State Bank of India

adminadmin Administrator
[FONT=&quot]BEFORE THE DISTRICT FORUM CONSTITUTED UNDER THE CONSUMER PROTECTION ACT (ACT NO. 68 OF 86) AT SRIKAKULAM[/FONT]


P R E S E N T

[FONT=&quot] 01. Sri P.Gurunadha Rao,[/FONT]
[FONT=&quot] President, District Consumer Forum,[/FONT]
[FONT=&quot] Srikakulam[/FONT]
[FONT=&quot]02.[/FONT][FONT=&quot] Smt. D.Raj Kumari, B.A.(Hons.), B.L.,[/FONT]
[FONT=&quot] Lady Member. [/FONT]
[FONT=&quot]Dated this the 2nd day of March, 2009[/FONT]

[FONT=&quot]C.C.No.20/2008[/FONT]


[FONT=&quot]BETWEEN:[/FONT]

[FONT=&quot]D.V.S.Ravikishore, S/o.Narasimha Rao, aged 25 years, Hindu, Business, Door No.4-165, Plot No.13, Bankers Colony, Srikakulam Town and Dist. ...Complainant.[/FONT]

[FONT=&quot]AND:[/FONT]

[FONT=&quot]01)[/FONT][FONT=&quot]The Senior Manager, State Bank of India, G.T.Road, Srikakulam.[/FONT]
[FONT=&quot]02)[/FONT][FONT=&quot]The Manager, ICICI Bank Limited, Panjagutta Branch,[/FONT]
[FONT=&quot]Nerella House No.4, Hyderabad. …opposite parties.[/FONT]

[FONT=&quot]This complaint coming on 17-10-2008 for final hearing before us in the presence of Sri S.Ramesh and G.Visalakshi, Advocates for complainant and Sri B.S.R.Sreepada, Advocate for opposite party No.1 and Sri P.V.S.Seetharamayya, Advocate for opposite party No.2 and having stood over to this day for consideration, this Forum made the following:[/FONT]


[FONT=&quot]O R D E R[/FONT]
[FONT=&quot] This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 and facts of the case briefly are as follows:[/FONT]
[FONT=&quot] Complaint presented a cheque for Rs.50,000/- for collection to opposite party NO.1 bank on 30-4-2007. It was returned with the endorsement “dishonor” by opposite party nO.2 bank. Hence the complaint is filed for a direction to opposite parties to deposit the cheque amount of Rs.50,000/- with interest and compensation of RS.30,000/-, Rs.15,000/- towards loss and mental agony and Rs.2,000/- towards expenses. [/FONT]
[FONT=&quot]
2) Opposite party No.1 filed counter stating that there is no deficiency in service on their part.[/FONT]
[FONT=&quot]
3) Opposite party No.2 filed counter sating that the cheque was dishonored because it was in mutilated condition. [/FONT]
[FONT=&quot]

4) Both parties filed affidavits. Exs.A1 to A8 are marked on behalf of the complainant. No documents are marked on behalf of the opposite parties.[/FONT]
[FONT=&quot] Heard both parties.[/FONT]
[FONT=&quot] Point for consideration is:[/FONT]
[FONT=&quot] Whether there is deficiency in service on the part of the opposite parties.[/FONT]


[FONT=&quot] 5) Point: [/FONT]
[FONT=&quot] Complainant filed affidavit. It is nothing but repetition of the facts contained in the complaint. Opposite party No.1 filed affidavit. It is nothing but repetition of the facts mentioned in the counter. Opposite party No.2 filed affidavit. It is nothing but repetition of the facts mentioned in the counter.[/FONT]
[FONT=&quot]

6) Cheque was presented to opposite party No.1 bank for collection. Opposite party NO.1 bank sent the cheque to opposite party No.2 bank for payment. Opposite party No.2 bank dishonored the cheque and returned it for the reason that it was in mutilated condition. Opposite party No.1 bank could not deposit the cheque amount in the account of the complainant because the cheque was dishonored. Opposite party NO.1 bank is not at fault for dishonoring the cheque by opposite party NO.2 bank. There is no deficiency in service on the part of opposite party NO.1 bank. Opposite party No.2 bank dishonored the cheque because it was in mutilated condition. Opposite party No.2 bank cannot be compelled to pay the amount because the cheque was in mutilated condition. There is no deficiency in service on the part of the opposite party No.2 bank. Complainant ought to have obtained another cheque in the place of mutilated cheque. There cannot be any loss for the complainant due to dishonor of the mutilated cheque. Complainant ought to have requested the person who issued the cheque for another cheque in the place of mutilated cheque. We therefore hold that there is no deficiency in service on the part of the opposite parties bank. Hence we answer the point accordingly. [/FONT]
[FONT=&quot]

In the result, complaint is dismissed. No costs. Advocate’s fee is fixed at Rs.500/- (Rupees five hundred only).
[/FONT]
[FONT=&quot] Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in open Forum on this the 2nd day of March, 2009.[/FONT]
«13456711

Comments

  • adminadmin Administrator
    edited September 2009
    C.C.No: 316/2007
    BETWEEN:
    Pentyala Jaihind,
    S/o Papaiah, aged 60 years,
    Hindu, R/o. Dronadula village,
    Door No.6/21, Martur Mandal,
    Prakasam District. ... Complainant.
    Vs.
    1. The Branch Manager,
    Syndicate Bank, Idupulapadu,
    Inkollu Mandal, Prakasam District.

    2. The Branch Manager,
    State Bank of India,
    Martur, Prakasam District.

    3. P.V. Prasad, employee in S.B.I.,
    Martur Branch, Prakasam District.

    O.P.No.3 is added as per orders in I.A. No.105/08
    Dt. 01.04.2008. …Opposite parties.

    COUNSEL FOR COMPLAINANT: SRI R. KESAVA RAO,
    ADVOCATE, ONGOLE.

    COUNSEL FOR OPPOSITE PARTY NO.1: SRI I. VENKATESWARLU,
    ADVOCATE, ONGOLE.

    COUNSEL FOR OPPOSITE PARTY NO.2: SRI R.V.S. BHARADWAJA,
    ADVOCATE, ONGOLE.

    COUNSEL FOR OPPOSITE PARTY NO.3: SRI W.R.BHARADWAJA
    ADVOCATE, ONGOLE.


    This complaint is coming on 03.03.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
    ORDER:
    1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 against the opposite parties.

    2. The averments in the complaint are as follows: The complainant is having Savings Bank Account No.SLV. 64 with the 1st opposite party, Syndicate Bank, Idupulapadu of Inkollu Mandal. The 3rd opposite party P.V. Prasad issued a cheque to the complainant on 01.02.2007 for Rs.80,000/- drawn on State Bank of India, Martur (O.P.2) with regard to the amount due to the complainant. The complainant presented the said cheque bearing No.640555 in OP.1 Bank on 09.05.2007 for collection. OP.1 Bank received the said cheque from the complainant and sent the same to OP.2 Bank for clearance so far the amount was not credited to the account of the complainant nor the cheque was returned. The complainant approached OP.1 Bank several times and questioned about the cheque presented by him. The Manager of OP.1 Bank represented that they are making correspondence with OP.2 Bank for the cheque amount and there was no response from OP.2 Bank. It is the bounden duty of OP.1 and OP.2 Banks to pass the cheque and credit the amount to his account. But they fail to do so and it amounts to deficiency in service on the part of OP.1 and OP.2. By their inaction opposite parties 1 and 2 caused mental agony and monitory loss to the complainant. Hence, the complainant is constrained to file the complaint for recovery of the cheque amount of Rs.80,000/- and compensation of Rs.50,000/- for mental agony and Rs.5,000/- towards costs of the litigation.

    4. The 1st opposite party Branch Manager, Syndicate Bank, Idupulapadu filed counter contending as fallows: It is true that on 09.05.2007 the complainant presented the cheque bearing No.640555 payable at OP.2 Bank at Martur on 12.05.2007. OP.1 sent the said cheque for collection under OBC No.370/2007 along with 33 other instruments to OP.2 Bank under separate covering letters by way of a common consignment through professional courier receipt bearing No.CRL 55003 and it was received by the 2nd opposite party on 14.05.2007. Except the cheque presented by the complainant the other cheques were realized by the 2nd opposite party. The 1st opposite party appraised the 2nd opposite party by phone and through letters about non-realisation/non-receipt of the cheque proceeds of the complainant. The 1st opposite party also informed the complainant about the status of the cheque. The 1st opposite party wrote letters to the 2nd opposite party on 09.06.2007, on 05.07.2007 about the cheque. On 06.07.2007 the 2nd opposite party sent reply stating that the cheque of the complainant was not received by it. On 18.07.2007 the 1st opposite party addressed a letter to the complainant appraising him about the fact and asked him, to get duplicate instrument. In the instant case though the 1st opposite party has exercised due diligence in the matter of handling the assignment on collection, the cheque is reportedly lost due to the reasons beyond its control. There is no deficiency in service on the part of the 1st opposite party. The drawer of the so-called cheque is working with OP.2 Bank. OP.1 Bank addressed a letter dated 30.10.2007 to the Regional Manager of OP.2 Bank duly ventilating their suspicion and foul play in missing of the cheque by the drawer of the cheque who is OP.3. The complainant has a remedy to recover the money due to him from the drawer of the cheque and he is not entitled to claim the cheque amount from the bank. For the foregoing reasons OP.1 Bank prays the court to dismiss the petition.

    5. 2nd opposite party State Bank of India, Martur Branch filed its counter contending as fallows: On 12.05.2007 the 1st opposite party sent 33 instruments as per OBC list from 371/2007 to 403/2007 along with collection cheque list for total amount of Rs.33,684/-. The cheque in question alleged to have sent under OBC No.370/2007 was not received in OP.2 Bank. 2nd opposite party gave reply on 05.07.2007 to the 1st opposite party Bank that instrument sent under OBC No.370/2007 for Rs.80,000/- was not received by them. It is a clear case of deficiency in service on the part of the 1st opposite party and to avoid their responsibility, the 1st opposite party is throwing play on the 2nd opposite party and making false allegation against the staff of the 2nd opposite party. For the foregoing reasons OP.2 prays the court to dismiss the complaint.

    6. OP.3 filed his counter contending as fallows: The 3rd opposite party never barrowed any amount from the complainant nor issued any cheque to the complainant towards payment of the debt. The complainant filed false complaint blackmailing the Nationalized Banks for wrongful gain. About two years ago the complainant came to the house of 3rd opposite party during his absence and sat there for some time and left the house. At that time he might have committed theft of one leaf from the cheque book which was on the table without the notice of the inmates. 3rd opposite party is neither a necessary party nor a proper party to the complaint and prays the court to dismiss the complaint with costs.

    7. On behalf of the complainant Exs.A1 to Ex.A5 were marked. The Ex.A1 is the Counter foil pertaining to Syndicate Bank, Idupulapadu dated 09.05.2007. Ex.A2 is the Letter issued by Syndicate Bank, Idupulapadu to the complainant dated 18.07.2007. Ex.A3 is the Cheque bearing No.640555 pertaining to S.B.I. Martur dated 01.02.2007. Ex.A4 is the Letter from Syndicate Bank, Idupulapadu to the Manager, S.B.I. Martur dated 09.06.2007. Ex.A5 is the Ledger extract issued by Syndicate Bank, Idupulapadu pertaining to the cheques transactions.

    8. On behalf of the 1st opposite party Exs.B1 to Ex.B11 were marked. Ex.B1 is the Cheque collection form dated 09.06.2007. Ex.B2 is the Xerox copy of the letter addressed by the Branch Manager, Syndicate Bank, Idupulapadu dated 12.05.2007 to the Branch Manager, State Bank of India, Martur for Rs.80,000/-. Ex.B3 is the Xerox copy of the letter addressed by the Branch Manager, Syndicate Bank, Idupulapadu dated 12.05.2007 to the Branch Manager, State Bank of India, Martur for Rs.33,684/-. Ex.B4 is the Xerox copy of the account extract. Ex.B5 is the Postal Outward Register copy. Ex.B6 is the Letter of Syndicate Branch Manager to State Bank of India, Martur dated 09.06.2007. Ex.B7 is the Professional courier daily delivery statement. Ex.B8 is the Syndicate Bank, Idupulapadu letter to S.B.I., Martur dated 05.07.2007. Ex.B9 is the Reply letter of S.B.I to Syndicate Bank, Idupulapadu dated 05.07.2007. Ex.B10 is the Letter to Jaihind Pentyala, S/o Papaiah dated 18.07.2007. Ex.B11 is the Letter to the Regional Manager of S.B.I. dated 30.10.2007.

    9. On behalf of the 2nd opposite party Exs.B12 to Ex.B17 were marked. Ex.B12 is the Letter dated 12.05.2007 by the Syndicate Bank, Idupulapadu to the Manager, S.B.I., Martur for Rs.33,684/-. Ex.B13 is the Collection Cheques List. Ex.B14 is the Post Card dated 29.05.2007. Ex.B15 is the Post Card dated 29.05.2007. Ex.B16 is the Letter dated 08.06.2007 given by Complainant to 1st opposite party Bank. Ex.B17 is the Letter dated 05.07.2007 by the State Bank of India, Martur. No documents are marked on behalf of the 3rd opposite party.

    10. The point for consideration is among the opposite parties 1 to 3 who is liable to pay compensation to the complainant for missing of the cheque presented by the complainant in 1st opposite party bank.

    11. The case of the complainant is that he is maintaining Savings Bank Account No. SLV. 64 with 1st opposite party bank. The 3rd opposite party P.V. Prasad, who is the working in 2nd opposite party bank and who is having account with 2nd opposite party bank issued a cheque bearing No.640555 for Rs.80,000/- to him for the amount due to him and he presented the said cheque in his account in OP.1 Bank for collection. The cheque amount was not credited to his account nor the cheque was returned. Hence, he filed the complaint claiming compensation from the opposite parties.

    12. 1st opposite party Bank admitted that on 09.05.2007 the complainant presented the cheque bearing No.640555 for Rs.80,000/- payable at 2nd opposite party Bank and on 12.05.2007 the 1st opposite party sent the said cheque for collection under OBC. No.370/2007 to OP.2 Bank through Professional Courier under receipt No. CRL 55003 and it was received by OP.2 Bank on 14.05.2007. Except the cheque proceeds other cheques were realized and inspite of several reminders OP.2 fail to act and they informed the same to the complainant and the complainant also did not choose to take steps to obtain duplicate cheque from OP.3. 1st opposite party Bank expressed doubt that the drawer of the cheque (OP.3) who is working in OP.2 Bank might have played fraud and got the cheque misplaced so that the cheque issued by him should not be encashed. In these circumstances, there is no deficiency on the part of OP.1 Bank and OP.1 Bank is not liable for missing of the cheque.

    13. OP.2 Bank contended that the cheque in question was not sent to their bank for collection by OP.1 Bank nor it was received by them under OBC No.370/2007. They further contended that OP.1 Bank sent 33 cheques as per OBC list from 371 to 403/2007 for Rs.33,684/- and the cheque amounts were already paid to OP.1. But they have not received the cheque bearing No.640555 alleged to have to sent under OBC No.370/2007 and they are not responsible for missing of the said cheque.

    14. OP.3 says that he never barrowed any amount from the complainant nor issued the cheque in question to the complainant. According to him 2 years back the complainant came to his house in his absence and during that visit he might have committed with theft of one leaf from the cheque book lying on the table without the notice of the inmates.

    15. 1st opposite party admitted about the presentation of the cheque bearing No.640555 by the complainant.

    16. The point for consideration is whether the 1st opposite party bank sent the cheque bearing No.640555 to the 2nd opposite party bank and whether the same was received by the 2nd opposite party bank.

    17. The learned counsel for the 2nd opposite party bank vehemently argued that cheques sent under OBC Nos.371/2007 to 403/2007 alone were received in OP.2 Bank and the disputed cheque sent under OBC 370/2007 was not received in OP.2 bank and that the allegation that it was misplaced in OP.2 bank is false. In support of his argument he produced Ex.B12 letter dated 12.05.2007 and Ex.B13 collection cheque list sent bank OP.1 bank to OP.2 bank. He further argued that the 33 cheques sent under Exs.B12 and Ex.B13 were received in their Bank and the amounts were credited on realization and disputed cheque was not in their bank.

    18. The 1st opposite party explained the discrepancy and submitted that the 33 cheques sent under OBC Nos. 371/2007 to 403/2007 pertain to the Government cheques and they are sent in one bunch and the disputed cheque pertaining to private individual was sent under OBC No.370/2007 in the same consignment through Professional Couriers and the same was received in OP.2 bank. OP.1 bank further contended that Government cheques are realized and the disputed cheque was neither realized nor returned to OP.1 bank inspite of several reminders.

    19. OP.1 Bank produced documents to prove that they sent the cheque bearing No.640555 to OP.2 Bank and it was received by OP.2 bank. As per Postal Outward Register marked Ex.B5 the instrument under OBC No.370/2007 was sent separately and the instruments under OBC 371 to 403/2007 were sent separately to OP.2 Bank on 12.05.2007 in the same consignment through Professional Couriers vide receipt No. CRL 55003. Outward Register entries are made during the course of regular business and I find no reason to suspect the entries. As per the delivery statement of Professional Couriers marked as Ex.B7, the cheques sent under the receipt CRL 55003 were delivered at OP.2 Bank on 14.05.2007. From the above documents it is clear that the cheque bearing No.640555 was received in OP.2 Bank on 14.05.2007 and it was misplaced in OP.2 bank. No other proof is required. Therefore, OP.2 Bank alone is liable to pay compensation to the complainant. The correspondence made by OP.1 Bank proves their bonafides and efforts to realize the amount and credit it to the account of their customer. But, there is no response from OP.2 Bank for the reasons best known to them.

    20. In a case reported in 1 (2007) CPJ 1 (NC) in Canara Bank Vs. Sudhir Ahuja, it was held that “Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d) – Banking and Financial Services – Cheque lost in transit – Neither amount credited nor cheque returned – Deficiency in service proved – Bank liable to pay some amount of compensation and not entire amount of cheque – Order of State Commission directing OP to pay entire cheque amount not legally sustainable – OP liable to pay Rs.5,000/- compensation”.

    21. In another case reported in 1 (2009) CPJ, Page No.44 in Azhar Mohammed & Ors. Vs. Punjab National Bank. The National Commission held that “In a catena of judgments, the National Commission has held that the case tantamounts to deficiency in service by the Bank, but the bank cannot be held liable to reimburse the value of the cheque lost in transit but the Consumer For a can award compensation commensurate with the deficiency in service”.

    22. In view of the decisions sited above OP.2 Bank can be ordered to pay compensation to the complainant and not the entire amount of the cheque as claimed by the complainant. Considering the facts and circumstances of the case OP.2 Bank can be directed to pay Rs.10,000/- as compensation to the complainant within One month from the date of order.

    23. In the result, petition is allowed directing the OP.2 State Bank of India, Martur Branch to pay Rs.10,000/- as compensation to the complainant within One month from the date of order. Petition against OP.1 and OP.3 is dismissed. No order as to costs.
  • adminadmin Administrator
    edited September 2009
    ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT



    1)[FONT=&quot] [/FONT]This is a complaint praying to direct the OP to pay to the complainant interest on amount of Rs.29,57,928-00 from 29-10-08 till 01-1-09 amounting to Rs.59,158-00 at the rate of 12% p.a., future interest on Rs.29,57,928-00 from date of petition till realization @ 12% pa, Rs.10,000-00 for mental agony and Rs.5,000-00 towards litigation expenses, and costs of proceedings.

    2)[FONT=&quot] [/FONT]Brief facts of the complaint are that the lands of the complaint were acquired by the SLAO Seabird. The complainant filed LAC 56/98 on the file of Adl.C.J. (Sr. Dvn. Karwar on whose award the SLAO Seabird deposited 25% of the decretal amount through cheque Dated 6-10-08. The SLAO Seabird deposited an amount of Rs.29,57,528/- in LAC No 56/98 (EX.276/07) on 22-10-08 towards part payment before the Civil Judge (Sr.Dn) Karwar under R.O. No7391. The same was sent for collection through the OP on 22-10-08 by the Pr. Civil Judge (Sr.Dn.) Karwar. The OP Bank ought to have deposited before the court within 7 days. Till today inspite of reminders and notices the OP failed to deposit the amount. The complainant who is a land looser is deprived of the interest on the deposited amount of Rs 29,57,928-00 due to delay and negligence of the OP. There is deficiency of service on the part of the OP and the OP is liable to pay Rs 59,158-00 with interest and cost.

    3)[FONT=&quot] [/FONT]The OP filed WS stating that the cheque in question was received by the OP on 22-10-08 and it was sent for collection on 24-10-08 to the drawee branch at Bangalore. The cheque amount has not been realized till date and after ascertaining that the cheque has been misplaced the OP has written to the Issuing authority for issue of fresh cheque. The delay in realization of the cheque amount has been caused due to inadvertent loss of the instrument and the OP would only be liable for overdue interest as per banking practice. The OP prays to dismiss the complaint.

    4)[FONT=&quot] [/FONT]The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-8.

    5)[FONT=&quot] [/FONT]The point that arises for our consideration is: “For what relief the complainant is entitled” ?

    6)[FONT=&quot] [/FONT]It is the contention of the counsel for the complainant that the cheque is misplaced due to the negligence of the OP. The complainant who is a land looser is deprived of the interest on the deposited amount of Rs.29,57,928-00. He prays to allow the interest and costs.

    7)[FONT=&quot] [/FONT]The counsel for the OP vehemently urged that the cheque is lost due to inadvertent loss of the instrument and the OP would only be liable for overdue interest as per banking practice. He prays to dismiss the complaint with costs.

    8)[FONT=&quot] [/FONT]It is admitted fact that the cheque is lost during transit. The OP has admitted that the OP would only be liable for overdue interest as per banking practice. The complainant who is a looser of the land has filed LAC No 56/98 and the EP No.276/07 before the Civil Judge (Sr. Dn.) Karwar. He is a sufferer for the lost 10 years. He has to enjoy the fruit of the award amount. A delay in depositing the huge amount of more than 29 lakhs is injustice caused to the complainant. The OP ought to have got deposited the amount online but he has not done so. In our view the OP has to pay to the complainant interest @ 9% pa on Rs.29,57,928/- from 29-10-2008 till realization with cost of Rs.1000-00.
    We pass the following order.
    ORDER

    The complaint is allowed.
    The OP is directed to pay to the complainant interest @ 9% pa on Rs. 29,57,928/- (Rs.Twenty nine lakhs fifty seven thousand nine hundred and twenty eight only) from 29-10-2008 till realization and cost of Rs.1,000-00 (Rs.One thousand only).
  • adminadmin Administrator
    edited September 2009
    Date of Filing:20.11.2008
    Date of Order: 16.03.2009
    BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20
    Dated: 16th DAY OF MARCH 2009
    PRESENT
    Sri. Bajentri H.M, B.A, LL.B., President
    [FONT=&quot]Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member[/FONT]


    COMPLAINT NO. 2513 OF 2008

    [FONT=&quot]Sri. V. Rao Gulur,[/FONT]
    [FONT=&quot]S/o. Gulur Seshagiri Rao (Late),[/FONT]
    [FONT=&quot]Aged About 70 years, [/FONT]
    [FONT=&quot]R/at: Flat No. T3, Plot No.33,[/FONT]
    [FONT=&quot]“Shravanthi Crescent”,[/FONT]
    [FONT=&quot]Yelachanahalli,[/FONT]
    [FONT=&quot]BANGALORE-560 062. [/FONT][FONT=&quot] [/FONT]…. Complainant.[FONT=&quot][/FONT]
    [FONT=&quot] [/FONT]
    -V/s-
    [FONT=&quot] [/FONT]
    [FONT=&quot]The Chief Manager,[/FONT]
    [FONT=&quot]State Bank Of India, PBB,[/FONT]
    [FONT=&quot]No.296, GVS Complex,[/FONT]
    [FONT=&quot]10th Main, 22nd Cross, [/FONT]
    [FONT=&quot]3rd Block, Jayanagar,[/FONT]
    [FONT=&quot]BANGALORE-560 011.[/FONT][FONT=&quot] [/FONT][FONT=&quot] [/FONT]…. Opposite Party. [FONT=&quot][/FONT]
    ORDER
    This complaint is filed claiming Rs.55,333/- from the opposite party for the loss suffered along with additional compensation towards deficiency in service on the following grounds:-
    The complainant got the Security release Letters on his Rupee Loan Numbers 30292012076 and 30295172037 on 21.10.2008 from the opposite party Bank and left eleven of his pledged USD certificates with Sri. Ramaprasad for renewal and prompt dispatch to the SBI, Padmanabhanagar Branch. Sri Ramaprasad, an officer in opposite party Bank, promised to dispatch them duly renewed by courier on 21.10.2008, which according to him should get to the Padmanabhanagar Branch by 23.10.2008 as 22.10.2008 was a holiday. Frantically, he was earmarking his otherwise time of value in contacting Sri. Ramaprasad from 23rd to 30th October 2008 on his phone number 26540181 to reach was next to adventure he relentlessly was pouring confirmations that the renewed USD certificates would be delivered by courier. But on the second and subsequent calls Sri. Ramaprasad said on phone that, he would find where the certificates are and personally deliver them to the SBI Padmanabhanagar Branch after the closing time of the opposite party Bank. During all the time between 23rd and 30th October 2008, he was ringing up SBI Padmanabhanagar Branch to find out whether they had received the USD deposit certificates. On the evening of 30.10.2008 at about 6.00 PM he got a confirmation call from the SBI, Padmanabhanagar Branch that the said certificates are delivered by Sri. Ramaprasad. The USD and Rupee exchange rates where at a peak of Rs.49.98 on 24.10.2008 and continued during the first part of the week of 27.10.2008, but had fallen to Rs.47.25 by the time the opposite party Bank delivered the certificates on 30.10.2008 at 6.00 PM. The criminal negligence in handling a TIME SENSITIVE Foreign Exchange Instrument has forced on him a loss that hovers around Rs.40,000/- and the same clearly graduates to its family act that is deficiency of service. While lending Rupees on Dollars as Collateral, the Bank has reduced the face value in USD by 20% keeping the 20% as a cushion against the exchange rate fluctuations, by the same yardstick, he feels compelled to saturation in invoking an order from the Forum on the opposite party allowing a mere 10%, that compute to Rs.49.98 x 0.10 = Rs.4.998 or Rs.5/- per USD of Consumers Safety Cushion for Criminal Negligence by the Bank. Thus on the USD 11,506.66 of the certificates the Bank had held and prevented him from converting the dollars at favorable rates of exchange, it would be just to award Rs.55,333/- for the criminal negligence of the Bank that also graduates to deficiency of service. Hence the complaint.

    2. In the version the contention of the opposite party is as under:-
    The complainant has deliberately made certain false averments to suit his case. The complainant is a customer of Padmanabhanagar Branch of SBI and the opposite party Bank is maintaining the FCNB deposits of the customers on behalf of Padmanabhanagar branch. On 21.10.2008 the complainant handed-over eleven FCNB deposits to Sri. Ramprasad, Special Assistant in opposite party Bank for noting the renewal particulars on the receipts at the instance of Padmanabhanagar Branch. These deposits were auto renewed between the period from 10.08.2008 to 04.09.2008. On receipt of the said deposits the Officer requested the complainant to wait for half an hour, since some other customers who approached the Bank prior to the complainant were waiting, but the complainant instead of waiting told the Officer that there is no urgency and requested to send the USD certificates after renewal to SBI Padmanabhanagar Branch. On 23.10.2008 the complainant asked the Branch to convert one of the deposits bearing Account No.30251275078 for USD 1045.93 which was converted at the rate of Rs.49.51 per dollar on 24.10.2008 by the Forex Link Branch and credited to the SB Account of the complainant. Two branches have different weekly offs and there were continuous holidays on account of Diwali. Since it was month end, due to continuous holidays, the work pressure was too much, therefore the USD certificates could not be sent by courier on 25th and 28th October 2008, which were the only available working days during the said period. The opposite party ensured delivery of the certificates personally on 30.10.2008. The complainant had given instructions to convert only one of the receipts and had not given instructions for conversion of the remaining deposits. If really the complainant wanted to en-cash the certificates between 21.10.2008 and 30.10.2008 he could have instructed the opposite party Bank to do so. On 20.11.2008 as per the request of the complainant, the opposite party Bank arranged for conversion of his deposits at the rate of Rs.50.255 per dollar which is much more than his expectation of Rs.49.94. 29.10.2008 was public holiday and card rate for 30th and 31st October 2008 was 49.16 and 49.11 respectively. The card rate for conversion during the period from 21.10.2008 to 06.11.2008 obtained from Forex branch is as under:-
    [FONT=&quot]Date[/FONT]
    [FONT=&quot]Conversion Rate[/FONT]
    [FONT=&quot]Date [/FONT]
    [FONT=&quot]Conversion Rate[/FONT]
    [FONT=&quot]21.10.2008[/FONT]
    [FONT=&quot]48.36[/FONT]
    [FONT=&quot]29.10.2008[/FONT]
    [FONT=&quot]Holiday[/FONT][FONT=&quot][/FONT]
    [FONT=&quot]22.10.2008[/FONT]
    [FONT=&quot]48.76[/FONT]
    [FONT=&quot]30.10.2008[/FONT]
    [FONT=&quot]49.16[/FONT]
    [FONT=&quot]23.10.2008[/FONT]
    [FONT=&quot]47.06[/FONT]
    [FONT=&quot]31.10.2008[/FONT]
    [FONT=&quot]49.11[/FONT]
    [FONT=&quot]24.10.2008[/FONT]
    [FONT=&quot]49.51[/FONT]
    [FONT=&quot]01.11.2008[/FONT]
    [FONT=&quot]Holiday[/FONT][FONT=&quot][/FONT]
    [FONT=&quot]25.10.2008[/FONT]
    [FONT=&quot]Saturday[/FONT]
    [FONT=&quot]02.11.2008[/FONT]
    [FONT=&quot] Sunday[/FONT]
    [FONT=&quot]26.10.2008[/FONT]
    [FONT=&quot]Sunday[/FONT]
    [FONT=&quot]04.11.2008[/FONT]
    [FONT=&quot]48.45[/FONT]
    [FONT=&quot]27.10.2008[/FONT]
    [FONT=&quot]Holiday[/FONT][FONT=&quot][/FONT]
    [FONT=&quot]05.11.2008[/FONT]
    [FONT=&quot]46.36[/FONT]
    [FONT=&quot]28.10.2008[/FONT]
    [FONT=&quot]Mumbai Holiday[/FONT]
    [FONT=&quot]06.11.2008[/FONT]
    [FONT=&quot]48.59[/FONT]
    [FONT=&quot]20.11.2008[/FONT]
    [FONT=&quot]50.255[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]

    The allegation that, the rates peaked between 27.10.2008 and 30.10.2008 is false and baseless as the market was closed for three days between 27.10.2008 and 29.10.2008 and there was no much difference between the rates on 30th and 31st of October 2008. Therefore there is no deficiency of service on the part of the opposite party Bank. There is no basis for claiming the damages from the opposite party. The complainant had not suffered any loss, he en-cashed the certificates on 20.11.2008 at the rate higher than the rates on 21.10.2008 and 30.10.2008. It is not the case of the complainant that he could not en-cash the certificates during the period from 21.10.2008 to 30.10.2008 to take advantage of the rate prevailing at that point of time. He en-cashed only one certificate and could have en-cashed others also, if he wanted to do so. The complainant has not approached this Forum with clean hands and therefore not entitled for any relief. On these grounds the opposite party has prayed for dismissal of the complaint.

    3. In support of the respective contentions, both the parties have filed affidavits. We have heard arguments on both sides.

    4. The points for consideration are:-
    (1) Whether the complainant has proved deficiency in service on the part of the opposite party?

    (2) Whether the complainant entitled to the relief prayed for in the complaint?

    5. Our findings on the above points are in the Negative for the following:-
    REASONS
    POINT Nos. 1 & 2:-
    6. It is not in dispute that the complainant handed-over the USD certificates on 21.10.2008 to Sri. Ramaprasad, an Officer in the opposite party Bank, and the same were to be dispatched to Padmanabhanagar Branch of SBI after renewal. It is also not in dispute that Mr. Ramaprasad personally delivered the certificates to Padmanabhanagar Branch of the SBI at 6.00 PM on 30.10.2008. Therefore the deficiency in service on the part of the opposite party as alleged by the complainant is with regard to the delay of about 7 or 8 days in delivering the certificates to Padmanabhanagar Branch of the SBI duly renewed. In the version it is contended by the opposite party that, on account of Diwali most of the days were general holidays during that period and both the Branches have different weekly offs, 25th and 28th October 2008 where the only available working days during that period and therefore the certificates could not be sent by courier to Padmanabhanagar of SBI before 30.10.2008. It is also contended by the opposite party that there was more pressure of work due to continuous holidays and it was a month end. If that is so, no fault could be found with the opposite party in not sending the certificates to Padmanabhanagar Branch of the SBI before 30.10.2008. It is not the case of the complainant that between 21.10.2008 and 30.10.2008 he wanted to convert the USD certificates and on account of not sending the certificates duly renewed he was deprived-off the same. The contention of the opposite party that on 23.10.2008 the complainant gave instructions to convert only one of the deposits and the same was done at the rate of Rs.49.51 per dollar on 24.10.2008 and that on 20.11.2008 the certificates were converted at the rate of Rs.50.255 dollar as requested by the complainant is not denied. This clearly goes to indicate that, between 21.10.2008 and 30.10.2008 the complainant had no intention to convert the USD certificates due to the decrease in the exchange rates and therefore on 20.11.2008 he got the certificates converted at the rate of Rs.50.255 per dollar and thereby he gained more than what he got on 24.10.2008. If that is so, the complainant has not sustained any loss on account of the delay in sending the certificates duly renewed to Padmanabhanagar Branch of the SBI. If the opposite party was unable to send the certificates before 30.10.2008 on account of continuous holidays and due to pressure of work, no fault could be found with the opposite party especially when the complainant has not sustained any loss on account of delay in sending the certificates to Padmanabhanagar branch of SBI. Therefore we hold that, the complainant has failed to make out any deficiency in service on the part of the opposite party and as such, not entitled for the relief prayed for. In the result, we pass the following:-
    ORDER
    7. The complaint is dismissed. No order as to costs.

    8. Send a copy of this order to both the parties free of costs immediately.

    9. Pronounced in the Open Forum on this 16th DAY OF MARCH 2009.

    MEMBER PRESIDENT
  • adminadmin Administrator
    edited September 2009
    Mr. V. Robert,
    Mrs.R. Latha, Complainant
    Both at # 44/29, Ramanujam Street,
    II Floor, T. Nagar, Chennai-17.

    Vs

    1. Branch Manager SBI
    PBB Indra Nagar Branch,
    Plot No.# 4 Teacher’s Colony,
    Indra Nagar, Adayar , Chennai-20. Opposite parties

    2. The Branch Head,
    SBI Life ;Insurance Co.,
    # 149 Greams Road,
    Greams Dugar “2nd Floor,
    Chdnnai – 6.


    Date of Complaint : 02.08.2007
    M/s. S. Natarajan : Counsel for the complainant
    M/s. S. Maran & C. Mahandran : Counsel for the 1st opposite party

    Mr.V. Srinivas, : Head-Legal, for the 2nd opposite Party

    ORDER
    THIRU.P. ROSIAH, PRESIDENT.
    Complaint under section 12 (1) of the Consumer Protection Act,1986.


    1. The main averments of the complainant are as follows:
    The complainant and his wife have jointly applied for the housing loan for Rs.8 lakhs from the 1st opposite party and that the loan was sanctioned on 03.06.2005. As advised by the 1st opposite party regarding State Bank of India Life Supersuraksha, for which 50% premium concession will be given for younger applicant. The complainant and his wife have jointly applied and paid premium of Rs.59,000/-. On 20.09.2005, the complainants were informed that the insurance premium benefit amount of Rs.55,142/- will be taken to cover his wife alone . As per the advice of the 2nd opposite party, the complainants had applied for loan again on 08.06.2005 and paid Rs.4,317/- in favour of the SBI Life Insurance Co Ltd., . The 2nd opposite party informed the complainant that the loan was jointly applied and hence 50% premium rebate cannot be given to the 2nd applicant. The letter addressed to the opposite parties by the complainant to include his name in the insurance was not responded by the opposite parties. Hence, there is deficiency in service on the part of the opposite parties. The complainants have filed this complaint to include the name of the 1st complainant in the insurance and pay Rs.1,45,000/- for deficiency in service and Rs.50,000/- for mental agony and Rs.5000/- as costs of the complaint.


    2. The 2nd opposite party filed version which was adopted by he 1st opposite party. The averments of the version are briefly as follows:
    The wife of the complainant R. Latha had submitted proposal under housing loan against the policy and her name was only mentioned as applicant. The 1st opposite party has not received any application seeking insurance cover from the complainant. Since the complainant has not applied for coverage, the policy was issued only in the name of his wife. Since the opposite parties have not received any proposal from the complainants seeking joint life cover it is not possible for the opposite party to issue joint insurance policy and prayed for the dismissal of the complaint.


    3. Proof affidavits have been filed by both the complainant and the opposite parties. Exhibits A1 to A7 have been marked on the side of the complainant. Exhibits B1 to B3 were marked on the side of the opposite parties.


    4. The points that arise for consideration are as follows:
    1) Whether there is any deficiency in service on the part of the
    opposite party?
    2) To what relief the complainant is entitled to ?



    5. Point No.1: The complainant and his wife were sanctioned housing loan of Rs.8,59,000/- by letter dated 03.06.2005 by the State Bank of India . Ex A1 is the copy of the sanctioned order. Ex A2 is the agreement for additional housing loan submitted by the complainant and his wife to the opposite party. They have sent cheque for Rs4,317/- for State Bank of India Life Insurance Company. By letter dated 06.09.2005, the opposite party informed the complainant and his wife for submitting medical questionnaire for considering SBI insurance. But the letter dated 20.06.2005 (Ex A4) the wife of the complainant R. Latha was admitted in the Insurance scheme. Even in Ex A5, the Insurance for housing loan, the name of both the complainants and his wife R. Laltha were mentioned. In Ex A6, the complainant was informed to rectify certain corrections. Hence, it cannot be said that the complainant has not applied for SBI Insurance. The application submitted by the complainant has not been rejected but it was returned for submissions and according to the complainant, the opposite parties, without considering his plea had issued only one certificate in the name of his wife. The act of the opposite parties amounts to deficiency in service.


    6. Though the opposite parties would submit that the complainant has not sent any proposal for State Bank of India Insurance. We find from Exhibits A2, A3, A4 and A6 that the complainant had applied for SBI Life Insurance along with his wife. Those documents were filed by the complainant along with their proof affidavit. Hence, the non-inclusion of the name of the complainant in the SBI Insurance amounts to deficiency in service.



    7. Point No.2: In the result, the complaint is allowed. The opposite parties 1 and 2 are directed jointly and severally to include the name of the 1st complainant, i.e., V. Robert in the insurance policy, if necessary, after obtaining necessary forms, within two months from the date of receipt of copy of this order. The opposite parties 1 and 2 are further directed jointly and severally to pay a sum of Rs.25,000/-as compensation for mental agony and Rs.5000/- as cost of the complaint to the complainant within two months from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.
  • adminadmin Administrator
    edited September 2009
    K. Dhanabalan,
    Advocate,
    35-A, Muruganathapuram(South),
    Karur Town, Karur TK & Dist. … Complainant
    -versus-
    The Branch Manager,
    State Bank of India,
    Vanagal Branch,
    Vangal, Karur District. … Opposite Party

    This complaint coming on this day for final hearing before us, in the presence of the complainant appeared in person and the opposite party not entered appearance and the complainant filed a memo stating that the matter is settled and this Forum passed the following:
    ORDER
    1. The complaint is for directing the opposite party to refund Rs.8,035/- with interest, to pay Rs. 5,000/- towards compensation for mental agony, loss of income and cost of this complaint to the complainant.

    2. Full satisfaction Memo filed and recorded. Hence, this matter is settled out of this Hon’ble Forum. This petition is dismissed without costs.
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]Mr. K. Jayaram Kamath,[/FONT]
    [FONT=&quot]Smt. K. Jaya Kamath[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Both residing at [/FONT][FONT=&quot]Alvares Road[/FONT][FONT=&quot],[/FONT]
    [FONT=&quot]Kadri, Mangalore Taluka,[/FONT]
    [FONT=&quot]D. K. District ……[/FONT][FONT=&quot]……………….Complainants[/FONT]
    [FONT=&quot] V [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]State Bank of [/FONT][FONT=&quot]India[/FONT][FONT=&quot],[/FONT]
    [FONT=&quot]Ponda Branch, [/FONT][FONT=&quot]Goa[/FONT][FONT=&quot][/FONT]
    [FONT=&quot]By its Chief Manager .......………...…..Opposite Party-1[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Asst. General Manager[/FONT]
    [FONT=&quot]State Bank of [/FONT][FONT=&quot]India[/FONT][FONT=&quot],[/FONT]
    [FONT=&quot]Ponda Branch, [/FONT][FONT=&quot]Goa[/FONT][FONT=&quot],. .........………...…..Opposite Party-2[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]M/s. Saima Agro Industries,[/FONT]
    [FONT=&quot]No.10, Opp. Merk Maravasada,[/FONT]
    [FONT=&quot]Usgaon, [/FONT][FONT=&quot]Goa[/FONT][FONT=&quot]. .........………...…..Opposite Party-3[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Mr. Aditya Prasad K. Prabhu,[/FONT]
    [FONT=&quot]Major, Saterimol, Nirankal, [/FONT]
    [FONT=&quot]Ponda, [/FONT][FONT=&quot]Goa[/FONT][FONT=&quot] .........………...…..Opposite Party-4[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]

    [FONT=&quot]Date: - 23/03/09[/FONT]

    [FONT=&quot]O R D E R[/FONT]


    [FONT=&quot](Per Smt. Shubhalaxmi U.P.Raikar, President)[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]It is the case of Complainant that Opposite Party1 & 2 released the loan to Opposite Party 3 before obtaining signatures of Complainant and Opposite Party 1 & 2 have not executed any documents evidencing the deposit of Title Deeds with Opposite Party 1 & 2 to create any charge on property bearing Sr.No. 234 1E situated at Mucchur – Mangalore.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2.[FONT=&quot] [/FONT][/FONT][FONT=&quot]It is further case of Complainant that for Opposite Party 3’s loan they stood as guarantors and they should be replaced with Opposite Party 4 as new guarantor and further to be [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]allowed to sell their property to Opposite Party 4 as they have already entered into an Agreement. The Complainant admit that original documents were given to Opposite Party 1 & 2 on 30/08/2005 but without any EMT.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]3.[FONT=&quot] [/FONT][/FONT][FONT=&quot]There is no dispute on execution of Arrangement letters duly signed by Complainants in favour of Opposite Party 1 & 2 for loan sanctioned to Opposite Party 3.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The dispute is rejection on the part of Opposite Party 1 & 2 of request made to issue NOC to sell and replace the guarantor as well as taking of signatures of Complainant subsequent to sanction of loan on 8/4/05.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]5.[FONT=&quot] [/FONT][/FONT][FONT=&quot]We find Arrangement letters dated 20/4/05 and admittedly the original papers are handed over by Complainant to Opposite Party 1 & 2 on 30/08/05 i.e. after 4 months. The Agreement for sale of mortgaged property between Opposite Party 4 and Complainants though mentioned in pleadings is not placed on record nor relied upon nor its date of execution is available.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]6.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The first letter of request filed by Complainant is on [/FONT][FONT=&quot]24/8/06[/FONT][FONT=&quot] i.e. after one year of handing over original title.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]7.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Here many questions are posed to our mind as to why original title deeds of Guarantors were handed over to Opposite Party 1 & 2 without creating EMT? As to why for one year Complainants were quiet on the issue? All these questions are unanswered and may touch to the merits and whether Forums should decide all these issues? Opposite Party has denied all above.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]8.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Opposite Party in its preliminary objections have raised the issue of Consumerism and of deficiency on the part of Opposite Party 1 & 2 and lispendence i.e. pending suit in D.R.T. filed on [/FONT][FONT=&quot]18/6/09[/FONT][FONT=&quot]. Opposite Party 1 & 2 has produced letter/ summons dated [/FONT][FONT=&quot]7/7/08[/FONT][FONT=&quot]. It is not evident from this record as to when the Recovery proceedings were filed before D.R.T. but it certainly should have been filed in June ’08 or prior.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]9.[FONT=&quot] [/FONT][/FONT][FONT=&quot]We are of the considered opinion on going through entire documents and pleadings that issues involved does not come under the purview of Consumer Protection Act, 1986 and this is a fit case of dismissal on the following grounds though at the admission stage it was admitted on looking at prima-facie pleading and documents of only Complainant: -[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]a)[FONT=&quot] [/FONT][/FONT][FONT=&quot]The Complaint filed involves disputed questions and contentions which are civil in nature.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]b)[FONT=&quot] [/FONT][/FONT][FONT=&quot]Complainant proclaims to be Guarantor for the loan sanctioned to the Opposite Party No.3 has voluntarily offered his documents entitled of the property for mortgage.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]c)[FONT=&quot] [/FONT][/FONT][FONT=&quot]The Complainant therefore is not a consumer under the Consumer Protection Act and we are of the considered opinion that he has to agitate his problems before the Death Recovery Tribunal for adjudication.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]d)[FONT=&quot] [/FONT][/FONT][FONT=&quot]As the matter is already filed before the Death Recovery Tribunal we find that deciding the issue is beyond the scope of Consumer Protection Act. Hence we dismiss this Complaint on the basis of preliminary objections.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] (Shubhalaxmi U.P.Raikar) [/FONT]
    [FONT=&quot]President[/FONT][FONT=&quot] [/FONT]
  • adminadmin Administrator
    edited September 2009
    Consumer Complaint NO. : 10/ 2009

    [FONT=Arial, sans-serif] [/FONT]
    [FONT=Arial, sans-serif]Sri Balai Kundu[/FONT]
    [FONT=Arial, sans-serif]S/o Lt. Murari Mohan Kundu[/FONT]
    [FONT=Arial, sans-serif]Vill.: Bura Hili,[/FONT]
    [FONT=Arial, sans-serif]PO & PS.: Hili[/FONT]
    [FONT=Arial, sans-serif]Dist. Dakshin Dinajpur- Complainant(s)[/FONT]


    [FONT=Arial, sans-serif]V-E-R-S-U-S[/FONT]
    [FONT=Arial, sans-serif]The Branch Manager,[/FONT]
    [FONT=Arial, sans-serif]State Bank of India,[/FONT]
    [FONT=Arial, sans-serif]Balurghat Branch,[/FONT]
    [FONT=Arial, sans-serif]PS.: Balurghat,[/FONT]
    [FONT=Arial, sans-serif]Dist. Dakshin Dinajpur - Opposite Party(s)[/FONT]






    [FONT=Arial, sans-serif]For the complainant - Sri Debashis Barman, Adv.[/FONT]
    [FONT=Arial, sans-serif] - Kamalika Pramanik, Adv. [/FONT]
    [FONT=Arial, sans-serif] - Madhumita Sarkar, Adv.[/FONT]




    [FONT=Arial, sans-serif]Date of Filing : on 13.03.2009[/FONT]
    [FONT=Arial, sans-serif]Date of Disposal : on 27.04.2009[/FONT]


    Order No.6

    Dt. 27.04.2009

    [FONT=Arial, sans-serif] Lawyer’s hazira has been filed on behalf of the complainant.[/FONT]
    [FONT=Arial, sans-serif] The case record is taken up for order.[/FONT]
    [FONT=Arial, sans-serif] Such order follows hearing on point of admission of the complaint.[/FONT]
    [FONT=Arial, sans-serif] Here the complaint was brought by the complainant Sri Balai Kundu u/s 12 CP Act on 13.03.2009 against the Branch Manager, State Bank of India, Balurghat Branch alleging deficiency in service.[/FONT]


    [FONT=Arial, sans-serif] Complainant’s case as made out in the said complaint, in brief, is that, one Sri Nirmal Kundu took loan from the OP Bank on 24.11.2000 for purchasing a tractor. In such loan transaction the complainant stood as a guarantor. The complainant deposited his fixed deposit certificate bearing No.084390 dt. 21.11.2000 as a security. In view of failure on the part of borrower in paying up the dues, OP Bank brought a money suit bearing No.M.S.6/2005 wherein complainant was also made a party. The suit was decreed in favour of present OP Bank. In the proceeding for execution for the said decree the complainant stated the description of the mortgaged property of the borrower as also the registration No. of the tractor of the borrower and the place at which such tractor remained engaged in cultivation. He virtually prayed before the Court that the dues respecting the loan could be recovered from those properties of the borrower and fixed deposit amount be released to him. The OP Bank instead of taking steps for recovering the dues from the property of the borrower attempted to adjust the fixed deposit amount of the complainant against the dues over the loan.[/FONT]


    [FONT=Arial, sans-serif] In response to complainant’s application for releasing the fixed deposit amount to him, the OP Bank informed the complainant that the amount of the fixed deposit had already been adjusted towards the loan amount.[/FONT]
    [FONT=Arial, sans-serif] It has been the case of the complainant that the OP Bank could not adjust the proceeds of the fixed deposit against the dues of the loan without exhausting process of recovery of the dues from the property of the borrower. [/FONT]
    [FONT=Arial, sans-serif] Date of maturity of fixed deposit account was 21.11.2003.[/FONT]


    [FONT=Arial, sans-serif] In the back drop of such circumstances, the complainant brought the complaint seeking direction upon the OP Bank to recover the dues of the borrower by way of attachment of his properties and to pay back the amount of fixed deposit to the complainant together interest. In the complaint, the complainant also prayed for compensation for mental agony and for costs of litigation. [/FONT]
    [FONT=Arial, sans-serif] In support of the complaint the complainant filed in this case copy of his application dt. 13.01.2009 addressed to the OP Bank seeking releasing of the fixed deposit amount to him and that of the fixed deposit receipt. [/FONT]
    [FONT=Arial, sans-serif] In course of hearing on point of admission the Ld. Counsel appearing for the complainant urged that the obligation of the surety is to indemnify the creditor in case the principal debtor fails to discharge his debt and so the OP Bank could not have adjusted the amount of the proceeds of the fixed deposit towards dues of the loan transaction without having taken appropriate steps for the recovering the dues from the property of principal debtor and so adjusting of the fixed deposit amount by the OP Bank without exhausting the process against the principal debtor, amounts to deficiency in service on the part of OP Bank and that in such premises the present complaint brought by the complainant should be entertained by this Forum under the CP Act.[/FONT]


    [FONT=Arial, sans-serif] We have gone through the complaint, perused the documents filed in support thereof and have carefully taken into consideration the submissions advanced by the Ld. Counsel.[/FONT]


    [FONT=Arial, sans-serif] Here it remains admitted by the complainant that he stood as surety for the loan transaction. It also remains admitted by the complainant in para 2 of his complaint that he made over the fixed deposit certificate “as a security against the loan transaction“. It also remains admitted that the dues in respect of loan transaction have not been paid back by the principal borrower and that the Money Suit brought against the borrower and the complainant by the present OP Bank was decreed in favour of the present OP Bank. It has virtually been the case of the complainant that the OP Bank did not have the authority to adjust the proceeds of the fixed deposit account of the surety without having exhausted the process for the recovery the dues from the principal borrower.[/FONT]


    [FONT=Arial, sans-serif] Sec. 128 of the Indian Contract Act, says that the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. Here it has not been the case of the complainant that the contract specifically provided that the recovery should not be made from the surety without having exhausted the process the recovering the dues from the principal debtor. We should therefore proceed treating that under the contract in question, the liability of the surety has been co-extensive with that of the principal debtor. [/FONT]


    [FONT=Arial, sans-serif] In the case of the Bank of Bihar Ltd. –vs- Dr. Damodar Prasad & Anr. reported in AIR 1969 SC 297 the Hon’ble Apex Court almost in the back drop of similar circumstances recorded the following observation in Para 4 of the judgement:-[/FONT]
    [FONT=Arial, sans-serif] “*** Before payment the surety has no right to dictate terms to the creditor and ask him to pursue his remedies against the principal in the first instance***”.[/FONT]


    [FONT=Arial, sans-serif] The Hon’ble Court further observed therein that the liability of the surety was immediate and that it was not deferred until the creditor exhausted his remedies against the principal debtor.[/FONT]


    [FONT=Arial, sans-serif] Having kept in view the said observation of the Hon’ble Apex Court, we are not in a position to accept the contention advanced by the Ld. Counsel that the adjusting of the proceeds of the fixed deposit of the surety without having exhausted process of recovering the dues from the property of the principal debtor, should be viewed to have been deficiency in service on the part of OP Bank. The complaint brought by the complainant in the instant case, therefore, cannot be regarded to be a “complaint” within the meaning of such term appearing in Sec. 2 (1) (c) of the CP Act. Such complaint brought by the complainant, therefore, cannot be allowed to be proceeded with in this Forum under the CP Act.[/FONT]
    [FONT=Arial, sans-serif] Accordingly it is.[/FONT]
    [FONT=Arial, sans-serif]O R D E R E D[/FONT]




    [FONT=Arial, sans-serif]That the complaint brought by the complainant Sri Balai Kundu on 13.03.2009 stands rejected in terms of Subsec (3) of Sec. 12 of the C.P. Act.[/FONT]
    [FONT=Arial, sans-serif] Let a plain copy of this order be furnished to the complainant free of cost forthwith.[/FONT]
  • adminadmin Administrator
    edited September 2009
    Sunit Khanna son of Sh. Darshan Kumar Khanna, resident of House No.153, Janta Enclave, Dugri Dhandra Road, Ludhiana. (Complainant)
    Vs.

    1. State Bank of India through its Manager, Model Town Extn. Branch, Ludhiana.

    2. Assistant General Manager, State Bank of India, Branch Fountain Chowk, Ludhiana.
    (Opposite parties)

    Complaint under section 12 of the Consumer Protection Act, 1986.
    ….

    Quorum:
    Sh. T.N. Vaidya, President.
    Sh. Rajesh Kumar, Member.

    Present:
    Sh. S.S. Rai Advocate for the complainant.
    Sh. B.L. Saini Advocate for opposite parties.

    O R D E R


    T.N. VAIDYA, PRESIDENT:


    1. Complainant applied and obtained personal loan of Rs.1,00,000/-, sanctioned by opposite party on 12.1.2005 vide his loan account no.3000196244. While sanctioning the loan, opposite party obtained signatures of the complainant on printed format of loan agreement, columns of which were blank and not filled. Opposite party took for repayment of the loan in 22 equated monthly instalments, post dated cheques of Rs.5000/- each. Opposite party thereafter encashed 16 cheques, but failed to present remaining 6 cheques. Though complainant had sufficient amount in his account to meet requirement of those cheques. Had those 6 cheques presented by the opposite party, they would have been honoured. This happened as previous bank Manager was transferred and new incumbent failed to submit his 6 post dated cheques. He then declared the complainant to be a defaulter without any fault on his part. Complainant obtained on 11.10.2007 his bank statement and then came to know that his 6 post dated cheques were never presented by the opposite party on due dates till May,2006. Consequently, opposite party started burdening the complainant with additional interest on the balance amount, which remained unpaid due to fault of the opposite party for not encashing of his 6 post dated cheques. Opposite party threatened and forced him to pay excess interest on the loan amount. Complainant took up this matter with the senior officer of the bank for refund of Rs.3378/- interest illegally charged form him, but to no effect. Hence, in this complaint under section 12 of the Consumer Protection Act, 1986, complainant claimed that it was deficiency in service on the part of opposite party and therefore, entitled for refund of Rs.3378/- charged illegally as interest and also entitled for compensation of Rs.1,00,000/- for harassment.



    2. Opposite party in reply have controverted the allegations of the complainant. However, admitted that loan of Rs.1,00,000/- was granted to the complainant who entered into an agreement for repayment of the loan. But rest of the allegations that loan was repayable in 22 monthly instalments of Rs.5000/-each is denied. Rather claimed that complainant under the agreement had agreed to repay the loan in 48 equated monthly instalments of Rs.2671/- each. They denied that 22 post dated cheques were issued by the complainant for Rs.5000/- each. Account of the complainant was regular and advance payments were coming, so, he was never declared defaulter. Complainant was aware that his 6 cheques were not presented, as he was getting regularly statements of account from his ICICI bank, on which the cheques were drawn. Cheques of the loan were presented on asking of the complainant, who revalidated the same voluntarily. Also denied that Rs.3378/- were wrongly and illegally charged form the complainant as interest.


    3. Both the parties adduced their evidence by way of affidavits and documents in support of their respective contentions.


    4. We have heard the arguments addressed by the ld. counsel for the parties, have gone through the file, scanned the documents and other material on record.



    5. On behalf of the complainant, it is contended that while granting loan of Rs.1,00,000/- Manager of the Bank obtained signatures of the complainant on printed agreement form, columns of which were blank and he appended signatures in good faith as required by the Manager of the bank. Further argued that Manager of the OP Bank at that time also obtained 22 post dated cheques of Rs.5000/-each for repayment of the loan amount of Rs.1,00,000/-. But subsequently he was forced by opposite party to pay extra interest of Rs.3378/-.


    6. On the other hand Sh. B.L.Saini Adv. ld. counsel for the opposite party argued that parties are bound by terms and conditions of the agreement where the complainant had agreed to repay the loan in 48 monthly equated instalments of Rs.2671/-each. This agreement also empowered the opposite party not to present the cheque due to any reason and that it was responsibility of the borrower to see that payment was made of the cheque amount. He as such contended that terms and conditions of the agreement were in knowledge of the complainant and his signatures on blank printed form were never obtained.



    7. Before we appreciate rival contention of the parties, would prefer to refer established point revealed from bank statement Ex.C.10 of the complainant pertaining to his loan account with the OP-Bank. Total loan sanctioned in his favour was Rs.1,01,100/- and after debiting Rs.1,100/- as processing fee, loan of Rs.1,00,000/- was debited to the loan account of the complainant on 12.1.2006. Against this loan account, payment of Rs.5000/- each by way of cheques have been credited to the account of the complainant on different dates. From 25.2.2005 to 24.6.2006, receipt of Rs.5000/- each by encashing cheques of the complainant is credited to his account. So, it means, 16 cheques which the complainant claimed post dated cheques obtained form him while sanctioning the loan, were really encashed from his account by the opposite party.



    8. Though as per terms and conditions of the loan agreement, copy of which is Ex.C.1 (R1) which is printed format of the loan agreement, columns of which have been filled by hand, shows that in terms of the agreement, complainant agreed to repay the loan amount in 48 equal monthly instalments of Rs.2671/-each. Thus condition in the agreement was to repay the loan in 48 monthly equated instalments of Rs.2671/-each. It was against the back drop of this agreement that the Manager of the opposite party-bank instead of obtaining 48 post dated cheques of Rs.2671/- each as mentioned in the agreement, obtained 22 post dated cheques of Rs.5000/- each from the complainant. Obtaining of those 22 post dated cheques of Rs.5000/- each from the complainant make his version strictly respectful, trust worthy and confidence inspiring, that agreement was to repay the loan in 22 instalments of Rs.5000/-each. It was for such reason that instead of 48 post dated cheques of Rs.2671/- each, 22 cheques of Rs.5000/- were taken from the complainant. This means that allegations of the complainant have some force that his signatures on the agreement Ex.C1 were taken when the columns of the same were blank and he signed the document in good faith.



    9. It appears that officials of the opposite party subsequently when filled the columns of this agreement Ex.R.1 (C1) instead of mentioning repayment in 22 instalments of Rs.5000/- each recorded 48 instalments of Rs.2671/- each. Along with agreement Ex.C1, annexure CII also appears to be filled later on and not at the time of obtaining the signatures of the complainant.




    10. Though we are aware that oral evidence may not be admissible to prove contents of the document. But herein there is no escape from the conclusion that format of the agreement Ex,C1 (R1) was not filled when signatures of the complainant were obtained while granting the loan. Had it been prepared at that very moment of granting the loan, then opposite party would not have accepted 22 cheques of Rs.5000/- each from the complainant, as the agreement reflects repayment in 48 instalments of Rs.2671/- each. Because 16 cheques out of 22, each of Rs.5000/- were encashed by the opposite party as apparent from the loan account statement of the complainant.


    11. Further it was argued on behalf of the opposite party that borrower is not debarred to pay higher amount of instalments than agreed. We have no reason, not to agree with this contention. The borrower may pay to the opposite party higher amount than agreed. But in all events would be bound to pay total interest as calculated by the bank in terms of the agreement with the borrower. Earlier discharge of the loan, without seeking concession from the opposite party on interest part, by way of foreclosure would not absolve the borrower to clear the loan in entirety. But we are not convinced by this argument of the ld. counsel for the opposite party. As in the instant case, had agreement to repay the loan in 48 instalments of Rs.2671/- each, then the complainant would not have been foolish to have paid at the same time 22 post dated cheques of Rs.5000/-each. He consequently, would have saved his money by paying cheques of Rs.2671/-each. Action of the opposite party receiving 22 cheques of Rs.5000/-each shows that agreement between the parties was to repay the loan amount in 22 monthly equated instalments. Of Rs.5000/-each. It was for such reason that those cheques were accepted and out of which 16 were got encashed regularly, without fail by the opposite party. Therefore, we are not swayed by the contention of the opposite party that the borrower is not debarred to pay higher amount than agreed to clear his debt account. Because by making bigger amount, than agreed, the complainant would have sought foreclosure of the loan to save certain interest. But he never do so. All the events make it abundantly clear that understanding and agreement between the parties while granting loan to the complainant was to refund the same in 22 equated monthly instalments of Rs.5000/-each, but subsequently when the columns of the agreement and related documents were prepared and filled by the officials of the opposite party, they bonafidely, by mistake or otherwise mentioned repayment of the loan in 48 equated monthly instalments of Rs.2671/-each.



    12. Hence, in scenario of the facts, we trust and believe the claim of the complainant that he was made to append signatures while granting loan on a printed format, columns of which were blank.



    13. This, as such, make us to conclude that opposite party without any cause failed to present 6 post dated cheques, each of Rs.5000/-, of the complainant. This was done as according to the complainant previous Manager of the opposite party who had granted the loan was transferred. Ld. counsel for the opposite party justified the action in terms of the conditions of the agreement, empowering bank not to present any cheque and making borrower liable to pay monthly instalments. This condition of the agreement reads as under:
    On demand the Borrower agrees to deliver to the Bank post-dated cheques for the monthly instalments and the Borrower warrants that the cheques will be honoured on first presentation. Any non-presentation of a cheque due to any reason will not affect the liability of the Borrower to pay the monthly instalments or any other sum. The borrower agrees to forthwith replace the cheques/issue fresh cheques if required by the Bank”

    14. No doubt, non presentation of the cheques was prerogative of the bank. But this clause in the agreement appears to the repugnant to the interest of a consumer. Because bank had protected its interest by procuring post dated cheques from the complainant, out of which majority of the cheques, numbering 16 out of 22, were encashed by the bank. Complainant had sufficient money in his account to meet the amount of 6 post dated cheques of Rs.5000/-each. But opposite party without any reason failed to encash those cheques. This way a sum of Rs.3378/- charged by way of excess interest from the complainant, in our view, certainly would amount to deficiency in service on the part of opposite party, resorting to unfair trade practice. That amount has wrongly been forced upon the complainant, though for payment of the loan amount had already furnished post dated cheques to the opposite party.




    15. In these circumstances, for resorting to unfair trade practice, caused to the complainant/consumer under the opposite party, we allow this complaint and consequently direct the opposite party to refund Rs.3378/- to the complainant within 45 days of the receipt of copy of the order, failing which shall be liable to pay interest @9% per annum from the date of complaint till payment. In peculiar circumstances of the case, we pass no order as to compensation but order opposite party to pay him litigation cost of Rs.1000/-(Rs. One Thousand only).
  • adminadmin Administrator
    edited September 2009
    CONSUMER COMPLAINT NO. 316/2008
    Between:

    Tallapragada Venkata Ratna Durga Varaprasad
    S/o late Ramachandra Sarma, Hindu, male, 41 years
    Rtd., Military employee, H.No.2/186, Teachers Colony
    K. Savaram, Undrajavaram Mandal, W.G. Dist., -- Complainant

    And

    The Manager, State Bank of India, Eluru Main branch
    Near District Court, W.G. Dist., Eluru -- Opposite Parties
    This complaint coming before us for final hearing on 24-4-2009 and on perusing the Complaint, version and other material papers on record and on hearing the arguments of Sri. O.S. Nageswara Rao, Advocate for the complainant and opposite party remained exparte, and the matter having stood over for consideration to this day, this forum made the following:-
    O R D E R
    The complainant filed the present complaint under Sec. 9 of Consumer Protection Act, 1986 with a request to direct the opposite party to pay a sum of Rs.88,108/- ie., Rs.50,000/- towards compensation for mental agony and damages, Rs.8,108/- towards loss of interest on 2,48,187/- from 7-7-2008 to 15-10-2008 at the rate of 12% pa., and Rs.30,000/- towards compensation for deficiency in service and costs of the complaint. The averment of the complaint in brief are that :



    2. The complainant is a retired serviceman. After his retirement a sum of Rs.2,48,187/- towards commutation of pension was released by the Record Office, Office of Army Medical Corps at Lucknow vide reference letter dt. 7-7-2008, SR13978018 Y/SP(COMM) to credit the same to the account of the complainant bearing No. 30401363976 of the branch of opposite party. The office of Lucknow also issued a letter to that effect to the complainant and asked him to approach the State Bank of India, Eluru. Accordingly when the complainant approached the State Bank of India, Eluru, the authorities of the bank asked him to approach the head office ie., the opposite party as the accounts of the complainant were transferred to the opposite party. On the said advise, the complainant approached the office of the opposite party several times to know about the said amounts referred above is credited to the said account. But the personnel of the opposite party did not give satisfactory reply and made the complainant to run from pillar to post. At last, on several visits of the complainant to the office of the opposite party, the complainant was ultimately informed that no such amount was received from the office of the Medical Camp at Lucknow. Thereupon since the account of the complainant is at SBI, Tanuku, the complainant approached the said branch at Tanuku and brought to their notice about the non-receipt of the said amount. Thereupon, the Manager of SBI, Tanuku informed the complainant that he is helpless and nothing to do unless and until Rs.2,418,187/- is credited by the SBI Main Branch to the online account of the complainant and asked the complainant to approach the opposite party again. When the complainant again approached the opposite party but there is no positive response from it. Thereupon the complainant on 22-9-2008 got issued a notice to the opposite party demanding it to inform the complainant about the receipt or non-receipt of commutation of pension of Rs.2,48,187/- by the opposite party from the office of medical corps at Lucknow and enable him to get his amount. The opposite party received the said notice on 24-9-2008 and simply kept quite. The opposite party is collecting Rs.35/- whenever the complainant received pension from the office of the Army Medical Corps at Lucknow. However, the services of the opposite party are deficient in nature. It is further averred that had the complainant received commutation of pension of Rs.2,48,187/- within time ie., on or before 10th July, 2008 he would have invested the same in the fixed deposit and he would get interest at the rate of 12% pa., on the said amount. Due to latches in the service of the opposite party, the complainant has to loose Rs.10,000/- which would be recovered by the office of Army Medical Corps, Lucknow from the pension payable to the complainant as the said office paid 100% instead of 55%. As the commutation of pension has not done within time due to deficiency in service on the part of the opposite party, the complainant sustained heavy loss. Thus the present complaint is filed for the aforesaid reliefs.




    3. The opposite party having received the notice on the complaint did not turn up to oppose the complaint filed by the complainant and remained exparte.


    4. Thereafter, the complainant in support of his complaint filed his affidavit and got marked Ex A.1 to Ex A.6.



    5. The points for determination now are :
    1)Is there any deficiency in service on the part of the opposite party to the complainant ?
    2)Whether the complainant is entitled for the reliefs sought for by him ?
    3)To what reoief ?



    POINT No.1:

    As per the case of the complainant and in view of Ex A.1 to Ex A.3, it is a fact borne out from the record that the complainant is a retired serviceman having his SB. A/c No.30401363976 with the State Bank of India, Tanuku branch and his pension is being credited to the said account. It is the further case of the complainant that on receipt of the copy of pension payment order agreeing sanction of the commutation of pension, he approached the authorities of the State Bank of India, Eluru branch at Powerpet, who in turn informed him to approach the State Bank of India, main branch, Eluru ie., the opposite party on the ground that the accounts of the complainant were transferred to the opposite party, that thereupon the complainant approached the opposite party several times to know whether the said amount is credited to his account but the authorities of the opposite party did not give satisfactory reply and made him to run from pillar to post. It is also the case of the complainant that he again approached the authorities of the State Bank of India, Tanuku where he is maintaining account and brought the same to their notice about the non-receipt of the said amount that later, on the advise of the authorities of the State Bank of India, Tanuku, he again approached the opposite party but he could not get any positive response from the opposite party. It is also the further case of the complainant that he, having no alternative, got issued a notice dt. 22-9-2008 as can be seen from Ex A.5, demanding it to inform him about the receipt or non-receipt of commutation of pension amount of Rs.2,48,187/- from the office of the Medical Corps at Lucknow and in case of non-receipt of the said amount, the steps taken by the opposite party in response to the letter dt. 7-7-2008 addressed to the opposite party by the Record Office at Lucknow and to enable him to get his amount. As can be seen from Ex A.6 postal acknowledgement, it is a fact that the notice dt. 22-9-2008 got issued by the complainant was received by the opposite party on 24-9-2008. It is the contention of the complainant that inspite of it, the opposite party kept quite. It appears from the averments of the complaint that the said amount of Rs.2,48,187/- was credited to the account of the complainant on or before 15-10-2008. The said part of the case of the complainant is not denied by the opposite party and in fact the opposite party having received the notice on the complaint filed by the complainant remained exparte.
    As stated above, it is the case of the complainant that the opposite party had not shown any positive response for crediting the said amount of Rs.2,48,187/- between 7-7-2008 the date on which the payment order was made till on or before 15-10-2008 resulting the complainant making his rounds on several occasions from one branch to another of the opposite party. If really the opposite party would have given proper response in time and the amount of Rs.2,48,187/- would have been credited to the account of the complainant within time he would not have sustained any loss over the said amount for the reason that it is the contention of the complainant that if he would have invested the same in fixed deposit, he would have get interest at 12% pa., on the said amount. The said activity of the opposite party in not giving proper response to the complainant and making him to approach from one branch to another branch on several occasions naturally causes mental agony. Under the said circumstances not giving positive response by the opposite party to the complainant amounts to deficiency in service.
    As stated above, the opposite party did not challenge the case of the complainant and in fact it remained exparte. The silence on the part of the opposite party in not giving any reply to the notice got issued by the complainant under the original of it Ex A.5 also amounts to admission of the case of the complainant.



    Pont No. 2 :

    Under the stated circumstances and for the reasons stated above, we hold that the complainant has succeeded in establishing his case and the part played by the opposite party in not giving proper response to the complainant amounts to deficiency in service, as such the complainant is entitled for a reasonable relief. The point is answered accordingly.




    Pont No. 3
    :
    In the result, the complaint is allowed directing the opposite party to pay to the complainant a sum of Rs.5000/- (Rupees five thousands only) towards compensation for the deficiency in service, Rs.5000/- (Rupees five thousands only) towards compensation for mental agony suffered by the complainant from the date of the payment order till the amount is credited to his account within 30 days from the date of due dispatch of free copy of this order.
    Since the claim made by the complainant towards loss of interest is unwarranted as he is reasonably compensated and in view of the facts and circumstances, no order as to costs.
  • adminadmin Administrator
    edited September 2009
    C.C.No.107/2008

    Between

    T. Nagaraja,
    S/o. T. Gangula Chetty,
    Hindu, aged about 53 years,
    Polichettyvaripalle Village,
    Damalacheruvu Post,
    Pakala Mandal,
    Chittoor District … Complainant

    And

    State Bank of India,
    Rep.by its Branch Manager,
    Near A.P.S.R.T.C. Bus-Stand,
    Pakala,
    Chittoor District. … Opposite party

    This complaint coming on before us for final hearing on 13.04.09 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.S.Naveen Kumar, counsel for the complainant and Sri.L.Madhusudhan Reddy, counsel for the opposite party and having stood over till this day for consideration, the Forum made the following:-
    ORDER
    DELIVERED BY SRI. G.V.RAGHAVULU, PRESIDENT
    ON BEHALF OF THE BENCH

    This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite party to pay Rs.1,05,093/- towards recurring deposit amount with interest at 12% per annum from 01.08.2008 till the date of realization, to pay Rs.50,000/- towards damages, loss and mental agony and to pay costs of Rs.5,000/- towards incidental expenses to the complainant.




    2. The averments of the complaint in brief are
    :-
    In the year 1992, the opposite party, which is a nationalized bank, invited deposits of various kinds from the public by giving so much publicity by way of paper pamphlets and hoardings in and around Pakala town. The complainant, attracted by the publicity given by the opposite party, invested a sum of Rs.14,400/- under scheme No.3 stated in the pamphlet in recurring deposit account No.59 on 01.08.1992 for a period of 15 years. The opposite party issued a pass book mentioning the maturity value as Rs.1,05,093/-. The maturity date is 01.08.2007, but due to typographical mistake, the opposite party wrongly mentioned the date of maturity as 01.08.2008. The complainant approached the opposite party for correcting the maturity date for which the opposite party assured that there will be no problem at all and after completion of the said scheme the complainant can take the amount. Upon the assurance given by the opposite party, the complainant kept quiet. As per the terms and conditions of recurring deposit and contract entered on the date of the recurring deposit account, the opposite party has to repay the maturity amount on 01.08.2007. But to the utter surprise of the complainant, the opposite party refused to pay the maturity amount as shown in the pass book and offered to give only Rs.9,000/-. As the terms of the contract are violated, there is deficiency of service on the part of opposite party. The complainant got issued personal notice to the opposite party on 06.09.2007. The opposite party, having acknowledged the same, did not comply the demands of the notice. The complainant with fond hope that the bank will pay the recurring deposit amount within stipulated time for the purpose of his daughter’s marriage deposited the amount, but due to non-receipt of the amount from the opposite party, the complainant very much disappointed as to how he will perform his daughter’s marriage. The complainant was forced to file a complaint in C.C.114 of 2007 on the file of this Forum seeking remedies against the opposite party. This Forum dismissed the said complaint on 31.01.2008 as premature with a finding that the maturity date is 01.08.2008. The complainant after completion of maturity date i.e. 01.08.2008 got issued legal notice dt:08.09.2008 calling upon the opposite party to pay the maturity value of Rs.1,05,093/- along with other benefits. The opposite party, having acknowledged the notice, neither complied nor replied. The opposite party is liable to pay the said sum with interest at 12% from 01.08.2008. Due to the deficiency in service on the part of opposite party, the complainant suffered mentally and physically and was put to severe mental agony. Hence the complaint.




    3.
    In the written version filed on behalf of opposite party, while denying the material averments / allegations made in the complaint, it is inter alia stated that the scheme was announced by the bank as E.W.Scheme. As per the R.B.I. rules, the banks not to have the fixed deposits or term deposits for more than the period of 10 years and the same is confirmed by the Finance Department of Government of India. As per the scheme, the amounts collected are treated as term deposits for a period of 10 years and the later period is treated as renewal period. Accordingly the same is mentioned in the rules of the scheme and also affixed to the notice board. So, as per the rules and circular issued by the bank and as per the R.B.I. guidelines only the scheme maturity amount will be paid and the same was displayed on the notice board of the bank and intimated to the customers by the then bank officials. The maturity value mentioned on the certificate alone is not the criteria and it is subject to rules of the scheme. One of the scheme holder Rankipalli Mallaiah Naidu of Thotavari Palli and several other members came to the bank and presented the R.D. bonds and received the amount payable as per the scheme rules. The complainant never approached the opposite party for correction of maturity date and the opposite party never assured as alleged in Para.4 of the complaint. The complainant deposited a sum of Rs.14,400/- on 01.08.1992 under recurring deposit account No.59. As per rules of the scheme, the amount will be kept for one year as deposit and after that period special term deposit scheme rules will be applied. Thus the special term period started from 01.08.1993 but not from 01.08.1992. The period elected by the complainant is 15 years. Thus it will mature on 01.08.2008. As per clause-5.1 of the scheme, the special term deposit would initially be issued for a period of 10 years each at the rates of interest prevailing on the respective maturity dates. If the last renewal is for a period of lower than the period for which the maximum rate of interest is applicable, the penultimate renewal will be done for a suitable shorter duration, so that the last renewal may be done for a period, which will fetch the maximum rate of interest on bank deposits. The clause-9.0 of the scheme also stated that the table showing maturity values for different maturity periods is worked out on the basis of the then prevailing rate of interest on bank deposits i.e., at the rate of 11% per annum and subject to the clause-6.0 of the scheme. The clause-6.0 speaks that the rate of interest would be subject to R.B.I directions. On the date of deposit made by the complainant i.e. on 01.08.1992 the rate of interest was 11% per annum. With that rate the complainant is entitled to interest upto 10 years i.e. upto 01.08.2003. As per the rules, the complainant’s deposit would be automatically renewed on maturity for further period, which will fetch the maximum rate of interest on deposit. Thus as on 01.08.2003 the maximum rate of interest is 6% per annum for deposits of 3 months. The complainant has no right to enrich, much against the R.B.I. rules only on the basis of wrong entry in the passbook. The special term deposit account No. of the complainant is 01292/011090, and the bank is maintaining account ledger from 01.08.2003 from the date of completion of initial special term deposit period of 10 years. The complainant after depositing the amount on 01.08.1992 under the said scheme availed a demand loan of Rs.10,800/- from the opposite party on 04.11.1992 under account No.107 by executing relevant documents accepting the terms and conditions of the loan. In usual course of business the opposite party – bank, is maintaining ledger for the demand loan with present account No.01590/010963. Inspite of repeated demands the complainant failed to clear the said demand loan and by 15.01.2005, as per the ledger, the complainant is due an amount of Rs.41,196/-. After deducting the said amount the complainant is entitled to a sum of Rs.7,837/- as on 15.01.2005. From that date with accrued interest, the complainant is entitled to withdraw the amount on 01.08.2008. The complainant filed C.C.No.114/2007 in the year 2007 itself and the same was dismissed as premature on 31.01.2008. By suppressing the said availed loan, the complainant filed the present complaint for wrongful gain. Hence, the complaint may be dismissed with exemplary costs.





    4.
    In support of the averments made in the complaint, the complainant filed his affidavit. The complainant also filed 5 documents, which are marked as Exs. A1 to A5. Ex.A1 is served copy of order dt:31.01.2008 in C.C.No.114/2007 on the file of District Forum – II, Tirupati. Ex.A2 is office copy of legal notice dt:08.09.2008 got issued by the complainant to the opposite party. Ex.A3 is postal acknowledgement of opposite party for Ex.A2 notice. Ex.A4 is original R.D. passbook bearing No.59 issued in the name of the complainant by the opposite party. Ex.A5 is xerox copy of paper pamphlet circulated by the opposite party.





    5.
    In support of the case set up in the written version, the Branch Manager of opposite party filed his affidavit. The opposite party also filed 4 documents, which are marked as Exs.B1 to B4. Ex.B1 is attested xerox copy of account opening form executed by the complainant on 01.08.1992. Ex.B2 is attested ledger extract copy for the deposit account No.01292/011090 of the complainant. Ex.B3 is attested loan account ledger extract copy for the loan account No.01590/010963 of the complainant. Ex.B4 is xerox copy of terms and conditions of the
    Police Welfare Scheme.




    6.
    On behalf of the complainant and opposite party written arguments were filed and we have heard the oral arguments of counsel of both sides.



    7.
    On the basis of pleadings of both the sides, the points that arise for consideration are:-
    (i)Whether there is any deficiency in service on the part of the opposite party towards the complainant?
    (ii)Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?
    (iii)To what result?




    8. Point No.(i):-
    The brief facts of the case are:- The opposite party in the year 1992 invited deposits under Agriculturists and Businessmen Welfare Scheme giving publicity by way of Ex.A5 pamphlet. The complainant deposited an amount of Rs.14,400/- on 01.08.1992, and the opposite party issued Ex.A4 Recurring Deposit Account pass book noting the payment of Rs.14,400/- by cash paid by the complainant. In Ex.A4 it is noted as E.W.S. 15 year’s scheme with red pen. The maturity date is mentioned as 01.08.2008 and the amount repayable on maturity is noted as Rs.1,05,093/-. As per Ex.A5 also the maturity value of Rs.14,400/- after 15 years is mentioned as Rs.1,05,093/-. The complainant filed C.C.No.114/2007 to pass an order directing the opposite party to pay Rs.1,05,093/- towards recurring deposit amount along with further interest from the date of maturity i.e. 01.08.2007, to pay Rs.50,000/- towards damages, loss and mental agony and to pay the costs of the complaint. This Forum by order dt:31.01.2008 dismissed the complaint as premature. As the opposite party did not pay the maturity amount of Rs.1,05,093/- even after the maturity date i.e. 01.08.2008, the complainant got issued Ex.A2 legal notice on 08.09.2008 calling upon the opposite party to pay the matured amount. The opposite party received the notice but failed to pay the amount. The complainant filed the present complaint on 05.11.2008.




    9.
    As seen from Exs. A4 and A5 the opposite party agreed to pay the maturity amount of Rs.1,05,093/- to the complainant on the maturity date i.e. 01.08.2008. The case of the opposite party is that the amounts collected under the scheme are treated as the term deposits for a period of 10 years and the later period is treated as renewal period, that the same is mentioned in the rules of the scheme affixed on the notice board and that as per the R.B.I. rules confirmed by the Finance Department of Government of India, the banks not to have the fixed deposits or term deposits for more than 10 years. It is the further case of the opposite party that as per the rules and circulars issued by the bank on the guidelines of R.B.I. only the scheme maturity amounts will be paid, that the same was displayed on the notice board of the bank and intimated to the customers and that so the maturity value mentioned in the scheme certificate is not criteria and it is subject to rules of the scheme. As per Ex.A5 the scheme is Agriculturists and Businessmen Welfare Scheme. The opposite party in Ex.A4 R.D.Account pass book mentioned the scheme as E.W.S. 15years scheme. The opposite party filed Ex.B4 xerox copy of Police Welfare Scheme rules. As seen from Ex.B4 the scheme is applicable to new constables recruited or existing police employees. It further shows that as soon as the new constable or an existing police official agrees to join the scheme by completing the account opening form, a one year recurring deposit account would be opened in his name jointly with the Superintendent of Police, that the controlling authority will deduct a sum of Rs.100/- per month from the salary of the member of the scheme for crediting the same to the R.D.account of the member and that after completion of 12 months period for the maturity amount of Rs.1,253/- a special term deposit receipt would be issued in favour of the concerned member jointly with the Superintendent of Police. This Police Welfare Scheme has nothing to do with the scheme under which the complainant deposited an amount of Rs.14,400/-. No scrap of paper is filed before this Forum by the opposite party to show that Police Welfare scheme rules are made applicable to Agriculturists and Businessmen Welfare Scheme. At the time of deposit of amount by the complainant, the opposite party obtained the original of Ex.B1 Account Opening Forum. In Ex.B1 also E.W.S. (15 years) scheme is noted. The opposite party did not also produce the rules and guidelines issued by R.B.I. before this Forum. The opposite party also failed to adduce any evidence to prove that the rules which show that banks cannot issue fixed deposits or term deposits for more than the period of 10 years were displayed in the notice board and intimated to the complainant. The opposite party – bank, having invited deposits from the public offering to pay particular amount on the maturity date, cannot subsequently say that the complainant is not entitled to the agreed amount as mentioned in Ex.A4 pass book.





    10.
    It is the further case of the opposite party that the complainant after depositing the amount of Rs.14,400/- on 01.08.1992 availed demand loan of Rs.10,800/- on 04.11.1992 as per the scheme rules under Account No.107 by executing relevant documents and accepting terms and conditions of the loan, that inspite of repeated demands the complainant failed to clear the demand loan and by 15.01.2005 an amount of Rs.41,196/- as per loan ledger extract was due from the complainant and that as per the request of the complainant on 15.01.2005 the said amount was deducted from the special term deposit account of the complainant and the complainant is entitled to a sum of Rs.7,837/- as on 15.01.2005. The opposite party produced Ex.B2 ledger extract copy for the deposit account of complainant and Ex.B3 ledger extract copy for demand loan account No.01590/010963. The complainant totally denied having taken any demand loan. Except Ex.B3 the opposite party adduced no evidence to establish that the complainant availed demand loan of Rs.10,800/- on 04.11.1992. According to the opposite party as per Ex.B4 scheme rules demand loan of Rs.10,800/- was given to the complainant. As per Ex.B4 the bank could consider grant of cycle advances, loans for purchase of sewing / knitting machines to the wives of the members and housing loans upto Rs.5,000/-. There is no mention about sanction of demand loan in Ex.B4 Police Welfare Scheme rules. According to the opposite party the complainant executed documents by accepting the terms and conditions of the loan at the time of demand loan. The said documents executed by the complainant are not filed before this Forum. The opposite party did not also produce the application given by the complainant requesting for sanction of demand loan. According to the opposite party in view of the consent letter given by the complainant on 15.01.2005 an amount of Rs.41,196/- due from the complainant was deducted from the term deposit amount due to the complainant. The opposite party did not even file the consent letter given by the complainant on 15.01.2005. The opposite party miserably failed to establish that the complainant availed demand loan of Rs.10,800/- on 04.11.1992 and by 15.01.2005 an amount of Rs.41,196/- was due from the complainant.




    11.
    For the above reasons, we find that the acts of the opposite party amount to deficiency in service and, as such, the complainant is entitled to Rs.1,05,093/- covered under Ex.A4. This point is accordingly answered in favour of the complainant.



    12. Point No.(ii)
    :- In view of our finding on point No.1, the complainant is entitled to Rs.1,05,093/- with further interest at the present bank rate of 9% per annum from 01.08.2008 till the date of realization. The complainant claimed Rs.50,000/- towards damages, loss and mental agony sustained by him. There is no basis and evidence adduced by the complainant for claiming such huge amount towards damages etc. Further the complainant is not entitled to any separate amount towards damages etc. as interest on the amount due to him is granted from the maturity date. The complainant is, however, entitled to Rs.1,500/- towards costs but not Rs.5,000/- as claimed. Hence, we find that the complainant is entitled to Rs.1,05,093/- with interest at 9% per annum from 01.08.2008 till the date of realization and Rs.1,500/- towards litigation expenses.




    13. Point No.(iii):-
    In the result, the complaint is allowed in part directing the opposite party to pay Rs.1,05,093/- with interest at 9% per annum from 01.08.2008 till the date of realization and to pay Rs.1,500/- towards litigations expenses to the complainant within six weeks from the date of receipt of copy of order.
  • adminadmin Administrator
    edited September 2009
    C.C.No. 85 / 2008


    [FONT=&quot]BETWEEN[/FONT][FONT=&quot]:[/FONT]
    [FONT=&quot]Chintada Laxmi, W/o.late Adinarayana, Aged 50 years,[/FONT]
    [FONT=&quot]Household duties, Udigalapadu Village, Challavanipeta Post,[/FONT]
    [FONT=&quot]Jalumuru Mandal, Srikakulam District. ...Complainant.[/FONT]

    [FONT=&quot]AND:[/FONT]
    [FONT=&quot]The Branch Manager, State Bank of India,[/FONT]
    [FONT=&quot]Narasannapeta Branch, Narasannapeta, Srikakulam District. …opposite parties.[/FONT]

    [FONT=&quot]This complaint coming on 02-04-2009 for final hearing before us in the presence of Sri K.Kameswara Rao, Advocate for complainant and Sri B.S.R.Sreepada, Advocate for opposite party and having stood over to this day for consideration, this Forum made the following:[/FONT]
    [FONT=&quot]

    O R D E R[/FONT]

    [FONT=&quot]

    This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 and facts of the case briefly are as follows:[/FONT]

    [FONT=&quot] Complainant presented to opposite party bank a cheque for collection on 26-5-2006. The said cheque was cleared by the drawee bank on 15-6-2006, but the opposite party bank did not credit the cheque amount into the account of the complainant till 2-5-2007. Hence complaint is filed for a direction to the opposite party bank to pay an amount of Rs.10,174-74ps. with interest at the rate of 24% per annum, compensation of Rs.80,000/-, costs of Rs.3,000/- and expenses of Rs.3,000/-. [/FONT]
    [FONT=&quot] 2) Opposite party bank filed counter denying the allegations of the complaint. [/FONT]
    [FONT=&quot] 3) Both parties filed affidavits. Exs.A1 to A6 are marked on behalf of the complainant. No documents are marked on behalf of the opposite party.[/FONT]
    [FONT=&quot] Heard both parties.[/FONT]
    [FONT=&quot] Point for consideration is:[/FONT]
    [FONT=&quot] Whether there is deficiency in service on the part of the opposite party bank.[/FONT]
    [FONT=&quot]


    4) Point: [/FONT]
    [FONT=&quot] Complainant filed affidavit with the same facts contained in the complaint. Opposite party filed affidavit with the same facts contained in the counter. Complainant has relied on Ex.A4 to show that the cheque was cleared on 15-6-2006.Complainant has stated in the complaint that the cheque was cleared by the drawee bank on 15-6-2006 and the opposite party bank did not credit the cheque amount into the account of the complainant till 2-5-2007. Opposite party bank has filed counter denying the allegations of the complaint. Opposite party bank has not [/FONT]

    [FONT=&quot]stated in the counter when it had received the cheque amount from the drawee bank. Opposite party bank has not stated anything about the delay in crediting the cheque amount into the account of the complainant. Opposite party bank has not stated anything about the delay in collection of the cheque amount from the drawee bank. Except denying the case of the complainant, the counter is evasive. It has not denied the allegation of the complainant that the cheque was cleared by the drawee bank on 15-6-2006. It shows that the cheque was cleared by the drawee bank on 15-6-2006 and there was delay of 11 months in crediting the cheque amount into the account of the complainant. It is the duty of the opposite party bank to credit the cheque amount into the account of the complainant soon after it received the cheque amount from the drawee bank. It is the duty of the opposite party bank to explain why there was delay in crediting the cheque amount into the account of the complainant. Opposite party bank is silent about the delay in crediting the cheque amount into the account of the complainant. Opposite party bank has not stated that it had received the cheque amount or the cheque was accepted by the drawee bank for payment not on 15-6-2006 but at a later date. It shows that the opposite party bank has delayed crediting the cheque amount into the account of the complainant. There is no explanation for the delay. We therefore hold that there is deficiency in service on the part of the opposite party bank. Hence we answer the point accordingly. [/FONT]
    [FONT=&quot]

    In the result, complaint is partly allowed. Opposite party bank is directed to pay interest at the rate of 6% per annum on the cheque amount of Rs.67,890/- from 1-7-2006 to 1-5-2007 and costs of Rs.500/- (Rupees five hundred only). Advocate’s fee is fixed at Rs.500/- (Rupees five hundred only).
    [/FONT]
  • adminadmin Administrator
    edited September 2009
    [FONT=&quot]COMPLAINANT:-[/FONT][FONT=&quot] [/FONT][FONT=&quot] Smt. Shantabai W/o Srikanth Sinnurkar, [/FONT]
    [FONT=&quot] Age: 35 yrs, Occ:Household, [/FONT]
    [FONT=&quot] R/o MOGHA (B), Tq. Aland, [/FONT]
    [FONT=&quot]Dist. [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. [/FONT]
    [FONT=&quot]………..Complainant in 168/2008[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Smt. Siddamma W/o Ramling Poojari, [/FONT]
    [FONT=&quot] Age: 36 years, Occ: Household, [/FONT]
    [FONT=&quot] R/o MOGHA (B), Tq. Aland, [/FONT]
    [FONT=&quot]Dist. [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. [/FONT]
    [FONT=&quot]………..Complainant in 169/2008[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] (By Sri Vaijanath Zalki, Advocate).[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]// Versus //[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]OPPONENT:-[/FONT][FONT=&quot] [/FONT][FONT=&quot](1) [/FONT][FONT=&quot] The Branch Manager, [/FONT]
    [FONT=&quot]State Bank of [/FONT][FONT=&quot]India[/FONT][FONT=&quot], [/FONT]
    [FONT=&quot]Madan Hipparga[/FONT][FONT=&quot], [/FONT]
    [FONT=&quot]Tq. Aland, Dist. [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] (2) The Dy. General Manager, [/FONT]
    [FONT=&quot]State Bank of [/FONT][FONT=&quot]India[/FONT][FONT=&quot], [/FONT]
    [FONT=&quot]Zonal Office, [/FONT][FONT=&quot]Solapur Road[/FONT][FONT=&quot], [/FONT]
    [FONT=&quot]Keshwapura, [/FONT]
    [FONT=&quot]HUBLI. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot](3)[FONT=&quot] [/FONT][/FONT][FONT=&quot]The Dist. Manager, [/FONT]
    [FONT=&quot]Backward Class and Minorities Development Corporation, [/FONT]
    [FONT=&quot]GULBARGA[/FONT][FONT=&quot]. [/FONT]
    [FONT=&quot]………..O.Ps. in 168/08 & 169/08[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot](O.P.No.1 & 2 by Sri R.A. Patil, Advocate).[/FONT]
    [FONT=&quot](O.P.No.3 – Exparte).[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]: : C O M M O N O R D E R : :[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]1.[FONT=&quot] [/FONT][/FONT][FONT=&quot]These two complaints are filed separately u/s.12 of Consumer Protection Act 1986 and both cases are disposed off by passing common order. In both cases O.Ps. are one and the same. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]2.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Complainant in C.C.No.168/2008 praying that, direction may be given to O.P. bank to release the sanctioned loan amount of Rs.85,000/- with interest. Further direction may be given to O.Ps. to pay Rs.10,000/- towards mental agony and cost of this proceedings in the interest of justice. [/FONT]
    [FONT=&quot]3.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Complainant in C.C.No.169/2008 praying that, direction may be given to O.P. bank to release the sanctioned loan amount of Rs.40,000/- with interest. Further direction may be given to O.Ps. to pay Rs.10,000/- towards mental agony and cost of this proceedings in the interest of justice. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The brief facts of the case of the complainants in both cases are that; [/FONT]
    [FONT=&quot] Complainants have applied for loan in the office of Dist. Manager Backward Class and Minorities Development Corporation through application No.53768 & 83708 respectively dated 12.7.2005 under Chaitannayya Safe Loan cum subsidy scheme for the purpose of carrying out the business of dairy farming. O.P.No.1 bank had recommended & consented for granting the loan of Rs.85,000/- & Rs.40,000/- respectively to complainants along with a loan of Rs.40,000/- & Rs.85,000/- respectively to complainants through its letter dated 18.11.2005 addressed to B.C.M., Manager, [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. After the said recommendation letter of O.P.No.1, O.P.No.3 forwarded the said loan application & the recommendation letter to Managing Director, Karnataka Backward Class & Minorities Development Corporation Ltd., [/FONT][FONT=&quot]Bangalore[/FONT][FONT=&quot] through its letter dated 27.12.2005 for further action. On receipt of the said loan application forms and O.P. bank recommendation letter, Karnataka Backward and Minorities Development Corporation Ltd., Bangalore was pleased to Order and released cheque bearing No.12976 of Rs.35,000/- dated 23.1.2006 as a margin money, subsidy money in respect of complainant loan application No.53768 & 83708 respectively by virtue of its order dated 31.1.2006.[/FONT]
    [FONT=&quot]Loan application number[/FONT]
    [FONT=&quot]Margin money[/FONT]
    [FONT=&quot]Subsidy[/FONT]
    [FONT=&quot]83708[/FONT]
    [FONT=&quot]Rs.8,000/-[/FONT]
    [FONT=&quot]Rs.5,000/-[/FONT]
    [FONT=&quot]53768[/FONT]
    [FONT=&quot]Rs.17,000/-[/FONT]
    [FONT=&quot]Rs.5,000/-[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]Thereafter, Asst. Development Corporation, Gulbarga directed to O.P.No.1 bank that the beneficiaries of loan application No.53768 and 83708 are fulfilled the formalities for getting subsidy and margin money so you i.e O.P.No.1 bank kindly be disburse/release the said sanctioned loan amounts along with subsidy and margin money to the beneficiaries of application No.53768 and 83708 and sought the details of this same to be furnished to office i.e Sri Devaraj urs Development Corporation Ltd., previously known as BCM Development Corporation Ltd., vide its letter dated 4.3.2006. O.P.No.1 bank even after release of Rs.35,000/- by Karnataka Backward Class and Minorities Development Corporation Ltd., [/FONT][FONT=&quot]Bangalore[/FONT][FONT=&quot], O.P.No.1 bank has failed to do same for the no fault of complainants. Thereafter complainants have approached O.P.No.1 bank several occasions with all required documents but O.P. neglected request of complainants. Thereafter, complainants sent letter dated 13.7.2006 to General Manager, SBI, [/FONT][FONT=&quot]Bangalore[/FONT][FONT=&quot] requesting to give direction to O.P.No.1 to release the sanctioned loan amount. Then the lead bank SBI Gulbarga sent a letter dated 8.8.2006 to O.P.No.1 bank to disburse/release the said sanction loan amount. But O.P.No.1 bank fails to obey the order of lead bank SBI Gulbarga. Finally complainants have issued legal notice to O.P.No.1 on 11.8.2006, but O.P.No.1 neglected the complainant request. This act of O.P. bank clearly shows that there is a deficiency of service on his part. Complainants are poor. They approached the O.P. scheme but O.Ps. bank repudiated the sanctioned loan amount without any sound reasoning and inquiry. Hence there is a deficiency of service on the part of O.Ps. This Forum have got jurisdiction to entertain the complaint. Under these circumstances, it is submitted that, complaints may be allowed and direction may be given to O.Ps. as prayed in the complaints. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]5.[FONT=&quot] [/FONT][/FONT][FONT=&quot]After registering the cases, notices were issued to O.Ps. in both cases. After serving the notices, O.P.No.3 did not appear, hence he was placed exparte. O.P.No.1 and 2 appeared through counsel and filed Written Statement in both cases contending that, it is a fact that, complainants have applied for loan through application No.53768 and 83708. O.P.No.1 after receipt of the same, forwarded the claim forms to concerned authorities for releasing subsidy amount. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]6.[FONT=&quot] [/FONT][/FONT][FONT=&quot]In C.C.No.168/2008, O.P.No.1 stated that, he found that, complainant had already availed the loan under Udyogini Scheme and she was defaulter for the said loan. Further complainant had availed the crop loan of Rs.70,000/- and same has not been renewed and her account is not regular. Complainant as a President for Mahadevi S.H.G., had availed a loan of Rs.2,62,000/- from O.P.No.1. The activities of the said SHG are not satisfactory and account is also irregular. Apart from this, complainant has introduced some loan accounts and most of them irregular. This has been brought to the notice of complainant, but complainant is dragging the matter at one or the other pretext by giving false promises to close the earlier accounts. The family members of the complainant i.e husband Srikanth Phulari and mother-in-law Smt. Nagamma have also availed the crop loan of Rs.49,000/- and they are also defaulters. Hence O.P.No.1 decided not to sanction the loan to complainant and returned the subsidy amount on 1.9.2006 received from BCM Corporation Gulbarga under Chaitannya Scheme through D.D. Hence there is no deficiency of service on the part of this O.P. It is denied that, complainant approached O.P. bank on several occasions but O.P. bank neglected the complainant’s request. It is also denied that, Lead bank, SBI Gulbarga directed the O.P.No.1 to disburse or release the amount. It is submitted that, on 8.8.2006, the Lead Bank SBI informed the O.P.No.1 to look into the matter. Hence the allegation of the complainant that O.P.No.1 bank fails to obey the orders of Lead Bank SBI Gulbarga is not correct. It is true that, complainant has issued the legal notice to O.P. on 11.8.2006 and O.P. bank has issued the reply notice to the said notice. Hence the allegation of complainant that, O.P.No.1 bank neglected and utterly failed to fulfill to serve the complainant and there is deficiency of service on the part of O.P.No.1 is not correct. It is submitted that complainant is not entitled for any relief from this Forum. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]7.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Further O.P.No.1 in C.C.No.169/2008 stated that, it is not correct to allege that, in spite of direction of the BCM Development Corporation Gulbarga (O.P.No.3) to disburse/release sanctioned loan amount along with the margin money and subsidy to complainant with reference to the loan application, O.P.No.1 bank has failed to release for no fault of the complainant is not correct. It is absolutely false to allege that, complainant has approached the O.P.No.1 bank on several occasions with all required documents personally and through letters, but O.P. bank neglected the complainant’s request. It is submitted that, complainant has not given correct facts. As a matter of fact after receipt of BCM loan application by O.P.No.1, complainant never approached the O.P.No.1 for financial assistance as such O.P.No.1 returned the subsidy amount received from the BCM Corporation, [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. It is denied that, Lead Bank SBI Gulbarga directed the O.P.No.1 to disburse or release the amount. It is submitted that on 8.8.2006, Lead Bank SBI informed O.P.No.1 to look into the matter. It is true that, complainant has issued legal notice to O.P.No.1 dated 11.8.2006. O.P.No.1 has replied to the legal notice on 18.9.2006 to withdraw the notice and not to take any hasty steps, as there is no deficiency of service on the part of O.P.No.1. Hence the allegation of complainant that, O.P.No.1 bank failed to sanction the loan amount even after the repeated requests by the complainant for no fault of her is not correct. It is submitted that, there is no negligence in rendering the service, as such there is no deficiency of service on the part of O.Ps. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]8.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Further O.P.No.1 stated in both cases that, complainants are not consumer as defined under the Consumer Protection Act. Complainants have no cause of action against the O.Ps. Complainants are not entitled to claim any compensation against the O.Ps. This Forum have no jurisdiction to entertain the complaints. Complaints are clearly time barred. Complainants have already approached before the Banking Ombudsman of Karnataka, hence they cannot approach this Forum for relief. The O.P. bank took a conscious decision not to go ahead with grant of loan, hence it cannot be described as deficiency of service. Under these circumstances, it is submitted that, complaints may be dismissed with costs. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]9.[FONT=&quot] [/FONT][/FONT][FONT=&quot]To prove the claim of complainants, they have filed affidavit by way of evidence in their respective cases, both examined as PW-1, documents got marked Exh.P-1 to P-10 separately. O.P. No.1 filed affidavit by way of cross of PW-1 in both cases. Complainants side evidence closed. O.P. also filed affidavit by way of evidence who examined as RW-1. In C.C.No.168/2008, got marked documents Exh.R-1 to R-16. In C.C.No.169/2008, O.P. have not filed any documents in support of his claim. Complainants filed affidavit by way of cross of RW-1. O.P. side evidence closed. [/FONT]
    [FONT=&quot]10.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Heard the arguments from both sides.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]11.[FONT=&quot] [/FONT][/FONT][FONT=&quot]The points that arises for our consideration are;[/FONT]
    [FONT=&quot](1)[FONT=&quot] [/FONT][/FONT][FONT=&quot]Whether there is a deficiency of service on the part of O.Ps?[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot](2)[FONT=&quot] [/FONT][/FONT][FONT=&quot]What Order?[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]12.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Our answer to the above points are as under:-[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot](1)[FONT=&quot] [/FONT][/FONT][FONT=&quot]Yes.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot](2)[FONT=&quot] [/FONT][/FONT][FONT=&quot]As per final order for the following;[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]: : R E A S O N S : :[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]13.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Point No:1 :[/FONT]
    [FONT=&quot] We have carefully perused the evidence of complainants in both cases, affidavits and documents. Complainants case are that, they have applied for loan in the office of Dist. Manager Backward Class and Minorities Development Corporation by filing application No.53768 & 83708 respectively under Chaitannayya Safe Loan cum subsidy scheme for the purpose of carrying out the business of dairy farming. O.P.No.1 bank had recommended for granting the loan to complainants by writing letter dated 18.11.2005 which was addressed to B.C.M., Manager, [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. After the said recommendation letter of O.P.No.1, O.P.No.3 forwarded the said loan application and recommendation letter to Managing Director, Karnataka Backward Class & Minorities Development Corporation Ltd., [/FONT][FONT=&quot]Bangalore[/FONT][FONT=&quot] by writing letter dated 27.12.2005 for taking further action. On receipt of the loan application form and O.P. bank recommendation letter, Karnataka Backward and Minorities Development Corporation Ltd., Bangalore was pleased to Order and released cheque bearing No.12976 of Rs.35,000/- dated 23.1.2006 as a margin money, subsidy money in respect of complainants loan application No.53768 & 83708 respectively by virtue of its order dated 31.1.2006. After that, Asst. Development Corporation, Gulbarga directed to O.P.No.1 bank for disbursing the said sanctioned loan amounts along with subsidy and margin money to the beneficiaries and sought the details of this same to be furnished to office i.e Sri Devaraj urs Development Corporation Ltd., previously known as BCM Development Corporation Ltd., vide its letter dated 4.3.2006. O.P.No.1 bank even after release of Rs.35,000/- by Karnataka Backward Class and Minorities Development Corporation Ltd., [/FONT][FONT=&quot]Bangalore[/FONT][FONT=&quot], O.P.No.1 bank has failed to do same for no fault of complainants. Thereafter complainants approached O.P.No.1 bank several occasions with all required documents but O.P.No.1 has not released the loan amount. Therefore there is a deficiency of service on the part of O.P. During the course of evidence, complainants examined as PW-1 got marked documents Exh.P-1 to P-10 in both cases. The documents marked in C.C.No.168/2008 are Exh.P-1 is loan application, Exh.P-2 is recommendation letter issued by O.P.No.1 bank, Exh.P-3 is letter issued by Managing Director, BCM Development Corporation Ltd., Bangalore, Exh.P-4 is letter issued by O.P.No.1 in favour of O.P.No.3, Exh.P-5 is letter issued by Asst. Development Officer, BCM Development Corporation Ltd., Gulbarga in favour of O.P.No.1, Exh.P-6 is letter issued by complainants to M.D., SBI, Bangalore, Exh.P-7 is letter issued by Lead Bank Manger, SBI, Gulbarga in favour of Asst. General Manager, SBI, Gulbarga, Exh.P-8 is legal notice which was issued by complainant to O.P.No.1, Exh.P-9 is postal acknowledgement, Exh.P-10 is reply to legal notice issued by O.P.No.1. In C.C.No.169/2008, documents got marked are Exh.P-1 is loan application, Exh.P-2 is recommendation letter issued by O.P.No.1 bank, Exh.P-3 is letter issued by O.P.No.1 to O.P.No.3, Exh.P-4 is letter issued by Managing Director, BCM Development Corporation Ltd., Bangalore, Exh.P-5 is letter issued by Asst. Development Officer, BCM Development Corporation Ltd., Gulbarga to O.P.No.1, Exh.P-6 is letter issued by complainants to M.D., SBI, Bangalore, Exh.P-7 is letter issued by Lead Bank Manger, SBI, Gulbarga to Asst. General Manager, SBI, Gulbarga, Exh.P-8 is legal notice issued by complainant to O.P.No.1, Exh.P-9 is postal acknowledgement, Exh.P-10 is reply to legal notice issued by O.P.No.1. On the other hand, O.P.No.1 also filed affidavit by way of evidence who examined as RW-1 who deposed in his evidence in both cases that, it is admitted that, complainants have applied for loan through application No.53768 and 83708. Further O.P.No.1 deposed in C.C.No.168/2008 that, he found that, complainant had already availed the loan under Udyogini Scheme and she was defaulter for the said loan. Further complainant had availed the crop loan of Rs.70,000/- and same has not been renewed and her account is not regular. Complainant as a President for Mahadevi S.H.G., had availed a loan of Rs.2,62,000/- from O.P.No.1. The activities of the said SHG are not satisfactory and account is also irregular. The family members of the complainant i.e husband Srikanth Phulari and mother-in-law Smt. Nagamma have also availed the crop loan of Rs.49,000/- and they are also defaulters. Hence O.P.No.1 decided not to sanction the loan to complainant and returned the subsidy amount on 1.9.2006 received from BCM Corporation Gulbarga under Chaitannya Scheme through D.D. Therefore there is no deficiency of service on their part. Further O.P.No.1 deposed in C.C.No.169/2008 that, after receipt of BCM loan application by O.P.No.1, complainant never approached the O.P.No.1 for financial assistance as such O.P.No.1 returned the subsidy amount received from the BCM Corporation, [/FONT][FONT=&quot]Gulbarga[/FONT][FONT=&quot]. Further he deposed in his evidence that, it is admitted that, complainant has issued legal notice to him and he replied to the legal notice to withdraw the notice and not to take any hasty steps, as there is no deficiency of service. When he was examined as RW-1, documents got marked in C.C.No.168/2008 Exh.R-1 to R-16. In C.C.No.169/2008, O.P.No.1 has not filed any documents in support of his claim. The documents got marked in C.C.No.168/2008 are, Exh.R-1 is loan application under Chaitanya scheme, Exh.R-2 is slip showing A/c. No. of Nagamma, Exh.R-3 is loan application of Nagamma, Exh.R-4 is loan sanctioned letter to Nagamma, Exh.R-5 is hypothecation agreement of Nagamma, Exh.R-6 is Slip showing A/c. of Srikanth who is husband of complainant, Exh.R-7 is loan application form of Srikanth, Exh.R-8 is loan sanctioned letter of Srikanth, Exh.R-9 is hypothecation agreement of Srikanth, Exh.R-10 is slip showing A/c. of Shantabai, Exh.R-11 is loan application of Nagamma, Exh.R-12 is Slip showing A/c. of Shantabai, Exh.R-13 is loan application of Shantabai, Exh.R-14 is loan sanctioned letter, Exh.R-15 is loan agreement of Srikanth, Exh.R-16 is details of loan. We have carefully perused the documents filed in both cases i.e Exh.P-1 which are loan applications which reveals that complainants have applied for loan under Chaitanya Scheme. On further going through the documents filed in C.C.No.168/08 i.e Exh.P-3 and in C.C.No.169/2008 i.e Exh.P-4 which are letters issued by Managing Director, BCM Development Corporation Ltd., [/FONT][FONT=&quot]Bangalore[/FONT][FONT=&quot] wherein it is mentioned that, they have sanctioned loan and released amount through cheque No.12976. Further it is reveals that, even after release of Rs.35,000/- by the said authority, O.P.No.1 has not released the said amount in favour of complainants. On the other hand, O.P.No.1 deposed in his evidence unnecessarily which are not relevant to the present case. He deposed in his evidence that, complainant, her husband and mother-in-law Smt. Nagamma have taken crop loan etc., and they are also defaulter. To prove this aspect, he has not examined any persons. Mere taken contention that, they are defaulter of crop loan and other loans, it is not a ground to O.P. for not sanctioning the loan in favour of complainant. On perusal of the evidence of complainant, it clearly goes to show that, though loan was sanctioned by BCM development Corporation, it is the bounden duty of the O.P. to release the loan amount to the beneficiaries. The documents filed on behalf of O.P. i.e Exh.R-1 to R-16, those documents are not helpful to the case of O.Ps. On going through the evidence of complainants, affidavits and documents, in our considered opinion, there is a deficiency of service on the part of O.Ps., therefore we answered this point in affirmative. [/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]14.[FONT=&quot] [/FONT][/FONT][FONT=&quot]Point No.2 :[/FONT]
    [FONT=&quot]In view of the discussions made on point No.1, we answered this point in affirmative. Hence we proceed to pass the following;[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]: : O R D E R : :[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Both the complaints i.e C.C.No.168/2008 and 169/2008 are allowed. O.P.No.1 to 3 are directed to release the loan amount to both complainants. Further both complainants are entitled to recover a sum of Rs.1,000/- each towards mental agony and cost of this proceedings from O.P.No.1 to 3. Further O.P.No.1 to 3 are jointly and severally comply the order of this Forum within one month from the date of this Order.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot] Keep the copy of this Order in C.C.No.169/2008. [/FONT]
    [FONT=&quot][/FONT]
  • adminadmin Administrator
    edited September 2009
    Sri.Ganapati P Naik

    ...........Appellant(s)

    Vs.








    State Bank Of India


    ...........Respondent(s)


    ORDER DELIVERED BY Shri. R.G. PATIL, PRESIDENT


    1)[FONT=&quot] [/FONT]This is a complaint praying to direct the OP to pay the amount of Rs.20,000-00 with interest and costs.

    2)[FONT=&quot] [/FONT]Brief facts of the complaint are that the complainant being a card holder of ATM Facility of the OP Bank wanted to withdraw the amount of Rs.25,000-00 on 5-7-2008. The complainant applied for Rs.5,000-00 from the ATM. The amount was drawn. Again he applied for the amount of Rs.20,000-00 but it was not drawn. Again he applied for the amount of Rs.15,000-00. The same was drawn. On 7-7-2008 he got entries made by the Bank in his passbook. He was shocked to see the entry made in the passbook that an amount of Rs.20,000-00 was drawn. He issued a letter to the Manager, on 7-7-2008 stating that the amount of Rs.20,000-00 was not drawn from the ATM. The Manager, on 14-10-2008 replied that the transaction is correct. The capacity of withdrawal from the ATM per day is Rs.18,000-00. The OP has not properly enquired. There is deficiency of service by the OP and the OP is liable.

    [FONT=&quot]3)[FONT=&quot] [/FONT][/FONT][FONT=&quot]The OP filed WS stating that the complainant has successfully withdrawn Rs.20,000-00 from the ATM on [/FONT][FONT=&quot]5-7-2008[/FONT][FONT=&quot] as per the transaction generated from the system. The OP has denied that the capacity of ATM limit is Rs.18,000-00 per day. The complaint is frivolous with intention to unjustly enrich himself. The books of accounts also show that the complainant has withdrawn Rs.20,000-00 through ATM. There is no deficiency of service by the OP and the complainant is not entitled for any compensation or damages. He prays to dismiss the complaint.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]4)[FONT=&quot] [/FONT][/FONT][FONT=&quot]The complainant has filed his affidavit and got marked Ex.C-1 to C-6 & the OP has filed his two affidavits and got marked Ex.R-1 and R-2.[/FONT]
    [FONT=&quot] [/FONT]
    [FONT=&quot]5)[FONT=&quot] [/FONT][/FONT][FONT=&quot]The points that arise for our consideration are :- [/FONT]
    [FONT=&quot]I)[FONT=&quot] [/FONT][/FONT][FONT=&quot]“Whether the complainant proves that the ATM machine failed to emit Rs.20,000-00 on [/FONT][FONT=&quot]5-7-2008[/FONT][FONT=&quot]. [/FONT]
    [FONT=&quot]II)[FONT=&quot] [/FONT][/FONT][FONT=&quot]What Order ?[/FONT]
    [FONT=&quot]6) Our replies to the above points are :-[/FONT]
    [FONT=&quot] I) Negative.[/FONT]
    [FONT=&quot]II) As per order.[/FONT]
    [FONT=&quot] [/FONT]
    7) Point No.1: It is the contention of the counsel for the complainant that on 5-7-08 the complainant having account in OP Bank and being in need of Rs 25,000-00 withdrew Rs.5,000-00.from the ATM of OP Bank. Again he applied for Rs.20,000-00 but the withdrawal failed. Again he applied for Rs.15,000-00. The amount was drawn. In the entries made in the passbook by the OP Bank on 7-7-08 it showed that Rs.20,000-00 was drawn though the transaction failed. On 7-7-08 the complainant complained the OP about the failure of the machine to emit the amount of Rs.20,000-00. But the OP on 14-10-08 replied that the transaction of withdrawal of Rs.20,000-00 was successful. Due to such failure the complainant is put to the loss of Rs. 20,000-00. It is deficiency of service on the part of the OP and the OP is liable.

    8)[FONT=&quot] [/FONT]On the other hand the counsel for the OP vehemently urged that on verification of the accounts, investigation, replenishment of the ATM, testing of the machine, and on thorough enquiry made with switch center of Mumbai it was confirmed that the withdrawal of Rs.20,000-00 was successful. The complainant with an intention to make illegal gains has filed this false complaint. There is no deficiency of service by the OP and it is not liable. He prayed to dismiss the complaint with costs.

    9)[FONT=&quot] [/FONT]We have gone through the pleadings, affidavits and documents submitted by both the parties. The OP has produced Ex.R-1 the statement of account and ExR-2 the zerox copy of ATM slip. The OP also relied on Ex.C-3, which is also zerox copy. It is issued by the OP to the complainant alongwith the letter Ex.C-2. Both the documents Ex.C-3 and Ex.R-2 are not visible even with the help of magnifier glass. The OP has not produced some prime important documents like ATM Machine Test Report, opening-closing and total balance in the ATM machine on 5-7-08, the document showing withdrawal limit at a time and for a day and the Suspense Account. The complainant has produced three customer advice slips at Ex.C-5. One of the slips is the statement, which shows that the complainant came to know on 5-7-08 itself that there was withdrawal of Rs. 20,000-00. The complainant has not produced the slip of statement of withdrawal of Rs 20,000-00. He has not stated anywhere that the ATM machine has not emitted such slip. The slips at Ex.C-5 show that there were withdrawals by some other account holders in between the gap of time. The complainant has not adduced evidence of any of these persons. Ex.R-1 shows that the complainant has withdrawn Rs.60,000-00 through cheque on 5-7-08. The contention of the complainant that he came to about the withdrawal of Rs.20,000-00 on 7-7-08 can not be believed. Merely because the OP has not produced any important document can not be made ground for concluding that the ATM Machine did not emit the amount of Rs.20,000-00. So in our view the complainant fails to prove that the ATM machine failed to emit Rs.20,000-00 on 5-7-08. We reply the Point No 1 in negative.

    10)[FONT=&quot] [/FONT]Point No.2: In view of the above discussions we are of the opinion that the complaint fails.
    [FONT=&quot] We pass the following Order.[/FONT]
    : O R D E R :
    The complaint is dismissed.
  • SidhantSidhant Moderator
    edited September 2009
    Between:

    Smt. Gummadi Ratna Kumari, W/o late Sri Satyanarayana, GF-1, Gummadi Paradize, Maruti Colony,
    Patamata, Vijayawada – 7.

    …… Complainant.

    And

    State Bank of India, rep: by its Branch Manager, Nunna, Vijayawada Rural Mandal, Krishna District.

    …. Opposite party.


    ORDER




    1. The averments of the complaint in brief are as follows:


    That the complainant is a resident of Vijayawada city where as the opposite party stationed at Nunna of Krishna District. Late husband of the complainant by name G. Satyananrayana pledged gold ornaments weighing 786 gms of the complainant in his name from the opposite party and availed a loan. Late Satyanarayana executed his last will during his life time on 26.12.2002 while he was in sound state of mind and out of his free will and the same was registered vide document No.121/BK-3/2002. Satyanarayana died on 19.04.2007. Later the complainant paid the entire gold loan of Rs.3,27,029/-. There after the complainant requested the bank authorities to return the ornaments but the opposite party failed to comply and insisted for several certificates including legal heir certificate though, furnished but the opposite party failed to act, the complainant is also entitled for interest waiver under the debt relief scheme announced by Government of India yet no avail and hence, the complainant got issued legal notice on 14.07.2008 to the opposite parties though, received the opposite party kept mum hence, the complaint.


    2. The opposite party filed version interalia denying the allegations of the complaint but admitted that late G. Satyanarayana pledged discharging gold ornaments and loan by the complainant and further averred that there is no proof that the will is the last testament. The complainant is not entitled for the waiver of the interest and that the opposite party acted in good faith as such there is no deficiency in service on the part of this opposite party and prayed to dismiss the compliant.


    3. On behalf of the complainant the complainant herself examined as Pw.1 and got marked Exs.A1 to A7 are marked. On behalf of the opposite party Sri K. Bhushanam filed an affidavit and no documents are marked.


    4. Heard both the counsel.


    5. Now the points that arise for consideration in this complaint are:

    I) Whether there was deficiency in service on the part of the opposite party?
    II) Whether the complainant is entitled for the return of the gold ornaments?
    III) To what relief the complainant is entitled?



    6. Point Nos.1 and 2: Before considering the rival contentions it is better to analyze the material on hand , as per the averments of the complaint the plea of the complainant is that her late husband pledged her ornaments and availed a loan with the opposite party under the original of Ex.A1 further plea is that her husband died and filed proof vide Ex.A7 so much so late Satyanarayana executed last testament under the original of Ex.A6 why, it was mentioned as last testament because no other will was filed as per the material on hand claiming that another will was executed by late Satyanarayana etc., further, the complainant discharged the loan under the original of Ex.A2.

    Further, there is no dispute with regard to pledging of gold ornaments further, the bank authorities asked some certificates that of will probity, legal heir certificate and family member certificate and that the complainant furnished legal heir certificate and no need of obtaining probity since it is the last testament and that the complainant is the only wife of late Satyanarayana and further as all the efforts of the complainant became futile in getting back of the ornaments and so, she got issued legal notice under the original of Ex.A4 and that the same was received by the opposite party but no reply, which acts of the opposite party falls within the purview of deficiency in service ofcourse, the learned standing counsel for the opposite party may contend that the opposite party is a nationalized bank so it has to follow the procedure etc., no doubt about that, but the will speaks bequeathing of the properties of late Satyanarayana to the complainant so, no need to object and on the other hand she has furnished the required documents so, there is no need to give any priority to the submissions of the learned standing counsel for the opposite party.

    The learned counsel for the complainant mentioned four decisions of the Hon’ble High Court in the affidavit and in the complaint but he has not filed those decisions before this Forum and those decisions were also with regard to will and the plea of the learned counsel for the complainant is that of return of the gold ornaments and there is force in it, why because, the complainant is the person who discharged the debt but however, in cross examination the complainant admitted that the bank authorities never stated that they would not give ornaments and further stated that she is ready to furnish indemnity bond and third party security so, such is the case, what is the apprehension to the bank authorities infact no need to think otherwise also and as it is the material on hand clinchingly show that the complainant is entitled for the return of the ornaments and accordingly these points are answered.

    7. Point No.3: In the result the complaint is allowed and the opposite party is hereby directed to return the ornaments pledged by late Satyanarayana to the complainant forthwith on furnishing of indemnity bond and third party guaranty by the complainant. But In the circumstances of the case no order as to costs.
  • SidhantSidhant Moderator
    edited September 2009
    M/s Gupta Medical Agencies, Bhatli Road Bargarh represented through Partner Sawarmal Gupta, S/o Jagannath Prasad Gupta, R/o Bargarh Town, Bhatli Road, Po/Ps/Dist. Bargarh.

    ... ... Complainant.

    - V e r s u s -

    1) Branch Manager, State Bank of India, Commercial Branch, At/Po/Dist. Bargarh.

    2) The Asst. General Manager, State Bank of India, Collectorate Branch, Cuttack, Near High Court, At/Po/Dist. Cuttack..

    ... ... ... Opposite Parties.


    The Complainant is an account holder of Opposite Parties Bank bearing account No. 10441912603 having multicity cheque facilities as such he is a consumer of Opposite Parties. He has issued an cheque bearing No.003948 Dt. 21/03/2008 for a sum of Rs. 43,262.34/-(Rupees forty three thousand two hundred sixty two and thirty four paise)only in favour of M/s Wockhardt Limited, Cuttack. On production the cheque by the drawee for collection before the Opposite Party No.2(two), the Opposite Party No.2(two) dishonored the cheque and returned the same to the drawee with an endorsement of refer to drawer with out assigning any reason, though there was sufficient money in the account. The Opposite Party No.2(two) has deducted a sum of Rs. 433/-(Rupees four hundred thirty three)only from the account of the drawee towards the service charges for collection of cheque amount. Dishonour of cheque of the Complainant having sufficient money in the account with out assigning any reason and also deducting of service charge for collection of the cheque amount from the account of the drawee are quite unethical approach of the Opposite Parties towards the Complainant is amounts to deficiency in service on the part of the Opposite Parties.

    Alleging deficiency in service, the Complainant filed this case against the Opposite Parties and claims compensation of Rs. 50,000/-(Rupees fifty thousand)only towards mental agony and Rs.433/-(Rupees four hundred thirty three)only for the service charges deducted by the Opposite Parties which is paid by the Complainant to the drawee of the cheque.

    On being noticed the Opposite Parties appeared and filed version jointly through their Advocate. In its version the Opposite Parties admitted that the Complainant is bonafide account holder of Opposite Parties Bank having cheque facilities and the Opposite Party No.1(one) had supplied multicity cheque to the Complainant, and bouncing of the cheque bearing No. 003948 Dt.21/03/2008 for Rs.43,262.34(Rupees forty three thousand two hundred sixty two and thirty four paise)only issued by the Complainant to the M/s Wockhardt Limited, Cuttack. with an endorsement “refer to drawer”. Further it is also admitted that a sum of Rs.433/-(Rupees four hundred thirty three)only has been deducted towards the Bank charges from the account of the drawee.

    The Opposite Parties denied to have cause any deficiency in service towards the Complainant so also denied the all other allegation made by the Complainant.

    Since the Opposite Party has not caused any deficiency in providing any service to the Complainant nor have acted callously while discharging their official duty are not liable jointly or severally to pay any compensation and prays for dismissal of the complainant with cost.

    We have gone through the complaint petition, Opposite Parties's version as well as the documents filed by the Parties in respective of their case and found as follows:-

    The Complainant has filed the original cheque bearing No.003984 Dt. 21/03/08 issued by the Complainant infavour of M/s Wockhardt Limited, Cuttack, letter of intimation Dt. 31/03/2008, letter Dt.03/04/2008 issued by Wockhardt Limited in favour of Complainant, letter Dt. 08/04/2008 issued by the Complainant to the C.M., S.B.I. of India Commercial Branch, Bargarh, letter issued by Complainant Dt. 09/04/2008 and letter Dt. 09/04/2008 issued by Opposite Party No.1(one) to Opposite Party No.2(two) to prove his case.

    The Complainant contends that on presentation the cheque by the drawee on Dt. 31/03/2008 for collection, the Opposite Party No.2(two) dishonored the said cheque and returned the same with an endorsement 'refer to drawer' with out assigning any reason thereof, though there was sufficient money in the account of the Complainant on Dt. 31/03/2008. The Complainant vide letter Dt. 08/04/2008 wanted to know the reason of such dishonour of his cheque but the Opposite Party did not give any reply to the Complainant. The Opposite Party was also not disputed that, there was no sufficient money in the account of the Complainant on Dt.31/03/2008. The Opposite Party No.2(two) with out any reasonable cause illegally dishonour the cheque of the Complainant.

    The Opposite Parties contends that as per the rules and term and condition, S.B.I. Cash Credit facilities is sanctioned for a term of one year and after the lapse of one year further renewal of limit is granted at Bank's discretion. The Opposite Party No.1(one) had temporarily extended the validity period on Dt. 27/02/2008 to Dt. 30/03/2008 in the core banking system. The drawee has presented the cheque for collection in the first hours of Banking transaction and by than the validity period is expired. While the dealing officer of Opposite Party No.2(two) passing the cheque No. 003948 for Rs. 43,262.34/-(Rupees forty three thousand two hundred sixty two and thirty four paise)only, the computer indicated the drawing power zero for want of validity period of sanction. Further the Opposite Parties contends that, the dealing officer of Opposite Party No.2(two) instead of returning the cheque with remark insufficient fund, returned the cheque with remark, refer to drawer.

    The plea taken by the Opposite Parties is not acceptable. When an account holder of a Bank is provided with multicity cheque facilities has sufficient money in his account and a cheque has been issued with in the limit, the dishonored of the said cheque with out assigning any reason there of is deficiency in providing service towards the account holder.

    The letter Dt. 09/04/2008 issued by the Opposite Party No.1(one) to the Opposite Party No.2(two) itself proves the negligence and deficiency in service towards the Complainant by the Opposite Party No.2(two). For such callous act of the Opposite Parties and deficiency in providing service, the Complainant has suffered heavy loss along with the loss of repudiation in the market and is entitled for compensation to which the Opposite Party No.1(one) and Opposite Party No.2(two) are jointly and severely liable to pay to the Complainant.

    In view of above discussion the Complainant is well established a case of deficiency in service on the part of the Opposite Parties.

    Complaint allowed.

    The Opposite Party No.1(one) and No.2(two) are jointly and severally directed to pay a sum of Rs. 5,000/-(Rupees five thousand)only towards mental agony, Rs. 433/-(Rupees four hundred thirty three)only taken by the Opposite Party No.2(two) towards service charges and Rs.1000/-(Rupees one thousand)only as litigation cost to the Complainant with in 30(thirty) days from the date of this order failing which 18%(eighteen percent) interest per annum will be charged on the total awarded amount till the date of payment.
  • SidhantSidhant Moderator
    edited September 2009
    Sh.Makhan S/o Sh.Krishan Kumar, resident of Ward No.14, Water Works Road, Mansa.


    VERSUS

    1.

    A.G.M., State Bank of India, First Floor, Regional Business Office, Bhagu Road, Bathinda.
    2.

    Manager, Main Branch, State Bank of India, Water Works Road Branch, Mansa.


    Sh.Makhan son of Sh.Krishan Kumar, a resident of Mansa, has filed this complaint, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against the opposite parties for award of compensation in the sum of Rs.50,000/- for mental and physical

    Contd.......2

    : 2 :


    harassment. Briefly stated, the case of the complainant is described as under:

    2. That on 5.6.2008, he opened joint account with his wife with OP No.2 and deposited a sum of Rs.1,51,000/-. They have also secured 'Multi City Cheque Facility' provided for encashment of cheques issued by them in any branch of the opposite parties.

    On 26.11.2008, complainant issued cheque bearing No.000105 dated 26.11.2008 in the name of his father-in-law Sh.Pawan Kumar S/o Sh.Ram Nath, resident of Bharat Nagar, Bathinda. On presentment of the said cheque, by the drawee, the branch of the opposite parties, situated at Bathinda, refused to encash the same, despite adequate credit, in the account of the complainant, on the plea that his signatures are not scanned on computer system of the opposite parties. The father-in-law of the complainant, in whose name cheque, has been drawn, is a old person and a patient of heart ailment, who needed money for his personal needs. He also maintains account No.30397593617 in the branch of opposite parties at Bathinda. After receiving the intimation, regarding dishonoring of the cheque, the complainant approached the main branch of the opposite parties, but the officials posted therein, refused to listen to his grievance ,thereafter he sent several applications expressing his problems faced by him due to non scanning of his signatures on the computer system, but OP No.2 did not pay any heed and has not given any response, to the notice sent through registered post and FAX. Hence the complaint.

    3. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, complaint, is not maintainable; that complainant,

    Contd........3

    : 3 :


    has no cause of action, and locus standi, to file the complaint; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complainant, has concealed the material facts, from the knowledge of this Forum and has not approached this Forum with clean hands, as he has suppressed the material facts touching the merits of the case; that no loss has been suffered by the complainant and drawee of the cheque has not filed the complaint for loss suffered by him, as such, he is not entitled, to payment of any compensation; as such, his complaint, being false and vexatious, is liable, to be dismissed, with costs.

    On merits, factum of opening of a joint account, by the complainant and his wife, and availing of 'Multi City Cheque Facility', is not denied, but it is submitted that complainant, has operated his account several times, but he has not faced any difficulty in operation thereof. It is submitted that cheque in question, could not be cleared, for payment, for want of signatures scan of the complainant, which could not be scanned ,due to technical difficulties faced by the opposite parties. It is denied, that there is any deficiency in service, on the part of the opposite parties or that complainant, is entitled to seek compensation, as sought in the instant complaint. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

    4. On being called upon, by this Forum, to do so, the counsel for the complainant tendered his affidavit and of Sh.Pawan Kumar and copies of documents Ext.C-1 to C-7 and closed evidence. On the other hand, learned counsel for the opposite parties tendered in evidence affidavit of Sh.Rakesh Kumar, G.M., Ext.OP-1 and closed evidence on their behalf.

    5. We have heard the learned counsel, for the parties and gone through, the facts borne on record, carefully, with their kind assistance.

    Contd........4 : 4 :


    6. At the outset, learned counsel for the opposite parties Sh. P.K.Singla, Advocate, has submitted that complainant, has not disclosed the name of the branch of the opposite parties, where his father-in-law, in whose favour the cheque, has been issued, has presented the same for encashment and, as per allegations made in the complaint, he has not suffered any personal loss, as such, he has no locus standi to file the complaint and person aggrieved, if any, is his father-in-law, but he is not party to the complaint, as such, complaint is liable to be dismissed with special costs.

    7. On the other hand, learned counsel for the complainant Sh. Vishvpreet Garg, Advocate, has submitted that cheque, in question, has been issued, by the complainan,t which has been dishonored, by the opposite parties without any justifiable cause, as such, complainant, has locus standi and his complaint, is maintainable, although his father-in-law, may file separate complaint, for physical and mental harassment, suffered by him, against the branch concerned, at Bathinda, if he so desires.

    8. We find merit in the argument advanced by the learned counsel for the complainant, because cheque in question, issued by him has not been honored, by the opposite parties for want of loading of signatures scan on their computer network due to technical difficulties. In the given circumstances, we are unable to accept the plea of the counsel for the opposite parties, that complainant is not the person aggrieved or that he has no locus standi, to file the complaint. The remedy open to his father-in-law, who operates distinct account with the branch of the opposite parties at Bathinda, is independent. If he is aggrieved due to dishonoring of the cheque on any other ground by the opposite parties, he may file separate complaint against his bankers. Since the facility of 'Multi City Cheque

    Contd........5

    : 5 :


    Facility', has been secured by the complainant and his wife and their reputation, has gone down in the eyes of the drawee, therefore, complaint filed by the complainant, against his bankers, for dishonoring the cheque, on being presented, by the drawee, is maintainable.

    9. Learned counsel for the opposite parties, has further submitted that complainant, as per his own version projected in the complaint, has issued cheque in the sum of Rs.70,000/-, but as per the Banking Law and Regulations, payment of amount above Rs.50,000/-, can be made to the drawee through Account Payee Cheque, but complainant, has not produced on record the counter foil of Pay-in-Slip, through which cheque in question ,was presented with any branch of the opposite parties, at Bathinda, for deposit of the same in his account.

    Learned counsel has reiterated, that no personal loss to the complainant, has been caused and he has failed to approach the OP No.2 and to inform him about dishonoring of the cheque, so that remedial steps could be taken in time, as such, he cannot claim benefit of its own omission and be allowed to shift the liability upon the opposite parties, for dishonoring of the cheque. Learned counsel, has drawn our attention to Statement of Accounts of the complainant, containing entry regarding transfer of a sum of Rs.50,000/-, by him, on 28.11.2008 in Fixed Deposit Account and has argued, that complainant has served notices upon the opposite parties despite knowledge that amount in his account, is not sufficient for honoring the cheque, as such, inference is that he has fabricated the evidence with malafide intention, to secure wrongful gain and his complaint deserves to be dismissed with compensatory costs.

    10. At the stage, learned counsel for the complainant, has submitted that, opposite parties in their written version, has admitted the

    Contd........6

    : 6 :


    dishonoring of the cheque, as such, they cannot be allowed to wriggle out of the said admission or due to non impleading of the the branch of the opposite parties situated at Bathinda, where cheque was presented, by the drawee. Learned counsel further argued, that despite issuance of reminders by the complainant for scanning of his signatures, to the opposite parties, they have failed, to take any remedial action for scanning of his signatures, as such, there is deficiency in service on the part of the opposite parties and the complainant, is entitled to claim compensation from them.

    11. The argument advanced by the learned counsel or the complainant is not devoid of merits, because in the written version, the opposite parties have categorically admitted, that cheque in question, on presentation by the drawee, has not been encashed for want of scanning of signatures of the drawer on computer network, due to technical problems. Yhey have not attributed any lapse, on the part of the account holder, because of which their signatures could not be scanned on their computer network or to facilitate the other branches to honour the cheques issued by them under Multi City Cheque Facility.

    It is well settled that admitted facts need no formal proof and that admission is the best evidence, which can be relied upon by the opponent, until it is successfully withdrawn or proved to be erroneous. It is not the case of the opposite parties, that above admission has been made by them out of inadvertence. It was the duty of the OP No.2 to scan the signatures of the account holders immediately after they secured the facility. The reliefs to the complainant cannot be denied, even if, he has not conveyed any intimation to the opposite parties, for dishonoring of the cheque on being presented by his father-in-law for encashment.

    Contd........7

    : 7 :


    12. As per entries made in the Statement of Accounts issued by the opposite parties, Ext.C-2, he has withdrawn a sum of Rs.50,000/- on 28.11.2008. He has issued the cheque on 26.11.2008 after deposit of Rs.70,000/- in his account on even date, in the name of his father-in-law. The dates mentioned in the copies of notices Ext.C-4 to C-6 suggests that they have been served upon the opposite parties subsequent to the transfer of Rs.50,000/- in his Fixed Deposit Account. These notices are dated 13.1.2009, 12.2.2009 and 26.2.2009, but in these notices, complainant has himself requested the opposite parties for scanning of his signatures and not for honoring of the cheque issued by him, but the opposite parties have not produced on record any documentary proof to show that his grievance has been redressed, although it is not their plea that facility secured by the complainant and his wife, has been withdrawn or cancelled, due to their conduct or some other reason.

    13. In the light of our above discussion, we have come to the conclusion that deficiency in service on the part of the opposite parties, is clearly demonstrated, by the facts discussed above. Therefore, complaint cannot be dismissed, even if , complainant has failed to prove any financial loss, which might have been caused to him. In our opinion, dishonoring of cheque, issued by the drawer, lets him down in the eyes of the drawee, irrespective of his relationship and it also affects the reputation of the bankers in the eyes of the general public. Therefore, the opposite parties have no option, but to adequately compensate the complainant, as per the nature of deficiency in service and circumstances of the case.

    14. For the aforesaid reasons, we accept the complaint with a direction to the opposite parties, to pay a sum of Rs.2,000/-, on account of compensation, to the complainant. Since the complainant has not sought

    Contd........8

    : 8 :


    any payment, on account of costs of litigation, therefore, parties are left to bear their own costs. The compliance of this order be made within a period of two months from the date of receipt of the copy of the order.
  • SidhantSidhant Moderator
    edited September 2009
    Sri. M.V.S. Ramachandra Murthy, S/o Late M.A. Ramiah, Hindu, aged 67 years, R/o Flat No.205, Om Vigneswara Apartments, Abidnagar, Visakhapatnam

    … Complainant

    1. The Manager, Customer Services, State Bank of India, Credit Cards, New Delhi.

    2. The Branch Manager, Credit Card Division, State Bank of India, Dwarakanagar, Visakhapatnam.

    ... Opposite Parties

    : O R D E R :

    1. The complainant is having a Credit Card No.4317 5750 1787 5403 of the opposite parties, State Bank of India right from 2003. He claims that he used the credit card still December 2005. His complaint is that the opposite party has been making wrong calculations and sending such wrong statements. He sought for clarification of the dues. His specific complaint is that an entry shown as flexi pay amount of INR 2006 for Rs.1,388-62ps was shown wrongly besides Government Tax.

    With this complaint, he even got issued two legal notices on 04-09-2006 and 15-12-2006 to the opposite parties, seeking clarification of the account and settlement of the same. Having failed to get proper reply from them, pleading that this act of opposite parties is nothing but deficiency in service, as it failed to render proper account causing much tension, mental agony and financial hardship to him. He further pleaded that he even asked the opposite parties to settle the account and to cancel the Credit Card. With these averments, he came up with this complaint seeking direction for settlement of account and refund of the balance amount to the complainant and for deficiency of service resulting in mental agony, pain and suffering a compensation of Rs.15,000/- besides costs.

    2. Opposite parties naturally resisted the claim and pleaded in the counter that as per the terms and condition of State Bank of India, Card services, it sent bills.

    3. Statement of Account to the complainant to the extent amount due from him and denied that it failed to respond to the customer clarification, more so the complainant and urged the two notices were issued by the complainant, only to evade payments of amount due. The failure of the complainant to clear the dues within time resulted in levying charges as per the terms of the agreement and he cannot now complain or deny to make such payments. Hence he is not entitled for any reliefs.

    4. At the time of enquiry both the parties filed proof affidavits to support their pleadings and also marked Documents Ex.A.1 to Ex.A.18 and Ex.B.1.

    5. Both the counsels were heard. It is vehement contention of the counsel for the complainant that his client never committed default in payment of the dues and illegal demand was being made by the opposite parties by furnishing wrong calculation and pointed out entries relating to flexi pay amount as one such instance. He urged that inspite of repeated requests oral and in writing by way of issuing legal notice, the opposite party failed to clarify and settle the accounts. He pointed out that after December 2005 the complainant never utilized the credit card and infact requested the opposite party to cancel it. But instead of doing the same, the opposite parties are sending bills periodically, as if amount was due from him, causing mental agony and tension to his client. This conduct of the opposite parties is nothing but deficiency in service and sought for payment of compensation.

    6. The counsel for the opposite parties urged that the bills sent from time to time as per the terms and conditions of the agreement only and never any excess amount is demanded or collected from the complainant. He pleaded that flexi pay is not a liability upon the complainant but facility to pay the amount due in installments. Thus he urged that there is no deficiency in service on the part of the opposite parties.

    7. Both the parties submitted written arguments reiterating their contentions.

    8. Inview of the contentions raised by either side the point that would arise for consideration in this case :

    Whether there is any deficiency in service on the part of the opposite party and resulted in excess payment by the complainant and if so whether the complainant is entitled for compensation claimed?

    9. The fact that the complaint was issued Credit Card in the year 2003 and have been using the same and making payment periodically is not in dispute. However the greivance of the complainant is that excess amount is being charged by making wrong calculation by the opposite parties and inspite of demand for settlement of account, the opposite parties failed to do so and on the other hand continued to issue bills periodically inspite of the fact that after December 2005 the complainant never used the card. This conduct of the opposite parties, he alleges caused any amount of mental agony and tension to him.

    10. With regard to the allegation that wrong calculation are being made and excess amount was charged, a perusal of the bills Ex.A.1, Ex.A.9, Ex.A.10 and Ex.A.11, would show that apart from the debit entries of purchases and payments made by the complainant, using the Credit Card the other debit entries represent charges paid for delayed payment, interest charges on purchases, insurance premium, service tax etc., which in our view the opposite parties are legitimately entitled to levy as per the terms and conditions of the Cards issued. Obviously the only entry which cause this apprehension of excess charges being made is the item, shown as flexi pay amount in Ex.A.1 bill dated 02-10-2005 and also in Ex.A.11 dated 02-11-2005. It is contended by the counsel for the opposite parties, it is not a debit entry but only a facility given to the Credit Card user to make payments by installments. A verification of these two bills Ex.A.1 and Ex.A.11 would show this entry that is not taken into consideration either as a receipt or payment in arriving at the amount due.

    11. Though the complainant pleads that excess amount was collected from him, in our view, the debit entries in Ex.A.1, Ex.A.10 showing mercantile transactions not being in dispute and other items shows as charges were held to be in accordance with the agreement between the parties, the complainant could not establish any excess charges collected from him.

    The fact to be specifically noted is that subsequent to December 2005, the complainant never used the card, obviously in view of his apprehensions and failure to get clarifications of the various demands made against him in the bills. It is to be further noted that the last bill Ex.A.11, for November 2005, would show that only Rs.1,325-44ps is due and in that bill, there was no transaction of purchase by the complainant during October 2005. It is specific case of the complainant he did not use the card thereafter. Ex.B.1 statement of payment details filed by the opposite party would show that on 03-01-2006 an amount of Rs.1,388-62ps was paid by him. This would to a great extent lend credence to the contention of the complainant that nothing was due from him. In the absence of any material by the Bank, to contradict the same, it has to be accepted.

    12. The main complaint is that the opposite parties failed to clarify the account entries and furnish correct statement of account inspite of demands in that regard. Apart from making oral requests, the complainant has written a letter, office copy of which is Ex.A.2 dated 14-12-2005. This shows in it, he specifically mentioned that as per his account, nothing was outstanding and it also shows that he made requests in this regard to the opposite party orally and also even sent E-mail and inspite of it, the opposite parties did not verify the account. In it he made it very clear that he did not expect any further demand from them without settlement of account. Besides it, there is a Ex.A.3 legal notice dated 04-09-2006, complained of sending wrong bills of dues insipte of the fact that subsequent to December 2005 the complainant stopped utilizing the credit card. Conspicuously it is specifically mentioned about entry of Flexi pay shown in the statement of account and it is complained that it is illegal, arbitrary and capricious. It further reads that wrong statements are being sent regularly and nothing was due from him.

    This notice was sent on 11-09-2006, as can be seen from Ex.A.13 postal receipt and Ex.A.8 letter from postal superintendent would show that it was received by the opposite party, on 16-09-2006. Another notice was also got issued by the complainant on 05-12-2006 in Ex.A.6 . Ex.A.14 is the postal receipt for sending this notice. In this notice also the complaint made was that illegally certain amounts were shown as due and bills were being sent wrongly and requests for cancellation of bills was made. Inspite of these two notices, the opposite parties did not choose to clarify the dues of the complainant and never tried to explain to him that no wrong claims were being made against him. The bills subsequent to December 2005 would only show interests on alleged delayed payment. Ex.A.12 dated 12-06-2008 would show surprisingly pending balance as Rs.11,572/- and other taxes such as delayed payment interest and also total GST debited for current STMT and ultimately outstanding was shows as Rs.11,923-28ps. When the earlier Ex.A.11 bill dated 02-11-2005 shows only Rs.1,325-44ps was due and in the absence of any transactions made by the complainant using the card, how it became Rs.11,923-28ps as outstanding by 12-06-2008 is not explained by the opposite parties.

    It being the case when he was not using the card at all, still sending the bills every month showing huge amounts as due without furnishing proper account to the complainant, inspite of repeated demands in our view clearly amounts to deficiency in service. The minimum that is expected from the opposite party’s Bank is proper response to the quarries raised by the customer with regard to the bills that are being issued to him. This is absolute lack of response to the customers requests by the opposite party Bank is quite reprehensible. It is nothing surprising that there was complaint of mental agony and tension by this conduct and the complainant deserves to be compensated. In our view, payment of compensation of Rs.10,000/- by the opposite parties to the complainant would meet the ends of justice. Accordingly this point is answered.

    13. In the result, the complaint is partly allowed, directing the opposite parties to pay compensation of Rs.10,000/- (Rupees ten thousand only) to the complainant within one month and on its failure, to pay with interest @ 9% p.a., till the date of payment. It is further directed that the opposite parties shall pay Rs.2,500/- (Rupees two thousand five hundred only) as costs to the complainant. Advocate fee is Rs.2,000/- (Rupees two thousand only).
  • SidhantSidhant Moderator
    edited September 2009
    L.Abu Bakar,
    S/o Late Mohammadali,
    Aged about 35 years, Muslim,
    Residing at Society Colony,
    Madanapalle, Chittoor Dist. A.P.
    … Complainant.

    The Branch Manager,

    State Bank of India,

    Angallu Branch, Angallu,

    Kurabalakota Mandal,

    Chittoor Town & District.

    … Opposite party.

    ORDER

    This is a complaint filed by the complainant to direct the opposite party to return the gold ornaments which are pledged on 29.07.1999 and to pay Rs. 60,000/- towards damages for mental agony.


    The complainant submits that on 29.07.1999, he pledged 40gms gold ornaments to the opposite party Bank and availed a loan of Rs. 9,000/- and subsequently he repaid the loan amount. After repayment of the loan amount he was demanding the opposite party to return the gold ornaments, but the opposite party did not return the same. The complainant submits that the opposite party gave reply notice dated 12.01.2009 that the complainant is due an outstanding balance of Rs.51,840/- in connection with another loan dated 13.05.1999 and that the bank has got right of lien over the pledged jewels. The complainant submits that the loan dated 13.05.1999 for Rs. 25,000/- is nothing to do with the gold loan. The opposite party cannot keep the gold ornaments with the Bank after the loan was discharged. There is deficiency of service on the part of Bank. Hence the complaint may be allowed directing the opposite party to return the gold ornaments pledged on 29.07.1999 and pay Rs. 60,000/- towards compensation for mental agony.


    The opposite party filed written version stating that the complainant availed a loan of Rs. 25,000/- on 13.05.1999 for his business purpose. He also availed gold loan of Rs. 9,000/- on 29.07.1999 and pledged his gold ornaments with the opposite party. The opposite party submits that on 10.01.2002, the complainant cleared his gold loan account and claimed return of gold ornaments. But the opposite party refused to return the gold ornaments till the complainant clears his commercial loan availed by him on 13.05.1999. There is no deficiency of service on the part of opposite party. The complainant ought to have approached this Forum within two years from the date of refusal and denial to return the gold ornaments i.e. on 10.01.2002. Hence the complaint is barred by limitation. The bank retains the gold ornaments as security to the outstanding loan due to it. Hence the complaint may be dismissed.

    The points for consideration are:

    1) Whether the Bank can retain the gold ornaments pledged on

    29.07.1999 till the complainant discharges the earlier loan dated

    13.05.1999 for Rs. 25,000/-?

    2) Whether the complainant can claim the gold ornaments from the

    opposite party bank?

    3) Whether the complainant is entitled to damages of Rs. 60,000/- against

    the opposite party Bank?

    4) To what relief?


    The complainant filed Chief Affidavit of Pw.1 and marked Exs. A1 and A2.

    The opposite party bank filed Chief Affidavit of Rw.1 and marked Es. B1 to B6. Ex.A1 is the Office copy of legal notice dated 07.01.2009 issued to the opposite party. Ex.A2 is the reply notice dated 12.01.2009 issued to the complainant. Ex.B1 is copy of ledger account in respect of gold loan. Ex.B2 is the copy of ledger extract in respect of commercial loan availed by the complainant. Ex.B3 is the copy of Executive Petition filed by the opposite party against the complainant. Ex.B4 is proforma agreement for Hypothecation. Ex.B5 is the true copy of decree passed in O.S.No. 335/01 on the file of Principal Junior Civil Judge, Madanapalle. Ex.B6 is the true copy of the complaint in O.S.No. 335/09.


    Point Nos. 1 to 3 :-

    It is an admitted fact that the complainant availed two loans; 1) Gold loan of Rs. 9,000/- on 29.07.1999 and another personal loan of Rs. 25,000/- on 13.05.1999 for his business purpose. It is also an admitted fact that the complainant cleared his gold loan account and claimed return of gold ornaments but the opposite party refused to return gold ornaments since the complainant has not cleared his commercial loan availed on 13.05.1999.

    The learned counsel for the complainant submits that the loan dated 13.05.1999 for Rs.25,000/- is nothing to do with the gold loan. After repayment of the gold loan, he demanded the opposite party to return gold ornaments but the opposite party refused to return the same. The bank cannot keep the gold ornaments after the gold loan account was cleared. Refusing to return gold ornaments amounts deficiency in service on the part of Bank. The Bank may be directed to return the gold ornaments.

    The learned counsel for the opposite party contends that the complainant cleared the gold loan account on 10.01.2002 and demanded for return of gold ornaments. But the opposite party refused to return the gold ornaments since the complainant failed to repay another loan availed on 13.05.1999. When the opposite party bank refused to return the gold ornaments to the complainant on 10.01.2002, the complainant ought to have filed the complaint within 2 years thereafter. But the complainant filed this complaint after 6 years and the complaint is barred by time and the same may be dismissed.

    I am unable to agree with the contention of the learned counsel for the opposite party. The opposite party bank admits that the complainant cleared the gold loan account on 10.01.2002 and the bank refused to return the gold ornaments to him and retained them with it. The gold ornaments are the property of the complainant. Therefore the complainant can claim the gold ornaments at any time after he discharged the gold loan U/Sec. 60 of Transfer of Property Act. The bank is not owner of the gold ornaments. According to the opposite party bank, it retained the gold jewels as it has got right of general lien U/Sec. 171 of Indian Contract Act. So, the Bank is in possession of the gold ornaments of the complainant as a security to another loan. As and when the complainant cleared another loan, the opposite party has to return the gold ornaments. Therefore the point of limitation does not arise.

    Further the opposite party/ bank retained the gold ornaments of the complainant exercising the right of general lien U/Sec. 171 of the Indian Contract Act. As long as the bank holds the property of the complainant it is a continuous cause of action and the complainant has right to demand his gold jewels. Of course, the right of the opposite party bank U/Sec. 171 of Indian Contract Act is a different aspect which will be decided later on. Further the opposite party bank has not produced any document that it refused to return the gold loan. Even if such document is there it is not a starting point for limitation. Therefore the opposite party failed to establish that this complaint is barred by limitation.


    The learned counsel for the complainant contends that he obtained gold loan of Rs. 9,000/- by pledging gold ornaments and cleared the loan account on 10.01.2002. When he asked the opposite party/Bank to return his gold jewels, the bank refused to return them. He further submits that he obtained another loan of Rs. 25,000/- on 13.05.1999 it is still outstanding. The loan availed on 13.05.1999 is nothing to do with the gold loan. The bank cannot retain the gold ornaments in connection with another loan account. Therefore the opposite party bank may be directed to return the gold ornaments to him.


    The learned counsel for the opposite party bank contends that the bank has got right of general lien U/Sec. 171 of Indian Contract Act and can retain gold ornaments as a security to another loan amount due to the Bank by the complainant.


    I agree with the contention of the learned counsel for the opposite party bank that the bank can retain the gold jewels with it as a security to another loan. In this regard I rely on the decision reported in AIR – 1999 – A.P – 367 in Sita Vs Corporation Bank, Kakinada – wherein their lordships held as follows :-

    “The rule of law with regard to general liens is clearly laid down in the 171st section of the Contract Act. Bankers have such a lien on things bailed with them unless there is a contract to the contrary. It was for the plaintiff in this case to prove the existence of such contract………….It being incumbent on the plaintiff to show that the bank had agreed to give up the general lien to which by law a bank is prima facie entitled, I must say that in my opinion the plaintiff has failed in his proof”.


    ……..The banker’s lien contemplated by S. 171 as such is specific provision relating to banker’s lien and has an overriding effect on general provisions of S. 174 which provide for relationship of pawnee and pawnor in respect of pledged goods. The banker’s lien will carry over to such pledges and bank can retain pledged goods, if the debtor had not cleared his amount in connection with another loan.

    In the above decision their lordships held that the Banker’s have such a lien on things bailed with them unless there is a contract to the contrary. Their lordships further held that the bank can retain pledged goods. Therefore the opposite party bank retained the gold ornaments to the complainant as a security to another loan and it has not committed any deficiency in service.

    Points 1 to 3 are answered against the complainant.

    Point No. 4 :-

    In the result the complaint is dismissed.
  • SidhantSidhant Moderator
    edited September 2009
    Sri Yarlagadda Krishna Murthy (HUF), S/o Seetha Ramaiah, C/o Sri Krishna Tyres (P) Ltd., Door No.27-06-60,

    Prakasam Road, Governorpet, Vijayawada – 2.
    …… Complainant.

    1. The Branch Manager, State Bank of India, Madurai Branch, Madurai.
    2. Mr. Devasenapathi A.G.M., State Bank of India, Madurai Branch, 7A West, Veli
    Street, Madurai – 625001.
    3. M/s Fennar (India) Ltd., Rep: by its M.D. Sri R.C. Gupta, Madurai Melakkal Road,
    Madurai.
    4. Raghupathi Singhanai, Chairman of M/s Fennar (India) Ltd., Madurai Melakkal
    Road, Madurai – 625016.
    5. A.G.M. Regional Office, State Bank of India, Prakasam Road, Vijayawada.
    …. Opposite parties.

    ORDER

    1. The averments of the complaint in concise are as follows:

    That the complainant is holder of shares from M/s Fennar (India) Limited., since long and he is entitled for dividends and that the said Fennar (India) Limited., is/was not sending the dividends to the complainant as per the procedure so, the complainant filed C.D.838/98 and later those amounts were paid and there after also the said company adopted the same procedure and harassing the complainant so, he filed C.C.201/2007 for claiming dividends wherein M/s Fennar (India) Limited., admitted that it has to pay the dividends and those dividends were deposited in 1st opposite party branch, Madurai and that this Forum also gave finding that the complainant is entitled for the dividends there after, the complainant addressed a letter to the opposite parties and got issued legal notice, which were acknowledged by the opposite parties but of no avail hence, the complaint.

    2. The 1st opposite party filed version which was adopted by the opposite parties 2 and 5, the gist of it is denial of the contents of the complaint and contended that this Forum has no territorial and pecuniary jurisdiction and that there is no cause of action and that the 5th opposite party is an unnecessary party and that the complainant intentionally added 5th opposite party and thereby the complainant played fraud against these opposite parties and on the Forum hence, the complaint is bad for mis-joinder of parties and there are no any merits to allow the complaint and that these opposite parties cannot pay the amount deposited without any order from the competent Court or Forum hence, these opposite parties has not paid the amounts lying in the bank in the name of the complainant. There is no any deficiency in service on the part of these opposite parties and prayed to dismiss the complaint with exemplary and compensatory costs.


    3. The 3rd opposite party filed separate version/counter which was adopted by the 4th opposite party the essence of it is total denial of the allegations of the complaint and further averred that the opposite parties 1,2 and 5 are unnecessary parties and so the complaint is bad for mis-joinder of parties. The earlier complaints filed by the complainant vide C.Cs 201and 202 of 2007 were dismissed for lack of territorial jurisdiction and as such this complaint is not maintainable and those orders operates as Resjudicata yet to create fresh jurisdiction the complainant filed this complaint by the opposite parties supra. The 4th opposite party is an unnecessary party as he is one of the Directors. The complainant is not a consumer and so this Forum is not competent to decide the issue in dispute and that civil dispute is pending between M/s. Vikrant Tyres Limited., Vs M/s Krishna Tyres Limited., on the file of Additional Senior Civil Judge, Vijayawada vide O.S.237/1996 and that several I.As are pending in that suit and that the claim of the complainant is barred by limitation and prayed to dismiss the complaint with costs.

    4. On behalf of the complainant, the complainant himself filed an affidavit and got marked Exs.A1 to A16 and on behalf of the opposite parties 1, 2 and 5 Sri M. Devasenapathi filed an affidavit and no documents are marked and Sri R. Vijayaraghavan filed an affidavit on behalf of the 3rd opposite party and got marked Exs.B1 to B4.

    5. Heard the counsel for all.

    6. Now the point that arises for consideration in this complaint are:

    I) Whether there was deficiency in service on the part of the opposite parties 1,2 and 5?


    II) Whether this Forum has no territorial and pecuniary jurisdiction?

    III) Whether the complaint is barred by limitation?

    IV) Whether the complaint is bad for mis-joinder of parties?

    V) To what relief the complaint is entitled?



    7. Point No.4: Though the learned counsel for the opposite parties 3 and 4 submitted that the opposite party No.4 is an unnecessary party to this proceedings as he was impleaded in his personal capacity and infact he is one of the directors etc., and ofcourse the same is the submissions of the learned standing counsel for the opposite parties 1,2 and 5 and in particular that the opposite party No.5 is an unnecessary party. Where as the submission of the learned counsel for the complainant is that they are necessary parties, why because, the 1st opposite party is a nationalized bank and it is doing business for gain all over the country and one of its office is situated in Vijayawada city so, the opposite party No.5 is a necessary party and further submitted that the 4th opposite party being chairman of the company so, he is also necessary party and hence they were impleaded in the proceedings for proper adjudication and infact they are proforma parties and no specific relief is asked against them in this case. In view of the rival contentions, and as could be seen from the material on hand it is a fact that the complainant has not asked any specific relief against the opposite parties 4 and 5 and that they are proforma parties being the chairman and one of the officers of the State Bank of India further the opposite parties 1 and 2 may be one and the same as contended yet, the amount is lying with them so they are necessary parties as such there is no scope to come to a conclusion that they are unnecessary parties and so, the question of misjoinder of parties does not arise and that they are necessary parties in the circumstances of the case and so this point is answered accordingly.



    8. Point No.3 : It is the submission of the learned counsel for the opposite parties 3 and 4 that the complaint is barred by limitation and infact in para-19 of the counter and in the affidavit he contended that the case can be filed before District Forum within two years but failed to substantiate the same by cogent reasons further, the submission of the learned counsel for the complainant is that the cause of action continues since the payment of dividends is continuous process so the question of limitation does not arise and that the earlier C.C. was disposed off in the year 2008 wherein this Forum categorically held that the complainant is entitled for the dividends which were deposited in the 1st opposite party bank and that the opposite parties 3 and 4 reiterated that they have deposited the dividends in the name of the complainant with the 1st opposite party so, there is no scope to agitate again regarding limitation aspect.

    Before considering this aspect on perusal of the material on hand it is crystal clear that the complainant filed C.C..No.201/2007 and in that the opposite parties 3 and 4 herein, were the opposite parties 1 and 2 who filed version wherein they clearly admitted that the complainant is a share holder having several shares and also admitted filing of 838/1998 and payment of amount/dividends and contended that the 3rd opposite party herein deposited the entire amounts in the name of the complainant in the 1st opposite party bank that means the amount is lying in the 1st opposite party bank to which the complainant is entitled to receive or to the said amount exclusively belongs to the complainant and none else. As such the 3rd and 4th opposite parties have no right to agitate again and again the issue that of limitation aspect and as it is there is no scope to give any priority to the submissions of the learned counsel for the opposite parties 3 and 4 and further the opposite parties 1,2 and 5 have no right to question the complainant with regard to limitation as the amount is lying with them so, it can be safely presumed that the cause of action is continuing and that the complaint is in time and accordingly this point is answered.



    9. Point No.2: The contention of the learned counsel for the opposite parties 3 and 4 is that the complainant split the claim and filed the complaint to create pecuniary jurisdiction and that this Forum has already gave finding in C.C.No.201/2007 about territorial jurisdiction and that this Forum has no territorial jurisdiction and so this complaint is not maintainable and prayed to dismiss the same. Where as the submissions of the learned counsel for the complainant is that, that the complainant is not asking any relief against the opposite parties 3 and 4 and that the complainant asked relief against the opposite parties 1,2 and 5 and that the opposite parties 3 and 4 are proforma parties as such the question of territorial jurisdiction does not arise, why because, the 5th opposite party is stationed in Vijayawada city which is one of the branches of State Bank of India doing business for gain etc., so this Forum has ample jurisdiction and that the complainant approached and addressed letters to the 1st opposite party but no reply so, it creates territorial and pecuniary jurisdiction since the amount claimed is within the limits of this Forum.

    In view of the rival contentions and as could be seen from the material on hand the opposite parties 3 and 4 have no right to question the jurisdiction aspect, why because, they are added as proforma parties and the main relief asked by the complainant is against the 1st opposite party only with whom the 3rd opposite party deposited the dividends that of the complainant as such the plea that of territorial or pecuniary jurisdiction taken by the opposite parties 3 and 4 has no legs to stand. Further the pecuniary jurisdiction of this Forum is Rs.20,00,000/- and the claim is below 20 laksh, so much so the opposite party No.5 is stationed in Vijayawada city even otherwise also State Bank of India is a nationalized bank and it is having branches all over India (Nook and corner) so, the question of territorial jurisdiction does not arise as per the Act, Section (d) (II) “[hires or avails of] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose”.

    And Section 2 (o) “service” means service of any description which is made available to potential [users and includes but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both [“housing construction,”] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; and Section 11 (2) (a) ‘A complainant shall be instituted in a District Forum within the local limits of whose jurisdiction’, “the opposite party or each of the opposite parties, where there are more then one, at the time of the institution of the complaint, actually and voluntarily resides or [carries on business or has a branch office or] personally works for gain”.



    10. In view of the above there is force in the arguments of the learned counsel for the complainant and that this Forum is not inclined to give any precedence to the pleas of the learned counsel for the opposite parties 3 and 4. That apart as already noted supra, one of the branches of opposite party No.1 is situated in Vijayawada city (Opposite Party No.5) so this Forum has territorial jurisdiction as per the Act and accordingly this point is answered.



    11. Point No.1: As could be seen from the material on hand there is no dispute that the complainant is the owner of many shares and that he is entitled for dividends. The opposite parties 3 and 4 are doing business or what ever it may be and earning for that they have floated shares and collected money from the individuals (share holders) and serving them by parting with profits. As a matter of fact and in general it is said and state that the dividends has to be sent to the individuals wherever the share holders/beneficiaries resides, but here in this case it is contra, though, the opposite party No.3 fully aware of the correct address of the complainant herein and the reasons best known to it.

    Further, instead of sending the dividends directly to the complainant, opposite party No.3 deposited the same with the opposite party No.1 without intimation what so ever to the complainant thereby, the 3rd opposite party washed of its hands and there after the opposite party No.1 came into picture being custodian of amount of the complainant herein so, there is clear relationship between the complainant and the opposite parties 1,2 and 5 at length. The same is evident from the pleadings and even in the earlier C.C.201/2007 wherein the 3rd opposite party as opposite party No.1 clearly admitted that it has deposited the amounts with the 1st opposite party ofcourse the reasons mentioned therein as unclaimed which is incorrect and against the principles of natural justice, why because, they know the whereabouts of the complainant yet, it is not the question to be considered, the core question is whether there was deficiency in service on the part of the 1st opposite party in particular and the opposite parties 2 and 5 at length? Since, the opposite parties 3 and 4 are only proforma parties as they have already deposited the dividends of the complainant in the bank as already noted supra.



    12. For the above there is abundant and clear proof with regard to deposit of dividends in the 1st opposite party bank one such is Ex.A16 so, there is no need to consider Exs.B1 to B4 filed on behalf of the opposite parties 3 and 4 those can be considered when the dispute is in between the complainant and the 3rd and 4th opposite parties. Now there is no dispute between them as such they are (Exs.B1 to B4) almost unnecessary documents to the proceedings. Further more, the complainant after knowing that the dividends were deposited in the 1st opposite party bank he got issued legal notice (Ex.A2 office copy) to the 1st and 2nd opposite parties herein along with 3rd and 4th opposite parties and they received under Exs.A3 and A4 but no reply from the bank authorities that itself is sufficient to come to a conclusion that there is clear deficiency in service on the part of the 1st opposite party much less on the 2nd opposite party.

    Though, the counsel on behalf of the opposite parties 1, 2 and 5 contended that the complainant is not entitled to receive the dividends etc., basing on the evidence in C.C.201/2007 which is not correct, why because, in that order the finding of this Forum is that, that the complainant is entitled for the dividends as he is legally entitled to so, the complainant is entitled for the dividends/amount and that the amount is lying with the 1st opposite party so, it is the duty of the 1st opposite party to pay the amounts to the complainant on receipt of letters or atleast after receipt of legal notice but the 1st opposite party kept mum, which amounts to deficiency in service or to say that it had adopted to unfair trade practice. Further, the averments of the legal notice are so clear that the complainant addressed letters on 12.07.2008 and on 27.03.2008 and even inspite of repeated demands and telephone calls the 1st opposite party failed to answer and finally the complainant also asked for compliance and also averred his intention to approach proper Forum yet no reply/response.

    The other aspect raised by the counsel for the 3rd and 4th opposite parties with regard to civil dispute is nothing to do with the present proceedings since, the civil dispute is between M/s Vikrant Tyres Limited, Vijayawada and M/s Krishna Tyres so that the suit is not a hurdle and no proof also filed about the pendency or otherwise attachment etc., so, no need to give any precedence to that plea. That apart, the letter addressed by the complainant is unanswered or unattended by the 1st opposite party and the proof filed by the complainant vide Ex.A10 and A11 etc., clinchingly show that the complainant is demanding payment from the 1st opposite party and that the 1st opposite party also sent a letter with balance and the contents of it also clear that the amount was deposited in the name of the complainant herein so, undisputedly the amount belongs to the complainant as such the complainant is entitled for the same, since the 1st opposite party failed to send the same on the request of the complainant means it amounts to deficiency in service. Further more, the reply statement/version is nothing but adoption of the version of the opposite parties 3 and 4 which is not correct by the 1st opposite party, why because, it bells that of sailing with the opposite parties 3 and 4 and gives suspicion/bonafidies/independency of opposite party No.1 even otherwise also in the affidavit Sri M. Devasenapathi categorically admitted in para-6 page-3 “we are maintaining the dividend account in the name of the 3rd opposite party company” which is contra.

    In view of Ex.A16 further averments of the affidavit discloses unless there is written mandatory we cannot make any payment either to the complainant or to any other person muchless there should be an order from a competent court or Forum enabling us to debit the amount to 3rd opposite party and make payment in the absence of such order or mandatory, we cannot act upon and comply with the demands of the complainant which are also not correct in the light of recitals in Ex.A16 wherein it is categorically noted name of Y. Krishna Murthy the complainant herein so, no need to give any priority to the version/affidavit of the 1st opposite party. So, no need to discuss at length in the circumstances of the case and on the whole the complainant has proved deficiency in service on the part of the 1st opposite party in particular and the 2nd opposite party at length and so, the complainant is entitled for the relief and accordingly this point is answered.


    13 Point No.5: In the result the complaint is allowed and the opposite parties 1 and 2 (Jointly and severally) are directed to pay Rs.9,64,000/- (Rupees nine lakhs and sixty four thousand) only (the dividends deposited with it) to the complainant with interest at 9% p.a., from the date of its deposit till the date of payment and do pay Rs.2,000/- (Rupees two thousand) only towards costs. Complaint against opposite parties 3 and 4 is dismissed but no costs. Since no specific relief is clamed against the 5th opposite party no need to grant any relief against 5th opposite party. Rest of the claim if any claimed by the complainant is rejected. Time for compliance one month.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Ajith Kumar.S., Manoj Bhavan, Madhavapuram, Titanium ` P.O., Thiruvananthapuram-21. Now residing at Vaishnavam, Manikanteswaram-P.O., Kuzhivila, Vettikonam, Vazhayila, Thiruvananthapuram.

    Opposite parties:
    1.

    The Manager, SBI CPSL, P.O.Bag No.24, GPO, New Delhi-110 001.
    2.

    The Manager, SBI Cards, T.C.14/2132, Behind Saphalyam Complex, Near Jubilee Hospital, Thiruvananthapuram-34.

    ORDER

    The complainant is Ajith Kumar.S and his grievance against the opposite parties are the following: The complainant had availed credit card facility from SBI cards and the said credit card was issued by the opposite parties to the complainant on 22/7/2004 vide credit card No.4006676014662129. Eventhough the complainant promptly paid the outstanding amount, the opposite parties were reluctant to issue statement showing the balance amount due to them, the complainant contacted the opposite parties several times to provide the statement of account to the complainant, but the opposite parties did not provide the same.

    Due to the inaction and non-co-operation attitude adopted by the opposite parties, the complainant decided to close the credit card account. As and when the complainant contacted the opposite parties to close the said account, the opposite parties informed the complainant that he has to pay late fee of Rs.3,400/- to the opposite parties. Accordingly, the complainant remitted the above said amount by way of cheque bearing No.189528 to the opposite parties. The said cheque was collected by the opposite parties on 13/9/2005. Even after that the opposite parties never cared to close the credit card account of the complainant. The opposite parties illegally realized Rs.31,000/- from the complainant on different occasions and the opposite parties failed to close the credit card account. Hence this complaint for refund of the amount excessively collected from the complainant along with compensation and costs.

    2. The 2nd opposite party has filed their version for and on behalf of the 1st opposite party also contending as following: On 16/8/2005, the complainant had an outstanding dues of Rs.35,215/-. Against this amount the complainant had paid only the minimum amount due ie. Rs.3,400/- on 13/9/2005, that on the next billing date ie.on 16/9/2005, the outstanding due was Rs.33,383.94/-, the complainant has not paid any amount. The complainant made a total payment of Rs.27,000/- by way of two cheques dated 22/10/2005 & 7/11/2005 (Rs.25,000/- & Rs.2,000/- each) as against the total outstanding dues of Rs.32,721.07 as on 16/10/2005, that the balance amount due was Rs.6,065/- as on 16/11/2005. While so, the opposite parties offered Rs.12,000/- as 'Easy Money', that this amount was declined by the complainant and he did not encash and the same was returned.

    Hence the same amount is revised on 18/1/2006 and the balance amount due was Rs.5,399.22 as on 16/1/2006. The complainant has not made any payment till 16/4/2006. So the total outstanding was Rs.6,932.22 as on 16/4/2006. Against this outstanding dues the complainant made a payment of Rs.2,700/- on 25/4/2006 and the balance due was Rs.4,397.65/-. The complainant did not make any payment after 25/4/2006. Now the total outstanding amount as on 16/3/2007 is Rs.8,657.33 including all the financial changes due to the non-payment. The opposite parties had never agreed to write off the dues, that the 2nd opposite party had never agreed the complainant that on paying Rs.2,000/- the credit card account will be closed.

    The complainant had defaulted the payments in time and as on 16/3/2007 Rs.8,647.33 is still due from the complainant. The credit card account can be closed only when he remits the full balance amount due with other financial charges as on the date of payment. There is no deficiency in service or unfair trade practice on the part of the opposite parties. As and when he pays off the dues with interest and other financial changes, then only the opposite parties will close his credit card facility and issue the final settlement letter. The opposite parties are entitled to receive the amount legally due from the complainant. Hence opposite parties pray for dismissal of the complaint.


    3. The complainant has filed affidavit in lieu of chief examination and marked Exts.P1 to P5. The complainant has not been cross examined and hence his affidavit stands unchallenged. The opposite parties have neither filed any affidavit in support of their contention nor filed any documents.

    4. The points that would arise for consideration are:

    1.

    Whether the complainant is liable to pay the amount claimed by the opposite parties?
    2.

    Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
    3.

    Reliefs and costs?

    5. Points (i) to (iii) : There is no dispute with regard to the fact that the complainant is the holder of credit card bearing No.400667601 4662129 issued by the opposite parties. According to the complainant, even after the clearing of entire dues, the opposite parties failed to close the credit card account and besides this the opposite parties have realized excess amount from the complainant on different occassions. The opposite parties contend in their version that it was the complainant who had defaulted the payments in time and as and when the complainant pays off the dues with interest, the opposite parties will close the credit card facility. The complainant, in support of his complaint, has produced documents Exts.P1 to P5. The complainant as PW1 has not been cross examined and hence his sworn statement stands uncontroverted.

    As per Ext.P3 dated 10/9/2005 and Ext.P2 dated 19/10/2005, it is evident that the complainant has paid an amount of Rs.3,400/- and Rs.25,000/- respectively to the opposite parties. The complainant alleges that the payment of said amount was towards full and final settlement of the outstanding balance due in the said account and the complainant had thereafter requested for closure of the said account by the opposite parties, which is revealed by Exts.P4 & P5. In the receipt dated 21/4/2006 issued by the opposite parties for Rs.2,700/- it has been endorsed that 'Full settlement 0 balance'. This document has not been challenged by the opposite parties. Opposite parties have not produced any documents to support their contention though they have contended in their version that the monthly statements are produced.

    The opposite parties have contended in their version that the total outstanding amount as on 16/3/2007 is Rs.8657.33 including all the due financial charges. But the opposite parties have not produced any records to substantiate the same. As the opposite parties have not produced any documents and since the opposite parties have not challenged the documents produced by the complainant, we are of the view that the allegations levelled against the opposite parties are true. Having received the entire amount from the complainant and after issuing Ext.P1, the opposite parties were duty bound to cancel the credit card of the complainant.

    6. On the basis of documents and affidavit on record, we find that the opposite parties are guilty of deficiency in service and unfair trade practice.

    In the result, the complaint is allowed and the complainant is found not liable to remit any further amounts to the opposite parties. The opposite parties shall stop such unfair trade practice and shall close the account of the complainant with immediate effect. The opposite parties shall also pay Rs.3,000/- (Rupees three thousand only) as compensation and Rs.2,000/- (Rupees two thousand only) as costs to the complainant within a period of one month of receipt of the order, failing which the above amount shall carry interest @ 12%.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    Smt. Jaisheela W/o Sahdevappa Raipalli,

    Age: 46 years, Occ: Head Mistress

    Working at Govt. Practicing High School,

    Resident of H.No.50, Gampa Layout,

    Shahabad Road, Post: Rajapur,

    Gulbarga-5.

    // Versus //

    OPPONENT:- 1) The Branch Manager,

    State Bank of India,

    Station Bazar Branch,

    M.S.K. Mill Road,

    Opp. Govt. Printing Press,

    Gulbarga.

    2) The Chief Manager,

    State Bank of India,

    Super Market Main Branch,

    GULBARGA.


    3) The General Manager,

    State Bank of India,

    St. Marks Road,

    BANGALORE.

    : : O R D E R : :

    1. This complaint is filed by Smt. Jaisheela W/o Sahdevappa Raipalli, R/o Gulbarga against O.Ps. u/s.12 of Consumer Protection Act 1986 praying that, direction may be given to O.Ps. to pay compensation of Rs.23,500/- in the interest of justice.

    2. The brief facts of the case of the complainant are as under;

    Complainant is customer of O.P.No.1 having S.B. A/c.No.10215087860, accordingly O.P.No.1 has issued ATM card brg.No. 6220180786400015511 in the name of complainant. It is submitted that, Complainant is Govt. Servant working as Head mistress at Govt. Practicing High School at Gulbarga and she is respectable women in the society and she is getting handsome salary from Karnataka State Govt. since the date of opening of S.B. Account in the O.P.No.1 bank, the same account is operating by complainant regularly and complainant withdrawing amount from the S.B. Account by using ATM card issued by O.P.No.1 bank.

    It is submitted that, complainant has withdrawn a sum of Rs.100/- on 10.6.2008 at 18.04 hours by using ATM card through ATM machine which is installed by the O.Ps. After withdrawn of Rs.100/-, the ATM machine has delivered a printed report showing that available balance of Rs.8,538.21/- in the S.B. Account of the complainant and immediately at 18.06 hours complainant has verified balance enquiry of her account by using ATM card, the ATM machine of O.Ps. has shown available balance of Rs.3,928.21/- and subsequently at 18.07 hours complainant operated one more operation of the same ATM machine, and verified the available balance of her account, the ATM machine of O.Ps. has shown a balance of Rs.8,538.21/- obviously. The aforesaid three operation operated by the complainant are demonstrating that the ATM machine of the O.Ps. have shown distinguish statement of S.B. Account of complainant.

    It is submitted that, complainant has operated her ATM card on 16.5.2008 at 15.23 hours under ATM ID. SIAN00330401 through ATM card No.6220180786400015511 and withdrawn a sum of Rs.5000/- from the S.B. Account No.10215087860 as soon as withdrawal is completed the ATM machine of the O.Ps. has delivered the printed statement of account as a customer advise dated 16.5.2008 has shown the available balance of Rs.9,173.21/- when the said withdrawal has made by the complainant. The credit balance of complainant S.B. Account was Rs.14,173.21/-. It is submitted that as mentioned above, complainant drawn Rs.5,000/- and after withdrawal the available balance was Rs.9,173.21/- at 15.23 hours. Subsequently at 15.24 hours, complainant inserted her ATM card in the ATM machine of the O.Ps. and operated the machine for withdrawal of Rs.4,000/- operation completed, complainant waiting for amount which has to come out from the machine as command given by the complainant, but suddenly electricity power of the ATM machine has cut off, withdrawn amount Rs.4,000/- has not come out from the ATM machine, immediately complainant has informed to the helpline phone number 08026599990 of the ATM machine concerned through her mobile No.9886302446.

    The helpline officer advised to the complainant to wait till power would come back, after few minutes power has come back but ATM machine not delivered Rs.4,000/- and also the machine not delivered print out of the customer advise of the function operated by the complainant immediate after 15.23 hours. It is submitted that as mentioned above, complainant verified the balance of her S.B. Account through the ATM machine by way of putting the ATM card in the machine, complainant operated the ATM machine to verify the balance of her S.B. Account, accordingly the ATM machine has given printed report as customer advise at 15.45 hours with ATM ID SIAN20022301 and shown available balance of Rs.5,173.21/-. Immediately complainant informed the above said incident to the helpline contact of ATM machine and given written complaint to SBI Station Bazar as well as Super Market Branch Gulbarga. But O.Ps. not responded properly and acted negligently and deficiently. It is submitted that, on 23.5.2008 at 12.59 hours, complainant operated ATM card by way putting inside the machine and withdrawal a sum of Rs.4,000/- under ATM ID SIAN00330402 through ATM card No.6220180786400015511 from the S.B. Account of complainant, the ATM machine shown available balance of Rs.1,173.21/- through customer advise after withdrawal of Rs.4,000/- on 23.5.2008. It is submitted that in view of the aforesaid withdrawal and balance inquiry made by the complainant pertaining to her Saving Bank Account, the ATM machine has given distinguish statements and wrong statements.


    It is submitted that the ATM machines are not working properly and O.Ps. have installed defective machines. It is submitted that, when ATM machine of the O.Ps. not delivered the printed customer advise of the operation made by complainant on 16.5.2008 at 15.24 hours, neither machine delivered amount nor delivered the printed matter, under such circumstances, O.Ps. have confirmed the withdrawal which has failed on 16.5.2008 at 15.24 hours, the withdrawal which was not completed on 16.5.2008 made by complainant is falsely confirmed by O.Ps. which is deceptive practice, it amounts to deficiency of service. It is submitted that, due to deficient and negligent act of O.Ps., complainant has suffered and sustained the following loss which are given below;

    1) Rs.10,000/- -- Loss of benefit of scheme.

    2) Rs.10,000/- -- Mental agony

    3) Rs.3,500/- -- stationary, phone bill, petrol cost of proceeding.

    Complainant has issued legal notice on 4.7.2008. But O.Ps. have not replied to the said notice. Thus, there is a deficiency of service on the part of O.Ps. It is submitted that, the above facts constitute the cause of action. This Hon’ble Forum have got jurisdiction to entertain the complaint. Under these circumstances, it is submitted that, complaint may be allowed and direction may be given to O.Ps. as prayed in the complaint.

    3. After registering the case, notices were issued to O.Ps After serving the notices, O.Ps. appeared through counsel and filed Written Statement contending that, it is true that, complainant is the customer of O.P.No.1 bank. It is also true that, complainant is having S.B. Account brg.No.10215087860. Further it is also true that, the ATM card brg.No.6220180786400015511 was issued to complainant. It is true that, complainant might have used the S.B. Account as well as ATM card for operation of withdrawal or deposit of the amount. In reply to para No.5 & 6 of complaint, complainant is free to operate the ATM machine any time towards withdrawal of amount.

    Hence as and when the complainant used the ATM machine, the transaction are entered in the S.B. Pass Book and further the complainant is at liberty to seek the balance confirmation by way of obtaining the statement of account from the concerned bank. Hence all allegations made in the said para are all denied specifically for want of knowledge. In reply to para No.7 of complaint, it is true that, complainant operated the ATM machine and has withdrawn Rs.4,000/-, but it is specifically denied that, the amount has not come out from the ATM machine. The said transaction was completed and the complainant has withdrawn the amount of Rs.4,000/- on 16.5.2008 and the balance amount shown of Rs.5,173.21ps is as per amount held by the complainant in her account, after the transaction made by the complainant with the ATM machine. In reply to para No.8, 9, 10 and 11 of complaint, the ATM machine is installed to help the customer of the Bank for easy transaction of money.

    As such as and when the customer of the Bank makes any transaction, after the transaction, the information is provided by the machine by way of small slip giving the status of the account after the transaction. The entire process after the transaction is just to provide the information to the customer. The customer further can verify the small slip with the S.B. Account Pass Book or even by obtaining the statement of account certified by the Branch Manager. In this case also, complainant as and when transacted with the ATM machine, he was informed his status of account by way of small slip issued by the ATM machine on preliminary information, the complainant had every right to approach the Branch Manager to obtain the statement of account and update the pass book for further clarification. Hence, the other contents of the said paras and allegations are false and baseless, hence denied.

    In reply to para No.12, 13 & 14 of complaint, it is false to say that, complainant requested to pay the amount of Rs.4,000/-. It is further false to say that, the ATM machine has failed to deliver the money of Rs.4,000/-, the Bank has ample proof to show that the machine has delivered the amount to complainant in the same transaction. Hence there is no defect in the machine nor there is any deficiency of service on the part of O.P. Bank. There is no cause of action. Under these circumstances, it is submitted that, complaint may be dismissed with costs.

    4. To prove the claim of complainant, herself was filed affidavit by way of evidence who examined as PW-1, documents got marked Exh.P-1 to P-18 O.Ps. also filed affidavit by way of cross of PW-1. Complainant side evidence closed. O.Ps. also filed affidavit by way of evidence, who examined as RW-1, document got marked Exh.R-1. Complainant also filed affidavit by way of cross of RW-1. O.Ps. side evidence closed.

    5. Heard the arguments from both sides.

    6. The points that arises for our consideration are;

    (1) Whether there is a deficiency of service on the part of O.Ps?

    (2) What Order?

    7. Our answer to the above points are as under:-

    (1) Yes.
    (2) As per final order for the following;

    : : R E A S O N S : :

    8. Point No:1 :

    We have carefully perused the evidence of complainant, affidavit and documents. Complainant case is that, she is customer of O.P.No.1 having S.B. A/c.No.10215087860, accordingly O.P.No.1 issued ATM card brg.No. 6220180786400015511 in the name of complainant. Further she stated in the complaint that, on 16.5.2008 at 15.24 hours, she inserted her ATM card in the ATM machine belonging to O.Ps. and operated the machine for withdrawal of Rs.4,000/-, operation completed, complainant waiting for amount which has to come out from the machine as command given by the complainant, but suddenly electricity power of the ATM machine has cut off, withdrawn amount Rs.4,000/- has not come out from the ATM machine, immediately she informed to the helpline phone number 08026599990 of the ATM machine concerned through her mobile No.9886302446.

    The helpline officer advised to the complainant to wait till power would come back, after few minutes power has come back but ATM machine not delivered Rs.4,000/- and also the machine not delivered print out of the customer advise of the function operated by the complainant immediate after 15.23 hours. She further stated in the complaint that, she verified the balance of her S.B. Account through the ATM machine by way of putting the ATM card in the machine, complainant operated the ATM machine to verify the balance of her S.B. Account, accordingly the ATM machine has given printed report as customer advise at 15.45 hours with ATM ID SIAN20022301 and shown available balance of Rs.5,173.21/-. Immediately complainant informed the above said incident to the helpline contact of ATM machine and given written complaint to SBI Station Bazar as well as Super Market Branch Gulbarga. But O.Ps. not responded properly and acted negligently and deficiently.

    Further she deposed in her complaint that, ATM machines are not working properly and O.Ps. have installed defective machines. Hence, there is a deficiency of service on the part of O.Ps. She was examined as PW-1, got marked documents Exh.P-1 to P-18 they are Exh.P-1 to P-3, P-7 to P-9 are ATM Customer Advise of SBI, Exh.P-4 is Request details issued by SBI Group Service Desk on 29.5.2008, Exh..P-5 is letter issued by complainant in favour of O.P.No.2, Exh.P-6 is letter issued by O.P.No.2 in favour of O.P.No.1, Exh.P-10 is statement of account which was issued by O.P.No.1 bank, Exh.P-11 is itemized calls report issued by Vodafone, Exh.P-12 is legal notice which was issued by complainant in favour of O.Ps., Exh.P-13 to P-15 are postal acknowledgements, Exh.P-16 to P-18 are RPAD cards. We also perused the affidavit of O.Ps. who deposed in their evidence that, they admitted that, complainant is the customer of O.P.No.1 bank vide S.B. Account brg.No.10215087860 & the ATM card brg.No.6220180786400015511 was issued to complainant.

    It is also admitted by O.Ps. that, complainant operated the ATM machine and has withdrawn Rs.4,000/-, but they denied that, the amount has not come out from the ATM machine. The said transaction was completed and complainant has withdrawn the amount of Rs.4,000/- on 16.5.2008 and the balance amount was also shown of Rs.5,173.21ps is as per amount held by the complainant in her account, after the transaction made by the complainant with the ATM machine. They also examined as RW-1 document got marked Exh.R-1. On going through the document Exh.R-1 which is statement of account wherein it was mentioned that, Rs.4,000/- was debited from the account of complainant. The case of complainant is that, she inserted the ATM card in the machine and tried to withdraw Rs.4,000/-, operation completed, but amount has not come out.

    This fact is not proved by the O.Ps. Mere filing of the statement of account that, complainant has taken Rs.4,000/- by operating the ATM machine, it will not be considered. But case of complainant is that, she operated the ATM machine, meanwhile the current failed, amount not come out from the ATM machine. In this case, O.Ps. also not proved that, complainant has taken the amount. Without adducing cogent and convince evidence this aspect cannot be considered. On gong through the facts and circumstances of this case, if we award Rs.10,000/- it will meets ends of justice. On going through the evidence of complainant, affidavit and documents, in our considered opinion, there is a deficiency of service on the part of O.Ps., accordingly we answered this point in affirmative.

    9. Point No.2 :

    In view of the discussions made on point No.1, we also answered this point in affirmative. Hence we proceed to pass the following;

    : : O R D E R : :

    Complaint is partly allowed. Complainant is entitled to recover a sum of Rs.10,000/- with interest @ 6% per annum from the date of filing of this complaint, till the date of realization from O.Ps. Further complainant is entitled to recover a sum of Rs.1,000/- towards mental agony and cost of this proceedings from O.Ps.
  • SidhantSidhant Moderator
    edited September 2009
    V.Subramanya,

    S/o Venkatachalapathy,

    Aged about 56 yrs,

    Residing at No.240,

    Venkatapura Teacher’s Colony,

    Bangalore – 560 034.

    …. Complainant.

    V/s


    The Manager,

    State Bank of India,

    ISRO Branch,

    Airport Road,

    Vimaanapura,

    Bangalore – 560 017.

    …. Opposite Party

    -: ORDER:-

    This complaint is for a direction to the Opposite Party to return the original documents of title and to pay compensation of Rs.5,00,000/- (Rs.Five Lakhs Only) towards deficiency of service, mental agony and hardship caused to the complainant.

    2. The case of the complainant is as under:-

    The complainant had availed loan of Rs.2,50,000/- from the Opposite Party by creating equitable mortgage in respect of the house property bearing No.240, Kendriya Upadhyara Sangha, Jakkur, Bangalore and had furnished the sale deed, Katha, approved plan and estimate to the Opposite Party. He cleared the loan with interest in the month of June-2003. As such it is the duty of the Opposite Party to return the documents furnished at the time of availing the loan.

    In spite of repeated demands and requests, the Opposite Party failed to return the documents. When the original documents of title are not available, the value of the property is going to be depreciated. The intending purchasers are likely to suspect the title of the property. In such event, the complainant has to face severe consequences for no fault on his part. He wrote the letter dated 14/11/2008 requesting the Opposite Party to return the documents as he has cleared the entire loan. In spite of receipt of the letter, the Opposite Party did not turn-up to return the documents. He also issued legal notice dated 24/11/2008 calling upon the Opposite Party to return the documents, but the Opposite Party neither returned the documents nor gave any reply to the notice. Hence, the complaint.

    3. In the version, the contention of the Opposite Party is as under:-

    The complainant had availed the loan of Rs.2,50,000/- from the Opposite Party Bank agreeing to re-pay the same in monthly equated installments by creating equitable mortgage by depositing original title deeds such as sale deed, Katha, approved plan and estimation in respect of the property bearing No.240, Kendriya Upadhyara Sangha, Jakkur, Bangalore. The complainant cleared the loan on 09/06/2008 and the Bank has issued clearance certificate. But the original title deeds in respect of the said property were misplaced and are not available immediately to hand over the same to the complainant in spite of due diligence of the Bank. The Bank requested the complainant to grant some more time to trace the original documents.

    In order to show its diligence, the Bank has also obtained certified copies of the documents from the Competent Authority and the same is kept ready to hand over to the complainant. But the complainant did not turn-up to collect the same and has approached this Forum with intention to make un-lawful gain. As such there is no deficiency of service on the part of the Opposite Party. The complainant is well aware that the Bank is doing its best with due diligence to search and trace the original documents. There is no basis for claiming damages from the Bank as the complainant has not suffered any loss. The complainant has not made out a prima-facie case against the Opposite Party. Hence, the complaint is liable to be dismissed.

    4. In support of the respective contentions both parties have filed affidavits and have produced copies of documents. We have heard the arguments on both side.

    5. The points for consideration are:-

    1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?

    2. Whether the complainant entitled to the relief prayed for in the complaint?

    6. Our findings are:-

    Point No.1 : In the Affirmative

    Point No.2 : as per final order, for

    the following:-
    -:REASONS:-

    7. There is no dispute that the complainant had availed loan of Rs.2,50,000/- by the Opposite Party Bank by creating equitable mortgage by deposit of title deeds in respect of the immovable property described in the complaint. It is also not in dispute that the complainant has cleared the entire loan due to the Bank. The complainant claims to have cleared the loan in June-2003 whereas the Opposite Party has stated that the complainant cleared the loan on 09/06/2008. However, the fact remains that long prior to the date of the complaint, the complainant had cleared the entire amount due to the Bank. When once the loan is cleared, the Bank is bound to return the original documents of title pertaining to the property deposited with it by the borrower. Alleging non return of the documents, the complaint is filed on 21/02/2009 about eight months after clearing the loan. It is the contention of the Opposite Party that the documents deposited by the complainant are misplaced and the same are not yet traced.

    It cannot be believed that in spite of best efforts, the Bank is unable to trace the documents for nearly eight months from the date of clearing the loan on 09/06/2008. it is further contended by the Opposite Party that it has obtained the certified copies of the documents, but the complainant failed to collect the same. The certified copies of the document cannot replace the original. In case of loss of original documents, there is possibility of depreciation in the value of the property in case the complainant intends to dispose of the same. However, it is not the case of the complainant that he is intending to dispose of the property. It appears in the first instance, the complainant had availed housing loan from the Department and when he intended to raise loan with the Opposite Party by creating second mortgage over the same property, the concerned Department forwarded the documents of title to the Bank through letter dated 10/11/1999 requesting the Bank not to part with the said documents with anybody.

    After the complainant cleared the Department loan also, the concerned Department addressed the letter dated 11/03/2008 requesting the Bank to hand over the documents of title to the complainant directly, stating that the complainant has cleared the housing advance raised with them. Therefore, admittedly the complainant has cleared the housing loan availed from the Department as well as the loan availed from the Opposite Party Bank. When once the loan is cleared it is the duty of the Opposite Party to return the documents of title to the complainant. The failure on the Opposite Party Bank for more than eight months from the date of clearing the loan amounts to deficiency in service. In similar circumstances, in the decision reported in IV (2005) CPJ 137 in the case of C.L.KHANNA VSS. DENA BANK , the Hon’ble National Commission directed the Bank to publish an advertisement in the newspaper with regard to the loss of title deed and to pay compensation of Rs.1,00,000/- to the complainant for deficiency in service.

    The Hon’ble National Commission has also observed that it would not be difficult to sell the property in a case of loss of registered gift deed if proper advertisement is given by the Bank that the original gift deed is lost and that the property is free from any encumbrances. In the case on hand it is not the contention of the Opposite Party that the original documents of title deposited by the complainant are lost. It is only contended that the documents are misplaced and the Bank is making diligent efforts to trace the same. In these circumstances, in our opinion it is necessary to grant some more time to the Opposite Party Bank to trace and hand over the original documents of title to the complainant and in case the documents are not traced, issue public notice regarding the loss of the documents of title and to furnish certified copies to the complainant. Considering the facts and circumstances of the case we also deem it proper to grant compensation of Rs.20,000/- to the complainant on account of deficiency in service on the part of the Opposite Party. In the result, we pass the following:-

    -:ORDER:-

    1. The complaint is allowed.

    2. Within four months from the date of this order, the Opposite Party shall trace the original documents of title deposited by the complainant and return the same to the complainant. If the documents are not traced within four months, it shall issue public notice regarding loss of documents making it clear that the property in question is not encumbered in any manner and hand over the certified copies of the documents to the complainant. The Opposite Party shall also pay compensation of Rs.20,000/- to the complainant.
  • Advocate.soniaAdvocate.sonia Senior Member
    edited September 2009
    P. Vijaya Kumar,

    S/o. R. Padmanaban.

    No.6, Jothi Raman Avenue, 2/194, Complainant

    Shanmugam Nagar Extn.

    Mannivakkam, Chennai-48.



    Vs



    1. The Branch Manager,

    State Bank of India,

    Ashok Nagar Branch,

    Chennai – 600 083. Opposite Parties



    2. The Regional Manager,

    Regional Offie,

    State Bank of India,

    Parrys Corner,

    Chennai – 600 001.

    ORDER


    The complainant is a savings Bank account holder of the 1st opposite party bank. He deposited a cheque in the 1st opposite party bank on 21.04.2006 for an amount of Rs.50,000/- dated 24.01.2006. But, after a week, the complainant found that the amount has not been credited to the complainant’s account. When contacted the 1st opposite party informed that the cheque was sent for collection to the complainant’s Provident Fund office, Ludiana, and it will be credited soon.

    But, even after two months, the cheque was not cleared. The 1st opposite party informed the complainant by letter dated 02.06.2006 that the chdeqe was lost in transit. When contacted the Provident Fund Commissioner, the complainant was asked to file indemnity bond. Accordingly, the complainant filed indemnity bond but the amount was not credited in his account. Hence, the opposite parties committed deficiency in service. Therefore, the complainant has filed this complaint for recovery of Rs.50,000/- being the provident fund amount of the complainant and also payments of compensation of Rs.2,00,000/- by both the opposite parties for mental agony and Rs.10,000/- as cost of the complaint.

    2. The first opposite party filed version which was adopted by the 2nd opposite party. The main averments of the version are briefly as follows: The cheque deposited by the complainant for Rs.50,000/- on 24.01.2006 was sent for collection by UAF Courier. But the Courier has lost the cheque in transit. The loss was not due to negligence of the opposite party. The Provident Fund office at Ludhiana was contacted and also obtained indemnity bond from the complainant. On receipt of payment from Ludhiana Branch, the amount was credited. They had also offered interest for delayed payment. The 2nd opposite party is an unnecessary party. Hence, there is no deficiency in service on the part of the opposite party.

    3. Proof Affidavits have been filed by both the complainant and the opposite party. Exhibits A1 to A15 were marked on the side of the complainant. Exhibits B1 to B7 were marked on the side of the opposite parties.

    4. The points that arise for consideration are as follows:

    1) Whether there is any deficiency in service on the

    part of the opposite party.

    2) To what relief the complainant is entitled to?

    5. Point No.1: It is the case of the complainant that he had deposited the Provident Fund amount by way of cheque of Rs.50,000/- with the opposite party bank for collection on 24.01.2006. But it was not credited in his account till 09.03.2006. When contacted he was informed by the 1st opposite party that the cheque was lost in transit when it was sent through courier service.

    6. The opposite party would submit that the cheque was lost in transit when it was sent through courier service. They would further submit that they offered interest for the delayed period. The complainant had also submitted indemnity bond to the provident Fund Commissioner by way of duplicate cheque. The amount of Rs.50,000/-was credited into the complainant’s account after a long delay of six months and this act of the opposite party amounts to deficiency in service.

    7. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay Rs.50,000/- as compensation for mental agony and Rs.10,000/- as cost of the complaint to the complainant within six weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

    Dictated by the President to the Steno-Typist, taken down and computerized by him, corrected by the President and pronounced by is in the Open Forum, on this the 9th day of June 2009.
  • SidhantSidhant Moderator
    edited September 2009
    Sardar Swarn Singh S/o late Hari Singh

    R/0 10/10 Sunday Bazar, P.O.-Sunday Bazar,

    Dist.- Bokaro.

    Versus

    The Branch Manager, State Bank of India

    Bokaro Colliery, Sunday Bazar, Bokaro.


    -: Judgment:-

    The Complainant has filed this case against the opposite Party to credit/refund of Rs. 13000/- deducted from the saving Bank Account No. 11471757520 of the complainant with 12% interest since January, 2009 till the date of payment besides Rs. 5000/- compensation for mental and physical agony.

    2 Brief fact of the case is that the complainant is a permanent employee of Khash Mahal Project and has a saving Bank Account No. 11471757520 in the SBI (Opposite party). The monthly salary of the complainant also being sent to the opposite party by his employers. On 19.01.2009 the complainant sent to the opposite party for up dating of his Pass Book and noticed that Rs. 8000/- and RS.5000/- respectively were debited. From his account in the Colum of his Passbook/ATM OD 10.03.2008 was mentioned and Rs. 13000- was shown in the column of amount withdrawn. The complainant immediately met to the staff concern and the branch Manager who told him that the said amount were withdrawn by the complainant on 10.03.2008 which was not recorded in the ATM machine and therefore that amount was deducted on 19.01.2009 by the opposite party.

    On 10.03.208 the complainant had Rs. 53281.02 in his said account and out of said amount, the opposite party debited Rs. 7000/- towards personal loan and complainant withdrawn Rs. 45000/- on same date. After withdrawal of same amount there was Rs. 1281.02 left only and therefore, the allegation of withdrawn of Rs. 13000/- by the complainant is false and baseless and wrong. The complainant sent a legal notice on 31.01.2009 to the opposite party who, through their lawyer replied that the allegation of complainant was not correct and annexed the Xerox copy of transaction dated 10.03.2008, by the complainant. From perusal of said Xerox copy it appeared that there was no similarity in the statement of account, entry in the passbook and the statement sent by the lawyer of the opposite party. The complainant has mentioned the transaction which would be made on 10.03.2008 by the complainant at the foot of this complaint. According to entry in the Passbook and statement in account Rs. 1000/- is the last withdrawal by the complainant but as per documents of the opposite party said amount is the first withdrawal.

    Due to Mechanical defect of number of entries are wrongly reported by the ATM Machine which results in undue harassment and agony to its customer. The complainant had not withdrawn the said amount and alleged withdrawal has wrongly been recorded by the ATM Machine. Thus under the aforesaid circumstances the opposite party is not only liable to credit of Rs. 13000/- with interest in the account of complainant but also compensation for losses caused to him. The cause of action arose on 19.01.2009 when the opposite party debited Rs. 13000/- from the account of the complainant. There is deficiency on the part of the opposite party and the opposite party is liable to pay the aforesaid amount together with compensation to the complainant.

    3 Upon issuance of notice, the opposite party appeared and filed written statement. It is submitted on the basis of the complainant that on 10.03.2008 the complainant withdrawn a sum of Rs. 5000/- and Rs. 8000/- through ATM but due to mechanical error the machine did not debit the account though it has disbursed the amount as per report of ATM Switch Centre. Some time cash is disbursed by the ATM but customer’s account is not debited and it can be noticed through No. 98581 and sometimes cash is not disbursed by the ATM but customer’s account is debited and it can be noticed through No. 98582. On thorough scrutiny of the account of the complainant it was detected that out of these 2 transactions a sum of Rs. 13000/- has been withdrawn by the complainant through ATM which has not been debited, as such the opposite party Bank was lawfully entitled to debited the account and it has rightly debited the same on 19.01.2009.

    The further submission of the opposite party is that in order to take undue advantage of mechanical error of ATM of not debiting the withdrawn amount of Rs. 13000/-, the complainant might have siphoned off the account by subsequent withdrawals as is alleged in paragraph 5 of the complaint petition and this further transaction can in no way justify dishonest statements of the complainant. The opposite party Bank has not committed any deficiency in rendering service and the complainant has not got valid cause of action because the real fact was dully intimated to the complainant as he himself admitted in paragraph 4 of complaint petition. Under the above fact and circumstances, the complaint petition having no merit and is liable to be dismissed with cost in favour of the opposite party.

    4 Heard both the parties. On perusal of the entire case records and documents filed on behalf of the parties, it is observed that complainant had withdrawn a sum of Rs. 8000/- as Rs. 5000/- on 10.03.2008 through ATM operation. Though the above sums were disbursed as per the ATM Switch Centre, the same could not be debited in the complainant’s account due to certain error in the ATM Machine. Finally the amount of Rs. 13000/- (Rs.8000/- + Rs.5000/-) was debited in the account of the complainant on 19.01.2009. In view of the above we find no error committed by the opposite party Bank. We, therefore, do not hold the opposite party negligent and deficient towards the complainant and hence it is not held liable to pay any relief to the complainant.

    5 Under the facts and circumstances of the case, no merit is found in the complaint case and the same is dismissed according hereby.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Yogesh Pai P.,

    Aged about 31 years,

    S/o Bhaskar Rao,

    Flat No.306, Shiribeedu Towers,

    Near City Bus Stand,

    Udupi – 576 101.



    ……….. Complainant



    Versus



    1. S.B.I. Cards and Payment

    Services Pvt. Ltd.,

    (SBI Cards),

    P.B.No.28, GPO,

    New Delhi – 110001.



    2. S.B.I.Cards and Payment

    Services Pvt. Ltd.,

    (SBI Cards),

    Mythri Complex, Udupi.

    ………Opposite Parties





    1. The Complainant filed this complaint u/s 12 of CPA alleging Unfair Trade Practice against the Opposite Parties and thereby committed deficiency in their service and prayed for a direction to Opposite Parties to furnish the actual bills of demand after reversing all illegal debits, Rs.1,00,000/- towards compensation with interest @ 12% per annum from the date of said notice, till payment. Further direction to Opposite Parties to pay Rs.5,000/- being the expenses incurred by the Complainant, Rs.5,000/- towards cost of the proceedings, Rs.2,500/- being the cost of the legal notice alongwith future interest at 12% per annum from the date of complaint, till payment.

    Contd…….2

    2. The case of the Complainant is that he is a customer and holder of OP's credit card No.5264 6853 1516 6718 of the credit limit of Rs.44,000/-. The Complainant has purchased the said credit card through the marketing agents the OP's at his office where he signed necessary application and took delivery of the card.



    3. As per contract, one of the modes of payment of the bills is by way of dropping cheque in the nearest drop boxes and one such box is housed at Manipal. Complainant had dropped cheque No.814041 dated 06.04.2007 for Rs.1,013/- and cheque No.814044 dated 03.05.2007 for Rs.3,600/- at the said drop box on the respective dates. When the Complainant received bills of demand he was surprised to note that the payments made by him through cheque through drop box have not been taken into account and Opposite Parties have illegally debited late payment charges, interest, etc, when the Complainant received bill dated 17.05.2007 he enquired with officials concerned through the contact numbers provided in the bills, at that time one Mr.Pradeep connected to the Opposite Parties office contacted the Complainant and requested him to be present at the time of opening the drop box. Accordingly when the bank officials opened the drop box in the presence of said Pradeep, the Complainant was physically present and witnessed the cheques found in the drop box which included in it his aforesaid two cheques. At the request of Pradeep the Complainant changed the dates and amount of the cheques as follows:

    Sl.

    No.


    Cheque

    No.


    Original amount and date


    Revised amount and date

    01


    814041


    Rs.1,013/-

    06.04.07


    Rs.4,613/-

    29.05.2007

    02


    814044


    Rs.3,600/-

    03.05.07


    Rs.5,891/-

    12.06.2007



    At that time, the said Pradeep asked the Complainant to club the amount of the earlier cheques and to pay further amount Rs.5,891/- as endorsed by him on the bill and assured that the interest, late payment charges would be reversed.



    4. When position stood thus the Complainant went on receiving bill after bill without reversing the illegal debits. Complainant contacted OP's office customer care centers number of times and requested to send revised bills after giving

    Contd…….3

    due credit to the illegal debits so that he could pay the genuine bills of demand. Instead of catering the needs of the Complainant, OP's went on dodging claim of the Complainant under one false pretext or the other. In the mean time, they went on issuing bill after bill every month by levying heavy charges for late payment and interest on compounding rate, against the contract, law and precedents.



    5. Complainant further submits that not being satisfied with the above harassment meted to him, the OP's indulged in threatening the Complainant over the lines that in case Complainant fails to clear the bills his employers, university would be notified branding him as a defaulter. The muscle team attached to the OP's also called the Complainant over the lines and warned him with bodily injuries come what may. When the Complainant was asking about the exact amount due, OP's have not responded but went on continuing the atrocities on account of which Complainant has suffered acute mental agony, sleepless nights, strain and stress.



    6. Complainant is a lecturer in the world famous Manipal University and he hails from a very reputed family who commands good reputation and respect in the society and also his colleagues. Complainant is and has been willing to settle the accounts and ready to pay the genuine bills which he has been requesting OP's all these days. The OP's have also blocked operation of his credit card account and threatened the Complainant that they would share the information of Complainant as a defaulter with the Credit bureau and other institutions in order to put an end to the credit worthiness of the Complainant.



    7. The acts of maligning Complainant did not stop but continued unabated and the OP's got issued a legal demand notice dated 11.10.2008 making all sorts of frivolous and vexatious allegations against the Complainant and threatening him of criminal prosecution which have disturbed the mental piece of the Complainant and resultantly Complainant could not effectively carry on his profession in the manner expected of him.



    8. The acts and deeds of OP's as stated above are nothing but adoption of unfair trade practice, deficiency of service and extortion of money. The OP's are therefore liable to be prosecuted before the appropriate forum. Hence, this complaint.

    Contd…….4

    9. After issue of notices of the complaint, notice of Opposite Party No.1 served, remained absent, hence placed exparte. Notice of Opposite Party No.2 returned unserved. On 26.06.2009 Complainant filed memo stating that the complaint is not pressed against Opposite Party No.2.



    10. Complainant has produced 19 documents which are marked as Exs.C-1 to Ex.C-19. Complainant filed affidavit swearing to the facts stated in the complaint. We heard the complainant.



    11. Now the points that arise for our consideration are:

    1) Whether the Opposite Parties have committed Unfair Trade Practice and thereby committed deficiency in service?

    2) Whether the Complainant is entitled for the reliefs claimed in the complaint?

    3) What Order?



    Point No.1:

    12. We have perused the entire records placed before this Forum. The case of the Complainant is that he is a customer and holder of Credit Card No.5264 6853 1516 6718 of the credit limit of Rs.44,000/- issued by the Opposite Party No.1. As per the contract one of the modes of payment of the bills by way of dropping cheque in the nearest drop box and one such drop box is housed at Manipal.



    13. The main allegation of the Complainant is that he dropped one cheque bearing No.814041 dated 6.4.2007 for a sum of Rs.1,013/- and another cheque bearing No.814044 dated 03.05.2007 for a sum of Rs.3,600/- on respective dates at the nearest drop box is housed at Manipal. Complainant received bills of demand and surprised to note that the payments made by him by way of cheques through drop box have not been taken into account and Opposite Parties have illegally debited late payment charges, interest, etc. When enquired to one Mr.Pradeep connected to Opposite Party’s office, bank officials opened the drop box in the presence of said Pradeep, the Complainant was physically present and witness the cheques found in the drop box which included in it his aforesaid two cheques and at the request of the Pradeep Complainant changed the dates and amount of the cheques.

    Contd…….5

    14. Counsel for the Complainant argued that the Complainant was receiving bills after bills without reversing the illegal debits. If this is so, the Complainant has kept quite for more than one year and there is no document forthcoming to show that Complainant has made correspondences with the Opposite Parties.



    15. Complainant has made purchases as per bills Ex.C-1 to Ex.C-4. As per Ex.C-1 the total outstanding was Rs.1,012.50 including purchase and tax. As per Ex.C-2 the total outstanding was Rs.5117.51 including the purchase plus payment due and taxes. As per Ex.C-3 the total outstanding was Rs.11,703.84 including the purchase, interest thereon. Ex.C-4 is the monthly statement for the month of June 2007 wherein the Opposite Party has deducted the amount paid by the Complainant by way of Cheque bearing No.814041 dated 6.4.2007 amounting to Rs.4613/- and Cheque bearing No.814044 dated 3.5.2007 for a sum of Rs.5,891/- in total Rs.10,504/-.


    Further the amount of Rs.1,159.74 has been shown as debit balance towards the transaction made by the Complainant with Sri Krishna Petroleum Mangalore and total outstanding amount shown as Rs.2,640.84 as per Ex.C-4 and the same also not disputed by the Complainant. Subsequently the Complainant stopped purchasing but the Opposite Party went on charging interest and other taxes over the outstanding balance. The tariff of charges are shown in the schedule of charges in the back side of every monthly statement. It is made known to the Complainant in every monthly statement, the Complainant is not disputing the tariff of charges.





    16. The document produced by the Complainant Ex.C-16, which is the notice dated 17.07.2007 sent by Opposite Party’s Payment Assistance Unit to the Complainant, wherein the Opposite Party clearly stated that the total outstanding balance was Rs.3,127.52 as on 17.7.2007 and minimum amount due is Rs.400/-. Inspite of this notice, Complainant failed to pay either the total amount outstanding or minimum amount due.



    17. The details of monthly statements are as follows:

    Statement Date


    Opening Balance


    Purchase & others debit


    Total Outstanding

    17 Aug 2007


    3127.52


    507.43


    3634.5

    17 Sep 2007


    3634.95


    525.44


    4160.39

    17 Oct 2007


    4160.39


    538.88


    4699.27

    17 Jan 2008


    5886.57


    158.93


    6045.50

    17 Mar 2008


    6208.72


    167.63


    6376.35

    17 May 2008


    6569.79


    199.30


    6769.09

    17 Jun 2008


    6769.09


    205.35


    6974.44

    17 Aug 2008


    7186.01


    218


    7404.01

    17 Oct 2008


    7628.62


    231.43


    7860.05

    Contd…..6

    18. Ex.C-6 to Ex.C-14 are the monthly statements, wherein the SBI Cards and Payments Services Pvt. Limited have charged monthly interest on the outstanding amount and the last outstanding amount as per Ex.C-14 was Rs.7,860.05. SBI Cards and Payments Services Pvt. Ltd. have blocked the transaction of credit facility as well as cash facility, as per Ex.C-6 since the outstanding amount is not settled by the Complainant the interest and others charges are continuing as per rates prescribed in the schedule. The SBI Cards and Payments Services Pvt. Limited sent a legal notice 11.10.2008(Ex.C-15) to the Complainant demanding to pay outstanding amount of Rs.7404/- within a period of seven days of the receipt of the notice, failing which legal proceedings will be initiated.



    19. The Complainant has not stated in the complaint anything about the issuance of the notice dated 17.07.2007 demanding for the payment from the Complainant Rs.3,127.52 total outstanding as on 17.7.2007 but inspite of the receipt of the said notice the Complainant has not made any payment nor raised any objections. The Opposite Party as per their terms and conditions of credit card scheme and as per the tariff schedule charged interest and other taxes on the above said outstanding amount, as chargeable to its all credit card holders.



    20. Notice of the Opposite Party No.2 returned with postal endorsement “No such address at SBI Udupi”. The Complainant alleged in the complaint that he contacted Opposite Party’s customer care centers numbers of times and requested to send revised bills after giving due credit to the illegal debits so that he could pay the genuine bills of demand, this allegations of the Complainant cannot be believed. Complainant himself is not specific with regard to the whereabouts of the Opposite Party No.1’s branch office or marketing agent or customer care centre at Udupi. Anyhow the Complainant has filed a memo stating that the complaint against Opposite Party No.2 is not pressed. Complainant has stated in the complaint that he had purchased the said credit card through the marketing agents of Opposite Party at his office where he signed necessary application and took delivery of the card. The Complainant do not say specifically who is the marketing agent of Opposite Party and where its office is situated.



    21. The counsel for the Complainant argued that the Complainant is a lecturer in the world famous Manipal University and hails from a very reputed

    Contd……7

    family who commands good reputation and respect in the society and also his colleagues and has been willing to settle the accounts and ready to pay the genuine bills which he has been requesting Opposite Parties all these days. Ex.C-1 to Ex.C-14 are the monthly statements issued to the Complainants which are self explanatory and the addresses are furnished in every statement “4 ways to reach at SBI Cards”.



    22. The Complainant has not sent any legal notice to the Opposite Party No.2. Legal notice dated 25.11.2008 was sent only to the Opposite Party No.1 who is the customer service helpline of SBI Cards and Payments Services Pvt. Limited instead of issuing legal notice to the correspondence address furnished in Ex.C-16 as “SBI Cards & Payment Services Pvt. Ltd., DLF Infinity Towers, Tower C, 12th Floor, Block 2, Building 3, DLF Cyber City, Gurgaon-122002 (Haryana) India”. The Complainant has already received the legal notice of the Opposite Party which clearly shows M/s SBI Cards and Payments Services Limited, having its office at 11 Parliament Street, New Delhi – 01 but neither the legal notice nor the notice of complaint was sent to the above address for the reasons best known to the Complainant and they were not made as a parties in the complaint.



    23. The first prayer of the Complainant is that directing the Opposite Parties to furnish actual bills of demand after reversing all illegal debits. As per Ex.C-15, legal notice dated 11.10.2008, actual bill of demand was Rs.7,404/- as on 11.10.2008. Prior to that as per Ex.C-16 Opposite Party has demanded Rs.3,127.52 as total outstanding amount as on 17.7.2007. There is no dispute with regard to the above amount in the whole complaint. Ex.C-15 and Ex.C-16 are produced by the Complainant himself. Ex.C-17 legal notice dated 25.11.2008 was issued only after receipt of Ex.C-15 legal notice dated 11.10.2008 from Opposite Party wherein SBI Cards and Payments Services Pvt. Ltd. demanded Rs.7,404/- stating that the said amount to be paid within seven days failing which the legal proceedings will be initiated.



    24. For availing credit card facilities the Opposite Party SBI Cards and Payments Services Pvt. Limited is charging interest and other charges as per the schedule of charges and the tariff mentioned therein. The details are served to the Complainant in every monthly statements issued by the Opposite Party SBI

    Contd……8

    Cards and Payments Services Pvt. Ltd. Therefore, we find no illegality or excess charging as alleged by the Complainant. Hence, we are of the opinion that there is no Unfair Trade Practice committed by the Opposite Party No.1. In the result, we find no deficiency in their service. Therefore, we answer the point No.1 in the Negative.



    Point No.2 & 3:

    25. In view of the Negative answer to point No.1, we hold that the Complainant is not entitled for the reliefs claimed in the complaint. The SBI Cards and Payments Services Pvt. Limited has furnished detailed addresses of “4 ways to reach at SBI Cards” in every monthly statement i.e. By Phone – 24 hours, By Email, By Letter and by Web. The Complainant can ascertain the actual due as on date and pay the same amount. Hence, we answer the point No.2 also answered in the Negative.



    26. In the result, we pass the following:

    ORDER

    Complaint is dismissed. In the circumstances of the case the parties to bear their own costs.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Sri.Jagadish,

    Major, S/o Late Dr.Hanumappa,

    No.7, Walton Road,

    Bangalore – 560 001.



    …. Complainant.

    V/s



    The State Bank of india,

    Credit Card Division, Head Office,

    St. Marks Road,

    Bangalore – 560 001.





    …. Opposite Party







    -: ORDER:-



    This complaint is filed seeking the following reliefs from the Opposite Party:-

    i. Direct the Opposite Party to reschedule and restructure the repayable credit card loan amount of the complainant by extending the repayment period from 20 EMI’s to 60 EMI’s in regard to the above said credit card,



    ii. Direct the Opposite Party give the credit card loan account statement to the complainant,



    iii. Direct the Opposite Party to delete all the illegal, hidden and unauthorized charges levied by the Opposite Party from the date of issuance of credit card,



    iv. Direct the Opposite Party to reduce the interest,



    v. Direct the Opposite Party to consider the representation dated 12.03.2009 of the complainant,



    vi. Direct the Opposite Party to pay the complainant compensation/damages of Rs.1,00,000/- for the mental harassment, agony, anxiety and fear caused due to the Opposite Party’s attitude and conduct, and



    vii. Pay the costs of the complainant including legal expenses and any other reliefs that this Hon’ble forum deems fit.



    though the complaint runs to 13 pages, excluding the paper clippings and the decisions referred in the complaint, the case of the complainant in brief is as under:-

    The complainant had taken credit card No.5264685315277721 form the Opposite Party and till today he never defaulted in the repayment. On 12/03/2009 and 03/04/2009 he gave representation to the Opposite Party stating that because of recession/slowing economy, there is problem in regard to cash flow and therefore he is not able to pay the stipulated EMIs and requested to reschedule and restructure the repayment of the credit card loan by extending the term of repayment to 60 EMI’s in place of 20 EMI’s. He is not able to pay the stipulated EMI’s as the Opposite Party has charged illegal and unauthorized charges contrary to the provisions of the Indian Contract Act.


    The interest charged is excessive and more than 30% and therefore he is unable to pay the stipulated EMI’s. Because of the sudden death of his brother, he is not able to pay the EMI’s as stipulated. He requested the Bank to issue a detailed statement deleting all the illegal, hidden and unauthorized charges levied from the date of issuance of credit card and to reduce the rate of interest. He surrendered the credit card to the Opposite Party as per the letter dated 03/03/2009. Non consideration of his representations to reschedule and restructure the repayment by extending the repayment term to 60 EMI’s amounts to deficiency of service. Non consideration of his application when similarly situated 50,000 applications have been considered is bad in law and amounts to deficiency in service. Non furnishing of the detailed statement from the date of issuance of loan also amounts to deficiency in service.


    The Hon’ble National Commission has held that the charging of interest in excess of 30% Per Annum from credit card holder is unfair trade practice and penal interest could be levied only once for the period of default and should not be capitalized. Non consideration of his representations dated 12/03/2009 is arbitrary. The complainant wants the statement of his accounts to demonstrate the illegal, hidden and unauthorized charges levied by the Bank from the date of issuance of the credit card. If those charges are deleted, he would not be left with the alleged credit amount. The cause of action for the complaint arose on 12/13/2009 and 03/04/2009 when the Opposite Party failed to consider his representations. Hence, the complaint.



    2. In spite of service of notice, the Opposite Party has remained absent. In support of the claim, the complainant has filed his affidavit and has produced copies of documents. The learned counsel for the complainant has filed written arguments.



    3. The points for consideration are:-

    1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?

    2. Whether the complainant entitled to the relief prayed for in the complaint?



    4. Our finding to both points is in the NEGATIVE for the following:-



    -:REASONS:-

    5. The complainant admits that he had taken the credit card from the Opposite Party and claims that he never defaulted in repayment of the amount due under the credit card account till date. He claims to have addressed the representations dated 12/03/2009 and 03/04/2009 to the Opposite Party Bank. The grievance made in the representations is to the effect that because of recession/slowing economy there is problem in regard to cash flow and therefore he is unable to pay the stipulated EMI’s and requested to extend the repayment schedule from 20 EMI’s to 60 EMI’s. He claims that the Opposite Party has charged illegal and unauthorized charges contrary to the provisions of the Indian Contract Act and interest charged is more than 30%. He also states that because of the sudden death of his brother, he is not able to pay the EMI’s as stipulated.


    When the complainant claims that he had availed credit card from the Opposite Party, we are unable to make out that he is required to pay the amount due in 20 EMI’s as claimed. Nothing is placed on record to show that the Bank had permitted him to pay the amount due in 20 EMI’s. As generally understood, a credit card holder is required to make payment of the minimum amount due as disclosed in the monthly statement issued by the Bank. The complainant has not disclosed as to the nature of avocation he is carrying and how the avocation is affected by the recession or slowing economy affecting the cash flow. He has also not disclosed, his total liability to the Opposite Party Bank. Without disclosing how the recession or slowing economy has affected the cash flow, the complainant is not entitled to contend that he has been affected by the recession or slowing economy.


    In the absence of material to show that the Bank had permitted him to pay the outstanding balance in 20 EMI’s, the complainant also cannot be heard to say that the Bank is required to restructure the repayment by granting him 60 EMI’s. From the monthly statements produced by the complainant it is seen that in June-2009, the total liability of the complainant under the credit card account was Rs.32,732-23 paise. The complainant has not disclosed that the Bank has charged more than 30% interest on the amount due or that it has charged illegal and unauthorized charges contrary to the provisions of the Indian Contract Act. Without disclosing those particulars a vague allegations that the Bank has charged more than 30% interest and has charged illegal and unauthorized charges is not sufficient to prove the allegations in the complaint.


    The complainant cannot claim reschedule or restructuring of the repayment amount due as of right. It is always the discretion of the Bank to either accept such request of the customer or to reject it. Admittedly the complainant made representations on 12/03/2009 and 03/04/2009 requesting the Bank to restructure the repayment of the amount due by extending the EMI’s to 60 in place of 20. Within a month thereafter the complaint is filed on 20/04/2009. According to the complainant, the delay in considering the representations itself amounts to deficiency in service. In this regard, the complainant wants to rely upon the decision reported in 1991(2) CPR 341 in the case of A.R.NARAYANAN VS. THE MANAGER UCO BANK.


    That was a case where the bank had delayed considering the application for grant of credit facility. There was delay of more than eight months in considering the application for grant of credit facilities and it is in those circumstances it is held that the delay in passing the orders on application amounts to deficiency in service. But in the case on hand, the representations made by the complainant are with regard to rescheduling of the repayment of the amount due under the credit card account and within a month after submitting the representations, the complainant has filed the present complaint. As such it cannot be said that there is undue delay in considering the representations. As stated earlier, the complainant cannot claim as of right rescheduling of the repayment of the amount due.


    It is always discretion of the Bank to grant or reject the relief prayed for by the customer. As such we are unable to accept the contention of the complainant that the delay in considering the representations amounts to deficiency in service on the part of the Bank. From the documents produced by the complainant, it is clear that the Bank has been sending monthly statements pertaining to the credit card account of the complainant regularly. From the monthly statements, the complainant is able to make out the transactions he has carried making use of the credit card, and the amount claimed towards his credit card account.


    That being so, we do not see any substance in the contention of the complainant that the Bank failed to furnish him the detailed statement pertaining to his credit card account. Without disclosing as to what are the illegal, hidden and unauthorized charges levied by the Bank, the complainant is not entitled to seek a direction to the Opposite Party to delete such charges. So far as the rate of interest charged by the Opposite Party is concerned, the same is governed by the agreement between the parties and as such the complainant is not entitled to seek a direction to the Opposite Party to reduce the rate of interest especially when the complainant has not proved that the Bank has charged more than 30% interest.


    The articles that appeared in the news paper will not give any right to the complainant to claim the relief nor those articles be considered as contract between the parties. Thus, we are unable to make out any deficiency in service on the part of Opposite Party and therefore hold that the complainant is not entitled to any of the relief prayed for in the complaint besides claiming compensation of Rs.1,00,000/-. In the result, we pass the following:-

    -:ORDER:-

    1. The complaint is DISMISSED. No order as to costs.

    2. Send a copy of this order to both parties free of costs, immediately.

    3. Pronounced in the Open Forum on this the 23rd Day of JULY 2009.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Jaya Appachu, @ Neelam Jaya,

    W/o Mr.Jaya Appachu, A/a 50 yrs,

    R/at No.12, BDA Commercial Complex,

    Indiranagar, 2nd Stage,

    Bangalore – 560 038.

    …. Complainant

    V/s



    The Chief Manager,

    State Bank of India,

    SSI Branch, Kumara Park,

    8577, No.179, S.C.Road,

    Seshadripuram, Bangalore – 560 020.

    …. Opposite Party



    -: ORDER:-







    2. Sri. Jaya B.Appachu – the husband of the complainant and who is the proprietor of Graphic Photo Creations had obtained loan under SSI scheme from the Opposite Party Bank for his Photographic business. The loan was sanctioned in the year 1994 and he intended to close the loan outstanding of Rs.2,80,000/- well in advance in the month of June – 1999 by seeking concession in interest. Since he was under treatment for heart ailment at that time the complainant and her brother (guarantor) discussed with the Chief Manager of the Bank about the modalities as the Bank insisted an early settlement of the accounts for which legal notice had already been issued. After discussion, the Chief Manager agreed to send the compromise proposal to the local Head office for settlement in a sum of Rs.2,50,000/- provided Rs.2,00,000/- was immediately deposited in the same branch in the name of the complainant. On 14/06/1999 when the complainant and her brother went to the Bank, the Chief Manager wrote a model form of letter in his own handwriting.


    The complainant got the said letter typed and gave it to the Chief Manager along with the TDR for Rs.2,00,000/- for having deposited cash of Rs.2,00,000/- It was specifically agreed to return the said deposit with interest if the proposal is not approved. She had been making enquiries orally and over phone now and then about the outcome of the compromise proposal of her husband and she was being informed from time to time that the talks were going on and the matter was not finalized. After repeated oral reminders and requests she wrote a letter dated 20/12/2008 requesting the Bank to intimate about the status of term deposit. She got the reply dated 29/12/2008 intimating that the term deposit for Rs.2,00,000/- has already been closed as early as on 31/07/1999 and the proceeds of the same have been credited to her term loan account of M/s Graphic Photo Creations.


    The complainant is neither the owner of M/s Graphic Creations nor she has any account in the Opposite Party Bank. The sum of Rs.2,00,000/- was deposited as security as desired by the Chief Manager till the compromise was arrived at between the Bank and the loanee. It was also specially mentioned in the letter to adjust the proceeds against the loan account of Graphic Photo Creations only after the compromise proposal was approved. From 1999 till 29/12/2008 she was kept in dark about the status of the term deposit and the Bank has not only gone against the assurance given to the complainant but also violated the banking norms in not informing the complainant about the status of the term deposit and adjustment of the amount against the loan account.


    In the letter dated 29/12/2008, the Bank has erroneously stated that the TDR for Rs.2,00,000/- has been closed and the proceeds of the same credited to your term loan account of M/s Graphic Photo Creations on 31/07/1999. The complainant had no term loan account in her name or in the name of M/s Graphic Photo Creations. She did not authorize Opposite Party Bank to adjust the proceeds to the loan account of Graphic Photo Creations in case there was no confirmation of compromise proposal initiated by her.


    There is blatant violation of banking norms and thus deficiency in service on the part of Opposite Party for which the complainant is entitled to compensation. The action of the Bank in deciding the adjustment unilaterally is arbitrary, illegal and unknown to banking procedures. Being fully aware of the undertaking / authorization given by the complainant in her letter dated 14/06/1999, the Bank has deliberately misappropriated the money resulting in financial loss and mental agony to the complainant. Therefore, the Bank is liable to compensate the complainant in that regard. Hence, the complaint.



    3. In the version, the contention of Opposite Party is as under:-

    Sri. Jaya B.Appachu had borrowed loan from the Opposite Party Bank for his business of Graphic Photo Creations. Since he failed to repay the outstanding due, he came with a proposal for one time settlement and deposited Rs.2,00,000/- in the name of his wife to clear the entire loan amount. The deposit was made on 14/06/1999 up-to 30/06/1999. Since he failed to arrange the balance amount, on 30/06/1999 he and his wife namely the complainant instructed the bank to adjust the deposit to the loan account and requested for some more time to clear the dues payable to the Bank. Therefore on the instructions of the complainant and her husband, the deposit amount was credited to the loan account of Mr.Jaya B.Appachu on 30/06/1999. The compromise proposal was for Rs.2,50,000/- in the year 1999.


    The complainant, her husband and the guarantor approached for compromise and Rs.2,00,000/- was deposited in the name of the complainant by her husband. Since the balance amount was not paid, original suit was filed for the remaining outstanding dues, in O.S.No.4985/2003 on the file of CCH-26. After service of notice in the suit, the complainant and her husband started for bargaining. The complainant was actively involved in all the discussions and the amount in question was deposited by the husband of the complainant for the purpose of clearing the outstanding dues. After approaching the Bank for concession to settle the claim in O.S.4985/2003, the present complaint is filed at the instance of the husband of the complainant only with mala-fide intention to pressurize the bank to withdraw the suit.


    As on 26/02/2008, the amount due was Rs.3.11 Lakhs. By considering the credit of Rs.2,00,000/- made from deposit, the Bank agreed for settlement in the suit. The present complaint is filed with ulterior motive to pressurize the bank and therefore the same needs to be crushed with heavy hands. The complainant and her husband are trying to get an unlawful gain in the public money. The documents produced by the complainant prove that the deposit was made to clear the loan transactions of Graphic Creations. Having the knowledge of the credit transaction of the year 1999 filing of the suit for recovery in 2003, the present complaint is filed in 2009.


    The information furnished in the reply dated 29/12/2008 was known to the complainant in the year 1999. Since the amount was deposited by the husband of the complainant and it is deducted at the instance of the complainant and her husband, there is no justification in the averments made in this regard. The Opposite Party has not violated any norms. In the written statement filed in the suit, the husband of the complainant has stated that the sum of Rs.2,00,000/- is deducted from the deposit and he is liable to pay only Rs.65,000/-.


    In the suit, the complainant asked for settlement and sought for major concession. Since the Bank did not agree for concession, the present complaint is filed with intention to put pressure on the Bank to get major concession. The matter is seized before the Civil Court and the alleged transaction is barred by limitation. The complainant was aware of the appropriation of her deposit in the year 1999 and the demand of the Bank for payment of Rs.50,000/- with interest. Hence the complaint is hopelessly barred by limitation. On these grounds, the Opposite Party has prayed for dismissal of the complaint.



    4. In support of the respective contentions both parties have filed affidavits. We have heard arguments on both side.



    5. The points for consideration are:-

    1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?



    2. Whether the complainant entitled to the relief prayed for in the complaint?

    6. Our findings to the above points is in the NEGATIVE for the following:-

    -:REASONS:-

    7. The complainant admits that her husband as proprietor of Graphic Photo Creations had availed loan from the Opposite Party Bank for the purpose of business and in June 1999 with intention to close the loan transaction, the complainant deposited term deposit receipt for Rs.2,00,000/- with the Opposite Party as security for the loan availed by her husband. From the copy of the term deposit receipt produced by the complainant, it is clear that the deposit was made on 14/06/1999 up to 30/07/1999. Therefore, the amount under term deposit was payable on 30/07/1999.


    The complainant has also produced the copy of the letter dated 14/06/1999 addressed to the Chief Manager of the Bank at the time of depositing the TDR as security for the loan availed by her husband. In this letter, the complainant has stated that she is enclosing TDR for Rs.2,00,000/- in her name to be kept as security provided the Bank agrees for concession and in case the Bank did not agree for the compromise the amount shall be paid to her. It is also stated in the letter that the complainant authorized the Bank to adjust the proceeds with the loan account of Graphic Photo Creations only if the compromise as requested was approved.


    Though the amount under the TDR was due for payment on 30/07/1999, the present complaint is filed on 23/03/2009, about 10 years after the date on which the TDR become due for payment. Though the complainant contends that between June – 1999 and 20/12/2008 she had been reminding the Bank about the status of her TDR, no documents are produced to substantiate that contention. The first letter addressed by the complainant to the Bank seeking information about her TDR appears to be on 20/12/2008, about more than nine years after the TDR became due for payment. In the letter dated 20/12/2008, the complainant has mentioned that she has been writing to the Bank on various occasions to know the status of the TDR, but except the copy of the letter dated: 20/12/2008, the complainant has not produced only other documents to substantiate the contention that on various occasions she had written letters to the Bank prior to 20/12/2008.


    This circumstance supports the contention of the Opposite Party that in 1999 itself the complainant was aware of the adjustment of the deposit amount towards loan account of her husband. The fact that the Bank filed O.S.No.4985/2003 against the husband of the complainant and the guarantor for recovery of the balance amount is not disputed, though the same is not disclosed in the complaint. The Opposite Party has produced the copy of the written statement filed by the husband of the complainant in O.S.No.4985/2003. It is seen that the written statement was filed on 25/02/2006. Thereafter the present complaint is filed on 23/03/2009. In Para-4 of the written statement, the contention of the husband of the complainant is as under:-

    “The First Defendant submits that in June 1999 First Defendant approached the Chief Manager for a compromise proposal since there was a threat of legal action. He suggested that a compromise proposal could be considered for Rs.2,50,000/- in full and final settlement of all the dues provided a sum of Rs.2.00 lakhs was immediately deposited as term deposit in the name of the wife of First Defendant in the Bank as a security to avail the concession. Accordingly on 14.06.1999 the First Defendant, his wife Mrs.Jaya Apachu and the Second Defendant met the Chief Manager at his chambers and after discussion the compromise proposal was reduced into writing. The then Chief Manager Mr.Ravinder wrote a letter in his own handwriting to be signed by the said Mrs. Jaya Apachu agreeing to the said proposal. The letter indicates that on 14.06.1999 the wife of First Defendant had enclosed a Fixed Deposit Receipt for Rs.2,00,000/- (Rupees tow lakhs only) in her name for being kept as security. It is also stated therein that the said amount could be adjusted to the loan account of First Defendant on approval of the compromise proposal.


    Accordingly the sum of Rs.2.00 lakhs was transferred to the account of First Defendant on 31.07.1999 leaving a balance of Rs.85,737.79. Though the wife of the First Defendant made it clear in her letter dated 14.06.1999 that in the event of failure of compromise proposal for Rs.2,50,000/- her TDR should be returned to her. Surprisingly the Plaintiff- Bank had appropriated the said FDR amount against the First Defendant’s account without any intimation whatsoever. As the amount was not returned the depositor was under the bona-fide belief that the compromise proposal had been accepted. The First Defendant was ready and willing to pay the above said balance amount of Rs.50,000/- in full and final settlement.


    In this regard the First Defendant had made number of representations to the Chief Manager, Asst.General Manager, Dy.General Manaer and General Manager of the bank bringing to their notice as to under what circumstances the compromise proposal was moved and how it failed. In fact on one occasion the General Manager Mr.Som Choudhury on 24.04.2000 had admonished and directed Mr.Sounderarajan, Manager(NPA) cell to give interest to FDR for Rs.2 lakhs, deduct the interest from Rs.50,000/- and close the account by accepting Rs.32,000/-. In spite of all these directions the Bank had not closed the account but went on adding interest to the alleged balance dues”.



    From the above contentions, it is clear that the husband of the complainant was well aware of the adjustment of term deposit amount of Rs.2,00,000/- to the loan account on 31/07/1999. From what is stated in Para-3 of the complaint, it is clear that the complainant had taken personal interest in settlement of the loan account of her husband with the Bank. Therefore it can be presumed that the complainant was also aware of adjustment of the term deposit amount of Rs.2,00,000/- to the loan account of her husband on 31/07/1999. If that is so, the complainant is not entitled to take a contrary stand in the present complaint.


    When the complainant was aware in 1999 itself that the term deposit amount of Rs.2,00,000/- has been adjusted to the loan account of her husband on 31/07/1999, the complaint filed about 10 years thereafter in 2009, is clearly barred by limitation. Admittedly the term deposit was offered as security for the loan availed by the husband of the complainant.


    Therefore, the Bank had authority to adjust the term deposit amount offered as security towards the loan account of the husband of the complainant. It is the contention of the Opposite Party that the adjustment was made only on the instructions of the complainant and her husband. From what is stated in the written statement it is clear that there is dispute between the Bank and the husband of the complainant with regard to amount due and payable. The suit is filed claiming Rs.2,57,488.49 paise. Whereas in the written statement, the husband of the complainant has contended that he has to pay to the extent of only Rs.65,000/- and has requested the court to decree the suit only for Rs.65,000/-.


    When there is clear admission on the part of the husband of the complainant that the sum of Rs.2,00,000/- offered as security has been adjusted to the loan account as long as 31/07/1999, after the lapse of 10 years, the complainant is not entitled to seek payment of the amount under the term deposit receipt. As contended by the Opposite Party, the complaint appears to be an after thought with intention to pressurize the bank to concede to the request of the complainant and her husband to give major concession in the amount claimed. Thus, we are unable to make out any deficiency in service on the part of Opposite Party and therefore hold that the complainant is not entitled to the relief prayed for. In the result, we pass the following:-



    -:ORDER:-





    1. The complaint is DISMISSED. No order as to costs.

    2. Send a copy of this order to both parties free of costs, immediately.

    3. Pronounced in the Open Forum on this the 22nd Day of JULY 2009.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Amar Singh S/O late Shri Ram Dass Mankotia,

    R/O House No.121, Housing Board Colony, Phase-1, Saproon Solan, Tehsil and District Solan, H.P.





    ….. Complainant.





    Versus





    SBI Cards and Payment Service Pvt. Ltd.,

    P.O. Bag No.28, GPO New Delhi-110001, Registered Office, SBI Local Head Office 11 and Parliament Street, New Delhi-110001 through its Authorized signatory/Manager/Agent.



    … Opposite Party




    ORDER:





    This order shall dispose of, a complaint, under section 12 of Consumer Protection Act, 1986. The complainant avers that he was issued credit card baring No.4317575025421000, valid up to November, 2006, which was later on renewed up to November, 2008. He further avers that he availed the cash credit facility, as well, as purchase credit facility during the period 06.12.2004 to 05.05.2007, amounting to Rs.45,637/-. It is averred that despite clearance of all due amounts, the OP issued a notice dated 08.04.2008, demanding a sum of Rs.41,718.04, which was duly replied by him. The OP again vide letter dated 29.07.2008, demanded a sum of Rs.10,000/-, whereas nothing is payable to the OP. Hence, the complainant feeling aggrieved and dissatisfied by the act and conduct of the OP, the complainant perforce file this complaint against the OP.

    2. That the notice of this complaint was issued to the OP through registered AD, which was not received back and as such, presumption of service was drawn against the OP, vide zimni order dated26.12.2008 and as such, the complaint was ordered to be heard exparte.

    3. We have heard the learned Counsel for the complainant at length and have, also scanned the entire record of this case.

    4. The complainant in support of his claim relies upon various documents, i.e. Annexure C-1, copy of legal notice dated 8th April, 2008, Annexure C-2 reply of the notice issued by the complainant, on, 05.05.2008, Annexure C3 and statements Annexure-5 to C-8. Besides, the complainant has also placed on record detailed affidavit.

    5. A, combined and harmonious reading of the aforesaid documents and evidence, which remained unrebutted or un-controverted on behalf of the OP, it is proved on record that the OP has nothing to say in response to the allegations as leveled against it by the complainant.

    6. Moreover, the OP did not put in appearance and their non-appearance also leads us to draw adverse inference against them. As such, they are not only guilty of rendering deficient services to the complainant, rather are also guilty of indulging in an unfair trade practice.

    7. Hence, we allow this complaint, and direct the OP not to issue telephonic calls/message, as well, as, illegal demands in future to the complainant. However, their shall be no order as to the grant of compensation, but certainly the complainant is entitled for grant of litigation cost, which in the facts and circumstances of the case is quantified at Rs.1000/- payable by the OP to the complainant within a period of forty five days after the date of receipt of copy of this order. In the above terms, the complaint stands disposed of. The learned counsel for the complainant has undertaken to collect the copy of this order, whereas, the certified copy of this order shall, be, supplied to the OP, free of costs, as per rules. With this, the complaint stands disposed of. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Shri Jai Ram Kaushal

    R/O G.R. House, Lower Khalini,

    P.O. Razhana Shimla-171009.



    … Complainant

    Versus



    Chief Executive Officer,

    SBI Cards & Payment Service Pvt. Ltd.,

    P.O. Bag Number 28, GPO, New Delhi-110001.



    …Opposite Party


    O R D E R:

    Per, Charanjit Singh, Member:- The instant complaint has been filed by the complainant by invoking the provisions of section 12 of the Consumer Protection Act, 1986. It is averred that the complainant is holder of credit card bearing No.4317 5750 2426 0581, and is aggrieved by the action of the OP, inasmuch, as, charging late fee and levying interest on the outstanding amount, as reflected in the monthly statements. He further avers that the outstanding amount of Rs.8,205.51 being demanded by the OP, is arbitrary and illegal and in order to grab money by dishonest means. Hence, it is averred that there is apparent deficiency in service on the part of the OP and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

    2. Pursuant to the notice issued by this Forum to the OP, Mr. Umesh Sharma, Advocate filed memo of appearance on behalf of the OP, on, 19.08.2008. However, on 03.11.2008, none appeared on behalf of the OP and as such the complaint was ordered to be heard exparte.

    3. We have heard the complainant at length and have also thoroughly scanned the entire record of the case minutely.

    4. The claim of the complainant, as asserted in the complaint, is sought to be substantiated by his duly sworn affidavit and documents Annexure-1 to Annexure-XVI, which are copies of the schedule charges, and correspondence exchanged between the parties. Since, the allegations, as asserted in the complaint, which also remains unrebutted and un-controverted, we are of the considered view that the amount as shown outstanding, amounting to Rs.8,205.51, on account of charging late fee and levy of interest, is arbitrary and illegal, as the OP did not contest the complaint and repudiate the allegations of the complainant by filing any reply or documents in this behalf.


    Further more, the non-appearance of the OP, also forces us to draw an adverse inference against them, inasmuch, as, that the OP has nothing to say in response to the allegations as leveled against them by the complainant. Hence, the result of the above discussion is that the outstanding amount of Rs.8,205.51 as is being shown in the monthly statement, is set aside and quashed, and he is not liable to pay the same.

    5. Resultantly, we allow this complaint, and the outstanding amount of Rs.8,205.51, being reflected in the monthly statement, is set aside and quashed. The litigation cost is quantified at Rs.1000/- payable by the OP to the complainant. This order shall be complied with by the OP within a period of forty five days after the date of receipt of copy of this order. The complainant has undertaken to collect the certified copy of this order from the office, free of cost, as per rules, whereas the certified copy of this order shall be sent to the OP through UPC. The file after due completion, be consigned to record room.
  • adv.sumitadv.sumit Senior Member
    edited September 2009
    Jarnail Singh aged 46 years son of Shiv Singh resident of village Bassi Maruf P.O. Baghpur District Hoshiarpur.



    Complainant


    vs.



    1.

    State Bank of India, Administrative Block, Sector 17, Chandigarh, Punjab through its General Manager.
    2.

    State Bank of India, Branch Office Mandi Area, Hoshiarpur through its Manager.


    Opposite parties


    1.

    The complainant namely Jarnail Singh has filed the present complaint under section 12 of the Consumer Protection Act,1986 (as amended upto date) “hereinafter referred as the Act.”. In short,the facts of the case are that the complainant opened A/c No.10138566408 on 28.5.2005 with OP No.2.
    2.

    It is the case of the complainant that on 29.9.2008, he went to the military canteen for purchasing the household articles. The complainant parked his scooter in front of the canteen and kept his hand bag in the dickey of the scooter containing ATM,FDR and pass book of post office alongwith other documents. When the complainant returned, he found his bag missing. The complainant approached OP No.2 to stop the payment and lock the ATM. That OP No.2 assured the complainant that the payment will be stopped and the ATM will also be locked. It is further the case of the complainant that he lodged DDR no. 51 dated 30.9.2008 with the police. The complainant also sent an application alongwith copy of DDR to OP No.2. The complainant also contacted the ATM department through phone to stop the payment. However,OP No.2 also assured the complainant that they will inform the ATM department. The complainant also paid Rs.150/- on 29.9.2008 and applied for new ATM with OP No.2.
    3.

    It is the allegation of the complainant that he went to OP No.2 and it was to his surprise that only the amount of Rs.1487/- was lying in his account. It is further the allegation of the complainant that due to negligency and deficiency on the part of the OP No.2, his ATM had been used by some stranger and the amount of Rs.17000/- had been withdrawn.
    4.

    It is further the allegation of the complainant that he received new ATM, and thereafter, he made a request to the OP-bank to provide secret code/ pin number but of no consequences and on the contrary, the bank directed him to deposit Rs.17000/- in his account , It is further the allegation of the complainant that he received letter dated 2.2.2009 from OP No.2 with the direction to deposit the amount of Rs.18400/-. The said demand is stated to be illegal, hence this complaint.
    5.

    OPs filed the joint reply. Preliminary objections vis a vis maintainability and non joinder of necessary party as Balbir Kaur, wife of the complainant is joint account holder were raised. On merits, the claim put forth by the complainant has been denied. However, it is admitted that the complainant alongwith his wife are the joint account holder of the bank. It is replied that secret pin code is directly sent to the party concerned and the ATM cannot be operated without using pin code. That in case of any problem or loss of ATM card, the complaint is lodged on toll free number , which is scribed on the ATM card. The complainant should have immediately lodged the claim on the aforesaid number by disclosing his secret code. It is further replied that as per information received, the complaint was lodged by the complainant at the call centre on 23.10.2008. The operation of the ATM card is controlled at Belapur, New Mumbai , where a server has been installed. The complainant only made a request to issue duplicate ATM on 29.9.2008 and never asked the bank to lodge any complaint regarding the loss of ATM card.


    It is further replied that the possibility cannot be ruled out that the wife of the complainant or some family member /friend of the complainant might have used the ATM card , who had the knowledge of secret code. . No one else could use the ATM card except by a person knowing the secret code. The complainant made a request to issue duplicate ATM on 29.9.2008 and copy of DDR had not been attached as the same is dated 30.9.2008. However, it is admitted that an amount of Rs. 150/- was deposited on 29.9.2008 by debiting the amount to the saving fund account of the complainant and not on 29.10.2008. It is further replied that when a duplicate ATM card is issued, or applied , the original ATM is delinked from the account but if any transaction is made from the card , then the amount is debited to the suspense account of the branch to which the card lost/destroyed is allocated. The transaction from the card is not possible without the secret pin code. The transaction by ATM card takes place, V-sat system. When the transaction is made by ATM , firstly it hits V-sat installed at Belapur, and then, to the branch account and if the account does not match , it is debited to the suspense account of the branch with the remarks 'cash disbursed but account not debited'
    6.

    It is further replied that in the present case, an amount of Rs.17000/- was withdrawn on 29.9.2008 through ATM from State Bank of Patiala, Branch Piplanwala. Similarly, a sum of Rs.18400/- in total was withdrawn through ATM card on 2.10.2008 from SBI, Branch Chabewal and in these withdrawals , the account of the complainant was not debited and on the contrary, the suspense account of the branch was debited. . That at the time of reconciliation of the suspense entries, the account of the complainant was debited and a sum of Rs.17000/- was recovered from the account of the complainant, which had been withdrawn from the suspense account of the branch. However, the remaining amount of Rs.18400/- could not be recovered as there was no balance in the account of the complainant, as such, the demand of Rs.18400/- alongwith interest was made from him. It is further replied that a camera had been installed in the ATM room at SBI, Chabewal and the photo of the person operating on 2.10.2008 was handed over to the police for necessary enquiry. Since, the complainant has failed to pay the amount of Rs.18400/-, therefore, the new ATM card cannot be issued unless the previous overdue amount alongwith interest is not paid by him.
    7.

    In order to prove the case, the complainant tendered in evidence his affidavit Ex.C-1, copy of pass book Mark C-2, identity card Mark C-3, copy of application for ATM Mark C-4, DDR Mark C-5, application dated 29.10.2008 Mark C-6, copy of ATM card Mark C-7, notice Mark C-8, letter dated 22.12.2008 Mark C-9 and affidavit of Balbir Kaur Ex. C-10 and closed the evidence.
    8.

    In rebuttal, the opposite parties tendered in evidence affidavit of D.K.Sharma Ex.OP-1, debit voucher dated 3.10.2008 Mark OP-2, statement of account Ex.OP-3, suspense account statement Ex.OP-4, application form for ATM Ex.OP-5 and letter dated 22.12.2008 Ex.OP-6 and closed the evidence.
    9.

    The learned counsel for the parties have filed written arguments. We have gone through the written submissions and record of the file minutely.
    10.

    The case of the complainant is that he opened A/c No.10138566408 on 28.5.2005 with SBI-OP No.2. That on 29.9.2008, the ATM card of the complainant was misplaced. It is the allegation of the complainant that he approached OP No.2 to stop the payment and lock the ATM, who in turn assured him that the payment will be stopped and the ATM will also be locked. The complainant also lodged DDR no. 51 dated 30.9.2008 with the police and its copy was sent alongwith application to the Bank-OP No.2. The complainant also contacted the ATM department through phone to stop the payment. The bank also assured the complainant that they will also sent the information to the ATM department. The complainant also paid Rs.150/- to OP No.2.on 29.9.2008 and applied for new ATM .
    11.

    It is the grouse of the complainant that it was to his surprise that only the amount of Rs.1487/- was lying in his account. It is further the allegation of the complainant that due to negligency and deficiency on the part of the OP No.2, his ATM had been used by some stranger and the amount of Rs.17000/- had been withdrawn.
    12.

    It is also the grouse of the complainant that although he received new ATM but the bank has not provided secret code .
    13.

    The OPs have admitted that the complainant alongwith his wife are the joint account holder of the bank. The Bank has raised the defence that secret pin code is directly sent to the party concerned and the ATM cannot be operated without using pin code. The complainant should have immediately lodged the claim and as per information received, the complaint was lodged on 23.10.2008. The complainant only made a request to issue duplicate ATM on 29.9.2008 and never asked the bank to lodge any complaint regarding the loss of ATM card. The bank has also raised the plea that when a duplicate ATM card is issued, or applied , the original ATM is delinked from the account but if any transaction is made from the card , then the amount is debited to the suspense account of the branch to which the card lost/destroyed is allocated. The transaction from the card is not possible without the secret pin code.


    The bank has also raised the plea that an amount of Rs.17000/- was withdrawn on 29.9.2008 through ATM from State Bank of Patiala, Branch Piplanwala. Likewise, a sum of Rs.18400/- was withdrawn through ATM card on 2.10.2008 from SBI, Branch Chabewal and in these withdrawals , the account of the complainant was not debited and on the contrary, the suspense account of the branch was debited. . That at the time of reconciliation of the suspense entries, the account of the complainant was debited and a sum of Rs.17000/- was recovered from the account of the complainant, which had been withdrawn from the suspense account of the branch. However, the remaining amount of Rs.18400/- could not be recovered . Since, the complainant has failed to pay the amount of Rs.18400/-, therefore, the new ATM card cannot be issued unless the previous overdue amount alongwith interest is not paid by him.
    14.

    Now the only point which calls decision from this Court is whether the transaction from the ATM Card is not possible without the secret pin code ? The answer to this is in the affirmative.
    15.

    This court can take the judicial notice that the ATM machine cannot be operated without using pin code. The case of the complainant is that on 29.9.2008, his ATM card was misplaced. The complainant approached the Bank with the request to stop the payment and lock the ATM. The complainant also lodged DDR and its copy alongwith application was forwarded to the bank. On the contrary, the bank has raised the plea that the complainant made a request to issue duplicate ATM and never lodged the complaint regarding the loss of ATM.
    16.

    The complainant has produced his affidavit Ex.C-1 in support of the averments contained in the complaint and has not filed any other evidence to prove that he made a request to the bank to stop the payment and lock the ATM. The Court can also take the judicial notice that secret code is directly sent to the party concerned and in this case to the complainant, therefore, the duty is casted upon the account holder to keep the secret code in safe and proper custody and in this case, the complainant has failed to do so and money was withdrawn through ATM, therefore, in such like eventuality, he cannot blame the bank as without using the secret code, neither ATM can be operated nor money can be withdrawn.

    The case of the complainant is that his ATM card was misplaced on 29.9.2008, therefore, it was for the complainant to get his account freezed but he has failed to do so, therefore, he can not draw any advantage from his own wrong and the bank cannot be held guilty for negligence or for rendering deficient services. Besides this, the bank has raised the plea in the reply supported with the affidavit Ex.OP-1 that the complainant only made a request to issue duplicate ATM. The complainant never lodged the complaint with regard to loss of ATM.


    17. The case of the complainant is that he moved an application dated 29.9.2008 for the loss of ATM to the opposite parties with the request to issue the new ATM. The said application dated 29.9.2008 with regard to the loss of ATM had not seen the light of the day. So much so, the complainant moved an application for direction to the bank to place on record the copy of application dated 29.9.2008. The opposite parties did not file the reply to the said application and the ld. Counsel for the opposite parties made a statement on 10.7.2009 that only the application dated 29.9.2008 moved by the complainant is already exhibited on the file as Ex. C-4 and no other application was filed by him. This being so the adverse inference is drawn against the complainant to the effect that either he had not moved the application dated 29.9.2008 or the said application, if produced, is not sufficient to support and supplement his plea with regard to intimation to the opposite parties qua the loss of ATM on 29.9.2008.


    18. As a result of the above discussion, it is held that the complainant has failed to prove any deficiency in service on the part of the OPs, with the result, the complaint is dismissed. No order as to costs.
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