Order by:
Sh.Amrinder Singh Sidhu, President.
1. The complainant has filed the instant complaint under section 12 of the Consumer Protection Act, 1986 (now section 35 of Consumer Protection Act, 2019) on the allegations that he is holder of saving bank account No. 007190200007870 of Opposite Party-Bank and he used to deposit and withdraw the amount from his account since the date of its opening. The complainant alleges that he issued two bearer cheques bearing No.000000450148 for Rs.1,45,000/- dated 28.03.2019 and 000000450149 for Rs.50,000/- dated 28.03.2019 in favour of his brother Manpreet Singh. Said Manpreet Singh alongwith the complainant went to Opposite Party bank and presented the above said cheques and withdrawn the amount of Rs.1,95,000/- and the Opposite Party paid a sum of Rs.1,95,000/- to the brother of the complainant. The case of the complainant is that on 02.01.2019 from the above said saving account, the complainant booked a FDR for a sum of Rs.1 lakh vide FDR No. 00714040001395 without sweep in facility and its maturity date was 10.07.2020, but the Opposite Party bank without the consent of the complainant had partially broken the said FDR before the date of maturity and from the said FDR, the Opposite Party bank has transferred the amount to saving bank and due to this action of the Opposite Party, the complainant has been deprived of receiving future interest on the said FDR. Said transaction of the Opposite Party is illegal, unjust and without the consent of the complainant and thus there was closing balance of Rs.75,000/- which has also been freezed against the rules and regulations of the bank. On 08.04.2019, when the complainant went to the Opposite Party bank to withdraw the amount, then he came to know about the above said illegal transaction of the Opposite Party. The complainant told about the said fact to the Branch Head and they lavelled false allegations that the complainant has received in excess a sum of Rs.75,000/- on 28.03.2019 which is altogether wrong and hence denied. It is the concocted story alleged by the Opposite Party with malafide intention to usurp the valuable money of the complainant for which the Opposite Party has no right. Hence, the services rendered by the Opposite Party are deficient and negligent.The complainant visited a number of times to the Branch Office of opposite party for the redressal of his grievances, but of no use. Due to the aforesaid act and conduct and deficiency in service of Opposite Party, the complainant has suffered mental tension, harassment and financial loss. Vide instant complaint, the complainant has sought the following reliefs.
- To direct the Opposite Party to release the amount of Rs.75,000/- which has been freezed by the Opposite Party illegally, unjustly and to pay Rs.1 lakh as compensation, mental tension and damages alongwith Rs.40,000/- as costs or any other relief which this District Consumer Commission may deem fit be also granted to the complainant.
Hence, the complainant has filed the present complaint for the Redressal of his grievance.
2. Opposite Party-Bank appeared through counsel and contested the complaint by filing written reply taking certain preliminary objections therein inter alia that the complicated questions of law and facts are involved in the present complaint. Moreover, the lengthy examination-in-chief and cross examination of the parties/ witnesses are required in the complaint, so the complaint requires to be decided by the Civil Court and as such, this District Consumer Commission has got no jurisdiction to entertain, try and dispose off the present complaint. The true facts are that the complainant himself wants to take undue advantage of a bonafide mistake committed by one official of the bank during teller operations thereby making excess payment of Rs.75,000/- to the complainant on 28.03.2019. On the said date, the complainant alongwith his brother visited the Opposite Party bank to withdraw the cheque No. 450148 amounting to Rs.1,45,000/- and cheque no. 450149 amounting to Rs.50,000/- drawn by the complainant in favour of his brother Manpreet Singh (Collectively referred to as ‘cheques’). During the withdrawal, the amount of the cheques alongwith amount in excess of Rs.75,000/- was mistakenly handed over to the complainant which does not belong to him, but the complainant intentionally and knowingly withheld said amount and now he wants to grab the amount which do not belong to him. The complainant himself is trying to make a wrongful gains by way of misrepresentations and thus attempting to commit cheating by way of misappropriation and embezzlement of the said excess amount and hence no deficient services have been rendered to the complainant as alleged in the complaint. The complaint being false, frivolous, vexatious and baseless may please be dismissed with compensatory costs. On merits, it is submitted that the complainant alongwith his brother visited the Opposite Party bank to withdraw the cheque No. 450148 amounting to Rs.1,45,000/- and cheque no. 450149 amounting to Rs.50,000/- out of his saving bank account and submitted withdrawal slips which was verified and checked by the teller section of the bank by its official namely Shiv Kumar, who was that day transacting with a large number of customers alone. Said cashier inadvertently handed over to Manpreet Singh brother of the complainant and complainant himself, a bundle of 52 currency notes of denomination of Rs.2000/- each and 332 currency notes of denomination of Rs.500/- each totalling Rs.2,70,000/- instead of handing him over 52 currency notes of denomination of Rs.2000/- each and 182 currency notes of denomination of Rs.500/- each and 182 currency notes of denomination of Rs.500/- each amounting to Rs.1,95,000/- as is mentioned in the reverse side of the cheque by the said cashier. Said Manpreet Singh and complainant dishonestly went away with the entire sum of Rs.2,70,000/- instead of informing the cashier or the Branch Manager about the excess payment and said bonafide mistake and thus failed to return the excess payment intentionally and knowingly that the said excess payment of Rs.75,000/- does not belong to them. The huge shortage of Rs.75,000/- was noticed by the bank only in the evening hours of the day during closing and the bank immediately inspected the CCTV installed in the bank wherein it becomes clear that the complainant and his brother were the persons who had received the excess payment of Rs.75,000/-. However, for rechecking of the above said bonafide mistake, an independent verifier was appointed by the bank who reconfirmed that excess payment of Rs.75,000/- was handed over to the bearer of the cheques by the cashier/ teller as he was nervous due to crown and he was handling the counter alone the day when the excess payment was made. Since the brother of the complainant Manpreet Singh is not a customer of the bank and he was accompanied by the complainant on 28.03.2019, the bank representatives followed up with the complainant requesting him several times to visit the branch to see the CCTV footage basis which the request was made by the bank and refund the said excess cash paid erroneously, but the complainant denied to refund the amount. Thus a hold to the funds was marked in the account No. 007190200007870 of the complainant on 07.04.2019 upto the extent of Rs.75,000/- in context of the excess payment of Rs.75,000/- made on 2.03.2019 and also requested to the complainant to refund the excess payment, but the complainant refused. On failure to refund the said amount, a complaint dated 14.05.2019 was also made for lodging an FIR regarding cash shortage of Rs.75,000/- with DSP, Moga, but with no affect till date. As per the provisions of section 72 of Indian Contract Act, the bank has a right to recover the amount which has been paid under a mistake of fact and the complainant and his brother are under obligation to refund the said amount. It is further submitted that Rs.1 lakh was deposited in the account with Auto Sweep facility in the account and the said FDR of Rs.1 lakh created through Auto Sweep facility was not a regular FDR. At the time of putting a hold upto the extent of Rs.75,000/- , the fixed deposit of Rs.1 lakh under Auto Sweep was automatically broken by the system of the bank and all other allegations made in the complaint have been denied and a prayer for dismissal of the complaint has been made.
3. To prove his case, complainant has tendered into evidence the statement of account Ex.C1 and his duly sworn affidavit Ex.C2 and closed his evidence.
4. On the other hand, to rebut the allegations of the complainant, the Opposite Party tendered into evidence the affidavit of Smt.Vega Devgan, Branch Manager Ex.OP1 alongwith copies of documents Ex.OP2 to Ex.OP7 alongwith Pen drive Ex.OP8 and closed the evidence.
5. We have heard the ld. counsel for the parties and have carefully gone through the evidence on record.
6. Ld.counsel for the complainant has reiterated the averments as narrated in the complaint and contended that first of all, the written version filed on behalf of the Opposite Party-Yes Bank Limited, has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. On merits, it is contended that the complainant is holder of saving bank account No. 007190200007870 of Opposite Party-Bank and he used to deposit and withdraw the amount from his account since the date of its opening. The complainant alleges that he issued two bearer cheques bearing No.000000450148 for Rs.1,45,000/- dated 28.03.2019 and 000000450149 for Rs.50,000/- dated 28.03.2019 in favour of his brother Manpreet Singh. Said Manpreet Singh alongwith the complainant went to Opposite Party bank and presented the above said cheques and withdrawn the amount of Rs.1,95,000/- and the Opposite Party paid a sum of Rs.1,95,000/- to the brother of the complainant. The case of the complainant is that on 02.01.2019 from the above said saving account, the complainant booked a FDR for a sum of Rs.1 lakh vide FDR No. 00714040001395 without sweep in facility and its maturity date was 10.07.2020, but the Opposite Party bank without the consent of the complainant had partially broken the said FDR before the date of maturity and from the said FDR, the Opposite Party bank has transferred the amount to saving bank and due to this action of the Opposite Party, the complainant has been deprived of receiving future interest on the said FDR. Said transaction of the Opposite Party is illegal, unjust and without the consent of the complainant and thus there was closing balance of Rs.75,000/- which has also been freezed against the rules and regulations of the bank. On 08.04.2019, when the complainant went to the Opposite Party bank to withdraw the amount, then he came to know about the above said illegal transaction of the Opposite Party. The complainant told about the said fact to the Branch Head and they lavelled false allegations that the complainant has received in excess a sum of Rs.75,000/- on 28.03.2019 which is altogether wrong and hence denied. It is the concocted story alleged by the Opposite Party with malafide intention to usurp the valuable money of the complainant for which the Opposite Party has no right. Hence, the services rendered by the Opposite Party are deficient and negligent. The complainant visited a number of times to the Branch Office of opposite party for the redressal of his grievances, but of no use. Due to the aforesaid act and conduct and deficiency in service of Opposite Party, the complainant has suffered mental tension, harassment and financial loss.
7. On the other hand, ld.counsel for Opposite Party Bank has repelled the aforesaid contention of the complainant on the ground that the complicated questions of law and facts are involved in the present complaint. Moreover, the lengthy examination-in-chief and cross examination of the parties/ witnesses are required in the complaint, so the complaint requires to be decided by the Civil Court and as such, this District Consumer Commission has got no jurisdiction to entertain, try and dispose off the present complaint. It is contended that the complainant himself wants to take undue advantage of a bonafide mistake committed by one official of the bank during teller operations thereby making excess payment of Rs.75,000/- to the complainant on 28.03.2019. On the said date, the complainant alongwith his brother visited the Opposite Party bank to withdraw the cheque No. 450148 amounting to Rs.1,45,000/- and cheque no. 450149 amounting to Rs.50,000/- drawn by the complainant in favour of his brother Manpreet Singh (Collectively referred to as ‘cheques’). During the withdrawal, the amount of the cheques alongwith amount in excess of Rs.75,000/- was mistakenly handed over to the complainant which does not belong to him, but the complainant intentionally and knowingly withheld said amount and now he wants to grab the amount which do not belong to him. The complainant himself is trying to make a wrongful gains by way of misrepresentations and thus attempting to commit cheating by way of misappropriation and embezzlement of the said excess amount and hence no deficient services have been rendered to the complainant as alleged in the complaint. The complaint being false, frivolous, vexatious and baseless may please be dismissed with compensatory costs. On merits, it is submitted that the complainant alongwith his brother visited the Opposite Party bank to withdraw the cheque No. 450148 amounting to Rs.1,45,000/- and cheque no. 450149 amounting to Rs.50,000/- out of his saving bank account and submitted withdrawal slips which was verified and checked by the teller section of the bank by its official namely Shiv Kumar, who was that day transacting with a large number of customers alone. Said cashier inadvertently handed over to Manpreet Singh brother of the complainant and complainant himself, a bundle of 52 currency notes of denomination of Rs.2000/- each and 332 currency notes of denomination of Rs.500/- each totalling Rs.2,70,000/- instead of handing him over 52 currency notes of denomination of Rs.2000/- each and 182 currency notes of denomination of Rs.500/- each and 182 currency notes of denomination of Rs.500/- each amounting to Rs.1,95,000/- as is mentioned in the reverse side of the cheque by the said cashier. Said Manpreet Singh and complainant dishonestly went away with the entire sum of Rs.2,70,000/- instead of informing the cashier or the Branch Manager about the excess payment and said bonafide mistake and thus failed to return the excess payment intentionally and knowingly that the said excess payment of Rs.75,000/- does not belong to them. The huge shortage of Rs.75,000/- was noticed by the bank only in the evening hours of the day during closing and the bank immediately inspected the CCTV installed in the bank wherein it becomes clear that the complainant and his brother were the persons who had received the excess payment of Rs.75,000/-. However, for rechecking of the above said bonafide mistake, an independent verifier was appointed by the bank who reconfirmed that excess payment of Rs.75,000/- was handed over to the bearer of the cheques by the cashier/ teller as he was nervous due to crown and he was handling the counter alone the day when the excess payment was made. Since the brother of the complainant Manpreet Singh is not a customer of the bank and he was accompanied by the complainant on 28.03.2019, the bank representatives followed up with the complainant requesting him several times to visit the branch to see the CCTV footage basis which the request was made by the bank and refund the said excess cash paid erroneously, but the complainant denied to refund the amount. Thus a hold to the funds was marked in the account No. 007190200007870 of the complainant on 07.04.2019 upto the extent of Rs.75,000/- in context of the excess payment of Rs.75,000/- made on 2.03.2019 and also requested to the complainant to refund the excess payment, but the complainant refused. On failure to refund the said amount, a complaint dated 14.05.2019 was also made for lodging an FIR regarding cash shortage of Rs.75,000/- with DSP, Moga, but with no affect till date. As per the provisions of section 72 of Indian Contract Act, the bank is has a right to recover the amount which has been paid under a mistake of fact and the complainant and his brother are under obligation to refund the said amount.
8. Perusal of the contention of the ld.counsel for the complainant shows that the written version filed on behalf of Opposite Party-Yes Bank Limited has not been filed by an authorized person. Therefore, the written version so filed is not maintainable. The Opposite Party is limited Company and written version has been filed on the basis of special power of attorney given to ld.counsel for the Opposite Party. In this regard, Hon’ble Supreme Court of India in a judgment (2011)II Supreme Court Cases 524 titled as “State Bank of Travancore Vs. Kingston Computers India Pvt. Ltd.” and in para no.11 of the judgment, has held that
“the plaint was not instituted by an authorized person. On the plea that one authority letter dated 02.01.2003 was issued by Sh. R.K.Shukla in favour of Sh. A.K.Shukla. Further plaint failed to place on record its memorandum/articles to show that Sh. R.k.Shukla has been vested with the powers or had been given a general power of attorney on behalf of the Company to sign, verify and institute the suit on behalf of the Company.”
Similar proposition came before the Hon’ble Delhi High Court in “Nibro Ltd. Vs. National Insurance Co. Ltd.”, 2 (2005) 5SCC 30 that the
“bear authority is not recognized under law and ultimately, it was held that the plaint was not instituted by an authorized person. Here also appellant has not placed on record any resolution passed by any Board of Director in favour of Mr. Soonwon Kwon and that he was further authorised to delegate his power in favour of any other person. Further there is no memorandum/articles of the Company to show that Mr. Soonwon Kwon is one of the Director of the Company. In the absence of that evidence on record we cannot say that the special power of attorney given by Director Soonwon Kwon is a competent power of attorney issued in favour of Sh. Bhupinder Singh. In the absence of any resolution of the Company or any memorandum/articles of the Company to show that Sh. Soonwon Kwon is Director and that he was further authorised to issue power of attorney in favour of Sh. Bhupinder Singh.”
Recently our own Hon’ble State Commission, Punjab Chandigarh in FAO No.1235 of 2015 decided on 25.01.2017 in case titled as L.G.Electronics India Private Limited Vs. Sita Ram Chaudhary also held that the plaint instituted by an unauthorized person has no legal effect.
9. For the sake of arguments, for the time being, if the written reply filed by Opposite Party is presumed to be correct, the next plea raised by Opposite Party is that the intricate questions of law and facts are involved in the present complaint which require voluminous documents and evidence for determination which is not possible in the summary procedure under the Consumer Protection Act and appropriate remedy, if any, lies only in the Civil Court and this District Consumer Commission has no jurisdiction to try and decide the present complaint. So far as the objection that complicated question of the fact is involved as such the Insured be relegated to go before Civil Court, is concerned, The Consumer Protection Act, 1986 (as amended upto date) (hereinafter referred to as the Act) was enacted with object to provide for better protection of the interests of the consumers and for that purpose, to make provision for the establishment of consumer council and other authorities for settlement of consumer disputes and other matter connected therewith. Section 13 (4) confers same powers upon the authorities under the Act, which are vested in Civil Court under Code of Civil Procedure, 1908, while trying a suit in respect of (i) The summoning and enforcing the attendance of any defendant or witness and examining the witness on oath, (ii) the discovery and production of any document or other material object producible as evidence, (iii) the reception of evidence on affidavits, (iv) the requisitioning of the report of the concerned analysis or test the appropriate laboratory or from other relevant source, (v) issuing of any commission for the examination of any witness and (vi) any other matter which may be prescribed. The authorities are conferred jurisdiction to decide the issue of “unfair trade practice” which has been defined under Section 2 (r) of the Act, 1986. This definition is similar to the definition of “fraud” as given under Section 17 of Indian Contract Act, 1872. From these provisions it is clear that this Commission can hold a full trail as held by civil court or adopt summary procedure for decision of any complaint. Under the Act, although the jurisdiction of the authorities is limited to consumer complaint, but while deciding such complaint no limit has been fixed for adjudicating of the dispute. Three Judges Bench of Supreme Court in Dr. J.J. Merchant Vs. Shrinath Chaturvedi, (2002) 6 SCC 635, (paragraph-7) held that the object and purpose of the Act is to render simple, inexpensive and speedy remedy to the consumer with complaint against defective goods and deficient services and the benevolent piece of legislation, intended to protect a large body of consumer from exploitation. Consumer Forum is an alternate Forum, established under the Act, to discharge the function of Civil Court. Under the Act, the consumers are provided with an alternative efficacious and speedy remedy. As such the Consumer Forum is an alternative forum established under the Act to discharge the functions of Civil Court. Therefore, delay in disposal of the complaint would not be a ground for rejecting the complaint and directing the complainant to approach the Civil Court. The argument that the complicated question of fact cannot be decided by the Forum, has been specifically rejected (In paragraph-12). Similar view has been taken in Amar Jwala Paper Mills Vs. State Bank of India, (1998) 8 SCC 387, CCI Chambers Coop. Hsg. Society Ltd. Development Credit Bank Ltd. (2003) 7 SCC 233. Recently, Hon’ble National Commission, New Delhi in CC No. 101 of 2009 titled as mahalaxmi Dyes & Chemicals Ltd. Vs. New India Assurance Company Limited decided on 07.09.2021 also held so. Hence, this District Consumer Commission is not convinced with the aforesaid contention of the ld.counsel for the Opposite Parties.
10. The defence of the Opposite Party –bank is that during the withdrawal, the amount of the cheques alongwith amount in excess of Rs.75,000/- was mistakenly handed over to the complainant which does not belong to him, so the Opposite Party-bank has freezed the amount of Rs.75,000/- which was lying with the Opposite Party- Bank in FDR account. But we are of the view that in such a situation, the banks have a right to exercise lien under section 171 of the Indian Contract Act against the dues from constitutes/ customers. However, the banks can not exercise lien over the other account likewise FDR account etc. of a customer on the ground that money was due to the bank in another account where he acts in a different capacity, if there is no agreement to that effect. Ld.counsel for the Opposite Party has contended that as per the provisions of section 72 of Indian Contract Act, it is the liability of person to whom money is paid, or thing delivered, by mistake or under coercion and the bank has a right to recover the amount which has been paid under a mistake of fact. But in the instant case, the cheques in question which were produced for payment with the Opposite Party bank ware in favour of Manpreet Singh, brother of the complainant and the payment was allegedly made in excess, if any, by the Opposite Parties to said Manpreet Singh and not to the complainant and hence, this provisions of section 72 of Indian Contract Act, 1872 are not applicable to the facts of the present case. Furthermore, the Opposite Parties has failed to defend its case by producing any cogent and convincing evidence or documents or any agreement executed between the complainant and Opposite Party bank, vide which the Opposite Party could prove that the bank has a legal right to freeze the other account of FDR of the complainant, in case the excess payment wrongly to the complainant. For arguments sake, in the present case, if there remains no amount lying with the Opposite Party-bank in the account of the complainant, what was the remedy with the Opposite Party to recover such alleged excess payment from the complainant. In such a situation, the Opposite Party bank has only remedy to recover the said alleged dues (excess payment) by filing a recovery suit by adopting proper procedure, rules and regulations of the banking, but the banks can not freeze the amount lying in the FDR of its customers to recover said alleged amount (excess payment) if any. Moreover, the bank is bound by the act of negligence of its staff during the course of employment and hence, where the bank cashier fails to account for the money deposited with him at the counter, the bank would be liable. Furthermore, the banker is supposed to safeguard the interest of the depositor when his amount is entrusted to the custody of the Bank and the Bank is liable to return the amount with interest. In the absence of any directions from the customer, no banker can unilaterally and arbitrarily transfer the money of a depositor from his account without the consent of its customer. This amounts to deficiency in service by the bank. Dilip Madhukar Kambli Vs. Nilesh Vasant Borkar and Ors 1991(1) CPR 571(SCDRC- New Bombay, Maharashtra).
11. In view of the aforesaid facts and circumstances of the case, we hold that the Opposite Party- bank has wrongly and illegally freezed the amount of FDR of Rs.75,000/- of the complainant and we direct the Opposite Party-bank to unfreeze the amount of Rs.75,000/- and release it to the complainant on his request. However, the Opposite Party- Bank is at liberty to recover the said excess payment (if any) from the complainant by adopting proper procedure, rules and regulations of the banking, in accordance with law, if they so desire. Keeping in view the peculiar circumstances of the case, the parties are left to bear their own costs. Compliance of this order be made by the Opposite Party-Bank within 45 days from the date of receipt of the copy of this order, failing which the Complainant shall be at liberty to get the order enforced through the indulgence of this Commission. Copies of the orders be furnished to the parties free of cost. File is ordered to be consigned to the record room.
12. Reason for delay in deciding the complaint.
This complaint could not be decided within the prescribed period because the State Government has not appointed any of the Whole Time Members in this Commission for about 3 years i.e. w.e.f. 15.09.2018 till 27.08.2021 as well as due to pandemic of COVID-19.
Announced in Open Commission.
Dated: 11.01.2022.
