State Consumer Disputes Redressal Commission
The Branch Manager, Oriental Bank Of ... vs Subash Chander Garg, on 28 February, 2011
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SCO NOS.3009-12, SECTOR 22-D, CHANDIGARH.
First Appeal No. 1097 of 2006
Date of institution : 25.8.2006
Date of Decision : 28.2.2011
1. The Branch Manager, Oriental Bank of Commerce, Ferozepur City.
2. The Branch Manager, Oriental Bank of Commerce, Bank Street,
Bathinda.
....Appellants.
Versus
Subash Chander Garg, Contractor, aged 48 years, R/o H. No. 5108, Ahata Balak
Ram P.O. Bazar, Bathinda.
...Respondent.
First Appeal against the order dated 5.7.2006 of
the District Consumer Disputes Redressal Forum,
Ferozepur.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Baldev Singh Sekhon, Member.
Present:-
For the appellants : Sh. Kasturi Lal, Advocate
For the respondent : Sh. S.C. Garg, in person.
INDERJIT KAUSHIK, PRESIDING MEMBER:
This order will dispose of two appeals i.e. First Appeal No. 1097 of 2006 (The Branch Manager, Oriental Bank of Commerce versus Subhash Chander Garg) and First Appeal No. 7 of 2007 (Subhash Chander Garg versus The Branch Manager, Oriental Bank of Commerce) as both the appeals are directed against the same impugned order dated 5.7.2006 passed by the District Consumer Disputes Redressal Forum, Ferozepur(hereinafter called the 'District Forum"). The facts are taken from First Appeal No. 1097 of 2006 and the parties would be referred by their status in this appeal.
2. Facts in brief are that the respondent/complainant Subash Chander Garg (hereinafter called 'the respondent') filed the complaint under Section 12 of the Consumer Protection Act (hereinafter called 'the First Appeal No. 1097 of 2006 2 Act') against the appellants pleading that the respondent got prepared a CDR No. 427217 dated 22.9.1994 for Rs. 2,40,000/- in the name of Executive Engineer, Provincial Division, PWD (B&R), Ferozepur on account of respondent for the appellant. Interest on the said amount to the tune of Rs. 38,326/- upto 22.3.1996 was also paid to the respondent vide DD No. 61901 dated 22.10.1997 but thereafter no interest was paid by the appellants.
3. The said CDR could not be further transferred/changed in the name of any other person without permission/express consent of the respondent in writing but it was renewed and endorsed to Executive Engineer, Construction Division No. 3, PWD (B&R), Ferozepur illegally with malafide intention and in connivance with the Bank officials. The respondent sent a letter dated 15.4.2004 to the appellants with a copy to XEN as well as Head Office Oriental Bank of Commerce, New Delhi and they were made aware that the contempt petition is already pending in the Hon'ble High Court but the bank officials released the security deposit lying in the form of the aforesaid CDR of Rs. 2,40,000/-. The department was only concerned with the amount of Rs. 2,40,000/- as security and the same was got released by the respondent by filing a writ petition before the Hon'ble Punjab and Haryana High Court and the interest was payable only to the respondent. A registered legal notice was also served and the appellants were asked to pay the interest on the said amount.
4. The appellant bank acting in gross violation of rules has wrongly and illegally transferred the amount of Rs. 38,326/- from the account of the respondent bearing No. OD-4518 vide entry dated 6.10.2004.
5. The respondent moved a complaint against the appellants before the Banking Ombudsman but the Banking Ombudsman vide his letter dated 15.12.2005 wrongly rejected the complaint of the respondent First Appeal No. 1097 of 2006 3 on false grounds. The appellants are deficient in service and also guilty of adopting unfair trade practice and the respondent suffered on account of mental pain, agony and tension and prayed that appellants may be directed to pay interest to the respondent w.e.f. 22.9.1994 till 30.4.2004 i.e. the date when the amount of the CDR to the tune of Rs. 2,40,000/- was transferred in favour of the Executive Engineer, P.W.D. (B&R) from the bank alongwith future interest @ 12% per annum till its realization and compensation to the tune of Rs. 50,000/- and Rs. 5500/- as litigation expenses.
6. In the written statement filed on behalf of appellant No. 1-bank (O.P. No. 1 before the District Forum), preliminary objections were taken that the complaint is not maintainable and the respondent has not come to the Court/Forum with clean hands, the complaint is bad for non-joinder of necessary party, respondent is not 'consumer' and the complaint is not maintainable. The transaction between the parties was of commercial nature as the CDR was got prepared by the respondent in the name of Executive Engineer, Provincial Division, P.W.D. (B&R), Ferozepur for applying tenders and the other works and the District Forum has no jurisdiction. The present case involves complicated question of facts and law and the Civil Court is competent. On merits, it was admitted that the respondent got issued CDR No. 427217 dated 22.9.1994 for Rs. 2,40,000/- in the name of Executive Engineer, Provincial Division, P.W.D. (B&R), Ferozepur from appellant No. 1. The said CDR was for commercial purpose for applying tenders. The interest for the period by 22.9.1994 to 23.3.1996 was wrongly paid to the respondent which was lateron recovered under the provisions of Section 72 of the Indian Contract Act. The interest for the period from 22.3.1996 till the date of encashment of the said CDR was paid to the beneficiary/payee on the due date and nothing is First Appeal No. 1097 of 2006 4 payable to the respondent. The respondent was not the beneficiary of the CDR in question and he is not entitled to any interest.
7. The work of Circuit House, Ferozepur was transferred to Executive Engineer, Construction Division No. 3, P.W.D. (B&R), Ferozepur vide order of Secretary to Government of Punjab's letter dated 20.10.2003 and all the record including the CDR was sent to the said Executive Engineer and the said CDR was accordingly got renewed and transferred by the beneficiary accordingly. The respondent has already received all his payments, security etc. regarding the said tender from the Executive Engineer, Construction Division-3, P.W.D. (B&R), Ferozepur in the month of February, 2004 and the present complaint is time barred, other allegations were denied and it was prayed that the complaint may be dismissed.
8. Learned District Forum after considering the evidence and material placed on file by the parties and after hearing the learned counsel for the parties, observed that the respondent has been paid the amount of CDR and there is no ground as to why he be not paid the interest from 22.9.1994 to 23.3.1996 which was first paid to him and then debited to his account and he is entitled to recover the same and accepted the complaint with Rs. 2,000/- as costs and directed the appellants to pay a sum of Rs. 38,326/- to the respondent with interest @ 9% p.a. from 6.10.2004 till realization.
9. Aggrieved by the impugned order dated 5.7.2006, the appellants have come up in appeal with the prayer that the appeal may kindly be accepted and the impugned order be set-aside as the respondent has already received all the payments.
10. Respondent has also filed First Appeal No. 7 of 2007 for modifying the impugned order passed by the District Forum seeking direction to the appellants to pay interest on the amount of Rs. 2,40,000/- First Appeal No. 1097 of 2006 5 of C.D.R. w.e.f. 22.9.1994 till the payment of the amount of CDR to the respondent i.e. 1.5.2004 and future interest alongwith costs.
11. In the written arguments filed on behalf of the appellants, it was submitted that as per instruction No. 3.6(b) relied upon by the respondent the interest has to be paid to the depositor only in case a authority letter is given by the pledgee but in the present case no authority was given to pay any interest to the respondent and the appellants are not liable to pay any interest and he can recover the interest, if any, from the Executive Engineer. The transaction between the parties was of commercial nature and the respondent is not covered under the definition of 'consumer' as the said amount was for seeking tender. The interest was wrongly paid and the same was recovered rightly. The respondent has already received the payments due to him and the District Forum has passed the incorrect order and the same may be set-aside.
12. In the written arguments filed on behalf of the respondent, it was submitted that the respondent filed CWP before the Hon'ble Punjab and Haryana High Court and also the contempt petition. The CDR was admittedly prepared by the respondent on 22.9.1994 and same was deposited with Executive Engineer as security and as per Punjab Government Instructions, the depositor of the security should receive interest on the security amount as per instruction 3.6 and the respondent is entitled to the interest. The respondent is doing his business for his self employment and is a 'consumer' and the appellants are deficient in service as they are bound to pay interest and the appeal being without any merit is liable to be dismissed and the respondent is further entitled to future interest.
13. We have considered the submissions made by the learned counsel for the parties.
First Appeal No. 1097 of 2006 6
14. Admittedly the CDR No. 427217 dated 22.9.1994 for Rs. 2,40,000/- was prepared in the name of Executive Engineer, Provincial Division, PWD (B&R) and it was a security and as per the instruction No. 3.6 (b) relied upon by both the parties, the interest was required to be paid to the depositor by the bank on a letter from the pledgee authorizing the bank to pay. The said instructions is reproduced as under:-
"3.6 (a) The security shall be taken either in cash or in one of the recognized forms of interest bearing securities mentioned in clause (b) below or infidelity policies, involving the payments of a small monthly premium, when the security is taken in cash the authorities mentioned in rule 3.5 above shall determined whether the amount shall be paid in a lump sum or in instalments or by deduction from pay.
(b) The recognized forms of interest bearing securities, and the rules to which they are subject, are given below:-
(i) to (iv) xxxx xxxx xxxx
(v) Deposit receipts of any If the deposit be for more than twelve Bank of repute months the receipts should be forwarded to the treasury of the District concerned for custody otherwise they should be retained by the head of the Office. The depositor should receive interest, when due, direct from the Bank on a letter from the pledge authorizing the Bank to pay it.
(vi) to (viii) xxxx xxxx xxxx"
15. The respondent Subhash Chander Garg, Contractor although deposited the amount vide the above CDR as security but the pledge i.e. the Executive Engineer, P.W.D. (B&R), Ferozepur or the Executive Engineer, Construction Division No. 3, PWD (B&R), Ferozepur never authorized the respondent to receive the interest on the said CDR and no such letter is on record to prove that the pledge of the said CDR wrote any First Appeal No. 1097 of 2006 7 letter authorizing the bank to pay interest to the respondent. The interest was wrongly paid for some period by the Bank to the respondent but lateron on coming to know the mistake committed, the same was recovered from the respondent.
16. As per the letter of the Executive Engineer, Provincial Division, P.W.D. (B&R), Ferozepur dated 20.4.2004 the final payments and security amounting to Rs. 3,95,177/- was paid to the respondent on 23.2.2004 and 26.2.2004 . As per Annexure R-1/A the gross earnest money was adjusted towards security which comes to Rs. 2,44,935/- w.e.f. 17.7.1995 to 13.5.2004 and total interest paid was Rs. 1,71,058/-.
17. As discussed above, the respondent has been paid even the interest by the Executive Engineer, Provincial Division, P.W.D. (B&R) Branch, Ferozepur. No authorization letter was sent to the bank by the said Engineers for making payment of interest to the appellants and as such, the bank is not liable to pay any interest and the above departments have already paid interest to the respondent. The order of the District Forum is against the facts and the rules and is not sustainable in the eyes of law and is liable to be set-aside. Accordingly, the appeal filed by the appellant is accepted and the impugned order dated 5.7.2008 passed by the District Forum is set-aside and the complaint filed by the respondent is dismissed. Consequently, the First Appeal No. 07 of 2007 filed by the respondent Subhash Chander Garg being without merit is also dismissed with special costs of Rs. 10,000/-.
18. The arguments in this appeal were heard on 23.2.2011 and the orders were reserved. Now the order be communicated to the parties.
19. The appellants had deposited an amount of Rs. 24,000/- in First Appeal No. 1097 of 2006 with this Commission at the time of filing of the appeal. This amount of Rs. 24,000/- with interest accrued thereon, if any, be remitted by the registry to the appellants of abovementioned First Appeal No. 1097 of 2006 8 appeal by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the respondent- Subhash Chander Garg.
20. The appeal could not be decided within the statutory period due to heavy pendency of Court cases.
21. Copy of this order be placed in First Appeal No. 07 of 2007 (Subhash Chander Garg versus The Branch Manager, Oriental Bank of Commerce).
(Inderjit Kaushik)
Presiding Member
February 28, 2011. (B.S. Sekhon)
as Member