ORDER Per – Hon’ble Mr. Justice R. C. Chavan, President This appeal filed by the Appellants/original Complainants (hereinafter referred to as ‘the Complainants’ for the sake of brevity) is directed against an order dated 03/05/2014 passed by District Consumer Disputes Redressal Forum, South Mumbai dismissing Consumer Complaint No.311 of 2011 and directing the Complainants to pay to each of the Respondents/original Opponents (hereinafter referred to as ‘the Opponents’ for the sake of brevity) costs quantified at Rs.3,000/-. [2] Facts, which are material for deciding this appeal and about which there cannot be any dispute are as under:- Complainants are the members of the Opponent No.2/Society. There was some dispute between the Society and the Complainants. A Special Recovery Officer attached to Mumbai District Cooperative Housing Federation, by an order dated 11/07/2011 directed the Opponent No.1/Bank to attach the accounts of the Complainants for recovery of an amount of Rs.7,70,103/- and to remit it to the Society. Order further stipulated that failure or reluctance on the part of the Branch Manager to comply with the order will result in legal action under the Maharashtra Cooperative Societies Act, 1960. [3] Complainants had an account with the Opponent No.1/Bank. Bank received orders from Special Recovery Officer and issued pay order in sum of Rs.3,44,114/- to the Opponent No.2/Society, as directed by recovery officer. Opponent No.1/Bank did not inform the Complainants before debiting the account of the Complainants and remitting the amount to the Opponent No.2/Society. Complainants, therefore, first issued a notice and then, followed it up by filing a consumer complaint. [4] Incidentally, recovery officer had issued a similar order to the State Bank of India, Worli Sea Face Branch as well, for recovery of Rs.3,29,714/- from the account of the Complainants. On receipt of this order, State Bank of India wrote to the Complainants on 12/07/2011 informing the Complainants that upon receipt of order of the recovery officer, they had frozen an amount of Rs.3,29,714/- from the account of the Complainants and would be remitting the fund after getting clearance from their law officer. Complainants hoped that the Opponent No.1/Bank also should have followed similar course rather than directly debiting the amount and remitting it to the Opponent No.2/Society. [5] Consumer complaint was contested by both the Opponents by filing their respective written versions before the District Forum. [6] After considering rival contentions, the District Forum found that there was no deficiency in service on the part of the Opponents, who had obeyed directions issued by a lawful authority and, therefore, found that the complaint was ‘vexatious’ in nature and as such, complaint was dismissed upon saddling the Complainants with costs. Aggrieved thereby, the Complainants are before us. [7] We have heard learned Adv. Rajiv Chavan instructed by Adv. Ashutosh Madhukar Marathe on behalf of the Appellants/Complainants, learned Adv. Ashwin Hawelikar on behalf of Respondent/Opponent No.1 – Bank and Mr. Sanjay Vakharia, Secretary on behalf of Respondent/Opponent No.2 – Society. With the help of parties present before us, we have also carefully perused the material placed on record. [8] It cannot be disputed that a recovery certificate was issued against the Complainants, which required the Opponent No.1/Bank to remit certain amount to the Opponent No.2/Society. It cannot also be disputed that similar order was passed by recovery officer in respect of account of the Complainants with the State Bank of India. While the Opponent No.1/Bank straightway debited the account of the Complainants and remitted the amounts in compliance with the orders received, State Bank of India froze the amount in the account of the Complainants, informed the Complainants and possibly thereafter took further steps. Complainants claim that the Opponent No.1/Bank was obliged to take similar course as was taken by State Bank of India and, therefore, find that the Opponent No.1/Bank was deficient in service. [9] We had asked learned counsel for the Complainants if there are any instructions from Reserve Bank of India or any other competent authority, which would require the Opponent No.1/Bank to first inform the account-holder of receipt of an attachment order of its intention to comply with the said order. Learned counsel for the Appellants sought to rely on Code of Bank’s Commitment to Customers issued in the month of August-2009 by Banking Codes & Standards Board of India. The Code was meant to provide protection to the customers and to explain how banks are expected to deal with the customers in their day-to-day operations. Learned counsel for the Complainants tried to draw our attention to Key Commitments to act fairly and reasonably. Commitment sought to be invoked was to ensure that the bank’s dealing with the customers rest on ethical principles of integrity and transparency. [10] Clause No.2.1.5 of the Code assured the customers that the personal information would be kept private and confidential. There is lengthy Clause No.5 on privacy and confidentiality. As far as collection of dues is concerned, there is Clause No.6 of the Code, which learned counsel for the Complainants sought to invoke. In our view, this refers to dues recoverable by the bank from its customers. This does not refer to recoveries ordered by statutory authorities. Therefore, sub-clause (f), requiring the bank to initiate recovery proceedings would not help the Complainants in the case at hand. Requirement under sub-clause (d) to give sufficient notice for payment of dues also pertains to recovering the dues of the bank. Therefore, there is nothing in the Code to require the Opponent No.1/Bank to inform the Complainants before actually complying with the order received from Special Recovery Officer. [11] It must be said to the credit of learned counsel for the Complainants that he left no stone unturned to canvass the cause of his clients and sought to draw our attention to two decisions. In the case of Koshi Punjabi Vs. Bank of Baroda & Anr. ~ ILR-(2008)-1-Del.-757, Delhi High Court was considering the question of reversal of debit of Rs.17,110/- made by the Respondent Bank therein without any authority from the account-holder. Account-holder was herself an employee of the said Bank. She took voluntary retirement and sought some privilege leave for twelve days before retirement. It was refused. Thereafter, on retirement, the Petitioner applied for encashment of accumulation of leave beyond the period of 245 days on account of refusal of leave. Petitioner voluntarily retired and then, she was granted encashment of privilege leave. This amount was credited to her account. On 18/08/2001, a sum of Rs.17,110/- was debited from her savings bank account on the ground that excess payment had been made due to wrong calculation of privilege leave. In this context, the Court held that the bank could not have done so and ordered refund of Rs.17,110/- together with interest thereon @ 9% p.a. [12] It is clear that in the case cited supra, the Respondent/Bank therein seems to have mixed up its role as an ‘employer’ and ‘custodian’ of petitioner’s account. Bank did not have any authority or any order from any statutory authority to debit the Petitioner’s account. Such is not a present case. Here, in the present case, the Opponent No.1/Bank had acted pursuant to an order received from the recovery officer. Therefore, we do not see as to how, decision of Delhi High Court in the case cited supra, would be of any help to the Complainants. [13] Learned counsel for the Complainants also placed reliance on the decision of the Hon’ble Bombay High Court in the case of Pandurang N. Mangle Vs. The Akola District Central Cooperative Bank Ltd., Akola & Anr. ~ 2004-SCC Online Bom.1021 (equivalent citation = AIR-2005-Bom-236). In that case, the Court was considering an appeal against a decree passed by Civil Court. In that case, the Appellant/Plaintiff therein was having a savings bank account with the Respondent/Defendant Bank therein. On 21/01/1977, there was a balance of Rs.1,568/- in his account and, therefore, he issue a cheque for Rs.1,500/- in favour of another cooperative bank. However, the cheque was returned on 22/01/1977 with an endorsement, ‘refer to drawer’. On enquiries, on 03/02/1977, the Defendant informed the Plaintiff that a debit entry for Rs.610/- had been made in his account at the instance of Sub-Zonal Manager of Maharashtra State Cooperative Federation and Zonal Manager of S.S.P. Society Ltd., Akot. Plaintiff objected to debit entry. This led to his filing of a suit, which was decreed by Civil Court. Decree was challenged in the first appellant court. Plaintiff also filed a cross-objection claiming damages of Rs.5,000/-. First appellant court allowed the Defendant’s appeal and dismissed the Plaintiff’s cross-objection. Thereafter, Plaintiff filed a second appeal. It was in the context of these facts, the Bombay High Court held that the bank had no authority to debit an amount of Rs.610/- without getting no objection from the Plaintiff therein. High Court had observed, relying on earlier decision of the Hon’ble Supreme Court in the case of Jammu & Kashmir Bank Ltd. Vs. Attar Ul-Nisa ~ AIR-1967-SC-540, that as soon as the money is credited into the account of the constituent, even though the person paying in may have paid it by mistake, it becomes the money of the constituent, and the Bank cannot pay it back to the person who paid it to the account of the constituent on his representation that it was paid by mistake, without obtaining the consent of the constituent. We are afraid that even this decision would be of no help to the Complainants, since this is not the case of a mistaken credit being reversed. This is a case of bank acting in obedience to orders passed by a statutory authority to effect recovery. If, the contentions of the Complainants were to be accepted, the orders of the authorities would be flouted on flimsy pretext. [14] We, however, find that the District Forum was not justified in branding the complaint as, ‘vexatious’ and would delete those observations of the District Forum from the order under challenge. As far as costs imposed are concerned, since they have been incurred by both the Respondents/Opponents, we would like to leave that part of the order undisturbed. Hence, we pass the following order:- ORDER Appeal is not admitted and stands dismissed in limine. However, word, ‘vexatious’ in penultimate paragraph of the order dated 03rd May, 2014 passed by District Consumer Disputes Redressal Forum, South Mumbai in Consumer Complaint No.311 of 2011 is deleted. Rest of the order stands as it is. Pronounced on 23rd April, 2015 |
