Advantage Consumer

Bank has a general lien over amounts deposited by the customer and has a right to recover any due from the customer.

NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION, NEW DELH

REVISION PETITION NO. 1580 OF 2015
(Against the Order dated 21/01/2015 in Appeal No. 561/2011 of the State Commission Tamil Nadu)

THE BRANCH MANAGER, STATE BANK OF INDIA
AUROVILLE INTERNATIONAL TOWNSHIP BRANCH,
AUROVILLE-605101 ...........Petitioner(s)
Versus
PADMAKAR MIRAJKAR
S/O KRISHNA ARAO, REP BY HIS POWER OF ATTORNEY AGENT, S.AYYAPPAN, S/O SUBRAMANIAN, EDAYANCHAVADI VILLAGE,
AUROVILLE - 605101 ...........Respondent(s)

BEFORE:
    HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER
    HON'BLE MR. DR. S.M. KANTIKAR,MEMBER

Dated : 07 Dec 2017

ORDER

PER DR. B.C. GUPTA, PRESIDING MEMBER

          This revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986, against the impugned order dated 21.01.2015, passed by the Tamilnadu State Consumer Disputes Redressal Commission, (hereinafter referred to as “the State Commission”) in First Appeal No. 561/2011, the Branch Manager, State Bank of India vs. Padmakar Mirajkar, vide which, while dismissing the said appeal, the order dated 12.08.2010, passed by the District Consumer Disputes Redressal Forum, Villupuram, allowing the consumer complaint no. 15/2007, filed by the present respondent, was upheld.

2.      Briefly stated, the facts of the case as stated in the consumer complaint are that the complainant Padmakar Mirajkar alongwith one Ms. Elisabeth Hendricks had a joint savings bank account no. 01193040048, “either or survivor” with the opposite party (OP), State Bank of India, Auroville International Township Branch, Auroville. The complainant also had an individual NRE savings bank account no. 10237903963 with the said Bank. The complainant and Ms. Elisabeth Hendricks had a fixed deposit with the Bank for an amount of Rs. 2,59,031/- payable on maturity to ‘either or survivor’ on 05.03.2004. It is stated that Ms. Elisabeth Hendricks wanted to send an amount of Rs. 2 lakhs to her father, who was staying in Germany. She requested the OP Bank to foreclose the fixed deposit, send the amount of Rs. 2 lakhs to her father’s account in Germany and credit the balance amount to their joint savings bank account. By sheer negligence, the OP Bank sent the amount of Rs. 2 lakhs twice to the father of Ms. Elisabeth Hendricks in Germany. When the mistake was noticed by them, they withdrew an amount of Rs. 1,95,205/- from the individual savings bank account of the complainant. Taking the plea that the Bank had no right to recover the money from his individual savings account, the complainant filed the consumer complaint in question, seeking directions to the Bank to pay a sum of Rs. 1,95,205/- with interest to his account and also to pay compensation of Rs. 50,000/- against mental harassment and Rs. 20,000/- as cost of litigation.

3.      The complaint was resisted by the OP Bank by filing a written statement before the District Forum, in which they stated that they remitted an amount of Rs. 2 lakhs in terms of Euro equivalent to the account of Ms. Elisabeth’s father on the joint request made by the complainant and Ms. Elisabeth. However, since the payment instructions could not reach the Bank in Germany in time, resulting in delay in remitting the amount to the beneficiary due to some technical problem, they sent a fresh message through their Pondicherry Branch for remittance of the said amount. This step was taken as the complainant and Ms. Elisabeth repeatedly phoned-up the Bank and also sent e-mails, expressing urgency in the matter and urging the OP to take expeditious steps for remitting the said amount. The Branch office of the Bank at Frankfurt, Germany committed a bonafide mistake in crediting the account of the beneficiary twice for the said amount. The complainant or Ms. Elisabeth or the beneficiary never bothered to inform the Bank about the mistake or to refund the excess amount paid by the Bank. The OP Bank stated that they had sent the payment instructions again, keeping in view the long-standing relationship between the OP Bank and the complainant. The OP Bank tried to recover the money from the Bank in Germany, but they required the consent of the father of Ms. Elisabeth for doing the same. They were unable to contact Ms. Elisabeth also, as she had gone back to Germany by that time. The Bank thereafter contacted the complainant for the recovery of the amount remitted in excess, but the complainant failed to take any substantial and effective steps to compel Ms. Elisabeth to remit the amount back. The Bank, therefore, affected recovery from the individual account of the complainant and the said step taken by them was lawful, because the complainant stood as a guarantor in the transactions in question and hence, he was law-bound to make good the loss suffered by the Bank. The OP Bank maintained that the steps taken by them were bonafide and lawful and hence, the complaint should be dismissed.

4.      The District Forum allowed the consumer complaint vide their order dated 12.08.2010 and directed the Bank to pay an amount of Rs. 1,95,205/- with interest @ 9% per annum to the complainant from the date of debit of the said amount and also to pay Rs. 5,000/- as mental agony and Rs. 2,000/- as litigation cost. The District Forum observed that there was no provision that enabled the Bank to take away money from the individual account of the complainant. Being aggrieved against the order of the District Forum, the OP Bank challenged the same by way of appeal before the State Commission. The said appeal having been dismissed vide impugned order, the OP Bank is before this Commission by way of the present revision petition. While passing the impugned order, the State Commission observed that the Bank had withdrawn the amount from the individual account of the complainant in an unauthorised manner and hence, indulged in deficiency in service.

5.      During hearing before us, the learned counsel for the petitioner Bank has drawn attention to section 171 of the Indian Contract Act, saying that the Bank had lien on the amount in the individual Bank account of the complainant and hence, they had every right to recover the said amount from that account. In support of his arguments, the learned counsel has drawn attention to an order made by Hon’ble Supreme Court in Syndicate Bank vs. Vijay Kumar & Ors., (1992) 2 SCC 330, in which it has been stated as follows:-

                    “By mercantile system the bank has a general lien over all forms of securities negotiable instruments including FDRs deposited by or on behalf of the customer in the ordinary course of banking business in absence of an agreement to the contrary. The general lien is a valuable right of the banker. Banker has a right to use the proceeds in respect of any balance that may be due from the customer by way of reduction of customer’s debit balance.”

6.      The learned counsel stated that the factum of remitting the amount of Rs. 2 lakhs to the account of the father of Ms. Elisabeth was a fact admitted on record by the complainant and hence, the Bank was entitled to get their money back from the complainant.

7.      The learned counsel for the respondent/complainant, however, stated that the view taken by the Hon’ble Supreme Court in Syndicate Bank vs. Vijay Kumar & Ors. (supra) was not applicable to the facts of the present case. The orders passed by the consumer fora below were in accordance with law and should be upheld.

8.      We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.

9.      From the factual matrix of the case, it is abundantly clear, rather admitted by the complainant himself that the amount of Rs. 2 lakhs was remitted to the father of Ms. Elisabeth twice. The Bank has taken the stand that they sent the payment instructions again, following the request of the complainant and Ms. Elisabeth, which resulted in the remittance of the amount twice. It is also clear that the beneficiary or Ms. Elisabeth did not take requisite steps to return the excess amount admittedly received by them. The complainant has also not pleaded anywhere that he made any steps to get the amount back from Ms. Elisabeth or her father and remit the same to the Bank. It is clear, therefore, that the complainant has not come before the consumer fora with clean hands, as it was his duty to ensure that the public money of the Bank is not lost by way of sending the amount twice to the beneficiary. The complainant should have made his best efforts to help the Bank in recovering the amount from the beneficiary, more so, when he himself was a joint account holder with Ms. Elisabeth.

10.    In so far as the legal position with regard to the recovery of the said amount by the Bank from the individual account of the complainant is concerned, mention may be made about the provisions contained in section 171 of the India Contract Act, which says as follows:-

“171. General lien of bankers, factors, wharfingers, attorneys and policy brokers-Bankers, factors, wharfingers, attorneys of a High Court and policy-brokers may, in the absence of a contract to the contrary, retain as a security for a general balance of account, any goods bailed to them; but no other persons have a right to retain, as a security for such balance, goods bailed to them, unless there is an express contract to that effect.”

11.    It is clear from the above provision that a banker has a general lien on the amount deposited by the complainant in his individual account. The said view has been expressed by the Hon’ble Supreme Court in the case, Syndicate Bank vs. Vijay Kumar & Ors. (supra) as well. It has also been stated that unless a contract to the contrary is established, the Bank’s right of lien will have to be accepted.

12.    The Bank have taken the plea in the reply before the District Forum that the amount was remitted to the father of Ms. Elisabeth in pursuance of letters of request dated 12.02.2004 and 27.07.2004 made by the complainant. Later on, when there was delay for the remittance of the amount to Germany, the complainant as well as Ms. Elisabeth repeatedly phoned them up and sent messages expressing urgency in the matter and urging the Bank to take expeditious steps to remit the amount to the account of the father of Ms. Elisabeth. This version of the Bank has nowhere been contradicted by the complainant.

13.    Based on the discussion above, it is made out that the State Commission as well as the District Forum have not been able to make a correct analysis of the facts and circumstances on record. The excess money, which is stated to have been sent by the Bank to the father of Ms. Elisabeth is in fact public money and the Bank has every right to recover the same. It was the duty of the complainant, therefore, to ensure that recovery is got made of the excess amount remitted by the Bank.

14.    This revision petition is, therefore, allowed and the orders passed by the consumer fora below are set aside, being perverse in the eyes of law. The consumer complaint in question stands dismissed. There shall be no order as to costs.

	advantageconsumer.com Consumer Protection Council, Rourkela