S.H.KAPADIA, J. -
(2.)THIS civil appeal, by grant of special leave, is filed by Standard Chartered Bank Ltd. against order dated 14.7.2004 passed by National Consumer Disputes Redressal Commission (for short 'National Commission') dismissing the bank's appeal and confirming the decree passed by the State Consumer Disputes Redressal Commission, New Delhi (for short 'State Commission') under Consumer Protection Act, 1986 (for short'the Act').
Respondent herein was a non-resident Indian employed as a professor of Medical Physiology in the University of Libya from 1975 to 1980. Thereafter, he stayed in Libya till 1992. On 17.8.79 when the respondent was in Libya he had placed with the bank US$5000 in FCNR (Foreign Currency Non-Resident) account for 63 months at 9% p.a. vide LF No.MR-24, DR No.316/79/39. The deposit was made by the draft drawn on New York Bank. The deposit was to mature on 17.11.84. The appellant confirmed the deposit. The deposit receipt is annexed to the paper book. In 1984, Reserve Bank of India (RBI) allowed the banks to keep FCNR for six years. Interest on such de- posits was increased from 9% to 13% p.a. According to the respondent, in June 1984, intimation was given to the appellant to reinvest the entire amount in FCNR account on maturity for a further period of six years at 13% p.a. In 1986, the respondent visited India. He attended the branch office of the bank. The respondent claims that he was assured by the bank that everything was in order and that US$ 7939.56 were lying in the FCNR account which amount stood reinvested at 13% p.a. for six years maturing on 17.11.90. Respondent alleged that in September 1990 he had requested the bank to reinvest the entire amount in his FCNR account for a further period of three years. This was to be done on maturity of his deposit on 17.11.90. In January 1992, as stated above, the respondent returned to India. He enquired about the status of his deposits. He did not get the response. He made a complaint in writing on 5.1.92 and on 14.1.92. On 7.9.92, he received a letter from the bank stating that no outstanding amount was there in his name in the FCNR account. By letter dated 15.10.92, the appellant stated that from their records it is seen that the said deposit was prematurely withdrawn on 22.11.79. Thereafter, correspondence ensued. Respondent herein denied the fact of premature withdrawal of the deposit. He complained to RBI. On 19.4.93 the bank stated that the deposit was encashed prematurely not on 22.11.79 but on 23.11.79. A copy of the sale/purchase register was also enclosed by the bank to show that the deposits stood withdrawn on 23.11.79. Ultimately, on 28.9.94 the respondent herein preferred a complaint under Section 2(1 )(g) and Section 2(1 )(o) of the Act before the State Commission.
In the said complaint respondent alleged that he could not have withdrawn the amount on 23.11.79 as he was not in India. He relied upon his passport to show that he was not in India. He further alleged that a copy of the original FCNR was put in the safe deposit vault. In this connection, he relied upon the said receipt which states that the deposit receipt memo is retained by the bank in safe custody. Respondent stated, on the basis of the above facts, that the amount has been withdrawn by somebody in connivance with the bank's officers. In the circumstances, respondent herein claimed that he was entitled to the decree in following terms : "
A total of Rs.7,12,337.99 at present date is due from the opposite party till 17.11.93. Thereafter, interest @ 18% per annum on the aforesaid amount which comes to approx. Rs.1,28,220.83 (Rupees one lakh twenty eight thousand two hundred twenty and paise eighty-three only)."
(3.)BY written statement, the appellant conceded that the respondent had deposited on 17.8.79 a sum of US$ 5000 in FCNR account for 63 months maturing on 17.11.84 at 9% p.a. However, the appellant contended that prior to the date of maturity the deposit was prematurely withdrawn on 23.11.79. In this connection, reliance was placed on sale/purchase register. Therefore, according to the bank, there was no question of reinvesting of the aforestated amount from time to time, as-alleged by the respondent. The appellant also denied that the deposit receipt was kept in safe custody. In this connection, the appellant submitted that an inquiry into premature withdrawal and the demand for recovery of money after 12 years was beyond time. The bank, however, agreed that in 1984 RBI allowed it to keep FCNR for six years at the rate of 13% p.a. However, the appellant contended that since the amount was prematurely withdrawn, there was no question of reinvesting it for six years at the rate of 13% p.a. The bank denied all factual allegations made by the respondent with regard to reinvestment. BY the objections, apart from the question of limitation, the appellant stated that the respondent was not a consumer as defined under Section 2(1 )(d) of the said 1986 Act. The appellant also contended that under RBI rules, the bank was not bound to retain the records after eight years and, therefore, the matter cannot be decided on presumptions; that the burden was on the respondent to prove the alleged facts regarding reinvestment. BY the written statement, the appellant denied its liability 'to pay a sum of Rs.7,12,337.99 including interest till 17.11.93 and further interest at 18% p.a. on the said amount amounting to Rs. 1,28,220.83.
By order dated 28.4.97, the State Commission came to the conclusion that the respondent had deposited US$ 5000 on 17.8.79 carrying 9% interest and maturing on 17.11.84; that the receipt was retained in safe custody; that there was no record to show that the said amount was prematurely withdrawn; that there was no evidence regarding destruction of the records on completion of eight years and since the initial deposit of US$ 5000 on 17.8.79 stood established the decree, as prayed for, was granted by the State Commission. The Commission further found that there was no evidence on record to show that the respondent had given written instructions to the bank for premature withdrawal; that there was no endorsement on the receipt showing payment in lieu of discharge and, therefore, the bank was not entitled to place reliance only on entry in the sale/purchase register dated 23.11.79. The State Commission further found that on 23.11.79 respondent was not in India. In this connection, reliance was placed on the endorsement in his passport. Accordingly, the State Commission came to the conclusion that the deposit was reviewed from time to time and, therefore, the complaint was within limitation. Accordingly, the decree in the aforestated terms was passed by the State Commission.