Harmeet Singh son of Sh. Ajmer Singh R/o 1690, Khalsa College Road, Ropar, District Ropar at present, Ludhiana.



(Complainant) Versus



1. The Wing Web Tech. Pvt. Ltd., Pakhowal Road, Shanti Nagar, Ludhiana.



2. Satnam Singh son of Kartar Singh r/o 12A/275, Urban Estate Colony, Nirmal Nagar, Dugri, Ludhiana.



3- Industrial Development Bank of India through its Manager, The Mall, Ludhiana.



4- Mr. Arun Khurana, Branch Manager, IDBI, The Mall, Ludhiana.



5- Mr. Yogesh Madan, Team Leader, Industrial Dev. Bank of India, The Mall, Ludhiana.

(Opposite Parties)


O R D E R

RAJESH KUMAR, MEMBER:

1. Sh. Harmeet Singh, above noted complainant, has filed the present complaint under section 12 of the Consumer Protection Act, 1986, against The Wing Web Tech Pvt. Ltd. & others through attorney Sh. Ajmer Singh .

2. Briefly stated, facts of the present complaint are that opposite party no.1 doing his network marketing promised millions toits/associated members having system started functioning in May 2002. There was an understanding induced by OP No.2 being MD of OP No.1 to become member by depositing Rs.4100/-. A person introducing three members was entitled to share of Rs.500/- each member and to an entry into Executive Pool Category having five stages under which one could earn upto Rs.4,38,000/-.

Then there was a magic pool category and silver pool category, designed as incentive for getting more members schedule illustrated by colourful leaflets circulated by the company, more than 14,000/- persons listed as members with the said company. Opposite party promised free on line education, discount on offline education, literature free of cost on spoken English, general knowledge and medical checkup free of cost once a year with 50 to 80-% discount on major medical checkup/tests besides an accidental insurance. Opposite party no.2 played active role in inducing public men/complainant to become member of the said company and promised to fulfill those promises.

Opposite party-Company had made provision in broachers of the company providing if a sum of Rs.4,96,000/- from own source is deposited, then the concerned person would be given permanently royality income from 25,000/- to Rs.30,000/- per month. The complainant invested Rs.4,96,000/- on 10.9.02 vide cheque no.230924 against account no.540 of his father Sh. Ajmer Singh with Punjab & Sind Bank, Extension Counter at Ropar, which was credited to account of Op No.1. Opposite party no.2 stood guarantor on behalf of the OP-Company to fulfill the promises and promised the bank that the FDR will be in joint name of members as well as Director of Company in order to ensure & satisfying investment of the said amount, payable jointly and to give incentive to its members from time to time.

The complainant received only Rs.28,247/- from OP Company. The account was opened with IDBI jointly in the name of complainant and Op No.1. The debt card was issued to opposite party no.2 as 1st account holder of the said account no.043106000014483 (INR) against deposit type RET-FMD-CLNT QTLY-COMP Customer ID No.1305430 dated 14.5.2002. The complainant had given instructions to opposite party no.3 that operation of the said account would be payable as jointly but OP No.3 on behalf of OP No.1 in order to play mischief with complainant had got issued instructions against the said deposit payment either or survivor to operate the account which were matured undertaking arrived in between complainant and OP Company through OP No.2.

The original FDR against said deposit of Rs.2,00,000/- was made in joint names of Op no.2 and complainants and was delivered to complainant. It is averred that the complainant had come to know later on in Feb.2003 that amount of Rs.1,71,000/-stood withdrawn by OP No.2 through ATM with his active connivance on behalf OP No.1 company with the concerned official Sh. Arun Khurana Branch Manager of OP No.3 and against Yogesh Maadan team leader of the concerned bank-OP 3. There was no understanding at the time of making deposit of Rs.2,00,000/- with IDBI Bank to issue ATM card in the name of one of joint holder. OP No.1 had mis used the documents on which signatures of the complainant were obtained in a routine matter at the time of getting deposit of the said amount.


Complainant moved complaint to banking Ombudsman, which was not entertained in accordance with Rules and Regulations of Bank laws and was decided in favour of Ops, which order is having no effect against rights of the complainant to sue opposite parties in the present complaint. OP no.1 & 3 in reply admitted that amount of FDR was to be withdrawn jointly by complainant and Satnam Singh but not by single holder. An FIR has also been registered Acts of the opposite parties have caused mental tension, humiliation, financial loss and harassment to the complainant for which he is entitled to compensation. In such circumstances, it has been prayed that the opposite parties be directed to pay an amount of Rs.1,71,000/- along with interest from December 2002 onwards and Rs.2,00,000/- as damages for resorting to deficiency in service.

3. Opposite parties no.1 & 2 in reply took the preliminary objections that the complainant is not a consumer; he has concealed the material facts from this Forum and is not entitled to any relief and that the complainant is estopped by his act and conduct from filing the present complaint. Admitted that OP No.1 company is engaged in the sale of medical packages and it started functioning in May, 2002 and a person purchasing medical package of Rs.4100/- was entitled to get free on line education in computer, discount on off line education, literature on computer, medical check up free of cost, 50 to 80% discount on medical check up /tests accidental insurance of Rs.1,00,000/- and with incentive plan given from time to time.

Averred that any associate of company could promote the sale of package of the company at its own cost and get incentives according to that plan. Proper TDS was deducted before giving the incentives to the associates in the form of cheques and due TDS was deposited to the Govt. Denied that complainant ever deposited any money with the company. Pleaded that whatever money was deposited in the form of cheque was in order to remove his legal liabilities for the purchase of medical packages. There was only one medical package essential for one associate, whereas the complainant and his family members made a bulk purchase in order to sell them at premium in the market for earning huge profits, hence, they are not consumers. Rather, they were agents of the company for promotion of sale for their mutual benefits and incentives.

It is been specifically denied that any provision in the broachers were made that if a sum of Rs.4,96,000/- was given by any associate or agent, then he would be given a permanent royalty of Rs.25,000/- to Rs.30,000/- per month. However, the broachers showed that a permanent royalty of 1% , 2% and 3% at different levels of the total sale of the company every month will be distributed as permanent royal between all the achievers of the same level Averred that opposite party no.2 got a sum of Rs.2,00,000/- from OPNo.1 in his impressed account to meet out the day to day expenses of the company. The complainant and his father were promoting the sale of the company in and around Rup Nagar and get incentives.

The complainant suggested opposite party no.2 to get flexi account opened in the bank so that the common day to day expenses of the company could be met with at their end in Rup Nagar. On understanding that Ajmer Singh (father of the complainant being retired bank officer and in good faith, opposite party no.2 got flexi account opened in joint operation with the complainant with the norms of either or survivor at the suggestion of the complainant and his father. The original FDR no.043106000014483 was sent by IDBI Bank to OpNo.2 being the principal applicant of FDR that the complainant and his father Ajmer Singh approached OP-No.2 in Ludhiana office and demanded Rs.28,247/- for the expenses incurred for promoting sale and believing that OpNo.2 gave a cheque for the same amount. Having intention and motive to cheat, they gave a phone call to OP No.2 demanding original FDR on the ground that said cheque would be encashed when original FDR will be shown to the bank authorities.

Having faith, they handed over the original FDR to them at Ludhiana but till date, neither the bills of the said amount of rs.28,247/- have been given by the complainant and his father nor the original FDR has been returned by them regarding which a complaint is pending at Ludhiana. The complainant filed a complaint against the concerned bank IDBI, Ludhiana at Lok Pal, Chandigarh which was dismissed. It is denied that amount of Rs.1,71,000/- was withdrawn from the bank by OP No.2 in connivance with bank authorities. Pleaded that the amount of Rs.1,68,000/- which was originally of OP-No. (as the amount of Rs.2,00,000/- for the FDR was transferred from personal account of OP No.2 through cheque) was withdrawn by OPNo.2 through ATM which was legally issued to him at the address of OP No.1.

There was no understanding of the complainant that the operation was either or survivor. The cheque of Rs.28,247/- which was encashed by the complainant was bearing a cutting which was verified by the complainant alone. This shows that he knew about the either or survivor mode and misled the Forum. Complaint filed before banking Ombudsman was decided in favour of respondents. Rest all the assertions made in the complaint has been denied. In view of the facts, detailed above, it has been prayed that there is no deficiency in service and the complaint be dismissed with costs.

4. OP No.3-IDBI Bank in written reply took objections that complaint is barred u/s 26 of the Consumer Protection Act; it has not been instituted against proper persons since answering opposite party is a separate identity and as such complaint not maintainable, complaint is bad for misjoinder of parties since OP No.4 & 5 are neither officers nor proper parties to the present complaint. Sh.Arun Khurana OP No.4 and Yogesh Madan were working as officer of the Bank on its behalf and not in their individual capacity and as such complaint is liable to be dismissed on this score. Complainant has not given any address where he resides, he has filed the complaint himself and not through attorney and as such the complaint is not maintainable. No legal and valid power of attorney has been executed by the complainant in favour of Sh. Ajmer Singh dated 24.9.03 and even Sh. Ajmer Singh is not competent to file the complaint by virtue of alleged attorney.

This Forum has no territorial jurisdiction to try and decide the complaint as complainant and his attorney are residing at Ropar. Complaint is barred by principal of resjudicata since firstly the complainant along with Sh. Satnam Singh had jointly filed the complaint with Senior Supdt. of Police, Ludhiana as to the person who had withdrawn the amount of the FDR through ATM, which was later on not pressed since Sh. Satnam Singh vide his letter dated 10,.4.2003 had given in writing to the bank requesting to open a saving account with Sweep-in-facility in the month of Sept. 2002 and the bank has given welcome kit at the same time which were containing 5 cheques leaves and ATM card bearing no.0043013014301. The complainant vide letter dated 10.4.03 stated that in Oct. 2002, they had withdrawn a sum of Rs.28,247/- vide cheque no.57776 by joint signatures and that for removing the existing loan liability of Rs.2,00,000/- taken at the time of opening the account, an amount of Rs.1,68,000/- was withdrawn by him and deposited with Wing Web Tech Pvt. Ltd. and balance remained with the bank.

Complaint filed before Banking Ombudsman was dismissed vide order dated 4.8.03 finding that there is no deficiency in service against the officials of the bank and bank acted according to mandate given by the complainant. As per written mandate of the complainant and OpNo.2, the account was opened as either or survivor i.e. E or S. the first depositor was Sh. Satnam Singh to whom ATM was issued. FDR was linked to Saving account with Sweep-in-facility in accordance with the instructions in the account opening form signed by both the depositors. First withdrawal of Rs.28,247/- was under joint signatures of both the depositors and later on an amount of Rs.1,68,000/- was withdrawn by the first account holder namely Sh. Satnam Singh through ATM. There is no deficiency in service or negligence on the part of answering opposite party.

Complainant has not come to the Forum with clean hands as he has concealed the material facts and is not entitled to any relief. No consumer dispute is involved in the present complaint. Complicated question of law and facts are involved which require elaborate evidence both oral and documents and can not be decided by the Fora in a summary manner. Only civil court and Criminal court of competent jurisdiction can try and decide the same. FIR has already been registered against OP No.1 & 2 and as such the complaint is liable to be dismissed being not maintainable. Rest all the assertions made by the complainant have been denied. In view of the facts, detailed above, it has been averred that there is no deficiency in service on their part and the complaint be dismissed with costs.

5. Parties led their evidence by way of affidavits and documents in support of their respective contentions.

6. We have heard the arguments addressed by the ld. counsel for the parties, gone through file, scanned the documents and other material on record.

7. Ld. counsel for the complainant argued that he invested money from his own source Rs.4,96,000/- on 10.9.2002 vide cheque no. 230924 against account no.540 of his father Sh. Ajmer Singh lying with Punjab & Sind Bank, Extension Counter at Ropar and the said amount was deposited in the account of opposite party no.1-Company on 10.9.2002. FDR against the said deposit of Rs.2,00,000/- was made in joint name of opposite party no.2 and the complainant and was delivered to the complainant which is still in his possession.

Opposite party no.2-Director of the Company had promised the bank to make FDR in the joint name of the complainant and Op No.2 himself in order to ensure the satisfying of investment of the said amount which can be payable jointly. zIt has been further argued that the complainant received only Rs.28,247/- from the OP company as invested against the said deposit with the Company. He opened account with IDBI bank jointly in the name of the complainant as well as Sh. Satnam Singh Director of the Company and debt card was issued to opposite party no.2 and the first account holder of the said account no. 043106000014483 (INR) against deposit type RET-FMD-CLNT –QTLY-COMP Customer ID no.1305430 dated 14.5.2002. It has further been argued that he gave instructions to opposite party no.3-Industrial Development Bank of India that operation of the said account would be payable as jointly.

But opposite party no.3 on behalf of opposite party no.1 in order to play mischief with the complainant had got issued instructions against the said deposit payment either or survivor to operate the account which was against the matured undertaking arrived in between complainant and opposite party no.1-Company through opposite party no.2. later on, he came to know that in the month of Feb.2003, an amount of Rs.1,71,000/- had been withdrawn by opposite party no.2 with his active connivance on behalf of OP No.1-Company with the concerned official Mr. Arun Khurana branch manager of Op No.3. Opposite party no.2 on behalf of opposite party no.1 had misused documents on which signatures were obtained of the complainant in routine matter at the time of getting the deposit in the bank.

He made complaint to the Banking Ombudsman, which was not entertained in accordance with rules and regulations of the bank laws and decided in favour of opposite parties as per law (Ex.R.16) Complainant was directed in terms of clause 19 (1) (b) of the banking Ombudsman Scheme 2002. Complainant argued that he is entitled to receive the amount of Rs.1,71,000/- which was withdrawn in illegal manner in the month of December 2002 against vested interest of the complainant and the amount which was drawn by opposite party no.2 in illegal way in connivance with others. The said amount has been misappropriated by the opposite party no.2 and opposite party no.1 without written consent of the complainant which is illegal and not genuine.

Complainant further argued that FDR which was in the joint name of the complainant and opposite party no.2 against the joint account no. 043106000014483 (INR) and its maturity date was 15.3.2004 (Ex.R7) was payable to the tune of Rs. 2,23,627/- and the amount of Rs. 28,247/- vide cheque no.057776 dated 10.10.2002 stood paid to the complainant against the said F.D.R. and rest of the amount of Rs.1,71,000/- was withdrawn by opposite party no.2 through ATM and this ATM was issued in the name of opposite party no.2 without written consent of the complainant. Complainant argued that he is entitled to get principle amount of Rs.1,71,000/- along with 12% interest per annum because this amount has been withdrawn illegal from the bank of the opposite party no.2 without his consent.

8. Ld. counsel for opposite party argued that it is wrong t say that if a person will deposit Rs.4,96,0000/- then he will be entitled to get permanent royalty of Rs.25,000/- to Rs.30,000/- per month and there was no such voucher ever published by the Company bearing above stated statement and these were not included in the norms of the Company. Opposite party argued that complainant suggested respondent no.2 to get flexi account opened in the bank so that day to day expenses of the company can be met with at their end.

On understanding that Sh. Ajmer Singh (father of the complainant being retired bank officer) and in good faith, opposite party no.2 got flexi account opened in joint operation with the complainant with the norms of either or survivor at the submission/representation of the complainant and his father. Opposite party further argued that original FDR no.043106000014483 was sent by IDBI bank to opposite party no.2 being the principal applicant of the FDR. Complainant and his father Sh. Ajmer Singh approached opposite party no.2 in Ludhiana office and demanded Rs. 28,.247/- as expenses incurred by the complainant on behalf of the company for promoting sale in Rup Nagar and believing statement to be true, opposite party no.2 gave a cheque of same amount under his signatures.

Opposite party further argued that the complainant and his father demanded the original FDR by telephone calls from Rup Nagar that the said cheque would be encashed when the original FDR would be shown to the bank authority. Opposite party argued that having faith upon the complainant and his father being promoter of the sale f the Company and retired bank officer, handed over original FDR to them at Ludhiana and till date neither the bills for the said amount of Rs. 28,247/- have been given by the complainant and his father nor the original FDR has been returned by them. Opposite party further argued that the complaint filed against the concerned bank IDBI, Ludhiana with Lok Pal, at Chandigarh, in which he stated that mode of operation was joint and not either or survivor. Therefore, his complaint was dismissed in favour of the bank by the Hon’ble Lok Pal, Chandigarh.

Opposite party argued that originally a sum of Rs.1,68,000/- was withdrawn by the opposite party no.2 and not Rs.1,17,000/- through ATM, which was legally issued to him at the address of opposite party no.1 by the bank as it is always issued in the Flexi account. Opposite party further argued that it is denied that there was not understanding of the complainant that the operation of the account was either or survivor. Opposite party argued that the cheque of Rs.28,247/- which was encashed by the complainant was bearing cutting which was verified by the complainant, which further shows that he knew about either or survivor mode.

Therefore, it means that he is mis representing the Forum. Opposite party further argued that his complaint was rejected by the banking Ombudsman by taking various factors into consideration that the bank seems to have acted according to mandate entered by the complainant and no deficiency can be attributed to the bank. Hence, his complaint was rejected on 4.8.2003. (Ex.R16). Opposite party argued that the FDR was made in the name of opposite party no.2 as first account holder and the complainant, payable either or survivor as per written mandate given to the bank by the opening form (Ex.R1 and R2). ATM was also issued with the consent of the complainant and an amount of Rs.1,68,000/- was withdrawn through ATM and not Rs.1,71,000/- as alleged by the complainant.

Opposite party also argued that vide letter dated 10.4.2003 complainant admitted that account was opened with sweep-in-facility on 11.9.2002 and prepared a FDR of Rs.2,00,0000/- and with zero balance saving account. Further argued that an amount of Rs.28,247/- was withdrawn by the complainant vide cheque no.057776 by joint signatures. An amount of Rs.1,68,000/- has been withdrawn by OP-2 and deposited with Wing Web Tech and remaining balance is still with the bank.

9. From the above facts and figures, it is quite clear that joint account was opened as per Ex.R.1 and R2 and account was opened as either or survivor and first account holder was Sh. Satnam Singh. It is also to mention here that ATM card was issued to first account holder Sh. Satnam Singh and in the SB account FDR was linked with the sweep-in-facility in accordance with instructions in the account opening form signed by both the parties (Ex.R.1 & R2) and amount was withdrawn by Sh. Satnam Singh-OpNo.2, the first account holder through ATM.

It is also to mention here that letter dated 10.4.2003 was also written and stated that joint account was opened and withdrawn of Rs.28,247/- was under the joint signatures of both the depositors vide cheque no. 057776 dated 10.10.2002 (Ex.R8). It is also a matter of great concern that in his complaint, complainant has mentioned that opposite party has obtained the signatures and he has signed the papers in routine matter. This is not acceptable as he is an educated person. It is also to mention here that it is not believable that he was not known about the banking term either or survivor.

10. Therefore, the Fora reaches at the conclusion that while going through different facts and discussions, the bank has acted according to the mandate given by the complainant as they have acted as per account opening forms which is signed by both the parties. Therefore, there is no deficiency on the part of the bank and the amount which has been withdrawn by Sh. Satnam Singh OP-2 through ATM Rs.1,68,000/- is in accordance with mandate given by the complainant in the account opening form. Therefore, we find no merit in the complaint. Hence, the same is dismissed leaving the parties to bear their own costs.