State Consumer Disputes Redressal Commission
Assistant General Manager, Bank Of ... vs Pawan Kumar Agrawal on 4 January, 2012
CHHATTISGARH STATE
CONSUMER DISPUTES REDRESSAL COMMISSION,
PANDRI, RAIPUR (C.G.)
(A/11/2728)
Appeal No.447/2011
Instituted on : 11.08.2011
Assistant General Manager,
Bank of Baroda,
Moudhapara, Main Branch,
Raipur (C.G.) .... Appellant.
Vs.
Pawan Kumar Agrawal,
S/o Shri Ramkumar Agrawal,
R/o : Shri Pyarelal Agrawal Marg,
Ramsagarpara,
Raipur (C.G.) .... Respondent.
PRESENT :
HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT
HON'BLE SHRI V.K. PATIL, MEMBER
COUNSEL FOR THE PARTIES :
Shri N.K. Shrivastava, for appellant.
Shri D.S.Rajput, along with Shri M.M. Sahu, for respondent.
ORDER (ORAL)
DATED : 04/01/2012 PER :- HON'BLE SHRI JUSTICE S.C. VYAS, PRESIDENT This appeal is directed against, order dated 04.04.2011 of District Consumer Disputes Redressal Forum, Raipur (C.G.) (hereinafter called "District Forum" for short) in Complaint Case No.473/2010, whereby the complainant/respondent, has been declared as owner of Locker No.240A, with appellant/Bank, and appellant/ Bank, has been directed to permit the complainant/respondent to operate the locker // 2 // and to use it as per his wishes. It has also been directed that the amount, which has been recovered by the appellant/ Bank from the complainant/respondent, as Locker Rent for a period during which the locker, could not be operated, be adjusted against rent of future period.
2. In nutshell, the case of the complainant/respondent before District Forum was that, he is owner of Locker No.240A, which is there in the branch of appellant/Bank, but the appellant/Bank is prohibiting him to operate that locker w.e.f. 29.10.2010 and thus has committed deficiency in providing banking service, so, consumer complaint was filed before District Forum.
3. The complaint was resisted by the appellant/Bank with the averment that, initially the locker was standing in the name of grand- father of the complainant/respondent, as well as Mr.B.L. Agrawal, the elder brother of the complainant. Later on, the grand-father of the complainant/respondent died and his elder brother by letter dated 03/07/2009 requested the appellant/Bank to include the name of complainant/respondent, as owner of the locker and Mr.B.L. Agrawal himself surrendered his rights. In these circumstances, the name of the complainant/respondent, was entered as owner of the locker, but, later on the Income Tax Department conducted certain inquiries against the elder brother of the complainant/respondent and // 3 // prohibited the appellant/Bank to permit the complainant/respondent to operate the bank locker. In these circumstances, in compliance of Prohibitory Order of the Income Tax Department, the complainant/respondent, was restrained from operating that locker and in doing so, the appellant/Bank has not committed any deficiency in providing banking services.
4. Learned District Forum, had not agreed with the defence taken by the appellant/Bank and allowed the complaint of the complainant/respondent by passing directions, as described in paragraph No.1 of this order.
5. After having heard the arguments advanced by both parties and having perused the record of District Forum, we are of the view that impugned order, is not sustainable and is liable to be set aside.
6. Learned counsel for the appellant/Bank has drawn our attention towards Prohibitory Order, passed by Income Tax Department, copy of which is available in the record of the District Forum at Page No.35. The order says that during the search operation u/s 132(1) of the Income Tax Act, 1961 dated 04.02.2010, in order to make inventory regarding locker No.240A, the appellant/Bank was asked to give details of key no. of above locker and has also been directed that operation of locker no.240A is prohibited until further // 4 // orders and appellant/Bank was directed to comply that order, which was passed on 09.02.2010.
7. Thus, the order passed by the Income Tax Department is an order, passed under the provision of a Statute. The Assistant Director of Income Tax (Investigation)-II, Raipur (C.G.), was competent to pass such order under the provisions of the Act. Therefore, the order was having statutory force and was binding upon the appellant/Bank. If the appellant Bank has complied this order and restrained the complainant/respondent from operating the locker, then it can not be said that appellant/Bank, has committed any deficiency in providing banking services.
8. Learned counsel for the appellant Bank has drawn our attention towards few other documents filed by the parties before District Forum. Document Annexure-2, is the letter addressed to the complainant/respondent, Shri Pavan Kumar Agrawal, in response to his letter dated 29.10.2010, whereby it has been informed by the appellant/Bank to the complainant/respondent that, he was already informed the matter, which was pending with Income Tax Department and the matter has been referred to Income Tax Authorities for necessary action and guidance. It has also been informed that appellant/Bank has not received any communication from Income Tax Department / investigating authorities in the captioned matter and // 5 // the matter is under investigation by the Central Bureau of Investigation, so, complainant/respondent was requested to support the appellant/Bank for maintaining status quo in the matter till further direction of Income Tax Authorities. Annexure - 3, is letter dated 29.10.2010, which has been addressed by the appellant/Bank to The Assistant Director (Investigation), Income Tax Department, Raipur and through this letter, application of the complainant/respondent was forwarded to Income Tax Department for seeking further directions. It has been stated in this letter that "the search operation was conducted regarding the questioned Locker on 09.02.2010 and Income Tax Department has seized all the records regarding this Locker. The contents of Locker were also seized by the Income Tax Department. It has also been stated that the seizure memo of the said locker was not provided to the appellant/Bank and therefore, this clarification was sought from the Income Tax Department, as to whether the appellant/Bank may permit the complainant/respondent to operate the said locker. These documents, clearly show that a Prohibitory Order was passed by the Income Tax Department and thereafter the appellant/ Bank sought directions and clarification from the Income Tax Department, from time to time, but there is nothing, on the basis of which it can be said that Income Tax Department ever permitted the appellant/Bank to lift the prohibition on the complainant/respondent in operating the locker No.240A.
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9. During the course of hearing of this appeal, the appellant/Bank has brought on record, copy of Charge Sheet filed by Central Bureau of Investigation in the Court of Special Magistrate for C.B.I. Cases, Raipur (C.G.). In that Charge Sheet, after investigation in paragraph No.16 the brief facts of the case have been stated in the following words :-
"16. It had been alleged in the FIR that Shri B.L. Agrawal, IAS, Govt. of Chhattisgarh entered into a criminal conspiracy with his brother Shri Pawan Kumar Agrawal and Shri Antony Samy, the then Manager, Bank of Baroda, Main Branch, Raipur in pursuance thereof, the accused persons committed offences of impersonation, cheating, forgery, falsification of bank records and criminal misconduct in the matter of fraudulent transfer of ownership of locker no.240A which was in the joint names of Shri B.L. Agrawal and Late R.D. Goel. Shri Pawan Kumar Agrawal's father was fraudulently inserted in the bank records showing him as the renter of the locker in place of Shri B.L. Agrawal with the help of Shri Antony Samy Investigation disclosed that Shri B.L. Agrawal (A-1) and Shri Pawan Kumar Agrawal (A-3) are real brothers. Shri Pawan Agrawal (A-3) is the youngest brother of Shri B.L. Agrawal (A-1). Shri R.D. Goel was the cousin of Shri B.L. Agrawal's father."
10. Thus, it is clear from the Charge Sheet that Central Bureau of Investigation, has also conducted investigation regarding bank locker and on investigation, an alleged conspiracy, along with other serious charges, were found to have been committed by the complainant/respondent, by an Officer of the appellant/Bank and by an IAS Officer, who is employee of the State Government. Thus, the // 7 // matter regarding the locker, is also pending in a competent Criminal Court.
11. Some other documents have also been filed by the appellant/Bank along with Charge Sheet.
12. On the basis aforesaid all material, it is abundantly clear that it was not a simple matter of prohibiting operation of the locker No.240A by the appellant/Bank, but it was matter, which may come under the doctrine of "frustration of contract", as defined in Section 56 of the Contract Act. The above provisions also talks regarding subsequent event on account of which compliance of a contract becomes impossible and such subsequent event includes Prohibitory Orders, issued by competent authorities. Thus, if a Prohibitory Order, has been issued by a competent officer of the Investigation Wing of the Income Tax Department and in compliance of that Prohibitory Order, the appellant/Bank was to restrain the complainant/respondent from operating locker in question, then contract regarding authority to operate the locker and to have title over the property kept in that locker becomes frustrated and void and cannot be enforced by filing a consumer complaint before District Forum. Such matters cannot be decided in summary proceedings, to be conducted by the District Forum.
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13. Thus, it is clear that complaint, which was filed by the complainant/respondent before District Forum, was containing such complicated facts, which can only be adjudicated and decided either by competent Civil Court in full dress trial or by some other Tribunal or Authorities. It appears that learned District Forum has committed an error in law in passing the impugned order, in favour of the complainant/respondent overlooking all aforesaid aspects of the matter.
14. Therefore, the appeal succeeds and is allowed. The impugned order is set aside. The complaint filed by the complainant / respondent, is also dismissed, with liberty to file a civil suit before a competent Court or any other proceedings before any other competent Authority, if law permits. No orders as to the cost of this appeal.
(Justice S.C. Vyas) (V.K. Patil)
President Member
/01/2012 /01/2012