State Consumer Disputes Redressal Commission
Aruna Devi vs United Bank on 28 November, 2019
Daily Order STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint Case No. : 362 of 2018 Date of Institution : 25.09.2018 Date of Decision : 28.11.2019 Aruna Devi w/o Sh. Mohinder Pal Bansal R/o House No.559, Sector 7, Panchkula. Sh. Mohinder Pal Bansal S/o Shri Jeeta Ram Bansal R/o House No.559, Sector 7, Panchkula. Navdeep Bansal S/o Shri Mohinder Pal Bansal R/o House No.559, Sector 7, Panchkula. .....Complainants. Versus United Bank of India through its Branch Manager, SCO No.32/33/34, Sector - 17C, Chandigarh 160017. AXIS Bank Ltd. through its Managing Director and CEO, Corporate Office, Bombay Dyeing Mills Compound, Pandurang Budhkar Marg, Worli, Mumbai. State Bank of India through its Chairman, State Bank Bhawan, Madam Cama Road, Mumbai. INDUSIND Bank through its CEO, Tower No.1, One India Bulls Centre, 841 Senapati Bapat Marg, Lower Parel, Mumbai. .....Opposite Parties. Complaint under Section 17 of the Consumer Protection Act, 1986 BEFORE: JUSTICE RAJ SHEKHAR ATTRI, PRESIDENT. MRS. PADMA PANDEY, MEMBER.
MR. RAJESH K. ARYA, MEMBER.
Argued by:
Sh. Charanjit Singh Bakshi, Advocate for the complainants.
Sh. Anand Rohilla, Advocate for Opposite Party No.1 alongwith Ms. Sushma Suthar, Chief Manager, Chandigarh Branch of Opposite Party No.1 in person.
Sh. Vishal Gupta, Advocate for Opposite Party No.3.
Sh. Arun Dogra, Advocate for Opposite Party No.4.
Opposite Party No.2 exparte vide order dated 19.12.2018.
Sh. Nitin Sabharwal, Manager - IT from Chandigarh Regional Office.
PER RAJESH K. ARYA, MEMBER The facts in brief are that in the month of October, 2016, as many as 7 transactions were fraudulently done in the overdraft account of the complainants opened by opposite party No.1 and an amount of Rs.31,00,187/- was withdrawn without their knowledge. It has been alleged that this all happened as certain bank officials of the opposite parties had connived with some criminals and only, thereafter, the money was illegally withdrawn. It has been submitted that the mobile No.9814211311 of complainant No.3, which was registered with the Bank, was mysteriously blocked on 22.10.2016 and was finally reactivated on 24.10.2016. On approaching Idea Store on 24.10.2016, it was apprised that they had already issued another SIM Card on 22.10.2016. Complainant No.3 got FIR registered dated 02.11.2016 and during investigation, it was revealed that Idea had issued another SIM Card on same number on a fake ID. Annexure P-7 annexed with the complaint are copies of incomplete customer request form and forge & fabricated copy of driving license in the name of complainant No.3. On 08.12.2016, complainants sent representations to all the opposite parties (Annexure P-8), which were replied by opposite party No.1 on 22.12.2016 (Annexure P-9) stating that Internet Banking services were provided for a particular customer ID and all accounts linked to it could conduct transactions. As per the complainants, the reasoning given is not only illogical but also false. It has been submitted that the other banks have also been dilly dallying the matter and their conduct has been perverse to the guidelines issued by Reserve Bank of India. The complainants separately wrote letters to respective banks, in which the amounts had been received (Annexure P-11 colly).
2. It has been submitted that the complainants have different nature of accounts with opposite party No.1 and in one such account only, complainant no.1 has mentioned that she wanted to avail for net banking, however, that does not mean that in all their accounts, net banking should be activated. On 12.01.2017, complainant No.1 raised an issue that never any request was made for internet banking in the OD account and by doing so, the Bank was party to the fraud. It has been further submitted that even the banking ombudsman vide letter dated 20.02.2017 advised opposite party No.1 to declare fraud in the complainant's account and to take remedial action (Annexure P-14). It has been further submitted that pursuant to FIR, opposite party no.1 was able to recover Rs.5 Lakhs, which means that the opposite parties were all conniving in this fraud.
3. It has been further submitted that despite its default, opposite party No.1 served a notice u/s 13(2) of SARFAESI Act, 2002 upon the complainants, which was duly replied and it was only after the complainant's deposited Rs.18 lakhs (infact Rs.1,80,000/-), the account was made standard vide letter dated 15.05.2017 (Annexure P-18). It has also been submitted that Annexure P-19 is the form, which was required to be filled at the time of any RTGS/NEFT transaction is to be made in opposite party No.1 - Bank and the complainants never filled any such form for making such fraudulent transactions. Even, the complainants never opted for the Fund Transfer through net banking.
4. Alleging forgery and fraud on the part of the opposite parties and their officials, this complaint has been filed seeking various reliefs.
5. Opposite Party No.1, in its reply has stated that the complainant has three accounts with it and out of these three accounts, he had applied for internet banking facility for account No.0537010059846 and password was also received by him. He also used internet banking thrice for tax payment on 27.09.2016, 02.07.2016 & 29.03.2016 on other two accounts. It has been stated that he used internet banking after accepting the condition in a dialogue box confirming "I accept to view/transact for all my accounts linked with above Customer ID/user ID, alongwith setting my daily transaction limit for request section.....". It has further been stated that the complaint being vexatious is liable to be dismissed under Section 26 of Consumer Protection Act, 1986 with exemplary cost. Rest of the allegations made in the complaint have been denied.
6. When none appeared on behalf of opposite party No.2 despite proper service, it was proceeded against exparte vide order dated 19.12.2018.
7. Opposite Party No.3, in its reply, has stated that the complaint against it is liable to be dismissed as it has not provided any kind of service to the complainant. As regards allegation of transfer of some amount from the account of the complainant to the account maintained with opposite party No.3, it has been stated that since the complainants have already got registered FIR and is pending trial, therefore no relief can be granted to the complainants by the answering opposite party. It has been stated that amounts of Rs.5 Lakhs and Rs.7 Lakhs were credited in account No.36055598033 in the name of M/s R. D. Udyog and Rs.7 Lakhs in Account No.20344680075 in the name of Sh. Subhash Paul and if any fraudulent transactions took place in the said accounts, then the complainants have a right to take action against the said account holders. It has further been stated that opposite party No.3 sent an email dated 15.12.2016 to the complainants and also to opposite party No.1 that opposite party No.3 had put hold on the account maintained with State bank of India on 30.10.2016 for Rs.5 Lakhs so that person could not withdraw amount up-to Rs.5 Lakhs. It has been stated that the liability is only of opposite party No.1 and the answering opposite party No.3 cannot be held liable for the same. Rest of the allegations made in the complaint have been denied.
8. Opposite Party No.4, in its reply, has stated that this Commission is not competent to try and entertain the present complaint and the same deserves to be relegated to Civil Court as the complainant has alleged element of fraud against the opposite parties; that the complainant is neither beneficiary of opposite party No.4 nor has paid any consideration to it whatsoever and that the complaint involves complicated questions of fact. However, receipt of letter dated 09.12.2016 regarding alleged transactions done on 24.10.2016 & 25.10.2016 and representation dated 22.12.2016 from the complainants has been admitted. It has also been stated that the transactions were done through internet banking wherein the details of the beneficiary were filled by the complainants and the role of opposite party No.4 was to ensure that the details mentioned in beneficiary column match the details with the account of the beneficiary and in case of mismatch, the answering opposite party does not clear the transaction. It has further been stated that the funds transfer were made through internet banking, therefore, the question of filling up the form (Annexure C-19) and signing the same does not arise at all. It has also been stated that as per Clause 17.2 of RBI guidelines, it is the duty of the bank to compensate its customer, therefore the said clause is not applicable upon opposite party No.4. Rest of the allegations made in the complaint have been denied.
9. The complainants did not file any rejoinder to the replies filed by the complainants.
10. The parties led evidence in support of their respective cases.
11. We have heard the Counsel for the parties and have gone through the record of the case carefully.
12. In this matter though the learned Counsel for the opposite parties raised number of questions, yet we are not inclined to go into all these questions excepting one relating to the question as to whether this matter should be decided by this Commission or should be relegated to the Civil Court. The complainant has sought the following reliefs, which are as under:
(i) Pass an order directing the opposite parties, its agents, assigns and/or any person purporting to act in its behalf to refund the amount of Rs.26,00,000/- illegally withdrawn through illegal and unauthorized RTGS/NEFT transactions alongwith 18% interest from the date of such withdrawals till the date of realization by the complainant.
(ii) Pass an order directing the opposite parties, its agents, assigns and/or any person purporting to act in its behalf to refund the amount of interest illegally earned by O.P. No.1 after the illegal withdraws had occurred and the bank still kept on charging the interest and for grant of 18% interest from the date of such withdrawals till the date of realization by the complainant.
(iii) Pass an order directing the opposite parties to pay a sum of Rs.5,00,000/- to complainant towards compensation for gross and patent deficiency in service done by the opposite parties which has caused physical and mental torture, agony, discomfort and undue hardship to the complainant and a sum of Rs.2,50,000/- to the complainant towards litigation cost.
(iv) Pass any other further orders(s) as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interest of justice.
13. It may be stated here that the complainants in their complaint have themselves alleged fraud on account of the opposite parties and their officials for misappropriating the amount of Rs.26 Lakhs from his account(s), by way of RTGS/NEFT & Internet Banking, for which they never requested for other accounts except OD Account. The complainants have alleged that the Bank was party to the fraud. Not only this, even the Banking Ombudsman vide letter dated 20.02.2017 advised opposite party No.1 to declare fraud in the complainant's account and to take remedial action (Annexure P-14).
14. Given the nature of the claim in the complaint and the prayer made, it is obvious that very detailed evidence would have to be led, both to prove the claim, when it happened due to fraudulent means, as alleged. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. This is an appropriate claim for a Civil Court to decide. The question of relegating the matter and the parties arises only where voluminous evidence is required to be recorded as it would be needed in the present case. The amount is not small as has been mentioned that it would be around Rs.26 Lakhs. It appears that there are wheels within wheels. On the face of the complaint, it is a fit case wherein a great deal of evidence both oral and documentary would be required for the complainants to prove their case vis-à-vis, the beneficiaries of the alleged fraudulent transactions who are the account holders of different Banks; whether these accounts have been property opened after complying with KYC norms or not; fraudulently obtaining duplicate SIM Card; misuse of internet-banking by bank officials or by someone else for alleged fraudulent transactions from his account; involvement of staff of all the concerned Banks; non-filling of any form for making such transactions and connivance of all the opposite parties with each other. The claim would even otherwise show that complicated questions of facts and law would arise which is not possible for this Commission to decide in its summary jurisdiction.
15. Our view is supported by a decision of Hon'ble National Consumer Disputes Redressal Commission, New Delhi in the case of Vishamber Sunderdas Badlani And ... vs Indian Bank And 3 Ors., I (2008) CPJ (NC), wherein, the Hon'ble National Commission referred to a decision of three-Judge Bench of the Supreme Court in the case of Synco Industries v. State Bank of Bikaner and Jaipur and Ors. I (2002) CPJ 16 (SC) : 2002 (1) SCALE, in which Supreme Court observed where complicated questions of law and facts are involved Forum under the Consumer Protection Act may not be a proper Forum to dispose of such a case in summary fashion. It was also observed that a Civil Court would be right place to decide the issue involved in that case and it went further to add that the complainant did not file the complaint before the Civil Court to start with because, before the Consumer Forum, any figure in damages can be claimed without having to pay Court-fees and that this, in that sense, was an abuse of the process of the Consumer Forum. It will, therefore, be appropriate for a complaint like this to be tried in a Civil Court after payment of appropriate Court-fees.
16. Further in Sagar Polymers Vs. State Bank of India, OP No.244 of 2002 decided by the Hon'ble National Commission on 5.12.2002, the account payee cheques issued by the complainant for payment of Excise Duty were forged and the amount was misappropriated by OP No. 2 employee of State Bank of India. On investigation, the police found that the words written on the cheques "Dena Bank" were replaced by the OP No. 2 by the words "self" or "Yash Enterprises" in around 26 cheques and forged signatures of P.G. Gandhi. The Hon'ble National Commission following observations in Synco (supra) dismissed the complaint and observed that the complainant should seek remedy in Civil Court.
17. Further in Lalco Enterprises Vs. Union Bank of India, III 2003 CPJ 42 (NC), also 25 cheques allegedly forged were enchased. The Hon'ble National Commission observed that it was difficult to go into question of genuine signatures of the withdrawal of each and every cheque and to get the report from Hand Writing Expert from either side.
18. Seeing various judgments of Hon'ble Supreme Court of India and the Hon'ble National Commission, it is evident that wherever not only the complicated questions of law but disputed questions of facts, relating to unauthorized/fraudulent misappropriation of funds and requirement of recording voluminous evidence etc. and relating to forgery and conspiracy involving various officials of the Bank(s) are involved, it would be desirable that the matter should not be dealt with by this Commission and could be relegated to the Civil Court. We feel that in the present state of law and the observations of the Hon'ble Supreme Court of India itself and the aforesaid circumstances, we cannot take any other view.
19. For the aforesaid reasons, we feel that this Commission should not entertain this complaint any more. The complaint is dismissed accordingly. Parties are left to bear their own costs. The complainants are at liberty to approach the Civil Court and they may be entitled to the benefit of the observations of the Supreme Court in Laxmi Engineering Works v. P.S.G. Industrial Institute II, (1995) CPJ 1 (SC) : 1995 3 SCC 583 for the purpose of exclusion of time spent before this Commission i.e. they can claim the benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, 1986 while computing the period of limitation prescribed for such a suit.
20. Certified Copies of this order be sent to the parties, free of charge.
21. The file be consigned to Record Room, after completion.
Pronounced 28.11.2019.
[RAJ SHEKHAR ATTRI] PRESIDENT (PADMA PANDEY) MEMBER (RAJESH K. ARYA) MEMBER Ad