- (1.) THIS order will govern disposal of appeal No. 464/10 as well as 476/10 which have arisen out of the same impugned order dated 30.06.10, passed by District Consumer Disputes Redressal Commission, Raipur (hereinafter called "District Forum" for short) in complaint case No. 74/05, whereby and wherein the appellant of appeal No. 464/10 which was OP before the District Forum has been directed to pay Rs. 1,24,972/ - along with interest @ 6% p. a. w. e. f. 01.06.06, and compensation for mental agony Rs. 5,000/ - as well as cost of litigation Rs. 1,000/ - to the complainant, who has preferred appeal No. 476/10. For the purpose of convenience parties will be referred as per their capacity in the complaint case before District Forum, hereinafter. Original copy of this order be retained in appeal No. 464/10 and its copy be placed in the record of appeal No. 476/10.
(2.) AS per the case of the complainant, he deposited Rs. 1,00,000/ - in his sole name under reinvestment plan of the OP under Special Term Deposit Receipt (hereinafter "STDR?) for a period of 36 months expiring on 01.01.03. On maturity an amount of Rs. 1,40,514/ - was payable under the said STDR. In the month of March 2000, in the capacity of proprietor of M/s. Panacea Investments he had applied for dealership of Inter Connected Stock Exchange of India Ltd. (hereinafter "ICSE?), to acquire trading rights in the ICSE and as per terms and conditions of ICSE membership, he was required to deposit Rs. 5,00,000/ - as Admission Fee, Rs. 25,000/ - as Annaul Subscription, Rs. 5,000/ - for SEBI Registration Fee, Rs. 8,925/ - as Insurance Premium, Rs. 5,000/ - towards initial contribution to settlement Guarantee Fund and Rs. 2,00,000/ - as Security Deposit (Base Minimum Capital i. e. BMC) Out of BMC of Rs. 2,00,000/ -, Rs. 1,00,000/ - was payable by Demand Draft in favour of ICSE and balance Rs. 1,00,000/ - by way of D/D or Fixed Deposit for a period of 2 years, or Bank Guarantee or Pledge of Securities. The STDR of Rs. 1,00,000/ -, which was available with the OP Bank was utilized for this purpose and the Bank was requested to mark lien over STDR No. 894860 in favour of ICSE. The Bank / OP marked lien over the bank deposits, the STDR, in favour of third party. It is averred in the complaint that as per Banking Law, marking of lien over a Bank Deposit in favour of a third party is not permissible and also it never creates any right or any charge over STDR. But the complainant fulfilled requirements and other conditions of ICSE and then was granted dealership by the ICSE, but the ICSE failed to keep its promises and after a long spell of correspondence, the complainant was forced to close down his terminal in July 2001 due to incurring heavy losses and loss of connectivity with the exchange. He also requested the ICSE to return all his deposits including the captioned STDR of Rs. 1,00,000/ -. He was apprehending misuse of lien by the ICSE, marked in the STDR, so he requested the OP to cancel lien over the STDR, by revoking the instructions of marking lien over the STDR by letter dated 17.07.02. It was also requested that no payment be made to the ICSE, but the OP Bank did not initiate any action to safeguard customer?s interest and the ICSE did not return the said STDR, despite written request by the complainant. Then a request was made to the OP for making payment of the STDR on maturity, on the basis of complainant?s discharge on the photocopy of original STDR. Complainant also requested to renew the principal amount for further period of 36 months and credit the interest in his current account with the OP. On 09.01.03, the OP renewed the principal amount for a further period of 36 months by issuing another STDR No. 655848 with its maturity date as 01.01.06. The net interest amount of Rs. 35,100/ - after deduction of TDS Rs. 5,414/ - was also credited to complainant?s account on the basis of his discharge on the back of photocopy of Original STDR. The renewed STDR was delivered to the complainant in a plastic cover. Later on when that cover was opened, at the end of the financial year, then it was found by the complainant that on the renewed STDR also, there was a mark of lien in favour of ICSE, though no such instruction was given by the complainant to the OP. Then objections were raised by the complainant before OP and the matter was taken to the Deputy General Manager of the Bank, but the mistake was not corrected and when pre -mature payment of STDR was demanded, then the OP Bank demanded production of original STDR No. 894860, which was in possession of the ICSE. Then again protest was made by the complainant before the OP and notice was also sent through Advocate, but the OP clearly refused to discharge the renewed STDR and illegally demanded refund of Rs. 40,514/ -. This action of the OP comes in the category of deficiency in service and refusal to make payment of the STDR of the complainant was also an action of deficiency in service. The OP disbursed the amount under old nonexistent STDR No. 894860 to the ICSE on 26.02.05, declaring the renewed STDR No. 655848 as null and void. So, complaint was filed before District Forum seeking direction to the OP to pay the amount of STDR No. 655848 along with interest @ 12% p. a. and also to pay Rs. 1,00,000/ - as compensation for the amount, which the complainant borrowed from the market because pre -mature payment was not allowed by the OP in spite of prayer. Further compensation of Rs. 25,000/ - was also sought under the head mental pain and agony.
(3.) THE OP in the written version refuted all the allegations leveled in the complaint against it and averred that lien in favour of third party ICSE was marked over STDR of the complainant on his own request, which was perfectly legal and as per rules of the Bank. It has also been averred that, when once lien was marked in favour of a third party then it cannot be revoked by the complainant without permission of that third party. The Bank also issued an undertaking to the third party ICSE in respect of lien and therefore consent of that third party was necessary for revoking that lien. As the complainant failed to obtain the original STDR from the ICSE, therefore the deposit was renewed for a further period of three years, on the request of the complainant along with mark of lien in favour of ICSE. There was already instruction of the complainant to that effect. It has also been averred that the ICSE demanded payment of that STDR along interest and the Bank was required to make payment in view of the undertaking given by it. The complainant was a retired Higher Officer of the Bank and was having influence with the Junior Officers of the Bank and was in habit of misusing such influences with the Officers. It has also been averred that marking of lien on STDR of Rs. 1,00,000/ - was for commercial purpose, as the complainant was having connectivity with the ICSE and SEBI. In view of this commercial nature of transaction, the consumer complaint is not maintainable. Marking lien over STDR was unconditional and binding upon the Bank as well as the complainant, in view of the interest credited by the complainant himself in favour of third party and was paid to that third party and in doing so the Bank has committed no deficiency in service. On the basis of these defences it was prayed that the complaint be dismissed. Learned District Forum, vide order dated 06.08.07, earlier dismissed the complaint on saying that complicated questions in respect of banking contract, bailment and stock exchange are involved in the matter, which needs detailed inquiry and trial and also opinion of an expert, which can only be done by a Civil Court and it is not possible for the District Forum to do this exercise in a summary proceeding by way of consumer complaint. It was also found that the ICSE, in whose favour the lien was created, has also not been made party, so the complainant was not entitled of getting any relief from the District Forum. This order was challenged by the complainant before this Commission by way of appeal No. 448/07, which was decided vide order dated 27.04.09, wherein it was found that the questions which are involved in this matter are not complicated and can be resolved by the District Forum. The controversy between the parties lies in a narrow compass as to whether the amount which was deposited by the complainant, had become payable to the complainant and whether in spite of the fact that it had become payable it has not been paid and if it is so then, it is definitely deficiency in service, but on the contrary if the amount was not payable to the complainant and therefore it was retained by the OP Bank, then it may not be deficiency in service. It has been directed by this Commission to the OP to produce original instructions of the complainant in respect of creating lien and also to adduce evidence to show that whether they sought any information from ICSE of fresh instructions for the OP before date of maturity of FDR. If no default was committed and if there was instruction to mark lien in the renewed FDR also, then the amount did not in fact became payable to the complainant and the complaint can be ordered to be dismissed. Thus, the District Forum was required to see whether any instruction was given by the complainant for marking lien for a particular period and when such instruction was given by the complainant for marking lien, then whether on maturity of the STDR any fresh instruction was given by the complainant for marking lien over it or whether original instruction was to be continued. It was also to be seen as to whether any default has been committed by the complainant, so that the security by way of STDR can be encashed by the ICSE.;