MR. VINAY KUMAR, MEMBER
Consumer Complaint No.123 of 2012 is filed by M/s. Sapient Corporation Employees Provident Fund Trust (hereinafter referred to as the Complainant), against the HDFC bank Ltd. The Complainant has also impleaded two Managers of the Bank as OPs 2 and 3. According to the Complainant, the short point for consideration is whether the OP-Bank has committed any deficiency of service in terms of the provisions of the Consumer Protection Act, 1986, by debiting the account of the Complainant. It is alleged that the demand of recovery was against the Sapient Corporation not against the Complainant i.e. Sapient Corporation Employees Provident Fund Trust, which is a separate legal entity.
2. Brief facts of the case, as per the Complaint petition, are-
"that on 21.08.2010 Opposite Party No.1, through O.P. No.2, informed the officials of the Company and followed it up by an email to the Company, informing that they are in receipt of an order/notice dated 20.08.2010 from the Employee Provident Fund Organization (EPFO) for the recovery of Rs.1,47,52,766/- (Rupees One Crore Forty Seven Lac Fifty Two Thousand Seven Hundred Sixty Six only) against the Company and for prohibiting from making any payments out of the amount lying in the credit of M/s. Sapient Corporation Pvt. Ltd. (Company). It was further informed that they had put on hold on the account of the complainant to the tune of said amount and if the company wishes to make the account operational, then it should bring the stay order by 12:00 noon of 23.08.2010.'
3. Allegedly, the OPs were advised that no debit should be made to the account of the trust since it was a different entity under the law from the Company. The officials of the Company sent a reply e-mail to the OP-Bank in this behalf. However, on 25.8.2010 the OPs informed the Company that they have already issued a demand draft on 23.8.2010 in compliance with the notice of the Employees Provident Fund Organization dated 20.8.2010.
4. It is alleged that the OPs have acted with wilful negligence in wrongly paying out an amount of Rs.1,47,52,766/- (Rupees One Crore forty seven lakh fifty two thousand seven hundred sixty six only), without any authority or mandate, from the account of the Complainant and are therefore guilty of deficiency in service and hence are liable to refund the said amount along with interest and damages together with legal expenses and costs of this complaint. Accordingly, the Complaint Petition seeks the following reliefs:-
'a. ORIGINAL AMOUNT Rs. 1,47,52,766 (Rupees One Crore forty seven lakh fifty two thousand seven hundred sixty six only).
b. INTEREST @ 36% per annum from the date of debiting the account of the complainant i.e. 23.08.2010 till the date of realisation.
c. DAMAGES on account of deficiency in service causing harassment misery, hardships and agony etc. being Rs.50,00,000/- (Rupees Fifty Lac Only).
d. LEGAL Expenses incurred by the Complainant, computed at Rs.1,10,000/- (Rupees One Lac ten thousand only.)'
5. We have perused the records and heard the counsels for the two parties. A perusal of the records as submitted by the Complainant and the facts as stated in the Complaint Petition shows that the Bank had received order no.HR/GGN/COMP-I/26147/5466 dated 20.08.2010 from the Assistant Provident Fund Commissioner, Gurgaon. It clearly mentioned the account no. as C/A- 00031110000846 which is the number of the account held by the complainant Trust with the OP Bank directed the Bank to pay a sum of Rs.14752766/- (Rupees one Crore forty seven lakhs fifty two thousand seven hundred and sixty six) only to the credit of the regional Provident Fund Commissioner through a demand draft. The order also directed the Bank as follows:-
'It may further be noted that no payments out of future receipts in the account /accounts or any interest accuring or becoming payable in the accounts or Fixed Deposit Receipts of the defaulting establishments may be made in favour of anybody till the balance payable towards PF damages stand fully liquidated and this order of attachment stands withdrawn.
Evidence of the above payments or payments having been made in compliance of this order may be produced before the undersigned immediately.
It may be noted that in the event of non-compliance of the requirements of this order the undersigned will have no other alternative but to deem you personally to be the Employer in default to the extent of Rs.14752766/- (Rupees one Crore forty seven lakhs fifty two thousand seven hundred and sixty six only), under the provisions of the clause (x) of the sub-section 3 of Section 8F of the Act and further action to recover the said amount as if the same is arrears due from you will be initiated in accordance with the relevant provisions of the E.P.F. & M.P. Act, 1952.'
Copies of e-mails produced on record by the Complainant show-
a. that the OP/bank had informed the complainant about the order of APFC, Gurgaon on the very next day i.e. on 21/8/2010, stating categorically that it would wait for stay or revocation of the order till 1200 hrs on 23/8/2010 and thereafter 'would be debiting the a/c with the recovery amount and remitting the funds to the authorities.'
b. Admittedly, the notice for payment of the above amount was received by the Sapient on 11.8.2010 in which 15 days time, from the date of receipt, was given to make the payment. But, the reply sent to the Bank does not show if any action to either pay or to obtain stay/revocation of the order had been taken in the 10 days preceding the complainant’s reply of 21.10.2010. It only says 'We are in a process of challenging the said order by filing an appeal with EPFAT (Employees Provident Fund Appellate Tribunal on 25.8.10 i.e. Wednesday (since Monday/Tuesday courts being closed due to festivals.'(Page 34 of the Paperbook).
c. The reply of 21.8.2010 from the Complainant to the OP/bank states that 'The RPFC letter of 20.8.10 does not specify any deadline for the bank to make the payment.' Therefore, the complainant had advised the bank not to make any payment on 23.8.2010. This is factually not true. The relevant part of the APFC order, reproduced earlier in this order, would show that the bank, under the threat of legal action, had been directed by the authority that'Evidence of above payment or payments having been made in compliance of this order may be produced before the undersigned immediately.'
6. In para 10, the Complaint petition says that ' the Opposite Parties have acted with wilful negligence in wrongly debiting an amount of Rs 1,47,52,766 (Rupees one crore forty seven lac fifty two thousand seven hundred sixty six only), without any authority or mandate, in account of the Complainant and are therefore guilty of deficiency in service'. But, neither the complaint petition nor the counsel for the complainant have made any attempt to explain how does action in compliance with the direction of a statutory authority become wilful negligence and deficiency in service.
7. We find that a copy of the Legal Notice issued by the complainant, before filing the consumer complaint, has been annexed as Annexure C-14. In para 3 it says 'That the account of my above client was debited by you inspite of clear instructions from my client not to effect the debit specifically bringing to your notice that the said orders of recovery caused by the EPFO are without any basis, without authority and hence against law.' Subsequently, in para 8 the Legal Notice says 'That now, through this notice my client wishes to inform you that in an appeal preferred by the Company challenging the alleged recovery before the EPF Appellate Tribunal (EPFAT), the appeal has been allowed against the RPFC, Gurgaon and needless to say this has vindicated the stand of my client.' From this it is clear that the complainant knew that his remedy against the order of recovery, lay in challenging its legality before the appellate authority. It did eventually file an appeal. The Appellate Authority allowed the appeal and set aside the recovery order.
8. The question that arises here is whether the fact of appeal being allowed by the EPFAT in 2011 will render compliance in 2010 by the OP/bank with the order of the EPFO, an act of deficiency in service. Section 2(1)(g) of the Consumer Protection Act, 1986 has defined 'deficiency' to mean-
'any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;'
It is not the case of the complainant that the act of the bank in paying the amount, in compliance with the orders of a statutory authority and after giving the complainant due notice of the same, amounts to a deficiency of service. The allegation in the complaint petition is that the payment has been made by the OPs, despite request and advice of the complainant not to make it. In support, the complainant has relied upon the decision of this Commission in Saraswati Co-Op Bank Ltd Vs. Dean Leslie Roy 1 (2008) CPJ 163 (NC), wherein it was held that unauthorised debit in complainant’s SB account, without his consent, amounted to deficiency of service. Facts of the case cited are that the Directorate of Enforcement had imposed a penalty of Rs 50,000 on the complainant. But the OP/Bank had remitted an amount of Rs 2.5 lakhs, debiting it to the account of the complainant. Allegedly, this was done on oral instructions of the complainant. The National Commission held that in the absence of the name of the Bank officer who had allegedly received the oral instruction and the date thereof, there was no reason to disbelieve the complainant that no such instruction was given. The facts of the case before us are on an entirely different footing. The OP bank has paid the amount, in spite of the advice of the complainant not to pay. Therefore, the question is not whether there was any instruction from the complainant to pay. The question is whether the action of the OP bank in not implementing the complainant’s direction to disobey specific, written directions of a statutory authority, would amount to a deficiency of service, as defined under the Act.
9. In view of the detailed consideration of the facts and circumstances of the case before us, we hold that the action taken by OP bank was proper, legal and after reasonable notice to the complainant. It does not amount to a deficiency of service and no cause of action would arise from it. We therefore reject the contention of the complainant that the cause of action first arose when the bank informed the company on 21.8.2010 about the communication received from the EPFO and arose again when the OP debited the account of the complainant on 23.8.2010. The complaint petition is accordingly held to be devoid of any merit.
10. We also deem it necessary to consider whether this complaint would attract the provision in Section 26 of the Consumer Protection Act, 1986. This provision requires the consumer fora to dismiss a complaint if it is found to be frivolous or vexatious in nature. In other words, we need to see whether the complaint lacks seriousness and is filed without sufficient cause or without sufficient grounds. Significance of this provision lies in the fact that the Consumer protection Act, 1986 is a social legislation to provide economic justice and to protect the consumer from exploitation. For this reason, no court fees are payable for filing a complaint, as required in civil suits. Consumer Protection Rules, 1987 prescribes a maximum fee of Rs 5000 for making a complaint, involving total value above Rs one crore. Therefore simultaneously, there is need to guard against possibility of such absence of court fee being misused for pursuing false and frivolous litigation in the consumer fora. In this context, the following facts acquire spec
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ial significance- a. The complaint is filed after the complainant had already won his appeal in the EPFAT against the recovery of Rs 1,47,52,766 (Rupees one crore forty seven lac fifty two thousand seven hundred sixty six only) made as per order of the EPFO, Gurgaon. b. The complaint does not disclose whether consequent action, in pursuance of the order of EPFAT, for obtaining refund of the excess/wrong recovery has been initiated by the complainant Trust or by the company. If not, why? c. If refund is already claimed or received from the EPFO as per the order of EPFAT, the complaint makes no attempt to explain what is that other loss which is sought to be recovered from the OP bank, as the appeal before the EPFAT also included claim for interest. 11. We therefore, hold that the complaint is not only without merit but also frivolous and vexatious in nature. It has been filed with a very palpable purpose to harass the OP bank. Consequently, Consumer Complaint No. 123 of 2012 is dismissed for want of merit as well as for being vexatious and frivolous in nature. We therefore, deem it just and proper to impose cost of Rs.25,000 on the complainant. The same shall be paid to the OP/HDFC Bank within a period of three months. Failing this, the amount shall also carry interest at 10% for the duration of delay.