National Consumer Disputes Redressal
Catherine De Souza vs Bank Of Maharashtra & Anr. on 18 November, 2020
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 366 OF 2013 (Against the Order dated 27/02/2013 in Complaint No. 12/2012 of the State Commission Goa) 1. CATHERINE DE SOUZA WIDOW OF EDGAR DE SOUZA, R/O. H NO. E-166, NEAR THE HOLY SPIRIT CHURCH, MARGAO GOA 2. MR. JUDE DE SOUZA, S/O. EDGER DE SOUZA, R/O. H NO. E-166, NEA THE HOLY SPIRIT CHURCH, MARGAO GOA ...........Appellant(s) Versus 1. BANK OF MAHARASHTRA & ANR. GOVT. OF INDIA UNDERTAKING, HAVING BRANCH OFFIC AT, GOMANT VIDYA NIKETAN BUILDING, MARGAN GOA 2. MR. RAMESH JAGTAP MAHARASHTRA EXCUTOR TRUSTEE COMPANY, KESRIWADA, NARAYAN PETH, PUNE- MAHARASHTRA ...........Respondent(s)
BEFORE: HON'BLE MR. ANUP K THAKUR,PRESIDING MEMBER
For the Appellant : For the Appellants : Mr. Abhimanyu Garg, Amicus Curiae For the Respondent : For the R1 : Mr. Bipneet Singh, Advocate
For the R2 : Nemo
Dated : 18 Nov 2020 ORDER
Anup K. Thakur
1. Under challenge in this First Appeal No.366 of 2013 is the impugned order of the Goa State Consumer Disputes Redressal Commission, Panaji ('State Commission', hereafter) dated 27.02.2013. Vide this order, in C.C. No.12/2012, the State Commission had dismissed the complaint.
2. Very briefly, facts of the case are as follows. The appellants - Mrs. Catherine de Souza (complainant no.1) and Mr. Jude de Souza (complainant no.2) had, on 29.08.2009, five fixed deposits maturing on 29.08.2010 with 7% interest p.a., payable on "any one or survivor basis". Wife of complainant no.2, Ms. Aleta de Souza was also a joint holder along with the complainants. Ms. Aleta de Souza wrote a letter dated 20.04.2010 to the bank instructing not to break the fixed deposits except in her presence and with her signature. Respondents No.1 - Bank of Maharasthra (OP No1) and respondent no.2 - Mr. Ramesh Jagtap (OP No.2), ('OPs') informed the complainants about the said objection vide letter dated 14.08.2010, and further informed that the bank would not be in a position to either renew the FDs or pay the dues on the maturity date. So stating, the OPs informed the complainants that to claim the amount under the FDs, unanimous decision of the holders duly supported with NOC would be necessary and therefore sought their physical presence. This action on the part of the OPs was held to be malafide for a variety of reasons. The complainants then filed Civil Suit No.521/2010/D in the court of Civil Judge at Margao against the OPs. This was decreed on 09.05.2012 : OP-1 was directed to pay to the complainants a sum of Rs.78,32,808/-, the maturity amount. This was paid on 21.05.2012. After this, the complainants filed a consumer complaint before the State Commission which, as noted earlier, was dismissed. Hence, this appeal.
3. The matter was heard on 17.08.2020.
4. Learned Amicus Curiae for the appellants went through the facts of the case. His first submission was that the bank, in its letter dated 14.08.2010, had merely stated that one of the holders had taken objection, without revealing as to who the objector was. In reply dated 22.08.2010, the complainants pointed this out to the bank and assailed it's decision to withhold payment of the deposits based on the sole representation of a joint holder and not in pursuance of an order of a judicial authority, holding it to be arbitrary and illegal. Vide a subsequent letter dated 24.08.2010, complainants also informed the bank that the FDs were payable to "any one or survivor", alleging that therefore, the bank's action withholding payment was malafide, illegal and arbitrary. The learned Amicus Curiae argued that the action of the bank, in bringing the objection of one of the holders of the FDs sent to the bank vide letter dated 20.04.2010, to the notice of the complainants vide letter dated 14.08.2010 just 10 days before the date of maturity, informing them that had the FDs would neither be renewed nor paid unless the joint holders came to the bank, thereby freezing the deposits effectively, was a deficiency in service. Learned Amicus Curiae submitted that there was correspondence between the OPs and the complainants, basically on three issues. First, the complainants emphasized that since the deposits were payable on "any one or survivor" basis, any of the holders could have received the amount after maturity of the deposit receipts. Second, if the OPs had to have any objection, they should have acted immediately and informed the complainants. However, OP had not done so. Third, OP did not explain in its reply why it took over four months to act on the objection letter of one of the holders. Learned Amicus Curiae drew attention to the impugned order of the State Commission. He explained that the complaint had been dismissed mainly on the ground that the complainant had approached the civil court in the same matter where a judgment had also been passed and the amount paid. As such, the complainants were estopped from filing a complaint with the consumer fora. He further argued that the civil suit was only for recovery of the amount that was due to the complainants against their FDs. Thus, the argument of the State Commission was basically flawed since it failed to appreciate that the consumer complaint was for deficiency in service by the OPs which would entitle the complainants to some compensation. Put differently, the civil suit was for the restitution of the complainants' property. This was allowed by the civil court. However, for compensation due to deficiency in service, the proper form was the consumer forum.
5. Learned Amicus Curiae further explained that what the OPs did was wrong in the facts and circumstances of the complainants' case. Complainant no.1 was 87 years old and was using these deposits to transfer money to her grandchildren for studies; this process was adversely affected by the OPs' action. Further, in view of the RBI guideline, the interpretation of the deposit's terms and conditions of the clause "any one or survivor" was clearly wrong, causing hardship to the complainants. It was not for the OPs bank to sit as an adjudicator and hold up the payment of the FDs on the basis of a letter of objection filed by one of the holders. He also informed that after filing of the appeal, complainant no.1 had passed away and it could be said that this unfortunate incident was also due to the negligence and deficiency in service by the OP. He flagged the RBI circular dated 4.11.2011 which had given clear guidelines qua the practice of some banks insisting on the signatures of both the depositors even though the deposit account carried operating instructions "Either or Survivor" or "Former or Survivor": RBI had directed that such insistence on the signatures of both the depositors has the effect of making the mandate given by the depositors redundant, resulting in unjustified delays and poor service. Learned Amicus Curiae argued that this is precisely what has happened in the instant case.
6. In support of his argument, learned Amicus Curiae invoked a few citations. In AIR 2005 SC 29 in Civil Appeal No.6945 of 2004, Anumati Vs. Punjab National Bank, it had been held that the bank had no right to refuse payment of the amount deposited to the appellant. The refusal was contrary to banking norms. So observing, the Hon'ble Supreme Court had upheld the order of the District Forum and set aside the orders of the State Commission and the National Commission, observing that they had erred in rejecting the appellant's complaint. In the case of Punjab National Bank vs. Rupa Mahajan Pahwa, 2015 SCC online NCDRC 3008, the National Commission vide order dated 28.05.2015, had dismissed the R.P. No.4806 of 2008 filed by Punjab National Bank, relying upon the order of the Hon'ble Supreme Court (Supra).
7. Learned counsel for the respondent-Bank made a twofold submission. First, he argued that what the complainants are saying and doing are quite different: the fact that in the civil suit, they had also claimed damages was withheld in the complaint before the State Commission; this meant that the complainants had not filed the civil suit only for restitution of property but had also claimed compensation for damages; thus, it was not the case that they could not claim damages in a civil suit and that they had to come to consumer fora for the purpose. Second, the above being the case, clearly, the principle of res-judicata was applicable to the facts of the case.
8. The learned counsel drew attention to the order of the Civil Judge Margao in Civil Suit No.521/2010/D (Old) (Special Civil Suit No.15/2011/D (New) para 10 thereof, which he read out in the court. The said para reads as under:
"According to the plaintiffs, the plaintiff no.2 is 86 years of age and that the illegal detention of the monies due to her has caused her much mental agony resulting in a deleterious effect on her health, and that the amount of said fixed deposits are urgently required as they transfer funds to America for the education of their children/grandchildren and the action of the defendants depriving them of the use of their funds which they require urgently for the use of their families has caused the plaintiffs to suffer hardships, inconvenience, mental anguish and depression and the defendants are liable to pay the plaintiffs damages of Rs.1 lakh."
9. Learned counsel argued that this clearly reveals that OPs had been made liable to pay damages of Rs.1 lakh, and therefore the complainants' case that they had approached the civil court only for restitution of property was wrong. However, if the complainants were not happy with the judgment of the civil court, they could have gone in appeal against that order. They chose not to. Instead, they have approached the consumer fora. Clearly, the principle of res-judicata would be attracted and therefore the appeal was liable to be dismissed on this ground alone.
10. Counsel drew attention to the impugned order, para 8 thereof, where the State Commission had elaborately discussed and concluded that the principle of res-judicata was applicable. He further explained that there were three beneficiaries in this case viz. the mother, the son and the wife of the son. The letter of objection to the bank was written by the wife of the son in 20.4.2010; on 14.8.2010 OP had advised the complainants about this i.e. 10 days before the maturity date. He argued that this was however as per the system of the bank which would have resulted in the intimation being issued 10 days before the date of maturity. This was to be understood as such only and no more. The fact that the objector had not been named in this letter really was not such a big issue. He explained that the banks have automated processes to handle routine activities such as renewal of FDs etc. Further, referring to the RBI guidelines (supra), he pointed out that these guidelines came in November 2011 whereas the facts of case refer to the year 2010. He however explained that in case of receiving any objection, the bank had to be extremely cautious. Therefore, the OP-Bank had taken a balanced view and had asked the complainants to come to the Bank. Therefore, there was no deficiency in service.
11. Learned counsel for the OP-bank made a further point. He submitted that the complainants have not lost their case in the civil suit. Rather, they have decided now to claim compensation under a different umbrella asking for 25% interest and so on. As the civil court decree had been passed and the bank had paid the deposit amount with 7% interest, there was nothing more to be said in the case and this appeal therefore deserved to be dismissed.
12. In a short rebuttal, learned Amicus Curiae drew attention to the order of the Civil Court (Supra) and read out the first paragraph of the order where it has been recorded that the suit for permanent injunction and other reliefs are to pay the plaintiffs the Fixed Deposit amount, to pay the FD receipts with interest @ 7% p.a. compounded quarterly from the date of maturity of the fixed deposit receipts till the date of payment of the amount to the plaintiffs, to restrain the defendants from transferring or releasing the fixed deposit receipts to any other person in any manner whatsoever and to pass such further orders as deemed fit and proper. The point made was that it was not the case that the complainant had approached the civil court to claim damages for deficiency in service. Further, referring to the RBI circular (Supra) he explained that this was only in the nature of a clarification; it was not as if but for this circular, the law was different. Still further, responding to the argument that the explanation for intimation to the complainants only 10 days before the due date was because of the automated systems in place in the bank, counsel argued if this was so, it was a bad system and wanted to know how could the complainants talk to the system. Finally, 7% interest had indeed being given but had not been given as per the complainants' wish and desire but only because the money had been hijacked by the OPs.
13. After having heard learned counsels and carefully considered the record, I am of the view that there is no infirmity in the impugned order of the State Commission.
14. Admitted facts are that there were FDs kept with the OPs in the joint names of three persons and one of the three had written a letter of objection to the OP bank. Everything else followed because of this one letter of objection. While the complainants took severe objection to the OP-bank compromising the clear direction of "any one or survivor" or "any one or survivor", the bank did so because it thought it was the best course of action in the circumstances of the case. The fact is that complainants approached the civil court in the first instance seeking injunctions against the OP bank and succeeded to the extent that the bank directed payment of the deposit receipts with 7% interest p.a. It however did not grant any relief against the prayer, which the civil court acknowledged in para 10 of its order, to pay damages of Rs.1 lakh. Quite clearly, the complainants thereafter decided to approach the consumer fora whereas they ought to have filed an appeal before a higher civil court in case they were not satisfied with the impugned order. In my considered view, this was clearly a case of res-judicata as on the same facts, the consumer fora was being approached seeking a further relief which had not been granted by the civil court. The proper course of action for the complainants was indeed an appeal before a higher civil court, not a fresh complaint before the consumer fora.
15. It may be added that the OPs had little option but to have acted extremely cautiously. This is easily understood if the counterfactual is considered. What if the Bank had paid the amount, ignoring the letter of objection which it had received, not from any unknown person but from one of the joint holders. This then could have resulted in serious allegations of connivance, collusion and so on, against the Op-bank. Indeed, the bank, in the facts of the case, behaved in a balanced manner, as argued by the learned counsel for the OPs. Calling all the joint holders together to put matters beyond the realm of any doubt cannot be called a deficiency in service.
16. At this stage, it is apt to reproduce the relevant portion of the impugned order of the State Commission, para 8, thereof:
"In our view, the Consumer Protection Act, 1986 does not confer any new right on a consumer but provides only an additional remedy to a consumer which is expected to be, though many times it is not, simple, summary, speedy and less expensive. Whatever reliefs the Complainants were entitled to on account of the arbitrary action of the O.P. either in not renewing the fixed deposits or not paying the money due thereon on due date, ought to have been claimed by the Complainants in the said Civil Suit including compensation or damages which they were entitled to claim from the Opposite Parties. The Complainants cannot be allowed to file another claim for reliefs not obtained by them in the said Civil Suit as this would be against the principle of res judicata, though such a plea has not been put forward by the Opposite Parties. This principle needs to be invoked in all jurisdictions or in all branches of law including consumer jurisdiction.
As held by this Commission in the case of Dr. Shyam Murthy Gupta (order dated 15/01/2013 in CC. No.6/2012), the principle of res judicata is based on two other principles or maxims namely (i) "No man should be vexed twice by same cause of action and (i) "it is in the interest of the State that there should be end to litigation." The first maxim looks to the interest of the litigant, who should be protected from a vexatious multiplicity of suits or complaints because otherwise a man possessed of wealth and capacity to fight may harass his opponent by constant dread of litigation. The rule is intended not only to prevent a new decision but also to prevent a new investigation so that the same person may not be harassed again and again in various proceedings upon the same question. The second maxim is based on the ground of public policy that there should be an end to litigation. Judicial decisions must be accepted as correct or otherwise if suits or complaints are allowed to be filed endlessly for the same cause of action there would be no end to this vexatious litigation and the courts or the Fora would be unable to deal with the ever growing number of complaints or suits. It may be noted that the principle of res judicata applies to any matter which might and ought to have been made ground of defence or attack in former suit or complaint and shall be deemed to have been a mater directly and substantially in issue in such suit or complaint. It is also applies to any relief which is claimed in the plaint and which is not expressly granted by the order or decree, shall be deemed to have been refused. As observed by the National Commission in Reliance Industries Limited (3 (2006)CPJ 67) for a defence of res judicata to succeed it must be shown that not only the cause of action was the same but also the Plaintiff had an opportunity of getting the relief."
17. As already discussed above, I find no infirmity of either fact or law in the said order.
18. Accordingly, this first appeal, after consideration, is dismissed. No order as to costs.
...................... ANUP K THAKUR PRESIDING MEMBER