Sahara India Represented By Its Branch Manager Deogarh Branch vs Jatakishore Das

REVISION petition no. 1410 of 2013 has been filed under section 21 (b) of the Consumer Protection Act, 1986, against the order dated 30.01.2013 passed by the State Consumer Disputes Redressal Commission, Odisha, Cuttack ( ''the State Commission '') in First Appeal no. 722 of 2011.

THE brief facts of the case as per the respondent/complainant in complaint no. 52 of 2010 are as follows: - the petitioner/opposite parties introduced a scheme named Sahara Swarna Yojana Scheme Certificate for the benefit of the customers subject to payment of dues as per a given schedule. After due date the customer would get privileges as per terms and conditions provided for under the scheme. Being attracted by the scheme, the respondent is one of the registered holder of the certificate bearing no. 25409200045 (as 10 years scheme) on dated 31.03.2003 and he has deposited a sum of Rs.1,00,000/- on the same date in the office of OP no. 1. Due to medical treatment of the complainant he had taken a loan of Rs.80,000/- only from his certificate. In the meantime the respondent had already paid up (refunded) the loan amount of Rs.80,000/- along with interest calculated by the opposite parties i.e., Rs.1289/- on 28.12.2006 which has been noted on the first page of the passbook-cum-certificate of respondent granted by the petitioners/opposite parties.

Being worried by such endorsement the respondent enquired in the Bank of the opposite parties and came to know that the opposite party no. 1 has not entered the paid up (refund) loan amount of Rs.80,000/- + interest amount of Rs.1287/- in the account of the respondent. Due to the illegal acts of the petitioner/opposite parties the loan amount of Rs. 80,000/- is still in the name of the respondent. Till today the petitioners/opposite parties had not entered the amount of Rs.80,000/- in the account of the respondent. The respondent had been to the office of the petitioner/opposite parties more than 20 times to enquire about the aforesaid matter. The respondent always returned only after hearing of assurance from the petitioners/opposite parties and till today the petitioners/opposite parties are silent. The petitioners/ opposite parties submitted their objections against the claim petition filed by the respondent and has stated as follows: "The averments made in paragraphs two and three of the petition, that the petitioner/opposite parties has admitted that Sahara India Parivar is a financial institution to the creditors/borrowers to the customers undertaken by the Reserve Bank of India. Further, it is admitted that the petitioner/opposite party has introduced a scheme ''Sahara Swarna Yojana '' for the benefit of the customer subject to payment of dues as per the terms and conditions provided under the scheme. It is admitted that the petitioner has admitted on records that the respondent has borrowed a loan of Rs.80,000/- and the same is still outstanding against the petitioner. The plea taken by the respondent regarding return of the loan amount along with interest accrued is denied by the opposite party. The endorsement made by the then Branch Manager of Sahara India, Deogarh Branch regarding clearance of loan amount is unknown to the present opposite party. No such documents shows in the official records that the respondent has cleared up the loan amount. The endorsement made in the passbook of the respondent is not clear nor bears any meaning. There is no such provision provided under that scheme to clear up the loan amount by way of putting such type of endorsement made in the pass book. The claim of the respondent is fictitious and frivolous. Therefore, the opposite party are in any way liable for the same. Whereas, in the instance case the respondent has neither approached at any point of time to the opposite party regarding refund of the loan amount ".

THE District Consumer Disputes Redressal Forum, Deogarh ( ''the District Forum '') vide their order dated 14.09.2011 that "perused the pass book-cum-certificate. It bears endorsement to the effect that a sum of Rs.81,287/- has been taken to the account on 28.12.2006. Rs.1287 on 80,000/- has been written separately which the respondent claims to have paid interest of Rs.1287/- which seems probable. Further in the 3rd time Rs.80,000/- and nil is written which indicate the amount of loan. The endorsement bears the official seal of the opposite party along with the signature of the Branch Manager nor they have averred that the endorsement is forged one. In the aforesaid circumstances it can safely be concluded that the endorsement of the pass book has been made by the then Branch Manager of the OPs after receipt of the loan amount along with the interest. The OPs have claimed that is was not according to the proper procedure. It is not expected that all should be aware of the procedure practice by all the financial institution. An investor is expected to believe the Branch head of the Institution and thus the complainant has made no mistake in believing the Branch Manager of the OPs. As suggested by the OPs the money received from the respondent has not been reflected in the loan account by the Branch Manager. Admittedly, he is the servant of the OPs and the OPs are bound by his action at the same time the OPs are no liberty to realise the amount if found to have misappropriated by the concerned Branch Manager. From our above observation we are of the opinion that the complainant has paid the loan amount to the OPs. The respondent has averred that he ran several times to the OP no. 1 to get his account corrected. It was/ is the duty of the OPs to render proper service to its investors who have invested their hard earned money which they have not (illegible). The investors should not be allowed to suffer due to the fault of the servants of the OPs. Due to the intention of the OPs the respondent had suffered mentally as well as physically which amounts to deficiency of service and the respondent is entitled to cost and compensation ".

IN view of this, the District Forum directed "the OPs to reflect the payment made by the respondent in the loan account and to pay Rs.10,000/- towards the compensation and Rs.1000/- towards the litigation expenses within one month from the date of receipt of copy of this order failing which the complainant is at a liberty to take appropriate action in the competent court of law ".

Aggrieved by the decision of the District Forum, the petitioner filed appeal no. 722 of 2011 before the State Commission. Before the State Commission the petitioner had also filed an application for filing additional evidence. Vide order dated 15.01.2013, the State Commission while dismissing the miscellaneous application recorded that "on the contrary learned counsel for the opposite party-loanee contents that in their written version the petitioner who was the opposite party before the District Forum admitted that the present opposite party - loanee (complainant before the District Forum) took Rs.80,000/- as loan. So once, it has been so admitted, the document in question should not be taken as additional evidence. Moreover, the signature found in the said documents does not tally with the admitted signature of the opposite party - loanee. Considering the rival submissions of the parties, we are of the view that since the petitioner admitted in the written version before the District Forum that the opposite party - loanee took Rs.80,000/- as loan and in fact the signature said to be that of the opposite party - loanee as found in the documents sought to be admitted as additional evidence does not tally with his admitted signature and further since it appears improbable that while putting his signature a person would omit some alphabets of his first name which has been found in the so called signature of the opposite party - loanee and those alphabets have been written below his signature, the document should not be admitted as additional evidence. The miscellaneous case stands dismissed ".

Thereafter vide order dated 30.01.2013, the State Commission, after hearing the respective counsel and going through the records, came to the conclusion that "there is no dispute that it has been endorsed in the pass book/ certificate of the respondent with official seal and signature of the then Branch Manager, Deogarh Branch that there is nil due against him (respondent). The respondent repaid the loan amount with interest on 28.12.2006. He filed the consumer complaint on 04.12.2010, i.e., about four years after the repayment. He was not expected to keep the document in proof of such repayment for long four years. The innocent customer should not suffer for the illegality/ irregularity committed by the agent that too not less than a Branch Manager of the appellant company. So there is deficiency of service on the part of the appellants in not reflecting the repayment of the loan amount in the loan account/ledger of the respondent. The amount awarded towards compensation and litigation expenses is also not exorbitant. Under such circumstances, the appeal stands dismissed and the order of the District Forum is confirmed ".

HENCE , the present revision petition. The main grounds for the revision petition are as follows: - "it is pertinent to mention here that in the meanwhile the respondent herein filed an execution petition before the District Forum being C D EXN case no. 52 of 2010 for the enforcement of the order dated 14.09.2011 passed by the District Forum in CDC No. 52 of 2010 dated 09.11.2012. It is worthwhile mentioning that the District Forum on the last date of hearing i.e. 10.04.2013 has posted the said matter for further hearing on 23.04.2012. - in the meanwhile the petitioners found out a vital/significant/important document from its record, i.e., payment advice no. BLLE11020459 dated 09.05.2006 which goes on to show that the respondent herein had taken a loan of Rs.1,00,000/- and Rs. 80,000/-. Without any delay the petitioners herein had preferred an application for bringing additional evidence on record being Misc. Case no. 168 of 2013 before the State Commission categorically stating that the petitioners herein has found the payment advice of loan bearing no. BLLE11020459 dated 09.05.2006 from the office where it has been found that on 11.05.2006 the respondent herein has taken a loan of Rs.1,00,000/- vide cheque no. 882974 dated 11.05.2006 and not Rs.80,000/-.

The State Commission vide its order dated 15.01.2013 while recording the submission of the counsel appearing for the appellant (petitioners herein) that the respondents herein has taken a loan of Rs.1,00,000/- and not Rs.80,000/- but erred to take on record the additional documents on the ground that: Considering the rival submissions of the parties, we are of the view that since the petitioner admitted in the written version before the District Forum that the opposite party - loanee took Rs.80,000/- as loan and in fact the signature said to be that of the opposite party - loane as found in the documents sought to be admitted as additional evidence does not tally with his admitted signature and further since it appears improbable that while putting his signature a person would omit some alphabets of his first name which has been found in the so called signature of the opposite party - loanee and those alphabets have been written below his signature, the document should not be admitted as additional evidence. The State Commission was further pleased to conclude the hearing of the arguments and had reserved its order/judgment.

THE State Commission failed to appreciate the fact that the endorsement even if it is made by the then Branch Manager is contrary to the procedure of the petitioner and that there is no provision to clear up the loan by putting an endorsement on the pass book without the issuance of payment receipt. The State Commission failed to appreciate the fact that the claim of the respondent is contrary to the evidence on record, i.e., payment advice and that there is no material facts on record to show that the respondent had paid the loan amount together with interest except for the alleged endorsement made by the then Branch Manager. It is pertinent to mention that under conventional banking practice whenever there is any deposit of money the same is entered into the ledger but in the present case such entry is not available with the petitioners. The State Commission fell into the error of not appreciating the fact that the petitioners have all along stated that the endorsement relied upon by the respondent cannot be of any material value, it is worthwhile mentioning that if the respondent had deposited the loan amount he would have received a payment receipt. In the absence of any ''payment receipt '' both the District Forum and the State Commission committed an error of relying solely on an alleged endorsement made by the then Branch Manager. The State Commission has erred in not appreciating the fact that the first appellate court under Order 41 Rule 27 (aa) of the Code of Civil Procedure, 1908 should allow an application filed by the petitioners herein for producing additional evidence if the appliance established that notwithstanding the exercise of due diligence, such evidence was not within his knowledge or could not after the exercise of due diligence, be produced by him at the time when the decree appealed against was passed. It is humbly stated that petitioners in its application for bringing additional evidence on record, i.e., in Misc Case no. 168 of 2013 had categorically stated that: "That it is respectfully stated that subsequently (after the order passed by the District Forum) the petitioner invented the payment advice of loan bearing no. BLLE 11020459 dated 09.05.2006 from the office where it has been found that on 11.05.2006 the claimant (respondent herein) has taken a loan of Rs.1,00,000/- vide cheque no. 882974 dated 11.05.2006 ".

The State Commission should have taken the additional evidence on record and remitted the matter back to the District Forum for fresh consideration. The first appellate court fell into an error in not allowing the petitioner ''s application for additional evidence even when the document so produced is so germane, which will materially affect the decree. It was only after due diligence the petitioner came to know that such a document existed. If the first appellate court had any doubt about the genuineness/ authenticity/ legitimacy of the document then could have called for an handwriting expert to see whether the signature in the document produced by the petitioners as additional evidence is the signature of the respondent or not. The first appellate court fell into an error of adjudging the genuineness of the document itself when it could have avoided the same by referring the document in question to a handwriting expert. The first appellate court went on to proceed on a different footing, it is most respectfully submitted that the State Forum while deciding the application for admitting additional evidence went on to see the veracity/ genuineness of the said document. It is humbly stated that the first appellate court is not vested with the power to look into the veracity/authenticity/ genuineness of the documents. If any doubt arises as to the genuineness of the documents the correct recourse was to refer the said document for the opinion of a handwriting expert. The State Commission failed to appreciate the fact that the respondent has not repaid the loan amount and thus the same was not reflected in his account statement. It is humbly pointed out that in all financial sectors whenever any kind of payment is made such a payment corresponds to a payment receipt. In the present case the absence of such payment receipts shows to proof that such payment was never made by the respondent herein.

THE State Commission failed to appreciate that pass book of an account holder is not a conclusive evidence for determination of balance in the account of the account holder. The correct balance is to be determined from the ledger and not from the pass book. Furthermore, it is well settled principle in banking law that the pass book cannot be called conclusive proof of any payment as the same is always in the custody of the account holder and entries made therein are capable of being tampered with, thus entries made in the pass book cannot be called as conclusive proof of any payment. The State Commission failed to appreciate the fact that under clause 19 of the agreement which both the petitioners and respondent entered, categorically states that if there arises any dispute between the parties then the same should be referred to arbitration. It is humbly stated that in view oif clause 19 both the State Commission and District Forum should have referred the dispute to arbitration. The order dated 30.01.2013 passed by the State Commission in First Appeal no. 722 of 2011 being a non-speaking order, devoid of any reason is liable to be set aside. It is further pointed out that the order passed by the State Commission is a narrative of the submission made by both the parties and upholding the order of the State Commission. It is worthwhile mentioning that even while affirming an order of the District Forum the State Commission was duty bound to state reasons. It is on this count alone the impugned order is liable to be set aside ".

WE have heard the learned counsel for the petitioner and have carefully gone through the records of the case. Counsel for the petitioner drew our attention to the copy of the pass book wherein the receipt of Rs.80,000/- had supposedly been acknowledged by the Branch Manager, Deogarh Branch. The learned counsel stated that as per the policy of the company, the pass book cannot be used for the purpose of acknowledging the repayment of loans. A close scrutiny of the document concerned would, however, show that the said document is not only a pass book but pass book-cum- certificate. Some of the important instructions to the applicant as printed in the pass book read as under: "After paying the monthly instalment please tender the pass book- cum-certificate to the Branch office for the purpose of updation. Please verify the entries in the pass-book-cum-certificate with receipt issued by the company and in case of any discrepancy please report the same to the branch office immediately. The applicants are advised to keep their pass book-cum-certificate in place of safety. Entries made in the pass book-cum-certificate are for information purpose only. If any discrepancy or difference in the amount is found between the entries made in the pass book-cum-certificate and receipts duly countersigned by the company ''s authorised signatories bearing seal of the company ''s office, payment shall be made on the basis of receipts only.

It is also seen that all the entries regarding details of the account are entered in the pass book-cum-certificate. The instalments paid under option (B) towards the scheme named ''Sahara Swarna Yojna Scheme '' have also been entered with the signature of the concerned officials. The details are as under: Date Receipt Credit Total Initials 31.03.2003 30600863045 10,000/- 10,000/- Sd/- 14.05.2003 30600507402 10,000/- 20,000/- Sd/- 14.05.2003 30600507403 10,000/- 30,000/- Sd/- 30.06.203 30600507409 20,000/- 50,000/- Sd/- 05.09.2003 30600507417 50,000/- 1,00,000/- Sd/-

Similarly receipts towards repayment of loan of Rs.80,000/- and interest of Rs.1289/- has also been recorded in the pass book-cum-certificate and signed by the scheme officer with his code no. 06641-226081. 11. The plea taken by the petitioner regarding return of the loan amount along with interest accrued with the endorsement made by then Branch Manager of Sahara India, Deogarh Branch regarding the clearance of loan amount is that the fact is unknown to the present opposite party. No such documents show in the official records that the petitioner has cleared up the loan amount. The endorsement made in the pass book of the petitioner is not clear nor bears any meaning. No such provision provided under the scheme to clear up the loan amount by way of putting such type of endorsement made in the pass book. The petitioner has further stated in the revision petition that the pass book of the account holder is not conclusive evidence for determination of balance in the account of the account holder. The correct balance is to be determined from the ledger and not from the pass book. Here it should be appreciated that the individual depositing any amount in a bank or a financial institution or any with other body can only ensure that entry is made in the pass book given to him or take formal receipt if given. He cannot ensure that the thereafter necessary entries are made in the ledger and other related accounts. It is an undisputed fact that the petitioner had introduced the Sahara Swarna Yojna Scheme and the respondent is the holder of certificate bearing no. 25409200045 dated 31.03.2003 and he has deposited Rs.1,00,000/- towards the same. Subsequently, the respondent took a loan of Rs.80,000/- against the said certificate and repaid the loan with interest amount of Rs.81,287/- on 28.12.2006 which was endorsed in his pass book-cum-certificate by then Branch Manager, Deogarh Branch/ scheme officer. The respondent found later that it had not been entered in his account. Even though he went to the office of the opposite party on several occasions and requested them to reflect the same in his account but the same was not done and he was compelled to file the aforesaid complaint with prayer to direct the petitioner to reflect the repayment of Rs.80,000/- with interest in his account. The petitioner has mentioned that earlier he filed an MA no. 168 of 2013 before the State Commission. In the miscellaneous application the petitioner admitted that they had filed the written statement before the District Forum to avoid delay and wherein it has been stated that the claimant has obtained loan of Rs.80,000/- and that subsequently "the petitioner invented the payment advice of loan bearing no. BLLE11020459 dated 09.05.206 from the office where it has been found that on 11.05.2006 the claimant has taken a loan of Rs.1.00 lakh vide cheque no. 882974 dated 11.03.2006 ".ï¿ 1/2ï¿ 1/2ï¿ 1/2ï¿ 1/2The State Commission vide their order dated 15.01.2003 recorded as follows: "Considering the rival submissions of the parties, we are of the view that since the petitioner admitted in the written version before the District Forum that the opposite party - loanee took Rs.80,000/- as loan and in fact the signature said to be that of the opposite party - loanee as found in the documents sought to be admitted as additional evidence does not tally with his admitted signature and further since it appears improbable that while putting his signature a person would omit some alphabets of his first name which has been found in the so called signature of the opposite party - loanee and those alphabets have been written below his signature, the document should not be admitted as additional evidence ".

IT would be quite apparent that the petitioner company has not been zealously and scrupulously following any prescribed system for accounting or maintenance of accounts. They have chosen to distance themselves and disown the entries made in the said pass book-cum-certificate and signed by the Branch Manager/scheme officer. They have sought to cover up their lapses with regard to amount of loan given, repayment thereof by the respondent and accounting thereof behaving in a most irresponsible manner and trying to pass on the blame to the respondent for not having produced a receipt to validate the entry in the passbook-cum-certificate. If they had indeed been keeping their accounts accurate they would not need to plead ignorance of the entries regarding respondent ''s loan in the pass book-cum-certificate due to lack of corresponding entry in the ledger book of the petitioner. Instead of instituting an enquiry against the then Branch Manager of Deogarh Branch to ascertain the exact circumstances of the case and enquire from the then Manager as to why he appended his signature on the pass book-cum-certificate in receipt of Rs. 81,287/- they have sought to penalise the respondent. There is no affidavit on record from the then Branch Manager with regard to the facts of the case. Even the written statement contains the verification of Shri Bipin Chandra Patnaik, presently working as the Branch Manager, Sahara India Pariwar, Deogarh. The affidavit attached to the revision petition has also been signed by Shri Bipin Chandra Patnaik, Junior Executive. It is indeed a sad state of affairs where the petitioner was taking money for the scheme launched by them for the benefit of the customers and they failed to put in place a proper accounting system to support this scheme. They have thereafter failed to order an enquiry into the actions of their official for failing to record the exact amount of loan, repayment of the same, updating of records and following a system for ensuring accountability and transparency with regard to amounts collected from the public and held in trust. In the above-mentioned circumstances, we find that there is no jurisdictional error, illegality or infirmity in the order passed by the State Commission warranting our interference. The revision petition is accordingly dismissed with cost of Rs.50,000/- (Rupees fifty thousand only).

PETITIONER is directed to pay Rs.25,000/- to the respondent directly by way of demand draft and the balance amount of Rs. 25,000/- be deposited by way of demand draft in the name of ''Consumer Welfare Fund '' as per Rule 10 A of Consumer Protection Rules, 1987, within four weeks from today. In case the petitioner fails to deposit the said amount within the prescribed period, then it shall be liable to pay interest @ 9% per annum till realisation.