Sri Utpal Kumar Bhattacharya, Member
Instant Appeal u/s 15 of the C. P. Act, 1986 has been filed by the Appellant/Complainant challenging the judgment and order dated 27/01/2017 passed by the Ld. District Forum, south 24 paraganas in Complaint Case No. 609/2014 disposing of the complaint allowing the Appellant/Complainant the liberty to approach the appropriate authority to investigate into the matter for detecting the fraud over the three NSCs in question.
The Appellant/Complainant was also allowed liberty to move the appropriate civil court after the suspected fraud being detected by the investigating authority for having his grievances addressed.
Briefly stated, the facts relevant to the instant complaint, were that the Appellant/Complainant received from the Respondent No.1/OP a House Building Loan mortgaging the Title Deed of the property and also NSCs, 17 in number, valued at Rs. 1,00,000/- to be matured on different dates. The loan amount of Rs.4,72,000/-sanctioned on 15/03/2006 was repayable in 83 EMIs of Rs.6440/- along with interest @ 8% per annum on the said transacted amount. The Respondent No. 1/OP, in course of the repayment of loan being made by the Appellant/Complainant, got one of the 17 number of NSCs encashed on maturity and adjusted the said matured value against the loan amount.
The Appellant/Complainant made full repayment of loan with interest ahead of the date scheduled for completion of repayment and got “No objection” certificate against the loan. The Respondent/OP No.1 Bank, however, failed to return to the Appellant/Complainant the rest 16 number of NSCs as, 3 of the said 16 NSCs were sent for encashment on maturity to the Respondent No. 3, the Post Master, Haridevpur Post Office. The Respondent No. 1/OP, however, wanted to return the rest 13 NSCs which were in his custody but the Appellant/Complainant refused to receive the said NSCs and claimed the matured value of all the 16 NSCs with interest accrued thereon since the date of maturity. Appellant/Complainant’s repeated communications in the lines as above yielded him no better result. Finding no other alternative, the Appellant/Complainant resorted to the Ld. District Forum filing the complaint case. In the instant Appeal, the impugned order, originated from the said complaint case, has been challenged.
We had heard the Ld. Advocates appearing on behalf of all the contesting sides. The Ld. Advocate for the Appellant/Complainant gave the details of the incident exactly in the lines narrated in the complaint.
As submitted, three NSCs were sent to the post office concerned on maturity keeping the Appellant/Complainant in dark about the status of those NSCs. The other NSCs too were kept under the custody of the Respondent No.1/OP without any action for encashment of those NSCs on maturity. As further submitted, had those NSCs been encashed or allowed to be encashed on maturity, the said amount might have been adjusted against the loan providing relief to the Appellant/Complainant reducing substantially the interest component accrued on the Principal amount of loan that the Appellant/Complainant had to pay.
As continued, the Respondent No. 1/OP Bank deducted penal interest of Rs. 337/- although it was a fact that the Appellant/Complainant never defaulted in payment of EMI and that he could liquidate in full the amount of loan with interest before the given deadline. As contended, the deducted amount of penal interest, since the same was far from being legal, should be refunded with interest to the Appellant/Complainant.
Ld. Advocate, drawing the notice of the Bench to running page No. 126, being a cheque under No. 084686 dated 17/02/2009 involving an amount of Rs. 45,030/-, submitted that the said cheque against the matured value of the three NSCs in question, was issued by the concerned postal authority, the Respondent No 3, in favour of the Respondent No.1/OP.
Referring further to running page No. 118, being the letter dated 18/05/2015 of the SBI, Southern Avenue Branch, on which the above cheque was issued, confirmed that the said cheque was duly cleared and sent to GAD, SBI, Kolkata Main branch. As continued, the Respondent No.1/OP, in spite of the receipt of the said amount in full, never bothered to take any action for paying the said amount to the Appellant/Complainant. Such activity, as the Ld. Advocate pointed out, was also the height of deficiency in rendering service on the part of the Respondent No.1/OP Bank.
With the submission as above, the Ld. Advocate prayed for the Appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondent No. 1/OP, per contra, submitted that the Respondent No. 2, in its letter dated 18/12/2013 reported that the matured value of the three subject NSCs was paid to one Ashoke Das on 24/02/2009 by Haridevpur Post Office, the Respondent no.3, through cheque No. 086639 dated23/02/2009 for an amount of Rs. 50,877/- issued on SBI, Southern Avenue Branch.
As continued, the said Respondent No.2, in his subsequent communication under No. TLG/Misc. 11/05/2015-16 dated 08/05/2015, reported absolutely contradictory to that of its earlier communication wherein it was told that the said matured value of the three subject NSCs amounting to Rs. 45, 030/- was issued in favour of Respondent No.1/OP under cheque No. 084686 dated 17/02/2009 by the SBI, Southern Avenue Branch.
As continued, the said Respondent No. 2 in parawise statement of Facts at para 5, running page No. 112, disowned his earlier communication towards the delivery of the matured instrument to Sri Ashoke Das, as the same was stated to have been mis-communicated.
As submitted, the Respondent No.2’s disowning the contents of earlier communication raised doubt that the issue had sustained an ingredient of fraud which was beyond the authority of the Ld. District forum to adjudicate.
Ld. Advocate concluded with the submission that the issue, since related to fraud and needed elaborate scrutiny of the documents, taking evidence and examination of witnesses, the summary proceedings, as the Consumer Forum was supposed to do, were hardly having any potential to unearth the truth.
Accordingly, the Ld. Advocate prayed for the Appeal to be dismissed affirming the impugned Judgment and order.
Ld. Advocate appearing on behalf of Respondent 2 and 3 submitted that no relief has been claimed before the Ld. District Forum from Respondent Nos. 2 and 3 as there was no allegation against them in the complaint.
As contended the cheques bearing different numbers for the amounts of Rs.50,877/- and Rs.45,030/-respectively were issued. The former cheque was issued in the name of one Ashoke Das and the latter in favour of Central Bank Of India, the Respondent No.1/OP Bank.
Two cheques, as contended, cannot be issued against the same NSCs. The earlier letter was stated to have been miscommunicated by the Respondent No. 2 in its subsequent communication. The Ld. Advocate continued to submit that the cheque involving Rs. 45,030/-, being the total amount on maturity of all the three NSCs was issued in favour of the Respondent No.1/OP under No. 084686 dated 17/02/2009. As stated, the copy of the said cheque at running page 126 would corroborate the fact.
The Ld. Advocate, with her submission, as above, prayed for exemption of her clients from the Appeal as there was no reasonable cause to implicate them in the instant issue.
Perused the papers on record. Considered submissions of all the parties. The points to be decided in the instant issue appeared to be as under.
- Whether the Consumer Fora have the authority to adjudicate on the issue?
- Whether at all the matured value of the 3 NSCs in question was received by the Appellant/Complainant?
- Whether there was at all any loss for the Appellant/complainant in absence of payment in time of the matured values of the rest 13 NSCs?
- Whether there was at all any deficiency on the part of the Respondent No.1/OP for their claim of penal interest?
A careful examination of the issue will simplify the fact that the Respondent No.1/OP has dragged the issue of a transaction between it and the Appellant/Complainant to a different domain and dimension. The Respondent No. 1/OP has unnecessarily mixed up the instant issue with a transaction held between some Ashoke Das and the Respondent No. 3 based on a letter dated 18/12/2013 of the Respondent No.2, subsequently confessed to have been miscommunicated in his letter dated 08/05/2015. In the latter communication and also in the para-wise statement of facts, the Respondent No. 2 conveyed contradictory information of payment of matured value of a different amount in respect of the three subject NSCs to the Respondent no. 1/OP. Since the cheques relate to different amounts of two different transactions, there cannot be any ingredient of fraud and therefore, the complaint stands purely on the deficiency in rendering services which the consumer Fora are competent to adjudicate. The jurisdiction issue is thus decided.
The three disputed NSCs were sent for encashment to the Respondent No. 3 by the Respondent No. 1/OP. The Respondent No. 2, in a communication dated 18/12/2013 conveyed towards disbursement of matured value to the tune of Rs. 50,877/-of the disputed three NSCs to one Ashoke Das and not to Ashoke Kumar Das, the Appellant/Complainant herein. This left a question mark as to whether the payment was at all made to the Appellant/Complainant.
The said Respondent No.2, in a subsequent communication dated 08/05/2015, and also in his parawise statement of facts acknowledged their fault confessing their earlier letter referred to above to have been miscommunicated. In the said communication, they detailed their transactions showing the matured value of the said three NSCs to the tune of Rs. 45,630/-was released in favour of the RespondentNo.1/OP Bank.
The copy of the Cheque No. 084686 dated 17/02/2009, running page 126, corroborated the revised statement, subsequently communicated. Communicating the revised and correct information on subsequent realization of the previous information being erroneous/incorrect, is no action disowning a statement with any ulterior motive as alleged in course of the argument by the Ld. Advocate appearing on behalf of the Respondent No.1/OP.
We fail to understand as to why the Respondent No.1/OP, instead of verifying their office record and ascertaining the fact as to the receipt of the above mentioned cheque issued in its favour, relied on a farfetched idea of fraud based on a wrong information of an altogether different transaction made to one Ashoke Das by the Respondent No. 3 which, in fact, has no bearing on the instant issue.
It does not need any elaboration to conclude that the proceeds of the NSCs pledged with the Bank and sent for encashment by the said Bank through formal communication to the issuing post office, should be sent to the sender Bank only and none else. So, we can safely conclude that the Respondent No. 1/OP Bank was in receipt of the cheque equivalent to the matured value of the three disputed NSCs. In case of non-receipt, they should have taken it up with the Post Office concerned and also with the SBI Southern Avenue Branch.
As regards deduction of the penal interest for an amount of Rs.337/-as it would reveal from the Annexure IV, running page 39, the action, prima-facie appeared to be unreasonable as the Appellant/Complainant maintained remarkable regularity in repayment of loan and, in fact, ensured full repayment ahead of the specified period.
Similar observation we hold in respect of the rest 13 NSCs which are still lying under the custody of the Respondent No. 1/OP and which, on maturity, have been kept without any effort being made for encashment. A little initiative on the part of the Respondent No 1/OP for encashment of the NSCs on due date of maturity and adjusting the matured value against the loan would surely have mitigated the burden of loan for repayment to be made by the Appellant/Complainant by not allowing the same to magnify in the form of interest. The record revealed that the Respondent No.1/OP, in his communication dated 16-01-2014, running page 64, wanted to return the 13 NSCs in question which the Appellant/Complainant refused to accept. The Appellant/complainant’s entitlement on interest on the maturity amounts of those NSCs from the date of maturity till the date of the above letter dated 16-01-2014 cannot and should not be denied. Therefore, there was conspicuous deficiency in rendering services by the Respondent No. 1/OP for which the Appellant/Complainant should be suitably compensated.
Since it will be difficult and cumbrous to ascertain exact amount of interest accrued on the matured value of all the 16 NSCs and Rs.337/-, deducted from the Appellant/Complainant’s Account as penal interest, we decide to pass an order with the direction upon the Respondent No.1/OP to pay compensation instead of the interest, particularly, in view of the fact that the compensation and the interest cannot be allowed simultaneously as claimed in the complaint.
Hence, ordered that the Appeal be and the same is allowed in part on contest. The impugned judgment and order stands set aside. The Respondent No. 1/Complainant is hereby directed to pay the matured amounts of all the three NSCs to the Appellant/Complainant and also hand over the rest 13 NSCs to the Appellant/Complainant.
The Respondent No.1/ OP is also directed to pay a compensation of Rs.1,00,000/-for the deficiency in rendering services to the Appellant/complainant and also a litigation cost of Rs.10,000/-.
All the amounts are to be paid to the Appellant/Complainant within 45 daysfrom the date of the instant order, failing which, simple interest @9% p.a. shall accrue to the total amount of the matured value of all the 16 NSCs and the compensation amount of Rs.1,00,000/-.
