West Bengal

Dakshin Dinajpur

CC/10/9

Bijay Kumar Agarwala - Complainant(s)

Versus

The Branch Manager - Opp.Party(s)

Nihar Roy

08 Apr 2011

ORDER

District Consumer Disputes Redressal Forum

Dakshin Dinajpur, W. Bengal

(Old Sub-Jail Municipal Market Complex, 2^nd Floor, Balurghat Dakshin Dinajpur Pin - 733101)

Telefax: (03522)-270013

Present

Sri B. Niyogi - President

Sri S. K. Ghosh - Member

Miss. Swapna Saha - Member

Consumer Complaint No. 9/2010

Bijay Kumar Agarwala

S/o Durga Prosad Agarwala

Public Bus stand

P.O. & P.S.: Balurghat,

Dist. Dakshin Dinajpur.……………………………Complainant

V-E-R-S-U-S

The Branch Manager,

Balurghat Branch,

United Bank of India

Balurghat, Dakshin Dinajpur. …………………Opposite Party

For complainant ……………… - Sri Nihar Ray, Ld. Adv.

For OP …………………… - Sri Arindam Chatterjee, Ld. Adv.

Date of Filing : 19.03.2010

Date of Disposal : 08.04.2011

Judgment & Order dt. 08.04.2011

Instant CC case bases upon a complaint u/s 12 C.P. Act, brought by the complainant Sri Bijay Kumar Agarwala on 19.03.2010 against the Branch Manager, U.B.I. alleging deficiency in service.

Complainant’s case as made out in his said complaint, in brief, is that he took from the OP Bank a Cash Credit Loan having credit limit of Rs. 6,00,000/- concerned A/c No. being 0235250302497. For obtaining the said loan facility he caused to be assigned a number of LIC policies in favour of the Bank by way of security. The OP Bank received from the office of the LICI eight cheques issued on different dates in between 1.8.06 and 21.3.09. Later the complainant came to know that an amount of Rs.,4,58,600/- was credited to the loan A/c only on 23.4.09 even though most of the cheques were received at the end of the OP Bank long before.

The complainant then requested the OP verbally to credit to his Loan A/c the amount which could have been obtained by way of interest had the cheques been deposited in time but it went unheeded. The complainant then sent through his Advocate a notice dt. 25.5.09 threatening to bring legal action in the event the amount of interest be not credited to the A/c within 15 days.

Ultimately on 6.6.09 he deposited an amount of Rs.1,50,000/- in the said A/c and submitted a petition for closing of such A/c.

When the complainant approached to the OP for obtaining return of the policy deeds, the OP asked him to sign on a document indicating that he did not have any sort of claim against the Bank.

In such premises the complainant brought the complaint praying for a direction upon the OP to return the policy deeds, to pay to the complainant an amount of Rs.25,000/- being the amount of interest which could have been obtained had the cheques been credited to the A/c in time and a further sum of Rs.20,000/- by way of compensation.

The proceeding has been contested by the OP Bank on whose behalf a written version was presented on 26.5.10 admitting that some cheques were sent in its favour from LICI but said that in the concerned forwarding letters only the first letter of the name or only the surname of the surerity or borrower were mentioned instead of full names. The addresses of the guarantors or borrower were also not disclosed. For this it became difficult for the Bank to identify the concerned A/c concerning which such cheques were sent. Under the rule of the Bank, proceeds of the LIC policies could have been reinvested following observance of formalities like filling in of reinvestment forms but such proceeds could not automatically be credited to the cash credit A/c of the complainant. When some of the guarantors of the Loan A/c having come to the Bank identified their amounts and filled up necessary forms the amounts were reinvested as per their instructions. The cheques concerning the guarantors who did not come to the Bank for reinvestment were kept in the custody of the Bank as there was no other alternative.

The Bank authority did not earn any amount by keeping the cheques in their custody for some period. They were to keep the cheques in their custody simply for failure on the part of LICI in forwarding the complete particulars in the absence of which the Bank authority could not identify the borrower or the guarantor. Having received the complainant’s Lawyer’s notice the Bank authority in its letter dt. 10.6.09 narrated the whole facts. Ultimately on prayer made by the complainant the OP took all necessary steps for closing the A/c but thereafter the complainant never came to the Bank for the performance of necessary formalities of obtaining back the relevant documents. There was thus no deficiency in service on the part of the OP Bank.

The OP Bank in its written version also assailed the maintainability of the case in view of complainant’s omission in the impleading the LICI authority from whom the cheques were sent with insufficient particulars, as party to the proceeding.

Upon the pleadings of the sides following points come up for determination :-

POINTS

1. Is the proceeding bad for non-joinder of LICI as a party?

2. Was there deficiency in service on the part of OP Bank?

3. Should the reliefs sought for in the complaint, be granted ?

Decision with reasons

The averments made in the complaint have been verified by the complainant. The complainant did not examine any witness but brought on record a number of documents as documentary evidence. Such documentary evidence include copy of the statement of the A/c as Ext.1, status report in respect of a number of LICI policy as Ext.2 series, complainant’s Lawyer’s notice as Ext.3 and complainant’s application made before the OP seeking closing of the loan A/c as Ext. 5.

The averments made in the written version of the OP Bank appears to have been verified by the Senior Manager. The OP Bank also brought on record as documentary evidence, beside others, copy of a statement of the concerned A/c as Ext.H, that of a letter lien as Ext.C and that of a letter issued by the OP Bank to the complainant as Ext. A.

No other evidence was adduced in the case.

Let us now enter into the determination on the three points formulated above.

Point No.1:

In course of hearing it was urged on behalf of the OP Bank that LICI ought to have been included as an OP in this case as omission on their part in disclosing the full particulars of the sureties or the borrower resulted delay in encashment of the cheques and so the case is untenable on ground of LICI’s not figuring as a party.

The complainant in his complaint alleged deficiency in service on the part of the OP Bank. So in this proceeding we have to see whether there was

negligence or deficiency in service on the part of the OP Bank. If the complainant fails to establish that there was deficiency in service on the part of the OP Bank, the case would fail. But such case can not be said to be untenable simply for the reason that the other authority LICI might have some sort of deficiency in service as has been alleged by the OP in its written version. No other point was urged assailing maintainability. We thus decide this Point No.1 holding that the complaint brought by the complainant is maintainable.

Point No.2:

As to the deficiency in service it has been the case of the complainant that the OP Bank encashed the cheques which they had got from the LICI by way of proceeds of the assigned LIC policies only after elapsing of much time and not promptly. That there were inordinate delay in enchasing some of the cheques does not appear to be in dispute in this case. In fact the OP Bank in its written version admitted as to such delay in enchasing some of the cheques.

From the amended complaint it appears that of the eight cheques relating to which the complainant has alleged delay in encashment, only one was concerning any policy of the complainant and that is cheque No. 0537484 concerning the Policy No. 451264615. Other seven cheques were concerning the policy of persons other than the complainant. Those other persons do not figure as parties to this proceeding.

The OP Bank in its written version stated that the proceeds of the cheques concerning the assigned polices could not automatically be credited to the loan account of the complainant and that as per the rules the proceeds could be reinvested after observance of some formalities like filing in of reinvestment forms by concerned policy holders. Concerned rules could not be shown before us. But the said claim seems to be justified since issuance of the cheque by L.I.C.I. has the effect of eroding the security value of the assigned policies. In this case complainant has not adduced any evidence,

documentary or otherwise, to establish that the OP Bank were under an obligation to credit the proceeds of the policies to his loan account instead of getting such proceeds reinvested.

However the said other persons respecting whose polices the seven other cheques were received by the OP Bank from LICI might have some sort of grievance against the OP Bank in view of delay in encashment of the cheques concerning their respective policies. Since those other persons do not figure as parties to this proceeding and since we find nothing to infer that the OP Bank was under an obligation to credit the proceeds of the cheques to the loan account of the complainant, we do not deem it proper to take into consideration the said other seven cheques which were obtained by OP Bank by way of proceeds of the assigned polices.

Now turning to the cheque concerning of the policy of the complainant we find that it has been claimed in the POC that such cheque bearing no.0537484 showed the cheque date to be 28.05.07 and was for an amount of Rs.12,500/-. In the absence of any material on record to the contrary it may be presumed that such cheque was received at the end of the OP Bank by the date of the cheque, more so, when the date of issue of the cheque has been claimed to be a reasonably earlier date. It has been claimed in the POC that the process of such cheque was credited to the complainant’s loan account on 23.04.09. Treating that about three weeks’ time is ordinarily required for encashment of a cheque, it may be regarded that such cheque would have been encashed about one year ten months earlier had such cheque been presented for encashment promptly on or soon after the date of the cheque.

It is true that the OP Bank in its written version appears to have taken the plea that in view of LIC authority’s omission in disclosing the complete particulars as to the identity of the borrower or policy holder it could not present the cheque for encashment promptly.

Sec. 151 of the Contract Act enjoins that in cases of bailment the bailee is bound to take as much care of the goods bailed as a man of ordinary prudence would, under similar circumstances, take of his own goods.

When the OP Bank failed to identify the account no. concerning which the cheque was sent or the name of the borrower relating to whom the said cheque was sent by the LICI as has been claimed by the OP Bank in para 10 of its written version, in view of LIC authority’s omission in mentioning full particulars in the forwarding letter respecting such cheque, the OP Bank could have asked for such full particulars from the LICI authority. But here the OP Bank does not claim to have attempted to obtain such full particulars from the LICI authority. Rather, they claimed to have kept the same in their office for a period of about one year and ten months. Allowing the cheque to remain kept simply in the office without making any endeavour to ascertain the full particulars from the office of the LICI or otherwise, amounts to deficiency in service on the part of the OP Bank.

Point No.2 is thus answered in the affirmative.

Point No.3:

The complainant in his POC appears to have prayed for directing the OP Bank to pay to the complainant a sum of Rs.35,000/- which, according to the complainant would have been got by him had the cheques been encashed in time, obtaining back the policy deeds and a further sum of Rs.20,000/- as compensation for causing harassment and mental pain.

We have in course of our discussion on Point No.1 observed that of the 8 cheques which, according to the complainant, were encahsed after an inordinate delay, only one was concerning the insurance policy standing in the name of the complainant and that the remaining seven cheques should be kept out of consideration for the purpose of this case.

We have also observed in course of our discussion on Point No.2 that the cheque which was related to the policy standing in the name of the complainant was for an amount of Rs.12,500/ and that there was about 1 year 10 months delay in encashement of such cheque.

Here no material is on record as to at what rate of interest the complainant was to pay interest in the concerned loan account. If the rate of interest be regarded to be 10% per annum, interest accruable on Rs.12,500/- for a period of 1 year 10 months would amount to Rs.2,292/- i.e. about Rs.2,300/- . From consideration of the attendant circumstances, we think it proper to direct the OP Bank to pay to the complainant a sum of Rs.2,300/- by which amount the complainant could have been benefited had the cheque concerning his policy been got encahsed in time by the OP Bank.

As to the prayer for releasing of the assigned policy deeds we think that the assigned policy deeds can be released only after closing of the loan account. We note that even though it has been the claim of the complainant in his complaint that he paid an amount of Rs. 1,50,000/- in his loan account and prayed for closing of the account, OP Bank in Para-15 of its written version admitted about complainant’s making prayer for closing of the account but said that even though the OP Bank took all necessary steps for closing of the account, the complainant did not turn up to the Bank for observance of necessary formalities for the purpose and for obtaining back the documents. It has not been claimed by the OP Bank that the account could not be closed in view of remaining of dues payable from the complainant. From a consideration of the circumstances, we deem it proper to direct the OP Bank to get the concerned loan account closed observing necessary formalities and issuing a notice upon the complainant to personally come to the Bank within a certain span of time for the purpose and to release the concerned policy deeds with necessary endorsement as to the releasing from the lien.

In view of allowing of certain amount by way of interest as aforesaid, we do not think it proper to grant any further amount as compensation but deem it wise to direct the OP Bank to pay to the complainant a sum of Rs.200/- towards the costs of this proceeding.

Point No.3 is thus answered.

In the result, the complaint succeeds in part.

It appears from the case record that notice of this proceeding was served upon the OP by 21.4.2010 which was initially fixed in the case for S/R & appearance but the OP did not appear on such date. Instant proceeding is thus getting disposed of nearly a year after the service of notice. Such delay appears to have been caused not only on the latches from the side of the OP but from the side of the complainant too. The complaint also suffered amendment while the hearing of the case was in progress.

Under such circumstances, it is.

O R D E R E D

That the complaint u/s 12 CP Act brought by the complainant Sri Bijay Kumar Agarwala on 19.3.2010 is allowed in part on contest issuing directions mentioned hereinafter.

The OP Bank shall get the concerned Loan A/c namely, A/c No.0235250302497 standing in the name of the complainant closed, if necessary, by securing attendance of the complainant in the Bank having served written notice therefor and shall cause releasing of the assigned LIC policy deeds with necessary endorsements as to the deletion from assignment.

The OP Bank shall complete the closing of the A/c within one month from the service of copy of this order upon it and shall cause releasing of the LIC policy deeds within 15 days from the closing of the A/c, if it be inconvenient to get the policies released simultaneously on the date of closing of the A/c.

The OP Bank shall also pay to the complainant a sum of Rs.2,300/- by way of compensation and a further sum of Rs.200/- by way of costs of this proceeding within the said period of one month from the service of copy of this order upon it.

Let plain copies of this order be furnished to the parties free of cost.

Dictated & corrected

………Sd/-…….

(B. Niyogi)

President

We concur

………Sd/-…….

(Swapna Saha)

Member

............Sd/-...........

(S.K. Ghosh)

Member