National Consumer Disputes Redressal
Shirish S Kirtikar vs State Bank Of Patiala on 10 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 365 OF 2013 (Against the Order dated 30/03/2012 in Complaint No. 101/2010 of the State Commission Maharastra) 1. SHIRISH S KIRTIKAR R/O. 609, C BLOCK, MANHU MAHAL, 35 PALI HILL BANDRA (W) MUMBAI-400050 MAHARASHTRA ...........Appellant(s) Versus 1. STATE BANK OF PATIALA O/AT 82 MEENA APT., HILL ROAD, BANDRA (W) MUMBAI-400050 MAHARSHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. JUSTICE D.K. JAIN, PRESIDENT HON'BLE MR. VINAY KUMAR, MEMBER HON'BLE MRS. M. SHREESHA, MEMBER
For the Appellant : For the Appellant: Mr. Sanjay Kumar Ghosh and
Ms. Rupali Ghosh, Advocates For the Respondent : For Respondents : Mr. Rajiv Kapur, Advocate
Dated : 10 Apr 2015 ORDER
O R D E R
(Pronounced on 10th day of April, 2015) D.K. JAIN, J. PRESIDENT I.A. NO. 7968/2013 (For condonation of delay) For the reasons stated in the application, which is supported by medical certificates, delay in filing the appeal is condoned. The Application stands disposed of.
FIRST APPEAL NO. 365 OF 2013 Challenge in this Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short, "the Act"), by the Complainant, is to the order, dated 30.03.2012, passed by the State Consumer Disputes Redressal Commission, Maharasthra at Mumbai (for short "the State Commission") in CC NO.101/10. By the impugned order, the State Commission has held that neither the Respondent Bank, namely, State Bank of Patiala nor its officials were deficient in rendering services to the Complainant while dealing with his Fixed Deposit Receipts (FDRs). However, while dismissing the Complaint on merits, the State Commission has also observed that since the allegations levelled in the Complaint require detailed enquiry and recording of evidence, a Consumer Fora constituted under the Act, is not the proper forum for redressal of his grievance.
2. The salient facts, giving rise to the Appeal, are as follows:-
The Appellant is engaged in providing janitorial services to various establishments in and around Mumbai. He maintained a number of savings and current accounts with the Bank, in his personal name as well as in the name of his business ventures. The subject dispute pertains to ten FDRs, aggregating over Rupees one crore, obtained by him from the Bank by transferring amounts from his other accounts, during the period from 15.12.2007 to 22.08.2008. The principal amount of the deposits varied from ₹20,000/- to ₹25,00,000/-.
3. The case of the Appellant is that whilst perusing the statements of accounts held in the Bank, he discovered certain glaring discrepancies therein. He discovered that certain credit/debit entries from/to unknown accounts had been made in his accounts, without any mandate, written or otherwise, by him in that behalf. His case is that he requested the Bank officials to furnish to him up-to-date details of his accounts and that of the unknown accounts, but there was no positive response from the Bank. It appears that the Appellant had also lodged Complaints against the Bank with the Reserve Bank of India and the Economic Offences Wing of the Mumbai Police but without any success.
4. Placed in the situation, alleging deficiency in services on the part of the Bank, the Appellant approached the State Commission with his Complaint, inter-alia, praying for a direction to the Bank to rectify the defects in their services and to pay to him an amount of ₹70,27,306.94, being the amount of the subject Fixed Deposit Receipts, together with interest accrued thereon; a compensation of ₹5,00,000/- towards mental agony suffered by him and ₹25,000/- towards costs of litigation.
5. The Complaint was resisted by the Bank. In the Written Version filed on its behalf, while denying any deficiency in service on its part and alleging that the Complainant had approached the State Commission with unclean hands, it was pleaded that all the transactions were explained to the Complainant on a number of occasions; the Complainant was himself the author of the transactions in question and the monies were transferred to his accounts, albeit having been routed through internal accounts of the Bank, which the Complainant had wrongfully and mischievously castigated as "false" accounts; all the Fixed Deposit Accounts had been properly kept and accounted for and no loss had been caused by the Bank to the Complainant; the internal intermediatary accounts, adopted in the present case were in consonance with the commitment of the Bank to upgrade and provide best banking services for its customers; the encashment/closure of the Fixed Deposit Accounts were made at the instance of the Complainant, which were fully and duly accounted for in his various accounts; there was no forgery in and fabrication of his signatures and that whatever information was asked for by the Economic Offences Wing, the same was duly furnished.
6. Upon consideration of the material on record, which included Complainant's own affidavit and the affidavit filed by the Manager of the Bank, the State Commission has come to the conclusion that since some of the accounts had been opened by the Complainant for his various business ventures and on some of the bank accounts, he had availed of overdraft facilities for his business, the Complainant had hired services of the Bank for commercial purpose and as such he is not a "consumer" within the meaning of Section 2(1)(d)(ii) of the Act. In so far as the merits of the Complaint are concerned, the State Commission has held as follows:-
" Basically it is for the Complainant to establish the alleged negligence on the part of the Bank Officials. Its submission in the complaint based upon his complaint as well as on his own affidavit are quite vague and filed to substantiate those allegations. Besides this, it is revealed from the Affidavit of Mr.Bindeshwar Kamat, Manager of the Opponent Bank, supra, which finds corroboration from the documents on record as well as replies given by the Bank in writing explaining the transactions to the Complainant through their various correspondence and Bank's rules of business. The original deposit receipts produced on record would show that the Bank acted as per the instructions of the Complainant on maturity while depositing amount in the account of the Complainant himself. They also refer to instructions given by the Complainant himself. They also explained instruction given by the Complainant while taking the term loan which bears the endorsement made by the Complainant, "I hereby irrevocably authorize State Bank of Patiala to transfer my funds from one A/c to any other account to honour my cheques/transfer". The replies given by the Bank to Complainant dated 04.07.2009, 22.01.2010, 06.07.2009, 27.07.2009, amongst others, do explain in detail the transaction and answer to the transaction and answer to the anxiety of the Complainant. We find no reason to disbelieve their such evidence. In the circumstances, it cannot be said that the Bank or its officials were guilty of any negligence in rendering the banking service to the Complainant vis-à-vis to deficiency in service on their part within the meaning of the Consumer Protection Act, 1986."
7. Having held so, as stated above, the State Commission still chose to make observations on the maintainability of the Complaint under the Act. Hence, the present Appeal.
8. Mr. Sanjoy Kumar Ghosh, Learned Counsel appearing for the Appellant, vehemently submitted that considering the entire documentary evidence in relation to the transactions in question placed on record by the Appellant, the State Commission committed a material irregularity in not calling upon the Bank to reconcile all the Fixed Deposit Accounts of the Appellant. It was argued that by crediting/debiting various accounts maintained by the Appellant without his written instructions in this behalf, the Bank had blatantly violated banking norms and regulations, which per se amounted to deficiency in service to the Appellant. It was also submitted that having come to the conclusion that it did not have jurisdiction to adjudicate upon the issues raised in the Complaint, the State Commission committed a serious error in law, inasmuch as its findings on merits of the Complaint have left the Appellant without any remedy.
9. Bearing in mind the nature of grievance of the Appellant, which primarily revolves around discrepancy in Banking transactions in several accounts, with or without Appellant's mandate, we are inclined to agree with the State Commission that a Consumer Fora is not the appropriate forum for effectual adjudication on the issues raised in the complaint. For instance, the questions whether: (i) signatures on the instructions, allegedly issued by the Appellant were forged; the instructions appearing on the overdraft facility agreement were authentic; alleged corrections and alterations on the FDRs would have had material effect on the maintenance of Appellant's accounts and certain credits and debits were, in fact, in some accounts, which were not maintained by him, would not only require evidence of hand-writing experts, even reconciliation of various accounts, will be a cumbersome accountancy exercise, which cannot be undertaken in summary proceedings under the Act. Accordingly, we affirm the decision of the State Commission on this point. However, we do find substance in the contention of Learned Counsel, appearing for the Appellant, that having come to the conclusion that the transactions between the Appellant and the Bank were commercial in nature and that the issues raised in the complaint could not be adjudicated in summary proceedings under the Act, the State Commission should have refrained itself from returning the afore-extracted findings on merits of the complaint.
10. Consequently, while dismissing the Appeal on the question of jurisdiction of the Consumer Fora to deal with the complaint, we set aside the impugned order in so far as it touches on the merits of the complaint. Accordingly, we direct that, if the Appellant takes recourse to any other legal remedy, as may be available to him in law, the same shall be considered on its own merits, uninfluenced by any observations in the impugned order on the merits of the case pleaded in the Complaint, subject matter of this Appeal. It goes without saying that as and when the Appellant chooses to avail of such remedy, his claim for benefit of Section 14 of the Limitation Act, 1963 to exclude the period spent in prosecuting the Complaint under the Act, shall be considered keeping in view the well settled law on the point ( See: Laxmi Engineering Works Vs. P.S.G. Industrial Institute (1995) 3 SCC 583).
11. The Appeal stands disposed of in the above terms with no orders as to costs.
I.A. NO. 7961/13 (Exemption from filing the C/C), I.A.No.2406/14 (For Early hearing), and I.A No.2407/14 (Exemption from filing typed copies of documents) The main Appeal having been dismissed, all these Applications are rendered infructuous and are dismissed accordingly.
......................J D.K. JAIN PRESIDENT ...................... VINAY KUMAR MEMBER ...................... M. SHREESHA MEMBER