This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant Ashok Konda against Respondents-(1) Big Shares Services Private Ltd., Andheri (E) Mumbai of its authorized officer (2) Manager ING-Vysya Bank Ltd., Bangalore (3) Manager ICICI Bank Ltd., Bangalore (4) Manager Karvy Stock Broking Center, Raichur. The facts leading rise to the complaint may be summoned up as under:<br /> <br /> Complainant is an Advocate by profession and interested in investing money in Private Companies by purchasing shares and accordingly he applied for allotment of shares of Batronics IPO of Respondent No-1 by sending Demand Drafts bearing No. 240212 dt. 23-12-05 for Rs. 45,000/- for 540 shares through Respondent NO-2 ING-Vysya Bank Branch Raichur. The Respondent NO-1 collected the said amount but not allotted the shares to the complainant and thereby refunded Rs. 40,500/- instead of Rs. 45,000/- paid by him through D.D.<br /> <br /> The complainant asked the Respondent NO-1 for refund of balance amount of Rs. 4,500/- by making correspondence. But the Respondent NO-1 did not refund the said amount. Thereafter the complainant got issued Legal Notice to Respondent No-1 & 2 on 02-04-06 & 17-06-06. Respondent No-1 had replied to the legal notice issued by complainant stating that Rs. 4,500/- is with Respondent NO-3. It is the duty of Respondent NO-1 to take steps in-order to refund the balance amount to the complainant. But the Respondent NO-1 has neither taken steps nor refunded the amount of Rs. 4,500/- to the complainant. This act on the part of the Respondent NO-1 amounts to negligence and deficiency in service.<br /> <br /> The complainant being the customer of Respondent NO-4 and always applies for allotment of shares whenever IPOs and announced. In this case also he had sent D.D. through Respondent NO-4 and it is the duty of Respondent NO-4 to safe-guard the interest of customers. But this Respondent NO-4 has not taken any steps for refund of Rs. 4,500/ which is being illegally retained by Respondent NO-1. The complainant had to spend Rs. 4,000/- towards correspondence made through letters and telephones and thus the complainant has been harassed mentally. Hence for all these reasons the complainant has sought for direction to the Respondents for refund of Rs. 4,500/- with interest at the rate of 18% p.a. and to award Rs. 4,000/- for mental agony & correspondence charges, along-with cost of Rs. 1,000/- totaling to Rs. 9,500/-.<br /> <br /> 2. In-response to service of notice, the Respondent NO-1 remained absent when called out so Respondent NO-1 has been placed at Ex-parte. Respondents No-2 & 4 have appeared in-person and filed their separate written version. Respondent NO-3 appeared through counsel and filed written version.<br /> <br /> 3. In the written version the Respondent No-2 the Manager, ING-Vysya Bank Ltd., Bangalore has contended that D.D. bearing No. 240212 dt. 23-12-05 for Rs. 45,000/- was presented to this Respondent No-2 for payment on 28-12-05 in MICR Clearing by Respondent NO-3. This Respondent No-2 has paid Rs. 40,500/- on the said date and due to wrong en-coding by Respondent NO-3 again on the same day i.e, 28-12-05. Respondent NO-3 had paid the difference amount of Rs. 4,500/- in-returns clearing thereby Respondent No-3 had collected an aggregate amount of Rs. 45,000/- on 28-12-05. The role of this Respondent No-2 is restricted as a facilitator in collecting the D.D. and thereafter making payment of the same to Respondent No-3. As such no claim is made against this Respondent. A legal notice dt. 17-06-06 by complainant was served on this Respondent which was promptly responded on 21-06-06 stating the role of this Respondent is accomplished when Respondent NO-3 had collected Rs. 45,000/- as stated above. In this regard this Respondent No.2 has filed copies of MICR sheets and the claim letter issued by Respondent NO-3 at Annexure-A, B, C, & D. Hence for all these reasons the Respondent NO-2 has sought for dismissal of the complaint against this Respondent with cost.<br /> <br /> 4. The Respondent No-3 in the written version has denied the allegation made against this Respondent No-3 and it is falsely contended that Respondent NO-1 has stated that the suit amount of Rs. 4,500/- is with this Respondent No-3. Without prejudice to his case, it is contended that mere keeping the amount by this Respondent as per the direction of Respondent NO-1 does not amount to deficiency of service of this Respondent NO-3. Hence for all these reasons the Respondent NO-3 has sought for dismissal of the complaint with cost of Rs. 5,000/-.<br /> <br /> 5. The Respondent NO-4 Karvy Stock Broking Center, Raichur in the written version has contended that the complaint is totally mis-conceived and not maintainable for want of cause of action against this Respondent. The complainant had applied for subscription to the shares of Batronics Limited and the application form of the complainant along-with D.D. of Rs. 45,000/- of the complainant was forwarded by this Respondent as an investor friendly gesture for encashment and consideration for allotment of shares. This Respondent No-4 had no further responsibility in the matter since the onus of ascertaining the fact of one’s application and refunds if any lies with the complainant who has taken up with the Registrars as stated in the application form.<br /> <br /> The complainant has admitted that the amount has been en-cashed and he has received a refund of Rs. 40,500/- and balance of Rs. 4,500/- was retained. Therefore the onus for refunding the amount or allotting the shares lies with the issuers only as the Cheque/Bank drafts was issued in-favour of the issuer so there is no deficiency on the part of this Respondent NO-4. Hence for all these reasons Respondent NO-4 has sought for dismissal of the complaint with cost.<br /> <br /> 6. During the course of enquiry the complainant has filed his sworn- affidavit by way of examination-in-chief and got marked (9) documents at Ex.P-1 to P-9. In-rebuttal the contesting Respondent NO-2 has filed sworn-affidavit of Assistant Vice President (serving as Head Regional Collection Center, Bangalore) by way of examination-in-chief and got marked (4) documents at Ex.R-1 to R-4. The contesting Respondent NO-3 has filed sworn-affidavit of its Authorized Signatory by way of examination-in-chief and has not filed/relied on any documents. The contesting Respondent NO-4 has filed sworn-affidavit by way of examination-in-chief and got marked one document at Ex.R-5.<br /> <br /> 7. Heard the arguments of both sides and perused the records. The following points arise for our consideration and determination:<br /> 1. Whether the complainant proves deficiency of service by the Respondents in not refunding balance amount of Rs. 4,500/-as alleged.?<br /> <br /> 2. Whether the complainant is entitled for the reliefs sought <br /> for?<br /> <br /> 8. Our finding on the above points are as under:-<br /> 1. In the affirmative against Respondent No-1 and <br /> in the negative against Respondent No-2 to 4.<br /> <br /> 2. As per final order for the following.<br /> <br /> REASONS<br /> <br /> POINT NO.1:-<br /> <br /> 9. There is no dispute that the complainant had sent a D.D. for Rs. 45,000/- through Respondent NO-2 Bank Branch-Raichur to the Respondent NO-1 for purchase of 540 shares and that the shares were not allotted to him. It is the case of the complainant that the Respondent NO-1 has refunded an amount of Rs. 40,500/- instead of Rs. 45,000/- paid by him through D.D. The complainant asked Respondent NO-1 for refund of balance amount of Rs. 4,500/- by making correspondence but in-vain. So he got issued legal notice Respondent No- 1 & 2 on 02-04-06 & 17-04-06. Respondent No-1 replied to his legal notice stating that Rs. 4,500/- is with Respondent No-3 ICICI Bank but Respondent NO-1 did not take any steps for refund of his balance amount of Rs. 4,500/- and this act amounts to negligence and deficiency in service. Respondent No-1 is Ex-parte in this proceedings. Respondent NO-2 Vysya Bank Bangalore has admitted that a D.D. of Rs. 45,000/- was presented for payment on 28-12-05 in MICR Clearing by Respondent No-3 and this Respondent has paid MICR Clearing Rs. 40,500/- on the said date and due to wrong encoding by Respondent No-3, again on the same day i.e, 28-12-05. Respondent NO-3 had claimed the difference amount of Rs. 4,500/- and thereby Respondent No-3 had collected total amount of Rs. 45,000/- on 28-12-05 and the role of this Respondent as facilitator in collecting the D.D. and thereafter made the payment of the same to Respondent NO-3.<br /> <br /> 10. The Respondent NO-3 ICICI Bank Bangalore has denied the contention of the complaint that in Reply Notice the Respondent NO-1 has stated that the suit amount of Rs. 4,500/- is with this Respondent NO-3. Further stated that even keeping said amount as per direction of Respondent No-1 does not amount to deficiency of service. Respondent NO-4 Karvy Stock Broking Center, Raichur has stated that the complainant had applied for subscription to the shares of Respondent NO-1 and his application form along-with D.D. for Rs. 45,000/- was forwarded by this Respondent as an investor friendly gesture for encashment and consideration for allotment of shares and this Respondent NO-4 had no further responsibility in the matter since the onus of ascertaining the fate of his application and refunds if any lies with the complainant. The complainant has admitted that the amount has been en-cashed and he has received a refund of Rs. 40,500/- and balance of Rs. 4,500/- was retained. Therefore onus for refund of the amount or allotting the shares lies with the issuer only as the cheque or Bank/Draft was issued in-favour of the issuer-Respondent No-1.<br /> <br /> 11. So from a close perusal a complaint and written version of Respondents 2 to 4 it manifest that the amount of Rs. 45,000/- sent through DD for purchase of 540 shares was collected by the Respondent No-1 and that due to non-allotment of shares applied, Respondent NO-1 refunded Rs. 40,500/- and the balance amount of Rs. 40,500/- was not refunded by Respondent No-1 and to the legal notice the Respondent No-1 has replied that the amount of Rs. 4,500/- is with Respondent No-3. As stated supra the Respondent No-3 has denied the allegation that Rs. 4,500/- is with it (Respondent No-3 Bank) and mere keeping the amount as per the direction of Respondent No-1 does not amount to deficiency of service this in-turn goes to show that Respondent No.1 is Account Holder with this Respondent NO-3 Bank. <br /> <br /> 12. Admittedly the complainant had sent Rs. 45,000/- through D.D. for purchase of 540 shares from Respondent NO-1 and due to non-allotment of shares the Respondent No-1 is duty bond for refund of entire amount of Rs. 45,000/-. In this case the Respondent No-1 has refunded only Rs. 40,500/- by leaving balance of Rs. 4,500/-. The say of the Respondent No-1 in reply notice that Rs. 4,500/- is retained by Respondent NO-3 ICICI Bank has been denied by Respondent NO-3 by explaining that merely keeping the said amount as per direction of Respondent NO-1 does not amount to deficiency in service by Respondent NO-3 this in-turn shift the burden of Respondent No.1. But the Respondent No.1 has remained absent and has been placed Ex-parte. The conduct of this Respondent NO-1 in not contesting the case especially with regard to retention of Rs. 4,500/- by Respondent No-3 Bank goes to show that Respondent NO-1 has remained absent for the reasons best known to him. Hence the non-refund of balance amount of Rs. 4,500/- out of Rs. 45,000/- collected from the complainant amounts to deficiency in service by Respondent No-1 and Respondent NO-1 alone. Hence we hold that the complainant has proved deficiency in service for non refund of Rs. 4,500/- by Respondent No-1 only. Therefore Point NO-1 is answered in the affirmative only against Respondent No1 and in the negative against Respondent No-2 to 4.<br /> <br /> POINT NO.2:-<br /> <br /> 13. The complainant has sought for refund of amount of Rs. 4,500/- along with interest at 18% and for awarding Rs. 4,000/- as compensation for mental agony and correspondence charges and for awarding Rs. 1,000/- towards cost totaling to Rs. 9,500/-. The documentary evidence at Ex.P-1 to P-9 go to show that for non refund of Rs. 4,500/- the complainant had to make correspondence with all Respondents 1 to 4 and that Respondent No-1 in-turn replied vide Ex.P-5 stating that Rs. 4,500/- is with Respondent No-3 Bank. But Respondent NO-3 Bank has denied this allegation and however stated that keeping the said amount as per the direction of Respondent NO-1 does not amount to deficiency of service by the Respondent No-3 Bank. This impliedly goes to show that the Respondent NO-1 has unnecessarily shifted its burden on its banker Respondent No-3 and shirked its responsibility to refund of the said amount which compelled the complainant to make unnecessary correspondence with Respondent No-1 to 4 and to file the present complaint. Hence in view of our finding on Point No-1 and having regard to the facts and circumstances of the case as discussed above we feel it just and proper to award compensation of Rs. 4,000/- while directing the Respondent NO-1 for refund of balance amount Rs. 4,500/- to the complainant. In this view of the matter we pass the following order:<br /> <br /> ORDER<br /> <br /> The complaint of the complainant is allowed in part only against Respondent No-1 Big Share Services Private Ltd., Andheri Mumbai. Consequently the complaint against Respondent No-2 to 4 is hereby dismissed.<br /> <br /> Respondent NO-1 shall refund Rs. 4,500/- to the complainant, towards balance amount (out of Rs. 45,000/- paid by him through D.D. for purchase of non-allotted shares).<br /> <br /> The Respondent NO-1 shall also pay Rs. 4,000/- as compensation and also Rs. 500/- towards cost of litigation.<br /> <br /> The Respondent No-1 shall comply this order within (6) weeks from the date of receipt of copy of this order.<br /> <br /> Office to furnish a copy of this order to both the parties forth with free of cost.<br /> <br /> (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 25-04-07)<br /> <br /> <br /> Sd/-<br /> Sri. N.H. Savalagi,<br /> President,<br /> District Forum-Raichur.<br /> <br /> Sd/-<br /> Sri. Pampannagouda, <br /> Member<br /> District Forum-Raichur.<br /> <br /> <br /> On leave <br /> Smt.Kavita Patil, <br /> Member. <br /> District Forum-Raichur<br /> <br /> <br /> <br />