Judgment:
HONBLE M. THANIKACHALAM J, PRESIDENT
1. The unsuccessful opposite parties before the District Forum are the appellants.
2. The Respondent herein as complainant, has filed a complaint for the recovery a sum of Rs.42,800/- with interest thereon as well as for direction to pay a compensation of Rs.1 lakh on the grounds with among other grounds, that the opposite parties have failed to return the NSCs worth about Rs.42,200/-, though the entire debt borrowed by him and the Company had been discharged, that despite number of personal enquires as well as complaints, the opposite parties have failed to return the NSCs or the value thereon and in addition, they have also failed to give detailed information about the availability of the NSCs as well as what had happened to the NSCs deposited by him with the Bank and this would amount to clearly deficiency in service, for which, they should be directed to pay the above said amounts.
3. The opposite parties the appellants, opposed the complaint, on the grounds with among other grounds, that at the time of borrowing the loan of Rs.30,000/-, he had pledged NSCs, authorizing the Bank, on maturity to encash and apportion the amount towards the loan borrowed by him, that pursuant to the same, the first opposite party encashed the NSCs on 30.03.1994 which realized a sum of Rs.42,200/-, that as on that date a sum of Rs.35,660.50 was due and payable by the complainant towards loan, for which, the first opposite party adjusted the same and the balance amount of Rs.6539.50 was invested in a fixed deposit in the name of the complainant, that when the amount was transferred to the Savings Bank Account of the complainant on 12.12.95, he withdrew the same with interest and this being the position, there was no deficiency of any service or loss occurred to the complainant and that even assuming that the investing the balance in fixed deposit may not be correct, the same was done for the benefit of the complainant, in which, no accusation could be made, and this being the position, no question of deficiency in service warranting the refund of the encashed amount for the NSCs or payment of compensation, thereby praying for the dismissal of the complaint.
4. Based upon the above pleadings, the trial Forum enquired the matter, marking certain documents which revealed that the encashment of the NSCs was not a fraudulent transaction that if at all for not informing about the encashment, there was no smooth conduct after the loan was apportioned and account closed and in this way there was deficiency in service and thus concluding, only compensation for deficiency in service and mental agony, the District Forum directed the opposite parties to pay a sum of Rs.25,000/-, negativing the other claims, which caused grievance to the opposite parties, giving cause of action to come to this Court, as appellants.
5. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
6. The main submission of the Learned Counsel for the appellants are, that there was no loss of any kind, to the complainant on the basis of the alleged deficiency in service, that the claim is barred by limitation, that the claim application itself is not maintainable because of the fact, it relates to commercial transaction, which are opposed by the other side as untenable, supporting the decision rendered by the lower Forum.
7. We have gone through the pleadings, documents relied on by the parties as well as the previous correspondences between the parties, including the proceedings before the Ombudsman, which inform us that there would not have been any deficiency in service of the Bank, that too warranting the compensation of Rs.25,000/-, that too in view of the admitted fact that there was loan transaction between the parties and to discharge the same, the NSCs entrusted to the Bank were encashed and the amount adjusted, the balance amount was received by the complainant himself even before the complaint was filed, in the District Forum and our reasons are hereunder.
8. Admittedly, the Respondent pledging the NSCs which are the subject matter in the complaint, with the appellants, borrowed a sum of Rs.30,000/- on 28.05.1993, which were purchased by him on 08.03.1988 aggregating to Rs.40,000/-. The loan application available in the typeset would indicate that the complainant irrevocably authorized the Bank even before maturity, the amounts of the certificate either in full or in part towards repayment of the interest/principal in case default committed. He has further agreed, to abide by the rules of business of the bank in this behalf. Accordingly, when the loan was not discharged, on maturity of the NSCs on 08.03.1994, the NSCs were encashed on 30.03.1994, to discharge the loan. On the date of discharge, as proved by the Bank, a sum of Rs.35,660.50 was due and therefore this amount was adjusted, leaving the balance amount of Rs.6,539.50. It is the submission of the Bank, that this amount was deposited for one year in the fixed deposit, in the name of the complainant.
9. It appears, only for depositing the balance amount in the fixed deposit, there was no authorization and it appears to us that there was some mistake. This mistake, admittedly, has not caused any problem or loss to the complainant. After maturity, as submitted, which is also proved, when the fixed deposit amount was transferred to the savings bank account of the complainant, without murmur or any protest, the complainant had with drawn the amount, therefore, by his action or by withdrawing the amount without any protest, it should be held that acts of the Bank were impliedly ratified by the complainant himself. Therefore, there is no question of fraudulent encashment of the NSCs or apportionment of the amount, against the rules and regulations. Considering this fact, the District Forum has held that âEven though the opposite party has every right to apportion the money lying in the account of the complainant in any manner to discharge the lien, the steps taken by the opposite party clearly establishes that it was not a smooth conduct and the complainant was not informed even after the loan was apportioned and account closed.â
The finding of the lower Forum appears to be, that the opposite parties failed to inform the complainant regarding the NSCs encashment, in spite of encashing the same on 30.03.1994 itself. It is the duty of the account holder as well, as the borrower to know what had happened to the NSCs deposited by him when he borrowed the amount. In this case, the complainant has failed to perform his duty, but also silently, we would say, accepting the transaction of the opposite parties, withdrew the balance of Rs.7,193.50 which includes the interest also. Therefore, accusing that the Bank had failed to inform the complainant, regarding the encashment of the NSCs cannot be taken as deficiency in service. It is the finding of the Ombudsman also as seen from the records, when he complained, only thereafter he had approached the Consumer Forum. Even before coming to the District Forum, as disclosed by the correspondence and as seen from Ex.A4 itself, the matter was informed to the complainant, on 23.11.1996, though after he had taken much steps. Even before this date, as proved and even as recorded by the lower Forum, the balance of amount of Rs.7,193.50 was transferred to the savings bank account of the complainant on 12.12.1995, and the same was withdrawn. Therefore, we cannot say that the complainant has no knowledge at all or he was always in the dark. If he had verified, how this amount had been credited in his account, the matter would have come to light, which he failed to do so. Having deposited the NSCs at the time of borrowing the loan as said by us before, it is the duty of the complainant also to verify whether he had discharged the loan, if not, how that loan has been discharged, that too, in view of the authorization given by him at the time of borrowing the loan, pledging the NSCs. The recording of the lower Forum, it was not a smooth conduct and the complainant was not informed even after the loan was apportioned, will not in our considered opinion, come within the meaning of deficiency in service warranting compensation. By the act of the opposite parties as submitted by the Learned Counsel for the appellants not contradicted by other side, the acts of the Bank depositing the amount in F.D., then the complainant withdrew the interest would go to show that he had benefited of the interest and therefore it should be held, that there is no monetary loss by the alleged deficiency except unwarranted communications emanated from the complainant having failed in his duty to verify about the credit and fate of the NSCs at the time of discharging the loan. Having regard to the facts and circumstances of the case as discussed above, we are unable to find any deficiency on the part of the Bank, in encashing the NSCs or not informing the same to the complainant, which had not caused any loss and in this view, the compensation awarded by the lower Forum is unwarranted, liable to set aside.
10. In the result, the appeal is allowed, setting aside the order of the District Forum, Chennai (South) in OP.No.719/2000 dt: 21.06.2005, and the complaint is dismissed. There will be no order as to cost, throughout.
The Registry is directed to handover the Fixed Deposit Receipt, made by way of mandatory deposit, to the appellants/opposite parties, duly discharged.