1.      This Revision Petition is filed under Section 58 (1)(b) of the Consumer Protection Act, 2019 (the “Act”) against the order dated 26.09.2022 of the State Consumer Disputes Redressal Commission, Maharashtra, CB at Aurangabad (“State Commission”) in FA No. 349 of 2018, wherein the State Commission allowed the Appeal by the OP Bank and set aside the District Consumer Disputes Redressal Forum, Jalna (“District Forum”) order dated 28.06.2018 in CC No. 128 of 2017.

2.      As per report of the Registry, there is 81 days delay in filing this Revision Petition. For reasons stated in IA No.3495 of 2023, the delay is condoned.

3.      For convenience, the parties in the present matter are referred as per the Complaint before District Forum.

4.      Brief facts of the case, as per the complainant, are that he is a resident of Jalna and proprietor of M/s Shrirang Gopikishan Agarwal, filed a complaint against the Opposite Party, a registered organization under the Multi-State Co-operative Act, with a branch office in Jalna. The complaint revolves around a Fixed Deposit (FD) of Rs. 3,46,419/- linked to a cash credit loan and the complainant had taken from the OP-Bank. As per the OP’s Bank rules, the FD was used as collateral for the loan, and the original term receipt was deposited with the bank. He repaid the loan, and on 07.04.2016, the OP provided confirmation of full payment and clearing the debt. After settling the loan, he requested for return of the FD amount, but the OP refused to respond or return the funds, despite the FDs having matured. In need of money for personal reasons, he warned the OP of legal action, but the bank denied release of the FD amount. As a result, he filed a complaint before District Forum seeking refund of Rs. 3,46,419/- as FD amount, interest as per the bank's rules, Rs. 30,000/- as compensation and Rs. 5,000/- as costs.

5.      The OP in its Reply filed before the District Forum admitted that the complainant had taken a cash credit loan but contended that the loan was not fully paid. According to the bank, Rs.3,39,778/- plus interest since 01.05.2013 was still pending. The bank further explained that one of its branch officer, Gopal Bajranglal Agarwal, committed financial embezzlement involving the complainant’s FD and other funds. The bank lodged a criminal complaint against the officer, and the District & Sessions Judge, Jalna, is currently handling the case. Due to this ongoing criminal matter, which includes the complainant's FD, the OP claimed it was unable to release the FD amount. The bank also argued that the complaint was based on false allegations and requested its dismissal with costs.

6.      The learned District Forum vide Order dated 28.06.2018, allowed the complaint with the observations and directed the OP as under:

ORDER

1. Allow the complaint of the applicant;
2. Non-applicant is directed to pay to the applicant the amount against Fixed Deposit Receipt No.878 within 30 days of the receipt of this decision from the date of realization along with interest @ 9% per annum;
3. Applicant is directed to give undertaking not to demand again the amount on receiving the Receipt No.878;
4. Non-applicant is directed to pay Rs.3000/- to the applicant as complaint expenditure.

                                         (Extracted from translated copy)

7.      Being aggrieved, the OP filed FA No349 of 2018 and the State Commission vide order dated 26.09.2022 allowed the appeal and set aside the District Forum order dated 28.06.2018 with observations: -

“11) From the respective submissions of the parties, the question before us is whether the complainant is entitled for refund of the amount of FDR, subject matter of the complaint and appeal. It appears that the opponent has not denied the deposition of the amount of FDR with them. Complainant has come with a case that he has obtained cash credit facility from the opponent Bank and at that time had deposited the particular amount of said FDR. He has repaid the cash credit facility loan and therefore he is entitled for the refund of the amount of FDR. However, the opponent has his defence that the complainant has obtained two types of loan from the opponent Bank. The first loan is cash credit facility loan and second is loan against the FDR. It is contended by the opponent that the opponent recovered the complainant's loan in cash credit loan by adopting the provisions of SARFAESI Act. It is contended by the opponent Bank that the second loan is raised by the complainant against his FDR amount and the complainant has signed the promissory notes with assurance of repayment. The opponent has also come with defence that the District Forum has unnecessarily gone for observing the signatures on the documents as invalid when it was not the case of complainant and also when there is no expert evidence for the same. We agree with the contention of opponent that it is not within the domain of District Forum to make observation on the signatures in the absence of expert evidence.

       In our opinion, if the he complainant has not obtained loan against his TDR, he would had asked the opponent Bank to consider that FDR for recovery against the loan in cash credit facility and Bank has also kept hen over the FDR for recovery. There is no document brought before us by the complainant to show that such request is ever made by him to the opponent at the time of actions against him under SARFAESI Act.

       The loan account against the FDR is also at page No. 64, 65 of the appeal compilation. The complainant is silent on this document and there is no clarification before us why he has not taken any action against the opponent Bank for creating/ maintaining the loan account when he has not obtained loan. In common parlance FDRs are issued to the parties and are in the possession of the parties. The contention of opponent is that the FDR of the complainant is with opponent for the security of particular loan against FDR/LAFDR loan is acceptable. It appears that the complainant has gone asking the Bank for refund of his amount in FDR and Bank has replied him that he has obtained loan against the FDR and criminal case is filed in the matter against the ex manager of the Bank wherein the complainant's FDR is also involved. It appears that the complainant has relied upon the allegations of the Bank against their accused ex-manager that he has fraudulently opened certain accounts and operated FDR accounts for withdrawal of certain amounts for his benefit and he is trying to take benefit of said allegations, and claiming that he has not obtained the loan against FDR and entitled for refund of the amount of FDR. It appears the complainant has his contention that when his loan account is operated by the accused manager of the opponent Bank and not by him and therefore he shall not be suffered for the act of the accused manager. It is alleged by complainant that the issue between the Bank and the employee keeping reliance on judgment of Hon'ble National Commission in R.P. No.763/2018 Punjab National Bank's case (Cited Supra). However, when the case is pending before the criminal court, in our opinion it is not just and proper to refund the amount of FDR only to the complainant, when there is also an issue of pending loan against the complainant.

       It is alleged by complainant that he has not raised any amount of loan from the FDR and the LAFDR account is bogus. However, It appears that the complainant has not gone for legal action against the Bank for maintaining the loan account when he has not raised the loan. Inaction on this point on the part of complainant is suspicious. In common parlance FDRs are issued to the parties and are in the possession of the parties. The contention of opponent that the FDR of the complainant is with opponent for the security of particular loan is acceptable.

   The opponent has also taken defence that the complainant has not obtained permission to proceed against the opponent Bank under Multi- State Cooperative Societies Act. There appears substance in the submission of opponent Bank. Therefore there reveals no deficiency on the part of opponent bank in not refunding the amount of FDR as there is a pending case of recovery of loan against FDR obtained by complainant.

12) The District Forum has allowed the complaint. The District Forum has relied upon the judgement of State Commission Delhi in appeal No.436/2001, wherein the state Commission has held that, in case the employee of the Bank has acted fraudulently and in that process has caused wrongful loss to the customer and wrongful gain to himself in such a situation the matter is between the Bank and concerned employee and the customer who has acted on such a representation cannot be made to suffer for the nucleus of the bank the appellant bank cannot escape liability. However as discussed earlier, there is issue of signing of promissory note for payment of loan as against FDR, there is also a loan account against the FDR. The complainant has not challenged that loan account anytime in the past. Also the complainant has not raised this issue while action against him was taken under the SARFAESI Act. Therefore, the allegation of the complainant that there is fraud played by the accused employee of the bank and for that the complainant shall not be penalized cannot be accepted.

  In view of the aforesaid discussion, there requires interference in the order of district forum by quashing and setting it aside.

ORDER

1. Appeal is allowed.

2. The judgment and order of District Forum in C.C.No.128/2017 dt. 28/06/2018 is quashed and set aside. Consequently, C.C. No. 128/2017 is dismissed.

3. No order as to cost.

4. Copy of the judgment be issued to both parties.”

8.      Being dissatisfied by the Impugned Order dated 26.09.2022 passed by the State Commission, the Complainant filed the instant Revision Petition No. 580 of 2023.

9.    In his arguments, the learned counsel for the Petitioner/ Complainant reiterated the factual background narrated in the complaint and grounds advanced in the Revision Petition. He contended that the complainant claimed that the loan was fully repaid, and the FDR should have been released. He disputed the existence of any valid loan against the FDR and contends that the bank’s internal issues should not affect his claim.  He argued in favour of the findings of the District Forum. He demanded the return of the FD along with interest and compensation as the State Commission erred in holding that the Account No.878 is not a loan account at all. He further argued that the State Commission erred in holding that the District Forum cannot verify the signatures without expert’s opinion. He sought to allow the Revision Petition, set aside the impugned order passed by the State Commission and affirmed the order of the District Forum.  He relied upon the following judgments:

A. Manorama Naik v. State of Odisha & Anr., Crl. Appl. No.423/2022, decided on 14.03.2022;

B. Punjab National Bank Vs. Devender Singh, RP No.763 of 2018, decided on 19.01.2021;

C. Punjab National Bank & Anr. vs. Hari Ram Yadav, R.P. No.1923 of 2015, decided on 12.08.2015.

10.    The learned ccounsel for Respondent /OP emphasized the factual background of the defence taken in the Reply filed before the District Forum. He argued in favour of the order passed by State Commission.  He contended that the complainant has repaid the cash credit facility loan and secured the release of the mortgaged property. However, he has also obtained another loan vide A/c No. 878 against the FDR No.186297 and deposited the said FDR against the loan amount.  He agreed for repayment of this loan by signing the agreement in Marathi and promissory note in English. The said documents are part of record before the State Commission. The complainant had not paid the loan against FDR and there is outstanding due of Rs.3,39,979/- against the complainant till the time of filing of the reply by the bank before the District Forum. He sought to dismiss the Revision Petition with costs.  He relied on The Chairman & MD, City Union Bank Ltd. & Anr. Vs. R. Chandramohan, CA No.7289 of 2009 decided on 27.03.2023.     

11.    I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for the parties available.

12.  The main issue to be determined revolves around the conflicting claims regarding the existence of an outstanding loan against the FDR. The complainant argues that no loan was taken, while the OP Bank claims that the loan remains unpaid. The State Commission, in siding with the OP, highlighted the complainant’s failure to provide requisite evidence to refute the bank’s claim. Additionally, the issue of fraud by a former bank employee adds a layer of complexity, particularly as it relates to the ownership and management of the FDR.

13.    The Hon’ble Supreme Court in the matter of The Chairman & Managing Director, City Union Bank Ltd. (Supra) wherein it has been held as under:

“10. The ratio of the aforestated decision has also been followed in case of Branch Manager, Indigo Airlines Kolkata (supra). In Oriental Insurance Co. Ltd. vs. Munimahesh Patel, 5 (2006) 7 SCC 655, this Court held that the proceedings before the Commission are essentially summary in nature and the issues which involve disputed factual questions should not be adjudicated by the Commission.

11. So far as the facts of the present case are concerned, even if the allegations made in the complaint are taken on their face value, then also it clearly emerges that there was no wilful fault, imperfection, shortcoming or inadequacy in the discharge of the duty on the part of the employees of the appellants’ bank, which could be termed as “deficiency in service” under Section 2(1)(g) of the said Act. As emerging from the record, some disputes were going on amongst the Directors of the Company and one of the Directors, if allegedly had committed fraud or cheating, the employees of the bank could not be held liable, if they had acted bona fide and followed the due procedure.

12. The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it.”

14.    In this revision petition, the key issue is whether the complainant can adequately challenge the bank’s claims of an outstanding loan against the Fixed Deposit Receipt (FDR)? Additionally, the question is whether the State Commission made any legal or factual errors in its judgment. It is undisputed that the proceedings before this commission are summary in nature. Further, as the OP Bank operates under the Multi-State Cooperative Societies Act, it is clear that any dispute arising in connection with the bank is outside the jurisdiction of Consumer Fora.

15.    Given this, the State Commission was correct in allowing the Appeal and dismissing the complaint. The complainant should have pursued the matter through the proper legal channels available under the Multi-State Cooperative Societies Act rather than through the consumer forum. Therefore, there is no legal or factual error in the State Commission's order dated 26.09.2022 in F.A. No. 349 of 2018, and no further interference is warranted in this case.

16.    With due consideration of the above deliberations, the Revision Petition No. 580 of 2023 is dismissed.

17.    Needless to say, the Complainant has liberty to approach appropriate legal fora to seek relief in respect of the grievances against the OP. He may also seek benefit of the provisions of Section 14 of the Limitation Act, 1963 in doing so with respect to the time spent in prosecuting this litigation.

18.    Keeping in view the facts and circumstances of the present case, there shall be no order as to costs.

19.    All pending Applications, if any, are also disposed of accordingly.