State Bank Of India vs Allabux

These two revision petitions have been filed by the petitioner, State Bank of India against the order dated 14.8.2012 passed by the State Consumer Disputes Redressal Commission, Karnataka, Bangalore (for short, 'State Commission') in FA Nos. 1605/2012 and 2240/2011.

Brief facts of the case are that respondent/ complainant deposited Rs.2,02,000/- with the petitioner/OP on 23.6.1995 for 36 months in fixed deposit which was to mature on 22.6.1998 with maturity value of Rs.2,92,294/. It is the case of the complainant that he went to Soudi Arabia and came back in 2009 only. Then he pursued with the bank and requested for payment of his fixed deposit. When he presented his fixed deposit receipt to the bank, the bank made an endorsement on the FDR that the FDR was prematurely encashed on 13.2.1998 and the maturity amount of Rs.2,72,532/- was adjusted in the over draft account of the complainant. Complainant then gave a legal notice on 29.9.2009 but received no reply. Then the consumer complaint was filed before the District Forum on 24.8.2010.

OP resisted the complaint by filing the written statement. It was mentioned that the complainant appeared on 13.2.1998 in the bank and requested for pre-mature payment of the FDR due to urgent financial need. Accordingly, the maturity value of Rs.2,72,532/- was adjusted in the over draft account maintained by the complainant with the bank. At that time, it was stated by the complainant that the original FDR was lost and he had presented only a photocopy of the FDR. After adjusting the amount of Rs.2,72,532/- the over draft account was fully satisfied and the remaining amount of Rs.43,138/- was refunded in cash to the complainant and the over draft account was also closed. Accordingly, it was requested that the complaint be dismissed.

The District Forum vide its order dated 29.3.2011 after considering the submissions of both parties allowed the complaint as under:

"For the reasons discussed above, the complaint filed by the complainant U/s 12 of the Consumer Protection Act, 1986 against the OP is allowed, partly with cost.

OP is ordered to pay a sum of Rs.2,92,294/- to the complainant towards the maturity amount of the F.D. together with interest @ 9% p.a. from 29.9.2009 till realization.

OP shall also pay a sum of Rs,15,000/- compensation for mental agony, harassment, inconvenience and also cost of the proceeding.

The OP is granted six weeks time to comply with the said order."

Aggrieved by the order of the District Forum, OP bank preferred Appeal No. 1605/2011 before the State Commission and similarly the complainant also preferred an Appeal No. 2240 of 2011 before the State Commission. The OP preferred appeal on the ground that the maturity amount has already been paid and bank cannot be directed to pay maturity amount again. The complainant preferred appeal on the ground that the District Forum had allowed interest only from 29.9.2009, whereas the complainant is entitled to get interest from the date of maturity of the fixed deposit. The State Commission however dismissed the FA No. 1605/2011 filed by the OP bank and allowed the FA No.2240/2011 filed by the complainant as under:

"Appeal No.1605/2011 filed by the Opposite Party/Bank is dismissed.

Appeal No.2240/2011 filed by the complainant is allowed in modification of the order passed by the DF directing the Opposite Party/Bank to pay a sum of Rs.2,92,294/- to the complainant towards maturity of the FD together with the prevailing interest payable on SB account that is from 22.6.1998 till its realization.

The remaining order passed by the DF, Gulbarga is kept undisturbed.

The amount deposited by the appellant/OP in Appeal No.1605/2011 shall be transferred to the DF to enable the DF to pay the same to the complainant after due notice to him."

Aggrieved with the order of the State Commission, the OP bank has filed these two revision petitions against the order of the State Commission dated 4.8.2012.

Heard the learned counsel for the parties and perused the record.

Learned counsel for the bank stated that the complainant was not a consumer as he had maintained an over draft account with the bank for commercial purpose and the maturity amount was adjusted with over draft account. It was further stated by the learned counsel that the complaint was highly time barred and the State Commission should have dismissed the complaint on the basis of limitation only as there was no application for condonation of delay filed before the District Forum for condoning the delay in filing the present complaint.

Learned counsel further stated that State Commission has erred in holding that there are no answers to the following:

" i. On which date the said OD facility was availed.

ii. What was the amount which was paid to the complainant under the OD facility.

iii. What was the rate of interest agreed to be charged on OD facility.

iv. What was the OD facility account no."

It was stated by the learned counsel that the Bank had established the grant of OD facility by producing the ledger statement in which the aforesaid particulars were provided viz.

"i. The said OD facility was availed on 22/06/1995. An amount of Rs.1,50,000/- was paid to the complainant under the OD facility.

iii The rate of interest charged on the OD facility was @ 18.50 per cent per annum as prevailing at the material time.

OD facility accountNo. P-57."

It was further argued by learned counsel that the petitioner bank that in the present case, disputed questions of facts as well as of law are involved and therefore, the consumer forum could not be the appropriate forum to decide the present complaint. The payment of the FDR in question is in dispute as the bank has claimed to have paid the proceeds of the FDR but the same is being denied by the complainant. It is not the case that the proceeds of the FDR have been taken away by somebody, rather, the proceeds have been deposited in the over draft account of the complainant himself. Complainant is also denying the over draft account which he was operating. Thus, these questions cannot be answered without elaborate evidence to be adduced by both the parties and therefore this will require adjudication from a civil court. To support his arguments, the learned counsel relied upon the judgment passed by this Commission in Vishamber Sunderdas Badlani and another vs. Indian Bank and 3 Ors., MANU/CF/0313/2007, wherein it has been observed as under:

"24. Seeing various judgments of the Supreme Court and this Commission, it is evident that wherever not only the complicated questions of law but disputed questions of facts, relating to unauthorized representations made about paying higher rate of and requirement of recording voluminous evidence etc. and relating to forgery and conspiracy involving eight persons and other points mentioned earlier are involved, it would be desirable that the matter should not be dealt with by this commission and could be relegated to the Civil Court. We feel that in the present state of law and the observations of the Supreme Court itself and the aforesaid circumstances, we cannot take any other view."

Learned counsel for the OP bank questioning the visit of the complainant to Soudi Arabia, stated that the complainant has not filed any proof for his visit to Soudi Arabia to explain his absence for about 11 years. He has stated that his passport has been given to some travel agent. The State Commission should have further gone into this question and should have probed the issue whether the complainant was really out of India or he was just passing time that the record of the bank should be weeded out and then he should file the complaint. The State Commission as well District Forum have observed that neither any affidavit nor indemnity bond was taken from the complainant by the bank. The fact is that the bank has taken an application from the complainant for pre-mature encashment of the FDR on the basis of the photocopy. As the complainant was a known customer of the bank, the bank did not insist on any further document.

Learned counsel for the petitioner further stated that when the interest is to be paid, the compensation is not to be paid. However, the District Forum has also allowed a compensation of Rs.15,000/- which has been upheld by the State Commission as well.

On the other hand, learned counsel for the complainant/respondent stated that the complainant had gone to Saudi Arabia before maturity of the fixed deposit and only came back in 2009 and then he pursued for payment of his FDR. To his utter surprise, when he presented the FDR, the bank made an endorsement that the proceeds of the FDR was prematurely encashed on the request of the complainant and the amount was adjusted in over draft account of the complainant which the complainant never maintained with the bank. A fraudulent receipt has also been produced by the bank wherein thumb impression of the complainant has been allegedly shown for receipt of Rs.43,138/- in cash. Learned counsel alleged that when the bank officials came to know that the complainant is not coming to take the maturity amount of his FD for a long time, they forged documents to misappropriate the amount of the FDR of the complainant. The complainant has never opened an Over draft account, nor the bank has produced any opening form of the OD account. All these papers showing adjustment in the OD account are forged papers and they cannot be believed.

It was further pointed out that fora below have given concurrent findings of facts and the scope of the revision petition is very limited in such cases as facts cannot be reassessed at the stage of revision petition. As the money remained with the bank for a long time, the complainant is entitled to interest for the total period from the date of maturity till the actual payment. The very fact that the original FDR was presented by the complainant to the bank in 2009, clearly speaks the fact that no payment was made to the complainant before 2009. The learned counsel further mentioned that if the payment was prematurely taken on basis of photocopy of FDR, the bank must have taken an affidavit from the complainant that the original FDR has been lost or the bank should have insisted on a copy of the FIR or should have also obtained an indemnity bond from the complainant before making such payment. The bank has not filed any document to prove that there is any time limit for taking the payment of the FDR. 16. I have considered the arguments of both the parties and have examined the record.

The main question involved in the present case is whether the FDR has been paid by the bank or not. Clearly the case of the bank is that on the request of the complainant premature payment of FDR was made on 13.2.1998 and that too on the basis of a photocopy of the FDR. However, the banks in such cases take due precaution and take the affidavit as well as indemnity bond from the FD holder. In the present case, neither the affidavit of the complainant nor the indemnity bond has been obtained. Most of the banks have instructions that indemnity bond is to be preserved on a permanent basis as it a permanent record. As the bank has not taken any indemnity bond in the present matter, there is no question of maintaining the indemnity bond . Clearly if the story of the bank is correct, the bank has erred in not following the procedure and the payment has been made carelessly and without protecting the interest of the bank. Obviously, the bank cannot get any advantage of their own wrong and mistakes for not following the procedure and for not taking the affidavit and indemnity bond from the complainant. The complainant has produced the original FDR and has clearly denied maintaining any over drat account with the bank. The bank has not produced the opening form of the over draft account maintained by the complainant. Hence, the bank is definitely liable to pay maturity amount of the FDR.

The next question comes in respect of the interest to be paid on the maturity amount from the date of maturity till the actual payment. There was no instruction given by the complainant for renewal of the FDR nor there was any instruction that the proceeds of the FDR will be transferred to any account of the complainant on maturity. Thus, it is clear that the amount after maturity did not earn any interest because neither the same was renewed nor it was transferred to any interest bearing account. Hence, complainant is not entitled to any interest on the maturity amount of the FDR after the date of maturity. However, since the complaint was filed before the District Forum and District Forum allowed the complaint on 29.3.2011, therefore, at the most the complainant may be entitled to interest from the date of District Forum's order i.e., 29.3.2011 as per saving bank account rate of interest as applicable, till its realization.

Based on the above discussion, revision petitions are partly allowed. The order of the State Commission dated 14.8.2012 stands modified to the extent that the payment of the maturity amount of Rs.2,92,294/- shall be paid by the petitioner bank to the complainant alongwith interest at a rate that is applicable to Saving Bank Account from 29.3.2011 till actual payment. This order be complied within a period of 45 days from the date of this order.