BEFORE THE DISTRICT FORUM (UNDER CONSUMER PROTECTION ACT, 1986), MEDAK AT SANGAREDDY
Present: Sri P.V.Subrahmanyam, B.A.,B.L., PRESIDENT
Sri Mekala Narsimha Reddy, M.A.,LL.B.,
P.G.D.C.P.L. Male Member
Smt Meena Ramanathan, B.Com., Lady Member
Tuesday, the 9th day of March, 2010
CC.No. 44 of 2009
Between:
K. Narayana Prakash S.o K. Yellaiah,
Aged about 55 years, Occ: Rtd Employee,
R/o H.No. 8-80, Isnapur X road,
Patancheru, Medak District. A.P. ….. Complainant
And
The Manager,
HDFC Bank Ltd.,
R.C. Puram (BHEL),
Medak District. ....Opposite party
This case came up for final hearing before us on 29.01.2010 in the presence Sri. G. Chandrashekar, advocate for complainant and Sri. P. Srinivas Rao, Advocate for opposite party, upon hearing the arguments of both sides, on perusing the record and having stood over for consideration till this day, this forum delivered the following
O R D E R
(Per Sri. P.V. Subrahmanyam, President)
This complaint is filed Under Section 12 of The Consumer Protection Act, 1986 to direct the opposite party to issue fixed deposit certificate for Rs.4,00,000/- and to pay damages of Rs.1,00,000/-.
The averments in the complaint in brief are as follows:
1. The complainant is a customer of the opposite party bank with account No. 00451050068825.He has deposited Rs.4,37,577/- on 04.09.2008 vide cheque No. 190876 of SBI, Muthangi Branch and with drew Rs.4,00,000/- and requested the opposite party bank to keep it in fixed deposit. The opposite party opened a new account to the complainant for fixed deposit and on receipt of the amount of Rs.4,00,000/-, issued a receipt dated. 06.09.2008 acknowledging the transaction. On 08.09.2008 when the complainant approached the opposite party for fixed deposit certificate, the officials in the branch asked him to come after two days stating that, branch manager has not signed the fixed deposit receipt. Again he went on 11.09.2008. Again they asked him to come after a week. The complainant approached the opposite party several times by going round the bank and requested to issue fixed deposit certificate but they have postponed the same by stating that it should be signed by higher authorities and later started to give evasive replies. Neither the opposite party nor his officials are in a position to give details of the fixed deposit. The above mentioned transaction of Rs.4,00,000/- for fixed deposit is accounted in ATM transaction record showing that the amount has been FTD on 10.09.2008 (Isnapur, Medak code SIANMDO1). The complainant got the information through another ATM (II CD Ramchandrapuram code: SIANRM50) on 30.09.2008 and 14.09.2008 (Isnapur). The entire transaction of fixed deposit has been occurred in Ramachandrapuram Branch but the opposite party shifted his burden and blaming that higher authorities committed mistake. On number of occasions the complainant waited at the branch of the opposite party till evening as per their instructions. Having vexed with the attitude of the opposite party the complainant got issued a legal notice on 16.12.2008 which was received by the opposite party on 22.12.2008. As the opposite party committed deficiency in service this complaint is filed, hence the same may be allowed.
2. The opposite party resisted the claim of the complainant by filing a counter to the following effect:
The complaint is misconceived, false and frivolous in as much as the complainant has failed to set out any grounds for grant of any relief. The contents of the complaint are denied. It is admitted that the complainant is a customer of the bank with account number mentioned in the complaint and that he has deposited cheque for Rs.4,37,577/- and further requested to make a fixed deposit for Rs.4,00,000/- from his account, but it is incorrect that a new account is opened for fixed deposit. It is denied that the complainant requested several times for fixed deposit certificate and evasive replies were given etc. The complainant has made a mere request for fixed deposit, however it was not processed by the opposite party because the complainant already owes outstanding dues to the opposite party. The complainant attempted to make a wrong interpretation of accounting entries and invented the allegations for undue enrichment under the guise of deficiency in service, by filing this complaint with false allegations.. The complainant never visited the branch for the said purpose. For the legal notice dated 16.12.2008 from the counsel of the complainant which was received by the opposite party on 03.01.2009, a detailed reply was addressed.
The complainant was an employee of Rallis India Limited and during the period of his employment the opposite party offered credit card facility to the eligible employees of the said company who were having their salary accounts with the opposite party. The complainant had applied for the credit card facility and the opposite party provided the same vide credit card No. 5176351002195331 on 22.02.2005. Thereafter the complainant had availed the services of the bank under the said credit card over a period of time. The complainant started defaulting of credit card dues ever since March, 2007 and failed to pay the outstanding dues to a tune off Rs. 49,199.61 paise as on 09.09.2008 to the bank. In order to recover the outstanding dues the bank has exercised its lawful right by marking a lien on his savings account. Such right is mentioned in the card member agreement which reads as follows: “the Bank at any time without any notice will have a Lien and Right of Set-off on all monies belonging to the card member and / or Add on Card member standing to their credit in any account whatsoever with the Bank or in the possession or custody of the Bank.
“If upon demand by the Bank, the balance outstanding on the Card account is not repaid within the prescribed time, such credit balance in any account including Fixed Deposit Accounts and any properties of the card member and / or Add on card member in the possession or custody of the Bank whether for safe keeping or otherwise, including but not limited to dematerialized shares or other securities of the card member and/or add on card member, held by the bank as a depository participant, may be adjusted towards dues under the Card Account. In case of any deficit, the deficit amount may be recovered by the Bank from the Card Member and / or Add on Card Member”. Admittedly though the complainant has been receiving the monthly statement of account pertaining to his credit card he has not chosen to effect re payment of the outstanding dues, though it is his bounden duty to clear the legitimate dues payable to the bank. Accordingly in the absence of such payments, in exercise of its lawful right of lien available to it, the bank has marked a lien over the complainant’s savings account and provided a written intimation to the complainant vide its letter dated 12.09.2008 under certificate of posting.
3. The cheque bearing No. 190876 for Rs.4,37,577/- was deposited by the complainant after clearing hours on 06.09.2008, therefore the complainant was informed that the cheque would be presented in the next working day i.e. 08.09.2008 (07.09.2008 being Sunday). The balance available in complainant’s account as on 06.09.2008 was Rs. 63/- only; however on 10.09.2008 due to inadvertent technical error the complainant’s account stood erroneously debited with Rs.4,00,000/- and it was immediately reversed on the same day and re credited to the complainant’s account. The said debit and credits in the savings account are only accounting entries rectifying the inadvertent debit to the complainant’s account. However the complainant is attempting to misinterpret the said accounting entries as against his conduct of withdrawing the entire amount from his account. The complainant has not made deposit of any cash or cheque on 10.09.2008 to claim the funds as the same is a mere rectification of debit accounting entry. The outstanding debt payable by the complainant towards the credit card services already availed by him was Rs.49,199.61 paise. It was supposed to be realized from the lien marked funds available, after realizing the same from presentation of the same cheque. Accordingly the credit card dues payable by the complainant were realized by the bank on 27.09.2008. Thereafter the complainant has been continuously transacting the account by conducting numerous withdrawals through ATM and through cheques. Further the complainant also deposited the following cheques with bank and also withdrawn the said amounts through ATMs:
- Cheque bearing No. 191005 for Rs. 17,049/ was deposited on September 18, 2008.
- Cheque bearing No. 313775 for Rs.1,31,725-96 paise was deposited on November, 10,2008.
The complainant has never raised any dispute even at the time of depositing the above cheques, moreover admitted the he has been receiving the statement of account pertaining to his account, in addition during the numerous ATM transaction conducted by the complainant. The ATM transaction slips would clearly indicate the balance available in the complainant’s account. Hence as against the non-existent funds in the account of the complainant, fixed deposit receipt cannot be claimed and such conduct of the complainant would only reflect his designed effort to gain un due enrichment. The complainant, by his conduct, is stopped from claiming the fixed deposit as he has withdrawn the entire amount. The complainant intentionally suppressed deposit of subsequent cheques and withdrawal of Rs.4,00,000/- the previous cheque amount and the amounts of subsequent cheques by which adverse inference has to be drawn against him U/s 114 (g) of the Indian Evidence Act. Filing of the complaint is for undue enrichment. After exercising the lien by the bank the balance available in the account was not sufficient to make a fixed deposit for Rs.4,00,000/- and it is within the knowledge of the complainant. The opposite party therefore has not committed any deficiency in service. The complainant is not entitled to receive any fixed deposit receipt. The complaint may therefore be dismissed with costs and the complainant may be penalized for approaching this forum with unclean hands by filing a false complaint.
4. In order to substantiate the contentions of both parties their evidence affidavits are filed and further Exs. A1 to A8 are marked on behalf of the complainant Exs. B1 to B4 are marked on behalf of the opposite parties. Written arguments of both parties filed. Their advocates advanced oral arguments also. Perused the record.
5. The point for consideration is whether the complainant is entitled to the fixed deposit certificate for Rs.4,00,000/- and damages of Rs.1,00,000/- as claimed in the complaint?
Point:
The case of the complainant is that on 04.09.2008 he has deposited a cheque for Rs.4,37,577/-under Ex.A1 in the opposite party bank to credit the amount in his account and then issued a cheque under Ex.A2 on 06.09.2008 for Rs. 4,00,000/- with a request to keep the said amount in fixed deposit but the opposite party has not issued fixed deposit certificate and dodged the matter, hence the complaint. But according to the opposite party, because the complainant is due to the bank in a sum of Rs.49,199.61 paise with regard to his credit card the opposite party, in exercise of right of lien, recovered the said amount of Rs.49,199.61 paise from the cheque amount and as the balance remained there after was not sufficient, fixed deposit certificate could not be given as desired by the complainant and the same was informed to the complainant under Ex. B2. It is the further case of the opposite party that as per the terms and conditions of the credit card (Ex. B3) the opposite party has right of lien to recover any dues with regard to credit card from the other accounts of the card holder.
In support of the contention of the complainant that Rs.4,00,000/- was deducted from his account by the opposite party bank for fixed deposit, Exs. A3 to A5 A.T.M. slips are marked. The contention of the opposite party is that on 10.09.2008 erroneously Rs.4,00,000/- was debited from the account of the complainant which was immediately reversed on the same day and re-credited to his account. According to the complainant’s advocate there is no information to the complainant that the deduction was erroneous and that the amount was re-credited to his account. The opposite party’s contention is that as on 06.09.2008 the available balance in the account of the complainant was Rs.63/- only and the complainant has been continuously withdrawing amounts from his account through ATMs and in fact there was no balance in his account to issue fixed deposit certificate for Rs.4,00,000/-. According to the opposite party even subsequently on 18.09.2008 and 10.11.2008 the complainant has deposited two cheques for Rs.17,049/- and Rs.1,31,725.96 paise and withdrawn the said amounts also and ATM slips will show the balance, therefore it is within the knowledge of complainant that sufficient amount was not available in his account and hence his request for a direction to the opposite party to issue fixed deposit certificate for Rs.4,00,000/- cannot sustain. The opposite party has marked statement of account of the complainant as Ex.B1. The correctness of Ex.B1 is not disputed by the complainant. It is clear from Ex.B1 that the complainant has been withdrawing the amounts from his account and there was no balance at any time in his account after 27.09.2008 to issue fixed deposit certificate for Rs.4,00,000/-.
6. During arguments the learned counsel for the complainant has relied upon the following three decisions:
i). Order dated 31.01.2006 of the National Commission in Revision Petition No. 2458 of 2003 rendered in the circuit bench at Bangalore.
ii). Oral order dated 18.04.2008 of the A.P. State Commission at Hyderabad in F.A. No. 549 of 2008.
iii). Order dated 05.08.2008 of the National Commission, New Delhi in First Appeal No. 27 of 2007.
In the first case the Hon’ble National Commission held that in the case of deposit of money with the bank it cannot be equated or construed as delivery of goods to the bank because exercising right of lien can only be in respect of goods but not money. The Hon’ble National Commission has referred to a decision of Kerala High Court of the year 1990 where in the Hon’ble Kerala High Court has also held that the money put in fixed deposit constituted a debt in the hands of the banker and a debt cannot be a suitable subject for lien. A decision of Madhya Pradesh High Court of the year 1998 is also referred in the judgment No. (i) mentioned supra which also states that Sec 171 of the Contract Act which defines “goods” in terms did not apply to cases of deposit of money. Finally it is held by the Hon’ble National Commission that the complainant ‘has not bailed any goods’ to the bank. The FDRs were also not pledged with the bank against the loan. According to National Commission the wording of the Section are clear to the effect that the bankers would have general lien on any goods bailed to them.
The second decision referred supra touches the aspect of erroneous deduction of Rs.4,00,000/- from the account of the complainant and re-crediting the same. In the said decision it is held by the Hon’ble A.P. State Commission that if really there was technical snag it could have informed to the complainant.
The third decision relates to deficiency in service of a bank. The facts and circumstances in the case first referred above are almost similar to the facts and circumstances of the case now in hand . In view of the ratio in the said decision we are of the considered view that the opposite party exercised right of lien which is not available to them and thereby caused mental agony and much inconvenience to the complainant and it amounts to deficiency in service. However as the complainant’s account does not show sufficient balance after 22.09.2008 a direction to the apposite party cannot be given to issue fixed deposit certificate in his favour for Rs.4,00,000/- as prayed in the complaint. However as there is deficiency in service on the part of the opposite party it is held that the opposite party is liable to pay damages and costs of the litigation to the complainant. The point is answered accordingly partly in favour of the complainant.
7. In the result the complaint is allowed in part, directing the opposite party to pay to the complainant a sum of Rs.10,000/- as damages and Rs.2,000/- towards costs of the litigation. One month time is granted for payment of the above amounts.
Typed to dictation, corrected and pronounced by us in the open forum this 9th day of March, 2010.
Sd/- Sd/- Sd/-
PRESIDENT MALE MEMBER LADY MEMBER
