Complainant in person present.
Opponent by Adv. Shri. Nainesh Amin present.
The Complainant isthe karta ofHindu undivided family residing at Andheri (E) at the address mentioned in the complaint.The opposite party ,Union Bank of India is a Nationalised Bankhavingtheir branch at Andheri (E). Mumbai.The Complainant has filed this complaint against the opposite party for deficiency in service under section 12 of Consumer Protection Act. 1986.
It is the contention of complainant, that he is having Savingaccount in the opp. Bank, since its inception i.e. from 1965. The karta complainant Mr. Anilkant Shah of HUF has also his personal saving Bank A/c with OP bank in the same Andheri Branch.
3. The Complainant applied for Net Banking facility for HUF SB A/c, No. 315502010020617 in the year 2007. Accordingly, Corporate user ID and password was provided to the said HUF A/c. It is alleged that complainant was not able to avail internet banking facility till Feb.2009. It is stated that despite repeated requests in writing from the complainant, there was delay in providing internet banking facility. It is stated that the op. Bank provided Internet banking facility to complainant vide their letter dt. 07.05.2009, filed on record as document No.D-8, by complainant alongwith his affidavit.
The complainant contended that he is an investor and use to invest in Equity shares.He opened his DEMAT A/c with OP Bank.It is alleged that since OP Bank has a tie up with M/s Emkay Global Finance Limited, a share broking company, Opp. Bankpersuadedcomplainant to open E-broking A/cwith the said company.Complainant’s DEMAT and SB A/c were linked to EMKAY portal.Accordingly complainant was able to make online purchase and saleof equity shares.
The Complainant contends that on 09.03.2010, he sold 24000 equity shares of Marico @ Rs.104/- per share and the amount realized by the said on line sale, was online credited to his SB A/c .On 12.03.2010 complainant was interested to repurchase the shares of Marico ltd and tried to block the fund of Rs. 25,15,000/- for payment to M/s Emkey Financial services ltd.It is stated that despite internet banking facility granted by the OP Bank complainant failed to transfer the amount as thee- banking facility was not made available to the complainant’s a/c. The complainantreported the fact to the concerned officers to allow the online fund transfer facility from his HUF SB A/c, however the Bank officers transferred the fund of Rs. 2515000/-without any writtenmandate and instructions from complainantto the personal SB A/c of the Kartato enable to make payment by RTGStoM/s Emkey Financial services.
It is the contention of complainant that Internet Banking facility providedtoComplainant’s A/cwas notallowed to make onlinepaymentof Rs.25,15,000/-to M/s Emkay Global Finance Limited.It is alleged that the amount realized by way ofselling equity shares was on line credited to the SB A/c of complainant.It is stated that the failure to make payment of Rs.25,15,000/- to M/s Emkay Global Finance Limited throughInternet Banking facility resulted heavy loss and mental agony to complainant.More overin orderto make payment to M/s Emkay Global Finance Limited,complainanttried to withdraw the amount of Rs.25,15,000/-from his HUF S B A/c with opp. Bank by depositing the chequeof opp. Bank in his another HUFSaving bank A/cwith Bank of Rajastan,howeverthe said cheque was also returned by opp. Bank resulting again mental and financial loss to complainant.
The complainant has made several correspondence with the opp. Bank and their higher authorities, but the issue has not been resolved.The complainant has filed this complaint before this forum alleging deficiency in service on the part of OP bank. Complainant has prayed for direction to the OP bank to compensate the loss of Rs.750000/- to complainant on account of deficiency in service on the part of OP Bank and Rs. 12,50,000towardsloss of opportunity in market , loss of reputation in market and in Bank of Rajastan.
Complainant has filed copies of all correspondence made with opp. bank and their higher authorities and all relevant documents in support of the complaint.
The opp. Bank has filed written statement and denied all the allegations made by complainant and requested the forum to dismiss the complaint.
It is the contentionof opp. Party thatopp. Bank never provided internet facility to HUF SB Bnak A/c, furtherwhen the Internet facility was provided to complainant with corporate ID. and it was restricted only to View the account and not for any transactions,therefore there is no deficiency in service on the part of opp. Party.According to opp. Bank, complainant is a traderof equityshares and he utilised the services of opp. Bank for earning profitby way oftrading of equity shares, hencehe is not a consumer.It is stated that this forum has no jurisdiction to adjudicate the complaint.
Both parties have filed their affidavit of evidence and written arguments. Heard arguments ofboth the parties, we have perused alldocuments filed by both the parties on record.
The complaint has been admitted by the forum only in respect of para 4 to 6 of the main complaint and prayer clause isrestricted to grant compensation in respect of mental trauma and agony due to deficiency in service by OP Bank.
The issue is to decide the deficiency in service on the part of OP Bank, or adopted unfair trade practice.
According to complainant, despite granting internet banking facility to do all types of transactions from the HUF SB A/c of complainant, on 12.03.2010 complainant could not transfer fund ofRs.2515000/- totheBrokingco. M/s Emkey Financial services to repurchase shares of MaricoCompany , which amounts to deficiency in service on the part of OP Bank , resulting heavy financial loss and mental agony to complainant. In this regard it is the contention of OP Bank that since the complainant’s A/c is not individual a/c therefore corporate Id was issued to complainant which enables only to view the a/c and pay only bills and taxes. It is stated that transactions in respect of RTGS fund transfer through internet banking in respect of share purchases are not allowed under corporate ID to HUF a/c.
In view of the arguments of both the parties, we have perused the various documents filed by both parties. The copy of letter of OP bank dtd.07.05.2009 filed on record as D-8 by complainantalong with his affidavit of evidence reveals that OP bank had granted internet banking facility to do all types of transactions in his HUF SB A/C. still the aforesaid transactionmentionedin above Para 14 failed . The statement of SB A/cof complainant filed on record as document no D- 9 shows several transactions in respect sale purchase of shares. Therefore the forum is of the opinion that not providing facility to transfer funds through internet banking to complainant’s A/camounts to deficiency in serviceon the part of OP Bank.
It is alleged bythe complainant thaton 12.03.2010 fund of Rs 2515000/- was illegaly transferredform HUF SB A/c to Personal SB A/cof karta without any writteninstructions of complainant and the fund remained lying illegally for a period of 127 days in the personal SBa/c of Karta . In this regard, it is the contention of OP bank, that the fund was transferred to Karta’s personal SB A/c with consent of complainant andonly with a good intentionto enable the complainant to make payment by RTGS to the said Broking companyand it was done in view of good relations of Op Bank with Complainant.
As regards to the above allegation, raised by complainant, even the OP Bank transferred the funds in good faith but as per the banking norms, it is not permitted to do so in absence of any written instructions of the a/c holder. Moreover even after failure of fund transfer by RTGS from the personal SB A/c of Karta, the OP bank could have reversed the entry immediately, however the OP bank failed to reverse the entry resulting the funds were lying idle in the personal SB A/c of Karta for a period of 127 days,consequentlycomplainant could not use the funds for therequisite purpose. Therefore this forum is of the opinionthat the aforesaid act of the OP Bank amounts to deficiency in service and adoption of unfair trade practices.
Complainant further alleges that in view of requirement of funds for purchase of shares, he tried to withdraw amount from his HUF SB A/c by way of depositing the chequeof the said a/c in another bank a/c of complainant (Bank Of Rajastan), but still OP bank failed to honour the said cheque, consequently the complainant was deprived from utilizing his own funds lying in OP bank. In this regard OP bankhas admitted the fact but clarified the issue that complainant was aware about the funds lying in the personal SB a/c of karta and there were no sufficient funds available in the HUF a/c. Further there were no instructions from complainant to reverse the transaction therefore the cheque was returned.
In this regard,we haveperused somerelevantdocuments on record, wefoundthatOP bank reversed the illegal fund transfer entrydtd.12.03.2010 on 19.07.2010only afterreceipt of the written complaint filed on record as document No.D-24 from complainant on 08.07.2010. We are of the opinion that the OP Bank reversed the illegal entry immediately after failure of RTG transfer the issue of returning the cheque would not have arisen. In view of banking rules and regulations the unauthorised transfer of funds from one accountto another account is illegal and OP bank did not take any immediatesteps to reverse the fund, which amounts to deficiency in service and adoption of unfair trade practice on the part of OP bank.
In respect of the above allegations regarding deficiency in service on the part of Op Bank, we have perused one document filed by complainant along with his complaint, as Ex-WI Page No.56K-56 Q. The said document is the Report of the committee constituted by the OP Bank to investigate and resolve the issue of deficiency in service in respect of the complainant. The said report is filed on page no 56K-56 Q. The committee has admitted the loopholes in their operations and accordingly offered some reasonable compensation to complainant, but complainant refused to accept the offer of OP bank.
In view of above discussion, the forum has reached to the conclusion that there is deficiency in service in respect of internet banking facility provided to Complainant’s HUF SB A/c and adoption of unfair trade practice on the part OP bank.
The issue regarding loss incurred by complainant in respect of trading of sharesof Marico Industries has not been considered, as thesaid issuehasbeenrejected at the time of admission of the complaint.
In view of deficiency in service on the part of Op Bank, theforum is of the view that the complainant was deprived from utilization of a huge amount of Rs.2515000 /- for requisite purpose for 127 days , therefore it would be appropriate to compensate the complainant for Rs100000/- (One lac )and Rs.50000/-(Fifty thousand )for mental agonyand cost of litigation.
In view of above discussion, we pass the following order.
ORDER
1. RBT Complaint No. 495/2011 is Partly Allowed.
2. It is declared that OP Bank Union Bank Of India has indulged deficiency in service and adopted unfair trade practice in respect of
3. OP Bank is directed to pay Rs.1,00,000/-(Rs.One lakh only) to complainant towards compensation for deficiency in services and
Rs.50,000/- ( Rs.Fifty Thousand ) together for mental agony and cost of litigation.The said amount is to be paid within 30 days from
the receipt of this order failing which amount will carry interest @9% p.a. till realization of the entire amount.
4. Copy of this order be sent to the both parties.
