IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA
Thursday the 22nd day of November, 2020.
Filed on 01-02-2020
Present
- Sri.S.Santhosh Kumar BSc.,LL.B (President )
- Smt. Smt.C.K.Lekhamma, B.A, LLB (Member)
In
CC No.31/2020 & CC No.32/2020
between
Complainants:- Opposite parties:-
- Nafsiya 1. General Manager
W/o Shani South Indian Bank Mission -
Velasserril Quarters, TB road, Thrissur
Panur, Pallana P.O. Pin:- 680001
Thrikkunnappuzha
Alappuzha- 690515 2. The Manager
South Indian Bank
2. Siyad Karthikappally branch
S/o Abdul Latheef Alappuzha -690516
Valayamparambu (By Adv.P.K. Mathew for opp.
Panur, Pallana P.O. parties 1 & 2)
Thrikkunnappuzha
Alappuzha- 690515
(By Adv.Smithesh.M for
Complainants 1 & 2)
O R D E R
SRI. S.SANTHOSH KUMAR (PRESIDENT)
CC No.31/2020 & CC No.32/2020 Common order.
CC 31/2020
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly discussed are as follows:-
Complainant approached the manager of 2nd opposite party for a housing loan. It was agreed and her original title deed and previous title deed were collected by the manager. It was informed that the loan will be sanctioned after 2 months. Thereafter though the complainant approached the manager several times it was informed that the loan application is in progress.
Later when she approached the bank it was realized that the said manager had done some misappropriations in the bank and he was arrested by the Police in a case. The act of the bank not granting the loan after collecting the documents amounts to deficiency of service. Hence it is prayed that the opposite party bank may be directed to return the original title deed no. 1214/13 and the previous document No.1606/1996. She may be allowed a compensation of Rs.1,00,000/- for mental agony and difficulties sustained by the act of the opposite parties.
2. Opposite party filed a version mainly contenting as follows:-
The complainant has not approached this Forum with clean hands. The complaint is frivolous, vexatious and scandalous. Complainant is not a consumer and there is no deficiency of service on the part of the bank.
The internal investigation conducted by opposite party bank has identified various fraudulent activities embezzling of funds from certain customers without their knowledge/ consent. A crime was registered as No.1190/2017 of Kareelakulangara Police Station and it was re-registered by CBCID as CBCID FIR No.190/CR/EOW KLM/2017. Later as per the order of Hon’ble High Court the investigation was taken over by CBI and the case is re-registered as RC 9 (A)/2019/CBI/ACB/Cochin.
Complainant is holding SB A/c 53.10749jointly with her husband Mr.Shani in the Karthikappally branch and SB account 53.6541in the name of Mr.Shani at Alappuzha branch.
One Mr.Brijesh N.B was branch head of the Karthikappally branch for the period from 19.04.2014 to 25.07.2017. Sri.Brijesh N.B while being the branch head indulged in various fraudulent activities embezzling funds from certain customer accounts without their knowledge or consent, creating fake gold loan accounts. When it was detected the matter was informed to the police and a case was registered. As per letter dated 15.07.2017 Sri.Brijesh N.B admitted misappropriation. He confessed during the internal investigation that the funds misappropriated were provided to various persons. In some of these cases title deeds of immovable properties were obtained by Brijesh though no security by way of mortgage was created or any loan documents were obtained. The investigating officer in CB CID 190/CR/EOW KLM/2017 had inventoried such title deeds lying unaccounted. The title deeds pertaining to the complainant are one such case.
Sri,Brijesh N.B as part of the internal investigation of the bank has confessed for having provided an amount of Rs.9,00,000/- to the complainant as unauthorized funds. Title deeds were obtained by Mr.Brijesh for providing such unauthorized funds but without accounting in the books of account of the bank. Hence there was collusion between the complainant and Mr. Brijesh and it is under investigation. The intention of the petitioner by moving this complaint is to frustrate the investigation. Any decision favouring the complainant will prejudicially affect the criminal investigation. Compensation claimed is highly excessive. Complainant is ill motivated and barred by limitation. Hence complaint may be dismissed with cost.
CC No.32/2020
Complaint filed under Sec.12 of the Consumer Protection Act, 1986.
Material averments briefly discussed are as follows:-
Complainant approached the manager of 2nd opposite party for a housing loan. The manager collected his original title deed and previous title deed and required 2 weeks time for granting loan. Though the complainant visited the bank several times the loan was not granted. Later he came to know that the manager was involved in misappropriation of funds and he was arrested by the police in a criminal case. As per the direction of the manager an account was opened for housing loan and without granting loan the bank has committed deficiency in service. Hence bank may be directed to return the original title deed and previous title deed. Complainant is also seeking a compensation of Rs.1,00,000/- for mental agony.
Opposite parties filed a version more or less with same contentions raised in the version filed in CC 31/2020. It was contented that Sri.Brijesh N.B who was the previous manager had misappropriated large amount for which a case was registered by the local police and now it is under the investigation by the CBI. The complainant had approached the Forum with unclean hands and the compensation is highly exorbitant.
As per order in IA 169/2020 dated 28.09.2020, joint trial of both cases were allowed. Hence complaint may be dismissed with compensatory cost.
- On the above pleadings following points were raised for consideration:-
- Whether the complainant in CC 31/2020 is entitled for return of documents as prayed for?
- Whether the complainant in CC 32/2020 is entitled for return of documents as prayed for?
- Whether the complainants are entitled to realize compensation to the tune of Rs.1,00,000/- each from the opposite party as prayed for?
- Whether there was any deficiency of service from the side of the opposite party bank?
- Reliefs and costs.
- Point No.1 to 4
For the sake of convenience these points are considered together. PW1 is the complainant in CC 31/2020. She filed an affidavit in tune with complaint and marked Ext.A1 to A4. During cross examination B1 and B2 were marked. PW(a) is the complainant in CC 32/2020. He filed an affidavit in tune with the complaint and marked Ext.A5 and A6. During cross examination Ext.B1 and B2 were marked.
RW1 is the present manager of opposite party No.2. He filed an affidavit in tune with the version and marked Ext.B3 to B10.
RW2 is an Inspector of CBI, Ernakulam. He is the investigating officer regarding the fraudulent transaction occurred in the bank. The title deed of the complainant in CC 31/2020 was seized by CB CID and produced before the JFCM court, Haripad. During investigation it was revealed that there was misappropriation of funds and part of the same were given to complainants in both cases and the husband of the complainant in CC 31/2020. At this stage documents cannot be returned. The case was registered by CBI as per Ext.B2 FIR. Copy of mahazor prepared on 19.05.2018 was marked as Ext.B11.
Complainants in this case have filed this complaint against opposite parties for getting back their title deeds. There case is that both of them approached opposite party No.2 manager South Indian Bank Ltd., Karthikappally branch for availing housing loans. Though title deeds and connected documents were collected from them the loan was not sanctioned. Finally when they approached the bank they came to know that the manager of 2nd opposite party Mr.Brijesh N.B had some misappropriations with the funds of the bank and he was arrested in a police case. When they approached the bank for title deeds it was not returned and for this they have filed this complaint. Complainants were examined as PW1 in both the cases. Thereafter joint petition was allowed. Hence the complainant in CC 32/2020 is renumbered as PW1 (a). Ext.B1 and B2 marked during the cross examination of PW1 and PW1 (a) are one and the same (copy of Kerala Gazette and the copy of FIR). Opposite parties filed a version contenting that there was a cash transaction between Sri.Brijesh and the complainants. Though documents are not available complainants had accepted money from Brijesh. Hence according to them complainants are also party to the misappropriation and so their documents cannot be returned. It was also contented that investigation is going on by the CBI and documents are required. PW1 is claiming 2 documents having Nos.1214/13 and 1606/1996 of Haripad SRO. PW1 (a) is claiming document No.2386/2005 and its previous title deed (number not mentioned) RW1 is the present manager of 2nd opposite party bank. He admitted that if a loan is sanctioned amount can be disbursed only through an account. Both the complainants are having account with 2nd opposite party bank and money was not disbursed through their account. The husband of PW1 is having an account with the Alappuzha branch of opposite party No.2 bank and through that account also no money was disbursed. When a loan is sanctioned document such as application form, loan sanction letter, housing loan agreement, agreement of guarantee etc. will be executed. Here opposite parties have no case that either PW1 or PW1 (a) had executed such documents.
Ext.A1 is the statement of account of PW1 and her husband from 19.03.2017 to 23.09.2020 with the 2nd opposite party bank. Ext.A1 reveals that there was no transactions for the said period. Ext.A2 is the statement of account of the husband of PW1 with 2nd opposite party bank in its Alappuzha branch. In Ext.A2 also there is no credit of any loan. Similarly Ext.A1 (a) is the statement of account of PW1 (a) from 14.12.2015 to 18.09.2020 with the 2nd opposite party bank. The housing loan is not been credited in Ext.A1 (a) account. So it can be seen that loan was not sanctioned to both the complainant and it was not disbursed through their accounts.
RW2 is the Inspector of Police, CBI, ACB, Cochin. He is presently investigating the case on the basis of Ext.B2 FIR. According to him there is only one accused who is the former branch manager. According to him the original deed and documents were seized by the investigating officer of CB CID who was investigating earlier and after producing the same before the court it was returned to the bank. He further stated that the documents are necessary for further investigation. He has produced Ext.B11 copy of mahazor which shows that both the documents belonging to PW1 were seized by the Deputy Police Superintendent, CB CID on 09.05.2018. RW1 has produced Ext.B5 scrutiny report of advocate which shows that he had scrutinized the documents belonging to PW1 (document No.1214/2013 and 1606/1996) similarly Ext.B9 scrutiny report dated 14.12.2015 shows that he had scrutinized document No.2386/2005 which is the title deed of PW1 (a). He had also scrutinized document No.996/2005 which is the prior title deed of PW1 (a). RW1 has produced the copy of the same and it is marked as Ext.B1 to B8 respectively. Hence it can be seen that the title deeds are with the bank. It is true that the title deeds may be required by the investigating agency for the purpose of investigation. According to the learned counsel appearing for the complainant the title deeds are required for producing before the life mission scheme which is a scheme of the Government of Kerala by which amount is allotted for constructing houses. If that is so if the documents are not returned it will cause irrecoverable injury and hardships to the complainants. We have already found that opposite party bank could not produce any document to show that the complainants had collected any money from the bank. In the version it was contented that the complainants had collected Rs.9,00,000/- and 5,00,000/- respectively from the opposite party bank. However no document is produced to prove the same. Further the evidence of RW1 shows that no documents were executed by the complainants for availing housing loans. Moreover from the account statement produced by PW1 and PW1 (a) it can be seen that no amount was credited to their account as housing loans. It may be true that the manager of opposite party bank committed misappropriation of funds but the poor complainants cannot be allowed to suffer on the basis of that. As stated earlier Ext.B11 mahazor shows that documents belonging to PW1 were seized by the investigating officer. Ext.B5 report also shows that the documents are in the custody of the bank. The bank has produced Ext.B7 and B8 which is the title deed and previous title deed of PW1 (a) it shows that the documents are in the custody of the bank. Further as per Ext.B9 scrutiny report also it can be seen that the documents are with the bank. In the circumstances we are of the view that the documents can be returned to the respective parties with a condition to produce the same as and when required for the purpose of investigation.
Both the complainants are claiming an amount of Rs.1,00,000/- each as compensation for the mental agony sustained by them. It can be seen that the previous manger of opposite party No.2 bank had done some misappropriation with respect to the funds and now he is an accused in a criminal case being investigated by the CBI. Earlier the case was registered at Kareelakulangara Police Station and later the case was transferred to CB CID. As per Ext.B1 Gazette notification of Government of Kerala the case was entrusted with the CBI. Ext.B1 notification was issued on the strength of a judgment dated 09.01.2019 of the Hon’ble High Court of Kerala. The writ petition was moved by the opposite party bank since the investigation was not satisfactory. It shows that the bank is aggrieved by the act of its manager. In other words the incident happened beyond the control of the opposite party bank. In such circumstances we are of the view that compensation cannot be granted to the complainants since it was not any willful act of the opposite party bank. These points are found accordingly.
- Point No.5
In the result complaints are allowed in part. Opposite parties are directed
- To return documents No.1214/13 and 1606/1996 of Haripad SRO to PW1 and documents No. 2386/05 and 1966/05 of Haripad SRO to PW1(a).
- PW1 and PW1 (a) will give a written undertaking that the documents will be produced as and when required by the investigating agency.
- After collecting the documents PW1 & PW1(a) will produce certified copy of documents before the bank within one week.
- Parties are directed to bear their respective costs.
The said order shall be complied within one month from the date of the receipt of copy of this order.
Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 22nd day of October, 2020.
Sd/-Sri.S.Santhosh Kumar (President)
Sd/-Smt.C.K.Lekhamma (Member)
Appendix:-
CC No.31/2020 & CC No.32/2020
Evidence of the complainant :-
PW1 - Nefsiya M (Witness)
PW1(a) - Siyad (Witness)
Ext.A1 - Statement of account from South Indian Bank dtd 23.09.2020
Ext.A2 - Statement of account from South Indian Bank dtd 23.09.2020
Ext.A1(a) - Statement of account from South Indian Bank dtd 22.09.2020
Ext.A2(b) - Copy of petition No.PLP 1980/2019
Ext.A3 - Copy of petition No.PLP 2265/18
Ext.A4 - Order dtd 01.08.2018
Evidence of the opposite parties:-
RW1 - Sony K Mathew (Witness)
RW2 - Emmanuel Angel (Witness)
Ext.B1 - Copy of Kerala Gazette
Ext.B2 - Copy of FIR
Ext.B1 - Copy Judgement dtd 09.01.2019
Ext.B2 - Copy of FIR
Ext.B3 - Title deed
Ext.B4 & B4(a) - Title deeds (2 Nos.)
Ext.B5 - Copy of Scrutiny report
Ext.B6 Series - Tax receipt, Ownership certificate etc. (5 Nos.)
Ext.B7 - Title deed
Ext.B8 - Title deed
Ext.B9 - Copy of Scrutiny report
Ext.B10 Series - Cash receipt, Ownership certificate, Certificate dtd 23.11.15,
Location sketch, tax receipt, Certificate of encumbrance on
Property, Certificate of encumbrance on property, Copy of passport
Ext.B11 - Mahazor
// True Copy //
To
Complainant/Oppo. party/S.F.
By Order
Senior Superintendent
Typed by:- Sa/-
Compared by:-
