State Consumer Disputes Redressal Commission
Punjab National Bank vs B.K. Mittal, on 13 April, 2010
13-04-2010 IN THE STATE COMMISSION : DELHI (Constituted under Section 9 clause (b)of the Consumer Protection Act, 1986 ) Date of Decision: 13-04-2010 Case No. FA-08/129 (Arising from the order dated 09-01-2008 passed in complaint No. 1014/2002 by the District Consumer Redressal Forum (Central), Kashmere Gate, Delhi. PUNJAB NATIONAL BANK - APPELLANT A Body Corporate Constituted under the Banking Companies (Acquisition & Transfer of Undertakings) Act 1970 having its Registered Office at: 7- Bhikaji Cama Place, New Delhi And amongst others a Branch office at Gurdwara Road, Karol Bagh, New Delhi 110005 Versus SHRI B.K. MITTAL, - RESPONDENT R/o 101- Jain Bhawan, 18/12, W.E.A., Pusa Lane, Karol Bagh, New Delhi - 110005 CORAM : JUSTICE BARKAT ALI ZAIDI - President SHRI M.L. SAHNI - Member 1. Whether reporters of local newspapers be allowed to see the judgment? Yes 2. To be referred to the Reporter or not? Yes JUSTICE BARKAT ALI ZAIDI (ORAL) ORDER
1. The short facts of the case are that the complainant has a savings bank account no. 60466 in OP Punjab National Bank Gurudwara Branch, Karol Bagh, New Delhi.
2. He had Rs. 761-66p in his account when, he deposited on 30-10-2000, Rs. 1,20,000/-. On 31-10-2000 Rs. 80,000/- and thus his credit balance became to Rs. Two lakh seven hundred sixty one and sixty six paise.
3. The complainant issued a cheque on 30-10-2000 bearing No. 720040 of an amount of Rs. Two lakhs in favour of Shri Ashok Gupta and another cheque on 16-11-2000 bearing no. 720022 for Rs. 101/- in favour of Shri Nurul Ambia. Cheque amounting to Rs. Two lakh was returned by the Bank on 31-10-2000 on the ground for insufficiency of funds which was presented again on 08-11-2000 and the bank refused to encash it with the remarks that accounts freezed and was returned back on 09-11-2000 to the collecting bank.
4. Another cheque for Rs. 101/- presented for payment on 25-11-2000 was also returned with the same remark.
5. The complainant therefore filed a complaint before the District Consumer Forum against the OP bank alleging the bank had wrongly misappropriated the amount, seeking recovery of Rs. 201000/- interest thereon @ 24% per annum, Rs. One lakh each towards harassment and compensation.
6. The OP bank filed written statement and pleaded that the complainant is a partnership firm under name and style of M/s Mittal Ashok and Associates. The firm had opened an Anupam account in the bank through two of its partners complainant B.K. Mittal, and Manoj Kumar Gupta, and Shri B.K. Mittal had deposited cheque of Rs. Three lakh on 03-11-1991 for the collection and the clerk of he Bank by mistake gave a double entry in the credit balance of the firm showing it Rs. Six lakh. And this amount of six lakh has withdrawn by the firm in the year 1991 and the OP bank had called partners Shri B.K. Mittal (complainant) and Shri Manoj Kumar of the firm who had not refunded the excess withdrawal of Rs. Three lakh despite request by the Bank authorities including a legal notice given on 12-06-2006 to the firm. It is for this reason the OP bank adjusted Rs. Two lakhs lying in the savings bank account of the complainant towards excess withdrawal of Rs. Three lakh and had filed an original application bearing no. 113 of 2002 Punjab National Bank vs Mittal Ashok Associates and Others before the Debt Recovery Tribunal for recovery of the remaining amount which is still pending.
7. The District Consumer Forum dismissed the plea of the Bank and directed it to pay to the complainant Rs. Two lakhs alongwith interest @ 9% from 09-11-2000 till its realization and also as compensation of Rs. Five thousand and litigation costs Rs. Two thousand.
8. That is what brings the bank in appeal before this Commission.
9. It may be made clear that we have to proceed on the basis that the contention of the Bank that Rs.Three lakh were credited twice instead once in the partnership firm is correct. The respondent (complainant) has not specifically denied this and the District Consumer Forum has also proceeded on the basis that this contention is correct.
10. The argument of Ld. Counsel for the appellant that Section 171 of the Indian Contract Act provides a lien on the funds of the depositor. Section 171 of the Contract Act is as follows:
General lien of Bankers, factors wharfingers, attorneys and policy-brokers - Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other person have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.
11. The District Consumer Forum seems to have accepted that in view of Section 171 Contract Act the appellant Bank had a right of reimbursement from the deposits of the respondent (complainant) but has stated that the section will not be applicable because no notice was given. In the opinion of the District Consumer Forum the issuance of Notice was necessary before the appropriation of the funds. This view is wholly unwarranted because there is no mention of a Notice being given in the aforesaid Section.
12. It is not open to the Court to modify a provision and introduce the requirement which is not specifically in the Provision.
That is what District Consumer Forum seems to have done which is impermissible.
13. In view of Section 171 The Contract Act, the Appellant Bank was justified in appropriating to itself the requisite dues from the complainant. For the remaining amount a petition has been filed before the Debt Recovery Tribunal.
14. It was argued by the Counsel for the Respondent that the Bank had initially transferred the amount of the cheque in the name of the drawer Shri Ashok Gupta and it was thereafter that they reversed the entry and retransferring the amount in Bank Account for purposes of adjustment. The argument is that since the amount had already been transferred in the account of Shri Ashok Gupta it could not be retransferred and adjusted.
15. We are unable to accept this contention, and no Rule or Case Law has been cited before us in support of this contention. It is the function of the Court to support and promote Honesty and Fair Dealings in transactions and so far as permissible not to be bogged down by little and surmountable legal hurdles. It is the duty of the Court to enforce what is right and what is fair to declare and enforce what is right and what is Fair and that is what requirements of justice are. Honesty and Fair play are one of the prime ingredients of justice and Courts are supposed to administer justice, because they have been constituted for administering justice. It is this aspect which was emphasized by the Supreme Court in the case of Lily Thomas vs Union of India (2000) VI S.C.C.224 where it was observed as follows:
Justice is a virtue which transcends all barriers and the Rule or Procedures or Technicalities of Law cannot stand in the way of administration of justice.
16. The appeal is therefore allowed and the order of the District Consumer Forum is set aside. The complaint of the respondent shall stand dismissed. Nor order as to costs.
17. Bank Guarantee/FDR, if any, be returned to the appellant after completion of due formalities.
18. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and thereafter the file be consigned to Record Room.
19. Announced on 13th April 20010.
(JUSTICE BARKAT ALI ZAIDI) PRESIDENT (M.L. SAHNI) MEMBER AV