Complainant by filing this complaint has submitted thathe along with his cousin brother friend started a partnership business in the year 2001 and for that purpose jointly opened an account with the op Central Bank of India being A/C No. 1354250701. But due to some dispute and some difference by and between the partnership Firm, complainant wrote a letter to the bank on 14.05.2008 and requested to stop operation of the aforesaid bank account being No.1354250701 and another 1000068 with a fixed deposit a sum of Rs. 2,00,000/- of the aforesaid bank to stop in all respect till further instructions and the op bank duly received the same on 14.05.2008 with affixed necessary stamp of Central Bank of India.
It is further submitted that complainant also submitted Revocation of Power of Attorney dated 12.05.2008 to the aforesaid bank on 14.05.2008 and the aforesaid bank duly accepted the same with necessary stamp of the bank. But due to urgency of money the complainant wrote a letter to the bank on 06.05.2010 and 30.06.2010 and requested the Bank authority to re-operation of the account being No. 100068 and issue of duplicate fixed deposit receipt dated 26.03.2002 of principal amount of Rs. 2,00,000/- plus interest accrued.
But complainant in the meantime went to the Bank and after enquiry it was noticed that a sum of Rs. 10,15,251/- including aforesaid fixed deposit were withdrawn after the letter issued by the complainant. Complainant stated that in the above situation the complainant further wrote a letter to the bank authority on 05.03.2011 and requested the bank authority to give detail statements of the complainant’s account since 17.06.2007 to 28.02.2011 and on receipt of the same from the bank, even after written instruction to the bank authority on 14.05.2008 the bank authority deliberately and illegally re-opened and en-cashed the amount with collusion with other person.
In the above circumstances, complainant submitted that due to such illegal act on the part of the bank, complainant wrote a letter to the bank authority on 17.07.2011 and requested the bank authority to produce original copy of letter dated 14.05.2008 but the bank authority did not take any action as per the complainant’s letter dated 07.07.2011 and due to such unfair practice on the part of the bank, complainant lodged a complaint to the Banking Ombudsman on 21,08.2012 and the Banking Ombudsman to save the Bank passed an un-reasonable order on 24.09.2012 and rejected the claim of the complainant.
Complainant further submitted that complainant is an un-employed person and due to earning his livelihood purpose, he decided to start a business with his relative and due to some disputes between the parties, the said partnership business is now closed and at the time of starting the said business, the complainant took huge amount from his friend and relative and they helped the complainant on good faith but complainant could not back the said loan amount to his relative due to unfair practice on the part of the Bank.
No doubt complainant is a consumer under the op and the Forum due to illegal act on the part of the Bank and prayed for redressal by directing the op to refund the entire amount as has been withdrawn by the 3rd person.
On the other hand op/Bank by filing written statement submitted that the op never received a letter dated 14.05.2008 and Revocation of Power of Attorney duly stamped as alleged and same is fabricated as upon close scrutiny it appears that the stamp/bank seal affixed on the letter to be different than the stamp held in the office of the op/bank. Op/Bank received a letter dated 06.05.2010 from complainant which has been duly received by Bank on 28.05.2010 duly stamped with Bank’s original seal for allowing the complainant to operate the account being No. 100068, issuing of fresh cheque books by cancelling old one and issuing of duplicate fixed deposit receipt. From the said letter dated 06.05.2010 it is also found that the date mentioned in that letter is also fabricated.
With reference to the statements made in paragraph nos. 7 & 8 of the complaint petition, op denied all allegations and further stated that the op/bank duly replied the letter on 05.03.2011 sent by the complainant on 11.03.2011 where the op bank asked the complainant to produce the relevant documents with a view to help the complainant in recovering his money as bank did not receive any letter dated 14.05.2008 and actually complainant filed a letter on 24.05.2012 which is evident from the papers annexed by the complainant in his complaint and the letter dated 03.09.2012 issued from the Office of the Banking Ombudsman and several correspondences were made between the parties and some of the letters are also annexed and thereafter on 17.08.2012 the Branch of the op wrote a letter to the Regional Office regarding the complaint of the complainant before the office of the Banking Ombudsman specifically mentioned their findings and on 21.08.2012 the Regional Office wrote a letter to the Secretary of Banking Ombudsman for closure of the complaint on the basis of the documents attach there.
Thereafter on 03.09.2012 op/Bank received a letter from the office of Banking Ombudsman for the purpose of a conciliation meeting and after the same the office of the Banking Ombudsman on 24.09.2012 passed an order rejecting the complaint of the complainant and the letters dated 17.08.2012, 21.08.2012 and 03.09.2012 are also filed and in view of the fact the entire complaint is vexatious and false and for which the present complaint should be dismissed.
Decision with reasons
On proper consideration of the entire materials as produced by the parties including the complaint and written version and also relying upon the evidence on record, it is clear that it is undisputed fact that the present complainant Nipun Kothari is one of the partner of Enaar Enterprises and there is another partner whose name has not been ventilated in the complaint and he is not made a party in this case. At the same time complainant has not filed the said partnership deed before this Forum to consider what was the power of both the partners in respect of the said business and transaction. Admitted fact is that the other partner had power in handling that account which is evident from the fact that the present complainant filed a prayer to the op/Bank on 28.05.2010 but date of the letter is noted 06.05.2010 and by that letter complainant prayed for cancelling the old cheque book which is in the office of the Constituted Attorney and to issue a fresh cheque book and also a duplicate fixed deposit receipt dated 26.03.2002 for principal amount of Rs. 2,00,000/- and cancelling the old one and by that letter complainant reported that Power of Attorney as granted by the complainant had been cancelled. So, it is clear that prior to 28.05.2010 no prayer was made by the complainant stating that he has revoked the Power of Attorney in favour of his partner.
Another factor is that this account was in the name of Enaar International and status of the account was partnership account. But it is admitted fact that Power of Attorney was issued by Kothari vide his letter which was in the bank. But bank authority failed to locate any such document produced by the present complainant that the said Power of Attorney was cancelled at any point of time prior to 28.05.2010. But complainant’s claim to the effect that he submitted a letter on 14.05.2008 intimating the fact of cancellation of Power of Attorney etc. But on proper scrutiny the banking authority found the slip which was in the said alleged letter was procured and fabricated one because the bank used one type of seal in the Branch of the op Bank and inspite of several reminders Kothari could not produce the original letter which is alleged to have been received in the bank official in the year 2008. But in this regard complainant has failed to prove by any cogent evidence that on 14.05.2008 complainant submitted any letter mentioning that fact.
At the same time complainant has failed to prove by any cogent evidence that the partnership Firm has been dissolved and all the accounting in between the partners have been decided and thereafter he prayed for such cancellation and revocation of Power.
Another factor is that the account was in the name of the said partnership Firm and his cousin and he also issued one Power of Attorney including time deposit and as per signatures of authorized MMDC transaction was made and was credited in the Central Bank account on 05.06.2010 and the amount was subsequently withdrawn as per mandate given by the bank. At the same time it is found that there is a constant dispute in respect of the said partnership and the present complainant’s status is partners. No document is produced by the present complainant to show that partnership Firm have been dissolved and the entire account has been completed.
Further it is found that complainant’s allegation is that he filed a letter on 14.05.2008 to the bank is a disputed one and truth is that bank received such complaint actually on 28.05.2010 that is after disputed transaction and the encashment was over.
Considering all the above fact, it is clear that it is completely a Civil dispute in between the two partners. But that another partner is not made a party in this case and in fact such a civil dispute cannot be decided by this Forum on the ground that Forum has no such legal authority to decide any civil dispute in between the partners in respect of partnership business and considering that fact we are convinced to hold that apparently it is completely civil dispute and partnership Firm has not yet been dissolved as per law, no statement of account has been prepared by the partners and finally dissolve of partnership establishment is also not proved.
So,the complainant may get such relief by filing such a suit before the Civil Court for such declaration and for such relief if it would be found that op has violated the terms and conditions of so called deed of dissolve of partnership account. At this stage without taking proper evidence, proper material, such civil a dispute cannot be decided by this Forum. But invariably in the Civil Court, complainant may get relief if complainant files such suit making other partner as a party and banking authority for proper relief.
In the light of above observation we are convinced to hold that the present case is not maintainable in the eye of law because nature of dispute is nothing but a civil dispute. So, complainant may move before proper Civil Court in this regard.
Accordingly the complaint fails.
Hence, it is
ORDERED
That the complaint be and the same is dismissed without any cost against the op on the ground that the present dispute is not related to consumer dispute but it is completely a civil dispute and in fact without any order of the Civil Court, the matter cannot be properly adjudicated not even by the bank.
