DISTRICT CONSUMER DISPLUTES REDRESSAL FORUM
SOUTH 24 – PARGANAS , AMANTRAN BAZAR, BARUIPUR, KOLKATA-700 0144
C.C. CASE NO. _609_ OF ___2014__
DATE OF FILING : 19.12.2014 DATE OF PASSING JUDGEMENT: _27/01/2017_________
Present : President : Udayan Mukhopadhyay
Member(s) : Subrata Sarker
COMPLAINANT : Asoke Kumar Das, s/o late Santosh Chandra Das of flat no.3, Ground Floor, 376, Naskarpara Road, (Putiary), P.O & P.S Haridevpur, Kolkata – 41.
-VERSUS -
O.P/O.Ps : 1. The Manager, Central Bank of India, Purba Putiary Branch, 70, Gangapuri, P.O Purba Putiary, Kolkata -93, P.S Haridevpur.
2. The Post Master Tollygunge Head Post Office.
3. The Post Master, Haridevpur Head Office
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J U D G E M E N T
Sri Udayan Mukhopadhyay, President
The short of the complainant is that he maintained a Savings Bank Account no.1068532893 with the Central Bank of India Purba Putiary Branch, the O.P-1, who has sanctioned a House Building Loan in favour of the complainant amounting to Rs.4,72,000/- with a margin 15% ( Borrower’s contribution) i.e. Rs.1,48,000/- against the cost of the flat of Rs.6,20,000/-. It has claimed that the primary security was given equitable mortgage of a flat measuring more or less 680 sq.ft super built up area being flat no.3, Third floor, South side GOURAV Apartment at premises no.63U, Raja Rammohan Road, PO Haridevpur, Kolkata – 82 and collateral security was NSC Rs.1 lac (face value) and Assignment of New LIC Policy on the life of the Borrower and repayable in 83 equated monthly installments (EMI) Rs.6440/- with moratorium period of one month from the date of first disbursement of the loan or after one month of completion of the flat whichever earlier with other terms and condition mentioned in the said Bank’s sanctioned letter. It has further claimed that bank has disbursed Rs.4,62,400/- on 17.3.2006 by issuing a banker’s cheque being no.016747 dated 17.3.2006 in favour of the Vendor/Seller of the said flat namely Dipashri Das Gupta . The photocopy is annexed as annexure II. It has claimed that O.P Bank had realized the monthly installment from the complainant’s (Borrower’s) said HBL account with the bank commencing from 1.6.2006 to 10.12.2012i.e. total amount of Rs.4,89,800/- and thereafter on 26.12.2012 the O.P Bank had realized further amount of Rs.1,65,264/- from the complainant and credited the said amount to the complainant’s (Borrower’s) said HBL Account to liquidate the said HBL account which is much earlier than the schedule period of repayment of loan fixed in the said Bank’s sanctioned letter. Accordingly it has further stated that the O.P Bank also issued no due certificate to the complainant on 27.12.2012, wherein it has clearly mentioned that HBL account has been fully liquidated. The photocopy of the same is annexed as annexure 3. It is appearing from the statement of HBL Account that O.P bank had charged Rs.337/- as other charges inspite of keeping the sufficient balance with the said savings bank account which is against the RBI and bank’s norms and those amount should be refunded/credited by the O.P to the savings bank account of the complainant together with up to date interest thereon which is unfair trade practice . It has been submitted that during the period of aforesaid HBL amount remaining outstanding out of the said 17 NSC ,out of which, one NSC bearing no.6NS26DD809404 dated 23.2.2001 face value of Rs.5,000.00 already matured on 23.2.2007 and the bank presented the said NSC to the issuing post office, Haridevpur for payment of the matured proceeds of the said NSC amounting to Rs.9506/- . It has further stated that the said post office already paid the matured amount of the NSC to the O.P Bank and as per contract the said amount was credited in the HBL account of the complainant on 8.5.2008 which reduced the loan amount repayable by the complainant. He has claimed that the said NSC although matured on 23.2.2007 but credited on HBL account on 8.5.2008 thereby complainant has suffered loss for the deficiency of service and other reasons.
The O.P-1 Bank has filed written version and denied all the allegations leveled against them except which are matters of record namely paragraph nos 1 to 4. It is the admitted case that complainant at the time of obtaining HBL , which was sanctioned to him over and above the Title Deed was mortgaged with the O.P Bank, deposited 17 NSC denominations of face value of Rs. 1 lac issued by Haridevpur Post Office and K.P Bazar Sub Post Office as collateral security, which are arranged serially from Sl no. 1 to 17 in page 3 of the complaint petition. It has stated that when the HBL account was running one NSC bearing no.26DD809404 of face valu8e of Rs.5000/- matured. The O.P Bank presented the said NSC to Haridevpur S.O for payment of maturity value of the NSC and the matured proceeds vide cheque no.202083 for Rs.9506/- was adjusted on 9.5.2008 against outstanding balance HBL Account no.1068532882 of the complainant During pendency of the loan account of the complainant with the O.P bank out of the remaining 16 NSCs three NSCs bearing nos. 29DD/309821 of face value of Rs.5000/- and 39EE/804777 and 39EE 804778 of face value Rs.10,000/- each attained maturity . The O.P bank presented the same for payment of their maturity value vide office letter dated 15.1.2009 by cheque favouring CBI Purbaputiary Branch . But such payment was not forthcoming. The O.P Bank made several correspondences dated 25.1.2013, 26.2.2013, 15.5.2013 and 21.5.2013 to Haridevpur Post Office and met the Post Master urging him to pay the maturity value , when the response of the Haridevpur S.O was not satisfactory. The O.P Bank wrote a letter dated 25.5.2013 to the Higher Authority , the Post Master , Tollygunge H.O to look into the matter whether these NSCs have been paid and to whom paid. The photocopy of the bank’s letters are annexed as Annexure A. The Post Maser, Tollygunge , Kolkata, informed the O.P Bank vide letter no.TLG-20/10/Cheque Cell/2013-14 dated 18.12.2013 that the aforesaid NSCs as per report of S.P.M Haridevpur S.O have been paid by cheque no.086639 dated 23.2.2009 for Rs.50,877/- drawn on State Bank of India, Southern Avenue Branch, Kolkata favouring Ashoke Das and delivered to Ashoke Das on 24.2.2009 by Haridevpur P.O. It may be mentioned here that although maturity value was Rs.43,630/- but the Post Office has given additional Rs.7247/- plus towards the post maturity interest for the period from maturity date to actual date of payment of NSC for which complainant has suffered no loss. It may be mentioned here that the O.P Bank doggedly pursued the matter for NSC payment by writing several letters and reminders and personal meeting to the Post Master and lastly to the Higher Authority i.e. Tollygunge Head Post Office and came to learn the same. Thereafter after closure of HBL Account vide his letter dated 24.12.2012 O.P Bank issued “No dues Certificate” on 27.12.2012 in respect of the documents lying with the bank against HBL. It is stated by the Bank that out of 17 NSCs 4 NSCs of Sl. No. 1 to 4 have been paid with remaining 13 NSCs lying with the Bank. So, he is to accept 13 NSCs which are prepared with their particulars on 27.12.2012 in the “No Due Certificate”. While complainant acknowledged “No Dues Certificate” for original title deeds etc. he refused to accept 13 NSCs insisting on delvi3ry of all 17 NSCs . In such a situation the O.P Bank sent letters dated 16.1.2014 through speed post on 16.1.2014 and 21.1.2014 by the address on record with the Bank in the sanctioned letter requesting him to receive 13 NSCs lying with the Bank, but the letters are returned without being received by the complainant . Accordingly in view of the letter of the Post Office dated 18.12.2013 and bank’s letter dated 16.1.2014 the Banking Ombudsman was pleased to reject the complaint, observing “There is no deficiency in the service rendered by the Bank”. It has been stated in the complaint petition that payment of 3 NSCs was alleged to have been made to one Asoke Das and not to Asoke Kumar Das as appearing in the Certificate which is erred by not making payment by cheque to be issued in favour of the Bank vide bank’s letter dated 15.1.2009. But before payment of NSCs, the Post office is required to meticulously checked and verified NSC numbers , registration number, dates and signature of beneficiary on record with the Post Office. However, the Post Master, Tollygunge H.O and Haridevpur S.O as necessary parties have been made as added parties, directing them to file their written version, when the facts surrounding such payment will emerge. It has claimed that the O.P Bank has no right whatsoever of NSC with all such rights vested in the complaint being beneficiary of the NSC. It has further claimed that Bank according to the norms and practice debited incidental charges, not penalty as alleged when savings Banks account of the complainant fell short of the minimum balance required to be kept with the Bank. It has further claimed that if the O.P after issuing “No due certificated” failed to deliver the remaining NSC , then definitely he has a case of deficiency of service and claim compensation. At this stage, there is no deficiency of service in the eye of Law and hence the Bank prays for dismissal of the case.
The O.P Bank also filed additional written version in respect of the written version filed by the Senior Superintendent of Post Offices, who was not impleaded at the time of filing written version. It has claimed that the discrepancies etc. in the statement made by the Tollyunge Head Post Office and Haridevpur Post office are glaringly manifested in several correspondences made by them even in the 2013 and 2014 and for that reasons perhaps they have purposely avoided and evaded in making averments in their written version as directed by the Ld. Forum. It has claimed that Senior Manager of the O.P Bank was informed by the Post Master, Tollygujgne Head Office vide letter dated 25.5.2013 that SBI Southern Avenue Branch Cheque no.086639 for Rs.50,877/- in favour of Mr. Ashoke Kumar Das was delivered to Ashoke Das on 24.2.2009 by Haridevpur P.O as per the report of Sub Postmaster, Haridevpur S.O ,Xerox copy of the said letter is annexed as Annxure A. . It is interesting to point out that again in reply to the letter dated 28.12.2013 of the Sr Manager of the Bank regarding payment of the said three NSCs the postmaster, Tollygunge Head Office, vide letter dated 4.1.2014 addressed to the O.P-1 Bank confirmed that payment of NSC maturity value of the said NSCs was paid by Haridevpur P.O to Ashoke Das on 24.2.2009 vide SBI Southern Avenue Branch Cheque no.086639 dated 23.2.2009 for Rs.50,877/-. But as pr the report from Branch Manager, SBI Southern Avenue Branch dated 7.11.2013 the above cheque was not paid by SBI upto his letter . Xerox copy of the said letter dated 4.2.2014 of the Post Master, Tollygunge H.O is annexed herewith. It has claimed that the contention regarding the cheque amounting to Rs. 45,030/- was issued in favour of Central Bank of India, Purba Putiary Branch on 17.2.2009 which was paid on 20.3.2009 being discharged on 18.2.2009 is totally false in view of the fact that though the payment of the said NSCs was made almost one year after their maturity, the final payment consists of only maturity amount without adding any post maturity interest for the delayed period. Accordingly the earlier letter of the Tollygunge Head Office and Haridevpur Post office confirming the cheque no. 086639 dated 23.2.2009 for Rs.50,877/- was delivered to Ashoke Das on 24.2.2009 , get all the more justified as the payment amount included the port maturity interest too. Accordingly O.P Bank prays for dismissal of the case.
Although postal department, O.P-2 did not file written version but filed one information parawise along with Annexure I to IV on 4.6.2015 and prays for treating the same as written version of O.P-2. The Bench has considered the same vide order no.9 dated 4.6.2015 and fix date for evidence by the complainant.
O.P-3 Post Master of Haridevpur Head Post Office did not any written version and case is proceeding against him in exparte.
According to the O.P-2 from the office record of Haridevpur Post Office and report received from the Tollygunge H.O and from the State Bank of India, Southern Avenue Branch (cheque paying authority), it appears that the details NSCs were discharged which are mentioned by the Central Bank of India, Purba Putiary Branch, wherefrom we find that Cheque no.084686 dated 17.2.2009 was paid on 20.3.2009 . So, the department has released the cheque amount of Rs.45,030/- in favour of Central Bank of India on 17.2.2009 which is equivalent to the matured value of the above mentioned NSCs. The authority of the Central Bank of India are the best persons who can ensure the receipt of the cheque and also confirm having its sources. Thus the dispute is no long involved in the litigation. It has started regarding issuance of cheque no.086639 dated 23.2.2009 for Rs.50,877/- that this matured inst5rument was delivered to Ashok Kumar Das on 24.2.2009 . The information was mis-communicated by the Post Master , Tollygunge H.O being an old case and non-availability of required documents instantly. It has claimed that Central Bank of India, Purba Putiary Branch can highlight the receipt of cheque no.084686 dated 17.2.2009 amounting to Rs.45,030/- paid by SBI, Southern Avenue Branch on20.3.2009. Accordingly O.P Post Office prays for necessary order.
Points for decision in this case is whether there is any deficiency in service or unfair trade practice on the part of the O.Ps or not.
Decision with reasons
We have meticulously scrutinized all the documents submitted by the parties regarding the disputed cheque no.084686 along with cheque no.086639 dated 23.2.2009 . It has derived from the record that cheque no.086639 dated 23.2.2009 for Rs.50,877/- i.e. matured instrument was delivered to Ashok Kumar Das (herein the complainant) on 24.2.2009 as per information cum written version filed by the O.P-2 dated 4.6.2015 at page 2 in para 6. It has mentioned that the information was mis-communicated by the Post Master, Tollygunge H.O being an old case and non-availability of required documents instantly. Thus the cheque no.086639 dated 23.2.2009 was delivered to Ashok Kumar Das the complainant on 24.2.2009 according to the O.P-2. It appears from annexure –I that although in the top name of the person has been written Ashok Kumar Das but in the bottom at the place of signature it is appearing the signature of Ashok Kumar Das. So, apart from that, from the annexure 5 which was issued by the State Bank of India, Southern Avenue Branch to the Sr. Superintendent of Post Office , South Kolkata Division, clearly demonstrates that one cheque no.084686 dated 17.2.2009 for Rs.45030/- of FG Central Bank of India, Purba Putiary Branch already paid by them on 20.3.2009 which was presented through inward clearly and further observed that as the cheque was clearly and subsequently sent to GAD, SBI, Kolkata Main Branch, we are not in a position to intimate the name of the payee of the cheque. It is also seen through letter dated 15.1.2009 issued by the Central Bank of India, to the Post Master of Haridevpur Post Office with information that the following NSCs were matured on 26.2.2008 which are pledged in bank’s favour for security of bank loan. So, requested to make payment of the same through cheque from Central Bank of India, Purba Putiary Branch in the name of Ashoke Kumar Das , which is coming from annexure 6 of the O.P-2. Although O.P-1 has denied their liability on the ground that collateral securities cannot be encashed if the total HB Loan along with interest be deposited and it is the claim of the Bank that out of 17 NSC only one NSC was encashed and three were sent for encashment to the O.P-3 Haridevpur Branch for which 13 NSCs out of 17 are lying to their custody and wanted to hand over the same to the complainant like the total debt and NOC but the complainant did not accept the same.
We have perused that O.P Bank issued letter to the Sr. Superintendent of Post Office , South Kolkata Division, on 25.3.2013 for payment of three NSCs in favour of Ashok Kumar Das, the complainant issued by Haridevpur S.O and intervention was sought for since no result comes out to inform the Haridevpur S.O . In this circumstances in a summary trial it is very difficult to find out who made deficiency of service, whether the O.P-1 or O.P-3 or the complainant has received the said cheque value of NSC or not. All these things are required to be investigated by the competent police authority having its jurisdiction ,because we have observed and after scrutiny of all documents it appears that fraud practice was acted upon but who did it cannot be said at this moment and responsibility cannot be fixed without investigation of the police department, specially CID West Bengal since the police stations are different of the parties. In order to find out the truth investigation through CID is required ,otherwise it is very much difficult to hold the deficiency in service as well as unfair trade practice of any of the parties since clear picture has not yet been established and only some documents, denial etc. are coming that is not suffice to say or believe holding the chair of Consumer Forum without thorough investigation wherefrom the said three NSCs were missing and who encashed the said cheques ,whether O.P-1 Central Bank of India or the complainant and whether the cheque was issued for the said NSC by the O.P-2 on the basis of the O.P-3 being a cheque issuing authority.
So, all these very complicated points are required to be considered by the efficient team of CID ,otherwise it would be very much difficult to hold who has acted deficiency in service or unfair trade practice.
It may be mentioned here that we have tried to find out from the record who is in deficiency of service but unable to fix satisfactorily for want of believable documents ,that is why, date of judgment was deferred from time to time and lastly after giving all efforts we find that complainant will not get relief in this fraud case where investigation is required and on the basis of the documents it cannot be said that O.P-1` or O.P-2 or O.P-3 are liable to pay the same since it is not known to us who has encashed the said cheque.
Hence,
Ordered
That the C.C.no. 609 of 2014 is disposed of with a liberty to the complainant to approach to the appropriate authority of investigation in light of the observation made in above for detecting the fraud over the said three NSCs and wherefrom the amount of said NSC was encashed and who is the beneficiary of the said amount.
Complainant is also at liberty after detecting the said fraud by the competent authority of investigation to file separate case to realize the said amount in an appropriate Civil Court in light of the observation made in above.
Let a plain copy of this order be served upon the O.P through speed post and to the complainant free of cost.
Member President
Dictated and corrected by me
President
The judgement in separate sheet is ready and is delivered in open Forum. As it is ,
Ordered
That the C.C.no. 609 of 2014 is disposed of with a liberty to the complainant to approach to the appropriate authority of investigation in light of the observation made in above for detecting the fraud over the said three NSCs and wherefrom the amount of said NSC was encashed and who is the beneficiary of the said amount.
Complainant is also at liberty after detecting the said fraud by the competent authority of investigation to file separate case to realize the said amount in an appropriate Civil Court in light of the observation made in above.
Let a plain copy of this order be served upon the O.P through speed post and to the complainant free of cost.
Member President
