IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.A.T.Munnoli<br /> B.A., L.L.B (Spl.) - President <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> 3. Shri. Shivakumar.J.<br /> B.A., L.L.B., - Member<br /> <br /> <br /> CC 209/09 DATED 07.09.2009<br /> ORDER<br /> <br /> Complainant 1. Dr. Prem Lata Sharma, Professor of Education, Regional Institute of Education (NCERT)Mysore-570006.<br /> 2. Dr. J.C. Sharma, Retired Professor-Cum-Deputy Derecto, CIIL, Mysore, C-4, Kaudanya Farm, Gaddige Road, Mysore-570026.<br /> <br /> (By Sri M.S.J, Advocate)<br /> <br /> Vs. <br /> Opposite Parties 1. ICICI Home Finance Co. Ltd., E., First Floor, Videocon Tower, Jhandesalan Extension, Delhi-110055.<br /> 2. Manager, ICICI Bank, Kalidasa Road, V.V. Mohalla, Mysore.<br /> <br /> (By Sri Gerald Castelino, Advcoate)<br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 15.06.2009<br /> Date of appearance of O.P. : 06.07.2009<br /> Date of order : 07.09.2009<br /> Duration of Proceeding : 2 MONTHS 1 DAY<br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> MEMBER<br /> <br /> <br /> Sri. A.T.Munnoli,<br /> President<br /> <br /> 1. The complainant has filed the complaint, for misuse of 4 cheques of the opposite party by transferring the amount of those cheques in favour of one Poonam Anand, Sunil Kumar and Yash Pal Anand and seeking the relief to direct the opposite party to pay the amount of the said cheques with penal interest and also the opposite party shall not charge any interest on the home loan etc.,.<br /> <br /> 2. In the complaint, it is alleged that, the complainants had taken loan of Rs.5,00,000/- from the opposite party for purchase of a plot at Gurgoan, on monthly EMI of Rs.7,547/-. At the time of sanctioning the loan. The executive of the opposite party bank by name Balakrishna Anand collected 36 cheques, and out of them 29 have been adjusted towards the loan and in one cheque dated 06.07.2008, heavy amount of Rs.75,147/- is mentioned and it is transferred to one Sunil Kumar and another cheque dated 07.03.2006, the amount of Rs.7,547/- transferred to Poonam Anand. The complainants after noticing the same, made complaints to the opposite party as well as the home loan department. One Mr. Girijesh Tripathi, from Fraud Department of the bank was looking into the matter and misguided the complainants. After, some days, the complainants approached customer care. Several E-mails were sent. No response. The delay caused tension, because of misuse of heavy amount by the personal of the bank. It made the complainants to frustrate? Latter it was found that two more cheques, one for Rs.17,447/- dated 04.04.2005 and another for Rs.7,547/- dated 21.09.2007, the amount was transferred to the account of one Yash Pal Anand. Many complaints were given by the complainant but no action was taken with respect of misuse of said cheques. In the two cheques figure one in the EMI amount has been added and the cheque amount is made as 75,147/- and 17,547/-. The bank has not penalized the guilty person their own employee who have collected the advance cheques from the complainants and manipulated the same. Hence, it is prayed to allow the complaint.<br /> 3. The opposite party had filed the version, denying the facts alleged in the complaint, and it is stated that, the complainant while availing the home loan, had furnished only 13 cheques. Further, it is stated that, at the time of disbursement of loan complainant was furnished with cheuqes submissions form wherein the instructions given were, cheques should be crossed as “Account Payee”, the cheques should be drawn in favour of “ICICI Home Finance Company Ltd.,” only, ICICI HFC does not take responsibility for cheques left blank or drawn in favour of any name other than ICICI Home Finance Company Ltd., etc.,. Said farm was duly signed by the complainant and submitted to the bank. Hence, there is no chance of misuse of the cheques. Also it is stated, if at all there was any misuse, the complainant could have made complaint to the bank, but the complainant has preferred to remain silent. It is contended that, the opposite party has not misused the cheques and there is no deficiency in service.<br /> <br /> 4. To prove the facts alleged in the complaint, one of the complainant has filed his affidavit and several documents are produced. On the other hand, for the opposite party, the branch credit manager has filed his affidavit, wherein the facts with reference to the version are stated. We have heard the arguments of the learned counsel for the complainant and also of the opposite party and perused the material on record.<br /> <br /> 5. Now, the points for our consideration are as under.<br /> 1. Whether the complainants have proved any deficiency on the part of the opposite party and that they are entitled to relief sought?<br /> 2. What order?<br /> <br /> 6. Our findings are as under:-<br /> Point no.1 : Affirmative.<br /> Point no.2 : As per the order.<br /> <br /> REASONS<br /> <br /> 7. Point no. 1:- The facts that, the complainants had borrowed home loan from the opposite party bank and that towards payment of EMI, cheques were given, is not in dispute.<br /> <br /> 8. The complainant claims that, at the time of sanction of the loan, the executive of the bank, by name Bal Krishan Anand had collected 36 cheques, and out of them 29 have been credited to the loan. The opposite party dispute that, in all 36 cheques were given by the complainant. It contend only 13 cheques were given. Firstly, we are not much concerned as to total number of cheques that, the complainant had given to the bank towards payment of EMI’s. However, at the same time the specific contention of the complainant that, in all 29 cheques of the complainant have been gone against or credited towards home loan, is not at all denied by the opposite party. Hence, the contention of the opposite party that, only 13 cheques were given, cannot be accepted.<br /> <br /> 9. It is definite and specific case of the complainant, that in all 36 cheques were collected by the executive of the bank, at the time sanctioning of the loan and his name is stated as Bal Krishnan Anand. That submission is not specifically denied and more over said, Bal Krishnan Anand has not filed any affidavit stating that, he did not collect the cheques as claimed by the complainant.<br /> <br /> 10. Even otherwise, important point of dispute raised in the present complaint is that, the complainant alleges out of 36 cheques, 4 cheques amount has been transferred to in the name of one Sunil Kumar, Poonam Anand and one Girijesh Tripathi. The number of the cheques and the account numbers of these persons is specifically stated by the complainant. So also the said statement of the complainant is supported by the documents of the bank itself that, the amount of the said cheques has been transferred to the persons referred to above. It is not at all the contention of the opposite party that, the amount of said 4 cheques of the complainant has not been transferred to the said persons etc.,. Hence, under these circumstances it is clear from the evidence on record that, amount of the 4 cheques referred to above has been transferred to the persons named above.<br /> <br /> 11. There are so many correspondence between the complainant and the bank in respect of the payment of the amount of 4 cheques noted above. Repeatedly, the complainant has sent E-mail, some of them have been replied. Though, we feel it not necessary to mention all the mails sent by the complainant and the reply, it as suffice to note some of them. By the reply or replies the debit of the amount as claimed by the complainant in the account has been admitted. It is replied by the bank that, the complaint of the complainant would be looked into by one of the executive and he will respond on priority. It was once replied that, bank realized that, they have caused the complainant inconvenience and requested to except apology. It was assured that, the quarry of the complaint would be attended. In one of the mail the complainant has specifically stated, that one of the staff of the bank only to whom advance cheques were given, as misused. By another reply the bank took note of the issue and the matter was being investigated at their end and the complainant was informed that the matter would be sorted out to the satisfaction of the complainant at earliest. Again it was replied that, the bank realized that, they have caused the complainant inconvenience and extreme apology was sought. Several times, the bank informed the complainant that the matter of the complaint is under investigation. As noted above there are good number of correspondence and though the bank promptly replied assuring to investigate the matter and satisfy the complainant, till today that has not been done. <br /> <br /> 12. The opposite party strongly rely on the farm said to have been given by the complainant in respect of submission of the cheques, wherein there is mention that, the cheques sould be crossed and account payee and drawn in favour of ICICI Home Finance Company Ltd., and the bank does not take responsibility for cheque left blank etc.,. But for the complainant, it is submitted that, it is common knowledge and practice that, blank cheques are being collected by the banks. Even, otherwise, in the case on hand it is specifically alleged by the complainant that, in the EMI amount figure one has been added, which amounts to forgery. But the bank has just went on promising the complainant but has not at all taken any concrete steps in the matter and investigated the same. It is relevant to repeat that, the complainant specifically has alleged the fraud must be by the employee of the bank. When that is so, it was bounden duty of the bank to make enquiry into the matter not only through their agency but also could have lodged the complaint against the concerned. Nothing has been done by the bank. It shows utter negligence on the part of the bank. Only inference that can be drawn is the bank intended to protect its employee and to support the fraudulent and ill-legal acts committed by the employee of the bank itself. Banking business depends on faith and trust but in the case on hand, the act on the part of the bank establish contrarily.<br /> <br /> 13. The complainants have sought the relief of payment of the amount of the said cheques with penal interest. However, the complainants have not claimed any other damages or compensation. Copy of the loan application is placed on the record by the complainant. In a column rate of interest is mentioned at 24% p.a. Taking into consideration of this and particularly the complainants have not sought separate damages or compensation, we feel it just to award the interest at 24% p.a.<br /> <br /> 14. From the facts, affidavits and the discussion made here before, the complainants have proved the deficiency in service on the part of the opposite party and that they are entitled to the relief sought. <br /> <br /> 15. Accordingly we answer the point No.1 Partly in affirmative. <br /> 16. Point No. 2:- From the discussions made above and conclusion arrived at, we pass the following order: <br /> <br /> ORDER<br /> <br /> 1. The Complaint is allowed.<br /> 2. The opposite party is hereby directed to pay a sum of Rs. 1,07,788.00 to the complainant/account holder with interest at the rate of 24% p.a. from the respective dates of transfer of the amount from the account shown below, till realization. The amount shall be paid within 60 days from the date of this order.<br /> Sl.No Cheque No Date Amount<br /> 1 379487 04.04.2005 17,547.00<br /> 2 379482 07.03.2006 7,547.00<br /> 3 379481 21.09.2007 7,547.00<br /> 4 379483 09.07.2008 75,147.00<br /> 3. Further the opposite party shall pay a sum of Rs.5,000/- towards the cost of the proceedings.<br /> 4. Give a copy of this order to each party according to Rules.<br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 7th Sept 2009)<br /> <br /> <br /> (A.T.Munnoli) <br /> President <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> (Shivakumar. J)<br /> Member<br /> <br />