. NSCs.

          The evidence in chief of the Opposite Party No.2 speaks that it is nothing but almost replica of his written version filed on 08-11-2013, hence not discussed further to avoid duplication of work. The Opposite Party No.1 has filed an affidavit before Notary Public, Sadar, Cooch Behar which reflects almost everything alike his written version only adding “this is true to my knowledge”. Besides, the Complainant has filed a statement on 18-02-2014 stating that he took H.B.L. against security of 4 Postal NSC (1) NSC total Rs.17,000/-,(2) TDR total amount Rs.20,000/-borrowed bank loan for construction of his house. The TDR was adjusted with loan but the NSCs were not adjusted and not refunded. Those NSCs were not matured. He has retained Xerox copy of NSCs and TDR before deposit to bank and those were deposited in this Forum. He alleged that the bank with their advocate concocted and submitted false statement to avoid payment or refund the amount. As soon as the bank loan was adjusted it was the duty of the bank to return the immature NSC to the Complainant and there was no need for encashment of immature NSCs. The G.D. was made by the Opposite Party No. 1 to avoid payment. The affidavit filed by the Opposite Party is after completion of the argument for which huge time were taken so that the Complainant cannot take advantage of defense against the falsehood/plea of the 2 Opposite Parties. He has prayed that the Ld. Forum will pass Order in favour of the Complainant.

            We find that in this statement he has tried to cover up his evidence by assailing the matters in the form of such statement.

            Now, we look at the written argument dated 28-02-2014 in addition to oral arguments on behalf of the Opposite Party.

          The argument reflects stating that there is no allegation or claim of relief in the complaint petition against the opposite party no.2 and the case against should be dismissed. Further the 4 NSCs were pledged in favour of the SBI Khagrabari ADB, Cooch Behar who instructed the post office under letter to make arrangement towards payment on maturity of the said NSCs for credit to the loan account and the post office issued cheque no V164653 dated 29-08-2007 of rs>13,617/-for maturity payment against 3 NSCs serial 2-4 and sent to the Branch Manager, SBI Khagrabari ADB. As to NSC serial no.1 it accordingly sent to Gunjabari TSO in the like manner by sending the cheque no.V164491 dated 22-08-2007 for Rs.17,605/- under proper forwarding letters. The O.P.No.2 has enclosed 3 Annexures vide-“A” List showing period after which certain classes of records of the Post and Telecommunication Departments may be destroyed. Annexure “B” Letter of Post Master Cooch Behar HO No: COB HO/HOSB/Misc/Corr dated 08-04-2013 addressed to the Branch Manager, SBI, Khagrabari ADB, Cooch Behar in respect of request for Issue of Duplicate Cheques bearing no.164491 for Rs.17605/-dated 02-08-2007 & no. 164653 for Rs.13617/- dated 29-08-2007 with reference to his letter no.BM/37/HBL dated 15-03-2013 stating that the relevant records of the case are not traceable now as per preservation period of the same has already been over. Hence, necessary action towards issue of duplicate cheques could not be initiated at this end. Annexure “C” Letter to above Branch Manager under No: COB HO/NSC-KVP/Misc/Corr Dated 18-01-2013 in respect of Issue of Postal Cheque against payment of NSCs under Regn. No.23580-Asis Bhattacharjee with reference to Letter no-BM/HBL/100/A/R dated 16-01-2013 intimating that the Postal Cheque was issued in this case on 29-08-2007 with Rs.13617/- and sent to SBI Khagrabari ADB Branch Manager under Cooch Behar HO RLno-C2651 dated 30-08-2007.

POINTS FOR CONSIDERATION

             From the aforesaid discussion of materials on record, we find that the following points comes out for Consideration:

1. Whether the petitioner is a “consumer” and by the petition of complaint Shri Asis Bhattacherjee is a “complainant” in terms of the Consumer Protection Act,1986.
2. Whether this Forum has territorial/pecuniary jurisdiction to entertain the instant case.
3. Whether the case suffer from mis-joinder/non-joinder of necessary parties, baseless/based on false-hood, misconceived/vexatious/frivolous complaint and calls for dismissal u/s 26 of the Act.
4. Whether the Opposite Parties No.1 and/or 2 have deficiency in service by errors/omissions, negligence or otherwise resulting to any mental pain, agony, suffering or the like and liable for compensation.
5. Whether this Forum can direct the O.P.No.2 to re-issue fresh cheque in favour of the complainant and/or direct the O.P.No.1 to pay the matured value of the four NSCs together with compound interest from the date of its maturity interest etc.
6. Whether the complainant proved his case and is entitled to get relief(s) as prayed for in his petition of complaint/evidence.                                          

DECISION  WITH  REASON.

          In the light of discussion herein before, based on the petition of complaint, written versions of the opposite parties, evidence adduced by both sides litigants in contest, argument put forwarded we decide the Points as follows:

Point No.1.

          Whether the petitioner is a “Consumer” and by the petition of complaint Shri Asis Bhattacherjee is a “complainant” in terms of the Consumer Protection Act,1986.

          In the light of discussion herein before we can safely decide that the petitioner is a Consumer directly against the Opposite Party No. 1 i.e. S.B.I. Khagrabari ADB Branch and the Opposite Party No. 2 i.e. the Post Master,(S.H.G-1) of  Head Post Office, Cooch Behar as neither of the parties in contest raised voice in respect of these to aspects to the effect that the petitioner Shri Asis Bhattacharjee is a Consumer of both the Opposite Parties above and his petition is a complaint in terms of the Consumer Protection Act, 1986.  

Point No.2.

            Whether this Forum has territorial/pecuniary jurisdiction to entertain the instant case.

            These points are also decided in favour of the Complainant in view of the aforesaid contention.

Point No.3.

   Whether the case suffers from miss-joinder/non-joinder of necessary parties, baseless/based on false-hood, misconceived/vexatious/frivolous complaint and calls for dismissal u/s 26 of the Act.

           From the materials on record, though points have been raised in respect of above criteria no admissible evidence has been adduced by the Opposite Parties specifically but has assailed as a matter of practice in the Civil Court. The evidence does not show that the case suffers from any of the points hereinabove and thus, reasonably the question of dismissing the case under section 26 of the act does not arise.

Point No.4 & 5.

         Whether the Opposite Parties No.1 and/or 2 have deficiency in service by errors/omissions, negligence or otherwise resulting to any mental pain, agony, suffering or the like and liable for compensation.

         Whether this Forum can direct the O.P.No.2 to re-issue fresh cheque in favour of the complainant and/or direct the O.P.No.1 to pay the matured value of the four NSCs together with compound interest from the date of its maturity interest etc.

        From the discussion it is crystal clear that the Opposite Party No. 1 has miserably contributed deficiency in service by negligence and errors/omissions or otherwise by not entertaining the petition of the Complainant before it since it was brought to the knowledge of it and at that juncture also the Opposite Party No. 1 clandestinely tried to shift its responsibility upon the shoulder of the Opposite Party No. 2 i.e. Post Office by issuing letters in 2013 when those 4 NSCs matured in the year 2007 and against which the Opposite Party No. 2 had issued the cheques to the Opposite Party No. 1 in time and under proper forwarding. Those cheques were received by the Opposite Party No. 1 and those were also sent to for encashment, by clearance from the Clearing House of S.B.I. at Sagardighi, Cooch Behar. In this aspect it is pertinent to observe that those NSCs were retained by the Opposite Party No. 1 as “Security” against the House Building Loan sanctioned to the Complainant. It is a fact that in case of failure to repay the loan amount with interest and ancillary charges as per bank rules it was at liberty to en-cash and adjust with the re-payable loan amount but in the instant case the Complainant was not a defaulter and hence the question of sending those cheques for encashment and crediting in the loan account is neither feasible/tenable in Law and banking Laws/Regulations. Even if we presume that the Opposite Party No.1 bank had good contention so that the Complainant does not suffer accrual of interest due to retention of those NSCs as security, it could send those NSCs to the concern Post Offices, subject to option/approach from the side of the Complainant in whose favour those NSCs were issued. Thus, the Opposite Party bank acted beyond its jurisdiction and reasonably contributed deficiency in service by errors/omissions, negligence or otherwise resulting to immense mental pain, agony, suffering or the like and liable for compensation. Hence, the Opposite Party No. 1 is fully liable for compensation and it cannot bypass and evade the matter of payment, by shifting responsibility to others shoulder for its own wrong.

            In respect of Opposite Party No. 2 we find that the Postal authority, even if involved with the matter of NSCs but it has performed its duty properly and adequately without hindrance to anybody. The contention of the Opposite Party No.2 that the relevant papers of the NSCs are not traceable now and that preservation period of the same has already been over, cannot be ignored as because this is under the Postal Act, Rules and Regulations therein alike other departments of the Govt. Hence, we find that the Opposite Party No.2 is in no way liable to the Complainant by their any act so far and hence, the case against the Opposite Party No.2 deserves dismissal in limine reasonably imposing cost of litigation borne by the Opposite Party No. 2 by impleading at the instance of Opposite Party No.1 who could easily be satisfied with the correspondence already made by it for re-issue of cheques. It is not known whether it is feasible to issue the cheques against those 4 NSCs, afresh because it cannot be said beyond reasonable doubt that those two issued cheques have not been en-cashed by anybody else by adopting unfair means. The mere making a general diary with any P.S., without enquiry on the part of Police the fate of those two cheques cannot be instantly ascertain. It is not known whether the Opposite Party No. 1 can verify as to the fate and status of those two cheques from the concern authority where those cheques were placed for encashment.

          We are of considered view that at the event of ascertaining the fate and status of the two cheques if the Opposite Party No.1 request the Opposite Party No. 2 through their respective competent authority for re-issue of the two cheques afresh it may yield positive result in due course but for that the Complainant cannot be and should not be allowed to languish before the Bank/Post Office and/or before this Forum or any other Court or competent authority to decide the matter. This Forum cannot direct the Post Office authority to issue fresh cheques as aspired by the Opposite Party No.1 it is their discretion to act accordingly in conformity within terms and provisions of Law, rules and regulations there under.

          It is crystal clear that the Complainant suffered pecuniary loss to a considerable extent by being deprived of the interest which could he earn by investment either in the Post Office/Bank/other financial Institutions since the date of its maturity and issue of cheques (by the Opposite Party No. 2) i.e. from 02-08-2007 in respect of Rs.17,605/- and from 29-08-2007 in respect of Rs.13,617/-. Obviously, this should be adequately compensatory and mandatory and not a matter of casual approach.        

Point No.6.

          Whether the complainant proved his case and is entitled to get relief(s) as prayed for in his petition of complaint/evidence.

       From the discussion and decision arrived at in the points Nos. 1 to 5 we have no hesitation to decide the case in favour of the Complainant Shri Asis Bhattacharjee who contested the case in person have undoubtedly contributed some errors/omissions, even misleading evidence/petition etc. due to his overconfidence and being boost up of his position as a technical man in the W.B.S.E.B., sometimes even creating annoyance of the Forum by such acts/omissions which we think should be kept aside to arrive at a just and a judicious decision. It is condemned. On the other hand the Opposite Party No.1 acted very negligently and/carelessly by disobeying the Order of this Forum and conducting proceedings without following the provisions of the Consumer Protection Act, 1986, C.P. Rules, 1987 and West Bengal C.P. Rules, 1987 besides the Regulations, 2005 in spite of repeated request to follow the provisions so that the purpose of enactment of the Act is not frustrated.                           

ORDER

            Therefore, it is ordered that the complaint be and the same succeeds in part. The O.P. No.1 i.e. the Branch Manager concerned, of the State Bank of India, Khagrabari Branch is held liable for his/her negligence and/or deficiency in service towards the Complainant Shri Asis Bhattacharjee.

         The aforesaid Opposite Party No. 1 is directed to pay (1) litigation cost of Rs.5,000/-, (2) Matured amount Rs.17,605/- + Rs.13,617/- i.e. totaling Rs.31,222/- on which compound interest @ 9% w.e.f. 02-08-2007 and 29-08-2007 in respect of the date of issue of cheques by the concerned Post Offices, (3) Rs.15,000/- for mental pain, agony, sufferings and harassment. No other claim as relief is allowed on its own footings.

            Accordingly, the Opposite Party No. 1 is directed to Pay the aforesaid amount within 60 days from the date of this order, to the aforesaid Complainant.

          In the event of failure to comply with the order the Opposite Party No. 1 shall Pay cost @ Rs.50/- for each day’s delay, by depositing such accrued amount, if any, in the State Consumer Welfare Fund, West Bengal for such delay.

           The Opposite Party No. 2 i.e. the Post Master, concerned, of the Head Post Office, Cooch Behar is immune from his liability in this case.                                                                   

           Let plain copy of this Final Order be made ready and be supplied free of cost to the concerned party/Ld. Advocate on record by hand/be sent by registered post with A/D forthwith to the concerned party for information and necessary action.

Dictated and corrected by me.

                 President                                                                       President

   District Consumer Disputes                                          District Consumer Disputes                       

Redressal Forum, Cooch Behar                                   Redressal Forum, Cooch Behar                                                                                                                                                                                                                                                                                                                                                                                           

                   Member                                                                      Member

   District Consumer Disputes                                         District Consumer Disputes                       

Redressal Forum, Cooch Behar.                                 Redressal Forum, Cooch Behar.