BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah, B.Com B.L., President

And

Sri. M.Krishna Reddy, M.Sc., M.Phil., Male Member

And

         Smt. S.Nazeerunnisa, B.A., B.L., Lady Member

Tuesday the 26^th day of April, 2011

C.C.No 122/10

Between:

K.Varaprasad, S/o. K.Dhanapaludu,

R/o. H.No.45-185-47B, Narasimha Reddy Nagar, Kurnool.                   

                                  …Complainant

  -Vs-

1. The Branch Manager, ICICI Bank Limited,

    Shop No.16, 17, 18, U-con Plaza, Park Road, Kurnool-518 001.

2. The Branch Manager,National Co-operative Bank Limited,

    D.No.38-1, Upstairs, Opp. State Bank of India, Minchin Bazar,

    Kurnool-518 001.                                

    …Opposite Parties

This complaint is coming on this day for orders in the presence of Sri P.Siva Sudarshan, Advocate, for complainant and opposite party No.1 set exparte and Sri D.Siva Shankar Reddy, Advocate for opposite party No.2 for upon perusing the material papers on record, the Forum made the following.

     ORDER

(As per Sri. T.Sundara Ramaiah, President)

                                             C.C. No. 122/10

1.     This complaint is filed under section 11 and 12 of C. P. Act, 1986 praying:-

(a)    To direct the opposite parties 1 and 2 to adjust Rs.31,044/- after verifying the accounts of opposite parties 1 and 2;

(b)    To pay compensation of RS. 25,000/- to the complainant for the mental torture suffered by him due to the negligent act of opposite parties 1 and 2;

1. To award costs of this complaint;

And

1. To grant such other reliefs as the Hon’ble Forum may deem fit and proper under the circumstance of the case.

2.    The case of the complainant in brief is as under:- The complainant took a personal loan of Rs.85,000/- from opposite party No.1 and entered loan agreement with opposite party No.1.  The complainant gave 48 advance cheques drawn on opposite party No.2 of Rs.2,587/- each to opposite party No.1.   The said cheques were given by the complainant to discharge the loan due to opposite party No.1.  Subsequently opposite party No.1 presented 12 cheques with opposite party No.2 and they were encashed on the respective dates.  Opposite party No.1 issued notice dated 12-11-2008 to the complainant informing that he defaulted in payment of the installments as per the agreement.  As seen from the ledger extract of opposite party No.2   12 cheques were encashed by opposite party No.1.  Having been presented the cheques with opposite party No.2, it is the duty of opposite party No.1 to inform the complainant whether they were encashed or not.    There is deficiency of service and negligence on the part of the opposite parties.   Opposite party No.1 Bank not adjusted the proceeds of the cheques in the loan account of the complainant. Hence the complaint.

3.     Opposite party No.1 set exparte.  Opposite party No.2 filed written version, stating that the complaint is not maintainable.   The Previous Chairman of the Bank and his brother misused the bank funds and a case was registered on 04-12-2007 in Crime No.303/2007 Under Section 409 IPC.  The banking license of opposite party No.2 was cancelled by Reserve Bank of India.   A liquidator was appointed to opposite party No.2 Bank and it is under the proceeds of winding up.  There is no record to show that opposite party No.1 presented the cheques and they were encashed on the respective dates.  Opposite party No.2 has no knowledge that opposite party No.1 presented the cheques and that they were encashed on the respective dates.  As per the record available in the bank the complainant had S.B. Account No.773.  There is no deficiency of service or negligence on the part of opposite party No.2.  The complainant is not entitled for any reliefs from opposite party No.2.  The complaint is liable to be dismissed.

4.     On behalf of the complainant Ex.A1 to A5 are marked and sworn affidavit of the complainant is filed.  On behalf of the opposite party No.2 Ex.B1 to B3 are marked and sworn affidavit of the opposite party No.2 is filed.

5.     Both sides filed written arguments.

6.     The points that arise for consideration are:

1. Whether there is deficiency of service on the part of the Opposite Parties?

1. Whether the complainant is entitled to the reliefs as prayed for?

    (c)        To what relief?

7. POINTS 1 and 2:- It is case of the complainant that she took personal loan of Rs.85,000/- from opposite party No.1 Bank and entered into agreement with opposite party No.1.  The complainant filed Ex.A1 legal notice got issued to the complainant by opposite party No.1 Bank.  In Ex.A1 it is mentioned that the complainant committed default in payment of the loan to opposite party No.1 Bank.  It is the case of the complainant that he issued 48 advance cehques of Rs.2,587/- each drawn on opposite party No.2, that opposite party No.1 presented 12 out of them and the said cheques were encashed.  According to opposite party No.1 bank the complainant committed default in payment of monthly installments.  The complainant filed Ex.A2 statement of the account of the complainant said to have been issued by opposite party No.2 Bank.     In Ex.A2 it is mentioned that proceeds of the cheques were sent ICICI Bank.   It is not know whether the proceeds were sent to opposite party No.1 branch or to some other branch of ICICI Bank.  Merely basing on Ex.A2 it cannot be concluded that the proceeds of the cheques mentioned in Ex.A2 were sent to opposite party No.1 Bank by opposite party No.2 Bank.  It is for the complainant to establish that the opposite party No.1 Bank received the proceeds of the cheques and failed to adjust the same in the loan account of the complainant.  The complainant did not choose to summon the concerned records from opposite party No.2 Bank to establish that the proceeds of the cheques were sent to opposite party No.1 Bank.  On behalf of opposite party No.2 Bank Ex.B1 copy of the statement of the account of the complainant is filed. It does not show all the particulars mentioned in Ex.A2.   Admittedly the opposite party No.2 Bank is not carrying Banking business at present.  As seen from Ex.B2 it is very clear that the banking license of opposite party No.2 bank was cancelled by Reserve Bank of India by its order dated                   30-03-2010.  The banking license of the opposite party No.2 Bank was cancelled as Chairman of the Bank misappropriated the funds of the Bank and failed to submit the balance sheer ect. to RBI.  Ex.B3 shows that a liquidator has been appointed to opposite party No.2 Bank to attend the process of winding up of the bank.  It is mentioned in Ex.B2 that the District Cooperative Officer in his enquiry report observed that the records from 10-04-2005 to 30-11-2007 of opposite party No.2 Bank were misplaced.  If it is so it is not know as to how the manager of the opposite party No.2 Bank issued Ex.A2 dated 28-01-2008.  The manager of opposite party No.2 Bank who issued Ex.A2 is not examined by the complainant to show that opposite party No.1 Bank received the proceeds of the cheques.  Unless it is established that opposite party No.1 Bank received the proceeds of the cheques mentioned in Ex.A2, opposite party No.1 cannot be directed to adjust an amount of Rs.31,044/- in the loan account of the complainant.  According to opposite party No.1 Bank the complainant is a defaulter in repayment of the loan.  A person who seeks justice must come with clean hands.  The complainant here in committed default in payment of monthly installments to opposite party No.1 Bank.  No deficiency of service is found on the part of opposite parties.  The complainant is not entitled to reliefs as prayed for. 

8.     In the result, the complaint is dismissed.  In the circumstance of case no cost.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the day 26^thof April, 2011.

         Sd/-                                              Sd/-                                 Sd/-

MALE MEMBER                      PRESIDENT                   LADY MEMBER

       APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant : Nil                  For the opposite parties : Nill

List of exhibits marked for the complainant:-

Ex.A1        Letter dated 12-11-2008 issued by opposite party No.1 to the complainant.

Ex.A2                Ledger Extract pertaining to opposite party No.2,

dated 28-01-2008.

Ex.A3                Reply notice dated 28-03-2009.

Ex.A4                Office copy of legal notice, dated 25-02-2009.

Ex.A5                Postal receipts and acknowledgements Nos.2

List of exhibits marked for the opposite parties:-

Ex.B1                Photo copy of Ledger Extract Account No.773.

Ex.B2        Photo copy of Cancellation of Licence to carry on Banking Business in India under Section 22 of the Banking Regulations Act 1949, dated 30-03-2010.

Ex.B3                Photo copy of Appointment of Liquidator,      

dated 26-03-2010.

         Sd/-                                              Sd/-                               Sd/-

MALE MEMBER                      PRESIDENT                 LADY MEMBER

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties  :

Copy was made ready on             :

Copy was dispatched on               :