JUDGMENT - Justice G.G. LONEY, President:—The complainant No. 1, M/s. Remex Engineering Pvt. Ltd., is a registered Company, and Shri Devendralal Kampani, complainant No. 2, is the Chairman and Director of the aforesaid Company. This complaint is directed against Vijaya Bank, alleging deficiency in its service. 2. Admitted facts are that M/s. Remex Engineering Pvt. Ltd., had an account with the Vijaya Bank, Branch Office at Worli, bearing Account No. 4 of 1987. The complainants were granted various facilities by the opposite party, including overdraft facility. The first complainant, on 25-1-1988, had given written instructions to the opposite party, about the manner of operation of the aforesaid account, which were received by the opposite party. They were informed that the aforesaid account shall be operated by any of the two Directors jointly, including correspondence or any other documents shall be signed by any two of the Directors jointly. The complainant company had initially three Directors : (1) Shri Devendralal Kampani (Complainant No. 2) (2) Smt. Manorama Kampani; and (3) Shri Ravindra K. Khanna. The opposite party, on 30-1-1988 and 15-2-1988 had written two letters to the complainant company, confirming the resolution of the Board of Directors, dated 25-1-1988 regarding the instructions to operate the account in question. The Director, Shri Ravindra Khanna, resigned from 1-4-1987 and, therefore, was not competent to give any instructions to the opposite party for the operation of the account in question. It is the case of the complainants that the first complainant was to receive Rs. 4,98,080.08 Paise, towards outstanding dues from M/s. Twin City Glass Works Pvt. Ltd. According to the complainant, the opposite party accepted only Rs. 78,580 and colluded with Ravi Khanna to allow him to give full discharge of Rs. 4,98,080.08 to Twin City. Complainants therefore, alleged that by the aforesaid act they have been put to a loss of Rs. 4,19,500.08. Without the advice and instructions from the complainants the opposite party accepted only Rs. 78,580.08 in their account. It is further alleged that the aforesaid amount has been accepted by the opposite party, contrary to the instructions — given to the opposite party, as decided by the Board of Directors, in its Meeting — held on 25-1-1988. 4,19,500.08. Without the advice and instructions from the complainants the opposite party accepted only Rs. 78,580.08 in their account. It is further alleged that the aforesaid amount has been accepted by the opposite party, contrary to the instructions — given to the opposite party, as decided by the Board of Directors, in its Meeting — held on 25-1-1988. According to the complainant, Shri Ravindra Khanna, Ex-Director and officers of the opposite party conspired to cause wrongful loss to the complainants to suit their purpose by flouting the firm's instructions of the Board of Directors, dated 25-1-1988 and by writing letters, dated 16-12-1988 to M/s. Twin City Glass Works Pvt. Ltd., at the behest of Shri Ravindra Khanna alone. The alleged statement by the said M/s. Twin City Glass Works Pvt. Ltd., was given behind the backs of the complainants, and as a result of the conspiracy between Shri Ravindra Khanna and opposite party. The complainants came to know about it during the proceedings in Company Petition No. 168 of 1988, after the said Company filed an affidavit, dated 21-6-1969, to which it is alleged that 2nd complainant filed a rejoinder, dated 27-6-1989. According to the complainants, the dismissal of the company petition has given rise to the cause of action to this complaint. The complainants, therefore, claimed Rs. 4,19,500.08 towards direct loss together with interest of Rs. 1,00,000 with costs. 3. The opposite party filed its reply and denied the allegations made by the complainant. The Opposite party, however, admitted to the fact of having complainant's Account with them with overdraft facility and also admitted to have received the complainants' instructions, regarding the operation of the Account, as decided by the Board of Directors. It is the case of the opposite party that the complainant has not paid the loan amount with interest to the Bank and, therefore, they filed the suit against the complainant in the Bombay High Court, claiming the recovery of their dues and that the suit is pending. The opposite party further denied having committed any deficiency in its service. 4. We have heard Shri Bafna, Advocate for the complainants and Shri S.A. Kadam, Advocate for the opposite party. 5. The opposite party further denied having committed any deficiency in its service. 4. We have heard Shri Bafna, Advocate for the complainants and Shri S.A. Kadam, Advocate for the opposite party. 5. It is an admitted fact that the first complainant had an Account with Vijaya Bank, with specific instructions that the account shall be operated by two Directors jointly, including correspondence or any other documents shall be signed by any two of the Directors jointly. These instructions from the complainants' side are not in dispute by the opposite party. The complainants have alleged that they were to receive Rs. 4,98,080.08 paise from M/s. Twin City Glass Works Ltd. It is found from the record that the first complainant had moved the High Court in Company petition against M/s. Twin City Glass Works, alleging that it has not settled the claim of the first complainant for Rs. 4,98,080.08 paise. The said company petition was for winding-up of the company for not making the payment to the complainants. During the pendency of the said petition, it transpired that the opposite party had written a letter, dated 15-10-1988 to the Managing Director of the said Company, asking for direct payment to the Bank. Further request was made for direct remittance. It is the case of the complainants that Shri Khanna, Ex-Director, falsely and without any authority from the Board of Directors, wrote the aforesaid letter, dated 16-12-1988, contrary to the instructions of the Board of Directors, vide Resolution, dated 25-1-1988. It is further alleged that, in the aforesaid Company petition, two letters, dated 15-10-1988 and 16-12-1988, issued by Shri Ravindra Khanna, Ex-Director, alone to the effect that the second complainant was not available to operate the account, were the outcome of conspiracy between him and the employees of the opposite party, the Bank. According to the complainants, second complainant was very much available in Bombay and the said two letters were bogus and contrary to the instructions, issued to the opposite party, as decided in the Meeting of the Board of Directors, held on 25-1-1988. It is, therefore, alleged by the complainants that the opposite party, in collusion with Shri Ravindra Khanna, caused the loss to the complainants for Rs. 4,98,080.08 paise and interest from 1-10-1988, amounting to Rs. 2,94,000/-. It is, therefore, alleged by the complainants that the opposite party, in collusion with Shri Ravindra Khanna, caused the loss to the complainants for Rs. 4,98,080.08 paise and interest from 1-10-1988, amounting to Rs. 2,94,000/-. The complainants further alleged that the payment accepted by the opposite party in their account in question is contrary to the instructions which constitutes the deficiency in the service of the Bank. It is further alleged that the complainant had never advised the opposite party to issue letters dated 15-10-1988 and 16-12-1988, authorising only one Director, viz. Shri Khanna, to sign the Banking transaction on behalf of the first complainant. In fact, those letters are not binding on the complainants. These letters, sent under the signature of Shri Ravindra Khanna, should not have been acted upon by the opposite party. It is significant that these allegations made by the complainants are not denied by the opposite party. Surprisingly, the opposite party did not place before this Commission those two letters dated 15-10-1988 and 16-12-1988 on record to support the stand, nor filed any affidavit to substantiate it. In the absence of any convincing explanation coming from the opposite party, we have no reason to believe them, but to reject the genuineness of these two letters, alleged to have been written on behalf of the complainants. This commission, in the case of (Dilip Madhukar Kamli v. Bhandari Co-op. Bank)1, Case No. 15 of 1990 dated 25-10-1991, has taken the view that payment made to the 3rd party, contrary to the instructions given by the account holder, amounts to deficiency in the service of the bank. The aforesaid view, taken by this Commission, has been confirmed by the National Commission, in 1st Appeal No. 21 of 1971, filed (Bhandari Co. Op. Bank v. Dilip Kambli)2, decided on 25-10-1991. In our considered view, therefore, the opposite party acted contrary to the instructions given by the first complainant in its Meeting of the Board of Directors, held on 25-1-1988 and wrongly accepted the payment made by M/s. Twin City Glass Works Pvt. Ltd., on the basis of bogus and forged letters. We further find that the complainants have been put to further loss of interest. In our view, the loss caused to the complainants is as a result of deficiency in the service of the opposite party and therefore, the complainants are entitled to the compensation in this complaint. We further find that the complainants have been put to further loss of interest. In our view, the loss caused to the complainants is as a result of deficiency in the service of the opposite party and therefore, the complainants are entitled to the compensation in this complaint. We further find that the loss caused to the complainants is due to the negligence in the service of the opposite party in as much as the correct instructions given by the account holder to operate the accounts were not strictly followed by the opposite party. Therefore, the complainant's complaint deserves to be allowed and the complainant requires to be compensated for the loss suffered as a result of negligence in the service of the opposite party. 6. As regards contention raised by the opposite party that they have filed a Civil Suit against the complainant in Bombay High Court, bearing Suit No. 1802 of 1990 admittedly filed subsequently, we would like to make it clear that our decision in this Consumer complaint will not in any way, affect the claim of the Bank in that suit as the present claim arises out of the dismissal of the aforesaid Company Petition No. 168 of 1988. We have entertained this complaint under the Provisions of the Consumer Protection Act, 1986, purely on the ground of allegations of deficiency in the service of the opposite party-as a 'Bank'. Section 2(1)(o) of the Consumer Protection Act, 1986, defines 'Service' (hereinafter referred to as 'the Act'). 'Service' means the serivce of any description, which is made available to potential users and includes the provisions of facilities in connection with the Banking. 'Deficiency' has been defined in section 2(1)(g) of the Act. 'Deficiency' means any fault, imperfection, shortcoming, inadequacy in the manner of performance, which is required to be maintained or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. In the instant case, opposite party had agreed to render Banking service to the 1st complainant as per the instructions conveyed to the Bank as per the decision, dated 25-1-1988, of the Board of Directors of the Company. The opposite party failed in its duty to perform the service to the complainants—as agreed and according to the instructions to operate the Account. The opposite party failed in its duty to perform the service to the complainants—as agreed and according to the instructions to operate the Account. We find that the opposite party, not only committed deficiency in its service, but overstepped itself in a solemn obligation as Banker. It clearly shows that the opposite party, the Bank, acted in collusion with another Ex-Director, Shri Khanna enabling him to represent as sole Director having the necessary authority to negotiate with M/s. Twin City. Thus the role played by opposite party in assisting Shri Ravi Khanna, contrary to the complainants' instructions is clearly an act of deficiency in the service of the opposite party. It is immaterial whether the Bank has to recover any amount from the Account holder. If the Bank has to claim any amount from the account holder, the Bank can file a Civil Suit in a Court of Law. But the Bank cannot be a party to a fraud being played on an account holder's account, contrary to his instructions. 7. The opposite party has not even disputed that the claim arose out of the dismissal of the Company Petition No. 168 of 1988 on 5-7-1989, as can be seen from the averments in the complaint and the copy of the order filed on record. In reply, the opposite party has admitted practically the entire case of the complainant and admitted all the documents produced by the complainants. The opposite party faintly suggested in the reply that the Bank had informed M/s. Twin City Glass Works Pvt. Ltd, that any two Directors are jointly allowed to operate and that the Bank will produce such letters. When the complainant challenged in their rejoinder even the existence of such a letter. The fact that the opposite party did not produce those letters gives rise to a doubt that those letters either be non existent or forged documents. 8. Apart from the averments in the complaint and a detailed rejoinder, the complainants have produced voluminous documents, which have not been challenged at all by the opposite party. The fact that the opposite party did not produce those letters gives rise to a doubt that those letters either be non existent or forged documents. 8. Apart from the averments in the complaint and a detailed rejoinder, the complainants have produced voluminous documents, which have not been challenged at all by the opposite party. A careful reading of those documents shows that (a) the Bank had received the firm's instructions that any two Directors jointly would operate the Bank account and even sign jointly all the correspondence and any other documents; (b) the Bank received several letters from the complainants requesting for statement of account, including request for correspondence with M/s. Twin City Glass Works Ltd., but the opposite party did not respond. In our view, therefore, actions taken by the opposite party contrary to the aforesaid instructions of the complainant are the clear instances of deficiency in the service. We, therefore, find that there is considerable force in the allegations made by the complainants in this case about the wrongful loss caused to the complainants. 9. Lastly, the Bank is trying to frustrate this Consumer Dispute by taking the earlier shelter of the Civil Suit filed by Bank against the complainant for recovery of its dues. We have already made it clear that this Consumer Dispute, which arises under the provisions of the Consumer Protection Act, is in addition to and not in derogation of the Provisions of any other law for the time being in force and the claim of the Bank in that suit is not affected in any way. The reference to the said Suit No. 1802 of 1990, in reply of the opposite party is irrelevant as the opposite party has not even disputed that the cause of action for this Consumer Dispute arose out of the dismissal of the Company Petition No. 168 of 1988, on 5-7-1989, as can be seen from the averments in the complaint and the copy of the order filed on record. 10. Considering the facts and circumstances of this case, we find that the complainants have proved their allegations that the complainant No. 1 as a Company has been put to considerable loss as a result of negligence in the service of the opposite party and hence, the complaint requires to be allowed. 10. Considering the facts and circumstances of this case, we find that the complainants have proved their allegations that the complainant No. 1 as a Company has been put to considerable loss as a result of negligence in the service of the opposite party and hence, the complaint requires to be allowed. The complainant No. 1 suffered loss of interest on his deposit and hence, is entitled to receive it @ 18% per annum. Similarly, the complainant is also entitled to get compensation for the harassment and facing litigation and costs of this complaint. Hence we allow this complaint and pass the following order. ORDER The Vijaya Bank, opposite party is directed to pay to complainants Rs. 4,19,500.08 towards loss caused to complainants together with 18% interest p.a. from 5-7-1989 (date of dismissal of Company petition) and also pay Rs. 25,000/- as compensation to meet the litigation costs and Rs. 1,000/- as costs of this complaint. The rest of the complainants' claim is rejected. Complaint allowed. *****