BEFORE THE DAKSHINA KANNADA DISTRICT CONSUMER  DISPUTES REDRESSAL FORUM, MANGALORE

                                                   Dated this the 5^thOctober 2016

                                                                PRESENT

SMT. C.V.SHOBHA          :  HON’BLE PRESIDENT

SMT.LAVANYA M. RAI    :   HON’BLE MEMBER

COMPLAINT NO.280/2012

(Admitted on 1.09.2012)

Mrs. Zareena Mohammed,

W/o Mr. H.B. Mohammed,

Resident of Retreat Apartments,

S.L. Mathias Road,

Mangalore.

                                           …….. COMPLAINANT

(Advocate for the Complainant: Sri DS)

                                                                                                      VERSUS

1. The Authorised Signatory,

And Branch Manager,

M/s. Sundaram Finance Limited,

21 Patullas Road,

Chennai  6000 002.

2. The Barnch Manager,

Sundaram Finance Limited,

Above Pabbas Cream Parlour,

Krishnaprasad Complex,

Lalbagh,

                                  …….OPPOSITE PARTIES

(Opposite Party No.1: In person)

(Advocate for the opposite Party No.2: Sri NKMG)

ORDER DELIVERED BY HON BLE MEMBER

SMT. LAVANYA M.RAI:

I.       The complaint is filed Under Section 12 of the Consumer Protection Act alleging deficiency in service as against the Opposite parties claiming certain reliefs.

          The brief facts of the case are as under:

The complainant had approached the opposite party bank on 10.3.2010 inconnection with the availment of loan of a sum of Rs. 60 lakhs at that point of time the concerned person of the opposite party assured that financial accommodation could be extended to the complainant provided by paying a sum of Rs. 5,515/ in advance thereafter the complainant had to sign the requisite loan agreement and other connected papers and also had to offer collateral security.  Accordingly complainant had paid a sum of Rs. 5,515/ by way of cheque to the above said office person.  After that the complaint approached the office person inconnection with the availment of loan, after few days, the opposite party was unwilling to extend the financial accommodation to the complainant.  Hence complainant had asked the office person to return the cheque for which he had answered the same would be sent within a reasonable point of time.

After that 1 year laps the date of issue of the said cheque the complainant did not receive the cheque.  So the complainant visit the opposite party and asked for the return of cheque with the said person he return the cheque, when the complainant updated the pass book and the complainant find out that the amount of Rs.5,515/ cheque bearing No.176143 Mangalore Branch LHH Road have been debited from complainant account without the disbursement of loan.  The complainant claimed to refund the cheque amount from the opposite parties office person he was refused to refund the same.  Thereafter the complainant issued legal notice but opposite party not replied the same.  Hence the about complaint filed under section 12 of the Consumer Protection Act 1986 seeking direction from this Forum to refund the amount with 12% interest per annum from the date of issue cheque along with compensation and cost of the proceedings.

II.     Version notice served to the opposite party No. 1 & 2 by RPAD.  Version filed stated that the opposite party No.1 is not in the business of Housing Finance.  Hence complainant neither approached the opposite parties for sanction of home loan nor submitted thecheque of Rs. 5,515/ there is no privity between the complainant and opposite party No.1.  The opposite party No.1 wrongly been brought in to the proceedings.  Therefore prayed dismiss the complaint for misjoinder of the parties. 

III    In support of the complainant Mrs. Zareena Mohammed (CW1) the complainant filed affidavit reiterating what has been stated in the complaint and produced document No.1 to 4.  On the other hand one Mr. Ramesh P Bhat Senior Branch Manager (RW1) filed counter affidavit and answered the interrogatories served on him and got marked Ex R1 to R4 for the opposite party. 

In view of the above said facts, the points now that arise for our consideration in this case are as under:

1. Whether the Complainant proves that the opposite parties have committed deficiency in service?
2. If so, whether the Complainant is entitled for the reliefs claimed?
3. What order?

          We have considered the notes/oral arguments submitted by the learned counsels and also considered the materials that was placed before this Forum and answer the points are as follows:

            Point No (i):  Negative

            Point No (ii) to (iii): As per the final order. 

REASONS

4. Points No.(i) to (iii) : The complainant in order to substantiate the averments made in the complaint filed affidavit supported by documents i.e. Document No.1 to 4.  The document No.1 Account statement of Royal Bank of Scotland which shows that the amount of Rs. 5,515/ withdrawn from the complainant account No.1469640.  But on perusal of Ex R3 which clearly shows that the cheque is not obtained by the opposite party and requested the complainant to issue notice to the concerned persons in this regard.  Further opposite party also submitted that they are not in the business of housing finance and there is no privity between the complainant and opposite party.  Inspite of that the complainant has not implead the necessary party.  We also observed that the complainant not produced any documents to show that opposite party has received the above mentioned cheque and also not produced any documents to show that proposed loan documents giving only after issuing cheque of Rs.5,515/ to extend the loan facility is not at all believable. Further, the opposite party take theshelterthat the branch office of opposite party not obtained the cheque hence in this regard the opposite party No.2 issue notice dated 2.09.2011 which is clearly reveals in Ex R3.  Furthermore we also noticed that the complainant paid the amount of Rs. 5,515/ by way of cheque to the office person of the opposite party whose name and address not mentioned in the complaint and further the complainant not arrayed as necessary party of the above said office person. In this, the complainant not establish the case and not proved the documentary evidence to show that Rs.5,515/  was debited from the complainant account by the opposite party. On perusal of the oral as well as documentary evidence available on record we find that the opposite parties denied the entire everments and facts made in the complaint.  When that being so the entire burden laid upon the complainants to establish that there was deficiency of service on the part of the opposite party.  Except the self serving statement of the complainant no such material evidence placed on record to prove the allegationsof the complainants made in the above complaint, hence we are of the considered opinion that the complainant is liable to be dismissed for the reasons recorded herein above.

      In the result, we pass the following:

ORDER

The complaint is dismissed.  No order as to cost.

Copy of this order as per statutory requirements, be forward to the parties free of costs and file shall be consigned to record room.

(1 to 6 pages dictated to the Stenographer typed by her, revised and pronounced in the open court on this the   5^th day of October 2016.)

             MEMBER                                                       PRESIDENT

(SMT. LAVANYA M.RAI)                                      (SMT. C.V. SHOBHA)

D.K. District Consumer Forum                           D.K. District Consumer Forum

             Mangalore.                                                             Mangalore.

ANNEXURE

Witnesses examined on behalf of the Complainant:

CW1 Mrs. Zareena Mohammed

Documents produced on behalf of the Complainant:

No.1: State of Account of Royal Sundaram Bank

No.1: Legal notice dated 16.11.2011

No.3: Postal Acknowledgement

No.4: Letter of rectification dated 6.07.2012

Witnesses examined on behalf of the Opposite Parties:

RW1  Mr. Ramesh P Bhat, Senior Branch Manager.

Documents marked on behalf of the Opposite Parties:   

R1  Authorization letter

R2  Certified true copy of extract from the minutes of meeting of the board of directors

R3  Office copy of the reply notice

R4  True copy of certificate of registration.

Dated: 05.10.2016                    MEMBER