Punjab

Ludhiana

CC/15/461

Rashmi Vashisht - Complainant(s)

Versus

UCO Bank - Opp.Party(s)

A.C.Gupta Adv.

14 Sep 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No.461 of 04.08.2015

Date of Decision            : 14.09.2017

 

1.Rashmi Vashisht aged about 40 years daughter of Sh.Suresh Chander Vashisht resident c/o House No.189, Mohallan Guaran, Near Ram Goria Gurudwara, Khanna through her attorney Sh.Suresh Chander Vashist.

2.Suresh Chander Vashisht aged about 74 years son of Sh.Shiv Ram Vashisht, Chamber No.1, Civil Courts, Khanna, Punjab.

….. Complainants

Versus 

 

1.UCO Bank, Ogli Branch, village Ogli, Kala Amb, Tehsil Nahan, District Sirmaur, Nahan, Himachal Pradesh.

2.UCO Bank, Recovery Department, Solan Zonal Office, Champa Ghaat, District Solan, Himachal Pardesh.

..…Opposite parties

 

 (COMPLAINT U/S 12 OF THE CONSUMER PROTECTION ACT, 1986)

 

QUORUM:

 

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER          

 

COUNSEL FOR THE PARTIES:

 

For complainants             :         Sh.Mashkoor Alam, Advocate

For OPs                           :         Sh.Rajesh Kumar, Advocate 

 

PER G.K DHIR, PRESIDENT

 

1.                           Complainants claims to have availed the services of OPs for settling the account regarding outstanding sum of the complainants. Proposal was made by OPs in pursuance of which, complainant no.2 deposited a sum of Rs.5 lac through RTGS on 7.9.2013 in account No.12361030005 of OPs. That amount was transferred from the bank account of complainant no.1 maintained in Central Bank of India, Railway Road, Khanna, on the basis of cheque bearing No.049964. This amount of Rs.5 lac was transferred  with the specific understanding that deposit of this amount is conditional deposit subject to final approval by OPs of settlement and in case the approval is not granted, then amount of Rs.5 lac will be returned to the complainant no.1. Complainant no.2 in letter dated 2.9.2013 specifically mentioned that the proposal is submitted only in view of the persistent calls received from Op bank regarding the settlement. Complainant no.2 disclosed that his unit stood closed due to various reasons, due to which, he is not in a position to pay any amount from his own sources. Ops requested complainant no.2 to settle the account by submitting proposal. At that time, relatives of complainant no.2 were ready to help him with financial assistance and that is why, complainants submitted proposal of paying of Rs.15 lac i.e. Rs.5 lac upfront money and Rs.1 lac per 10 monthly installments. So, Rs.15 lac was to be paid in 11 months. Complainant no.2 even disclosed through the above said letter as if insolvency petition is pending against him. After receipt of letter dated 2.9.2013 from complainant no.2, it was disclosed to him by the bank as if proposal will be accepted, but on deposit of Rs.5 lac. It is claimed that said amount was kept as security with understanding that the said amount will be taken into consideration only after the approval of proposal for settlement. Acceptance of proposal was delayed on one pretext or other, despite the assurance given for acceptance in short period. Relatives of complainant no.2 including complainant no.1 would not have blocked their money, if hope of acceptance of proposal was not there. Registered letter dated 10.3.2014 was sent by complainant no.2 for return of amount of Rs.5 lac in account of complainant no.1, but OPs failed to transfer the same. After more than 1 ½ years, OPs sent letter dated 18.5.2015 with false counter offer. Ops are under legal obligation to return the above referred amount of Rs.5 lac with interest @12% per month, but they have not returned the same, despite issue of reminders and service of legal notice dated 30.6.2015 through counsel. By pleading deficiency in service on the part of OPs, prayer made for directing Ops to return back the amount of Rs.5 lac with interest @12% per annum. Rs.1 lac as compensation on account of mental harassment and agony, but Rs.22,000/- as litigation expenses claimed.

2.                           In written statement jointly filed by Ops, it is claimed that the complainant no.1 has no locus standi to file the complaint because no letter was received from her and nor she submitted any proposal for settlement of account of complainant no.2. Complainant no.1 has falsely alleged as if she availed services of OPs for settlement of account of complainant no.2. In fact, bank is not engaged in providing such like banking services. Rather, Ops being banking limited company engaged in providing banking services only. OPs are not the service provider for settlement of account of its defaulters and as such complaint being based on false and frivolous facts, liable to be dismissed, particularly when complainants are not consumers within the meaning of Section 2(d) of the Consumer Protection Act(hereinafter in short referred to as 'Act'). In fact, both complainant no.1 and 2 are having blood relationship with each other. Complainant no.2 being director of Ogli Paper Mills Pvt. Ltd borrowed heavy loan from Op bank and thereafter, he became defaulter in payment of contracted loan for the past many years. Due to non-payment of amount, Ogli Paper Mills Pvt. Ltd and its Director including complainant no.2 were proceeded for recovery in proceedings before the Debt Recovery Tribunal, Jaipur. Claim of OP bank was decreed on 16.3.2000     for an amount of Rs.57,19,839.94P with interest @19.25% and costs and        other litigation expenses. Even thereafter the decreetal amount with interest and costs not paid, but complainant no.2 with soiled hands by suppressing various material facts has approached this Forum. Complainant no.2 has been virtually joined for misleading this Forum, despite the fact that as per allegation of complaint, complainant no.2 is having no independent right to claim amount of Rs.5 lac. Further, both the complainants are estopped by their act and conduct from alleging themselves as consumers. Proposal letter dated 2.9.2013 was submitted by complainant no.2 in individual capacity by sending the same from Khanna District Ludhiana to Op1 branch office situate in Himachal Pradesh. So, keeping in view the said proposal, an amount of Rs.5(five) lac was deposited in defaulter’s account of his company,of which complainant no.2 is director as aforesaid. Offer submitted by complainant no.2 has never been revoked, but after consideration by the Zonal office of OP2, a communication regarding decision of approval was remitted through Op bank branch at Khanna. After that the complainants instead of remitting the amount as per terms of approval, started raising vague allegations and filed this false complaint. Act of sending of legal notice from Ludhiana does not give right to the complainants to file the complaint at Ludhiana. Proposal of settlement of debt was received by OP bank at Himachal Pradesh and communication of acceptance was sent therefrom and as such, this Forum alleged to be not having the territorial jurisdiction. Each and every other averment of complaint denied.

3.                 Complainants to prove their case tendered in evidence affidavit Ex.CA of complainant no.2 along with documents Ex.C1 to Ex.C15 and thereafter, counsel for complainants closed the evidence.

4.                 On the other hand, counsel for the OPs along with authorized signatory of OPs tendered in evidence affidavit Ex.RW1 of Sh.B.N.Koundal, Authorized signatory and Senior Branch Manager of UCO Bank along with documents Ex.R1 to Ex.R3 and thereafter, counsel for OPs closed the evidence.

5.                           Written arguments in this case submitted by Ops alone, but not by the complainants. Oral arguments by counsel for parties addressed and those were heard. Records gone through minutely. 

6.                 Counsel for complainants after taking us through application Ex.C3 vehemently contends that amount of Rs.5 lac was deposited in the account of complainant no.2 with Ops as security in response to the proposal of settlement submitted by complainant no.2 through letter Ex.C4 sent through postal receipt Ex.C5. Even thereafter, registered letter Ex.C7 was sent, but despite that approval as contemplated by the complainants through the submitted proposal was not granted because approval letters Ex.C8 and Ex.C9 were sent with varied terms of settlement and as such, complainant no.1, being the owner of deposited amount of Rs.5, entitled for the refund of the same. These submissions advanced by counsel for complainants certainly has no force because after going through para no.5 of the complaint, it is made out that amount of Rs.5 lac was to be retained as security in consideration of approval of settlement regarding which proposal submitted by the complainant no.2 through letter Ex.C4. In view of the understanding that amount of Rs.5 lac to be retained as security, it is obvious that this amount was kept as banker lien with OP bank.

7.                 Section 171 of Indian Contract Act, 1872 provides that banker, factors etc., in the absence of a contract to the contrary, may retain as a security for a general balance of account, any goods bailed to them, despite the fact that no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect. So, in view of mercantile system of the bank, it is obvious that on any amount deposited with bank as security, the bank to have banker general’s lien thereon. So, even if amount of Rs.5 lac may have been deposited from the account of complainant no.1, but the same was kept as security in settlement of loan account of complainant no.2 and as such, it is obvious that Op bank was to have banker’s general lien over this amount of Rs.5 lac.

8.                 As per law laid down in case titled as Syndicate Bank vs. Vijay Kumar-AIR-1992-S.C.-1060, in mercantile system, the bank has a general lien over all forms of securities of negotiable instruments deposited by or on behalf of the customer in the ordinary course of banking business. Further as per ratio of this case, the bank has the liberty to adjust from the proceeds of the two FDR’s towards the dues to the bank and if there is no balance left, then the same would belong to the depositor. In the case before us also as amount of Rs.5 lac from the account of the complainant no.1 deposited in response to the proposal submitted by the complainant no.2 as borrower or customer of OPs and as such, virtually the said amount was deposited on behalf of complainant no.2 in ordinary course of banking business for discharge of liability of loan amount, which was fastened on complainant no.2 after passing of order annexure R1 by the Learned Debt Recovery Tribunal, Jaipur. This order Ex.R1 is of date 16.3.2000, but the amount in question of Rs.5 lac deposited through Ex.C3 on 7.3.2013 along with relevant cheque of that date itself placed on record as Ex.C2. Factum regarding passing of order for recovery of loan amount against complainant no.2 by Learned Debt Recovery Tribunal, Jaipur through order Ex.R1 has been concealed by the complainants, while filing this complaint and as such, complainants are guilty of suppression of material facts.

9.                 Even if insolvency proceedings may have been initiated against complainant no.2, despite that in view of the subsistence of the order Ex.R1 passed by Learned Debt Recovery Tribunal, Jaipur, liability of OP2 to pay the outstanding loan amount to remain there. It was in attempt of discharging that liability that settlement proposal through letter Ex.C4 was submitted by the complainants in September 2013 and as such virtually the amount of Rs.5 lac from the account of complainant no.1 was deposited with OP bank for keeping the same as security. On that security banker has general lien in view of Section 171 of the Indian Contract Act and as such if this amount of Rs.5 lac appropriated by OP bank towards the loan account of complainant no.1 or his concern M/s Ogli Paper Mills Pvt. Ltd by writing letter annexure R2, then OP bank has rightly applied this security amount towards the outstanding loan amount because of above discussed legal position. So, no illegality exist in order of application of security amount of Rs.5 lac towards the loan account of complainant no.2 or his concern named as M/s Ogli Paper Mills Pvt. Ltd because order annexure R1 has already been passed against  three of them including wife of complainant by the Learned Debt Recovery Tribunal, Jaipur.

10.               Certainly submissions advanced by counsel for OPs has force that services of settling the loan account not provided by OP bank because its functioning is to advance loan or conduct the banking transaction. Even if that be the position, despite that as the settlement of loan account contemplated in response to the rendered services of advancing loan by Ops to complainant no.2 and as such, certainly the services of settlement of loan rendered as ancillary to the main banking services. That contraction of loan was by the complainant no.2 and not by complainant no.1 and as such, privity of contract in matter of availing loan services was between the complainant no.2 and Op bank only and not between complainant no.1 and OP bank. So, submission advanced by counsel for Ops has force only to the extent that complainant no.1 not a consumer of OP bank, but complainant no.2 is consumer of Op bank.

11.               Even if the unit, for which, the loan contracted was in Himachal Pradesh, but despite that proposal for settlement submitted by the complainant no.2 through letter Ex.C4 from his residence at Khanna and likewise, the registered letter Ex.C7 sent from Khanna and counter proposal of approval sent to complainant no.2 at Khanna through letter Ex.C9 and as such, it is obvious that virtually part of cause of action in respect of settlement of loan proposal accrued within the territorial jurisdiction of this Forum. So, certainly this Forum has territorial jurisdiction. However, keeping in view the fact that deposited amount of Rs.5 lac rightly appropriated by OP bank in exercise of banker’s general lien powers under section 171 of the Indian Contract Act, it has to be held that no deficiency in service committed by Ops, if security amount of Rs.5 lac not returned to any of the complainants. Rather, complainant no.2 is father of complainant no.1 and as such, amount of Rs.5 lac deposited from account of complainant no.1 by complainant no.2 as security due to understanding between complainant no.1 and 2, due to their close relationship with each other. As complainant no.1 voluntarily at the behest of complainant no.2 opted for deposit of Rs.5 lac as security and as such, now complainant no.1 estopped from claiming that she is entitled to the above referred amount, particularly when the filing of complaint itself discloses connivance between complainant no.1 and 2. Complainant no.1 has not tendered her affidavit at all and nor she signed on complaint or on the Vakalatnama, but she just executed the special power of attorney Ex.C1 in favour of her father and this circumstance  enough to show as if complainant no.1 owing to her natural love and affection with her father i.e. complainant no.2, has connived with complainant no.2 in filing this complaint just for saving the amount of Rs.5 lac admitted to be deposited as security as per contents of the complaint itself. So, looking from any angle, this complaint is not maintainable and same merits dismissal.

12.               Therefore, as a sequel of the above discussion, complaint dismissed without any order as to costs. Copies of order be supplied to parties free of costs as per rules.

13.                         File be indexed and consigned to record room.

 

 

                      (Param Jit Singh Bewli)                  (G.K. Dhir)

            Member                                             President

Announced in Open Forum

Dated:14.09.2017

Gurpreet Sharma.