State Consumer Disputes Redressal Commission
Shingara Singh vs Mansa Central Co-Op. Bank Ltd. on 12 February, 2018
2nd Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
CHANDIGARH.
First Appeal No.499 of 2017
Date of institution: 29.06.2017
Date of Reserve : 29.01.2018
Date of Decision : 12.02.2018
Shingara Singh son of Shri Megh Singh, resident of Village Ahmedpur,
Tehsil Budhlada, District Mansal.
.....Appellant/Complainant
Versus
1. The Mansa Central Cooperative Bank Limited, H.O., Mansa its
Managing Director.
2. The Mansa Central Cooperative Bank Limited, H.O., Mansa its
Senior Manager (Deposits)
3. The Mansa Central Cooperative Bank Limited, Bareh Branch,
District Mansa, through its Branch Manager.
4. District Registrar of Societies, Mansa.
.......Respondents/opposite parties
First Appeal against order dated
19.05.2017 of District Consumer
Disputes Redressal Forum, Mansa.
Quorum:
Mr. Gurcharan Singh Saran, Presiding Judicial Member
Mr. Rajinder Kumar Goyal, Member
Present:-
For the appellant : Sh.Mukand Gupta, Advocate
For respondents No.1to3 : Sh.S.C.Jindal, Advocate
For respondent No.4 : Service dispensed with vide order
dated 30.11.2017.
Gurcharan Singh Saran, Presiding Judicial Member
ORDER
The appellant/complainant (hereinafter referred to as 'complainant') has filed the present appeal against the order dated 19.05.2017 passed by the District Consumer Disputes Redressal Forum, Mansa (hereinafter referred to as 'District Forum') in Consumer F.A. No. 499 of 2017 2 Complaint No. 116, dated 29.04.2016, vide which the complaint filed by the complainant was dismissed with the observation that matter pertains to adjudication of issue qua cheating and embezzlement, which is not possible in the summary proceedings before the Consumer Fora and accordingly the complaint was dismissed with liberty to the complainant to approach the Civil Court as per law.
2. Complaint was filed by the complainant under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as 'the Act') that the father of the complainant entered into an agreement dated 01.03.2008 to sell his land and thereafter he received the sale consideration amount and handed it over to the complainant. The complainant deposited the amount of Rs.13,00,000/- with opposite party No.3 after opening account No.2754/6 in the shape of FDR bearing No.28694 dated 06.06.2009 for a sum of Rs.9,00,000/- and another FDR amounting to Rs.4,00,000/- with FDR No.028694. Thereafter a case of embezzlement of Rs.5.88 crores came up in branch of opposite party No.3 at that time when Darshan Singh was Manager. An FIR No.67 dated 17.08.2009 under Section 420, 409, 467, 468, 120-B of IPC was registered at P.S. Boha. The complainant did not figure in the said FIR. When he got knowledge of such embezzlement then he approached opposite party No.3 with the request to pre-mature withdrawal of the FDR's. The opposite parties had made payment of FDR amounting to Rs.4,00,000/- and for the second FDR of Rs.9,00,000/-, they stated that the money of the complainant is in safe hands and he had nothing to worry. After withdrawal the sum of Rs.4,00,000/- from the opposite parties, he F.A. No. 499 of 2017 3 deposited the said amount with the HDFC Bank. The complainant visited several times to the opposite parties for withdrawal of his FDR amounting to Rs.9,00,000/- even after the date of maturity the opposite parties denied to make the payment despite filing the applications to higher authorities and a Civil Writ Petition No.4371 of 2011 was filed before the Hon'ble Punjab & Haryana High Court, which was disposed of by Hon'ble Mr. Justice Surya Kant vide order dated 10.03.2011 with a direction to opposite parties to release the FDR within one month from the date of receiving the copy of the order. However, the opposite party-Bank vide Letter No.37 dated 25.05.2017 had wrongly declined to release the FDR. The complainant then filed COCP No.1771 of 2011, which was disposed of by Hon'ble Mr. Justice Surya Kant vide order dated 27.02.2012 with a direction to the complainant to approach the Hon'ble Forum. Alleging deficiency in service on the part of the opposite parties, this complaint has been filed by the complainant against the opposite parties seeking directions for the release of FDR amount alongwith interest upto date and compensation of Rs.2,00,000/- for physical and mental harassment and adequate litigation expenses.
3. Upon notice, opposite parties appeared and filed their written reply taking legal objections that complainant does not fall within the definition of the consumer; in CWP No.4371 of 2011 vide order dated 10.03.2011, Hon'ble High Court has given a direction to opposite party No.2, Managing Director to consider that the claim mentioned in CWP of the petitioner and in case there is no legal impediment to release the FDR alongwith interest in favour of the F.A. No. 499 of 2017 4 petitioner within a period of one month from the date of receiving the certified copy of the order. In compliance of the order dated 10.03.2011 received by opposite parties on 09.05.2011and matter was thoroughly inquired by AR Cooperative Societies and the claim of the complainant was dismissed. Then the complainant filed COCP No.1771 of 2011 which was disposed of by Hon'ble Mr.Justice Surya Kant and vide order dated 25.05.2011, the claim of the petitioner was rejected with liberty to the petitioner to raise the issue before the appropriate Forum; the complainant challenged the impugned order before the Forum which does not have the jurisdiction; complainant has concealed the material facts from the Hon'ble Forum, therefore, the complaint is not maintainable and that the complainant should have filed the civil suit before the appropriate Court. On merits, depositing the amount of Rs.9,00,000/- in the form of FDR is admitted. It was further stated that the complainant embezzled the funds of the Bank and out of those funds deposited a sum of Rs.13,00,000/- with opposite party No.3. It is a matter of record that FIR No.67 dated 17.08.2009 was registered at Police Station Boha against the then Branch Manager, Darshan Singh and the application has already been moved with the SSP Mansa regarding the registration of the case against complainant on 24.05.2012. The complainant wants to withdraw the amount of the FDR of Rs.9,00,000/- from the opposite party-Bank with malafide intention. Therefore, there is no deficiency in service on the part of the opposite parties. Complaint is without merit, it be dismissed.
F.A. No. 499 of 2017 5
4. The parties tendered their evidences before the District Forum.
5. In support of his allegations, the complainant had tendered into evidence his affidavit documents as Ex.C-1 to Ex.C-15, whereas opposite parties has tendered in evidence the affidavit and documents as Ex.OP-1 to 4/1 to Ex.OP1to4/15.
6. After going through the allegations as alleged in the complaint, written reply and evidences by the parties, the complaint filed by the complainant was dismissed as referred above.
7. Aggrieved with the order passed by the learned District Forum, the appellant/complainant has filed the present appeal.
8. We have heard the arguments of the learned counsel for the parties and perused the record carefully.
9. It has been argued by the counsel for the appellant/ complainant that findings recorded by the District Forum that the matter pertains to adjudication of issue qua cheating and embezzlement that cannot be adjudicated in the summary procedure of Consumer Fora, therefore, the complainant was directed to approach the Civil Court is incorrect order because no such issue pertaining to the complainant is involved. It is a matter of record that the complainant on 06.06.2009 had deposited Rs.9,00,0000/- in the form of FDR bearing Receipt No.028694 and on 17.08.2009 FIR No.67, under Section 420, 409, 467, 468, 120-B IPC was registered in P.S. Boha against the then Manager, Darshan Singh, in which complainant does not figure anywhere.
F.A. No. 499 of 2017 6
10. We have gone through the said FIR Ex.C-6 and there is no reference of the complainant in the said FIR, then Challan Form under Section 173 of Cr.P.C. (Ex.C-7) was submitted before the Court, in which the list of names of the accused has been given but it does not refer the name of the complainant and the listed names of accused who have been shown as innocent in the case has also been given but there also name of the complainant does not figure anywhere. On the basis of application moved by the Bank and its investigation was conducted by DSP, Budlada, in which it was alleged that the complainant was employed by Darshan Singh on a monthly sum of Rs.2,000/- per month, therefore, he was dealing with the Bank and during that process he might have embezzled the amount of the Bank but as per the findings recorded by the DSP that the Bank could not produce any document that he was working in the Bank and even it is not proved that he was employed by Darshan Singh, Manager on its own expenses. Therefore, the application moved by the opposite parties stand already disposed of in view of the inquiry conducted by the DSP-Budlada. Counsel for the opposite parties has referred to another application dated 19.03.2016 addressed to SSP Mansa. However, with regard to that counsel for the complainant had received the information under RTI and Information Officer of SSP Mansa vide letter No. 424 dated 13.06.2017 stated that the application dated 19.03.2016 has not been received from the Bank against Shingara Singh. During the proceedings before the District Forum no officer of the S.S.P., Mansa was examined by the opposite parties that investigation with regard to the said application is still pending. The F.A. No. 499 of 2017 7 core question as alleged by the opposite parties is whether Shingara Singh was working with Darshan Singh, the then Manager against whom the FIR was registered for embezzlement of funds of the Bank and that complainant was also involved in it. The opposite parties have not placed on record any document showing participation of the complainant in the working of the Bank. In the FIR the name of the complainant is not there. On the basis of application the enquiry was conducted in which it does not refer anything regarding the participation of the complainant in the embezzlement of funds of opposite parties - Bank and even before the District Forum the opposite parties has not brought any evidence on the record that the complainant was working in the Bank. Therefore, mere plea is not sufficient to prove that after embezzlement the amount was deposited by the complainant in the form of FDR with the Bank. In case, the dispute is between the official of the Bank who have misappropriated the funds of the Bank then the customer should not be deprived of his rights. In the written arguments submitted by the counsel for the opposite parties it has also been stated that the complainant does not have the sources to raise the funds of Rs.13,00,000/-. In the complainant, the specific plea has been taken by the complainant that his father has entered into an agreement to sell the land of Rs.20,00,000/- (Ex.C-1) and that the money was handed over to him by his father to deposit the same in the Bank. Therefore, even the sources has been proved on the record by the complainant although it is not required by the complainant to prove the sources. In these circumstances, it was not good on the part of the District Forum just to F.A. No. 499 of 2017 8 dismiss the complaint of the complainant and referring to the Civil Court when consumer complaint is maintainable before it and it stand proved on the basis of discussion above that the name of the complainant does not figure anywhere with regard to the embezzlement of the funds of the Bank and in those circumstances it was the duty of the District Forum to decide the claim of the complainant but it side tracked the matter with easy observation to refer the matter to the Civil Court. In the written reply an objection has also been taken by the counsel for the opposite parties that the complainant is not a consumer as defined under Section 2(1)(d) of the Act. It is a matter of record that the complainant had deposited Rs.9,00,000/- as an FDR on the same day and another FDR of Rs.4,00,000/- was also issued in his favour that amount has been cleared by the opposite parties and in case that amount has been cleared when there is no sufficient reason with the opposite parties not to clear the second FDR even after the date of maturity amounts to deficiency in service. Under Section 2(1)(o), services has been defined which means service of any description and includes Banking services. In case, the money deposited by the complainant is not being refunded to him even after the date of maturity it amounts to deficiency on the part of OPs services and in the written arguments, counsel for opposite parties No.1 to 3, this issue was not raised how the complainant is not a consumer. Counsel for opposite parties No.1 to 3 in the written arguments have referred certain judgments i.e. Synco Industries Vs. State Bank of Bikaner & Jaipur & Ors. reported in 2002 (2) SCC 1, wherein it has been referred that where intricate F.A. No. 499 of 2017 9 questions are involved then Consumer Fora lacks jurisdiction. However, there is no intricate questions are involved in the present case because on the basis of discussions as referred above, the complainant does not figure as an accused with regard to misappropriation of funds of any amount by the Bank officials then adjudication of misappropriation of the Bank does not pertain to the complainant. The case of the complainant is simple that he deposited the amount in the form of FDR with the opposite parties and the same is not being paid even after the maturity date. We do not see any intricate questions of law and facts involved in the dispute. It is a clear cut case of deficiency in Banking services, therefore, the judgment so referred by the counsel for opposite parties No.1 to 3 is not applicable to the facts and circumstances of the case.
11. No other point was argued by counsel for the parties.
12. Sequel to above, we accept the appeal and impugned order is set aside. The complaint filed by the complainant is accepted and opposite parties No.1 to 3 are directed as under:-
i) to release the amount of FDR of Rs.9,00,000/-
issued vide receipt No.028694 dated 06.06.2009 alongwith agreed rate of interest at the rate of 12% p.a. as incorporated in the FDR receipt (Ex.C-2) from the date of deposit till the date of payment;
ii) to pay Rs.50,000/- as compensation to the complainant because the complainant is approaching the opposite parties since 2009 to get his money back and even it was not paid after the date of F.A. No. 499 of 2017 10 maturity. He even also approached the Hon'ble High Court also; and
iii) to pay Rs.11,000/- as litigation expenses
13. The compliance of this order shall be made by the opposite parties No.1 to 3 within a period of 45 days from the date of receipt of the certified copy of this order.
14. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(GURCHARAN SINGH SARAN) Presiding Judicial Member (RAJINDER KUMAR GOYAL) Member February 12,2018 parmod