Andhra Pradesh

Nellore

cc/54/2012

Bhogyam China Kotaiah, S/o Kotaiah - Complainant(s)

Versus

The Chief Manager, State Bank of India - Opp.Party(s)

Md. Rahimkhan

14 Sep 2017

ORDER

 

                                                                              Date of Filing     :28-08-2012

                                                                         Date of Disposal:14-09-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Thursday, this the 14^th day of   SEPTEMBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.54/2012

 

1.	Bhogyam China Kotaiah, S/o.Kotaiah, Hindu, Teacher, Aged about 52 years,
2.	Bhogyam Saraswathi, W/o.China Kotaiah, Hindu, House wife, Aged about 47 years, Both are residents of H.No.10-50-42, Kacherimetta, Kavali, Nellore District.                                                                      ..…Complainants

                                                             Vs.

The Chief Manager, State Bank of India, Kavali Branch,Kavali, Nellore District.                                                                              ..…Opposite party

                                                              .  

          This complaint coming for hearing in the presence of Sri  Md.Rahimkhan, advocate for the complainants and  Sri  K. Sesha Reddy,  advocate for the opposite party  and having stood over for consideration till this day and this Forum made the following:

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

 

Originally, the District Forum, Nellore  allowed the complaint on                  06-05-2014 and aggrieved on the said order, the opposite party preferred an appeal in F.A.No.683/2014 against the order passed in C.C.No.54/2012, dated 06-05-2014 and the said  appeal was allowed on 12-01-2016 remanding the matter to this Forum for fresh  adjudication in accordance  with Law duly taking into consideration the evidence on record . 

2.     The complainants filed this complaint against the  opposite party to refund Rs.10,474/-  which was illegally debited from the S.B.Account No.10905759896 with interest  thereon at 24% p.a. from 02-10-2011, the date of lock (i.e., set hold) till the date of realisation, to award damages of Rs.20,000/- towards damages for mental agony and to  allow the complaint with costs.

 

3.     The brief averments of the complaint are as follows that: the complainants  submit that  the first complainant opened S.B.  account with opposite party jointly with 2^nd complainant who  is his wife bearing S.B.account  No.10905759896 since long back.  The monthly salary of the  1^st complainant has been crediting in the said S.B. account by the  employer of the 1^st complainant i.e., the Mandal Educational Officer, Kavali   and the complainant has been transacting  the said S.B.Account.

The complainants further submit that in September, 2011 salary of the 1^st complainant was transferred to opposite party bank for an amount of Rs.27,612/- on 02-10-2011 by the drawing officer of the 1^st complainant and the same was credited in the account of the complainants by the opposite party.  The  same is also clearly entered in the pass book of the complainants by the opposite party.  On 02-10-2011  when the complainants trying to withdraw amount through ATM  from the said  S.B.Account, the  complainants are not permitted to withdraw the amount from their S.B.Account baring No.10905759896  and the complainant informed that the account was locked for an amount of Rs.10,500/- arbitrarily without any reason.  So, immediately, the complainants approached the opposite party and requested to release   the lock to his account, since he has to withdraw his monthly salary for incurring for his regularly necessities and also urgent needs due to Dasara festival.  But after several requests and approaches, on 07-10-2011, vexed with their attitude, the complainant submitted  written representation                           dated 08-10-2011 requesting to release the lock immediately.   On 12-10-2011, the opposite party after debiting an amount of Rs.10,474/-  by making entry as “O.D. closed” from his account and without the consent of the complainants, from out of the salary for the month of September, 2011, though the complainants never obtained any O.D. facility.

The complainants submit that the attitude of the opposite party in set holding the salary  and by debiting the amount is highly illegal, arbitrary, negligence and deficiency in  service.  The complainant submit that it is the legal and bounden  duty of the opposite party to permit the  complainants to withdraw their amounts credited in their S.B.Account baring No.10905759896.  But the opposite party illegally and arbitrarily with holded an amount of Rs.10,500/- and finally debited Rs.10,474/- illegally from the account of the complainant without any reason and basis and thus committed gross negligence and deficiency in service.  Due to the said deficiency in service committed by the  opposite party, the complainants and their family members suffered great hardship, mental agony and distress due to withholding an amount of Rs.10,500/- and finally debiting an amount of Rs.10,474/- illegally from the account of the complainants as if  they  are in O.D. though they never obtained O.D.  So,  vexed with the attitude of opposite parties, the 1^st complainant got issued legal notice dated 12-05-2012 through their advocate demanding to release the lock for Rs.10,474/-  which was arbitrarily debited from the account of the complainants.  Having received the same,  the opposite parties kept quite without any reply,  hence the complainants submit to direct the opposite party to refund  Rs.10,474/- which was illegally debited  from the S.B.Account of the complainants bearing No.10905759896 with  interest thereon at 24% p.a. from 02-10-2011 the date of lock (i.e., set hold) till the date of realization, to pay Rs.20,000/- towards damages for  mental agony and Rs.5,000/- towards costs of the complaint.

4.     The opposite party filed written version with the following averments that :   the opposite party submits that it is true   that the complainants are having S.B.A/c.No.10905759696 with the opposite party bank.  That on   03-10-2006, the complainants were having Rs.5,525.47 Ps. in their S.B.Account.  But that on              04-10-2006, they  had withdrawn an amount of Rs.10,000/- through their A.T.M.  card from their S.B.account.  So it is clear that they had withdrawn an excess amount of Rs.4,500/- from their S.B.account  for which amount, they are not eligible to withdraw the same.  As such the complainants are having overdraft amount of Rs.4,500/- in his account.  So  the complainants  are due to the bank of the said  amount along with interest and  inspite of repeated demands made by the bank officials, the complainants failed to pay the amount.

The opposite party submits that the bank shall also have a paramount right  of lien on all monies, accounts, securities, deposits, goods and other assets and properties belonging to the complainants or standing to the complainant’s  credit which  are or may at any time be with or in possession or control of  any branch of the bank for any reason or purpose  whatsoever.  As such the respondent bank exercises its general lien under Section-171 of Indian Contract Act, over the amount of Rs.10,500/- and that on  12-10-2011, the opposite party bank officials  appropriated an amount of Rs.10,474/-  (i.e., an amount of Rs.4,500/-  and interest)   to the credit of the said overdraft account of the complainants and closed the said overdraft.  It is permissible under law.

The opposite party submits  that when the  complainants   approached the bank after exercising the lien, the bank officials informed to the complainants about the excess withdrawal of amount ofRs.4,500/- on 04-10-2006 and demanded the complainants to pay the amount along with the interest. The opposite party submits that  as the complainants are due to the opposite party bank, the opposite party bank exercise its general lien over the said  amount and appropriated  the amount   of Rs.10,474/-  to the said over draft account and submits for the dismissal of the complaint against the opposite party with costs.

5.    On behalf of    the complainants, affidavit  and additional affidavit of         filed as P.W.1 and Exs.A1 to A5 marked. 

6.    On behalf of the opposite party, the affidavit of R.W.1 was filed and Exs.B1 to B5 were marked.

7.    On behalf of complainants no written arguments filed.

8.   On behalf of   opposite party written arguments filed.

9.    Perused the written arguments filed on behalf of  opposite party.

10.    Arguments on behalf of learned counsels for both parties heard.

11.     Now the points for consideration are:

           (1)  Whether the  complaint filed by the complainants against the opposite

                 party under Section 12 of  Consumer Protection Act, 1986 is

                 maintainable?

 

          (2)  To what relief, the complainants are entitled?

 

         12.   POINT No.1:    The learned counsel  for the  complainant submits  by relying upon the evidence of P.W.1 and  Exs.A1 to A5 that the  complainants are   having savings bank account in  opposite party bank and the salary of the complainants will be credited in the savings bank account bearing No.10905759896  and as the  account of the complainants was locked and inspite  several requests, the account was  not transacted by depositing a sum of Rs.10,474/-  from the  savings bank account of the complainants  and  the deduction of the said amount is illegal and as there is deficiency of service, he submits to allow the complaint by directing the opposite party to pay a sum of Rs.10,474/- with interest  @ 24% p.a. from 02-10-2011 and to award damages and costs of the complaint and submits to allow the complaint with costs.  He further submits that there is no overdraft account of the complainants in opposite party bank hence he submits that the act of the opposite party is amounts to deficiency of service and submits to allow the complaint.

              On the other hand, the learned counsel for the opposite party submits  by relying upon a decision reported in  “ Bombay Dyeing  & Manufacturing Company Limited Vs.  the State of  Bombay and others reported in  AIR 1958 Supreme Court,  328 ”  that  on 04-10-2006, there was only a balance of Rs.5,525.47 is available in the savings bank account of the complainants  and the complainants draw a sum of Rs.10,000/-  from their account and the complainants draw excess amount  of Rs.4,500/-  from the A.T.M.   and inspite of issuing of notice, the complainants  failed to remit the   excess drawn amount and thus under Section-171 of  Indian Contract Act as there is lien for the recovery of the due amount and after the deposit to the  account of the complainants, the opposite party has withdrawn a sum of Rs.10,474/- with interest on Rs.4,500/- which was excessively drawn by the complainant  with interest as overdraft and   he further submits that as the banker has lien  over the amount which was taken by the complainants, he submits that there is  no deficiency of service of the opposite party as the opposite party directed the due amount which was  excessively  drawn by the opposite party on 04-10-2006 and hence as there is no deficiency of service, the complaint filed by the complainant is not maintainable and submits for the dismissal of the complaint against the opposite party with costs.

         In view of the arguments submitted by the learned counsels for the both parties and as seen from the recitals of Ex.B1 statement of transaction,  it shows that there was balance of  Rs.5,525.47Ps.  as on 04-10-2006 but the complainants drawn a sum of Rs.10,000/-,  though the available balance amount is Rs.5,525.47/-.    Thus  the complainants excessively drawn a sum of Rs.4,500/- from the A.T.M.  This fact is not disputed by the complainants  by placing satisfactory evidence. The recitals  of Ex.B1 dated 03-10-2006 for Rs.5,525.47Ps..  The contents of Ex.B1 at last page i.e., 04-10-2006 shows as follows

 

Post Date	Value Date	Ref.No.	Debits	Credits	Balance	Narration
04-10-2006 04-10-2006	01-10-2006	S043018	10000.00	4,500.00	10,025.47        25.47	ATM OD ADJ TO ATM OD DT 011006 TXN 9333.

 

       Though the complainants  filed Exs.A5, but  there is no relevant entries relating to dated  04-10-2006 in Ex.A5 pass books.

 

In Bombay Dyeing  & Manufacturing Vs.  State of Bombay and others reported in AIR 1958 Supreme Court,  328.

 

       Wherein the Hon’ble Apex Court relied upon decision held as follows: “One of the  great additions of the right of lien is that it  can be exercised for the realization of a debt even when an action for recovery of the debt would be time barred.”

         By relying upon the above decision, we are of the opinion that under Section-171 of Indian Contract Act,  the opposite party is having lien over the   amount of by the complainants.

 

In Charanjeet Kaur Vs. State Bank of Patiala  reported in  2015 (1) CPJ 8 (N.C.).

          

         Wherein the Hon’ble National Commission  held as follows:  “Bank has a general lien  on all forms of securities and negotiable instruments, deposited by  or  on behalf of customers in the ordinary course of  banking business and such  a general lien is a valuable right of the banker, judicially recognized.   In  the absence of  a contract  to the contrary, the banker has a right to use the proceeds in respect of any balance  that may be due from the  customer by way of reduction of the customers debt.”

           By relying upon the decisions  as there is no evidence on behalf of the complainants that the complainants did not  drawn  excess amount of Rs.4,500/- from  the A.T.M.   on 04-10-2006 and by relying  upon the contents of  Ex.B1, we are of the opinion that as the complainants withdrawn a sum of Rs.10,000/-  though a sum of Rs.5,525.47 is available in the account  and subsequently, the complainants did not operate their savings bank account bearing No.10905759896 and    when the complainant started operation of the  account  to deposit  the salary amount  the opposite party deducted the excess amount of Rs.4,500/- with  interest thereon in total   Rs.10,474/-  the opposite party has recovered  the due amount from the complainants as the complainants withdraw an  amount of Rs.4,500/- excessively on 04-10-2006  hence, we are of the opinion that  there is no deficiency of service on the part  of the opposite party and hence the complaint filed by the complainants against the  opposite party is not maintainable and the same is liable to be dismissed.

       By relying upon the above decisions and facts of the case, we answered this point  against the complainants and in favour of the opposite party.

       13.  POINT No.2: In view of our answering on point No.1, against the complainants and in favour of the  opposite party, the complaint filed by the complainants  against the opposite party has to be dismissed.

        In the result, the complaint is dismissed,  but in the circumstances no costs.

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the  14^th day of  SEPTEMBER, 2017.

 

             Sd/-                                                                                           Sd/-

      MEMBER                                                                                   PRESIDENT

          APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainants

 

P.W.1  -

19-03-2013      and 26-02-2014

Sri Bhogyam China Kotaiah,  S/o.Kotaiah, Working as Teacher Kavali, Nellore District (Additional  Deposition Affidavit and Affidavit filed)

 

Witnesses Examined for the opposite party

 

R.W.1  -

16-07-2013

Smt N. Sujatha, W/o.N. Ramesh Babu, Chief Manager, State Bank of India, Kavali Branch, Nellore District (Affidavit filed on behalf of the opposite party).

 

                           EXHIBITS MARKED FOR THE COMPLAINANTS

 

Ex.A1  -	-	Photocopy of  pass book in account No.10905759896 in favour of  complainants issued by  opposite party.
Ex.A2  -	12-05-2012	Legal notice from complainant’s advocate  to the opposite party.
Ex.A3  -	-	Register post receipt addressed to the opposite party.
Ex.A4  -	-	Letter from  Post Master (HSG-1), Kavali H.O.-524 201.
Ex.A5  -	-	Pass book in favour of complainants issued by opposite party in account No.10905759896.

 

                         EXHIBITS MARKED FOR THE OPPOSITE PARTY

 

Ex.B1  -	.-	Attested copy of Statement of Transaction in Account No.01190005811 in Savings Bank Account (Person) in favour of complainants issued by  opposite party from                  01-10-2005 to 19-10-2006.
Ex.B2  -	-	Attested copy of Statement of Account  in Account No.10905737099 in favour of  1st complainant  issued by the opposite party.
Ex.B3  -	-	Attested copy of Statement of  Transaction  in Account No.0109000581100 in favour of complainants  issued by the opposite party transaction details dated  04-10-2006
Ex.B4  -	-	Attested copy of letter given by the opposite party in favour of complainants relating to old and new account changing (From old Account No.01190005811 to New Account No.10905759896).
Ex.B5  -	-	Attested copy of letter given by the opposite party in favour of complainants relating to old and new account changing (From old Account No.0109000581100 to New Account No.10905737099).

                                                                                                          Id/-

                                                                                                   PRESIDENT

 

Copies to:

 

1.	Sri Md. Rahimkhan, Advocate, Nellore.
2.	Sri K. Sesha Reddy, Advocate, Nellore.

 

Date when free copy was issued: