SUPREME COURT OF INDIA
DIVISION BENCH
AMITABHA DASGUPTA — Appellant
Vs.
UNITED BANK OF INDIA AND OTHERS — Respondent
( Before : Mohan M. Shantanagoudar and Vineet Saran, JJ. )
Civil Appeal No. 3966 of 2010
Decided on : 19-02-2021
A. Banking Law – Lockers – Locker Facility – Hiring of – Banks cannot wash off their
hands and claim that they bear no liability towards their customers for the operation of
the locker – Very purpose for which the customer avails of the locker hiring facility is so
that they may rest assured that their assets are being properly taken care of – Such
actions of the banks would not only violate the relevant provisions of the Consumer
Protection Act, but also damage investor confidence and harm our reputation as an
emerging economy – Thus it is necessary that the RBI lays down comprehensive
directions mandating the steps to be taken by banks with respect to locker facility/safe
deposit facility management.
B. Banking Law – Banks as service providers under the earlier Consumer Protection
Act, 1986, as well as the newly enacted Consumer Protection Act, 2019, owe a separate
duty of care to exercise due diligence in maintaining and operating their locker or safety
deposit systems – This Court emphasize that irrespective of the value of the articles
placed inside the locker, the bank is under a separate obligation to ensure that proper
procedures are followed while allotting and operating the lockers:
(a) This includes maintenance of a locker register and locker key register.
(b) The locker register shall be consistently updated in case of any change in
allotment.
(c) The bank shall notify the original locker holder prior to any changes in the
allotment of the locker, and give them reasonable opportunity to withdraw the articles
deposited by them if they so wish.
(c) The bank shall notify the original locker holder prior to any changes in the
allotment of the locker, and give them reasonable opportunity to withdraw the articles
deposited by them if they so wish.
(d) Banks may consider utilizing appropriate technologies, such as block chain
technology which is meant for creating digital ledger for this purpose.
(e) The custodian of the bank shall additionally maintain a record of access to the
lockers, containing details of all the parties who have accessed the lockers and the date
and time on which they were opened and closed.
(f) The bank employees are also obligated to check whether the lockers are properly
closed on a regular basis. If the same is not done, the locker must be immediately closed
and the locker holder shall be promptly intimated so that they may verify any resulting
discrepancy in the contents of the locker.
(g) The concerned staff shall also check that the keys to the locker are in proper
condition.
(h) In case the lockers are being operated through an electronic system, the bank shall
take reasonable steps to ensure that the system is protected against hacking or any
breach of security.
(i) The customers’ personal data, including their biometric data, cannot be shared
with third parties without their consent. The relevant rules under the Information
Technology Act, 2000 will be applicable in this regard.
(j) The bank has the power to break open the locker only in accordance with the
relevant laws and RBI regulations, if any. Breaking open of the locker in a manner
other than that prescribed under law is an illegal act which amounts to gross deficiency
of service on the part of the bank as a service provider.
(k) Due notice in writing shall be given to the locker holder at a reasonable time prior
to the breaking open of the locker. Moreover, the locker shall be broken open only in the
presence of authorized officials and an independent witness after giving due notice to
the locker holder. The bank must prepare a detailed inventory of any articles found
inside the locker, after the locker is opened, and make a separate entry in the locker
register, before returning them to the locker holder. The locker holder’s signature
should be obtained upon the receipt of such inventory so as to avoid any dispute in the
future.
(l) The bank must undertake proper verification procedures to ensure that no
unauthorized party gains access to the locker. In case the locker remains inoperative for
a long period of time, and the locker holder cannot be located, the banks shall transfer
the contents of the locker to their nominees/legal heirs or dispose of the articles in a
transparent manner, in accordance with the directions issued by the RBI in this regard.
(m) The banks shall also take necessary steps to ensure that the space in which the
locker facility is located is adequately guarded at all times.
(n) A copy of the locker hiring agreement, containing the relevant terms and
conditions, shall be given to the customer at the time of allotment of the locker so that
they are intimated of their rights and responsibilities.
(o) The bank cannot contract out of the minimum standard of care with respect to
maintaining the safety of the lockers as outlined supra.
Counsel for Appearing Parties
Ms. Pallak Bhagar, Advocate, Mr. Parijat Sinha, Advocate, for the Appellant; Mr. Rajesh Kumar-I,
Advocate, Mr. Anant Gautam, Advocate, Mr. Nipun Sharma, Advocate, For M/S. Mitter & Mitter Co.,
Advocate, for the Respondent.
Cases Referred
Atul Mehra v. Bank of Maharashtra, AIR 2003 P&H 11
Blair v. Riley, 175 N.E.R 210
Charan Singh vs. Healing Touch Hospital & Ors., (2000) 7 SCC 668
Cussen vs. Southern Cal. Savings Bank, 65 P. 1099 (1901)
Emma M. Lockwood v. The Manhattan Storage & Warehouse Company, 50 N.Y.S 974 (N.Y.
1898)
Jagdish Chandra Trikha vs. Punjab National Bank, AIR 1998 Delhi 266.
Kush Kalra v. Reserve Bank of India, 2017 SCC OnLine CCI 41
Mahender Singh Siwach v. Punjab and Sind Bank, (2006) 4 CPJ 231 (NC)
Mamta Chaudaha v. Branch Manager/Head Manager, State Bank of India, (2020) 1 CPJ 276
(NC)
Mayer vs. Brensigner, 54 N.E 159 (1899)
Mohinder Singh Nanda v. Bank of Maharashtra, 1998 ISJ (Banking) 673
National Bank of Lahore Ltd. vs. Sohan Lal Saigal, AIR 1962 PH 534
National Commission in UCO Bank v. RG Srivastava, 1996 (1) CPR 97
National Safe Deposit Co. v. Stead., 95 N.E. 973 (1911)
National Safe Deposit Company v. Stead, Attorney General, 1495 N.E.R. 973
Pune Zilla Madyawarti Sahakari Bank Limited v. Ashok Bayaji Ghogare, 2015 SCC OnLine
NCDRC 2832
Punjab National Bank, Bombay v. K.B. Shetty, 1991 (1) C.P.C. 592
Roberts v. Stuyvesant Safe Deposit Co., (1890) 123 N.Y 57
JUDGMENT
Mohan M. Shantanagoudar, J. – This appeal, by special leave, arises out of the judgment of the
National Consumer Disputes Redressal Commission (‘National Commission’) delivered on
18.12.2008 dismissing the Revision Petition filed against the judgment of the State Consumer
Disputes Redressal Commission (‘State Commission’) dated 12.10.2004.
2. The following are the facts out of which this appeal arises:
2.1 In the early 1950’s, the Appellant’s mother (since deceased) took a locker on rent bearing
No. A-222 in the Deshapriya Park, Kolkata Branch of the Respondent No. 1 Bank. In 1970, the
Appellant/Complainant was included as a joint holder of the locker. On 27.05.1995, the
Appellant visited the Respondent No.1 Bank to operate the locker and deposit the locker rent.
However, the Appellant was informed that the Bank had broken open his locker on 22.09.1994
for non-payment of rent dues for the period of 1993-1994. Further, that the locker had
subsequently been reallocated to another customer.
2.2 On 29.05.1995 and 2.06.1995, the Appellant sent communications to Respondent No. 1
claiming that such breaking of his locker by the Bank was illegal since he had cleared dues for
1994-1995 on 30.07.1994, i.e., prior to the breaking of the locker. The Chief Manager of
Respondent 1, who is Respondent No. 3 in the present appeal, responded to the communication
and admitted to having inadvertently broken open the locker, though there were no outstanding
dues to be paid, and apologized for the same. He stated as an ancillary point that reminders for
the payment of dues had been sent on 25.11.1993 and 23.02.1994. However, that these would
have no meaning since the dues were subsequently paid by the Appellant on 30.06.1994.
2.3 On 17.06.1995, when the Appellant went to collect the contents of the locker, it is alleged
that he found only two (one pair of bangles and one pair of ear pussa) of the seven ornaments
that had been deposited in the locker in a non-sealed envelope. However, Respondent No. 1
Bank contends that only those two ornaments were found in the Appellant’s locker when it was
broken open. That the same is evident from the inventory prepared by Respondent No. 1 when
the locker was broken open in the presence of an independent witness.
2.4 Subsequently, the Appellant filed a consumer complaint before the District Consumer
Forum (‘District Forum’) calling upon Respondent No. 1 to return the seven ornaments that were
in the locker; or alternatively pay Rs. 3,00,000/- towards the cost of jewelry, and compensation
for damages suffered by the Appellant.
2.5 The District Forum allowed the complaint and held Respondent No. 1 liable for deficiency
of service, relying upon Respondent No. 3’s admission that the Bank had inadvertently broken
open the Appellant’s locker though there were no pending rent dues. Further, on the claim for
the cost of seven ornaments, it was held that Respondent No. 1 could not prove that there had
been only two ornaments in the locker since there were no independent witnesses in the
presence of whom the locker was opened. Hence, Respondent No. 1 was directed to return the
entire contents of the locker, or alternatively pay the Appellant Rs. 3,00,000/- towards cost of
the jewelry and, Rs. 50,000/- as compensation for mental agony, harassment, and cost of
litigation.
2.6 On appeal, the State Commission vide order dated 12.10.2004 accepted the District
Commission’s findings on the question of deficiency of service, though it reduced the
compensation from Rs. 50,000/- to Rs. 30,000/-. However, with respect to recovery of the cost
of the ornaments, the State Commission, relying upon the judgment of the National
Commission in UCO Bank v. RG Srivastava, 1996 (1) CPR 97 observed that the dispute on
the contents of the locker can only be decided upon provision of elaborate evidence. That the
Consumer Forum was not equipped to undertake this evaluation since it only has jurisdiction to
conduct a summary trial. Therefore, the Appellants were directed to approach the civil court for
adjudication on the contents of the locker.
2.7 The Revision Petition against the order of the State Commission was dismissed vide the
impugned order. The National Commission by the impugned judgment, accepted the State
Commission’s holding on the limited jurisdiction of the Consumer Forum to adjudicate on the
recovery of the contents of the locker.
Hence, the present appeal.
3. Learned counsel for the Appellant submitted that even if the case is remitted to the civil court for
adjudication on the issue of the contents of the locker, it would be highly improbable to ascertain the
same since the contents of a locker are exclusively known only to the locker holder. On the question
of damages, he relied on Charan Singh vs. Healing Touch Hospital & Ors., (2000) 7 SCC 668 to
argue that compensation must be awarded to bring a qualitative change in the attitude of the service
provider.
3.1 Per contra, learned counsel for the Respondents submitted that the National Commission’s
holding does not warrant interference. He submitted that compensation for the loss of jewellery can
only be awarded after appreciation of evidence by the trial court.
4. Heard Learned Counsel for both parties. Based on a perusal of the record, the following issues
arise for consideration in the present appeal:
4.1 First, Whether the Bank owes a duty of care to the locker holder under the laws of bailment
or any other law with respect to the contents of the locker? Whether the same can be effectively
adjudicated in the course of consumer dispute proceedings?
4.2 Second, irrespective of the answer to the previous issue, whether the Bank owes an
independent duty of care to its customers with respect to diligent management and operation of
the locker, separate from its contents? Whether compensation can be awarded for noncompliance with such duty?
I. Relief with Respect to the Contents of the Locker
5. Disputes between banks and locker holders, pertaining to loss of articles placed inside the locker,
have been subject to judicial consideration in various jurisdictions for nearly acentury. For a broader
understanding of the subject, we find it necessary to briefly refer to certain judgments of foreign
jurisdictions, before clarifying the position under Indian law.
5.1 The dominant view of courts around the globe has been that the bank is in the position of a bailee
with respect to the goods placed inside the locker by the locker holder. In Roberts v. Stuyvesant
Safe Deposit Co., (1890) 123 N.Y 57 the defendant company permitted the police under a search
warrant, to confiscate the articles that were inside the plaintiffs locker. However, the articles were
subsequently stolen from police custody. A suit was filed by the plaintiff, alleging that the defendant
company failed to comply with the duty of care required under the law by permitting the police to
take away articles that were not mentioned in the search warrant. Affirming the plaintiffs contentions,
the Court of Appeals of New York made the following observations about the relationship of
bailment between the parties:
“The legal relationship which the defendant held to the plaintiff, and out of which this
controversy has arisen, was that of a bailee or depositary for hire. The fundamental question in
the case is whether the defendant, upon the undisputed evidence in the record, discharged those
duties and obligations to the plaintiff which the law imposed upon it in regard to the care and
custody of her property.” (emphasis supplied)
It is pertinent to note the Court’s observation that whether or not the defendant had discharged its
obligations as a bailee would have to be discerned from the undisputed evidence on the record.
5.2 The position of law stated in Stuvyesant Safe Deposit Co. (supra) has been reiterated in
subsequent precedents which have governed the law on the field such as Emma M. Lockwood v.
The Manhattan Storage & Warehouse Company, 50 N.Y.S 974 (N.Y. 1898), Mayer vs.
Brensigner, 54 N.E 159 (1899), National Safe Deposit Co. v. Stead., 95 N.E. 973 (1911) In Cussen
vs. Southern Cal. Savings Bank, 65 P. 1099 (1901) money kept by the plaintiff in the bank’s safe
deposit vault was lost. The Supreme Court of California held that the bank was liable under the laws
of bailment. However, it observed that the plaintiff would have to make a prima facie case that they
had deposited the money inside the locker, and that it was subsequently lost. The burden of proof
would then shift to the defendant bank to prove that it exercised the necessary care required under the
laws of bailment for the protection of its contents. Therefore, before applying the laws of bailment,
the court must first find on the facts of the case whether the plaintiff had transferred possession of the
articles to the bank.
6. To identify if the relationship of bailment exists between the bank and the locker holder under
Indian law, it is necessary at the outset to refer to the relevant provisions under the Indian Contract
Act, 1872 (‘Contract Act’):
148. Bailment’, bailor’ and bailee’ defined.-A ‘bailment’ is the delivery of goods by one
person to another for some purpose, upon a contract that they shall, when the purpose is
accomplished, be returned or otherwise disposed of according to the directions of the person
delivering them. The person delivering the goods is called the ‘bailor’. The person to whom they
are delivered is called the ‘bailee’.
149. Delivery to bailee how made.-The delivery to the bailee may be made by doing anything
which has the effect of putting the goods in the possession of the intended bailee or of any
person authorised to hold them on his behalf.”
Thus, from the aforementioned provisions, it can be inferred that three components need to be
fulfilled for the existence of bailment. These are: (i) delivery of goods from one person to another by
transfer of possession, actual or constructive; (ii) an express or implied contract for delivery; (iii)
delivery should be for accomplishment of a purpose.
7. Unfortunately, there is no substantive domestic legislation or sector-specific regulations which
may throw light upon the issue of whether banks are responsible under the laws of bailment for the
loss of articles placed inside the locker. On 4.12.2006, the Reserve Bank of India (‘RBI’) had issued a
Draft Circular on Safe-Deposit Lockers (‘2006 Circular’).[8] This circular was only in the form of a
proposal issued to the banks and hence does not have any binding value. However, it is useful in
understanding the RBIs position at that stage. Clause 2.1 of the 2006 Circular states:
“2. Security aspects relating to Safe Deposit Lockers: 2.1 It is clarified that the relationship
between the bank and the locker hirer is in the nature of a ‘bailor and bailee’ and not ‘landlord
and tenant’ though the bank has no knowledge of the contents of the locker and the bank is
required to exercise due care and necessary precaution for the protection of the lockers provided
to the customer.” (emphasis supplied)
[8] https://www.rbi.org.in/Scripts/BS_CircularI
On perusal of the 2006 Circular, it is evident that at that point in time, the RBI had recommended that
the laws of bailment ought to guide the relationship between the bank and the locker holder, even if
the bank has no knowledge of the contents of the locker.
7.1 The RBI had also issued guidelines covering inter alia, the subject of safe custody of articles
placed inside the lockers (Circular No. RBI/2006-2007/325) on 17.04.2007 (‘2007 Circular).[9]
There was no clause on the nature of the legal relationship between the bank and the locker holder in
the 2007 Circular. The only reference to the Contract Act was as follows:
“3.5 Banks are advised to be guided also by the provisions of Sections 45 ZC to 45 ZF of the
Banking Regulation Act, 1949 and the Banking Companies (Nomination) Rules, 1985 and the
relevant provisions of Indian Contract Act and Indian Succession Act.” (emphasis supplied)
[9] https://www.rbi.org.in/Scripts/BS_CircularIndexDisplay.aspx?Id=3422.
However, this observation was made in the specific context of return of safe custody of articles to the
survivors/legal heirs of deceased locker holders and hence may not have much bearing in the present
case.
7.2 Subsequently, in response to a Right to Information (‘RTI) enquiry made in 2017, the RBI, and
various public sector banks, stated that as per the agreement entered into with the customers who are
hiring/leasing the lockers, the banks have no liability for loss or damage of articles placed inside the
bank lockers. Hence the position of the RBI from 2006 to 2017 has undergone a sea-change. The
position adopted by the banks was challenged before the Competition Commission of India (‘CCI) as
being in the nature of an anti-competitive practice. The CCI dismissed the claim, while making the
following observations:[10]
“7. In the instant case, there is no such material to suggest any understanding / consensus /
arrangement amongst the Opposite Parties to have pursued any of the aforesaid prohibited
activities. Suspicion of a cartel has been raised in the information as all the Opposite Parties
allegedly do not take responsibility for any loss of valuables kept by customers availing safety
deposit locker facility from them. However, the RTI replies of some of the Opposite Parties
suggest that they are not completely absolved for loss of valuables kept in their locker. For
instance, the reply dated 7th October, 2015 of Bank of Baroda inter alia states that in case of
loss suffered by the lessee due to theft or burglary etc. of safe custody locker, the liability of the
bank will depend upon the facts and circumstances surrounding the burglary. Further, the reply
dated 13th October, 2015 of Dena Bank states that the responsibility of the bank shall be
governed by the terms and conditions laid down in the memorandum of hiring of locker and the
guidelines issued by RBI from time to time. Reply dated 19th October, 2015 of Andhra Bank
states that the relationship between the bank and its customer, in case of safe deposit locker, is
that of ‘lessor and lessee’ and the particulars of the articles kept in safe deposit locker will not be
disclosed by the customer to the bank and hence, the bank cannot take responsibility for
compensating any loss as the extent of such loss cannot be assessed. It has been further stated
that the bank, however, takes all necessary measures and precautions to safeguard the lockers
provided to the customers. Similarly, the reply dated 30th October, 2015 of Corporation Bank
states that its liability in case of theft/loss of valuables kept in its safety lockers depends upon
the parameters on which the bank takes insurance on the lockers and the same parameters will
be adopted while settlement of claims in case of theft. Taking into consideration all these replies
and in the absence of any material suggesting collusion amongst the Opposite Parties, it cannot
be said that a uniform practice is followed by all the Opposite Parties to avoid
responsibility/liability for loss of valuables kept by customers availing their safety deposit
locker facility.” (emphasis supplied)
[10] Kush Kalra v. Reserve Bank of India, 2017 SCC OnLine CCI 41
Therefore, the CCI took notice of the fact that it is common industry practice for banks to disclaim
liability for loss of articles placed inside the locker, though there are no uniform parameters or
policies guiding the same. Additionally, the banks have stated that acceptance of responsibility for
loss of articles placed in their locker facility will depend upon the relevant facts and circumstances of
each case, such as the terms of the locker hiring agreement, the circumstances under which the
articles were lost or stolen, and so on.
8. There has also not been any authoritative pronouncement from this Court on the issue of whether
banks are responsible as bailees, or in any other capacity, for any loss or damage to the contents of
the lockers. However, there have been various High Court judgments guiding the field. One of the
notable cases in which this issue arose was Jagdish Chandra Trikha vs. Punjab National Bank,
AIR 1998 Delhi 266. In this case, the appellants had, before the partition of India, entrusted a sealed
box of gold ornaments to the respondent bank in Peshawar on the payment of a fee for safekeeping.
The box was moved to the Rawalpindi branch, then subsequently to the Lahore branch, and finally to
India in November 1961 under the Indo-Pakistan Movable Property Agreement. Upon presentation
of the box, the Appellant refused to take delivery since the appearance and weight of the box was
different from what it had been when it was deposited. A suit was filed seeking delivery of the
ornaments or alternatively recovery of the market value of the ornaments. Referring to the relevant
common law authorities, the Delhi High Court held that the bank would be liable in the capacity of a
bailee for the loss of the ornaments:
“71. The Box was entrusted to the defendant Bank at Peshawar. The same was accepted by the
Bank as a bailee and it was expected that the usual care which is demanded on such matters
would be undertaken…it is established that the defendant Bank failed to discharge its duties as a
bailee and did not take care of the goods of the parents of the plaintiff as one would under
similar circumstances, take of his own goods of the same bulk, quantity and value as the goods
bailed.” (emphasis supplied)
It is important to note that in the facts of Jagdish Chandra Trikha (supra), the High Court found
that there was complete entrustment of possession of the appellant’s ornaments. The articles to be
safeguarded were handed over by the customer to the bank in a sealed box, which was then taken to a
safe place to be stored. Though the respondent bank claimed it did not have any knowledge of the
contents of the box, it was proved from evidence that the appellant’s predecessors had handed over a
detailed list of the jewellery which was placed inside the safe deposit box to the bank. It was further
proved that the customer did not have any access to the same after entrustment to the bank. Hence
the High Court considered it a fit case to apply the laws of bailment.
8.1 However, the locker service provided by the banks has evolved since the pre-independence days.
In that era, the bank’s employee was entrusted with the relevant goods for safe keeping. Complete
access to the valuables, if any, remained with the bank till the time the customer claimed return of the
same. However, due to modernization of the locker system, banks now provide customers with
partial access to the lockers. Under the current system, the bank allocates a locker to the customer on
the payment of rent. The customer is then provided with a key to the locker through which he can
gain partial access to the locker. The bank has a master key to the locker and the customer can gain
complete access to the locker only when the bank uses its own key to the locker. Therefore, a
combination of the bank’s key and the locker holder’s key is required for opening a locker, providing
neither with complete access. In more advanced, digitally operated locker systems, such ‘keys’ may
not be physical keys but may consist of passwords or data which is exclusively known to the bank
and the customer. Further, the bank may not have any receipt of the exact particulars of the articles
placed inside the locker, as was the case in Jagdish Chandra Trikha (supra). The question that
therefore arises for consideration before this Court is whether the modern-day bank locker system
would be guided by the laws of bailment.
8.2 An important decision which has considered the modern-day bank locker system is that in
National Bank of Lahore Ltd. vs. Sohan Lal Saigal, AIR 1962 PH 534. In that case, the appellant
bank had provided locker service for the safe custody of valuables. The locker could be operated
jointly by the locker holder and the bank’s custodian. However, the respondent locker holder was able
to prove before the Civil Court that the Manager/custodian of the bank had tampered with the locker
such that it could be operated even without the locker holder’s personal key. Hence the Civil Court
concluded that the Manager had exclusive control over the lockers. Consequently, referring to the
decisions of the Court of Appeals of Ohio in Blair v. Riley, 175 N.E.R 210 and the Supreme Court
of Illinois in National Safe Deposit Company v. Stead, Attorney General, 1495 N.E.R. 973 the
Punjab and Haryana High Court held that the bailor-bailee relationship applied. In this regard, the
High Court observed that:(Pg. 578)
“It may be that the person who hires a locker retains some control over it by having one key
with himself but if the locker can be operated without any key, as was possible in the lockers
which were rented out to the plaintiffs, then at once any impediment in the way of control and
possession of the Bank to whom the locker belonged and in whose strong room it was to be
found, would be removed and it could well be said that the bank was strictly in the position of
the bailee.” (emphasis supplied)
The High Court further observed that the locker holders had produced specific evidence in the form
of lists of the articles of jewellery deposited inside the lockers so as to prove the extent of loss they
had suffered.
8.3 In Mohinder Singh Nanda v. Bank of Maharashtra, 1998 ISJ (Banking) 673 forty-four safe
keeping lockers in the Respondent bank were broken open by miscreants and the contents were
emptied. The Punjab & Haryana High Court held that the bank would not be liable for the loss of
articles, if any, since the bank had no knowledge of the contents of the locker:
“4. But there is no evidence on record to show that the defendant-Bank had the knowledge of
the articles in the locker. Unless there is entrustment of the property to the defendant Bank, the
Bank cannot be held responsible for the theft. The plaintiffs have miserably failed to prove that
there was entrustment of the articles with the defendant Bank and that the Bank authorities were
aware of the articles placed in the locker.” (emphasis supplied)
8.4 Subsequently, the Punjab and Haryana High Court again undertook a comprehensive look into
the present-day locker system in Atul Mehra v. Bank of Maharashtra, AIR 2003 P&H 11 which
pertained to the same bundle of facts as in Mohinder Singh Nanda (supra). The appellant locker
holders filed a suit alleging that due to the robbery, jewels worth Rs. 4,26,160/- were stolen from his
locker. It was claimed that the respondent bank had not complied with the duty of care owed under
the laws of bailment. However, the trial court found that the knowledge of the weight and value of
the articles stored inside the locker was exclusive to the customer, and the bank did not have notice
of the same. Further, the appellants had not produced any evidence at the stage of trial to establish the
contents of the locker. Consequently, the Single Judge Bench of Nijjar J. opined that the provisions
with respect to bailment under the Contract Act would not apply as follows:
“17…The respondent bank could only be fastened with liability on the contents of the locker
being disclosed to it. In the absence of this information, it would have to be held that there was
no entrustment of the goods to constitute bailment as required under Section 148 of the Indian
Contract Act, 1872.
18…These authorities are of no assistance to the appellants in the present case. In all these cases,
exclusive possession of the property had been handed over by the bailor to the bailee. I am of
the considered opinion that exclusive possession is a sine qua non for bailment. Therefore, I
have no hesitation in coming to the conclusion that mere hiring of the locker would not be
sufficient to constitute a contract of bailment as provided under Section 148 of the Indian
Contract Act, 1872. In order to constitute bailment, as provided in Section 148 of the Act, it is
further necessary to show that the actual exclusive possession of the property was given by the
hirer of the locker to the bank. It is only thereafter that the question of reasonable care and
quantum of damages would arise. In the present case, it is impossible to know the quantity,
quality or the value of the jewelry which was allegedly kept in the locker at the time when the
robbery occurred………. In the present case, the plaintiffs alone had the knowledge of contents of
lockers, therefore, the plaintiffs had to lead independent evidence to prove that jewelry was
actually in the locker on the date of the robbery. Even if the plaintiffs had proved this peculiar
fact; they would still have to prove the value of the jewelry.” (emphasis supplied.)
Therefore, the High Court concluded that mere leasing out of the locker ipso facto would not
establish a relationship of bailment between the bank and the locker holder. In order to establish
exclusive possession, the claimant must prove that the bank had knowledge of the contents of the
locker. Alternatively, where the locker holder alone has knowledge of the contents, they must lead
independent evidence to prove that their articles or valuables were actually inside the locker, and the
valuation of the same.
8.5 However, Nijjar J. differentiated the holding in Sohan Lal Saigal (supra) by observing as
follows:
20. “In that case, the learned trial court had held that entrustment and the valuation of jewelry
had been proved…..On the twin grounds of exclusive possession of the jewelry deposited in the
locker and entrustment thereof to the Bank, it has been held that the Bank would be in the
position of bailee.” (emphasis supplied)
Therefore, in Sohan Lal Saigal (supra) entrustment of jewelry was proved on production of
elaborate evidence before the trial court. However, in Mohinder Singh Nanda (supra) and Atul
Mehra (supra) no evidence was led to prove the entrustment of jewelry to the bank, and hence the
claimant locker holders were unable to succeed in obtaining relief. Nijjar J. further observed that:
“22…Whatever property is deposited in the locker is, undoubtedly in the custody and possession
of the bank. Merely because the locker can be operated only in the presence of the locker hirer
would not amount to joint possession of the locker. The Banker can always open the locker with
a “master key”. The hirer of the locker is not in a position to open the locker without the
assistance of the bank. The hirer has access to the locker only during specified banking hours.
The banker has no such limitation. It must, however, be noticed that the transaction of bailment
would only be established if the provisions of Section 148 of the Indian Contract Act are
complied with. With regard to this, it is the submission of Mr. Jagga that the plaintiffs have
miserably failed to prove that the jewellery was kept in the locker as claimed in the plaint.
There being no entrustment or delivery of possession, Section 148 of the Act cannot be invoked
by the plaintiffs.”
Therefore, the Court in Atul Mehra was sympathetic to the fact that the principles of bailment may
be applicable even to the contemporary dual-key locker system if the bank is in the possession of a
master key or has substantial degree of access to the locker. However, the plaintiff would first have to
prove that they had indeed handed over possession of certain articles for being deposited in the
locker of the bank. If this requirement is not satisfied, the Court is barred from going into other issues
such as whether the locker holder and the bank were in joint possession, etc.
8.6 Having perused the aforementioned precedents, we find that what was commonly contested in all
these cases is whether delivery of possession or entrustment of valuables from the locker holder to
the bank had taken place, for the purpose of Section 148 of the Contract Act. Even in the relevant
foreign precedents which we have noted, the application of the principles of bailment was contingent
on determining whether possession was transferred in the facts of the case. This in turn requires
factual findings on whether the bank had knowledge of the contents of the locker; or whether the
locker holder had prepared any receipt or inventory of the articles placed inside the locker or was
otherwise able to prove the particulars of the items deposited in the locker. We are of the considered
opinion that these questions cannot be adjudicated upon in the course of proceedings before the
consumer fora. This aspect must be evaluated by the civil court, upon appreciation of evidence led by
the parties, as was done in all the aforementioned decisions of Jagdish Chandra Trikha (supra),
Sohan Lal Saigal (supra), Mohinder Singh Nanda (supra) and Atul Mehra (supra).
8.7 It is true that the National Commission has, in previous decisions such as Punjab National
Bank, Bombay v. K.B. Shetty, 1991 (1) C.P.C. 592. and Mahender Singh Siwach v. Punjab and
Sind Bank, (2006) 4 CPJ 231 (NC) awarded the value of articles which have been stolen or gone
missing from bank lockers. Moreover, in Pune Zilla Madyawarti Sahakari Bank Limited v.
Ashok Bayaji Ghogare, 2015 SCC OnLine NCDRC 2832 the National Commission has gone to
the extent of holding that the affidavit of the locker holder should ordinarily be accepted for proving
the contents of the bank locker, unless the same stands impeached by way of cross examination.
However, it is relevant to note that in the facts of the aforementioned cases, the complainants had
produced detailed and precise documentary proof for corroborating the extent of jewellery placed
inside the locker, which has not been done in the present case.
8.8 In UCO Bank (supra), similar situation arose as in the present case, wherein the respondent
locker holder claimed that his locker was tampered with and broken open, and valuables were
subsequently lost, due to the negligence of the bank. The bank not only disputed the value of
jewellery kept inside the locker, but also denied any negligence in the breaking open of the locker.
The locker holder had only produced an affidavit in respect of the value of the jewellery claimed by
him. Hence the National Commission held that it is appropriate that both these issues should be
remitted for determination in a civil suit in a competent civil court, after adducing of elaborate
evidence on both sides.
8.9 In the recent case of Mamta Chaudaha v. Branch Manager/Head Manager, State Bank of
India, (2020) 1 CPJ 276 (NC) the National Commission again observed that the appellant locker
holders had not produced any evidence apart from a standard affidavit to prove that they had kept a
specified quantity of gold ornaments inside the bank locker. Further, there was no evidence of
forcible entry to the locker. Hence the complaint for recovery of value of the ornaments was
dismissed.
8.10 In light of the aforementioned conflicting decisions of the National Commission, we find that
the approach adopted by the National Commission in the impugned judgment is the correct approach.
In the present case, the Respondent bank has not disputed their negligence in breaking open the
locker in spite of clearance of rental dues by the Appellant. However, the number of items originally
deposited by the Appellant inside the locker is a contested fact. Hence, we do not propose to record
any conclusions on whether the Appellant locker holder in the present case is entitled to claim return
or recovery of the value of the ornaments alleged to have been deposited by him. We are in
agreement with the findings in the impugned judgment to the extent that the Appellant must file a
separate suit before the competent civil court for seeking this relief and for proving that the aforesaid
items were actually in the custody of the bank. This is especially inasmuch as the contents of the
locker are disputed by the Respondent bank. Hence it is clarified that all questions of fact and law are
left open before the civil court to decide on the merits of the case, including as to whether the law of
bailment is applicable, or any other law as the case may be.
II. Separate Duty of Care of the Bank with regard to Locker Management
9. As discussed supra, imposition of liability upon the bank with respect to the contents of the locker
is dependent upon provision and appreciation of evidence in a civil suit for such purpose. However,
this does not mean that the Appellant in the present case is left without any remedy. Banks as service
providers under the earlier Consumer Protection Act, 1986, as well as the newly enacted Consumer
Protection Act, 2019, owe a separate duty of care to exercise due diligence in maintaining and
operating their locker or safety deposit systems. This includes ensuring the proper functioning of the
locker system, guarding against unauthorized access to the lockers and providing appropriate
safeguards against theft and robbery. This duty of care is to be exercised irrespective of the
application of the laws of bailment or any other legal liability regime to the contents of the locker.
The banks as custodians of public property cannot leave the customers in the lurch merely by
claiming ignorance of the contents of the lockers.
9.1 In this regard, we may refer to the observations made by the National Commission in the
decisions discussed in Part I of our opinion. In Punjab National Bank (supra), in addition to
directing return of the cost of the ornaments lost, the National Commission also made a separate
finding on the negligence of the bank in maintaining the security and safety of the locker:
“4. The last and the most important question is whether the appellant Bank has been guilty of
negligence in ensuring the security and safety of the locker. The State Commission has taken
adverse notice of the fact that the appellant Bank did not probe departmentally when the locker
had been found open on the 9th June, 1988and treated the matter as closed so far as the Bank is
concerned. It was content with lodging a report with the police. It is a matter of common
knowledge, the Master Key of the locker is with the Bank; the locker can be opened only with
the Master Key and the Key with the locker holder. The mechanism is, however, such that the
locker must get closed, if the locker holder takes out his/her key. Further, a certificate is
recorded by the custodian of the Bank that all the lockers operated during a day have been
checked and found properly locked. Such a certificate was also recorded on the 21
stApril, 1988.
The State Commission, therefore, come to the conclusion that the Bank was negligent, in
ensuring the security of the locker with the result that it was found on the 9th June, 1988 to have
been opened unauthorized. For this the State Commission has held that the Bank is squarely
responsible and therefore liable to make good the loss suffered by the respondent complainant.
This Commission fully concurs with the findings of the State Commission.” (emphasis
supplied)
Accordingly, the bank was ordered to pay separate costs of Rs 3,500/- by way of compensation to the
locker holder.
9.2 In Mahendar Singh Siwach (supra) the bank negligently allowed a third party, who was the
previous allottee of the locker, to break open the appellant’s locker and take away the valuables
therein. It was found that the bank had failed to duly record and complete the required formalities
with respect to change of allotment from the third party to the current allottee, i.e., the appellant. The
National Commission arraigned the gross deficiency in service committed by the bank as follows:
“…We find that the record itself proves gross negligence and deficiency in service on the part of
the opposite party Bank in rendering service. Firstly, O.P.’s argument is that fraud committed by
Mr. Ramendra Singh Grover, the third party in removing the contents of the locker comes under
criminal jurisdiction, has no relevance as regards enforcement of civil liability against the
opposite party Bank under Consumer Protection Act. There is no other valid argument given on
behalf of the bank except to contend that they did not know the details of the contents of the
locker and hence the Bank cannot be made liable. The Bank officials admitted their mistake and
stated that they are liable to compensate for the same. It is also interesting to see the evidence
produced on record, i.e. an extract from the order of the Learned Sessions Judge, Meerut dated
22.4.1996 granting bail to Mr. Grover which is reproduced hereunder:
“It appears that the alleged crime could not have been committed without the connivance of the
bank authorities. If the locker in question was allotted to the applicant in the year 1978, it is not
clear how it could be allotted to Mahendra Singh Siwach in the year1979. Further, when
Mahendra Singh Siwach has been operating the locker for all these years having his account
No. 284 it is not understandable how the Bank could without verifying from record, accept the
request of the applicant that the locker be broken open as the key had been lost. It was necessary
for the bank authorities to have referred to the bank record and should have also intimated
Mahendra Singh Siwach about this request of the applicant. Not only this, the bank authorities
in the circumstances mentioned above should have prepared an inventory of the articles and
should have got them valued before handing over the same to the applicant. It does not
appear that the police has taken any action against the concerned delinquent bank official. The
applicant-accused claims that he was the owner of the property kept in the locker and the locker
belonged to him. In these circumstances, when no action has been taken against the bank
authorities, I think it proper to release the applicant also on bail.
xxx
It is very strange that the opposite party has not referred to the duties cast on them under their
own instruction manual which is on the guidelines of the Reserve Bank of India to support their
case. Similar Manual of Instructions of United Commercial Bank on the guidelines of Reserve
Bank of India filed by the Complainant is reproduced hereunder:
“Maintenance of Record
6.1 Locker Register (Form G -126)
This Register should be maintained lockerwise in serial order so as to facilitate locating the
details of the hirer from the locker number. All the details such as the name(s), their addresses,
operational instructions, rent paid, etc., should be recorded. The name(s) of the hirer(s) should
be indexed in the Register according to alphabetical order.
6.4 Locker Key Register
The branch should also maintain a Locker Key Register. This should be maintained keywise to
lockerwise and lockerwise to keywise so as to facilitate tracing the number of Locker from the
Key number and tracing the number of Key from the Locker number. Moreover, when the locks
of the lockers are interchanged, such changes should be immediately recorded in the Locker
Key Register. It should be marked ‘Strictly Private’ and should be kept in personal custody of
Custodian of locker cabinets. A suggested proforma of Locker Key Register is given in
Annexure 1.
6.5 Daily Register of Access to Hired Lockers (G-125)
Signature of the operator on Locker should be obtained in this Register. Date and time of
operation should also be recorded therein.
6.6 Branch should also maintain a pass book to keep a record of total number of Lockers hired
and number of Lockers surrendered so that it is possible to find out at a particular time the
number of Lockers let out and number of Lockers lying vacant.
At the time of half yearly closing, the stock of keys on hand should be verified in reference to
Lockers lying vacant.
12.3.1 Breaking Open of Locker Due to Loss of
When intimation has been received from hirer(s) about loss of key, the following procedure
should be adopted for breaking open the Locker:-
(a) An application should be obtained from hirer(s) requesting for breaking open the
Locker.
(b) The charges for breaking open the Locker should be realized from the hirer in advance
and kept in Sundry Creditors Account.
(c) An appointment should be made with the agents of the makers of lockers cabinet, to
send their mechanic to drill open the Locker in consultation with the hirer(s). Locker
should be broken open in the presence of the hirer(s), the Manager, Accountant and
Custodian of the locker cabinet, and one respectable witness. A suitable remark about
breaking open of Locker should be made in Locker Register, Renewal Diary and Specimen
Signature Card.
xxx
The procedure laid down by the Reserve Bank of India guidelines has been completely flouted
by the opposite party by not maintaining the locker register, locker key register, non-payment of
rent dues and lastly the procedure that should be adopted for breaking open a locker etc.”
(emphasis supplied)
9.3 In Mamata Chaudaha (supra), though the National Commission dismissed the complaint on the
facts of that case, it noted that the relationship between the bank and the locker holders, who are also
the account holders of the bank, will be that of a service provider and consumer.
10. We may also refer to the circulars which the RBI has issued on this subject from time to time.
The 2007 Circular (supra) has, inter alia, provided the following recommendations for facilitating
easy and safe operation of lockers:
“1.4 Banks are also advised to give a copy of the agreement regarding operation of the locker to
the locker-hirer at the time of allotment of the locker.
2.1 Operations of Safe Deposit Vaults /Lockers
Banks should exercise due care and necessary precaution for the protection of the lockers
provided to the customer. Banks should review the systems in force for operation of safe deposit
vaults / locker at their branches on an on-going basis and take necessary steps. The security
procedures should be well-documented and the concerned staff should be properly trained in the
procedure. The internal auditors should ensure that the procedures are strictly adhered to
2.2 (ii) Where the lockers have not been operated for more than three years for medium risk
category or one year for a higher risk category, banks should immediately contact the locker
hirer and advise him to either operate the locker or surrender it. This exercise should be carried
out even if the locker hirer is paying the rent regularly. Further, the bank should ask the locker
hirer to give in writing, the reasons why he/she did not operate the locker. In case the locker
hirer has some genuine reasons as in the case of NRIs or persons who are out of town due to a
transferable job etc., banks may allow the locker hirer to continue with the locker. Further,
banks should ask the locker hirer to give in writing, the reasons why he/she did not operate the
locker. In case the locker-hirer has some genuine reasons as in the case of NRIs or persons who
are out of town due to a transferable job etc., banks may allow the locker hirer to continue with
the locker. In case the locker-hirer does not respond nor operate the locker, banks should
consider opening the lockers after giving due notice to him..
(iii) Banks should have clear procedure drawn up in consultation with their legal advisers for
breaking open the lockers and taking stock of inventory.” (emphasis supplied)
Hence the RBI had issued clear directions as far back as in 2007 imposing duty of care in respect of
protection of the bank lockers and mandating transparency vis a vis the locker holder in allotment
and breaking open of the lockers. However, it has been left to the discretion of the individual banks
to formulate the exact procedures for fulfilling this duty of care. The banks are likely to draft the
locker hiring agreements in a manner which is favourable to their interests, including clauses to the
effect that the lockers are to be operated at the consumers’ own risk. 10.1. On 1.07.2015, the RBI
issued a Master Circular No. 59/2015-16 on Customer Service in Banks which included updated
guidelines on locker operation. However, these were more or less similar to what has already been
stated in the 2007 Circular. Further, neither of the aforementioned Circulars provide any guidance on
the degree of care that needs to beexercised by the bank for safeguarding the lockers or detail the
exact steps that should be taken in this regard.
11. It appears to us that the present state of regulations on the subject of locker management is
inadequate and muddled. Each bank is following its own set of procedures and there is no uniformity
in the rules. Further, going by their stand before the consumer fora, it seems that the banks are under
the mistaken impression that not having knowledge of the contents of the locker exempts them from
liability for failing to secure the lockers in themselves as well. In as much as we are the highest Court
of the country, we cannot allow the litigation between the bank and locker holders to continue in this
vein. This will lead to a state of anarchy wherein the banks will routinely commit lapses in proper
management of the lockers, leaving it to the hapless customers to bear the costs. Hence, we find it
imperative that this Court lays down certain principles which will ensure that the banks follow due
diligence in operating their locker facilities, until the issuance of comprehensive guidelines in this
regard.
12. Thus, we emphasize that irrespective of the value of the articles placed inside the locker, the bank
is under a separate obligation to ensure that proper procedures are followed while allotting and
operating the lockers:
(a) This includes maintenance of a locker register and locker key register.
(b) The locker register shall be consistently updated in case of any change in allotment.
(c) The bank shall notify the original locker holder prior to any changes in the allotment of the
locker, and give them reasonable opportunity to withdraw the articles deposited by them if they
so wish.
(d) Banks may consider utilizing appropriate technologies, such as blockchain technology
which is meant for creating digital ledger for this purpose.
(e) The custodian of the bank shall additionally maintain a record of access to the lockers,
containing details of all the parties who have accessed the lockers and the date and time on
which they were opened and closed.
(f) The bank employees are also obligated to check whether the lockers are properly closed on a
regular basis. If the same is not done, the locker must be immediately closed and the locker
holder shall be promptly intimated so that they may verify any resulting discrepancy in the
contents of the locker.
(g) The concerned staff shall also check that the keys to the locker are in proper condition.
(h) In case the lockers are being operated through an electronic system, the bank shall take
reasonable steps to ensure that the system is protected against hacking or any breach of security.
(i) The customers’ personal data, including their biometric data, cannot be shared with third
parties without their consent. The relevant rules under the Information Technology Act, 2000
will be applicable in this regard.
(j) The bank has the power to break open the locker only in accordance with the relevant laws
and RBI regulations, if any. Breaking open of the locker in a manner other than that prescribed
under law is an illegal act which amounts to gross deficiency of service on the part of the bank
as a service provider.
(k) Due notice in writing shall be given to the locker holder at a reasonable time prior to the
breaking open of the locker. Moreover, the locker shall be broken open only in the presence of
authorized officials and an independent witness after giving due notice to the locker holder. The
bank must prepare a detailed inventory of any articles found inside the locker, after the locker is
opened, and make a separate entry in the locker register, before returning them to the locker
holder. The locker holder’s signature should be obtained upon the receipt of such inventory so as
to avoid any dispute in the future.
(l) The bank must undertake proper verification procedures to ensure that no unauthorized party
gains access to the locker. In case the locker remains inoperative for a long period of time, and
the locker holder cannot be located, the banks shall transfer the contents of the locker to their
nominees/legal heirs or dispose of the articles in a transparent manner, in accordance with the
directions issued by the RBI in this regard.
(m) The banks shall also take necessary steps to ensure that the space in which the locker
facility is located is adequately guarded at all times,
(n) A copy of the locker hiring agreement, containing the relevant terms and conditions, shall be
given to the customer at the time of allotment of the locker so that they are intimated of their
rights and responsibilities,
(o) The bank cannot contract out of the minimum standard of care with respect to maintaining
the safety of the lockers as outlined supra.
13. In the present case, it is undisputed that the Respondent Bank inadvertently broke the Appellant’s
locker, without any just or reasonable cause, even though he had already cleared his pending dues.
Moreover, the Appellant was not given any notice prior to such tampering with the locker. He
remained in the dark for almost a year before he visited the bank for withdrawing his valuables and
enquired about the status of the locker. Irrespective of the valuation of the ornaments deposited by
the Appellant, he had not committed any fault so far as operation of the locker was concerned. Thus,
the breaking open of the locker was in blatant disregard to the responsibilities that the bank owed to
the customer as a service provider. The alleged loss of goods did not result from any force majeure
conditions, or acts of third parties, but from the gross negligence of the bank itself. It is case of gross
deficiency in service on the part of the bank.
14. Thus, looking to the facts and circumstances of the case, we deem it appropriate to impose costs
of Rs. 5,00,000/- on the Bank which should be paid to the Appellant as compensation. The amount of
Rs. 5,00,000/- shall be deducted from the salary of the erring officers, if they are still in service. If
the erring officers have already retired, the amount of costs should be paid by the Bank. Additionally,
the Appellant shall be paid Rs. 1,00,000/- as litigation expense.
15. Before concluding, we would like to make a few observations on the importance of the subject
matter of the present appeal. With the advent of globalization, banking institutions have acquired a
very significant role in the life of the common man. Both domestic and international economic
transactions within the country have increased multiple folds. Given that we are steadily moving
towards a cashless economy, people are hesitant to keep their liquid assets at home as was the case
earlier. Thus, as is evident from the rising demand for such services, lockers have become an
essential service provided by every banking institution. Such services may be availed of by citizens
as well as by foreign nationals. Moreover, due to rapid gains in technology, we are now transitioning
from dual key-operated lockers to electronically operated lockers. In the latter system, though the
customer may have partial access to the locker through passwords or ATM pin, etc., they are unlikely
to possess the technological know-how to control the operation of such lockers. On the other hand,
there is the possibility that miscreants may manipulate the technologies used in these systems to gain
access to the lockers without the customers’ knowledge or consent. Thus the customer is completely
at the mercy of the bank, which is the more resourceful party, for the protection of their assets.
In such a situation, the banks cannot wash off their hands and claim that they bear no liability
towards their customers for the operation of the locker. The very purpose for which the customer
avails of the locker hiring facility is so that they may rest assured that their assets are being properly
taken care of. Such actions of the banks would not only violate the relevant provisions of the
Consumer Protection Act, but also damage investor confidence and harm our reputation as an
emerging economy.
15.1 Thus it is necessary that the RBI lays down comprehensive directions mandating the steps to be
taken by banks with respect to locker facility/safe deposit facility management. The banks should not
have the liberty to impose unilateral and unfair terms on the consumers. In view of the same, we
direct the RBI to issue suitable rules or regulations as aforesaid within six months from the date of
this judgment. Until such Rules are issued, the principles stated in this judgment, in general and at
para 13 in particular, shall remain binding upon the banks which are providing locker or safe deposit
facilities. It is also left open to the RBI to issue suitable rules with respect to the responsibility owed
by banks for any loss or damage to the contents of the lockers, so that the controversy on this issue is
clarified as well.
16. The Appeal is disposed of accordingly.
