State Consumer Disputes Redressal Commission
K.C.Aggarwal vs Icici Bank Ltd. on 16 November, 2017
Daily Order IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI (Constituted under Section 9 of the Consumer Protection Act, 1986) Date of Arguments : 16.11.17 Date of Decision : 04.12.17 Complaint No.156/2010 IN THE MATTER OF: Shri K.C.Agarwal S/o Late Sh. L.N.Agarwal R/o C-118, East of Kailash New Delhi-110065. .....Complainant Versus ICICI Bank Ltd. (through its Branch Manager) G.K. -1 Branch, W-Block, Greater Kailash Part-1 New Delhi-110048. .....Respondent CORAM HON'BLE SH. O.P.GUPTA, MEMBER(JUDICIAL) HON'BLE SH. ANIL SRIVASTAVA, MEMBER
1. Whether reporters of local newspaper be allowed to see the judgement? Yes
2. To be referred to the reporter or not? Yes SHRI O.P.GUPTA, MEMBER (JUDICIAL) JUDGEMENT The complaint has been filed on the allegations that complainant is an account holder of A/c No. 002901001508 with OP. The account has facility of autosweep in which excess of minimum deposit of couple of thousand of rupees get automatically transferred to fixed deposit earning interest at prevailing rates of FD. On 31.03.05 complainant purchased two demand drafts No.264612 and 264613 for Rs. 25,00,000/- each which were payable at Gurgaon in favour of Mr. Mahesh Sharda and Sanju Bansal. The drafts were purchased in connection with property deal of mother of the complainant for purchase of property at Civil Lines, Gurgaon. The demand drafts were handed over to representative of payee for onward transmission to the payee. Dispute developed with regard to said land deal in which DDs were utilized and the payee denied receipt of DD.
2. Complainant requested OP Bank on 25.04.05 to cancel the DDS and credit the amount in his aforesaid account. OP got necessary formalities completed, obtained indemnity bond etc. and assured that the credit shall be made in due course after necessary approval within a couple of days. Keeping trust in the bank no formal acknowledgement was taken. The complainant asked the OP bank to keep the cancellation proceeds in the FD for three years, if the OP so wanted. He was interested to invest the amount of cancellation proceeds in ICICI mutual fund of FD. Complainant agreed to the proposal on the promise that he would soon receive necessary unit certificate of mutual fund by post. Complainant never received the credit of cancellation proceed to his account or receipt of the mutual fund units.
3. On 30.06.05 CBI conducted searches at the residence of the complainant and sealed documents pertaining to civil suit relating to aforesaid land deal in case of alleged disproportionate assets. On 01.07.05 complainant visited OP bank and requested for receipt of investment from cancellation proceeds of DD but he was told that DDs were not yet processed to be cancelled. He was assured that he would get credit from the back date and the value date of investment would be given accordingly from April, 2005 so as to ensure no loss to the complainant. On 29.07.05 he insisted on written communication of the assurance. OP conveyed orally to him that account has been freezed by CBI and hence the said account could not be credited with cancellation proceeds.
4. Section 18 of Prevention of Corruption Act gives power to investigating agency to inspect accounts but no power has been given to freeze the accounts. Investigation as well bank is duty bound to intimate the account holder about any order passed with regard to the account. No intimation was ever given to him by the OP. To best of knowledge of complainant OP never insisted on service by investigating agency. The complainant requested bank to credit cancellation proceeds to another account No. 290500172 which was not freezed or alternatively to use account No. 2905001942 which is joint account of complainant and his mother. Said amount was also not freezed. He requested for giving him formal intimation of freezing of account alongwith copy of CBI order of freezing. OP did not take any action on any of the request. Complainant moved an application for defreezing account on the basis of oral communication.
5. On 02.11.05 complainant gave formal letter for crediting the proceeds of cancellation to account No. 002905001572 . On 31.8.06 court of learned Spl. Judge, Patiala House, New Delhi ordered the account to be defreezed with balance proceeds to be transferred to fixed deposit and allow operation of account. On submitting copy of the said order, bank authority refused to obey the order on the pretext of non-receiving any communication from CBI. The complainant filed application for contempt and only then OP defreezed his account. On 30.12.06 complainant was asked for formal request for cancellation of DD. Complainant again gave the same. On 30.03.07 bank requested the complainant to write a comprehensive letter alongwith copy of the pleadings in court at Gurgaon in case wherein payee denied having received the DDs. Complainant did the needful.
6. Sellers manipulated entire matter and sent original DD back to the complainant. Complainant gave the same to OP vide letter 29.12.08. OP continued to promise return of the amount with FDR interest in the first instance and then process the case for obtaining approval of higher authorities of the bank for payment of damages/compensation. Op asked for indemnity for issuing duplicate draft. Complainant submitted the document on 19.03.08. On 20.03.08 OP credited the account No. 002901001508 with principal amount of DD.
7. The complainant suffered loss of 156.2% return upto 28.03.08 calculated as per return shown on internet of ICICI Infrastructure Mutual Fund amounting to Rs.78,10,000/-, loss of further return of interest @ 10% per annum on the above amount from 20.03.08 to 05.05.10 with quarterly rests amounting to Rs. 18,24,673.21 was suffered. Complainant has also claimed interest pendente lite, exemplary damage and cost of proceedings.
8. OP filed WS raising preliminary objection that the case of the complainant is not a consumer dispute as it has only performed its duty as per directions of the court. The dispute is exclusively triable by civil court as it required complete trial including cross examination of witnesses. The complaint is barred by limitation and ought to be dismissed summarily. Cause of action, if any, arose on 20.03.08 when OP credited the amount of DD in the account of the complainant but complaint has been filed in May, 2010 i.e. after expiry of two years prescribed u/s 24 (A) Consumer Protection Act. On merits it denied that complainant handed over DD to the OP on 25.04.05 for cancellation or that complainant instructed the bank to keep the cancellation proceeds in FD. It denied that complainant was assured by the bank that he would get credit from April,05. Letter dated 12.07.10 written by CBI Inspector sought information about complainant and other family members of the complainant. OP bank could not proceed request of the complainant because his account was freezed by order of Investigating Agency. OP bank defreezed the account of the complainant immediately after receiving the order of the court. It denied that there was any delay on its part to credit the draft amount in the account of the complainant. It denied that it promised to return the amount of FDR in the first instance and then process the case for obtaining approval of higher authority of the bank for payment of damages/compensation. It prayed for dismissal of the complaint.
9. Complainant filed rejoinder. According to him OP bank inspite of following blindly an illegal order ought to have examined and challenged the legality of direction of CBI to freeze the account. According to him bank has tried to mislead this Commission on the point of limitation by referring to date when cancellation proceeds were credited instead of bank's own letter dated 27.10.08 and reply of complainant dated 20.11.08. He prayed for condonation of delay, if any, assuming without admitting that there was any delay. On merits the complainant reiterated his own case and disputed defence raised by the OP. He denied that copy of letter dated 02.07.10 was supplied to him. In para 13 he mentioned that OP has deliberately given wrong date of letter dated 27.10.08 as letter dated 27.10.10.
10. In his evidence the complainant filed his own evidence which is reproduction of the averments made in the complaint.
11. As compared to it OP filed affidavit of Shri Naveen Trivedi, AR of the Bank. The same proceeds on the line of defence taken in written statement.
12. Both parties have filed written arguments. We have gone through the material on record and heard arguments.
13. The first question to be decided is regarding limitation. Complainant purchased DD on 31.03.05, allegedly requested OP bank on 25.04.05 to cancel the said DD and credit his account with cancellation proceeds. Non-acceeding of the said request of complainant gave rise to cause of action to file the complaint under Consumer Protection Act. Any how OP is trying to plead still later date of 20.03.08 as the date of cause of action. The plea of the OP is that cause of action, if any, to file present complaint arose on the said date. The plea of the OP appears to be justified. Reason being that at the most/at the latest complainant came to know of the short fall in crediting his account on 20.03.08. It is not clear as to what prevented him from filing the complaint on the said date. By that time freezing of the account, de-freezing of the account all has finished. Mere exchange of correspondence does not extend limitation. In this regard reference can be made to the decision of National Commission in RP No. 26/12 titled as Sabastian M D vs. M J Devadas decided on 13.07.12. Decision of Hon'ble Supreme Court in Kandimala vs. National Insurance Company(2009) 7 SCC 768 also lays down similar law. In Jansatta Sehkari Awas Samiti I (2016) CPJ 190 National Commission held that service of notice does not give rise to cause of action and does not extend limitation. From 20.03.08, complaint filed on 17.05.10 barred by limitation.
14. In HUDA vs. B.K.Sood I (2006) SCC 164 Hon'ble SC ruled that when there is no prayer for condonation u/s 24 (A) complaint should be dismissed as being barred by limitation.
Condonation of delay in filing complaint stands on different footing than condonation of delay in filing appeal/revision. It is so because complaint is like a suit and there is no provision for condonation of delay in filing suit. It was so noticed by National Commission in RP No. 2618/02 titled as C.H.Vithal Reddy vs. Manager District Cooperative Central Bank decided on 14.12.02.
15. The conduct of the complainant in requesting for condonation of delay , in para 5 of rejoinder shows half hearted admission and realization that complaint is barred by limitation. Seeking condonation in rejoinder is not enough. The reason being that rejoinder is not a part of pleading. Pleading means plaint and written statement. That is all. Use of words 'means' in order 6 Rule 2 CPC shows that it is exclusive definition and not inclusive definition. Infact filing of rejoinder is not permissible in view of decision of Hon'ble High Court of Delhi in Anant Construction (P) Ltd. vs. Ram Niwas 1994 (4) Delhi Lawyers 71 and Bir Singh vs. Kishan Chand AIR 2007 H.P.27.
16. Condonation, if any, must be sought at the time of filing the complaint and not subsequently.
17. Now coming to the merits of the case, it may be observed that complainant has tried to challenge the order of CBI vide which his account was freezed. First of all bank had no locus to challenge the said order. It was bound to comply with the order. Secondly we are not impressed by the plea of the complainant that CBI had no power to freeze the account. This controversy had already been set at rest by decision of Hon'ble High Court of Delhi in P.K.Parmar vs. Union of India 1992 Rajdhani Law Reporter 179 and by Hon'ble Supreme Court in State of Maharashtra vs. Tapas D.Neogy (1999) 7 Judgement Today 92.
18. If a person facing or likely to face criminal prosecution due to corruption or misappropriation of amount is allowed to operate his account, he may withdraw the amount and thereby defeat the purpose of investigation and trial.
19. The question whether Investigating Agency is required to serve prior notice before freezing the account or to communicate at his own obligation to individual account holder about freezing of the account reached full bench of High Court of Bombay in Vinos Kumar Ramachandran Valluar vs. State of Maharashtra (2011) 2 Maharashtra Law Journal 908. It was held that bank account is property within meaning of section 102 Cr.PC and can be sealed by Investigating Agency. It was observed in para 18 & 19 of the Judgement that property requires to be protected from dissemination, depletion or destruction by any mode.
20. Attempt by the complainant to get the proceeds of DD transferred in another account No. 002905001572 or 002905001942 instead of freezed account No. 002901001508 was an attempt to scuttle the purpose of freezing a particular account. A person cannot get things indirectly which he cannot get directly. Proceeds must have been credited to the account from which the DDs were got prepared or to the account in which complainant made initial request as mentioned in para 5 of the complaint. After coming to know about freezing of the account, complainant cannot be allowed to change his initial request and substitute said account new account number.
21. The OP bank had no enmity with the complainant. It was duly bound to abide by order of investigating agency. It could not take risk of being blamed that it acted in connivance with the complainant by transferring the amount in the account of the complainant and allow him to withdraw the amount. It credited the amount to the account of the complainant after it received orders from court of Ld. Special Judge CBI, New Delhi. The same shows bonafide on the part of the OP bank.
22. Complainant tried to make much out of the date of 12.07.10 mentioned by OP in paras 14 and 15 of the WS. He submitted that OP had not placed on record copy of letter dated 12.07.10. The complainant himself mentioned in para 13 of the rejoinder that OP has deliberately mentioned the wrong date of letter dated 27.10.08 as 27.10.10. Copy of letter dated 27.10.08 is very much available on the record. To err is human and complainant cannot be allowed to kick dust in the air by taking advantage of such of typographical mistake.
23. Now the only question which remains is as to whether complainant is entitled to interest @ FDR or the returns calculated at the rate shown on internet of OP pertaining to ICICI Infrastructure Mutual Fund. Our obvious answer is in the negative. Account holder can get the interest of the FD or return of mutual fund only when he makes a written request for that purpose. Bank cannot keep the amount in any FD or mutual fund of its own. We are stressing on request being in writing because oral request is no request particularly when the same is not in personal relationship or friendly relationship. Official dealings are always based on written request. To hold otherwise would amount to giving dangerous weapon in the hands of unscrupulous litigant who can always say that he made a particular request orally and thereby trap OP.
24. In the instant case the complainant has not produced on record any written request for getting amount converted in FD or invest the same in mutual fund. The entire case is based upon oral request by him and oral assurance allegedly made by the OP.
25. It is note worthy that complainant has got his principal amount. Now seeking interest amounting to more than principal amount is barred by Doctrine of Damduput which means that interest cannot be more than the principal. The complainant has sought 156.2% return amounting to Rs.78,10,000/- on principal of Rs.50,00,000/- . Not only this he has also claimed interest on interest with quarterly rests amounting to Rs.18,24,673.21 for the period from the date of credit of amount in his account till the date of filing of complaint. In all he has claimed Rs.96,34,673.21 for principal amount which was Rs. 50,00,000/-.
26. As upshot of the above discussion, it is manifest that complaint is false, frivolous and vexatious. The same merits dismissal and is dismissed.
Copy of the order be sent to both the parties free of cost.
(ANIL SRIVASTAVA) (O.P.GUPTA) MEMBER MEMBER(JUDICIAL)