(BEFORE        :-          PRESIDENT   :-          Smt. Pranali Sawant                   )

                                    MEMBER        :-          Smt. Sujata Patankar                 )

 

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Complaint No. : APDF/256/2006

                                                           

                                                                        Date of filing      :-   19/09/2006

                        Date of decision :-    30/11/ 2011

 

 

Shri. Indru Assandas Karnani,                                     ..    )

R/at :- 35, Kavi Apartments,                                                    ..    )

R.G. Thadani Road, Varali Sea Face,                           ..    )

MUMBAI – 400 018.                                                                        ..    )COMPLAINANT

 

The Seva Vikas Co-Operative Bank Limited,                ..   )

Head Office at : Laxmi Market, Pimpri,                         ..   )

Pune -411017.                                                             ..   )

Having its Branch Office at :- 5, Mini Market,               ..   )

Yamuna Nagar, Near Police Station,  Pradhikaran,                   .   )

Nigdi, Pune – 411 044.                                                            ..   )OPPONENT

 

           

For Complainant           :           Adv. Shri. Nimbkar

            For Opponent              :           Adv. Smt. Phaljani

 

Per : Smt. Pranali Sawant, President

 

 

[1]                    This is the complaint wherein the Complainant has alleged deficiency in service against the Opponent Bank for illegally appropriating amount of FDR in loan account of the partnership firm. The facts in brief which give rise to the present complaint are as follows :-

 

[2]                    The Complainant Mr. Indru Karnani had deposited amount of Rs.40,580/- on 29/6/2002 vide FQM number 4412. The wife of Complainant is the sole proprieress of M/s. Pan Asian whereas two sons of the Complainant are partners in a partnership firm by name Net Corporation India . This Net Corporation India Limited & M/s. Pan Asian had availed Cash-Credit facility from the Opponent Seva Vikas Co.Operative Bank Limited (who shall hereinafter be refered as “Bank”). Since Cash Credit facility was overdue for repayment, the Bank had filed recovery proceedings before the Assistant Registrar of Co.Operative Societies. It is the grievance of the Complainant that the Bank with malafide intention, appropriated the amount of FD receipt towards the outstanding dues of Cash Credit account of Net Corporation India & M/s. Pan Asian. It is the contention of the Complainant that the FDR was in his personal name and hence Bank had no authority to appropriate the amount of his personal FDR towards the loan of the abovementioned two firms. It is the grievance of the Complainant that without intimating this fact to the Complainant, the Bank has unilaterally and illegally appropriated the amount of FDR towards loan of M/s. Pan Asian. M/s. Pan Asian wrote a letter to Bank objecting to the action taken by it. However the Bank replied to the Complainant stating that it has taken the above mentioned action in view of the general lien available to the Bank.     According to the Complainant, the said action of the Bank is illegal and hence he has prayed for a direction to the Bank for refunding the amount of FDR alongwith interest and the cost of litigation. The Complainant has filed affidavit and 8 documents vide Exh.3 in support of his complaint. Since there is a delay of 386 days in filing the complaint, the Complainant has also filed delay condonation application alongwith main complaint.

 

[3]                    On receipt of the Forum’s notice, the Bank filed its written version to the main complaint as well as its say to the delay condonation application. The Bank has strongly objected to the condonation of delay as the grounds setforth for condoning the delay are false and unjustifiable. As far as the main complaint is concerned, the Bank has denied all the allegations in respect of deficiency in service. The Bank has mentioned that one FDR as mentioned in the complaint application was kept as security against the Cash Credit account of M/s. Net Corporation India in which the Complainant is a guarantor. Since FDR was given as security it was and is in possession of the Bank. On maturity of this FDR, the amount was reinvested and it was given receipt numbers FQM 4412 whereas according to the Bank the FQ numbers before the maturity was 9478. Since the Complainant has given written consent letter to the Bank for treating this FDR as security to the Cash Credit account of Net Corporation of India, according to the Bank, the Complainant has no right to make any grievance for appropriating the amount of FDR to the loan account. According to the Bank, in view of the lien of the Bank and the consent letter of the Complainant, the action of Bank of appropriating the amount of FDR is legal and valid and hence cannot be challenged by the Complainant. In view of the above circumstances, the Bank has prayed for dismissal of the complaint alongwith compensatory costs. The Bank has filed affidavit of the authorized representative of the Bank as well as consent letter and copies of FQM in support of its say.

 

[4]                    After filing say by the Bank, the Complainant did not file any further evidence, hence the written notes of arguments were filed by the Opponent vide Exh.18 alongwith one authority of Hon’ble High Court, Mumbai. The Complainant also filed his written notes of arguments vide Exh.19 but this written notes are related only to the point of delay condonation. On the next returnable date, nobody was present on behalf of the Complainant to argue the matter whereas Advocate Smt. Falzani passed a purshis stating that the matter be decided on the basis of the written notes of arguments submitted on behalf of the Bank. Accordingly, the matter was posted for judgment. Before the returnable date of judgment the Complainant filed his notes of written arguments in the office of the Forum without seeking permission to file the same at that stage. 

[5]                    On perusal of the complaint, say and documents, the written arguments of both the parties filed on the record, following points arise for our consideration :-

 

 

the complaint deserves to be allowed?   …                    Yes.

 

service to the Complainant?                              …                    No.

 

allowed?                                                           …                    No.

 

Point No.1 :- Since there is a delay of 386 days in filing this complaint, the Complainant has filed a separate delay condonation application alongwith the main complaint. It has been submitted by the Complainant that since his daughter aged 3 years had met with some serious accident and was required to undergo major surgery. There were also few other mishaps with the family members of the Complainant and hence according to him, he could not give necessary instructions to his advocate for filing the present complaint. The Complainant has filed medical reports and other documents in support of his application. The Bank has filed its detail objection to the delay condonation application of the Complainant. It has been specifically mentioned by the Bank in para 5 of its say that various litigations were filed by the Complainant before different authorities during that time and hence the ground for delay is not genuine. However the Bank has failed to produce any documentary evidence in support of its contentions. Whereas the grounds of Complainant for condoning the delay are supported by documentary evidence. Hence in view of the fact of the accident we are inclined to grant the delay caused in filing this complaint application. Hence the delay is condoned and accordingly point No. (1) is answered in the affirmative. 

 

Point No.2 (i) :- It has been specifically alleged by the Complainant that without there being any specific instruction or proper discharge of the FDR the Bank has under the grab of general lien appropriated the amount of the FDR towards the loan amount of Net Corporation India. Whereas the Bank has denied this allegation and has mentioned that the Complainant had given his consent letter to pledge these FDR as security towards the loan account. On perusal of the documents submitted by the Bank, specifically the consent letter given by the Complainant it can be seen that Complainant himself has pledged his FDR by way of security for the Cash Credit Account of M/s. Net Corporation India. In this letter of consent it has been specifically mentioned that

 

 

(ii)                    On bare perusal of this consent letter, it can be in-hesitantly held that the disputed FDR was pledged by the Complainant by way of security with the Bank. In such a situation, the Complainant has no right to make any grievance in this respect. It also needs to be noted that the original FDR is in the possession of the Bank. Unless and until the Complainant himself pledges this FDR with the Bank, the Bank had no authority to have this original FDR in its possession. What we gather from the documents filed on record is that the Bank has appropriated the amount of FDR towards loan amount not by way of general lien but because of the consent letter given by the Complainant. It is also important to note that after filing the say and documents by the Bank, the Complainant has not denied the execution of the consent letter. There is no evidence whatsoever from the Complainant to prove the illegal or unauthorized appropriation of amount of FDR towards loan account. It has been admitted by the Complainant in the complaint itself that the Cash-Credit facility is overdue and recovery proceeding is pending for the same.  The Complainant is the guarantor to the loan taken by his sons. However surprisingly there is not even a whisper in the entire complaint in respect of the willingness of the Complainant to take any steps  to repay the overdue amount of the Cash Credit facility. We cannot ignore the fact that Complainant is the guarantor to the loan taken by his sons who are partners in the Net Corporation India which has availed Cash-Credit facility. It is very natural and legal for the Bank to take all the necessary steps to recover the overdue amount of loan.  

 

(iii)                   In his written notes of argument the Complainant has raised the grievance that Bank has failed to prove by way of evidence that any amount is due and payable to Bank. However on perusal of paras of complaint it is noticed that Complainant himself has admitted that Cash Credit facility of M/s. Pan Asian is overdue and some recovery proceeding is pending in this respect. In such a situation the fact which is admitted by Complainant need not be proved by Bank and hence in our opinion the grievance of Complainant on this count is baseless and liable to be rejected. On perusal of the entire evidence adduced by both the parties there is nothing on record to prove that Bank acted arbitrarily, malafidely or illegally while appropriating the amount of FDR. Hence in such a situation we hold that Bank has not rendered any deficient service to the Complainant. Accordingly, we answered the point No.2 in negative.

 

Point Nos. 3 and 4 :- Since the Forum has concluded that the Bank has not rendered deficient service to the Complainant, the complaint deserves to be dismissed and accordingly we answer the point No.3 in negative and pass the following order :-

 

(3)      Certified copies of this order be furnished to the    

       Complainant   and   the Opponents free of costs.

 

 

 

 (Smt. Sujata Patankar)                                               (Smt. Pranali Sawant)

          MEMEBR                                                                PRESIDE NT

 

ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, PUNE.

 

Place : Pune                                                    

 

Date : 30/11/2011