Before the District Consumer Disputes Redressal Forum, Kangra at Dharamshala, District Kangra (HP)



Consumer complaint No. 323/06

Date of presentation: 4.11.2006

Date of decision: 25.3.2009



Smt. Nirmal Thakur wife of Shri Jagdish Chand Sharma, resident of Bhatoli Phakorian, Tehsil Dehra, District Kangra (HP) at preset resident of Birta ( Ghurkari), Tehsil and District Kangra (HP)



Complainant Versus



1. State Bank of India, Branch Office Bhatoli HP-3166, Tehsil Dehra, District Kangra (HP) through its Branch Manager



2. Jagdish Chand Sharma son of Shri Parshotam Dass, resident of village and PO Bhatoli Phakorian, Tehsil Dehra, District Kangra (HP) presently posted as JC 220286 L Hony Capt. Jagdish Chand Sharma, 618 DSC Pl. 51 ASP AF C/O 99 APO

Opposite Party



Complaint under section 12 of the Consumer

Protection Act, 1986



PRESIDENT: A.S.JASWAL

MEMBERS: PARDEEP DOGRA AND PABNA SHARMA



For the complainant: Sh. Jatinder Sharma, Advocate.

For opposite party No.1: Sh. Vipul Bhardwaj, Advocate

For opposite party No.2: Sh. Mohinder Dhiman, Advocate



ORDER

A.S.JASWAL, PRESIDENT (ORAL)



In nut-shell, the case of the complainant is that she was married to opposite party No.2 on 2nd February 2001 and that after the marriage; she had sold her house of the first husband, alongwith the land, and also brought money to the tune of Rs.ten lacs, received from the ex-gratia and other deposits of her first husband, who had died in the year 1995. On the assurance of opposite party No.2, she invested Rs. 6 lacs belonging to her vide 12 fixed deposit receipts of Rs.50000/- each, with opposite party No.1 by way of joint account with opposite party No.2. The deposits were made in two stages in the joint account of which Rs.three lacs were deposited on 21.4.2001 vide six fixed deposit receipts. The date of maturity of the said fixed deposit receipts was 17.4.2004. The maturity value of each fixed deposit receipt was Rs.66267/-. It is asserted that an application was also made to opposite party not to allow the withdrawal of the said amount to any one, except the complainant, herself. It is asserted that the opposite party no.2 had played a fraud, as much as, he had deposited this whole amount of Rs. six lacs in his own account and then he got it shifted in joint account in the form of fixed deposit receipts, thereby showing that the whole amount belonged to him. It is asserted that the opposite party no.2 fraudulently in connivance with the officials of opposite party no.1, withdrew a sum of Rs.three lacs without her consent and knowledge. Upon this, when she made an application to the bank for transfer of some of the F.D.Rs to State Bank of India, Branch Yol Cantt and to withdraw the amount of two F.D.Rs, but the Bank Manager tampered with six F.D.Rs and wrote upon them “payable jointly and appended his signatures by over writings on the F.D.Rs bearing no.521326 to 52330 and 521332. The Bank Manager then returned the F.D.Rs to her on the plea that these F.D.Rs cannot be allowed to be withdrawn, since the opposite party No.2 has stopped their payment. The above said acts of the opposite parties amount to deficiency in service.

2. The opposite party no.1 has resisted and contested the claim of the complainant by asserting that there is no deficiency in service on its part. It is asserted that the opposite party No.2 had got released the payment of six F.D.Rs bearing No.521246 to 521251 on maturity, as the same were payable to opposite party No.2, being the former and the amount of F.D.Rs was payable to former or survivor. It is asserted that a sum of Rs.8,73,180/- on account of ex-gratia, G.P.F. and other pensionary benefits of the opposite party No.2 had been received by the bank. Out of the said amount, the opposite party No.2 had invested Rs.6,00,000/- by way of 12 fixed deposit receipts of Rs.50,000/- each. Out of the said 12 F.D.Rs, F.D.Rs bearing No. 521246 to 521251 of Rs.50,000/- each were made in the joint account of the opposite party no.2 and the complainant for a period of three years payable to the former or survivor. The remaining six F.D.Rs. bearing No. 521326 to 52330 and 521332 for Rs.50,000/- each were made in the joint account of the complainant and the opposite party No.2 for a period of three years. These F.D.Rs are lying with the answering opposite party, as their payment, which is to be paid jointly to the complainant and opposite party No.2, being joint account holders and that the opposite party No.2 being the joint account holder has been got stopped by opposite party No.2.. It has been denied that the Bank Manager had tampered with six F.D.Rs, as alleged by the complainant. The payment of six F.D.Rs. bearing no.521246 to 521251, has been correctly made to the opposite party No.2 under law and rules and thus, there is no deficiency in service on the part of answering opposite party.

3. The opposite party No.2 has also resisted and contested the claim of the complainant by asserting that the amount deposited under the said F.D.Rs., solely belonged to him and that he, being former, had legally and validly withdrew the amount of six F.D.Rs on maturity, as per the bank rules. It is asserted that he had invested in the F.D.Rs, his earned money received from pensionary benefits. He also got stopped the payment of six fixed deposit receipts by making a written request to opposite party No.1, as the complainant had not only deserted him for the last two years but also quite intermittently, used to assault his aged mother and son in his absence, living in his house situated in village Bhatoli Phakrian, Tehsil Dehra. Since, the complainant is not a consumer of answering opposite party, the present complaint against him, thus, is not maintainable.

4. This Forum on 8.8.2007 framed the following points for determination:-

1. Whether the opposite parties committed deficiency in service, as alleged?

2. Whether the complaint is not maintainable, as alleged? OPOPs

3. Relief

5. For the reasons to be recorded hereinafter while discussing points for determination, our findings on the aforesaid points are as under:-

Point no.1: No

Point No.2: No

Relief: The complaint is dismissed as per operative part of the order.



REASONS FOR FINDINGS

POINTS NO.1 & 2



6. Both these points are inter connected and inter linked, hence are taken up together for determination, in order to avoid repetition in discussion and for the sake of brevity. The learned counsel for the complainant has submitted that since the opposite party no.1 had released the payment of six F.D.Rs bearing No. 521246 to 521251 in favour of opposite party No.2, without getting received the original F.D.Rs, and also despite the fact that they were in the joint account of the complainant and opposite party No.2, it has committed deficiency in service. Learned counsel further submitted that when the complainant produced the original F.D.Rs bearing no. 521326 to 521330 and 521332, for getting released their payment after maturity, the payment was not released in her favour. This also goes to show that opposite party No.1 has committed deficiency in service.

7. On the other hand, learned counsel for the opposite partyNo.1 has urged that since, Six F.D.Rs bearing No. 521246 to 521251, the payment of which was released in favour of opposite party No.2, were in the joint account of opposite party No.2 and complainant, payable to the former or survivor, for this reason, their payment was released in favour of the opposite party No.2, for his being the former. Learned counsel further contended that since, the aforesaid six F.D.Rs had matured, and that there was no reason for the officials of the bank to have doubted the identity of opposite party No.2, for this reason, no illegality was committed for releasing the payment of the F.D.Rs in favour of opposite party No.2 from the record, maintained in the bank, in the absence of original F.D.Rs. Learned counsel further urged that the release of payment of the remaining F.D.Rs has not been made for the reason, that those are joint in the name of complainant and opposite party no.2 and that an application has been filed to the bank by opposite party no.2, not to release their payment in favour of the complainant. Thus, there has been no deficiency in service on the part of opposite party No.1, who has acted strictly in accordance with the bank rules.

8. The learned counsel appearing on behalf of opposite party No.2 has submitted that the amount which was invested in the F.D.Rs belonged, exclusively to opposite party no.2 because it pertained to his pensionary benefits. In support of such contention, the learned counsel has drawn our attention towards the relevant documents, which are on record. Learned counsel further urged that the complainant has failed to prove that the amount in question belonged to her and that the same had been derived by selling the property at Hamirpur and also from land situated at Dharamshala. Learned counsel further contended that opposite party No.1 has rightly stopped the payment of the remaining Six F.D.Rs, which are in the joint account of opposite party No.2 and complainant because the amount invested therein belongs to him(opposite party No.2). So far as the payment of other six F.D.Rs is concerned, the same were rightly made by opposite party No.1 because the opposite party No.2 was the former.

9. To appreciate the arguments of the learned counsel for the parties, the entire record available on the file was gone into in detail.

10. The contention of the complainant is to this effect that the amount which had been invested in the aforesaid 12 F.D.Rs belonged to her, but from the evidence on record, she has miserably failed to prove this fact. Annexure OP2-5 is the photo cop of sale deed dated 12.5.05, as per which, she (complainant) has sold land situated in Dharamshala forRs.2,10,000/-. The complainant has failed to bring on record any such document which goes to show that she had either sold or entered into an agreement to sell her house situated in Hamirpur to anyone for consideration. Since, the sale deed, Annexure OP2-5 pertains to the year 2005; it is of no help to the complainant in order to show that the amount which was invested in the F.D.Rs belonged to her. On the contrary, the opposite party no.2 has brought on record, bank certificate, Annexure R-1 and pension payment order, Annexure OP2-2 which substantiate his contention to have invested the amount in F.D.Rs, aforesaid, from his pensionary benefits. Moreover, the proof affidavit of Sh. Ram kumar Gupta, Branch Manager, SBI, which is Ex.OPW1, further proves this fact that pensionary benefits of opposite party No.2 were to the tune of Rs.873180/- and that the same had been received by opposite party No.1 in the account of opposite party no.2. This witness (Raman Gupta) has specifically deposed, on oath, that out of the said amount, opposite party No.2 had put Rs. Six lacs in fixed deposit receipts with opposite party No.1 vide 12 F.D.Rs. Out of said 12 F.D.Rs, six F.D.Rs bearing No. 521246 to 521251 of Rs.50,000/- each were made in the joint account of opposite party No.2 and the complainant for a period of three years payable to the Former or Survivor. The remaining F.D.Rs bearing No. 521326 to 521330 and 521332 for Rs.50,000/- each were made in the joint account of the complainant and opposite party No.2, for a period of three years. He further stated, on oath, that the payment of Six F.D.Rs bearing no. 521246 to 521251 was made to opposite party No.2 on maturity, since the same was payable to the former or survivor.

11. The objection, which has been raised by the complainant regarding release of the aforesaid F.D.Rs in favour of opposite party No.2, is to this effect that since the original F.D.Rs had not been produced by opposite party No.2, the amount therein could not have been released in his favour by the bank. It is true that when the payment of the aforesaid F.D.Rs was released in favour of opposite party No.2, the original F.D.Rs were not produced, but on that score, it cannot be said that the bank officials had acted in connivance with opposite party no.2 for releasing the amount under the said F.D.Rs. We may like to observe that since there was no dispute regarding the identity of opposite party No.2 with the bank officials, and also that Six F.D.Rs, which were joint in the name of opposite party no.2 and complainant, had matured, the bank officials did not commit any illegality while releasing their payment in favour of opposite party No.2 on the basis of their record, maintained in the bank, as the payment was made to the former i.e. opposite party No.2, who was alive at the relevant.

12. It is further to be noted that when the payment was released in favour of opposite party No.2, there was neither any stay order from civil court nor there was any application made by the complainant to the bank officials for not releasing the payment in favour of opposite party No.2. In these circumstances, no deficiency on the part of opposite party No.1 can be attributed.

13. In order to get released the payment of the remaining F.D.Rs bearing No. 521326 to 521330 and 521332, the complainant has approached the bank/opposite party No.1 by producing original F.D.Rs, which are in her possession. It is not a disputed fact that so far as these F.D.Rs are concerned, they are in the joint account of the complainant and opposite party No.2. In the proof affidavit, Ex.OPW1, of Sh.Ram Gupta, it has come that the payment of the aforesaid F.D.Rs has been got stopped by opposite party No.2 and that the same are still laying with opposite party No.1 for payment. In his affidavit, it has further come that the payment of those F.D.Rs would be made to the complainant and opposite party No.2 if they apply to opposite party No.1, jointly.

14. Undoubtedly, the complainant has sought to get released the payment of the remaining six F.D.Rs, by producing their original to opposite party No.1, but their payment has been got stopped by opposite party No.2, as is evident from the proof affidavit of Sh. Raman Gupta, Ex.OPW1. This clearly shows that there is a dispute between the parties regarding the claim of money involved therein. Whereas, the contention of the complainant is to this effect that the money involved therein belongs to her, the plea of opposite party No.2 is that the same was exclusively invested by him and that the same pertains to his pensionary benefits. In these circumstances, we are of the opinion that when there is a serious dispute between the parties regarding the claim of money invested therein, and further that the complainant and opposite party No.2 have not jointly applied for the withdrawal of the amount of remaining F.D.Rs, no deficiency on the part of opposite party No.1, can be attributed. We may observe that in case the complainant and opposite party No.2 fail to apply to opposite party no.1 for the withdrawal of the amount in F.D.Rs, jointly, in that event, the appropriate course available to them is to approach the civil Court for getting their claim decided, so far as the amount under the F.D.Rs bearing No. 521326 to 521330 and 521332, is concerned.

15. In view of the discussion made hereinabove, we hold that the complainant has failed to prove any deficiency in service on the part of opposite parties. Hence, point no.1 is answered in negative and point No.2 in negative.

16. No other point argued or urged before us.

Relief

17. In view of our findings on points no.1 and 2 above, the complaint is dismissed leaving the parties to bear their own costs. The copy of this order be sent to the parties free of costs and the file after due completion be consigned to the record-room.