D.O.F.28.4.06

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   12^th  day of  May    2010

CC.84/2006

T.J.Kurian,

Thongumuttil House,Parappuram,

Perumbhavoor,

Ernakulam. Dsit.                                                           Complainant

(Rep. by Adv.K.P.Sarith)

1. General Manger,

   Union Bank of India,

   Head office at Nariman point,

   Mumbai.

2. Senior Manger,

   Union Bank of India,                                      Opposite parties

   Main Branch, Kannur.

  (Rep. by Adv.K.Vijayan)

O R D E R

Smt.K.P.Preethakumari, Member

            This is a complaint filed under section12 of consumer protection act for an order directing the opposite parties to pay Rs.50, 000/- as interest along with Rs.10, 000/- as compensation and cost.

            The case of the compliant is that he had entered into a contract with one plantation group for a sale of immovable property situated in RS.146/4A5 at Balal village, Hosdurg Taluk, Kasaragod and the sale was completed on 1.12.04 and the purchaser had availed a loan from2nd opposite party for an amount of Rs.20 lakhs and the complainant was made to believe that the opposite party would pay the same to him and hence he had completed the sale proceedings. For this purpose the complainant has opened an SB account to enable the bank to deposit the money to be paid to him. There was a balance of Rs.50, 000/- to be paid to the complainant by opposite party on behalf of the plantation group. The opposite party had given Rs.15 lakhs already to the complainant on behalf of the plantation group. The complainant was made to belief by the plantation group that his amount of Rs.5, 00,000/- already credited to the complaint’s account before the 2^nd opposite party and hence he was issued cheque to 3^rd party and the same was dishonored due to insufficient fund. When the same was taken to the notice of plantation group, they told that the opposite party bank were collecting interest at the rate of 12% from plantation group and the bank manager directed the complainant to get the cheque encashed . When the complainant took up the matter with the 1^st opposite party the payment was finally made on 4.10.05. The bank withholds the amount of Rs.5 lakh without assigning any reason and hence it is unfair trade practice and deficiency in service. So the complaint issued a notice to opposite party on 27.10.05. But instead of paying the interest they issued a reply stating unsustainable contention. Hence this complaint.

            In pursuance to the notice issued by the Forum opposite parties appeared and filed their version.

            The Chief Manger of 2^nd opposite party filed version on behalf of 1st opposite party also, since both are the one and the same institution. According to opposite party the complainant is not a consumer since he has not availed any service or purchased anything for consideration and hence there is no contractual obligation between them. Complainant had filed the complaint by suppressing so many material facts. The complainant is the power of Attorney holder of the property which belongs to so many persons and he sold the property on that capacity and hence he has no grievance and no locus standi to file the complaint .More over the Forum has no jurisdiction to try the case since the agreement is executed in Balal in Kasaragode District. The real owners of the property, the purchaser plantations etc. are necessary parties and they are not arrayed as parties and hence the complaint is bad for non joinder of necessary parties. The opposite parties have not made any assurance that the opposite parties would pay Rs.20 lakhs. Since they had no need to do so as the loan is taken by the purchaser and not the complainant. The sale of  property was as per the agreement between the complainant and the plantation company and in which the opposite parties are not parties and the production of it will prove that the opposite parties are not liable to pay anything to the complainant. The bank has not directed the complainant to open savings bank account. The opposite parties have no need to withhold the payment if any due to the complainant and it is the liability of the plantation who purchased the property from the compliant to pay him sale consideration. The opposite parties role in the deal are only that of a financier who financed the plantation company to purchase the property and to sanctioned loan was given to plantation. The plantation company purchased pay order No.31134 and 31135 dt.7.12.04 for Rs. 5 lakhs each and another DD No.60826 dt.712.04 for Rs.10 lakh and it is the discretion of the complainant either to present those instruments in his account with opposite party or through another bank as the date of choice. The complainant has not disclosed the reason for his failure to claim the amount after the sale. The plantation company, purchaser withheld the payment that after the completion of the sale it has come to the notice of the plantation that the complainant cheated them by execution of sale deed using power of attorney of his deceased mother and finally the same was paid after rectifying the mistake by execution of fresh deed in their favour by all the legal heirs of his deceased mother. The amount of Rs.  5 lakh come to complainant’s account on 4.10.05 not because of any intervention of opposite parties but as the complainant presented the pay order for payment in his account on that day. The complainant failed to present the instrument prior to 4.10.05 for reasons best known to him alone and the opposite parties are not responsible for the same. The opposite parties being the paying banker only has the responsibility to honour the chequue provided there is sufficient fund in the account. The bank has not collected any interest from the complainant. The collecting of interest on the loan amount advanced to a third party is not the complainant’s concern and he has no right to intervene in such matters and ask to pass the same to him. If the purchaser plantation is liable to pay any amount or interest, he has to claim the same from opposite party. The opposite parties are not an agent of Plantation Company or anybody for such matters. The complainant had presented the  revalidate of pay order on 4.10.05 and on the same day the amount was credited in his account and hence there is no deficiency in service and unfair trade practice on the part of the opposite party and hence the complainant is liable to be dismissed.

            On the above pleadings the following issues have been raised for consideration.

1. Whether the complainant is a consumer and the Forum has jurisdiction to try

      the case?

2. Whether there is any deficiency in service on the part of opposite parties?

3. Whether the complainant is entitled to any relief?

4. Relief and cost.

            The evidence in this case consists of the oral testimony of PW1, DW1 and Exts.A1 to A3 and B1 and B2.

Issue No.1.

            The complainant’s case is that he had sold properties to a plantation group and the purchaser had availed loan for Rs.20 lakhs from opposite party and the opposite party had defaulted payment of Rs. 5 lakhs as the balance amount of consideration, even though the purchaser had entrusted the opposite party a pay order for the same amount and due to the  deficiency of service the complainant had sustained loss and to prove his case he has produced Ext.A1 lawyer notice, A2 reply notice and A3  statement  of accounts. To disprove the case the opposite party   also produced Ext.B1letter by the purchaser and B2 the voucher singed by the complainant for producing pays order. The opposite party contended that the complainant is not a consumer as he is neither a buyer of any article from the opposite partiers nor availed any service from the opposite party for consideration. The opposite party in his version admitted that the complainant opened savings bank account and the plantation company purchased Pay order No.31134 and 31135 dt.7.12.04 for Rs. 5 lakhs each and another DD.No.60826 dt.7.12.04 for Rs. 10 lakhs and the Ext.A3 the statement of account with respect to savings account No.3612010008005 which is in the name of the complaint shows that the complainant is the SB account holder of opposite party. More over while going through the Exts.A3 which is from 7.12.04 to 31.3.05, it is seen that the complainant had deposited Rs.20, 03,005/-. This shows that the complainant had availed the service of opposite party for consideration. So whatever may be the purpose it is true that the complaint availed the service of opposite party for consideration   and the 2^nd opposite party is situated within the jurisdictions of this Forum and hence we hold the view that the complainant is a consumer under section 2(1) (d) of the act and this Forum has ample jurisdiction to try the case and hence issue No.1 is found in favour of the complainant.

Issue No.2 to 4

            The complainant contended that he entered into a contract with one plantation group for selling property situated at Balal village  and the purchaser availed loan Rs.20 lakhs from 2^nd opposite party as purchase loan for giving purchase price to the complainant . But he deposed before the Forum that “Needs Medical Equipments  apJm-´-c-amWv  plantation group  \p hkvXp hnäXp   and the agreement is with the Needs Medical Equipment and with the complainant and the opposite parties re not a party to the agreement and hence it is seen that the bank is acting as a role of financier of the purchaser who availed the loan and hence with respect to the loan amount there is no contractual liability with the bank. The opposite party contended that the opposite party had promised to pay the complainant the balance amount of consideration by crediting complainant’s account. He has not even produced the purchase agreement. The complainant further contended that he had issued cheque to 3^rd party and that cheques were dishonored. But he has not produced any documents to prove these contentions.

            Yet another case of the complainant is that even though there was sufficient fund, the opposite party delayed payment and is collecting 12% interest for the above said amount from the plantation group. But according to opposite parties the payment of Rs.20 lakh is a part of the sale and hence the purchaser already purchased pay orders and DD on 7.12.04 in the name of the complainant for the above amount and the opposite parties are not responsible for any delay. Admittedly the plantation company purchase a two pay orders and a DD in the name of the complainant for Rs.20 lakh and out of which a pay order for Rs.5 lakh was not encashed. But the complainant has no case that the opposite party has not encashed the above said postal order even though he has produced the same before the opposite party for encashment   during the date on which the opposite party had encashed the other two instruments. So they have no case that the pay order for Rs.5 lakh is in the complainant’s hand. As per section 9 of N.I Act, it is necessary for a person should get possession of the instrument, if payable to the bearer or he must be the payee. So the complainant  has not proved that the instrument was in his possession. But he contended that the 2^nd opposite party has shown him the instrument. But he has not produced any evidence to prove that. Above all the opposite parties contended that the complainant is not the owner of the property and the real owners and the buyer plantation group are necessary party to the complaint and has not taken any steps to implead the real owners. The complainant deposed before the Forum that “ Rm³hnä hkvXp Fsâ  family   property BWv. Fsâ mother sâ Ah-Im-i-amWv F\n-¡p-f-f-Xp. Fsâ A½¡v R§Ä10-a-¡-fm-Wp-f-f-Xp. Hk-y¯v {]Im-cT   F\n¡v am{X-amWv Ah-Im-i-ap-f-f-Xv. F{Kn-saâp-sh-¡p-¶-k-a-b¯v    power of attorney  bÃmsX  thsd-A-h-Im-i-anÃ. Fsâ A½ 20-02 ac-W-s¸«p . 2004- \nb-a-{]-Im-c-T-ap-à-ymÀ {]Im-cT hn¡m³ A[o-Im-c-an-Ã. Cu Imc-yT plantation group\p a\-Ên-em-b-t¸mÄ sXäp-Xn-cp-¯m³ Ft¶mSp Bh-i-y-s¸-«n-cp¶p. So from this it is clear that the complainant has come before the Forum not with clean hands. More over the Ext.B1 is a request written by the above said plantation company to the 2^nd opposite part which shows that they have revalidated the pay order No.031134 dt.7.12.04 for Rs. 5 lakhs favouring to the complainant. So it is clear that the above said plantation group has withheld the amount due to some reasons it may be as contended by the opposite party. More over the complainant deposed that delay h¶ 5 e£T cq]- F-\n¡v c­m-as¯ tcJ   register sNbvX-Xn-\p-ti-j-amWv In«n-b-Xv. More over there is no evidence before us to show that the complainant had initiated legal proceedings against the above purchaser for getting the balance amount of consideration. There is no evidence before us to how that what was the contract between the bank and the plantation group and what is the amount of interest collected by the bank. Since the relationship is between the bank and the plantation group as financier and purchaser. The plantation group has to initiate legal proceedings and hence it is seen that there is no cause of action in this case against the opposite parties. So the complainant failed miserably to establish his case that the bank had withheld the pay order without giving to the complainant. So we are not in a position to attribute deficiency of service on the part of opposite parties and hence the complaint is liable to be dismissed and order passed accordingly.

            In the result, the complaint dismissed. No cost.

                                    Sd/-                             Sd/-                          Sd/-

President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Copy of the lawyer notice sent to Ops

A2.Reply notice

A3.Staaatement of accounts

Exhibits for the opposite parties

B1.Request to revalidate PO signed by Moidoos Plantation

B2.Voucher produced by the complainant  P.O.31134

Witness examined for the complainant

PW1.Complainant

Witness examined for the opposite parties

DW1.K.K.Chacko                   /forwarded by order/

                                                 Senior Superintendent