NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
NEW DELHI
REVISION PETITION NO. 1229 OF 2012
(Against the order dated 30.01.2012 in Appeal No. 153 of 2011 of the
Orissa State Consumer Disputes Redressal Commission, Cuttack)
Smt. Kusum Devi
W/o Late Sunil Singh
Qr. No. DLB/A/88, Lingaraj,
Dera Chhak Colony,
P.O. Dera, Dist. Angul ........ Petitioner (s)
Versus
Chief Manager,
State Bank of India
Talcher,
At/po Talcher,
Dist. Angul 759100 …….Respondent (s)
BEFORE:
HON'BLE MR. JUSTICE J.M. MALIK, PRESIDING MEMBER
HON’BLE MR. VINAY KUMAR, MEMBER
For the Petitioner : Mr. Om Prakash Singh, Authorised
Representative
For the Respondent : Mr. S. L. Gupta, Advocate
Pronounced on 17th September, 2012
ORDER
JUSTICE J. M. MALIK, PRESIDING MEMBER
1. The principal question which falls for consideration is whether wife is liable for the loan advanced to her deceased husband?
2. The facts of this case are these. Smt. Kusum Devi, complainant in this case, is the wife of late Shri Sunil Singh. Her husband died on 10.9.2008. Smt. Kusum Devi opened a saving bank account six months after the death of her husband with the State Bank of India, Telchar. The bank debited the entire amount in the sum of Rs. 3,83,000/- from the saving bank account of Smt. Kusum Devi without authorization on the pretext that her husband had taken personal loan. The complainant was not aware of any such loan. She was not a co-borrower in the loan agreement. She never stood guarantor for her husband.
3. Consequently, she filed a complaint before the District Forum on the ground that the opposite party had committed deficiency in service and she was entitled to the above said amount with interest @ 23% p.a. and further claimed compensation in the sum of Rs.4,50,000/- towards mental torture and harassment.
4. The defence set up by the opposite party was that late Shri Sunil Singh during his employment in Mahanadi Coalfields Ltd. (MCL) had availed two personal loans by furnishing an irrevocable letter of authority in favour of MCL which was authorized to recover the installments due to the opposite party’s bank from his salary or from his terminal benefits as derailed in the letter of authority. It was contended that since the complainant did not discharge the loan amount of her husband, therefore, the bank was authorized to debit the amount from her passbook. Again, as per provisions under Section 171 of the Contract Act, 1872, entire amount of Rs.3,83,000/- was debited to the loan account of late Shri Sunil Singh for complete discharge and closer of the loan account.
5. The District Forum allowed the complaint but the State Commission reversed that order. Smt. Kusum Rani has filed the present revision petition.
6. We have heard Mr. Om Prakash Singh, authorized representative of the petitioner and Mr. S. L. Gupta, learned counsel for the respondent. Learned counsel for the respondent drew our attention towards Section 171 of the Contract Act, 1872, which is reproduced as under:-
“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.”
7. Lastly, learned counsel for the petitioner has cited an authority reported in Syndicate Bank vs. Vijay Kumar and Others (1992) 2 SCC 330. In this case, it was held that as per bankers lien, there is no bar to attachment of any deposit of a customer in bank which is payable at a future date. It was further held that on receiving the attachment notice, banker has to appear before the court to obtain suitable directions safeguarding its interest which the court will issue considering the banker’s lien over the deposits.
8. It was also argued that this was a house loan and the petitioner is housewife. She does not earn any amount. She was aware that the above said huge amount belongs to her husband. She could not furnish any proof that she is the owner of the said property.
9. Learned counsel for the respondent also pointed out that Shri Sunil Singh had given an undertaking to the effect that his entire estate and the property owned by him shall be liable for the reimbursement to the State Bank of India.
10. All these arguments are bereft of any merit. There is no iota of evidence which may go to show that the amount in question directly or remotely belongs to the petitioner’s husband. This fact involves title to the disputed property and there lies no rub for the petitioner to prove it before the civil court. There is no evidence that the petitioner is co-borrower or guarantor or in any way responsible for the general lien pertaining to her husband. Her husband’s account can be retained by the bank. The bank has no authority to retain the amount of his wife.
11. We are of the considered view that Section 171 of the Contract Act, 1872 is not applicable to the instant case. It must be borne in mind that wife and husband are two different persons, one spouse is not bound by the omission and commission committed by another spouse. Both have independent rights. By no stretch of imagination, it can be held that wife is liable for the loan of her husband. The authority cited above is not applicable to the facts of this case. If late Shri Sunil Singh was having another account in the bank, the bankers lien would have applied. Customer means customer, who does not include his wife.
12. The argument that undertaking given by a person involving any third person, who is not a party in the transaction between the parties, binds the third party, carries exiguous value. The undertaking is not binding upon the wife. The wife has no privity of contract. She cannot be made liable for the loan taken by her husband. If the bank thinks that this property ultimately belongs to late Shri Sunil Singh, it should be proved. However, no prima facie proof in this context was produced before us. It appears that the fault lies at the door of the bank itself. It is difficult to fathom as to why did it give the loan to late Shri Sunil Singh without any guarantee. It is also not understood from where the above said sum has arrived at the hands of the complainant. The opposite party could not prove that this money was ever owned by late Shri Sunil Singh. The evidence in this context is lacking.
13. For the reasons stated above, we accept the revision petition, allow the complaint and set aside the order passed by the State Commission. The respondent-bank is directed to reverse the debit entry from the date when it was debited and the petitioner will get normal interest as applicable to her saving bank account with effect from the debit entry till the said account subsists. There shall be no order as to costs.
..……………Sd/-……..………
(J.M. MALIK, J.)
PRESIDING MEMBER
……………Sd/-….……………
(VINAY KUMAR)
MEMBER
Naresh/Reserved
