BANK OF INDIA vs SHYAMA SUD & ORS.

By this Revision Petition, under Section 21(b) of the Consumer Protection Act, 1986 (for short "the Act"), Bank of India (for short "the Bank"), which was impleaded as Opposite Party No.2 after the filing of the Complaint, on Complainant''s Application, questions the legality and correctness of the order dated 02.01.2009, passed by the State Consumer Disputes Redressal Commission, Punjab at Chandigarh (for short "the State Commission") in First Appeal No.849 of 2002. By the impugned order, while allowing the Appeal preferred by Thomas Cook (India) Limited (for short "Thomas Cook"), arrayed as the sole Opposite Party in the Complaint, initially filed, against the order dated 29.04.2002, passed by the District Consumer Disputes Redressal Forum, Hoshiarpur (for short ''the District Forum") in Complaint No.307/10.09.2001, the State Commission has held that since 150 equity shares of Thomas Cook, held by the Complainant had been transferred on the directions of the Bank, they are liable to compensate the Complainant for fraudulent transfer of the said shares in the name of third parties. The State Commission has accordingly, directed the Bank to acquire 150 equity shares of Thomas Cook and transfer the same in her name within three months from the date of its order or in the alternative pay to the Complainant, as compensation, the value of the said shares at the rate prevalent in the market on 10.09.2001, along with up-to-date dividend and bonus within 60 days of the expiry of period of three months as also a nominal cost of 500/-.

As afore-noted, the Complainant held in her name 150 equity shares of Thomas Cook. She pledged these shares with the Bank as collateral security. On discharge of the Bank''s liability, the share scripts along with the share transfer forms, signed by an authorized representative of the Bank, as transferor, were returned to her. On receipt of the said documents, admittedly she sent these shares to Tata Shares Registry Limited, the Registrars to the Company. However, the same were received back by her with certain objections. On re-submission of the same for transfer, in her favour, the said Registrars, vide their letter dated 14.07.2000, informed her that the said shares had not been lodged for transfer in her favour and further, the same had already been transferred in the name of various transferees.

In this background, alleging deficiency in service on the part of Thomas Cook, in depriving her from the said shares and resultantly dividends etc. thereon, the Complainant filed Complaint against Thomas Cook, praying for a direction to them to transfer the shares in her name or in the alternative compensate her for loss on that account. It appears that upon filing of the Written Version on behalf of Thomas Cook, an Application was filed by the Complainant, praying for impleadment of the Bank as Opposite Party No.2. Since the contents of the said Application have some bearing on the issues raised in this Revision Petition, the relevant paragraphs thereof are extracted below:

"2. That the complainant again purchased the share as mentioned in para No.1 of the complaint from Bank of India, Hoshiarpur and said bank gave the requisite papers to the complainant for transferring the share in her name and accordingly the complainant sent the share along with the requisite paper to the Opposite Party for transfer.

That the complainant purchased the share from bank of India at Hoshiarpur and papers were sent to the Opposite Party No.1 for transfer from Hoshiarpur."

It is pertinent to note at this juncture itself that in the said Application, there was no prayer for amendment of the prayer Clause in the Complaint filed initially against Thomas Cook. In other words, as such, no relief was claimed against the Bank.

As noted above, on contest by Thomas Cook, taking note of the fact that some fraud had been committed upon the Complainant, inter-alia, observing that since Tata Shares Registry had received the share scripts from the Complainant for transfer in her name from the name of the Bank, their plea that they had not received the same, as these had been re-lodged in the name of other persons in whose favour the shares in question had been transferred, amounted to deficiency in service on its part, the District Forum issued the afore-stated direction to Thomas Cook.

Aggrieved, Thomas Cook carried the matter further in Appeal to the State Commission. As afore-said, the State Commission while allowing the Appeal, has made the Bank liable for compensating the Complainant for the alleged loss. Hence, the present Revision Petition. The Complainant seems to be satisfied with the order as she has not challenged the same.

Having heard learned Counsel for the parties, we are of the view that the impugned order, directing the Bank to compensate the Complainant for non-transfer of 150 equity shares in question in her favour is unsustainable.

Apart from the fact that neither in the Complaint, nor in the amendment application, filed by the Complainant during the pendency of the Complaint, there was any allegation against the Bank in relation to the transfer of afore-noted shares in the name of third parties, it is also evident from the afore-extracted paragraphs of the Application filed by the Complainant praying for impleadment of the Bank, as a necessary party to the Complaint, that the Complainant had herself admitted in the said application that the afore-said equity shares had been received back by her along with all the requisite papers for transfer of these shares in her name. It was only on receipt of these documents that she had sent the share scripts to Tata Shares Registry for effecting the necessary change. As noted above, in none of the documents, on record, there is any allegation by the Complainant against the Bank for any act of omission or commission on their part. Besides, it is also clear from the letter dated 21.07.2000, addressed by the Complainant to the Manager of the Bank that the Bank had released the shares along with transfer deeds singed by its Power of Attorney, to which on her request, a confirmation letter dated 26.07.2000, referred to in the order of the District Forum, had been issued by the Bank to her. In light of these documents, it stands proved that the Bank had handed over the shares scripts for 150 shares of Thomas Cook along with the transfer deeds to the Complainant and therefore, it cannot be held to be responsible for the alleged fraud played on her on account of transfer of the shares in favour of third parties. The plea that in the transfer deeds, the name of some other transferees had been mentioned by the Bank, now sought to be raised, is neither supported by any evidence on record, nor can it permitted to be raised at this late stage, more so when there is no such averment in the pleadings.

For the afore-going reasons, the Revision Petition is allowed and the impugned order is set aside, leaving the parties to bear their own costs.

It is pointed out by learned Counsel appearing for the Bank that in terms of the order dated 24.04.2009, passed by this Commission, 50% of the awarded amount with accrued interest had been deposited by the Bank in the District Forum on 22.05.2009. If that be so, it will be open to the Bank to withdraw the same on taking appropriate steps in that behalf.