DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.174/11.10.2007 Decided on : 06.06.2008 Dr.Manohar Sharma S/o Sh.Dev Raj Gautam, Water Works Road, W.No. 14, Mansa. ..... Complainant. VERSUS 1.State Bank of Patiala, Main Branch office, Mansa through its Branch Manager. 2.The Manager, State Bank of Patiala, N.R.Square, Badami House Branch, Banglore through its Branch Manager. 3.Canara Bank, Majestic Branch, Banglore through its Branch Manager. ..... Opposite Parties. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: None for the complainant. Sh.S.P.Gupta, counsel for Ops No.1 and 2. Sh.P.K.Singla, counsel for OP No.3. Before: Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER: Dr.Manohar Sharma (hereinafter called as the complainant) has filed the present complaint against the State Bank of Patiala, Main Branch office, Mansa through its Branch Manager, as well as The Manager, State Bank of Patiala, N.R.Square, Badami House Branch, Banglore through its Branch Manager and Canara Bank, Majestic Branch, Contd........2 : 2 : Banglore through its Branch Manager (hereinafter called as the opposite parties No.1,2,3,4 & 5 respectively) for issuance of a direction to the opposite parties to refund him Rs.3,25,000/- along with interest @ 18% per annum from 8.6.2007 onwards till actual realization and also pay him Rs.50,000/- as compensation on account of mental agony. Brief facts of the complaint are that the complainant had drawn a demand draft No.815293 dated 18.6.2007 from OP No.1 in favour of Consortium of Medical , Engineering and Dental Colleges of Karnataka, Banglore for an amount of Rs.3,25,000/- payable at State Bank of Patiala, Badami House, Banglore (OP NO.2) and paid the requisite charges for the said demand draft to enable him to deposit the requisite fee of his son, namely, Sumit Sharma for admission to MBBS classes. At the time of counselling, which was held on 07.08.2007, the said draft got misplaced and to avoid any hardship in getting admission of his son, he obtained another draft bearing No.815832 dated 4.8.2007 drawn at State Bank of Patiala, Main Branch, Mansa in favour of the said institute payable at OP 2 bank. It was further alleged by the complainant that at the time of counselling of his son, the complainant had deposited the second draft with the institute and made efforts to know about the whereabouts of his first draft and made several requests to the drawer branch and lateron came to know that the first draft was encashed by some imposter by presenting the draft to OP No.3 due to connivance/negligence on the part of Ops 2 and 3. The complainant alleges that the two banks are as much responsible for this criminal fraud as is the imposter. Upon enquiry from the institute of his son, he came to know that the first draft was not credited in their account. The opposite parties did not pay any heed to the repeated requests of the complainant for the refund of his money. The complainant claims Contd........3 : 3 : to have suffered mental agony, harassment and torture at the hands of the opposite parties without any fault on his part and thus claims refund of his hard earned money alongwith interest. Hence this complaint. OP No.1 and 2 in its written version challenged the maintainability of the complaint, as well as jurisdiction of this Forum to entertain and try this complaint. It was admitted that draft No.812593 was issued by OP No.1. The draft was received in clearing through OP3. It was further contended that their duty ends after the delivery of the DD as applied for . All necessary precautions were contended to have been taken by OP3 before making payment of the draft. The complainant was duly informed about the fate of his draft which stood paid as early as 25.6.2007 in clearing. When the said draft was received by OP No.2, Consortium of Medical , Engineering and Dental Colleges of Karnataka was mentioned as the beneficiary and no visible alterations were available on the instrument. All other allegations were denied. It was also denied that there was any deficiency in service on the part of the replying opposite parties and a prayer for dismissal of the complaint was made by them. OP No.3 also in its written version challenged the maintainability of the complaint, as well as jurisdiction of this Forum to entertain and try this complaint. It was contended that the complainant could have informed the payee bank not to pay the amount of the cheque and get the payment of the draft stopped when the identity of the payee was doubtful. He himself failed to get the caution marked with the payee bank or the issuing branch. As the draft was Account Payee, payment could not be made to other person. The story about the loss of draft has been concocted by the complainant and his son. The draft has not been encashed by OP No.3 and rather they have made the payment of draft Contd........4 : 4 : to the holder in due course because a demand draft in the hands of the payee is just like a cash with him and the banker is duty bound to make the payment to the holder in due course. All other allegations were denied by this OP also . It was also denied that there was any deficiency in service on its part and a prayer for dismissal of the complaint was made by it. Both the parties have led their respective evidence in the shape of affidavits and documents. We have considered the arguments advanced by the learned counsel for the opposite parties alone because the complainant did not turn up despite affording several opportunities to him to advance arguments. We have also carefully scrutinized the entire evidence placed on record. From the perusal of the record placed on file by the complainant it has been reveled that the complainant had never informed the payee bank not to pay the amount of the cheque which he could very well do and the payment of the draft stopped when his first draft got misplaced by him. He even failed to get the caution marked with the payee bank or the issuing branch. Nothing has been placed on record in this regard by the complainant except the photostats of both the drafts issued by banks (Ext.C-3 and C-4) and his own affidavit (Ext.C1). The complainant even failed to advance his arguments on this point. On the contrary, the opposite parties have placed Ext.OP-D, letter dated 7.9.2007 which reveals that the draft bearing No.815293 was paid in clearing on 25.6.2007 presenting through Canara Bank (OP NO.3). Exhibit OP-I is the affidavit of Ramana Kumar, Branch Manager of OP No.3 branch who has deposed that the draft in question was encashed by the payee in whose favour it was issued in accordance with the law and norms of the bank. No request from any banker or the complainant was ever received for stopping Contd........5 : 5 : the payment of draft. A demand draft in the hands of the payee is just like a cash and the banker is duty bound to make the payment to the holder. The complainant has not been able to prove that the opposite parties were in any way deficient in service towards him. The complainant has further alleged fraud on the part of the opposite parties in his complaint. We are of the considered opinion that Fraud cannot be decided in consumer proceedings, it being of summary nature. The counsel for Ops No.1 and 2 has placed reliance on Col.S.C.Thapliyal Vs. Sonu Motors, I(2005)CPJ 255 wherein it has been held by the Hon'ble Uttaranchal State Commission that, Allegations of fraud and misrepresentation cannot be decided in consumer proceedings. Elaborate evidence and inquiry required. Complaint not maintainable and rightly dismissed by the Consumer Forum. Complainant may file civil suit. Resultantly, in the light of the foregoing reasons and in view of the above authoritative pronouncement, the complaint is dismissed leaving the parties to bear their own costs. The complainant is at liberty to file a civil suit for adjudication of his dispute. Copy of the order be supplied to the parties free of charges under the rules and file be arranged, indexed and consigned to record. Pronounced: 06.06.2008 Neena Rani Gupta, Sarat Chander, Member. Member.
