DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

U.T. CHANDIGARH

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Lalit Chander Virk resident of H.No.561/III, Karam Singh Colony, Near Railway Station, Karnal.

                                      ---Complainant.

Versus

1.            State Bank of India, S.M.E. Branch, SCO 43-48, 3^rd Floor, Sector 17-B, Chandigarh through its Manager.

2.            Dinesh Dhari, House No.178, Ward No.2, Durga Colony, College Road, Naraingarh.

---Opposite Parties.

BEFORE:  SH. LAKSHMAN SHARMA           PRESIDENT

MRS.MADHU MUTNEJA                        MEMBER

                   Sh. JASWINDER SINGH SIDHU           MEMBER

Argued by:  Sh. Gaurav Bhardwaj, Counsel for complainant

                        Sh. Ashish Gupta, proxy counsel for Sh. S.K.Gupta, Counsel for OP No.1.

                        None for OP No.2

PER JASWINDER SINGH SIDHU, MEMBER

1.                      In brief, the case of the complainant is that he signed an indemnity bond to enable opposite party No.2 to get the payment from opposite party No.1 against a draft which was lost.  Opposite party No.2 also told that payment of the said draft has been stopped from opposite party No.1. Opposite party No.1 issued a duplicate draft No.235113 dated 22.12.2009 for GBP 4,700 (Rs.3,37,084/-) which was cancelled and the amount was paid to opposite party No.2 after waiting for 45 days as per the bank’s policy.  Subsequently, in the month of October, 2011, the complainant received an undated letter from opposite party No.1 informing that the original draft has been paid and the duplicate draft has been paid to opposite party No.2 and the complainant was asked to opposite party No.1.   The complainant immediately contacted opposite party No.1 but no information was provided to him and he was only informed that a lien of the draft amount has been marked on his account.  The complainant even applied under RTI but still no information was provided.  According to the complainant once the payment was stopped then the act of honouring the said draft amounts to deficiency in service. Hence, this complaint.  

2.                      In its written statement opposite party No.1 admitted that on 22.12.2009 opposite party No.2 got issued a  bank draft of GBP 4700.00 from it favouring Anglian College London UK.  On 22.1.2010, opposite party No.2 approached it with a request that the draft was misplaced in transit and requested to mark stop payment of the draft and further requested to credit the proceeds of the said draft to his father’s account.  Opposite Party No.2 submitted requisite application alongwith letter of indemnity with two sureties executed by Shiv Ram and Sh. Lalit Chander Virk (complainant) in favour of opposite party No.1.  It has been averred that since both the indemnifiers were jointly and severally responsible, accordingly lien was marked on the FDR of the complainant.  On 15.2.2010 opposite party No.1 issued duplicate draft in lieu of the lost drat no.235113 for the purpose of making payment by its cancellation.  Thereafter the duplicate draft was cancelled and the amount of Rs.3,37,084/- was credited to the account belonging to the father of opposite party No.2.  It has been averred that on 1.3.2010 the alleged draft was presented for payment before SBI London and the same was paid which came to the notice of the notice of opposite party No.1 in the month of August 2011 only while perusing the outstanding entries.  It has further been averred that the matter was taken up with the SBI London and it was informed that the college had already been closed and they are unable to recover the same.   Pleading that there is no deficiency in service on its part, prayer for dismissal of the complaint has been made.

3.                      Opposite party No.2 in his written statement also admitted that a draft was got issued from opposite party No.1 which was lost.  It has been denied that the complainant was personally known to him.  It has been averred that on his request opposite party No.1 stopped the payment of the original draft, which was lost.  It has further been averred that the amount of the draft was refunded to him 45 days after completing the formalities.  It has further been averred that in the entire complaint the complainant has leveled allegations against opposite party No.1. Pleading that there is no deficiency in service on his part, prayer for dismissal of the complaint has been made.

4.                      On 12.4.2013, when the case was fixed for arguments, none appeared on behalf of opposite party No.2. Therefore, we proceeded to dispose of this complaint on merits under Rule 4 (8) of the Chandigarh Consumer Protection Rules, 1987 read with Section 13(2) of the Act (as amended upto date) even in the absence of opposite party No.2.

5.                      Parties were permitted to place their respective evidence on record in support of their contentions.

6.                      We have heard the learned counsel for the contesting parties and have perused the record.

7.                      The present complaint has been preferred by the Complainant against the Opposite Parties on the ground that Opposite Party No.1 while exercising its power conferred upon it by the Complainant through the letter of indemnity (Annexure R-8) having deducted an amount of Rs.3,37,084/- equivalent to 4700 GBP. The Complainant has also raised an objection that as he alone was not the party to the letter of indemnity, the Opposite Party No.1 was wrong in apportioning the amount of Rs.3,37,084/- before having exhausted such rights vested with it against Opposite Party No.2. 

8.                      The Opposite Party No.1 while defending its action has claimed that as the contents of the letter of indemnity are self explanatory, and that Complainant as well as Opposite Party No.2 had signed the letter of indemnity promising that they shall be jointly and severally liable to indemnify Opposite Party No.1 in case of any such loss having occurred to it with regard to the issuance of duplicate demand draft in favour of Opposite Party No.2.

9.                      The Opposite Party No.1 has also maintained that the Complainant was duly informed about such impending liability through its communications dated 3.10.2011 and 26.11.2011 which it had claimed to have sent at the address of the Complainant through registered AD.  The Opposite Party No.1 has also brought on record the letter dated 16.3.2012 through which it had intimated about its intention to exercise its right to set off its liability from the A/c No. 31106170188 of the Complainant which was already under lien with it. This letter dated 16.3.2012 though was returned back to Opposite Party No.1. Thereafter, Opposite Party No.1 further wrote a letter dated 23.3.2012, which was received back at its end on 4.4.2012, wherein Opposite Party No.1 had categorically stated that it had invoked the indemnity given by the Complainant from his Account No. 10847752919 by debiting an amount of Rs.3,85,086/-.  Though the Complainant has claimed that he had not received these communications, and has also contested that Opposite Party No.1 should have exhausted its remedies against Opposite Party No.2 before exercising such indemnification from his account and that as these letters did not reach Complainant’s end, the Opposite Party No.1 was deficient in rendering proper service to the Complainant on this score.

10.                   It would not be out of place to mention here that the Complainant had itself annexed an e-mail communication Annex.C-1 which has been down loaded on 24.11.2011 from where it is revealed that he was very much aware about the impending liability that he was about to face on account of his having issued the letter of indemnity. Even the last line of this communication clearly mentions a request to act on this communication within 07 days or else Opposite Party No.1 would be free to initiate action against him. Hence, though the Complainant has preferred to deny having received other communications, but Annex.C-1 itself clears all doubt about his knowledge of any such action of the Opposite Party No.1 with regard to the letter of indemnification.

11.                   The fact that Opposite Party No.1 has exercised its option to set off its liabilities from the account of the Complainant and that it did not prefer to claim any such amount from Opposite Party No.2, is simply borne out of the fact that the Complainant had himself mentioned that such liabilities were jointly and severally along with Opposite Party No.2. Hence, we feel that Opposite Party No.1 was well within its right to recover such dues from either of the two i.e. Complainant and Opposite Party No.2, as it deemed necessary.

12.                   Though the Complainant had impleaded Opposite Party No.2 as Opposite Party and that there was no such relation of consumer qua it, we do not find any merit in the present complaint to comment about deficiency in service against Opposite Party No.2 and if due to the actions of Opposite Party No.1, the Complainant having suffered any loss and that if the Complainant feels that any such loss was on account of any actions of Opposite Party No.2, then the Complainant is at liberty to seek such remedy as per law with the appropriate authority. The present complaint is not maintainable against Opposite Party.2.

13.                   It is proved beyond all reasonable doubts and Opposite Party No.1 has established that before apportioning an amount of Rs.3,85,086/-  from the account of the Complainant, it had intimated the Complainant about the marking of the lien to that extent and thereafter, debited such amount by duly intimating him about it exercising its authority, under the letter of indemnification, which the Complainant had tendered with it.   Hence, the Complainant has failed in proving any deficiency in service on the part of Opposite Party No.1. The present complaint deserves to fail qua it.

14.                   In the light of above observations, we are of the concerted view that the present complaint deserves dismissal. Hence, the present complaint of the Complainant is dismissed. There is no order as to costs.   

15.                   Certified copy of this order be communicated to the parties, free of charge. After compliance file be consigned to record room.

Announced

23.04.2013.

Sd/-

(LAKSHMAN SHARMA)

PRESIDENT

Sd/-

 (MADHU MUTNEJA)

MEMBER

Sd/-

(JASWINDER SINGH SIDHU)

MEMBER