PRESENT
Complainant absent.
Opponent No. 1 by S. N. Acharya present.
Opponent No. 2 absent.
ORDER
(Per-Mr. S. D. MADAKE, Hon’ble President
1.The Complainant was approached by Parekh Brothers for sale of their property and accordingly they entered an agreement on 31.10.2007.The Complainant issued two . 31.10.2007 drawn on oriental Bank of Commerce towards part consideration on the execution of the agreement of an amount of Rs. 5/- each in the name of Parekh Brothers each.
2.The said were deposited in Syndicate Bank (opp.1) for realization on 06.11.2007 and opp.1 sent the said for clearance in Oriental Bank of Commerce (opp.2), which realized on 07.11. 2007 Complainant issued Public Notice in newspaper on 29.11.2007 calling upon any third party having objection in respect of property. Mr. Ashok Kumar & Bharat Kumar Parekh strongly objected the Public Notice stating that they do not know Ashok having any right in property.
3.The Complainant was shocked to know these facts and made conversation with officers of opp.2 and sent letter on 06.12.2007 to opp.no.2 and it was confirmed by bank. It is contended that Mr. has not given relevant information. The opp. 1 bank realized the said two which were by M/s Annapurna Agencies.
4.The Complainant wrote letter to Banking Ombudsman in May 2008 alleging about fraudulent transaction executed by Opp.1 bank. The RBI vide letter dt.23.3.2009 accepted that the manager of Branch of Syndicate Bank has facilitated of third party in a fraudulent manner.
5.The Complainant stated that were issued with an intention that the said shall be realized in the account of payee however the same
- is not observed in this case. It is alleged that opposite parties failed to consider RBI circular dt. 09.09.1992 as well as 23.01.2006.
6.The Complainant sent legal notice on 13.1.2011 to opp.1 to loss suffered by complainant amounting to Rs. 11,00,000/- (Eleven Rupees). The Prayer in the complaint is for direction to pop 1 to compensate the monetary loss, with interest as well as direction to opp.1 & 2 jointly or independently to pay Rs. 5,00,000/- for deficiency in service.
7.The complaint which was filled in 04.03.2011 was admitted on 29.07.2011. As Opp.no.2 failed to appear, the order to ex-parte was passed on 05.01.2012.
8.The opp.1 filed written statement on 09.03.2012 and resisted the allegations made in complaint. It is alleged that complaint is barred by limitation and requires recording of detail evidence.
9.The opp.1 stated that two cheques were deposited along with two separate letters of request issued by payee by way of endorsement to credit amount to the account of M/s. Annapurna Agencies together with the Xerox copies of pan cards of two payees to prove their bonafides as the genuine payees of said two cheques.
10.The Opp.1 stated that said cheques issued by complainant were found to be genuine and upon proof of payee’s identity having been correctly established at the written request of payee the said were sent for clearing which were duly honored by paying bankers.
11.The opp.1 confirmed having collected the two in good faith and without negligence as collecting banker on behalf of their customer with proper endorsement and written request from payee. It is stated that action was taken as per sec.15 and sec. 131 of Negotiable Instrument Act.
12.The Opp.1 alleged that complainant is not consumer as company is running business of Property dealing. The Complainant become aware of alleged fraud on 10.01.2008 and complaint is filled on 22.2.2011 after expiry of limitation. It is prayed, complaint be dismissed with cost.
13.The Parties filled all documents relating to and correspondence between the complainant and opposite party. Admittedly complainant issued two account payee and the said were not credited on the account of Payee. The said were credited in favor of M/s Annapurna Agencies, on the basis of application of payee with Xerox copies of PAN Cards.
14.Admittedly this is a case of fraudulent transaction, the opp syndicate bank has not said anything in written statement regarding RBI circular . 09.09.1992 pertaining to account payee as well RBI circular dt which is reproduce as “The Reserve Bank considered it necessary to prohibit the banks from crediting account payee to the account of any other person other than a payee.” The syndicate not wish to comment upon the same.
15.We are of the view that opp.1 was not justified to pay the amount to M/s. Annapurna Agencies. The Officer concerned was under a duty to study the circulars issued by RBI while considering the making of payment to third person other than payee.
16.The other important issue is regarding the liability of the bank for acts of employee in violation of RBI circular. It is pertinent to note that Reserve Bank of India intimated the complainant that Assistant General Manager of Branch had facilitated of third party in a fraudulent way. It is also necessary to consider whether banker acted in good faith as mentioned in Sec. 131 of Negotiable Instrument Act.
17.Admittedly, the bank has lodged complaint with CBI Mumbai in respect transaction and departmental action is initiated. In view of the facts stated above we are of the opinion that, detail examination of witnesses and recording of evidence is necessary in the present case. It is also necessary to determine, to what extent opp.no.1 shall be liable for acts of officers on the basis liability. It is important to ascertain regarding recovery of money, if any as a result of filling a case before CBI. In order to determine, whether officer is justified to rely on sec.15 and sec.131 of NI Act, in the light of two circulars of RBI i.e. 1992 & 2006.It would be important to examine by recording detail oral & documentary evidence.
18.In the result, we hold in the interest of justice is entitled to file regular civil suit before civil court, if advised.
19.In the result, we pass the following order.
ORDER
1. RBT/CC/11/123 is disposed of,with liberty to seek appropriate proceeding
before court.
2. No order as to cost.
- Copy of this order be sent to the both parties.
