State Consumer Disputes Redressal Commission
Naresh Kumari vs The Bathinda Central Cooperative Bank ... on 17 September, 2012
2nd Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No.372 of 2010.
Date of Institution: 10.03.2010.
Date of Decision: 17.09.2012.
Naresh Kumari, aged about 42 years, w/o Sh. Vijay Kumar S/o Sh. Hans Raj,
Resident of Street No.9, Guru Gobind Singh Nagar, Bathinda.
.....Appellant.
Versus
1. The Bathinda Central Cooperative Bank Limited, Head Office, Civil
Station, Bathinda, through its District Manager.
2. The Bathinda Central Cooperative Bank Limited, Evening Branch,
Bathinda through its Branch Manager.
...Respondents.
First Appeal against the order dated
22.01.2010 of the District Consumer
Disputes Redressal Forum, Bathinda.
Before:-
Shri Inderjit Kaushik, Presiding Member.
Shri Piare Lal Garg, Member.
...................................
Present:- Sh. Rajan Bansal, Advocate, counsel for the appellant.
Sh. R.K.S. Brar, Advocate, counsel for the respondents.
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INDERJIT KAUSHIK, PRESIDING MEMBER:-
This order shall dispose of the following three (3) appeals, as the question of facts and law involved in all the appeals are the same and the same are directed against the same impugned order dated 22.01.2010 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short "the District Forum"):-
Sr. No. Appeal Number Name of Parties
1. F.A. No.372 of 2010 Naresh Kumari Vs Bathinda Central
Cooperative Bank Ltd. & Anr.
2. F.A. No.373 of 2010 Meenu Gupta Vs Bathinda Central
Cooperative Bank Ltd. & Anr.
First Appeal No.372 of 2010 2
3. F.A. No.374 of 2010 Jimmy Gupta Vs Bathinda Central
Cooperative Bank Ltd. & Anr.
Facts are taken from F.A. No.372 of 2010 and the parties would be referred by their status in this appeal.
2. Facts in brief are that Smt. Naresh Kumari, appellant/ complainant filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the respondents, asserting that the appellant is having Long Term Deposit Receipt (LTDR) Account No.3703-LF 29 LTDR No.028230 dated 11.10.2008 for an amount of Rs.21,000/- as term deposit for 12 months on interest @ 9.5% p.a. on compounding basis with maturity value as Rs.23,067/- and the due date was 11.10.2009 with respondent no.2.
3. In the month of April, 2009, the appellant was in urgent need of money to meet the routine household and maintenance expenses and applied to the respondent bank for pre-mature encashment of the said LTDR along with interest, but the request was ignored by the bank without any reasons. The act and conduct of the respondent bank in refusing to pay her the due amount under the above LTDR amounts to grave deficiency in service and adoption of unfair trade practice. A registered legal notice dated 04.05.2009 was served, but despite service of notice, no relief was granted and ultimately, the request was refused.
4. It was prayed that the respondents be directed to premature encash the said Long Term Deposit Receipt for an amount of Rs.21,000/- along with interest upto date and to pay Rs.20,000/- as compensation.
5. In the reply filed on behalf of the respondent, preliminary objections were raised that the complaint is not maintainable in the present form. The appellant has failed to serve notice u/s 79 of the Punjab Cooperative Societies Act, 1961 which is mandatory. The appellant is estopped by her own act, conduct and acquiescence to file the present complaint. Sh. Vijay Kumar son of Sh. Hans Raj, husband of the appellant First Appeal No.372 of 2010 3 committed fraud worth Rs.99.92 lacs with the respondent bank and FIR no.236 dated 12.11.2008 U/s 420/465/467/468/471/201/120B was registered at P.S. Kotwali, Bathinda and a challan was put up in the court. Arbitration case has been filed against Vijay Kumar in the court of Assistant Registrar, Cooperative Societies, Bathinda. These deposits are out of the said amount of embezzlement/fraud and to delay the decreetal award U/s 55 of the Act, the appellant and her family is out to withdraw the amount to cause loss to the bank. The said amount has been attached by the Assistant Registrar, Cooperative Societies, Bathinda U/s 65 of the Cooperative Societies Act and Rule 72 of Rules 1963, vide order dated 15.05.2009. The jurisdiction of the Forum is barred. The complaint is false and frivolous and deserves dismissal with special costs of Rs.10,000/-.
6. On merits, similar pleas were repeated. Serving of notice was admitted. Denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that the perusal of the order Ex.R-4 dated 07.11.2009 passed by the Judicial Magistrate Ist Class, Bathinda shows that the amounts sought to be released are with the police and declined the application to release a sum of Rs.8.00 lacs out of the embezzled amount. The matter is before a criminal court and before the court of Registrar, Cooperative Societies and the appellant has suppressed the material facts and the complaints are vexatious, and dismissed the same with costs of Rs.5,000/-.
9. Aggrieved by the impugned order dated 22.01.2010, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties and perused the record of the learned District Forum. We have also heard the arguments First Appeal No.372 of 2010 4 advanced by the learned counsel for the appellant and have perused the written arguments filed on behalf of the respondents.
11. It was contended on behalf of the appellant that the appellant is not the member of the Society and the provisions of the Societies Act are not applicable. The appellant has deposited the amount in Fixed Deposit and she being in need of money, applied for premature encashment along with accrued interest, but the amount was not released. The appellant has nothing to do with the alleged offence committed by her husband, as the money deposited by the appellant belongs to her and for any offence committed by the husband of the appellant, he is liable and not the appellant. Counsel for the appellant has also placed on record a copy of report u/s 173 Cr.P.C. to bring home the point that Vijay Kumar and others have been challaned for cheating and forgery and the amount was deposited prior to the alleged embezzlement and the impugned order is against the facts and law and is liable to be set aside.
12. In the written arguments filed on behalf of the respondents, it was submitted that the husband of appellant Vijay Kumar and father of Meenu Gupta and Jimmy Gupta (appellants in other appeals) was working as peon with the respondents and he embezzled a sum of Rs.99.92 lacs and an FIR No.236 dated 12.11.2008 U/s 420/465/467/471/201/120-B IPC was registered against him and others. A part of embezzled amount was deposited by the appellant and the respondents moved an application U/s 55 of the Punjab Cooperative Societies Act, 1962 against the husband of the appellant and the Assistant Registrar, Cooperative Societies, Bathinda attached the FDRs U/s 65 of the said Act and Rule-72. The jurisdiction of the Forum is barred. The appellant has remedy under the Punjab Cooperative Societies Act to challenge the order of the Assistant Registrar, before the Registrar, but that has not been done. A criminal matter regarding the embezzlement of the amount is also pending and the order passed by the District Forum is well reasoned and speaking order and the appeal deserves dismissal. First Appeal No.372 of 2010 5
13. We have considered the oral submissions made by the learned counsel for the appellant as well as written submissions filed on behalf of the respondents and have thoroughly examined the entire facts and documents placed on the file.
14. The appellant deposited Rs.21,000/- in the Long Term Deposit Receipt on 11.10.2008 and in the month of April, 2009, wanted to encash the same, but the appellant was not allowed to do so, on the grounds that the said amount has been attached by the Assistant Registrar, Cooperative Societies, Bathinda. As per the respondent bank, the husband of the appellant, namely Vijay Kumar committed fraud of Rs.99.92 lacs and an FIR No.886 dated 12.11.2008 U/s 420/465/467/468/471/201/120B was registered against said Vijay Kumar and others. Said Vijay Kumar was working as peon- cum-chowkidar. The mater was investigated and after investigation, report u/s 173 Cr. P.C. has been filed against the husband of the appellant, namely Vijay Kumar and others. As per the inquiries conducted by the committees/authorities of the respondent bank, said Vijay Kumar and others started committing fraud with the respondent bank from the year 2006 onwards and upto 31.10.2008, the fraud of above amount i.e. about Rupees One Crore was committed. Vijay Kumar deposited the amount in the name of the appellant and other family members and also purchased plots in the name of the appellant and in his name. The plot bearing no.44, measuring 250 sq.yds., situated in Vishal Nagar, Street No.2, Bathinda was purchased by Vijay Kumar in the name of the appellant through registered sale deed, for Rs.11.00 lacs.
15. From the above facts and discussion, it is clear that the money deposited by the appellant is the embezzled amount of the bank and the same has been attached by the Assistant Registrar. Even the Judicial Magistrate Ist Class has refused to release the amount of Rs.8.00 lacs to said Vijay Kumar. The appellant has failed to bring on record any evidence as to from where she received/earned Rs.21,000/- and deposited the same in the First Appeal No.372 of 2010 6 above fixed deposit. The appellant has failed to prove that Rs.21,000/- was her own income and she being wife of a peon-cum-chowkidar, could not deposit this amount. This amount is the part of the amount embezzled by her husband Vijay Kumar and it has been attached and the wrongdoing of a person and the consequent benefits obtained by his relations cannot be approved by this Commission. The District Forum has based its order on the reasoning of embezzlement committed and there is no ground to interfere with the same.
16. In view of above discussion, the appeal filed by the appellant being without any merit is dismissed and the impugned order under appeal dated 22.01.2010 passed by the District Forum is affirmed and upheld, with the modification that the cost imposed by the District Forum of Rs.5,000/- shall be construed as Rs.5,000/- in each complaint . No order as to costs.
17. The appellant had deposited an amount of Rs.835/- vide receipt dated 18.03.2010 and another sum of Rs.1665/- vide receipt dated 19.04.2010 with this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondents in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
18. Remaining amount of costs imposed as per order of the District Forum shall be paid by the appellant to the respondents within 45 days of the receipt of copy of the order.
First Appeal No.373 of 2010:-
19. Similarly, in F.A. No.373 of 2010 (Meenu Gupta Vs The Bathinda Central Cooperative Bank Limited and Anr), appellant-Meenu Gupta (daughter of Vijay Kumar) is having the following Long Term Deposit Receipt (LTDR) Accounts:-
(a) No.1623 -LF 198-8 LTDR No.0009578 dated 08.01.2007 for an amount of Rs.15,000/- as term deposit for 12 months on interest @ 7.25% p.a. on compounding basis with maturity value as Rs.16,117/- First Appeal No.372 of 2010 7
and the due date was 08.01.2008 which was further renewed with maturity date as 08.01.2009 @ 9% p.a.
(b) No.1623 -LF 198-8 LTDR No.0009501 dated 22.08.2006 for an amount of Rs.21,000/- as term deposit for 12 months on interest @ 6.75% p.a. on compounding basis with maturity value as Rs.22,454/- and the due date was 22.08.2008 which was further renewed w.e.f. 22.08.2007 to 22.08.2008 with interest @ 8.50% p.a. and further renewed from 22.08.2008 to 22.08.2009 @ 9.50% p.a., with maturity value as Rs.26,878/-.
(c) No.3704 -LF 29 LTDR No.028231 dated 11.10.2008 for an amount of Rs.21,000/- as term deposit for 12 months on interest @ 9.5% p.a. on compounding basis with maturity value as Rs.23,067/- and the due date was 11.10.2009.
20. The appellant was in urgent need of money to meet the routine maintenance expenses and education fees, applied to the respondent bank for payment of amount due under matured LTDRs mentioned in para(a) and for pre-mature encashment of the LTDRs mentioned in paras (b) & (c) along with interest, but the request was refused.
21. It was prayed that the respondents be directed to encash the said Long Term Deposit Receipts mentioned above along with interest upto date and to pay Rs.50,000/- as compensation.
22. The complaint was contested by the respondents by filing similar written reply as filed by them in F.A. No.372 of 2010.
23. The District Forum, along other two similar complaints, dismissed the complaint as per the observations mentioned in Para-8 of this order.
24. In view of the reasons and discussions held in F.A. No.372 of 2010 (Naresh Kumari Vs The Bathinda Central Cooperative Bank Limited & Anr.), the F.A. No.373 of 2010 (Meenu Gupta Vs The Bathinda Central Cooperative Bank Limited & Anr.) is dismissed and the impugned order First Appeal No.372 of 2010 8 under appeal dated 22.01.2010 passed by the District Forum is affirmed and upheld, with the above modification. No order as to costs.
25. The appellant had deposited an amount of Rs.835/- vide receipt dated 18.03.2010 and another sum of Rs.1665/- vide receipt dated 19.04.2010 with this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondents in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
26. Remaining amount of costs imposed as per order of the District Forum shall be paid by the appellant to the respondents within 45 days of the receipt of copy of the order.
First Appeal No.374 of 2010:-
27. Similarly, in F.A. No.374 of 2010 (Jimmy Gupta Vs The Bathinda Central Cooperative Bank Limited & Anr.), appellant-Jimmy Gupta (son of Vijay Kumar) is having the following Long Term Deposit Receipt (LTDR) Accounts:-
(a) No.1690 -LF 11/9 LTDR No.0009524 dated 19.10.2006 for an amount of Rs.25,000/- as term deposit for 12 months on interest @ 6.75% p.a. on compounding basis with maturity value as Rs.2673/-
and the due date was 19.10.2007, renewed on 31.0.2007 with due date 31.10.2008 with rate of interest @ 8.50% p.a. with maturity value of Rs.10,877/-.
(b) No.1690 -LF 11-9 LTDR No.0009577 dated 08.01.2007 for an amount of Rs.15,000/- as term deposit for 12 months on interest @ 7.25% p.a. on compounding basis with maturity value as Rs.16,117/- and the due date was 08.01.2008 which was further renewed w.e.f. 01.08.2008 to 08.01.2009 with interest @ 9% p.a. with maturity valud Rs.21,862/-.
(c) No.1690 -LF 11-9 LTDR No.19895 dated 22.08.2008 for an amount of Rs.10,000/- as term deposit for 12 months on interest @ 9.50% p.a. on First Appeal No.372 of 2010 9 compounding basis with maturity value as Rs.10,984/- and the due date was 22.08.2009.
28. The appellant was in urgent need of money to meet the routine maintenance expenses and education fees, applied to the respondent bank for payment of amount due under matured LTDRs mentioned in para(a) and for pre-mature encashment of the LTDRs mentioned in paras (b) & (c) along with interest, but the request was refused.
29. It was prayed that the respondents be directed to encash the said Long Term Deposit Receipts mentioned above along with interest upto date and to pay Rs.50,000/- as compensation.
30. The complaint was contested by the respondents by filing similar written reply as filed by them in F.A. No.372 of 2010.
31. The District Forum, along other two similar complaints, dismissed the complaint as per the observations mentioned in Para-8 of this order.
32. In view of the reasons and discussions held in F.A. No.372 of 2010 (Naresh Kumari Vs The Bathinda Central Cooperative Bank Limited & Anr.), the F.A. No.374 of 2010 (Jimmy Gupta Vs The Bathinda Central Cooperative Bank Limited & Anr.) is dismissed and the impugned order under appeal dated 22.01.2010 passed by the District Forum is affirmed and upheld with the above modification. No order as to costs.
33. The appellant had deposited an amount of Rs.865/- vide receipt dated 18.03.2010 and another sum of Rs.1665/- vide receipt dated 19.04.2010 with this Commission. Both these amounts with interest accrued thereon, if any, be remitted by the registry to the respondents in equal shares by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
34. Remaining amount of costs imposed as per order of the District Forum shall be paid by the appellant to the respondents within 45 days of the receipt of copy of the order.
First Appeal No.372 of 2010 10
35. The arguments in all these appeals were heard on 11.09.2012 and the orders were reserved. Now the orders be communicated to the parties.
36. The appeals could not be decided within the stipulated timeframe due to heavy pendency of court cases.
37. Copy of this order be placed in F.A. No.373 of 2010 (Meenu Gupta Vs The Bathinda Central Cooperative Bank Limited & Anr.) and F.A. No.374 of 2010 (Jimmy Gupta Vs The Bathinda Central Cooperative Bank Limited & Anr.).
(Inderjit Kaushik) Presiding Member (Piare Lal Garg) Member September 17, 2012.
(Gurmeet S)