1. THROUGH this application, opposite parties Indian Bank and its functionaries have prayed for dismissal of the complaint on the ground that this Commission has no jurisdiction to entertain and try the present complaint.
2. THE facts and circumstances which led to the filing of the present application are that Shri Bhagwanji D. Patel and Smt. Indira B.Patel, ordinarily residents of Leicester, UK have filed the complaint before this Commission alleging deficiency in service on the part of the opposite party-bank and its functionaries in regard to the sum of 1,96,749.24 Great Britain Pound deposited by them with the opposite party-bank in Foreign Currencies Fixed Deposit known as Foreign Currencies Non Resident (Bank) account (in short, FCNR (B) account). For conducting the transactions, they had appointed Shri Harish D. Patel as their attorney vide Power of Attorney dated 08.10.94. According to the complainant, they were entitled to receive a total sum of 211745.85 GB Pound on the date of maturity on 06.03.2005 of FCNR (B) account. It is alleged that Attorney of the complainant received the FCNR (B) account receipt no. 409337 dated 17.03.2003 and on receipt of the same, he noted that the said receipt tend to cover another FCNR (B) account receipt for US$ 37286.63 in favour of certain Gunvant Rasiklal Ganatra and Pushpa Gunvant Ganatra and so he immediately contacted financial consultant Shri S.Ramasubramanian, who on inquiry informed Mr.Patel that the said FCNR (B) account receipt had been mistakenly sent to him and requested him to send it to one Umesh, nephew of Shri Ganatra. Accordingly D.Patel forwarded the FCNR (B) account receipt to Mr.Umesh. However, during September 2004 Shri S.Ramasubramanian contacted Shri Harish D. Patel and requested for a Xerox copy of FCNR (B) account receipt issued in favour of the complainants for verification as Shri Ganatra wanted to pre close his above referred FCNR (B) account prematurely and one of the receipt sent by him was found to be bogus. Becoming suspicious Shri Harish D.Patel and Shri S.Ramasubramanian immediately contacted Shri Sudhakar Reddy, the outgoing manager and Shri Chandra Reddy, incoming manager of the respondent-bank at Kondareddipalla Branch, Chittor on 01.10.2004 and on enquiry they were informed that FCNR (B) account receipt no. 409337 forwarded by speed post to Harish D. Patel was bogus and fictitious. On verification of the records maintained at the bank, they came to know that though the amount of GB Pound 1,96,749.24 was received by the OPs, the said amount had been split up into two parts and amount i.e., GB Pound 49200 was kept in FCNR (B) account (for which no FCNR (B) account receipt had been sent either to the complainants or their power of Attorney) and the remaining money of GB Pound 1,47,549.24 was converted into Indian Rupee without any valid or proper authorization from the complainants and transferred to Non-Resident (External) rupee account known as NRE rupee account which had a credit balance of Rs.9731.60 only. it was also revealed that OP No.3 had opened the NRE rupee account on the basis of a forged form allegedly signed by Harish D. Patel but the bank took a stand that they never received FCNR (B) account opening form sent by Harish D. Patel by courier, one signed by him as power of attorney and another signed by complainant themselves vide courier receipts Nos. 1507222 dated. 08.03.2003 and 1525405 dated 09.04.2003 and also the fax message sent by Harish D Patel on 07.03.2003. However, the bank admitted to have received the FCNR (B) account opening form duly signed by Ganatra sent on 09.04.2003 which was sent in the same consignment C.N. No.1525405.
According to the complainants, the opposite party-bank and its functionaries have committed the following illegalities which amounts to deficiency in service:
1. The splitting up of the money received by the respondent and depositing a small portion only in the FCNR (B) account and covering major portion of the money into rupee and depositing the same in NRE rupee account is without permission or authorization from either the complainants or their power of attorney. 2. At no point of time either the complainants or their power of attorney received any statement/pass-book for operation of the NRE rupee account.
3. Thirdly, the account opening form, allegedly signed by the power of attorney which is stated to have been used for opening the NRE account is nothing but a rank forgery. This is evident as the account opening forms signed by the power of attorney and the complainants were filled up by hand by the power of attorney and the form allegedly used by the Bank was typed form.
4.The respondents having opened one NRE rupee account without proper authorization on the basis of a forged account opening form, are deliberately and falsely taking a stand that they did not receive FCNR (B) account opening forms duly signed by the power of attorney and separately by the complainant, sent through courier and also the fax message sent by their attorney as all of those documents gave authorization only to open a FCNR (B) account.
5. Neither the complainant n or the power of attorney have been informed till date as to how GBP 1,47,549.24 which was converted as Indian rupees and stated to have been deposited in SB/NRE account depleted to a balance of Rs.9731.60.
6. RBI regulation permits the opening of the NRE rupee account only the non-residents and it prohibits opening of the said account by any other person including the power of attorney.
According to the complainants, the third opposite party deliberately and without any authority opened an NRE rupee account without proper and valid authorization of the complainants and in any event under the RBI regulations Foreign Exchange Management (Deposit) Regulations, 2000 vide Notification no.GSR 388 (E) dated 3.5.2000, the NRE rupee account should be opened only by the non-resident account holder and not even by the power of attorney. Therefore, the opening of NRE rupee account is unauthorized and contrary and prohibited under law. It is alleged that on account of said deficiency in service, the complainants have suffered monetary loss besides mental agony and harassment for which they have claimed the following reliefs:
a. The Opposite parties to pay to the complainants GB Pound 2,11,745.85 (equivalent to Rs.1,79,98,397.25 calculated approximately at Rs.85= 1 GB Pound) together with interest from 0.7.03.2005 (i.e. the date of maturity) till the date of complaint at the rate of 5.25% per annum as per the RBI norms at the relevant time.
b. The opposite parties to pay to the complainants a further interest on the said sum of GB Pound 2,11,745.85 from the date of complaint till the date of payment at the rate of 12% per annum. c. The opposite parties to pay to the complainants a sum of Rs.50,00,000/- towards the damages as their deficiency had caused business losses. D The opposite parties to pay to the complainants a sum of Rs.50,00,000/- towards the damages and compensation for the delayed payments and for causing mental agony and harassment. e. The opposite parties to pay the cost of the proceedings including the expenses of travel, stay and other expenses the complaints were made to suffer an account of the deficiency of service by the respondent. f. And to pass such further or other orders as this Honble Commission may be pleased to pass in the circumstances of this cases.
3. ON being noticed, the opposite parties resisted the complaint by filing a joint written version raising several preliminary objections viz., the complaint has been filed by the complainants on false and frivolous grounds without any cause of action; the complainants have not approached this Commission with clean hands and, therefore, are not entitled to any relief; the FCNR (B) account receipt annexed alongwith the complaint is forged and fabricated and has not been issued by the opposite party-bank and, therefore, the claim of the complainants based on such a receipt which was never issued by the opposite party-bank is not maintainable and opposite party is not liable to indemnify for any loss suffered by the complainants. ONe of the main objection raised by the opposite parties is that jurisdiction of this Commission under the provisions of Consumer Protection Act is that of Summary nature and anyone seeking relief of any equitable or extra-ordinary jurisdiction (other than the formal and ordinary one at law) must do so without any covert and overt suppressions of facts or making any misleading averments. According to the opposite parties, a bare perusal of the complaint and documents filed on record would show that there was a deep rooted conspiracy/acquaintance of the power of attorney holder of complainants with other people including Mr.Anantha Kumar, Karunakar Babu, Bharat Shah, Prakash Shinde, Ramasubramanium in the transaction (s) though the complaint does not state or whisper about the same. The main plank of the objection is that summary jurisdiction of this Commission under the Consumer Protection Act should not be exercised to entertain the present dispute which requires voluminous and detailed evidence and detailed investigation to come to a definite conclusion. It is submitted that civil court is the appropriate forum to entertain and decide on such a dispute as raised in the present complaint. It is pointed out that dispute inter-se concerns the status of deposits made by the complainants with the opposite party-bank, the issuance of receipt-whether fake or original, the bifurcation of deposits into two accounts in the shape of FCNR deposits and NRE SB account, the withdrawls made by power of attorney holder of complainants from time to time and other persons under authority from power of attorney holder and the allegations pertaining to conspiracy, cheating and forgery.
It is urged that issues involved would require detailed evidence to be led by both the parties. It is also pointed out that CBI has filed charge sheet against the accused persons before the special court of CBI at Hyderabad and, therefore, this Commission may not be the appropriate forum to decide the complicated questions of fact involved herein in view of the voluminous evidence which would be required to decide the claims of the complainants and pleas of the respondents. It is stated that complaint has been filed in this Commission with the sole object of avoiding the payment of court fee. Accordingly, it was prayed that complaint may be dismissed or return to the complainants for pursuing their remedy before the appropriate court.
4. IT appears that as the above objections in regard to the maintainability of the present complaint by this Commission was not considered and answered at the threshold or at an early stage, the opposite parties were compelled to make the present application almost raising the same pleas which they had raised in their written version filed in response to the complaint in regard to the maintainability of the complaint and once again praying for dismissal of the complaint for want of jurisdiction without going into the merits of the complaint.
The application has been opposed and a reply has been filed on behalf of the complainants thereby stating that present application is merely a repetition of the respondents contentions raised in the counter affidavit and is nothing but a malafide attempt on the part of the respondent to frustrate any finding regarding negligence on its part, being passed by this Commission. The application is stated to be nothing but abuse of the process of court. In any case the grounds put forth in the application on which the dismissal of the complaint is sought by the opposite party have been controverted and it is maintained that the complaint so filed by the complainants is maintainable before this Commission and should be answered by this Commission on its merits.
We have heard Mr.V.N.Krishnamurty, senior Advocate, learned counsel representing the complainants and Mr.M.N.Krishnamani, Senior Advocate, learned counsel and have given our thoughtful consideration to their respective submissions.
5. ONE of the objection raised by the opposite parties in regard to the maintainability of the present complaint before a consume fora like this Commission is that the complainants are not consumers within the meaning of section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 as they have availed the services of the bank for a commercial purpose i.e. for earning profits. The basis of this objection is two fold; in the first place it is submitted that there was no privity of contract between the complainants and the opposite parties inasmuch as there were no direct dealings between the parties and the whole series of transactions was conducted through Ramasubramaniam the so called financial consultant of the complainants who alongwith certain other intermediaries have received commission for placing the said deposits of the complainants and thereby earned profits which was also shared by Harish Patel, attorney of the complainant. Second submission is that services rendered by the Bank were for purely commercial purpose. Term consumer has been defined under section (2) (1) (d) of the Act as under: Consumer means a person who-
(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose. Explanation- For the purpose of this clause, commercial purpose does not include use by a person of goods brought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self-employment.
6. SINCE transactions in regard to deposit of FCNR (B) account and issuance of forged FCNR (B) account receipts pertain to the period March 2003, followed by certain transactions made in the same year, it is of utmost importance to take note of the statutory position as it stood during the relevant period of March 2003 onwards. In this connection it is pertinent to note that before the amendment of the Consumer Protection Act by the Amending Act of 62 of 2002, section 2(1) (d) had a different definition inasmuch as under the unamended Act, even the hiring or availing of any services for consideration for any commercial purpose by a person were also covered and such a person was deemed to be a consumer. If a person had any grievance in relation to such service he could validly invoke the jurisdiction of a consumer forum. The Amending Act 62 of 2002 has brought a sea change in the said definition and in particular clause (ii) of section 2 (d) inasmuch as any person who hires or avails of any services for a consideration for any commercial purpose has been taken out from the ambit of the definition of consumer, except of course a person who has availed the services exclusively for the purpose of earning his livelihood by means of self employment. Referring to the above definition of term consumer as it stood during the relevant period when the cause of action can be said have arisen for filing the present complaint and the fact that complaint was filed only in the year 2006, Mr.Krishnamani, learned counsel representing the opposite parties has vehemently argued that going by the complainants own case, the complainants must be deemed to have availed the services of the opposite party-bank purely for commercial purpose. In this regard, he has pointed out that complainants are ordinary residents of UK and they had appointed an attorney and other financial managers to manage their assets / money. They had invested a huge amount of 1,96,749.24 Great Britain Pound with the opposite party-bank with the sole object of earning huge profits by way of higher interest. He also submitted that complainants have not disclosed besides the above investment in FCNR (B) account, how many other investments of foreign money they have made in Indian Banks. In support of this, it is also pointed out that Attorney of the complainants and others have received huge commissions as per the CBI version in the chargesheet submitted by it and, therefore, complainants should be deemed to have availed the services of the opposite party-bank for commercial purpose. Mr. Krishnamani seeks support from the decisions of Anantha Grameena Bank Vs Industrial Finance Corporation of India Ltd. (2005 ) IV CPJ (NC) and this Commissions decision in the case of Harsolia Motors Vs National Insurance Co. Ltd. (2005) 1 CPJ 27 (NC),
On the other hand, learned counsel for the complainants has controverted this position on facts as well as in law. According to him, the complainants being the residents of UK, having surplus money had every right to invest the same in FCNR (B) account in Indian Bank with a view to earn better interest and by doing so, they cannot be said to have indulged in any commercial activity.
Having considered the entirety of facts and circumstances of the case and in particular the averments made in the complaint and nothing contrary having been brought on record, we have no hesitation to hold that that money invested by the complainants in the above manner cannot be said to be a commercial venture. The enormity of the amount deposited in FCNR (B) account is not a valid criteria to judge whether services of the opposite party were obtained for commercial or non commercial purpose. It is true that there is no averment in the complaint that the complainants had deposited the said amount in FCNR (B) account of the opposite party and had availed the services in that behalf for the purpose of earning their livelihood by means of self employment but it was not required because where an individual simply makes a deposit of certain amount in a bank in some term deposit scheme, by doing so, he cannot be said to have indulged in a commercial activity. Any investment in such a scheme would certainly earn interest which cannot amount as profit earning. We have, therefore, no hesitation in holding that complainants do fall within the definition of term consumer as it exists even after amendment of the Act. We must not unsuit the complainants at least on this ground and hold that the complainants are within their rights to file a complaint before a consumer fora like this Commission for the redressal of their grievance.
7. THIS takes us to the next crucial question, whether this Commission will be handicapped to try and answer the present complaint in exercise of its summary jurisdiction?. Mr.Krishnamani, learned counsel representing the opposite party-bank has vehemently argued that instant complaint raises highly complicated questions of fact and law arising out of allegations of forgery and fabrication of the documents which later became the subject matter of a criminal case investigated and chargesheeted by the CBI and that voluminous evidence would be required to be adduced which may not be possible / feasible in this Commission and, therefore, the complainant may better be relegated to the Civil Court to work out his remedy rather than the complaint being answered by this Commission. In support of his contention, learned senior advocate has placed reliance on a number of decisions rendered by the Apex Court and this Commission . On the other hand, learned counsel representing the complainants relying on certain other decisions of Supreme Court has maintained that complainants were well within their rights to invoke the original jurisdiction of this Commission by filing the present complaint and this Commission has the requisite jurisdiction and competence to try and answer the complaint. According to him, there are no complicated facts and no voluminous evidence is required to be led in this complaint. We have considered the respective submissions put forth on behalf of the parties. The question as to when this Commission should or should not entertain, try and answer the complaint filed before it is no longer res integra and has been a subject matter of several decisions of the Apex Court, some of which we wish to refer hereafter. The Apex Court in the case of Dr. J.J.Merchant and Ors. Vs. Shrimati Chaturvedi AIR 2002 SC 2931 held that consumer fora would have the jurisdiction to adjudicate complicated questions / issues of facts and law arising out of the complaint under the Consumer Protection Act. THIS was reiterated in the case of CCI Chambers Coop. HSG Society Ltd. Vs. Development Credit Bank Ltd. 2003 CTJ 849 (SC) (CP). In the case of Synco Industries Vs. State Bank of Bikaner & Jaipur & Ors. (2002) 2 SCC 1, where the Apex Court held as under: Given the nature of the claim in the complaint and the prayer for damages in the sum of rupees fifteen crores and for an additional sum of rupees sixty lakhs for covering the cost of traveling and other expenses incurred by the appellant, it is obvious that very detailed evidence would have to be led, both to prove the claim and thereafter to prove the damages and expenses. It is, therefore, in any event, not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the civil court. THIS is an appropriate claim for a civil court to decide and, obviously, was not filed before a civil court to start with because, before the consumer forum, any figure in damages can be claimed without having to pay the court fees. THIS, in that sense, is an abuse of the process of the consumer forum In the case of Oriental Insurance Company Ltd. Vs. Muni Mahesh Patel 2006 (134) Company Cases 103 (SC), in order to decide the complaint, the question of fact arose before the consumer fora whether the respondents wife was a teacher or not and in that case, Supreme Court observed as under: The Commission noted that the specific stand of the appellant was that there was mis-declaration in the proposal form and the false claim that the respondents wife was a teacher which as now appears is not the correct position. It also accepted that she was really not a teacher. Proceedings before the Commission are essentially summary in nature and adjudication of issues which involve disputed factual questions should not be adjudicated. It is to be noted that the Commission accepted that the insured was not a teacher. The complainant raised a dispute about the genuineness of the documents ( i.e. proposal forms) produced by the appellant. The Commission having accepted that there was wrong declaration of the nature of occupation of the person insured, should not have granted the relief in the manner done. The nature of proceedings before the Commission as noted above, are essentially in summary nature. The factual position was required to be established by documents. The Commission was required to examine whether in view of the disputed facts it would exercise the jurisdiction. The State Commission was right in its view that the complex factual position requires that the matter should be examined by an appropriate court of law and not by the Commission. In the case of Kishore Lal Vs. Chairman, Employees State Insurance Corp. (2207) 4 SCC 579, the Supreme Court observed as under: It has been held in numerous cases of this Court that the jurisdiction of a Consumer Forum has to be construed liberally so as to bring many cases under it for their speedy disposal. In spring Meadows Hospital V. Harjol Ahluwalia it was held that the CP Act creates a framework for speedy disposal of consumer disputes and an attempt has been made to remove the existing evils of the ordinary court system. The Act being a beneficial legislation should receive a liberal construction. In State of Karnataka V. Vishwabharathi House Building Coop. Society the Court speaking on the jurisdiction of the Consumer For a held that the provisions of the said Act are required to be interpreted as broadly as possible and the for a under the CP Act have jurisdiction to entertain a complaint despite the fact that other fora/ courts would also have jurisdiction to adjudicate upon the lis. These judgments have been cited with approval in paras 16 and 17 of the judgment in Secy., Thirumurugan Coop. Agricultural Credit Society V. M. Lalitha. The trend of the decisions of this Court is that the jurisdiction of the Consumer Forum should not and would not be curtailed unless there is an express provision prohibiting the Consumer Forum to take up the matter which falls within the jurisdiction of civil court or any other forum as established under some enactment. The Court had gone to the extent of saying that if two different for have jurisdiction to entertain the dispute in regard to the same subject, the jurisdiction of the Consumer Forum would not be barred and the power of the Consumer Forum to adjudicate upon the dispute could not be negated.
Mr.Krishnamani placed heavy reliance upon the decision of this Commission in OP No. 24 of 2005 titled as V.S.Badlani Vs. Indian Bank, wherein this Commission held as under: Seeing various judgments of the Supreme Court and this Commission, it is evident that wherever not only the complicated questions of law but dispute questions of facts, relating to unauthorized representations made about paying higher rate of interest and requirement of recording voluminous evidence etc. and relating to forgery and conspiracy involving eight persons and other points mentioned earlier are involved, it would be desirable that the matter should not be dealt with by this Commission and could be relegated to the civil Court. We feel that in the present state of law and observation of the Supreme Court itself and the aforesaid circumstances, we cannot take any other view. It is submitted that facts of the above mentioned case were broadly similar to the instant matter where there are allegations of fraud, forgery and fabrication of documents. This Honble Commission refused to exercise its jurisdiction in such dispute and relegated the matter to the Civil Court.
8. ON the strength of the above decisions, Mr.Krishnamani submitted that facts of the present case are broadly similar to the above referred case because here also allegation of fraud, forgery and fabrication of documents have been made. To further his submission, he has invited our attention to various circumstances which according to the learned counsel must be considered and answered before the claim of the complainant to receive back the deposited amount can be allowed. Some of the circumstances we may note herein as under:
a. All the deposits were pooled from Tamil Nadu into a small branch at Kongreddipalle Distt. Chittoor especially in view of the fact that the depositors or the power of attorney holder admittedly never ever visited the branch or Kongreddipalle in their lifetime. b. The identity of depositors / power of attorney holder is under cloud inasmuch the complainants have not chosen to contact the applicant bank concerned branch personally till date even after the disclosure of fraud. c. The whole transaction was taking place through a third person as agent of complainants i.e. Mr.Ananatha Kumar. Besides there are admittedly number of other persons who have received commission and / or acted as intermediaries viz., Rama Subramaniam, nagappa, Prakash Shinde, Bharat Shah, Karunakar Babu, Harish D Patel etc. The investigation is still in process and the actual fraud can only be detected once a criminal proceedings are disposed. d. The FCNR (B) deposit receipt furnished before this Forum by complainants is fake, forged and fabricated and were never issued by the appellant bank, the claim is based on fabricated receipt. The paper quality, printing etc. of the fake receipts is materially different from the actual paper quality and printing used by bank for getting the deposit receipts printed. e. The genuine Original receipt for actual amount issued by applicant bank have not been produced nor the complainants have made any declaration as to the present status of that receipt.
It is also pointed that CBI has investigated into the large scale fraud and forgery behind these transactions and has filed chargesheet against as many as eight persons including the then Bank Manager and Ramasubramaniam etc. According to the chargesheet, it were the agents of the complainants who were involved in fraud and forgery besides the Manager of the Bank and were responsible for swindling away large amounts through the following transactions conducted in the NRE/SB account of the complainants. Anant Kumar, Nagesh and Karunakar Babu came to OP No.3 and presented five cheques of NRE/SB Account signed by power of attorney holder Mr.Harish Patel for Rs.15 lacs, 20 lacs, 29 lacs, 20 lacs and 16 lacs respectively and requested for issuing Demand Drafts as under:
a. Demand Draft worth Rs. 29 lacs ( 4 drafts ) drawn on Vijaywada in favour of one Mr.V.Ashok Kumar; b. Demand Draft of Rs. 20 lacs ( 3 drafts ) drawn on Bangalore in favour of one M/s Graphix; c. Demand Draft for Rs.16 lacs ( 3 drafts ) drawn on Bangalore in favour of one Mr.B.K.Manjunath; d. Demand Draft of Rs.20 lacs (3 drafts) drawn on Hyderabad in favour of Mr.B.K.Manjunath; e. Demand draft worth Rs.15 lacs ( 2 drafts) drawn on Bangalore in favour of M/s Classis impex; It is alleged all the D.D. challans were bearing signatures of power of attorney holder i.e. Mr.Harish Patel. The demand drafts were prepared and handed over to Mr.Ananta Kumar. Mr.Krishnamani also pointed out that a sum of Rs.1,12,60,958/- was withdrawn from the account through such fraudulent transactions by the above named persons.
Learned counsel for the complainants have not denied the above circumstances / pleas but he has submitted that the complainant is not concerned with the said transactions because the opposite party-bank having not disputed the deposit of sum of 1,96,749.24 GBP in the FCNR (B) account, they are liable to repay the said amount alongwith interest and compensation because the bifurcation of the account on the basis of the instructions issued by the attorney of the complainant was in clear violation of RBI guidelines. In our view, it will amount to over simplifying a complicated issue. Whether the opposite party-bank acted in violation of the RBI guidelines or not while effecting the bifurcation of the account of the complainant is only one circumstances in the chain of circumstances under which several transactions were effected in fraudulent manner by several persons purportedly engaged by the complainant as financial advisors / consultants / commission agents. What was the role of the bank manager and those persons purporting to act on behalf of the complainants has been a subject matter of investigation by the economic wing of the CBI and a chargesheet stands filed against eight accused persons. Whether the transactions were genuine / fake or fraudulent and what was the modus operandi of the perpetrators of the said transactions is the matter on which the special court is yet to give its verdict. On the face of this position, we must consider the question whether this Commission in exercise of its summary jurisdiction would be able to adjudicate al those issues arising on the complaint in an effective manner. If this Commission ventures to do it, it may have to record the evidence of all those persons whose evidence was collected by the CBI. It is only after detailed examination and cross examination of those witnesses and the documentary evidence i.e. voluminous record involved in the said bank transactions that the Commission may perhaps be able to adjudicate on the said question. We have, therefore no hesitation to hold that the complaint indeed raises very complicated question of facts and law which can only be answered by a regular Civil Court and the complainants should be relegated to the Civil Court to work out their remedy for the entire claim made by them in the present complaint or this Commission can decide upon the claim in regard to which there is no dispute between the parties. Going by the specific pleas taken by the opposite party-bank and assuming for a moment that they may be able to establish at the trial and on that basis they may exonerate themselves from their liability to pay the disputed amount. We see no reason why we should not consider and allow the claim of the complainant to the extent it is admitted by the opposite party.
9. IN the case in hand according to the opposite party, out of a total amount of 1,96,749.24 GBP deposited by the complainants in the FCNR (B) account, only a sum of 1,47,549.24 GB Pound has been siphoned off by deploying fraudulent means by certain agents / financial consultants of the complainants in connivance with the Bank Manager but still the balance amount of GB Pound 49200 is intact and available with the opposite parties. During the course of hearing, we inquired from the learned counsel representing the opposite parties if opposite parties can possibly have any objection in refunding at least GB Pound 49200 lying with them alongwith accrued interest to the complainant so as to alleviate the sufferings of the complainants to some extent. Mr.Krishnamani, learned counsel for the opposite party under instructions of the opposite party-bank stated that opposite party has no objection to release the said amount to the complainant provided they are willing to furnish indemnity to the satisfaction of the opposite party-bank. IN our view, when there is no clout over this sum of GB Pound 49200 alongwith interest accrued thereon as no other person has staked or possibly can stake any claim to this amount except the complainants, insistence of the opposite party for furnishing indemnity for release of the said amount is unjustified. The opposite party in all fairness should at least refund the said amount to the complainants once investigation of the CBI is over and chargesheet stands filed. By not releasing even the said amount, in our opinion, the bank has committed limited deficiency in service. We, therefore, see no reason why at least the complaint be not allowed partly and the opposite party directed to return the amount of GB Pound 49200 alongwith accrued interest thereon as per RBI guidelines to the complainants forthwith. So far as the claim of remaining amount of 1,47,549.24 with compensation for not refunding the said amount after maturity is concerned, the same can very well be subject of civil suit for the above stated reasons.
10. IN the result, we partly allow the complaint and direct the opposite parties to repay a sum of GB Pound 49200 with upto date accrued interest as per the calculation of the opposite parties in terms of the RBI guidelines to the complainant within a period of four weeks from the date of this order failing which the amount shall carry interest @ 12% p.a. from the date of default. So far as it relates to the balance disputed claim of GB Pound 1,47,549.24 and interest and compensation, the same cannot be adjudicated upon by this Commission in exercise of its summary jurisdiction and, therefore, it is dismissed with liberty to the complainant to approach the Civil Court of competent jurisdiction to claim the said relief. IN doing so, they may seek exclusion of time taken in these proceedings going by the observations made by the Supreme Court in Laxmi Engineering Works vs. PSP. S. G. INdustrial INstitute 1995 (3) SCC 583. Even otherwise, Mr.Krishnamani in all fairness submitted that opposite parties will not raise any objection in regard to the limitation if a Civil suit is filed by the complainant to seek the reliefs claimed in the present complaint. Parties to bear their own costs.
