Mr. Chander Kalani And Anr vs State Bank Of India Thr. Its ...
2021 Latest Caselaw 8573 Bom

                                                             5-IAST-98257-20.doc

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                 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        CIVIL APPELLATE JURISDICTION
                    INTERIM APPLICATION (ST) NO. 98257 OF 2020
                                          WITH
                              FIRST APPEAL NO. 1345 OF 2019
        Mr. Chander Kalani & Anr.                           ...Applicants
                Versus
        State Bank of India                                 ...Respondent
                In the matter of
        State Bank of India                                 ...Appellant
                Versus
        Mr. Chander Kalani & Anr.                           ...Respondents
                                          ----------
        Mr. Rizwan Siddique i/by Siddiquee & Associates for the
        Applicants.
        Dr. Abhinav Chandrachud a/w Mr. Ravi Goenka, Mr. Abhishek
        Bhaduri, Goenka Law Associates for the Respondent-
        Org.Appellant/present Respondent.
                                          ----------

                                          CORAM :        K.K. TATED &
                                                         R.I. CHAGLA, JJ.
                                          DATE         : 29 June 2021

        ORDER :

1. Heard the learned Counsel for parties.

2. By this Interim Application, the Applicant original

complainant is seeking permission to withdraw the amount

deposited by the Appellant - State Bank of India pursuant to

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the order dated 15th October, 2020 passed by this Court in Civil

Application (St.) No.24647 of 2019.

3. In the present proceeding, the Applicant has fled

the complaint for adjudication under Section 46 of the

Information Technology Act, 2000 before Adjudicating Offcer.

In that complaint the Applicant stated that the Appellant Bank

on the basis of fraud email released the fied deposit amount of

Rs.63,00,000/- in favour of the third party. It is the case of the

Applicant that 6 fied deposits were in the joint names of both

Applicants. On the basis of the alleged email in the name of

Applicant No.1, the Appellant Bank released Rs.63,00,000/- in

favour of third person. When the Applicant requested the bank

to reimburse the said amount they failed and neglected to do

so. Hence the Applicant has fled complaint No.1 of 2014 on

30th December, 2013 before the Adjudicating Offcer.

4. The Adjudicating Offcer after hearing both sides

vide its order dated 12th January, 2015 held that the Appellant

bank as per Section 43 A of the Information Technology Act,

2000 (for short "the Act") is liable to pay compensation of

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Rs.40,00,000/- (Rs. Forty lakhs only) to the Applicant, to cover

partly their loss within a month from the said order, failing

which they have to pay interest @ 12% compounded monthly.

5. Being aggrieved by the said order dated 12th

January, 2015, the bank preferred Cyber Appeal No.13 of 2015

before the Telecom Disputes Settlement & Appellate Tribunal,

New Delhi. The Appellate Tribunal after hearing both sides

dismissed the said Appeal with costs of Rs.25,000/-. The

operative part of the said order reads thus:-

"23. In the result, we fnd no merit in the Appeal. It is dismissed accordingly. The amount of compensation awarded to the respondents should be made available to them, if not already made available, within one month from today failing which it shall become payable with interest @ 8% per annum with annual rest, from the date of the order of Adjudicating Offcer till the date of realization. The respondents are also held entitled to Rs.25,000/- as consolidated cost of the Appeal. This shall also be payable along with the compensation awarded."

6. In spite of the dismissal of Appeal, the Appellant

Bank failed and neglected to pay said amount to the Applicant.

Hence the Applicant made application before Competent

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Authority for eiecution of the said order. The Competent

Authority vide its order dated 13th August, 2019 directed the

bank to pay the said amount within one month, failing which

adverse actions will be taken under Section 64 of the Act. The

operative part of the said order reads thus:-

"It has been more than 4 years since the order was passed by this forum and still no payment has been made by the Respondent. No stay on the order of this Court has been received from the Hon'ble High Court. Hence, Respondent is given a fnal chance to compensate the complainant with Rs.40,00,000/- along with 8% interest compounded monthly and an additional cost of Rs.25,000/- as cost of appeal as per the order of the Hon'ble Tribunal. Respondent is further directed to pay an additional 12% interest compounded monthly from July 31, 2018, i.e. the date of the Judgment passed by the Hon'ble Tribunal. Respondents are directed to comply with this order within one month, failing which, adverse actions will be taken against the Respondent under Section 64 of the Information Technology Act, 2000.

7. In spite of the said order, the Appellant bank failed

to pay the said amount. Hence, the Applicant moved again

before the Competent Authority for issuing Revenue Recovery

Certifcate against the Appellant bank. The Authority vide its

order dated 24th January, 2020 directed the Collector and

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District Magistrate to recover the said amount with costs

immediately. Thereafter the Appellant Bank preferred the

present First Appeal in the month of March, 2019 and moved

for stay. The Civil Application (St.) No.24647 of 2019 for stay

was decided by this Court vide its order dated 15th October,

2020 and stay was granted on the condition that the Appellant

bank shall deposit the entire amount along with interest in the

Registry. The operative part of the said order dated 15th

October, 2020 reads thus:-

11. In view of above mentioned facts, following order is passed:-

A. Applicant is directed to deposit entire amount along with interest as per order dated 12.01.2015 passed by Adjudicating Offcer in the Registry of this Court on or before 05.11.2020.

B. If amount is deposited in time, there shall be interim relief in terms of prayer clause (a) which reads thus:

"(a) This Hon'ble Court be pleased to stay the operation and eiecution of the orders dated 31st July, 2018 and 12th January, 2015."

C. If amount is deposited, Applicant to intimate the other side in writing.

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D. Registry is directed to invest entire amount in fied deposit of any nationalized bank initially for a period of one year and same be continued till further orders.

E. Liberty granted to the Respondents to prefer appropriate application if they so desire for withdrawal of the amount and that be decided on its own merits.

F. Civil Application stands disposed of accordingly.

G. No order as to costs.

H. This order will be digitally signed by the Private Secretary of this Court. All concerned will act on a digitally signed copy of this order.

8. By the said order, this Court granted liberty to the

Applicant to prefer appropriate application for withdrawal of

the amount, if they so desire. It has been pursuant to the said

liberty that the Applicant preferred the present application for

withdrawal.

9. Learned Advocate for the Applicants submits that

both the Applicants are senior citizens. They lost

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Rs.63,00,000/- in 2013 because of negligence on the part of

Appellant bank. He submits that sum of Rs.63,00,000/- was

lying with the Appellant bank in fied deposit in joint names of

both the Applicants. He submits that neither Applicant No.1

nor Applicant No.2 sent any email to the Appellant Bank. He

further submits that the Appellant Bank on the basis of fraud

email from third person, in the name of Applicant No.1,

released the said amount in favour of third person. When the

Applicants requested bank to reimburse the said amount, they

failed and neglected to do so. Hence the Applicants approached

Adjudicating Offcer under Section 46 of the Act. The

Adjudicating Offcer instead of awarding Rs.63,00,000/- (Rs.

Siity three lakhs only) with interest compensated only

Rs.40,00,000/- (Rs. Forty lakhs only) holding that the

Applicant is also responsible in the present case.

10. The learned Counsel for the Applicants

submits that though Applicant No.1 is an NRI, he is staying in

Mumbai for more than four years. His address is shown in

cause title of the present proceeding. He submits that since

both the Applicants incurred loss of Rs.63,00,000/- (Rs. Siity

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three lakhs only) because of the negligence on the part of

Appellant Bank offcers, the Applicants should not be punished

for that. He submits that the Applicants required the said

amount for their business purpose. Hence this Hon'ble Court be

pleased to allow the Applicant to withdraw the said amount

during the pendency of the First Appeal. He submits that if the

Applicant is allowed to withdraw the said amount, no

irreparable loss would be caused to the Appellant Bank.

11. On the other hand, learned Counsel Dr.

Chandrachud appearing on behalf of the Appellant Bank

vehemently opposed the present Interim Application. He

submits that if the entire amount is withdrawn by the

Applicants, then nothing will survive in the present

proceedings. He submits that both the Applicants are NRI and

if the Appellant bank succeeds in the present proceedings, then

it would be very diffcult for them to recover the said amount.

He further submits that in any case, as on today the said

amount is lying in fied deposit, so that they can earn some

interest, which is benefcial to whosoever succeeds in the First

Appeal. Therefore, there is no question of allowing the

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Applicant to withdraw the said amount without furnishing any

security.

12. Learned Counsel for the Appellant Bank submits

that bare reading of the orders passed by Adjudicating Offcer

as well as the Appellate Authority clearly shows that the

Applicant himself was also responsible for releasing the said

amount in favour of the third person. Both of them never

informed the Appellant bank of the change in the mobile

numbers. Hence it remained on the part of the bank to verify

the said email through sms alert. On the basis of this

submission, the learned Counsel for the Appellant bank

submits that there is no substance in the present Interim

Application and the same is required to be dismissed with

costs.

13. We heard both sides at length. It is to be noted that

in the present proceedings, the Appellant bank transferred

sum of Rs.63,00,000/- from the account of the Applicants in

favour of a third party on the basis of a fraud email. During the

course of argument, when this Court called upon the Advocate

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for the Appellant bank to eiplain any provision or bye-law of

the bank, which permitted them to act on the basis of an email

and release the amount from the customers account, he failed

to show the same.

14. It is to be noted that in the present proceeding

both the Applicants are senior citizens and they have lost near

about Rs.63,00,000/- (Rs. Siity three lakhs only) in the year

2013. Though the Adjudicating Authority vide its order dated

12th January, 2015 directed bank to pay the said amount to

the Applicants, they failed and neglected to do so. They fled

Appeal in the year 2015 before the Telecom Disputes

Settlement & Appellate Tribunal, New Delhi. That Appeal was

also unsuccessful.

15. It is to be noted that though the order was

passed by the Appellate Authority on 31st July, 2018 and no

stay having been granted, the Appellant bank failed and

neglected to deposit and or to pay said amount to the

Applicants. They fled the First Appeal in the year 2019 and

moved for interim relief by way of Civil Application. The

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submission made by learned Counsel for the Appellant Bank

that they deposited more than Rs.80,00,000/- (Rs. Eighty lakhs

only) which includes interest in the Registry of this Court. This

is nothing but on account of the negligence on the part of the

Appellant bank's offcers to deposit the said amount earlier. If

the bank desires they can recover the said amount from the

concerned offcer by holding appropriate inquiry.

16. In view of the above mentioned facts, we are

of the opinion that the Applicants can be permitted to withdraw

the entire amount with the interest on their personal

undertaking that, if this Court called upon them to refund the

entire amount, they will do the same with interest, if any, as

per the Court orders. Hence the following order is passed:-

(i) The Applicants are permitted to withdraw the amount

deposited by the Appellant bank in the Registry of this Court

as per order dated 15th October, 2020 passed in Civil

Application (St.) No.24647 of 2019 with accrued interest on

personal undertaking before the Registry that, if this Court

called upon them to bring the entire amount with interest,

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they will do the same immediately.

(ii) Interim Application stands disposed of

accordingly with no order as to costs.

[R.I. CHAGLA J.]                                [K.K. TATED, J.]