D.O.F.28.1.08 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Preethakumari: Member Smt.M.D.Jessy: Member Dated this, the 13th day of April 2010 CC.20/2008 Jabir.V.K., Near Arabic College, Pappinissery West, Kannur Dist. (Rep. by Adv.E.K.Ramakrishnan) Complainant The Chief Manger, State Bank of Travancore, opposite party Main Branch, Kannur. (Rep. by Adv.V.V.Gopinathan) O R D E R Sri.K.Gopalan. President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay he amount covered by the fixed deposit receipt Rs.6,40,2134/- with its subsequent interest till realization and Rs.1,00,000/- as compensation for the damages together with the cost of this proceedings. ` The case of the complaint in brief are as follows: the complaint who had been in Kuwait from 1989 to 2006 has a fixed deposit of Rs.6,00,000/- deposited on 30,8.06 with the opposite party and matured on 29.8.07 with a maturity value of Rs.6,40,213/-. Complainant presented the receipt on 29.8.07 to the Union Bank of India, Kannur branch for collection. They sent the instrument to opposite party but it was returned with a letter dt.30.8.07 stating that they had discussion with the complainant on 29.8.07. There was no such discussion. Legal notice was sent and it was replied by opposite party with false statements. Though the instrument was presented second time opposite party sent the same back again. The complainant had another FD of Rs.6, 00,000/- deposited on 5.10.06 for a period of 1 year. To meet an urgent requirement on 23.12.06 the complaint approached the opposite party and requested to premature close of the fixed deposit dt.30.8.06. At that time the staff of opposite party noticed FD dt.5.10.06 and suggested that it is better to close that FD than the earlier FD for saving interest. Accordingly the second FD dt.5.10.06 was closed. Consequently the seals affixed earlier in the first fixed deposit (30.8.06) was cancelled by noting necessary endorsements and returned the same to the complainant. The complainant is entitled to get the amount deposited with promised interest on the date of maturity. But opposite party failed to pay the amount due to the compliant. The hard earned savings of the complaint has been misappropriated and with held by opposite party without any valid reasons. The story fabricated by the opposite party in the reply notice is totally false. this complainant has not received any letter dt.8.1.07 as stated in the reply. The contention that there was no consideration for the FD receipt is totally false and baseless. Due to the fraud played by the opposite’s party he has suffered much financial difficulties and mental pain. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the allegation and averments contending as follows:-Since elaborate and detailed evidence is required the complainant should approach the civil court. The complainant has authorized the opposite party to debit it required amount to his S.B account. Accordingly opposite party arranged to issue a Term deposit certificate in his favour. As per authorization the requisite amount was to be debited from complainant’s savings bank account. The opposite party bank prepared a Term Deposit Receipt No.67017279011 dt. 30.8.06 for Rs.6, 00,000/- and handed over to the complainant. Before handing over the receipt to the complainant the bank was to ensure that sufficient amount has been provided to debit to his savings Bank account. The entire process was done when the bank was undergoing core banking process. As the core banking system was not then stabilized, the required funding was not affected and coessentially the said receipt was issued and delivered by mistake i.e. without funds. The non funding and consequent ‘Non Existence’ of the said Term Deposit was later identified only when the complainant came for closing the account. Immediately when it was identified that there is no such account in the system, the fact was convincingly conveyed to the complainant and appraised him about the situation in which the opposite party bank was un able to pay any amount since there was no real account exiting in his name. This matter was already been discussed with the complainant personally and also through registered letter directly to the complainant and to his Advocate on 8.1.07 and 11.9.07 explaining the reason for repudiating the payment. It could be seen from the statement of account that there was no withdrawal of amount on that particular day. Subsequently complainant approached the opposite party and at his request amount was transferred for effecting FD. Though the complainant was requested to return the FD receipt already issued earlier without consideration he did not do so. Instead the complainant preferred a complaint before the police alleging that the bank official cheated him in respect of the alleged transaction. After investigation the police authorities referred the matter as a mistake of facts. There is no deficiency on the part of opposite party. Opposite party is not liable for any relief sought in the complaint. Hence to dismiss the complaint. On the above pleadings the following issues have been taken for consideration. 1. Whether there is any deficiency on the part of opposite party? 2. Whether the complainant is entitled for the remedy as prayed in the complaint? 3. Relief and cost. The evidence consist of the oral evidence adduced by PW1 and documentary evidence marked as Exts.A1 to A10 on the side of complainant and oral evidence of DWs1 to 4 with documentary evidence marked as Exts.B1 to B9 on the side of opposite party. Issue Nos. 1 to3 The case of the complainant is that he had a fixed deposit of Rs.6 lakhs deposited on29.8.07. On the date of maturity he presented the receipt to the Union Bank of India, Kannur for collection. They sent it to opposite party. But opposite party returned it with a letter dated 30.8.07 stating that it is returned on the basis of talk with the complainant. The complainant had no such discussion with opposite party. Legal notice sent to furnish reason and to honour the same during the next presentation. Notice replied by opposite party with cooked up facts. Receipt was returned second time also. Complainant had another fixed amount of rupees six lakh in the opposite party’s bank which he deposited on 5.10.06 for a period of one year. On 23.12.06 complainant requested to close prematurely the fixed deposit of 30.8.06. Receipt was submitted and affixed seal for its premature closure. At that time, opposite party’s staff themselves noticed FD dated 5.10.06 and suggested that it was better to close the FD of 5.10.06 than the earlier FD of 30.8.06 for saving interest. Accordingly FD of 5.10.06 was closed and the seal affixed earlier in the FD of 30.8.06 was cancelled by noting necessary endorsements and returned the same to the complainant. But on the date of maturity opposite party has failed to pay the amount due to the complainant. Per contra opposite party contended that the FD receipt was issued without consideration as ‘No Funding’ was affected due to the technical snag developed with the computer system during the change over to the CORE Banking system. Opposite party further contended that when the complaint turned up for closing the account, the opposite party found that there was no account in the book of the bank.On scrutiny it was also seen that no relative funding was effected through the computer from his account. Opposite party also contended that the term deposit receipt wrongly issued by the opposite party in the name of the complainant and relative funding was not affected by the system from the account of the complainant. The crux of the matter is to find whether or not the amount purported to be transferred to the Fixed Deposit amount had been debited from the S.B account of complainant. It is interesting note that complainant is not much bother about detailing the S.B account. Ext.A3 notice will go to show that nothing has been mentioned with respect to the details of debiting of the amount rupees six lakh on 30.8.06. The deposit was on 30.8.06. There arose the question what was the debit on that day and what was the position of SB account of complainant then on the day. Complainant does not say anything with respected the amount debited on the day 30.8.06 complainant has not led any evidence from which it could be concludes that such an amount of Rs. 6 lakh had been debited from the account of the complainant. He could have mentioned at least the day when amount was debited. Complainant has filed proof affidavit in lieu of chief examination which also adduce no evidence with respect the amount of debit of disputed Rs.6 lakh, without which consideration for the FD stands unproved. No where in the proof affidavit complainant speak of debit of Rs. 6 lakh in connection with the FD on 30.8.06. Complainant should have explained whether there was debit of rs.6 lakh on 30.8.06 while issuing the receipt, why because opposite party has the case that having understood that the funding was not effected and money remained safe, the complainant subsequently having made use of it for another term deposit for that amount. In other words complaint made use of the same balance amount for another FD of same amount. Ext.B8 statement of account shows post date 29.8.06 value dt.29.8.06 CAS CASH CHEQUE No.185672 debit 15000/- Balance 663259-21 per contra post date 5.10.06 value date 5.10.06 WDLTFR Debit 60000/- balance 22275.23 cr clearly shown. These entries on 29. 8.06 and 5.10.06 reveals that Rs.6,00,000/- debited only on 5.10.06. On examination of entire entries in Ext.B8 statement of account it can be found only single entry of debit of Rs.6, 00,000/- that is on 5.10.06. Except the entry that has been made on 5.10.06 with a debit of Rs.6, 00,000/- there is no other entry anywhere in the entire statement of account Ext.B8 with a debit entry of Rs.6, 00,000/-. In short there is only single entry of debit with an amount of Rs.6, 00,000/-. In short there is only single entry of debit with an amount of Rs.6, 00,000/-. This finding did not challenged by the complainant. Complainant at any time did not take interest to make an explanation regarding the amount of debit. Account reveals that at any point of time except the above mentioned entry there was no case of debiting of an amount of rs.6, 00,000/- at a stretch. Herein it can be very well see that there is a debit of Rs.6, 00,000/- on 5.10-.06 as well as a fixed deposit of same amount. But at the same time the FD on 30.8., 06 have not been backed by any such debit. That only means the FD receipt issued on 30.8.06 is without consideration. Mere issuance of receipt without support of consideration will not create legal liability enforceable by law.” Ex nudo paeto non oritur actio” out of a nude pact no action arises. It is very correct to note the maximum “Nuda Pactio obligationem non parit which means a naked agreement does not beget an obligation. Thus there is no doubt that consideration is a must and the complainant herein has the burden to prove that the bank has debited an amount of Rs.6,00,000/- for issuing a receipt of FD for such an amount. Merely showing the receipt under the existing circumstances will not help the complainant to be entitled to withdraw the amount of DD. We have gone through he records, documentary and oral evidence adduced by both sides. It is quite clear that there is substance in the submission of the bank that the fixed deposit receipt in question was issued by mistake without debiting the amount. The same issue has been considered in Major Sarjit Singh Zohn vs. Industrial Development Bank of India Ltd. Holding that issuance o FD receipt by mistake is not deficiency in service II (2006) CPJ 159. Complainant failed to prove that the opposite party bank had extracted that much amount of complainant by means of debit, when the FD receipt in question was issued. The urgent need and withdrawal of amount of Rs.6, 00,000/- on 23.12.06 has also seems to be some what unusual even if taking the second FD is not considered otherwise. The fact that police referred the mater has also its impact on the genuinity of complainant’s case. In the light of the forgoing discussion we are of the view that the complainant is not entitled for any remedy since he failed to establish his case. The issues 1 to 3 are found against complainant. In the result, the complaint is dismissed. However, no order as to costs. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Fixed deposit receipt issued by OP for Rs. six lakh A2.Copy of the letter dt.30.8.07sent by OP to Br. Manager, Union Bank of India,Kannur A3.Copy of the lawyer notice sent to OP A4.Reply notice A5.copy of the petition submitted before Town Police station, Kannur A6.Acknowledgement for receipt of petition A7.Copy of the petition submitted before S.P, Kannur A8.Acknowlegement for petition A9. Paper publication (Sudinam) Exhibits for the opposite party B1.Debit voucher dt.30.8.06 B2.credit voucher dt.30.8.06 B3.Copy of SCR.32001 deposits long enquiry B4.Copy of the transaction enquiry B5.Copy of the letter dt.8.1.07 sent to complainant B6.Copyof the journal of uninsured regd.letter of the OP B7.Copy of outward register maintained by the OP B8.Statement of account of complainant from1.7.06to31.12.07 B9.Copy of the outstation collection for the period from 30.3.06 to13.3.07 Witness examined for the complainant PW1.Complainant Witness examined for the opposite party DW1.K.N.Sasi DW2.K.T.Sudhir DW3.M.Gopalakarishna DW4.P.K.Bhaskaran /forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | HONORABLE PREETHAKUMARI.K.P, Member | HONORABLE GOPALAN.K, PRESIDENT | HONORABLE JESSY.M.D, Member | | 
