Andhra Pradesh

Chittoor-II at triputi

CC/27/2019

N.C.S.M.Prasad, S/o. Late N.Subbarao - Complainant(s)

Versus

The Branch Manager, SBI - Opp.Party(s)

In person

29 Nov 2019

ORDER

Filing Date: 20.02.2019

Order Date:29.11.2019

 

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.T.Anand, President (FAC)

               Smt. T.Anitha, Member

 

 

 

FRIDAY THE TWENTY NINTH DAY OF NOVEMBER, TWO THOUSAND AND NINTEEN

 

 

 

 

C.C.No.27/2019

 

 

Between

 

 

Sri.N.C.S.Malleswara Prasad,

Aged 55 years,

S/o. late. N.Subba Rao,

D.No.581, Andhra Bank Lane,

Balaji Colony,

Tirupati – 517 502.                                                                          … Complainant.

 

And

 

 

The Branch Manager,

State Bank of India,

Annamaiah Circle Branch,

Tirupati – 517 502.                                                                          …  Opposite party.

 

 

 

 

            This complaint coming on before us for final hearing on 14.11.19 and upon perusing the complaint and other relevant material papers on record and on hearing Sri.N.C.S.M.Prasad, party-in-person for complainant, and Sri.K.Ramesh Babu, counsel for opposite party, and having stood over till this day for consideration, this Forum makes the following:-

ORDER

DELIVERED BY SRI. T.ANAND, PRESIDENT (FAC)

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section–12 of C.P.Act 1986, praying for direction to the opposite party, to refund Rs.10,000/- debited to his account illegally on 05.01.2019 with interest at 24% p.a. from 05.01.2019, to refund Rs.108.79/- debited to his account illegally on 08.01.2019, to pay Rs.3,000/- towards legal notice charges and to pay compensation of Rs.4,80,000/- due to deficiency in service on the part of opposite party, and to pay Rs.5,000/- towards costs of the complaint.  

            2.  The complaint allegations are as follows:- The complainant is having joint savings bank account with his wife bearing account No.32645054514 with opposite party since 08.11.2012. He issued a cheque bearing No.097366 dt:03.01.2019 for Rs.7,000/- drawn on opposite party bank to Mr.S.Subramanyam towards partial discharge of hand loan of Rs.7,000/- borrowed from him on 17.10.2018. There is a balance of Rs.10,108.79/- in the joint account as on the date of issue of cheque to S.Subramanyam. When the cheque was presented by S.Subramanyam for clearance on 07.01.2019 through his banker i.e. Andhra Bank, S.V.University, Tirupati branch, the cheque was returned unpaid by opposite party bank with endorsement ‘funds insufficient’ in his account on 08.01.2019. Further, the opposite party also debited Rs.108.79/- towards charges for dishonor of cheque No.097366 arbitrarily for no fault of him. As per the statement of account, opposite party debited Rs.10,000/- to his account on 05.01.2019 and transferred to account No.36292566178 without his knowledge and concurrence. Further, the opposite party also debited Rs.108.79/- towards dishonor of cheque No.097366 and thus the balance in his account was made ZERO. Mr.Subramanyam has issued legal notice dt:12.01.2019 to him through his counsel stating that he is going to take criminal action against the complainant under Section-138 and 142 of N.I.Act. Thus, he paid Rs.10,000/- including cheque return charges + legal notice charges and penal rate of interest to S.Subramanyam, and thus avoided criminal prosecution by S.Subramanyam. However, his reputation in society has been damaged due to the act of opposite party. Hence, he issued legal notice dt:14.01.2019 to opposite party by registered post acknowledgement due with postal receipt No.RN599139925IN and the same was acknowledged by opposite party on 18.01.2019. But there was no reply from opposite party. Hence, it is prayed to allow the complaint.

            3.  The opposite party filed the written version contending as follows – It is admitted that complainant is maintaining joint Savings Bank Account along with his wife bearing account No.32645054514 with their branch since 08.11.2012, that the complainant issued cheque bearing No.097366, dt:03.01.2019, for Rs.7,000/- drawn on their branch to one S.Subramanyam, that the said cheque was presented for clearance on 07.01.2019 through Andhra Bank. S.V.University Branch, Tirupati, and the said cheque was returned unpaid by opposite party with the reason ‘funds insufficient’ in his account on 08.01.2019, and also debited Rs.108.79/- towards charges for dishonor of cheque No.097366, that the opposite party has admitted that an amount of Rs.10,000/- has debited to the account of complainant on 05.01.2019 and transferred to account No.36292566178. But it is denied that the complainant issued cheque to S.Subramanyam towards partial payment of hand loan. It is also denied that Subramanyam issued notice dt:12.01.2019 to complainant threatening criminal action against complainant, as the cheque was dishonoured. It is stated that complainant is called upon to prove the allegations made in the complaint. The opposite party has stated that complainant has obtained personal loan from opposite party vide account No.36292566178, and as per the loan agreement clause- 12(iii) “the bank shall have a paramount right of set off and exercise of the bank’s general lien under law, the bank shall also have a paramount right of lien on all monies, accounts, securities, deposits, goods and other assets and properties belonging to the borrower or standing to the borrower’s credit (whether singly or jointly with any other person), which are or may at any time be with or in possession or control of any branch of the bank for any reason or purpose whatsoever”. Further as per clause-15 of the agreement it is clear that “the borrower agrees that the bank shall be entitled to transfer the loan account to any of the branches of the bank after giving due notice”. The opposite party has communicated the transfer of amount to the complainant on phone, as the complainant failed to pay the installment amount towards personal loan account within time, the opposite party bank has transferred Rs.10,000/- from the joint S.B.Account of the complainant to the loan account towards the installment due on 05.01.2019. Hence, the cheque presented on 07.01.2019 was returned unpaid, as there was no sufficient amount in the account of the complainant. As the cheque was dishonored, opposite party bank has debited Rs.108.79/- as per rules towards charges for dishonor of the cheque. Hence, it is submitted that there is no fault on the part of opposite party bank, as alleged by the complainant in the complaint, and so the complainant is not entitled to the reliefs sought in the complaint. There is no question of deficiency in service on the part of opposite party in this case, and as such it is prayed to dismiss the complaint.

            4. The complainant filed his chief affidavit as P.W.1 and got marked Exs.A1 to A7. On behalf of opposite party, one Sri.R.Dhanagopal, Branch Manager, S.B.I., has filed his chief affidavit as R.W.1 and got marked Exs.B1 to B4.

            5.  The point for consideration is whether there is deficiency in service on the part of opposite party, as alleged by the complainant? If so, to what extent the complainant is entitled to the reliefs sought for in the complaint? 

            6. Point:-  There is no dispute that the complainant and his wife are having joint account in opposite party branch as per Ex.A1, vide account No.32645054514. Ex.A2 is cheque bearing No.097366, which was returned with endorsement  ‘insufficient funds’ in account No.32645054514. There is no dispute about Ex.A2 also. As per Ex.A2, complainant issued cheque in favour of one S.Subramanyam for Rs.7,000/- on 03.01.2019, and the same was returned with endorsement on 10.01.2019. It is the contention of the complainant that the said cheque was issued in favour of S.Subramanyam, from whom the complainant borrowed money and Ex.A2 was issued in partial discharge of debt. Ex.A3 is statement of account, which shows that an amount of Rs.10,000/- was debited from the joint account on 05.01.2019 and similarly Rs.108.79/- was also debited from the same account on 08.01.2019. There is no dispute that the said amounts were debited from the joint account. Opposite party also admits the same in their written version. Ex.A4 is notice issued by complainant to branch manager of opposite party dt:14.01.2019 stating that an amount of Rs.10,000/- was debited to joint account No.32645054514 and transferred to account No.36292566178 without his knowledge and consent, and similarly debited Rs.108.79/- to his account towards dishonor of cheque charges without his consent. Further, the complainant stated in the notice that S.Subramanyam has issued legal notice dt:12.01.2019 to him through his advocate threatening to take criminal action against him under Section-138 and 142 of N.I.Act, as the cheque issued in his favour by the complainant was dishonored, and also alleged that there is deficiency in service on the part of opposite party, and asked the opposite party to refund Rs.10,108.79/-. Ex.A5 is postal acknowledgement card for receiving Ex.A4 notice. Ex.A6 is certain citations referred by the opposite party. Ex.A7 is notice dt:12.01.2019 issued by S.Subramanyam to the complainant threatening to initiate criminal action against the complainant for issuing cheque, which was dishonored with endorsement ‘insufficient funds’.  

7. As against documentary evidence produced by the complainant, opposite party has filed personal loan agreement, in order to support their contention that opposite party has got general lien under law and also have paramount right of set off on all monies, accounts, securities, deposits, goods and other assets and properties belonging to the borrower or standing to the borrower’s credit. It is also argued that as per clause-15 of the agreement the borrower agrees that the bank shall be entitled to transfer the loan account to any of the branches of the bank after giving due notice. The counsel for opposite party argued that they have intimated to the complainant about transfer of amount over phone. As the complainant failed to pay the installment amount towards personal loan account within time, the opposite party bank has transferred Rs.10,000/- from  joint S.B.Account to the complainant loan account towards installment due on 05.01.2019, and naturally when the cheque was presented on 07.01.2019, it was returned with endorsement ‘insufficient funds’ in the account of the complainant. Further, they had to debit Rs.108.79/- as per rules, since cheque was dishonored, and therefore it is argued that there is no deficiency in service on the part of opposite party.

            8. The complainant argued that the Patna High Court in Radha Raman Choudhary vs. Chota Nagpur Banking Association Ltd. has held that “the bankers have a right to combine one or more accounts of the same customer. But a banker cannot combine a customer’s personal account with the joint account of the customer with another person”. In the instant case, the joint account holders are husband and wife, and as per Clause-11(iii) of Ex.B2, the bank shall have right of lien on other assets and properties belonging to the borrower or standing to the borrower’s credit (whether singly or jointly with any other person/s) which are or may at any time be with or in possession or control of any branch of the bank for any reason or purpose whatsoever. Hence, the above cited decision submitted by the complainant is not applicable to the facts of the present case on hand.    

            9.  The opposite party filed four documents in support of their contention that the opposite party bank did not commit any deficiency in service, and that as per clause-11(iii) loan agreement, they are empowered to exercise general lien in order to set off loan EMIs, in case the borrower failed to pay the EMI. Ex.B1 is personal loan agreement proforma. Ex.B2 is personal loan agreement, which is similar to Ex.B1. Ex.B3 is statement of account in respect of account No.32645054514 i.e. joint account maintained by the complainant and Mrs.Indira Priyadarsini. Ex.B4 is statement of account in respect of account No.36292566178 of Mrs.Indira Priyadarsini. On the basis of these documents, the opposite party counsel has contended that every month EMIs are being deducted from the account No.36292566178, since the account holder Indira Priyadarsini executed loan agreement Ex.B2 in favour of opposite party.  Ex.B3 account No.32645054514, is joint account of complainant and Indira Priyadarsini, and it shows that Rs.10,000/- has been deducted from that account on 05.01.2019 and the said amount was credited into the loan account bearing No. 36292566178. Ex.B3 also shows that Rs.108.79/- has been deducted on 08.01.2019 towards dishonor of cheque. It is no doubt true that complainant has issued cheque to one Subramanyam on 03.01.2019 and the same was presented by Subramanyam for encashment on 08.01.2019, which was returned with endorsement ‘insufficient funds’. Mrs. Indira Priyadarsini, is not a stranger and she is the wife of the complainant, and whenever any transaction is made, definitely she would have come to know about that transaction, as the SMS will be sent by opposite party bank. Similarly, the complainant also would have received the SMS to his cell phone, when the amount is debited from the joint account and transferred to loan account of his wife. It is not the case of the complainant that account No. 32645054514 is a single account standing in his name alone, and he could have asked his creditor Subramanyam, not to present the cheque in the bank. We, therefore, hold that in view of the lien exercised by the bank, they are well within the right to transfer the amount from joint account to the loan account, since the borrower is also holding joint account with her husband. Hence, we are of the view that there is no deficiency in service on the part of the opposite party bank, as alleged by the complainant. We, therefore, dismiss the complaint.

            10.  In the result, complaint is dismissed. No costs.      

Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 29^th day of November, 2019.

 

      Sd/-                                                                                                                       Sd/-                                                  

Lady Member                                                                                               President (FAC)

 

 

APPENDIX OF EVIDENCE

 

    Witnesses Examined on behalf of Complainant/s.

 

PW-1: Sri N.C.S.M. Prasad (Chief affidavit filed).

 

Witnesses Examined on behalf of Opposite PartY/S.

 

RW-1: Sri R. Dhanagopal (Chief affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/s

 

Exhibits (Ex.A)	Description of Documents
	Front page of Savings Bank Pass Book of SBI, Annamaiah Circle Branch (Branch Code: 10106, Date of Issue: 08.11.2012), Tirupati (Self attested photo copy).
	Original copy of Multi-City Cheque bearing No. 097366 for Rs.7,000/-, Dt: 03.01.2019 (SBI, Annamaiah Circle Branch, Branch Code: 10106, Tirupati) and Cheque Return Memo of Andhra Bank  Dt: 10.01.2019 regarding “Cheque Returned due to Insufficient Funds”.
	Self attested photo copy of STATEMENT OF ACCOUNT obtained through net banking (SBI, Annamaiah Circle Branch , Branch Code: 10106, Tirupati) from 01.01.2019 to 19.02.2019.
	Notice sent to the Opposite Party. Dt: 14.01.2019.
	Postal Acknowledgement Card.
	Self attested photo copy of Citations on BANKERS RIGHT OF SET-OFF.
	Legal Notice issued by the Advocate of Mr. S. Subramanyam. Dt: 12.01.2019.

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/s

 

Exhibits (Ex.B)	Description of Documents
	Original copy of Empty Personal Loan Agreement.
	Photo copy of Personal Loan Agreement. Dt: 06.12.2016.
	Photo copy of State Bank of India, Annamaiah Circle Branch, Tirupati STATEMENT OF ACCOUNT for the period from 01.12.2018 to 28.02.2019 with regard to Savings Bank Account No. 32645054514. Dt: 24.04.2019.
	Photo copy of State Bank of India, P.B.No.8, Behind Govindaraja Swamy  Branch, Tirupati STATEMENT OF ACCOUNT for the period from 06.12.2016 to 24.04.2019 with regard to Savings Bank Account No.36292566178. Dt: 24.04.2019.

 

 

                                                                                                                        Sd/-        

                                                                                                                President (FAC)

     

                                   // TRUE COPY //

// BY ORDER //

 

Head Clerk/Sheristadar,

          Dist. Consumer Forum-II, Tirupati.

              

              

    Copies to:- 1.  The complainant.

                        2.  The opposite party.