State Consumer Disputes Redressal Commission
Canara Bank Erode District vs M. Venkateswaran Erode District on 13 October, 2010
BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI BEFORE THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI Present Hon'ble Thiru Justice M. THANIKACHALAM PRESIDENT Tmt.Vasugi Ramanan, M.A., B.L., MEMBER I Thiru.S.Sambandam, B.Sc., MEMBER II F.A.160/2007 [Against order in C.C.No.27/200 on the file of the DCDRF, Erode) DATED THIS THE 13th DAY OF OCTOBER 2010 Canara Bank, | Appellant / O.P. Kasipalayam Branch 638 454, | Gobichettipalayam Taluk, | Erode District, rep. by its Branch Manager, | Vs. M. Venkateswaran, | Respondent/Complainant S/o. Marappan, | 53, Karattupalayam, Erappalayam, | P. Karuttupalayam Post, | Gobichettipalayam Taluk, | Erode District. | The Respondent as Complainant filed a complaint before the District Forum against the opposite party praying for the direction to the opposite party to pay all the amounts lying in the SB account of the complainant, to pay a sum of Rs.1 lakh as compensation for the mental agony and to pay Rs.5,000/- as cost. The District Forum allowed the complaint, against the said order, this appeal is preferred praying to set aside the order of the District Forum dt.26.02.2007 in C.C.27/2004. This appeal coming before us for hearing finally on 24.09.2010, upon hearing the arguments of the counsels on eitherside, perused the documents, written submissions as well as the order of the District Forum, this commission made the following order: Counsel for the Appellant / O.P. : Mr.P.S. Eathiraj, Advocate. Counsel for the Respondent/ Complainant : Mr.K. Ganesan, Advocate. M. THANIKACHALAM J, PRESIDENT 1.
The opposite party is the appellant.
2. The complainant/respondent in this appeal, who was having Savings Bank Account No.11759, in the opposite party bank, had a balance in his account, of Rs.4248/- on 19.01.2004. For his urgent need, when he attempted to withdraw a sum of Rs.4,000/-, using withdrawal slip, he was informed that he has to pay a sum of Rs.4,000/- towards loan, borrowed in the year 1994, which he had already settled.
3. The conduct of the opposite party, not informing the balance if any due and not disclosing the statement, refusal to pay the sum of Rs.4,000/- should be construed as negligent, illegal, amounting to deficiency in service. Further, when the loan itself is bared by time, being of the year 1994, for that loan amount, they cannot withhold the amount, from paying from the Savings Bank Account when demanded by the complainant, which should be construed as deficiency in service. On these grounds, a case came to be filed, seeking direction to pay the amount in Savings Bank Account, as well for a compensation of Rs.1 lakh with cost.
4. The opposite party bank denying all the averments in the complaint, including the alleged attempt of the complainant to withdraw a sum of Rs.4,000/- from the Savings Bank Account, would contend, that the complainant availed a loan of Rs.5,000/- on 23.11.1994 in Loan No.D.P.N.R.T.(IRDP) 5/94, which he failed to pay, leaving the balance of Rs.6,700/- as on December 2003, despite notice issued to him, not paid willfully, that under Section 171 of the Indian Contract Act, the bank has every right to mark a lien, which they did, which cannot be described as deficiency in service, that adjusting the amount available from the Savings Bank Account, still there is a balance of Rs.2415/-, which the complainant is liable to pay and in view of the above fact, there is neither deficiency in service nor negligence, warranting any compensation or direction from the Consumer Forum. Thus, it is prayed the complaint may be dismissed with cost.
5. The District Forum accepting the case of the complainant, as if, the opposite party had committed deficiency, directed to pay all the amount, lying in the Savings Bank Account, in addition to, pay a sum of Rs.10,000/- as compensation along with cost of Rs.3,000/-, which is impugned in this appeal.
6. As evidence by Ex.A1, the complainant had opened Savings Bank Account No.11759 on 04.08.2003, which had a balance of Rs.4248/-, on 19.01.2004. On the back side of this Passbook, a lien is marked with respect to a loan dated 23.11.1994, and it is not known, when the lien was entered. It is the case of the complainant, that when he had been to the bank, on 19.1.2004 to draw a sum of Rs.4,000/- for medical expenses, that was not honoured, which is labeled as deficiency, resulting this complaint, after the issuance of the notice, as well as the fact, the information furnished by the Bank regarding the non-payment of the loan on 04.02.2004 (Ex.A2). Therefore, at the first instance, the complainant must make a case that he had made an attempt, to withdraw a sum of Rs.4,000/- from the Bank, using withdrawal slip, for which, practically we have no evidence. Though, it is alleged in the complaint that after he has given the withdrawal slip, even token was given, its number is not given.
It is the specific case of the opposite party, that the complainant has not come to the bank either on 19.01.2004 or any other date to withdraw any amount and there was no denial of payment also.
In this view, unless a case is made out, the account holder attempted to withdraw as of right, which was refused, then only the question of deficiency would come, for non payment. In the absence of details, in the complaint as well in the absence of withdrawal slip said to have been given to the Bank, not honoured, we are unable to conclude, that on 19.01.2004, the complainant had made an attempt to withdraw the amount, refused by the Bank and therefore, it should be construed as deficiency in service.
In this view, on this ground, the complainant is not entitled to any compensation, or on this ground alone, he is not entitled to seek a direction to close his Savings Bank Account though he may have right to close the Savings Bank Account, otherwise if there is no other impediment. In this context, we have to see the defence as well as certain admitted facts.
7. In Para 4 of the complaint, the complainant has admitted that he had received the loan from the opposite party's branch in the year 1994. While coming to its discharge, he was not certain, whereas he would state that "he has settled all the amounts to his knowledge". If really, the debt has been discharged, he should have obtained documents which he had executed in favour of the bank, which is not so. The non information or any demand emanated from the bank or bank failed to issue demand, will not preclude them, from claiming a lien over the amount, payable by them, to the complainant if the law permits.
8. The learned counsel for the appellant in this regard invited our attention to Section 171 of the Indian Contract Act, 1872, which speaks about "General lien of bankers, factors, wharfingers, attorneys and policybrokers" conferring power upon them, to retain as a security for a general balance of account, in the absence of a contract to the contrary. It is not the case of the complainant, that there was a contract not to have lien over the Savings Bank Account/money. Therefore, the bank is entitled to exercise this legal power, even if it is time barred debt, since there is no such restriction in Section 171 of the Indian Contract Act, 1872. If at all, question of limitation will come into operation, when the Bank goes to the Court, for recovery of the loan, sanctioned in the year 1974, if there was no acknowledgement of the debt or any prohibition is available, in claiming the time barred debt, which situation has not arisen in this case. Based upon Section 171 of the Indian Contract Act, as said above, entry made in the Passbook itself. It appears to our mind, when the complainant went to the Bank or when he was summoned and informed the debt, he wanted to close the account, for which, he should have invented a story, as if, he attempted to withdraw the amount, refused, that should be construed as deficiency in service, which we are unable to agree in the absence of any materials.
9. The District Forum failed to look into the basic principal of law, available in the rulings, relied on by the opposite party though they are referred in the judgement, as if, the general lien under Section 171 of the Indian Contract Act is not available, for time barred debt, which cannot be the concern of the Consumer Forum, when Section 171 does not say that there is a bar, to make a lien in case of time barred debt. Therefore, as held by the Supreme Court, a lien is applicable, including the customer for collection. In this case, the loan is admitted and there is no proof, that the loan was discharged by the complainant, for which loan alone, a lien is claimed, under Section 171 and on that basis, the refusal to pay the balance from the Savings Bank Account of the complainant, cannot be termed as deficiency in service, since the bankers have exercised their right legitimately, not offending the customer's right, while doing service. The District Forum unfortunately, has failed to appreciate the law properly, which resulted in an erroneous judgement, warranting our interference.
10. In the result, the appeal is allowed, and the order of the District Forum in OP No.27/2004, dt.26.02.2007 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost throughout.
11. The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant / opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.
S. SAMBANDAM VASUGI RAMANAN M.THANIKACHALAM MEMBER II MEMBER I PRESIDENT INDEX : YES / NO Ns/mtj/Bank/fm