TARUN KUMAR BANERJEE vs Chief Manager, Bank Of India

THIS revision is directed against the order of the State Commission 29.01.2013 whereby the State Commission allowed the appeal preferred by the opposite parties respondents, set aside the impugned order and dismissed the complaint.

BRIEFLY stated facts relevant for the disposal of the revision petition are that the petitioner filed a consumer complaint in the District Forum alleging that he had three fixed deposit accounts for Rs.9,50,000/ -, 2,00,000/ - and Rs.2,00,000/ - respectively in the opposite party Bank. That the petitioner was in urgent need of money for the treatment of his ailing wife. He applied for the loan. The opposite party bank granted him cash credit limit of Rs.8,00,000/ - against the security of above noted fixed deposits. The said loan facility was subsequently enhanced to Rs.13,00,000/ -. It is the case of the petitioner that he regularly maintained the cash credit limit of Rs.13,00,000/ - in the loan account by making periodical payments. In the first week of December 2008, the condition of wife of the petitioner became critical and for her treatment, he was compelled to leave Kolkata. In the meantime, the petitioner received a letter dated 05.12.2008 from the respondent opposite party calling upon him to bring his loan account within the sanctioned limit. In response to the said letter, the petitioner deposited Rs.30,000/ - in the loan account on 12.12.2009. Due to serious illness of his wife, the petitioner thereafter could not give attention to his loan account. In the third week of April 2009, the petitioner received a letter dated 09.04.2009 from the opposite party bank calling upon him to bring his loan account within the sanctioned limit of Rs.13.00 lacs failing which it was stated that the bank shall be compelled to close the term deposits prematurely and transfer the proceeds to the over draft account. The complainant responded to the said letter stating that his wife was critically ill and on his return to Kolkata he would personally meet the officer of the loan department to settle the matter. However, the opposite party bank on 27.04.2009 prematurely closed the fixed deposits and adjusted the amount against the over draft account despite of the fact that over draft account had exceeded the limit of Rs.13.00 lacs only by Rs.84,000/ -. According to the complainant, this amounts to deficiency in service.

THE respondent opposite parties contested the complaint by filing written version whereby it was pleaded that the bank has rightly exercised its lien over the fixed deposits and there was no deficiency in service. Learned District Forum on consideration of the pleadings and the parties took the view that opposite party bank was not justified in failing to consider the prayer of the complainant seeking some more time to repay the exceeded limit of the over draft and by squaring up the fixed deposit account against the cash credit facility they have committed deficiency in service. Accordingly, the complaint was allowed with following directions: "O.P.s are directed to restore the Fixed Deposit of Rs.13,50,000/ - with double facility due to the credit of the complainant from the date of deposit i.e. as it were and also directed to restore the cash credit limit of Rs.13 lakhs within 45 days from the date of this order and after compliance of the same to issue a certificate to the effect the aforesaid order has been complied with by the o.p.s within the stipulated period. O.P.s are directed to pay compensation a sum of Rs.5000/ - (Rupees five thousand) only towards harassment and mental agony and litigation cost of Rs.1000/ - (Rupees One Thousand) only within the stipulated period. O.P.s are direct to pay the entire sum as ordered above within 45 days from the date of communication of this order, in default an interest @ 9% p.a. shall accrue over the total sum of Rs.6000/ - (Rupees six thousand) only due to the credit of the complainant".

BEING aggrieved of the order of the District Forum, the respondent opposite parties approached the State Commission in appeal and the State Commission vide the impugned order allowed the appeal and dismissed the complaint with following observations: "We have carefully gone through the impugned judgement and find that the Ld. District Forum has given much weight to the principles of natural justice and has held that the squaring up of the fixed deposit amounts in meeting with exceeded amount/cash credit facility tantamounted to unfair Trade Practice. However, in our opinion, question of natural justice and/or deficiency in service as at the instance of the bank as held by the Ld. District Forum does not appear to hold much water in this case when, admittedly, the limit exceeded at the instance of the Complainant and the bank having acted as per Reserve Bank guidelines we think there is no deficiency in service and/or unfair trade practice committed at the instance of the Appellant Bank. We have also considered the point of application of the principles of Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and we are unable to accept such proposition as advanced on behalf of the Respondent Complainant. Having considered the present appeal in the light of above discussion we find merit in the present appeal and the present appeal deserves to be allowed."

In the result, the appeal succeeds and hence ordered that the appeal stands allowed on contest but without any order as to costs. The impugned judgement is set aside. Consequently, the petition of complaint stands dismissed."

LEARNED Mr.Sanjoy Kumar Ghosh, Advocate for the petitioner has assailed the impugned order on the ground that State Commission has erred in failing to consider that the over draft of Rs.13.00 lacs was exceeded only by Rs.84,000/ - and the respondent bank had not granted reasonable time to the petitioner complainant for bring the over draft account within the permissible limit. Expanding on the argument, learned counsel has drawn our attention to letter dated 09.04.2009 and contended that vide this letter the time limit for bring the over draft account within the permissible limit was given and the FDRs were prematurely closed within fortnight to adjust the amount against over draft account. It is contended that the opposite party bank even failed to take note of the fact that vide letter dated 16.04.2009, the petitioner had intimated the bank that he was out of station for the treatment of his wife and on his return, he would personally meet the concerned officer of the loan department and deposit the amount in the over draft account with a view to bring the amount within the permissible limit. It is further contended that learned State Commission has passed the impugned order without looking into the RBI guidelines and terms and conditions of the contract between the parties.

LEARNED counsel for the respondent opposite party on the contrary has argued in support of the impugned order. It is undisputed that petitioner complainant had taken over draft limit of Rs.13.00 lacs against the security of subject term deposit. It is also not in dispute that over draft account of the petitioner had exceeded the sanctioned limit of Rs.13.00 lacs by Rs.84,000/ -. It is not disputed that respondent bank called upon the petitioner vide letter dated 09.04.2009 to take steps to bring the said account within the permissible limit failing which it was stated in the letter that the bank would be compelled to close the term deposits pledged with the bank and transfer the proceeds against the over draft account. Undisputedly, despite of receipt of said letter, the complainant did not take steps to bring the over draft account within the permissible limits and instead wrote a letter that on his return to Kolkata, he would visit the bank and deposit certain amount in his loan account to bring it within the permissible limit. From this it is obvious that despite of service of specific demand notice dated 0904.2009, the petitioner did not take steps to bring his loan account within the sanctioned limit of Rs.13.00 lacs. Copy of the terms and conditions of the loan facility granted to the complainant is available on record. Clause 19 of the terms and conditions reads as under; "So long as any monies are due to us from you under any of the facilities, we shall have a lien/charge for such amounts on all your credit balances, deposits, securities or other assets with any of the branches of bank of India or of its subsidiaries upon the happening of any of the events of default referred herein, we shall be entitled to exercise a right of set off between the amounts due and payable to us and the said credit balances, deposits, securities and other assets."

ON reading of the above it is clear that as per the contract, the bank had lien over the fixed deposit receipts of the respondent complainant and it was entitled to exercise the right of set off between the amount due and payable to the bank against the deposits, securities and other assets of the complainant. Undisputedly, the over draft account of the complainant at the relevant time had exceeded by Rs.84,000/ - beyond the permissible limits. Admittedly, a notice dated 09.04.2009 was served upon the complainant to make payment of excess amount and bring over the over draft account within the sanctioned limit. Despite that complainant did not act. Thus, in view of the above noted clause 19 of the terms and conditions of loan agreement, the action of the opposite party to pre maturely close the term deposits and adjust the proceeds against the over draft account cannot be faulted. Therefore, in our view, the respondent bank cannot be said to be deficient in service.

IN view of the discussion above, the well reasoned order of the State Commission cannot be faulted. Learned counsel for the petitioner has not raised any other plea which may show any jurisdictional error or material irregularity committed by the State Commission which may call for interference in exercise of revisional jurisdiction. Revision petition is, therefore, dismissed with no order as to costs.