Presented by Sri P.K.Dash, Member:-
The Complaint pertains to deficiency in service enumerated under the provision of Consumer Protection Act-1986. The brief facts of the complaint as follows:-
The Complainant described above was a collection agent under the Samaleswari daily deposit scheme appointed under the Opposite Party. The Opposite Party is a Co-operative Bank operating its banking business.
The Complainant was a daily deposit collection agent under the OP and was collecting money by visiting door to door of the depositors, and depositing the same before the OP/bank in time.
That the appointment of Complainant as a collection agent was subject to security deposit for an fixed amount (prescribed under the scheme) i.e. Rs.5,000/-(Rupees five thousand)only vide receipt No. 34662 and is refundable at the time of resignation or termination of agency or expiry of the scheme. The said fixed deposit was automatic renewal.
The business policy was that an account had been opened in the name of the Complainant in the Opposite Party bank bearing No. 2426/00006. The Opposite Party bank was deducting some percentage out of the commission of the agent for his daily deposit and the same was debited to the account bearing No. 2426/00006 of the Complainant. The Samaleswari daily deposit scheme was running successfully and the bank was having considerable profit. But after some years, the scheme was closed and as such the Complainant claimed his security deposit along with interest and the amount deposited out of his monthly commission before the Opposite Party and to that effect applied for refund of his security deposit and submitted all required documents to one Dinabandhu Meher, the then in charge of the said scheme in the OP/Bank.
Further the Complainant contends that, the bank has not acted upon to his application even after 4(four) years of the submission of the application. Besides no positive response has been paid by the Opposite Party/Bank to the letter No. 7889/2011-12 sent to him by the Secretary, SDCC Bank, Bargarh. The Complainant has run pillar to post to obtain his eligible deposits and fixed sum along with interest accrued to his account in the OP/Bank but the Opposite Party/Bank has paid no heed to find any solution to disburse the deposits made in the account of the Complainant and for such acts of Opposite Party/Bank the Complainant sustained mental agony harassment and also pecuniary loss which amounts to deficiency in service by the Opposite Party/Bank to wards the Complainant.
The Complainant prays for a direction of the Forum to the Opposite Party/Bank (i) to refund Rs. 5,000/-(Rupees five thousand)only along with update interest in terms of fixed deposit (ii) penal interest from the date of default (iii) Damages for harassment and mental agony along with cost of the proceeding.
The Complainant in support of his claim relies upon the xerox copies of the following documents.
Pleader Notice Dt.06/11/2012 (two sheets)
The letter of Secretary, SDCC Bank, Bargarh to the B.M. SDCC Bank, Bargarh vide No. 7889 Dt.07/01/2012.
Being noticed the Opposite Party appeared through his counsel and filed his version having denied most of the allegations.
It is admitted by the Opposite Party/Bank that the Complainant was a daily deposit collection agent appointed by submitting a security deposit refundable if resigned or termination of agency or expiry of scheme and some amount out of the agent commission was being deducted by the Opposite Party and debited to the account of the agent.
Further, admission of the Opposite Party is that soon after the Samaleswari daily deposit scheme was closed the agents were entitled to be refunded of the security deposit and others deposits accrued in the name of the agents. As such the Complainant in this case was also entitle to get his security deposit and residual amount of Rs. 9,273/-(Rupees nine thousand two hundred seventy three)only deposited along with update interest.
Further contention of the Opposite Party is that at the time of termination of agency the Complainant has failed to surrender his identity card in original. So also has not submit all the documents of the bank, no dues certificate for which the Branch Manager, OP/Bank instructed the complaint vide letter NO. 4997 Dt.17/11/12 to submit all the documents. The fixed deposit of the Complainant is refundable after liquidation of all the liabilities.
The Opposite Party again contends that the Complaint is not maintainable on the point of limitation and the Complainant is not a consumer of Opposite Party.
Further more the Opposite Party contends that the Complainant is a guarantor of one Smt. Krishna Rao in respect of a house building loan availed from the Opposite Party/Bank for an amount of Rs.1,00,000/-(Rupees one lakh)only and inspite of notices issued to the borrower and guarantor the loan account has not been liquidated till date for which the Complainant could not able to procure and submit the no dues certificate.
The Opposite Party prays for dismissal of the Complainant.
The Opposite Party in support of his contention relies on the xerox copy of the following documents.
Agreement Dt.12/11/1999 of the Complainant.
Indemnity boad.
Letter No. 4997 Dt.17/11/2012 addressed to the Branch Manager.
Letter No. 1402 Dt.05/02/2013 addressed to the Secretary by the Branch Manager.
Letter No. 8745 Dt.25/03/2013 of the Bank to the Complainant.
Memo of written argument is filed by the Advocate for Opposite Party.
Having gone through the pleadings of the Parties, perusal of the documents available on record and focused on the arguments placed by the Parties, the issues likely to be decided as follows:-
Is the complaint barred by limitation ?
Whether the Complainant is a consumer of Opposite Party or not ?
Is there any deficiency in service ?
To what relief the Complainant is entitled for ?
Answer to Issue No.1(one).
The documents relied upon by the Opposite Party i.e. letter No. 4997 Dt.17/11/2012 addressed to Branch Manger, SDCC Bank, Bargarh by the Secretary SDCC Bank, Bargarh, reply letter No. 1402 Dt.05/02/2013 addressed to the Secretary, SDDC Bank, Bargarh by the Branch Manager, Bargarh Branch, letter No. 8745 Dt.25/03/2013 addressed to the Complainant by Branch Manager, SDCC Bank, Bargarh and the pleader Notice Dt.06/11/2012, reveals that the cause of action arose and persist up to Dt.25/03/2013 until the date of denial letter issued by the Opposite Party to the Complainant.
The contention of Opposite Party that the Complainant in his complaint, para-10(ten) has admitted to have filed the complaint after 4(four) years of submission of application is not acceptable by the Forum because this is not an admission but an allegation as to in action of Opposite Party for such a prolonged period after submission of application by the Complainant to release his deposits in the Opposite Party/Bank. Hence, the Complainant is well within the limitation period and not barred by any limitation. The issue No.1(one) is answered as above.
Answer to Issue No.2(two).
It is the admitted case by the Opposite Party that the Complainant was a daily deposit agent under the Samaleswari Daily deposit scheme and in respect to that has deposited an amount of Rs. 5,000/-(Rupees five thousand)only as the fixed deposit and the commission out of the daily deposit bearing NO. 34662 Dt. 04/06/2009 was regularly debited to the account vide account No. 2426/0006 of the Complainant in the Opposite Party/Bank. No doubt the relation of the Opposite Party and the Complainant as an agent in the Samaleswari Daily deposit scheme was of principal and agent. But after the termination of agency and in respect of the fixed deposit and deposits out of the Commission of agency in Opposite Party Bank vide Account No. 2426/0006 stand in the name of the Complainant, the Complainant becomes the consumer of Opposite Party. Because the fixed deposit and other deposits is a banking transaction between the Complainant and the Opposite Party and the Opposite Party gets income out of the deposits. This proposition has been supported by a decision reported in 2006 (II) CLR (SC) 259 that “Banking service deficiency-banking is business transaction between bank customer such customer's are consumer under the Act.” This issue is answer as the discussion made above the Complainant is a consumer under the Opposite Party.
Answer to Issue No.3(three).
The Opposite Party has denied to release the fixed deposit and other deposit accrued in the account of the Complainant due to (i) non submission of some documents and (ii) for non liquidation of the house building loan where in the Complainant had stood guarantor.
As to non submission of certain documents, neither the Opposite Party issued any letter to the Complainant, nor filed the Memo No. 12960 Dt. 19/12/2011 addressed to the Secretary by the Branch Manager, SDCC Bank nor any evidence as to non release of deposits for want of certain documents rather it is admitted by the Opposite Party in his letter No. 1402 Dt.05/02/2013 addressed to the Secretary, SDCC Bank, Bargarh that the Complainant stated to have returned documents to the bank. The agreement between the Complainant and the Opposite Party also does not disclose about what documents are to be submitted after termination of agency. More importantly as per the cause-1 of the agreement, the Opposite Party has not annexed the “Samaleswari Daily deposit scheme” along with the agreement and the same has not been filed before the Forum. Hence the Opposite Party has miserably failed in establishing what documents are to be produced after termination of agency rather screened some documents as reveals from his contention.
For the second part that the Complainant had stood guarantor in a house building loan which is not liquidated till date for which the Opposite Party has not release the fixed deposit and other deposit lying in the bank. The fixed deposit in the name of the Complainant was in respect of the agency in Samaleswari Daily deposit scheme and the deposit out of the commission of agent also for the purpose of the scheme. Being the guarantor of one house building loan has no nexus with the above deposits. Because the security deposit made for the purpose of Samaleswari Daily deposit scheme can't be held up for the non liquidation of the house building loan. The fixed deposit for the agent of the Samaleswari daily deposit scheme was made by the Complainant on Dt.04/09/2009 where as the borrower of the said house building loan has defaulted which is much prior to the date of fixed deposit. Hence a fixed deposit after such a prolonged period can't be held up for the guarantor of that loan and this proposition is being supported by a decision reported in Union Bank of India Vrs Devinder Kumar 2003 NCJ 486 (NC). The contention of the decision is that “Refusing to release amount of FDR Dt. 09/03/1979 said to be under lien for the year 1978 towards guarantee for some other person – Lien claimed to have been created earlier than the FDR was taken – Is deficiency in service. The Opposite Party could have also follow other procedure for attachment of other collateral property of the guarantor for repayment of loan. If the Complainant has been appointed as an agent in daily deposit scheme of Opposite Party executing bond, security deposit and agreement, this contention of Opposite Party as to non release of fixed deposits and other deposit lying in the account of the Complainant for non liquidation of the house building loan is not acceptable by this Forum. The Opposite Party also not filed any documents before the Forum regarding the house building loan sanctioned where in this complaint was stood guarantor. Such acts of Opposite Party is certainly a deficiency in service by the Opposite Party towards the Complainant.
Answer to Issue No.4(four).
The Complainant in the instant case is entitled for release of his fixed deposit and other deposits lying in his account in respect of the agency in Samaleswari Daily deposit scheme along with the up date interest for the deficiency caused to him by the Opposite Party.
- O R D E R -
Considering all the facts, evidence on record and oral argument of the Parties, the Forum direct the Opposite Party to refund the Complainant as follows:-
Fixed deposit of Rs.5,000/-(Rupees five thousand)only bearing No. 34662 Dt.04/06/2009.
The residual amount of Rs. 9,273/-(Rupees nine thousand two hundred seventy three)only deposited in the account No. 2426/0006 out of Complainant's monthly commission along with up date bank interest.
Above order shall be carried within 45(forty five) days of the date of Order, failing which the awarded amount shall carry 12%(twelve percent) per annum till the actual date of realization of total amount.
The complaint is allowed and disposed off accordingly.
Typed to my dictation
and corrected by me.
I agree, I agree, I agree,
(Sri Pradeep Kumar Dash) (Smt. Anjali Behera) (Miss Rajlaxmi Pattnayak)
M e m b e r. M e m b e r. P r e s i d e n t.
