TMI Blog2013 (5) TMI 67X X X X Extracts X X X X X X X X Extracts X X X X ..... export proceeds. In fact, it was only in August 1992 that the complainant had shifted its banking operation to Vysya Bank. However, packing credit limit was paid on 05.08.1993, but the outstanding in the account of the complainant on that date was ₹ 1,40,77,644/-. According to the complainant though the loan credit of the respondent bank was liquefied in 1993 and though the bank guarantee also expired on 30.10.1994, but the collaterals were not returned. Held that - We have deliberately stated the facts above along with the dates of the correspondence which went on between the parties stretching maximum in favour of the complainant. We do not find any justification as to how the non-return of collaterals could be complained of only in 2007 when admittedly the collateral securities were refused for the first time in somewhere in the year 1993 and when the bank ultimately returned the collaterals in March 2001. As regards the non-refund of XOS charges, we have already found that the complainant has not shown any rule under which he was entitled to the refund, thus there is a complete justification on the part of the respondent bank not to return collaterals. There is no ques ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l securities, they being :- (i) Original title deed of factory building at 220, Udyog Vihar, Phase 1, Gurgaon (Haryana). (ii) Original title deed of the factory building at C-58/1, Okhla Industrial Area, Phase II, New Delhi (market value of both properties was above Rs.3 crore at that time) (iii) Original title deed of Plot No.8, Gulmohar Marg, DLF, Qutab Enclave, Gurgaon (Haryana). According to the complainant this property was given as collateral security for temporary accommodation and additional bank guarantee limit and the market value of the property was above Rs.1 crore at that time. 2. The complainant then states that though the complainant asked for enhancement of various credit limits those applications were kept pending for two long years and therefore, though the complainant's foreign buyers had been pressurizing to ship the garments in time, in the absence of sufficient funds, complainant was unable to procure the required material for manufacturing of garments for exports and as such complainant having no other alternative was constrained to transfer banking operation to Vysya Bank in the month of August 1992. The complainant then wrote a lett ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed to the complainant that the enhancement of credit facility were subject to receipt of the collaterals. The complainant then mentions that Vysya Bank was annoyed for not obtaining the collaterals for renewal of pending proposal of credit facilities, therefore, it again requested the respondent bank in the year 1997 to release two properties namely - original title deeds of factory C-58/1, Okhla Industrial Area, Phase-II, New Delhi and DLF Plot No.8, Qutab Enclave, Gurgaon (Haryana) which were not mortgaged to the respondent bank to enable the complainant to submit the same to the Vysya Bank. However, the respondent bank informed vide its letter dated 25.03.1997 mischievously that though technically bank guarantees had expired but several export bills sent under collections were outstanding and advised the complainant to submit write off petition to RBI, if there were no possibilities to realize export proceeds. According to the complainant, it had already informed the respondent bank on 25.01.1997 that foreign buyers who had not kept their obligation of paying the export proceeds had filed bankruptcy petition before US Bankruptcy Court and the said bankruptcy petition was a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... title deed only on 03.03.2001 after causing irreparable loss. In short the complaint is on account of three grounds :- (i) Refusal to raise the credit limit; (ii) Refusal to return the collaterals; and (iii) Recovery of XOS charges of Rs.25,85,430/- 5. In its prayer, the complainant has prayed for ordering inquiry into unfair trade practices for not delivering the collaterals even after providing no dues certificate and having no charge thereby adopting unfair trade practice. An enquiry has also been prayed for in connection with creating liabilities against the expired bank guarantees in favour of AEPC. Thirdly, an enquiry has been sought for the illegal recovery of XOS charges flouting the RBI/ FEDAI Guidelines. The compensation/ damages/ financial loss has also been prayed for. Refund of XOS charges. Award of financial loss of Rs.1 crore caused by respondent by keeping the collaterals with them without the authority of law. There are some other prayers, which are not relevant. 6. This complaint was filed in 2007. There was another application filed for amendment of the complaint dated 18.09.2009. The fresh amended complaint was also filed wherein same d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pugned action can be categorized as unfair trade practice or monopolistic trade practice. Lastly, the counsel asserts that the complaint is barred by limitation and latches. In this behalf, it is pointed out that though the complainant was apparently aggrieved by non-release of collateral securities since 1993, it has chosen to file the present complaint only after 14 years i.e. in 2007. Similarly as regards XOS charges, it is also pointed out that those charges were payable in accordance Reserve bank of India Rules. It is pointed out that these charges went on accumulating on account of unrealized export bills sent for collection till 09.02.2009 and it was only when RBI wrote off unrealized export bills amounting to Rs.9,05,90,272/-. It is pointed out that merely writing off the unrealized export bills could not and did not result in the write-off the XOS charged which had accumulated over the years. It is also reiterated that non-release of collateral securities was in terms of banking practice and law as applicable and in so far as XOS charges are concerned, they were un-realised charges which were due. During the debate, the learned counsel invited our attention towards a lette ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rges were not refundable and that the RBI had allowed write-off on 09.02.2009 and XOS charges recovered before the said date are not refundable. On this basis, the learned counsel points out that the XOS charges were deducted by bank on 08.04.1997 and 10.07.1998. Since thereafter there is no acknowledgement on the part of the bank, therefore, the petition filed in 2007 was obviously barred by limitation. Similarly, the counsel points out that the collaterals are admittedly released in March 2001 and thereafter there was no justification on the part of the complainant to wait upto 2007 and claim for damages on the ground of late return of collaterals. In this behalf, the learned counsel has relied on the reported judgment in Corporation Bank v. Navin J. Shah [2000] 2 SCC 628. On this backdrop, it is required to be seen as to whether the present complaint is maintainable. 9. It is to be seen that the complainant used to export garments through the Apparel Export Promotion Council (AEPC) and several export bills were sent to the foreign buyers through the bank for "collection only". In respect of these "collections only" export bills, the bank used to levy xos charge of Rs.250/- per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urn original Bank Guarantee to you for your cancellation on receipt of from AEPC, which we expect to get within 15-20 days from AEPC". The learned counsel argues that it was on this basis that the XOS charges were deducted amounting to Rs.25,89,430/- from the complainant's margin monies/ fixed deposits maturing with the bank on 08.04.1997 and 10.07.1998. The learned counsel pointed out that the bank had referred the outstanding export bills to RBI for cancellation and the subsequent XOS charges were not levied since the outstanding export bills had been referred to RBI for cancellation. The learned counsel, therefore, points out that there was absolutely nothing wrong in first levying the XOS charges which was as per the banking practice and the RBI Rules and further the adjustments of those XOS charges was done as per the request made by the complainant himself. During the debate, the learned counsel appearing for complainant earnestly urged that the complainant had no other option because had had been facing financial debacle and he was almost coerced into writing the letter dated 09.06.1998 and 09.07.1998. We have to say nothing about the compulsions on the part of the complaina ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eturning the collateral securities on the ground that there were outstanding against the complainant against the XOS charges account, which were not cleared and it was apparent from the bank's letter dated 25.03.1997. We will not go into the question as to whether the bank was liable to return the collateral securities on demand by the complainant because that is not our jurisdiction. However, we must point out here that even if we find that the bank was not justified in retaining the collateral securities upto March 2001 and if the complainant had any complaint against the same, such complaint was bound to be made within good time. This question was considered by Hon'ble Supreme Court, though in respect of another enactment in the reported decision in Corporation Bank's case cited supra. It is now a settled position that where there is no limitation provided by a particular enactment, yet the complainant would have to show as to how he was justified for waiting for more than six years. That is the ratio in the reported decision. Hon'ble Supreme Court has taken this view in respect of even other enactments, where the petitioner has to justify the delay. Such period has ordinarily b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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