State Consumer Disputes Redressal Commission
Pratibha Keiyh Albert (Dead) Through ... vs State Bank Of Patiala on 24 March, 2014
CC-05-28-24032014 STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MAHARASHTRA, CIRCUIT BENCH AT NAGPUR 5th Floor, Administrative Building No. 1 Civil Lines, Nagpur-440 001 Complaint Case No. CC/05/28 1. Pratibha Keiyh Albert (Dead) Through Legal Heirs 1.(A) Parikshit Keith Albert - 1.(B) Dushyant Keith Albert - 1.(C) Miss Tejeshini Keith Albert All Resident of 59, Kt Nagar, Katol Road, Nagpur-13 ...........Complainant(s) Versus State Bank Of Patiala Khurana Bhawan, 2, Central Avenue Nagpur-18 ............Opp.Party(s) BEFORE: Hon'ble Mr. B.A.Shaikh, Presiding Member Hon'ble Mrs. Jayshree, Yengal Member PRESENT: Adv. Smt. J.S. Rao .. for The Complainants Adv. Mr. Kalyani for The Opp. Party 1 ORDER
(Passed on 24.03.2014) Per Mr B A Shaikh, Honble Presiding Member
1. This Complaint is filed by the original deceased complainant namely Smt Pratibha Keith Albert against the opposite party (for short the O.P.) bank namely State Bank of Patila, Branch Nagpur, seeking direction to the O.P. to pay her Rs.22,03,123.89 alongwith interest @ 18% p.a. from 29.03.2004 till its realization towards the fixed deposits made by her with O.P. and also to pay her Rs.2.00 Lacs as compensation towards mental harassment and also to pay her cost of the complaint. The said original complainant died during the pendency of this complaint and therefore, her legal representatives are brought on record.
2. The case of the original complainant as set out in the complaint in brief is that she resides on F-B, Saiguru Apartments, Mohan Nagar, Nagpur 01. She had opened two Fixed Deposit Accounts bearing Nos. 0129200300401 & 0129200300402 for amounts of Rs.12,02,300/- & Rs.4,37,200/- deposited by her with the O.P. on 19.07.2001, by completing all the requisite formalities. She wanted to update the fixed deposits and hence she handed over the Fixed Deposit Receipts (for short FDR) to Assistant Branch Manager of that Bank. At that time she found that her both the said accounts have been closed on 31.03.2004 by transferring her aforesaid amounts to another account bearing No. 01090005042 without her consent & knowledge. The O.P. however claimed that the said account was opened by the complainant in her own name. The said claim of O.P. is false. She also found from the statements of account obtained subsequently by her that account that the address recorded by the Bank of the account holder of that farce account as Nalsahib Chowk, Nagpur.
The complainant is not the resident of the said address. Moreover, it is also found by the complainant from that account statements that continuous transactions were made in that farce account right from 27.06.2000 every day involving huge amounts by cash in crores. Moreover, the O.P. Bank also issued cheque books in respect of the said farce bank account on the basis of her forged signatures. The bank officials having hand in gloves with other person effected all those transactions in the said farce account. The complainant had simply applied for loan to the O.P. Bank some time in the year 2001-02 against the aforesaid fixed deposits and bank Manager had obtained her signatures on some papers after coming to her house in that respect. But later on she did not pursue the said loan case and that she was under impression that loan case is dropped by the O.P. Taking the benefit of the same, the O.P. has transferred the amount of loan to the aforesaid farce account No.01090005042. Thus, the O.P. duped the complainant. The complainant, therefore, issued letters to the O.P. and brought to its notice the said fraud and disowned the transactions effected in the said farce account, but of no use. The complainant, therefore, prayed for direction to the O.P. as stated in Para No.1 above.
3. The O.P. resisted the said complaint by filing Written Version. The case of the O.P. in brief is that the complainant had deposited with it Rs.11.00 Lacs on 28.03.2000 and Rs.4.00 Lacs on 31.03.2000 in her name for a period of one year and accordingly two Fixed Deposit Receipts (FDR) bearing Nos. 457743 & 457747 were issued in her name. They were to mature on 28.03.2001 & 31.03.2001 respectively. The complainant had also opened with it a current account bearing No.5042 on 27.06.2000. On 27.07.2000 the complainant had requested it to grant overdraft (for short O.D.) loan of Rs.10.00 Lacs which was sanctioned to her against the aforesaid FDRs. The complainant executed documents namely Demand Promissory Note, D.P. Note, Delivery Letter, Letter of Continuity and Undertaking in relation to the said O.D. Account. In the month April 2001 on adjustment of the limit, the said FDRs called as STDRs were handed over to Shri P S Albert, the son of the complainant on the request of the complainant. Thereafter, as per request of the complainant O.D. was granted to her on 19.07.2001 to the extent of Rs.13.50 Lacs. On the same date she had said that her original FDRs are lost and therefore, she requested to issue duplicate FDRs. Accordingly, they were issued on 19.07.2001 respectively for Rs.4,37,200/- & Rs.12,02,300/-. The period of said FDRs was three years. The aforesaid O.D. of Rs.13.50 Lacs was granted to the complainant as against the security of the aforesaid FDRs. She executed necessary loan documents in favour of the O.P. about the said O.D. Then again on 22.11.2002, as per request of the complainant, current account overdraft was further enhanced to Rs.16.00 Lacs. She executed necessary documents again in favour of the O.P. Thereafter again on 30.04.2003 as per request of the complainant she was granted demand loan of Rs.17.90 Lacs as against the security of the aforesaid two FDRs. At that time also she executed the necessary documents in favour of the O.P. At this time the amount outstanding in the said current account was first adjusted and remaining amount was disbursed to her. Again as per request of the complainant she was granted OD of Rs.19.50 Lacs on 02.09.2003. She executed necessary documents in that respect again. The outstanding amount of that demand loan was first adjusted in the said FDRs and remaining amount was kept available to her. Lastly in the month of March 2004 she (complainant) came to O.P. with original FDRs which were a issued on 28.03.2000 and 31.03.2000, which were earlier lost and at that time those FDRs were kept in the custody of the O.P as already duplicate FD certificates were issued and those stood matured and the FDRs were again renewed for Rs.12,02,300/- & Rs.4,37,200/- as stated above.
Therefore, those original FDRs produced by complainant were not renewed again. The O.D. as stated above was given against the security of the said FDRs and only an amount of Rs.88,850.91 was in balance in her said current account and therefore, it is submitted that said amount only now can be withdrawn by the complainant at any moment. The O.P. has denied the allegations that its employees hand in gloves with another person, prayed fraud upon her as alleged in the complaint. It is denied that the complainant did not pursue her application made for loan. It is denied that for the first time the complainant learnt about the aforesaid transactions when she came to O.P. bank in the month of March 2004 and obtained account statements. Thus, according to the O.P. the complainant has deliberately suppressed the aforesaid material facts from this Commission so as to escape from her liability of demand loan and OD accounts. It, therefore, submitted that complaint may be dismissed.
4. The original complainant filed rejoinder to the said Written Version of the O.P. on 08.07.2005. She also filed the copies of statements of account dtd.27.02.2005 and letters dtd. 04.03.2005, written by her to O.P. raising grievance as mentioned in the complaint and copy of the acknowledgement dtd.11.03.2005 of the aforesaid letters. Shri Parikshit Keith Albert, the son of the complainant filed his own affidavit in support of the complaint on 11.02.2013. The complainant died on 24.01.2011 as seen from Death Certificate produced on record.
5. The O.P. filed affidavits of Shri Melaram Santaram Bhatia, its Branch Manager and Ashwini Rajendra Pal Grover, its Asstt. General Manager to support its case. The O.P. also filed copies of the following 32 documents to support its case.
Sl.No. Description Date 1 Application form for opening the current account 27.06.2000 2 Specimen signature form 27.06.2000 3 Application for Overdraft facility of Rs.10,00,000/-
27.07.2000 4 Demand Promissory note executed by complainant for Rs.10,00,000/-
27.07.2000 5 D.P. Note delivery letter 27.07.2000 6 Letter of continuity 27.07.2000 7 Undertaking given by the complainant relating to said demand loan account 04.12.2000 8 Indemnity bond 19.07.2000 9 Duplicate F.D. certificate for Rs.4,00,000/-
31.03.2000 10 Duplicate F.D. certificate for Rs.11,00,000/-
28.03.2000 11 Application for Overdraft facility of Rs.13,50,000/-
19.07.2001 12 STDR take delivery letter 19.07.2001 13 Letter of authority 19.07.2001 14 Letter of continuity 19.07.2001 15 D.P. Note delivery cum continuity letter 19.07.2001 Sl.No. Description Date 16 Application for Overdraft facility of Rs.16,00,000/-
22.11.2002 17 D.P. Note for Rs.16.00 Lakhs 22.11.2002 18 D.P. Note delivery letter 22.11.2002 19 Letter of continuity 22.11.2002 20 STDR take delivery letter 22.11.2002 21 Application for demand loan for Rs.17.90 Lakhs by complainant 30.04.2003 22 Demand promissory note 30.04.2003 23 STDR take delivery letter 30.04.2003 24 Application for O.D. facility of Rs.19.50 Lakhs 02.09.2003 25 Demand promissory note 02.09.2003 26 D.P. Note delivery letter cum continuity letter 02.09.2003 27 Letter of continuity 02.09.2003 28 STDR take delivery letter 02.09.2003 29 F.D. Certificate 19.07.2001 30 F.D. Certificate 19.07.2001 31 Reply to the letter of the complainant 05.03.2005 32 Reply to the letter of the complainant 05.03.2005 The O.P. had also sent the aforesaid documents to Handwriting Expert Shri Sanjay Kotwal for comparison of the admitted signatures of the original complainants with her disputed signatures and for opinion about the same. Accordingly, the said Handwriting Expert verified the same and gave opinion on 05.08.2005 to the effect that he examined and compared questioned signatures with the comparative signatures and upon comparison he came to the conclusion that the questioned signatures are in the handwriting of the person who wrote the comparative signatures. He has also given reasons for the said conclusion. The O.P. filed the said opinion of the expert alongwith the photocopies of these admitted and disputed signatures, taken by the Handwriting Expert for comparison and opinion.
6. The learned advocate of the complainant had also moved an application on 04.12.2012 for appointment of Government Handwriting Expert for examination of the documents in view of the opinion of private Handwriting Expert filed by the O.P. This Commission after hearing advocates of both parties on that application, rejected it as per order dtd.04.12.2012.
7. The learned advocates of both the parties filed Written Notes of Arguments. We have also heard them and perused Written Notes of Arguments and other documents filed by both parties. Following issues arise for our determination. We also record our findings against them for the reasons given next there under.
Sl. No. Issues Finding 1 Whether the complainants are Consumers as defined under Section 2(1)(d)(ii) of Consumer Protection Act, 1986 ?
Yes 2 Whether the complainants have proved that the O.P. has provided deficient service to them?
No 3 Whether the complainants are entitled to reliefs claimed by them?
No 4 What order?
As per final order below.
REASONS
8. As to Issue No.1 It is not disputed that the two fixed deposit accounts bearing Nos.129200300401 & 129200300402 were opened by the original complainant with the O.P. and therefore the original complainant had hired services of the O.P. Original complainant died during pendency of the complaint and her legal representatives are brought on record and therefore they are the Consumers as defined under Sec. 2(1)(d)(ii) of Consumer Protection Act, 1986. Therefore, the Issue No.1 is decided in affirmative.
9. As to Issue Nos.2 & 3 The learned advocate of the complainant has drawn our attention to the fact that the complainant resides on the address as F-B, Saiguru Apartments, Mohan Nagar, Nagpur-01, but in the disputed current account No.01090005042 opened with O.P. in her name, her address is shown as resident of Nalsaheb Chowk, Nagpur. She argued that the O.P. did not take care to verify the residential proof of the complainant when it opened aforesaid disputed account and under which various transactions were made by person other than the complainant by opening that account in her name. In reply the learned advocate of the O.P. submited that at the relevant time when the said disputed account was opened, it was not necessary to obtain address proof from the prospective account holder and hence, it was not taken from the complainant. However, we find that, merely, because in disputed account No. 01090005042, the address of the complainant is shown different than she has given in her earlier two admitted accounts, it cannot be said that the subsequent disputed; current account No. 01090005042 is not opened by her.
10. The learned advocate of the complainant also argued that the O.P. has taken a false defense in its Written Version and that the officials of the O.P. Bank prepared false and forged documents by keeping hand in gloves with another person so as to cheat the complainant. In support of her submission she has taken us through the aforesaid 32 documents produced on record by the O.P. She thus submitted that the complaint is entitled to reliefs sought for in the complaint.
11. On the other hand the learned advocate of the O.P. submitted that there is no reason to disbelieve aforesaid 32 documents produced by the O.P., when the Handwriting Expert has given his opinion showing that the said 32 documents bear signatures of original complainant and that said 32 documents prove that subsequent O.D. transactions made by the original complainant from time to time. He further submitted that the O.P. is a nationalized bank and it granted OD facilities to the complainant from time to time on the basis of aforesaid documents of which the regular account is maintained by the O.P. He therefore, submitted that the complaint is liable to be dismissed.
12. According to the case of the O.P. in brief, initially, the complainant had deposited with it Rs.11.00 Lacs on 28.03.2000 and Rs.4.00 Lacs for one year and accordingly two FDRs were issued in her name. This fact is not disputed by the complainant. It is further case of the O.P. that on 27.06.2000 the complainant made an application to it for opening current account and it was introduced by Shri Firoz Khan, who had opened S.B. Account No.2198 with it. It is further case of O.P. in brief that thereafter the O.D. was sanctioned on different dates i.e. on 27.07.2000, 19.07.2001, 22.11.2002, 30.04.2003 and 02.09.2003 to the complainant on her five applications made on those dates and those ODs facilities availed by original complainant were of Rs.10.00 Lacs, Rs.13.50 Lacs, Rs16.00 Lacs, Rs.17.90 Lacs and Rs.19.50 Lacs resepectively as against the aforesaid FDRs and she had also executed from time to time the necessary documents namely demand promissory notes, (for short D.P. Notes), delivery letter under takings letters of continuity, STDR delivery letters, when the aforesaid OD facilities were extended to her form time to time. Lastly the amounts of the aforesaid FDRs were adjusted as against the said O.D. account and now only Rs.88,850.91 are lying in balance in her current account, which can be withdrawn by her at any moment. The complainant has denied the aforesaid case of the O.P. Therefore, the material question involved in the present case is whether the complainant had made applications on aforesaid dates to grant her O.D. facilities and whether she availed the said facilities by executing the aforesaid various documents from time to time in favour of the O.P.
13. The O.P. produced all her aforesaid various applications and documents executed in its favour by the original complainant Moreover, the O.P. has also produced specimen signatures of the complainant, which are no not disputed by her. It is also not disputed that the O.P. had sent the documents bearing admitted specimen signatures of the complainant alongwith the aforesaid all the documents of the disputed current account to the handwriting expert. Report of expert received by the O.P. is produced. It shows that expert duly examined and verified all those signatures by taking their enlarged photograph and came to the conclusion that the disputes and admitted signatures are of the original complainant only.
15. We find that the said opinion of the handwriting expert can be believed, since the complainant has admitted her some of the signatures appearing on some of documents, which were also examined by the handwriting expert. We also find that merely because the documents were sent to handwriting expert suo motu by the O.P. that cannot be sufficient to disbelieve the opinion of handwriting expert, particularly when he has given cogent & sufficient reasons to come to the aforesaid conclusion.
16. It is also pertinent to note that the complainant did not lodge any report with the Police though she alleged that the bank officials hand in gloves with another person played fraud upon her and thereby duped her for huge amount. In the natural course of conduct had the forgery committed in respect of her signatures on the aforesaid various documents produced on record for the purpose of cheating her, she would have certainly lodged complaint with the Police in that respect.
17. It is also pertinent to note that the O.P. had issued duplicate FDRs to the original complainant on 19.07.2001 when she (complainant) had represented to it that she lost the aforesaid two FDRs and demanded duplicate certificates. Initially two FDRs were issued by the O.P. to the complainant respectively for Rs.11.00 Lacs and Rs.4.00 Lacs on 28.03.2000 and 31.03.2000 and the period of the said FDRs was for one year only i.e. till 28.03.2001 and 31.03.2001. It is not explained by the complainant as to why she did not approach to the O.P. on or immediately after 28.03.2001 and 31.03.2001 either for encashment of said FDRs or for extension of maturity period of said FDRs. As per her complaint she approached to the O.P. in the month of March 2004 only for updating the said FDRs and at that time she learnt that the amounts of the said FDRs were transferred to disputed current account bearing No.01090005042. In our view, as the original complainant has not explained as to why she did not approach to the O.P. immediately after the dates 28.03.2001 and 31.03.2001 for updating the said FDRs, the case of the O.P. can be believed that she had approached to it (O.P.) from time to time i.e. on the aforesaid dates i.e. after 31.03.2001 with requests to grant her OD facilities as against the security of the said FDRs. Therefore, we hold that it is proved that the O.P. granted OD facilities as discussed above to the complainant after 31.03.2001, from time to time on her own request and she availed the said facilities as mentioned in the aforesaid all the documents produced by the O.P. and as shown in the account statement of the disputed account No.01090005042 produced by the complainant. Thus, it is seen that only an amount of Rs.88,850.91 was in balance in the said account of the complainant as shown in the said account statement. The complainants have not proved that the O.P. misused the documents signed by original complainant for obtaining loan which was subsequently not availed by her. The complainants have thus failed to prove that the O.P. provided deficient service to them.
Therefore, they are not entitled to claim the relief sought in the complaint. The issue Nos. 2 & 3 are thus, decided in negative and consequently following order is passed.
ORDER i. The complaint is dismissed.
ii. No order as to cost in the complaint.
iii. Copy of this order be supplied to the parties free of cost.
[ B. A. SHEIKH] PRESIDING MEMBER [ SMT.JAYSHREE YENGAL] MEMBER sj