2020(4) ALL MR (JOURNAL) 77
Delhi High Court
JUSTICE DEEPA SHARMA JUSTICE C. VISWANATH
Punjab National Bank Vs. Anurag Gupta
First Appeal No. 1756 of 2019
1st November 2019
Petitioner Counsel: Mr. AJAY SHANKER
Act Name: Consumer Protection Act, 1986
Section 2(1)(d) Consumer Protection Act, 1986 Section 12 Consumer Protection Act, 1986
ORDER :- The present Appeal, under Section 19 of the Consumer Protection Act, 1986 (for short “the Act”) has been filed against the order dated 28.06.2019 of the State Consumer Disputes Redressal Commission, Lucknow, Uttar Pradesh (for short “the State Commission”) in Appeal No.134 of 2017 filed by the Respondent (hereinafter called as “the Complainant”).2. The admitted facts of the case are that the Appellant (hereinafter called as “the Bank”) had leased out a locker to the Complainant. Yearly rent of the locker was 800/-. The locker was leased out sometime in 1994 and initially the rent was debited from saving bank account and after some time, the Complainant started to deposit locker rent by cash in the bank account. Due to some unavoidable circumstances, the Complainant defaulted in payment of rent for locker. The Bank sent a notice dated 28.06.2013 at his address. In response to this notice, the Complainant deposited the rent as demanded in the notice. However on 30.02.2015, the Bank broke opened the locker of the Complainant and prepared an inventory and then the articles along with the inventory were sealed and kept in a separate locker under the control of the Bank. The Complainant came to operate his locker on 18.04.2015 and learnt about this fact. Thereafter, he lodged a police complaint. Aggrieved by this act of the Bank, the Complainant filed the Complaint before the State Commission alleging that the act of the Bank amounts to deficiency in service and claimed compensation from the Bank for this act and also claimed money for the loss of his articles.3. The plea taken by the Bank is that the Complainant had defaulted in paying the rent for two years. The Bank after giving notice to the Complainant broke open the locker and had not committed any deficiency in service. The plea taken is that the Bank had sent three notices dated 12.09.2014, 19.12.2014 and 14.01.2015 but the notices could not be served upon the Complainant and received back with the postal remarks “incomplete address”. The plea was also taken that the Bank had also sent an employee to personally contact the Complainant but he also could not contact the Complainant due to non-availability of Complainant at the given address.4. The Complainant’s case is that no such notices were ever served upon him. He contended that only one notice was sent to him demanding 800/- towards rent and after receiving the said notice, he had duly deposited the said rent with the Bank. His plea is that no such notices as alleged by the Appellant were ever sent to him. His plea is that he would have received those notices like the earlier one which he had received on the same address.5. Parties led their evidences before the State Commission. On perusing the evidences on record, the State Commission reached to the conclusion that once the Bank was satisfied that the notices were not served upon the Complainant, it ought to have get it served by publication through newspaper to ensure that it is acting as per the laid procedure. Finding that the act of the Bank was in violation of the rules and regulations which require the service of notice upon the Complainant before taking any such action, the State Commission concluded that there is a deficiency in service on the part of the Bank and awarded following compensations to the Complainant: “On the basis of the aforesaid facts, the complaint is partly admitted and the opposite party bank is directed to pay Rupees Five lacks to the complainant as compensation along with Rupees Ten Thousand as litigation expense. The complainant is also entitled for 9% annual interest on the aforesaid amount from the date of decision till actual payment from the opposite party.”6. This order is impugned before us. It is argued that under the rules which require the notice to be served upon the Complainant, the Bank had duly sent notices but the same were received back unserved. It is argued that there is no procedure that in a situation where notices remain unserved it should be served by way of publication. It is further submitted that the notices were sent at the address given by the Complainant and the Bank had no other address of the Complainant with them. It is argued that the rents were not duly paid and there was a default and the Bank was within its authority to break open the locker. Our attention is drawn to Clause 8 of the Agreement between the parties which authorises the Bank to break open the locker in case of default in paying the rent. Our attention is also drawn to RBI guidelines 2.2 ii and it is argued that in case the locker remains non-operative for certain period, the Bank is within its power to break open the locker. It is further argued by learned Counsel that the procedure to be followed for breaking open the locker had been duly followed and inventory etc. had been duly prepared. It is argued that the findings of the State Commission are untenable and are contrary to these rules and regulations.7. We have given thoughtful consideration to the arguments of learned Counsel. Clause 8 of the Agreement between the parties reads as under: “8. For realisation of all rent and / or other charges the bank shall have the first lien or charge on the contents of the locker in the case of non payment of the rent and or other charges, the bank shall have the right to get the locker vacated by giving the lessee 15 days notice in writing informing him that if the arrears are not paid within that period, the bank may break open the locker and realise its dues, charges and expenses by public or private sale of the whole or part of the contents of the locker at the entire risk and responsibility and cost of the lessee. The balance of the contents or the surplus sale proceeds as the case may be will be held by the bank and will be given to the rightful person provided that in the case of the contents, fee and other charges prescribed under the Bank’s rule for safe custody are paid to the bank should there be any deficit on sale as aforesaid the bank shall be entitled to recover the same including the charges for breaking open the locker and all other expenses incurred in this connection from the lessee personally or in the case of joint lessee from all or any of them. Whenever the said locker is broken open, it shall be done in the presence of the bank manager and two respectable witness and an inventory of the contents of the locker shall be prepared and signed by them and I/we shall not be entitled to raise any objection thereafter to the nature and extent of the contents in the locker or to the regularity of the sale thereof which shall be final conclusive and binding on me/us.”8. This Clause of the Agreement clearly requires that “the Bank shall have the right to get the locker vacated by giving the lessee 15 days notice in writing informing the Complainant that if the arrears are not paid within that period, the Bank may break open the locker and realise its dues.” Therefore, it is clear that 15 days’ notice should be given in writing informing the Complainant about the arrears and asking him to clear the arrears and also that if the arrears are not cleared, the Bank shall break open his locker. We have gone through the letters dated 12.09.2014, 19.12.2014 and 14.01.2015 which the Bank has allegedly sent to the Complainant. The letter dated 12.09.2014 which was sent first reads as under: “Punjab National Bank (SAFE DEPOSIT VAULT) REF. NO. ANURAG AND SAVITRI DEVI CIVIL COURT AGARA Dear Sir / Madam LOCKER NO. 506 While inviting your attention to our letter dated 28.6.13, 01.08.14 we beg to remind you that the 1800 + panelty yearly rent on the above locker fell due for payment on 08.08.14 which amount has not been received by us so far, despite our aforesaid reminder. As the rent on locker is always payable in advance, we would once again request you to please remit the amount without delay Yours faithfully Custodian H.O. 7, Bhikaji Cama Place, New Delhi”9. From the bare reading of this letter, it is apparent that in this letter, the Complainant was not informed that in case the arrears are not paid, his locker would be broken open. It is only in the notices which were allegedly sent on 19.12.2014 and 14.01.2015 that there is a mention of the warning that in case the arrears are not cleared, the Bank shall break open the locker. Clause 8 of the Agreement clearly requires that this action can be taken by the Bank only after giving 15 days’ notice in writing to the Complainant thereby informing the locker holder about proposed act. The language only suggests that the locker holder must be informed that if he does not clear his arrears, his locker shall be broken open. It is apparent that admittedly none of the notices was served upon the Complainant and received back by the Bank. The Bank considered it sufficient notice upon the Complainant. We are, however, of the view that this is not a sufficient notice to the Complainant. Unless the notices are served upon the Complainant and he has the information of the proposed act of the Bank that the Bank is going to break open his locker in case he does not clear the arrears, it cannot be considered that the Bank had complied with the requirement of Clause 8 of the Agreement. It is also strange that while a notice dated 01.08.2014 sent at the same address for the arrears for the year 2012-2013 was duly served and subsequent to which the Complainant had paid the arrears, the subsequent notices which were sent a month later were received by the Bank with the noting that the address is incomplete. The fact, however, remains that none of the three notices was served upon Complainant. In such a situation, the only course open to the Bank was to give a public notice to the Complainant informing him about the clearance of arrears and in case of failure to clear such arrears his locker would be broken open. In such circumstances, the act of the Bank without due service of notice upon the Complainant, certainly amounts to deficiency in service. There is no illegality or infirmity in the impugned order. The Appeal has no merits and the same is dismissed in limine.
Decision : Appeal dismissed.