JUDGEMENT
The fact of this case in nutshell is that the complainant has business transaction with Ops and complainant has been operating a savings bank account vide no. 540010110004300 with Ops since 2010 and on date 26.07.2021 the complainant opened TDR vide A/C no. 540045110002415 and the said TDR was matured on dt 26.07.2022 having maturity value of Rs 22,81,780.89/-. That said TDR was submitted to Ops as lien towards overdraft loan account in the name of SB Trading a partnership firm of three brothers including complainant. But on dt- 09.06.2021 the Ops without the knowledge or authorization or notice, closed the said TDR with penal charges of Rs 83890/- treating the premature closure and credited an amount of Rs 19,89,259.89/- to complainants S/B account but on intervention of Banking Ombudsman the said penal charges of Rs 83890/- was refunded to complainants account. And further Ops bank debited an amount of Rs 6,24,245.66/- from complainants S/B account towards closer of SB Trading Overdraft Account. And also Ops created a new TDR in the name of Complainant debiting Rs. 13,73,014.23/- at a lesser interest rate of 5% from original TDR interest rate of 6% for which complainant lost monetary loss of Rs. 6,91,586/- .
It is a matter of fraud made by a partner namely Sanjay Kumar Behera who told Ops to close the OD loan account from TDR for SB Trading by signing in the name of Sanjib Kumar Behera (Complainant) due to his disability and another partner for which already criminal case is pending for fraud of Rs 30,00,000 from SB Trading.
The complainant further states in the complaint that the transfer was made under right to set-off which is not maintainable because complainants SB A/c has credit balance of Rs 9,50,477.08 on dtd. 09.06.2021.
So, there was no need to close the TDR under right to set-off. It is also alleged that total amount could not be set off from one of borrowers (complainant) when all the three Borrowers have deposit accounts with OPs bank.
In the deed of partnership para 7 (b) no partners shall singly bind the partnership by taking any loan or raising any money whether with or without security. Para 7 (c) the profit or loses as the case may be divided as aforesaid after signing of such accounts. Para 7 (c) all law suit shall be filed and defended by the partnership by the partners acting jointly in all cases which involves partnership financially.
In the letter of set-off para 2, I/we also authorised you to withdraw and appropriate the amount of any such balances of term deposits and also the interest accruing there on before the due date there of for satisfaction of the amount due in my/ our liabilities (actual or contingent) to you without any prior reference or notice to me/us.
But the complainant raised two important grounds -1. The Ops have not been able to substantiate their initial claim that they have received application from the complainant towards closer of TDR on dated 09.06.2021. Pre-closer of TDR account without customers request is deficiency service.
2. The Ops submitted in writing for the TDR needed to be closed in order to close SB Trading OD account is due to audit compliance. This has neither any Legal standing.
So, under the above circumstances the complainant prays to (i) direct Ops to pay an amount of Rs 6,91,586/- towards monetary loss. (ii) Direct Ops to pay Rs 2,90,000 /- as compensation. (iii) To impose exemplary and punitive costs on Ops of Rs 2,90,000/- (iv) Direct Ops to pay interest 12 % per annum.
Complainant relies on the following documents as follows
(i) Disability Certificate R-2 (ii) SB Account No 540010110004300 (iii) Short deposit receipt R-4 (iv)Whatsup message R-5- series (v) Whatsup message R-8- series (vi) Email letter R-11 series (vii) Letter of set-off R-16 (viii) RTI information R-22 (ix) Monetary loss calculation sheet R-26
On the above circumstances notice issued to Ops. All Ops appeared and filed their written version where they strongly denied the allegation. Ops submitted that on the strength of letter of set-off executed by complainant, Bank closed the TDR to satisfy the loan outstanding of SB Trading as the OD account went Bad and shows overdues, Penal charges of bank towards closer of TDR was refunded to complainant due to intervention of Banking Ombudsman. Complainant had requested bank for closing new TDR to credit in his SB account on dated 29.06.2021. Ops bank is not liable to pay any compensation. On the above situation Ops relied on following documents.( Photo copies)
(i) Statement of A/C.
(ii) Partnership Letter.
(iii) Letter of set-off.
(iv) F.D receipt.
(v) Deed of partner.
(vi) Demand promissory note.
(vii) Change of Specimen signature.
In the above situation following issues are framed to decide the case.
- Whether the case is maintainable?
- Whether Ops bank has made any deficiency of service /unfair trade practice or not?
- Whether the letter of set-off is applicable to a customer of partnership firm?
- Whether the complainant is entitled to get any relief sought for? All the issues are discussed jointly to answer the issues.
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It is admitted fact that partnership firm has a loan dues out standing which became overdraft due to non payment. The complainant has TDR fixed deposits and SB accounts deposits along with loan account of partnership firm. Other two partners who are the brothers of complainant had also account with OP bank. The allegation of complainant is that without knowledge/ notice /consent of the complainant the TDR is closed and new TDR is created on lesser interest for which complainant lost money which is deficiencies of service and un fair trade practice. On verifying the documents it is clear that the complainant has not given consent to close the ODs of SB Trading Company Ltd. One partner namely Sanjay Behera gave consent to close the loan account by deducting money from account of Sanjib Behera identifying himself as Sanjib Behera which is a fraud and criminal offence. Bank without verifying the document has acted intentionally to settle loan account which is a unfair trade practice and deficiency of service. In para 4 of partnership deed it is clearly mentioned that the partners shall distribute the profit and bear the losses in equal share in this situation Ops bank cannot close the loan by deducting fixed deposit money or creating new TDR or depositing money in SB account of complainant without his consent or without verifying the consent of other partners. On the other hand if we see the letter of set-off on which bank is giving special emphasis which is duly executed by the complainant. But such power can not be illegally used by Ops bank for which the bank is liable for it. In this case complainant has cited the decision off Apex court.
Page 6: The banker is supposed to safeguard the interest of the depositors when his amount is entrusted to the custody of the Bank and the Bank is liable to return the amount with interest. In the absence of any direction of any directions from the customer, no banker can unilaterally and arbitrarily transfer the money of a depositor from his account and deposit in the account of another customer. This amounts to deficiency in service by the bank. (Dilip Madhukar Kambli Vs. Nilesh Vasant Borkar and Ors 1991 (1) CPR 571(SCDRC- New Bombay, Maharashtra).
Page 15: Where the records showed that the bank made mistakes, on more than one occasion, in crediting/debiting the account(s) of the complainant company and corrected the same after considerable lapse of time, the bank was held liable for deficiency of service in as much as such frequency of mistakes within a span of an year or so, affected the confidence in the banking system. (Assam Import Agency Ltd. V. Chief Manager, UCO Bank & Anr 1997 (3) CPR 314 (SCDRC Rajastan).
Page 18: A total of six transfers were made from the complainant’s account without her knowledge and hence this complaint. The banks contention that three transactions were made on the basis of authority letter signed by the complainant, the signatures of which were confirmed by the handwriting expert. The complainant did not offer herself for cross examination on the facts started in the affidavit, through the bank wanted her to. However, it was found that the other three withdrawals were without any authorisation and therefore the bank was liable to credit those amounts with interest and damages were also awarded for mental sufferings. (Geetha Nayar Menon & Anr. v. State Bank of India & Anr. 1998 (1) CPR 325 (SCDRC Karnataka).
So this case is maintainable. Ops bank has made unfair trade practice and deficiency of service. The complainant is entitled to get the relief sought for. In this case Op 2 and 3 has not made any unfair trade practice/deficiency of service.
ORDER
The complaint case is allowed on contest. The Ops No.1 is directed to pay the complainant of Rs 6,91,586/- towards monetary loss and Op1 is further directed to pay complainant Rs 2,90,000/- as compensation for mental harassment, cost of litigation within 15 day of receipt of this order.
And it is further directed that if Op1 is failed to comply this order within 15 days of receipt this order it shall carry 9% interest on total amount of Rs 9,81,586/- from the date of this order.
The Order is pronounced in open Commission today i.e on 21st April 2023.
