FA.No.1146/2006 &  FA.IA.No2353/2006 against C.C.No.692/2005, District Forum-I, Visakhapatnam.

Between:

The Branch Manager,

Indian Bank, Seethammapeta Branch

Visakhapatnam.                                                                                .Appellant/

                                                                                                Opp.party

And

Sri Bodala Hemasundra Rao, S/o.late Lakshmana

Rao, aged 35 years, R/o.LIG-77,

Rajiv Nagar, Vadlapudi Post, Gajuwaka,

Visakhapatnam.                                                                                Respondent/

                                                                                                            Complainant.

Counsel for the Appellant:                            M/s.P.Shiv Kumar

Counsel for the Respondents.                     Mr.P.Sasank-R1

                                    QUORUM:SRI SYED ABDULLAH, MEMBER.

AND

SRI K.SATYANAND, MEMBER.     

WEDNESDAY, THE FIFTH DAY OF AUGUST,

TWO THOUSAND NINE

ORAL ORDER: (Per Sri K.Satyanand, Hon'ble Member .)

                                                                                                                                                                                                                        ***

        This is an appeal filed by the opposite party against which the District Forum passed an order directing it pay Rs.1,00,000/- the amount covered under the B.P.O. and other consequential benefits.

        The facts of the case are briefly as follows:

        The complainant, an unemployee, having knowledge and experience in arrack business  claimed to have btained a demand draft for Rs.1,00,000/-  on 17-2-2005 in order to participate in the auction for allotment of wine shop.  Subsequently the tenders were cancelled by the Government and as such the complainant approached the opposite party bank on 22-6-2005 and 23-6-2005 for refund of the amount.  But the Assistant Manager of the opposite party bank contacted by phone one K.S.Babu and denied to pay back the amount to the complainant on the ground that the challan of the said instrument had been filled by some other person and hence the amount would be returned to him only.  The complainant alleged that the challan was filled by his collegue at Syndicate and as he being the holder of demand draft was entitled to the amount covered by the demand draft.  The complainant got issued a telegraphic notice on 23-6-2005 and a detailed legal notice on 4-7-2005 but the opposite party bank failed to refund the amount.  Hence the complaint to refund the D.D. amount of Rs.1,00,000/- with interest at 24% p.a. Rs.10,000/- towards mental agony and other costs.

        Opposite party bank filed counter denying the allegations and contended that the complainant was not its customer having any account.  The demand draft in question was not issued to the complainant by the opposite party.  It claimed that it got issued a suitable reply to the notice got issued by the complainant.  Opposite party maintained that the complaint was  frivolous one and not maintainable and that there was no deficiency in service and prayed for dismissal of the complaint.

        The complainant filed his affidavit and by way of documentary evidence relied upon Exs.A1 to A7.  The opposite party on the other hand filed Exs.B1 to B5.

        On a consideration of the evidence adduced on either side, the District Forum concluded that there was deficiency of service on the part of opposite party and accordingly directed the opposite party to pay Rs.1,00,000/- as also Rs.3,000/- towards compensation and costs of Rs.1,000/-.

        Aggrieved by the said order, the opposite party bank filed the present appeal along with a petition in F.A.I.A.No.1992/2006 seeking suspension of the orders of the District Forum in C.C.No.692/2005 upon which this Commission granted interim direction on condition of the appellant depositing Rs.1 lakh within a period of one week and thereafter on 8-2-2007 modified the same and permitted the complainant to withdraw the said sum of Rs.1,00,000/- without furnishing any security.  Aggrieved by the order dt.8-2-2007 modifying the interim order, the opposite party bank approached the Hon’ble High Court of Andhra Pradesh in W.P.No.2911/2007 alleging that without there being any application filed by the  complainant seeking permission of withdrawal of the said amount, the Commission permitted the complainant to withdraw the said amount without furnishing any security.  The Hon’ble High Court initially by order dt.15-2-2007 granted stay of the operation of order dated 8-2-2007 and on 27-1-2009 allowed the writ petition setting aside the impugned order dated 8-2-2007 and as the appeal was of the year 2006, directed this Commission to expedite the hearing and disposal of the main appeal. 

        The learned counsel for the appellant in his grounds of appeal alleged that the Forum failed to consider the documents marked as Exs.B1 to B5 and asserted that one Mr.K.Seshu Babu purchased 5 B.P.Os. bearing Nos.626589 to 626593 which was evident from Exs.B1, B2 and B5 and that he had cancelled all the other 4 B.P.Os. and made an application to the appellant bank that he lost the original BPO No.626592 and consequently gave an indemnity under Ex.B4 for the amount covered by the said BPO and the appellant bank had credited the amount covered by the said 5 BPO’s to the S.B. A/c of Mr.K.Seshu Babu.  It maintained that it could not pay the amount to the complainant in as much as there was absolutely no evidence placed by him that he purchased the BPO from the appellant bank.

        The moot points that arises for determination in this appeal are:

<!--[if !supportLists]-->1.    <!--[endif]-->Whether there is deficiency of service on the part of opposite party bank and whether the complainant is entitled for the amount under the B.P.O.?

<!--[if !supportLists]-->2.    <!--[endif]-->Whether there are any good grounds to interfere with the order of the District Forum?

        As between the two rival claimants the complainant, who was in possession of the B.P.O and the other at whose instance and with whose money the B.P.O in question was issued by the opposite party bank, who was legitimately entitled to get back the  proceeds of the said B.P.O bearing No.626592 dated 17-2-2005 and whom should the opposite party have preferred for payment of the proceeds in a forecourt situation like this wherein the rival claimants made competing claims of its cancellation and consequent payment of the proceeds, one of them the possessor (complainant) of the B.P.O. on the ground that the purpose became infructuous and the other, the person, who paid for and taken delivery of the B.P.O. on the ground that it was lost or misplaced?  This contentious issue can be resolved by deciding as to which of these two  claimants of the money covered by the B.P.O. which, admittedly both of them seek to be cancelled but at the same time each lay claim to the proceeds as his own, could show better title to the B.P.O. and the return of the proceeds thereof.  In this process, let us first examine the claim of the complainant.  His ace point is that he was in possession of the original instrument and that his tendering the same earlier to the Government as proved by Exs.A5 and A6 clearly established  that his right to get back the money under it was paramount.  But the fact remains that he did not prove at all that he funded the issue of the said B.P.O and that he actually applied and got it from the Bank.  For those searching questions, he had no answers except repeatedly saying that he paid and got it from the Bank.  He also tried to rely upon such peripheral circumstances as issuing telegraphic notice on 23-6-2005 as per Ex.A2 and lawyers notice on 4-7-2005 as per Ex.A3 and A4 and their reply of denial, Ex.A7, which hardly prove his title to the B.P.O. in question.  No doubt he produced the said instrument Ex.A1 and thereby could prove his possession.

        On the other hand the Bank that is sought to be made liable on the ground of payment to a wrong person tried to defend itself by showing as to who was the true owner of the B.P.O by adverting to the relevant documents calculated to show the said person as one K.Seshubabu, whose name as the recipient of the proceeds was disclosed to the complainant in bank’s own reply marked as Ex.A7 dated 9-7-2005 and yet the complainant failed to implead him as a necessary party being a rival claimant on the plea of title to the instrument in question as against the complainant’s plea of mere possession of it.  This lacuna in the frame of the complainant goes to the root of its maintainability.

        The opposite party bank mainly relied upon Exs.B1 to B5, in addition to its affidavit evidence, to prove that the said K.Seshubabu was the true owner of the instrument and that it cancelled and paid the proceeds of the B.P.O. to its rightful owner and therefore entitled to be absolved of liability on the charge of deficiency in service.  It is the case of the bank that his customer, K.Seshubabu gave a self cheque for Rs.5,00,690/- on 17-2-2005 as per Ex.A1 and utilizing the said money the bank issued 5 B.P.Os. on his Banker’s Pay Order Application Ex.A2 and delivered those 5 B.P.Os. to the said Seshubabu under a receipt endorsed on the reverse of Ex.A2 where specifically the numbers of the 5 B.P.Pos. were mentioned as “B.P.Os 5 (five) Sl.Nos. 626589 to 593.  At this juncture, it is the common case of all the parties that the Arrack contract auction for which these B.P.Os. were taken in favour of Prohibition & Excise Superintendent, Visakhapatnam was cancelled for some reasons with which we are not concerned.  So the person who obtained 5 B.P.Os K.Seshubabu approached the bank and got 4 B.P.Os. cancelled on 11-6-2005 as per endorsement on the face of Ex.A2.  However on that day he could not get cancelled the present B.P.O. in question.  It seems on 23-6-2005, he gave an application as per Ex.A3 to the bank saying that he misplaced the B.P.O. bearing No.626592, one of the five and requested the bank not to accept it for realization if the same was presented and further that the said D.D. might be cancelled and the amount credited to his account.  The bank acceded to his request after taking an indemnity letter as per Ex.B4. The bank relied upon Ex.B5 also to show that an amount of Rs.5,00,690/- debited to his account obviously to correlate with Ex.B1.  thus there is unimpeachable evidence to show that it was the third party customer by name K.Seshubabu that was having better title to the B.P.O. in question and that therefore it did not commit any mistake in paying the money to him,  to be held liable for deficiency of service.

        If the jural relationship of the complainant with opposite party is examined against the back drop of the facts conclusively established as above the complainant can hardly be heard to say that he  was the consumer vis-à-vis the opposite party bank.  Likewise, once it is borne out from the record that a third party as K.Seshubabu was the person that was having better title to the B.P.O as recognized by the bank, the complainant’s omission to implead the said third party is simply fatal to his complaint.  In view of the overwhelming facts of greatest significance deciding the relative merits as between a mere possession and a true ownership of the instrument, the other marginal circumstances, if any, pale into insignificance.   

        For the reasons stated above, we are unable to agree with the finding of the District Forum and therefore feel that the order of the District Forum is liable to be set aside.

        Accordingly the appeal is allowed with costs in a sum of Rs.2,000/- payable within 4 weeks from the date of this order setting aside the impugned order and consequently dismissing the complaint of the complainant before the District Forum.  I.A.No.2353/2006 to implead a third party is also dismissed as infructuous.

MEMBER.           

                                                                                      MEMBER

                                                                         Dated 05-8-2009