Suram chandrarao filed a consumer case on 24 Jul 2015 against The Branch manager State Bank of Hyderabad in the Nellore Consumer Court. The case no is CC/46/2013 and the judgment uploaded on 28 Nov 2015.
Date of Filing :19-03-2013
Date of Disposal:24-07-2015
BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE
Friday, this the 24th day of July, 2015
PRESENT: Sri M. Subbarayudu Naidu, B.Com.,B.L.,LL.M.,President(FAC) & Member
Sri N.S. Kumara Swamy, B.Sc.,LL.B., Member.
Suram Chandra Rao, Age 71 years,
S/o.Krishnaiah, Brahmin,
Hindu, Retired Employee,
Residing at 27/59, Polic Colony,
A.K.Nagar Post,
Nellore-524 004, Nellore District. ..… Complainant
Vs.
1. | The Branch Manager, State Bank of Hyderabad, Dargamitta, Nellore-524 004.
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2. | The General Manager, State Bank of Hyderabad, Gunfoundry, Hyderbad-1. ..…Opposite parties |
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This complaint coming on 10-07-2015 before us for hearing in the presence of Sri Md. Rahimkhan, advocate for the complainant and SriP. Gangadhara Reddy and Sri P. Gopinath, advocate for the opposite parties and having stood over for consideration till this day and this Forum made the following:
ORDER
(ORDER BY Sri M. SUBBRAYUDU NAIDU,PRESIDENT(F.A.C.)
This Consumer Case is filed by the complainant against the opposite parties 1 and 2 to direct them jointly and severally liable to recredit of Rs.25,000/- which was wrongly debited on 30-08-2011 with interest thereon at 12% p.a. from the date of deduction i.e., 30-08-2011 till the date of realization to the complainant, to pay Rs.20,000/- towards damages for deficiency in service and negligence committed by the opposite parties to the senior citizen, who was a retired employee and also to grant costs of this complaint and pass such other relief or reliefs as the Hon’ble Forum may be pleased deemed fit and proper in the interests of justice.
Factual matrix leading to filing of this Consumer Case is as stated as hereunder:-
1. | It is the case of the complainant that he is a retired employee who is having 71 years of age and served in A.P.S.E.B. He is having Pension S.B.Account bearing No.52079008208 with ATM/Debit card bearing No.5044352089700003346 with opposite party No.1 and he has been transacting with the said account. He had further further submitted that he is having a balance of Rs.1,12,226.69Ps. after withdrawing Rs.4,000/- through ATM under transaction No.2091 at 8.26 P.M. dated 30-08-2011. He had also withdrawn of Rs.10,000/- through opposite party No.1 at ATM counter on 31-08-2011 at about 8.23 A.M. under transaction No.2547 and he was shocked to see the balance after the said transaction of Rs.77,226.89ps. instead of Rs.1,02,226.29 i.e., short of Rs.25,000/-. Then, the complainant had waited for security guard to report the same but he is not available there. Thereafter, as on 31-08-2011 and 01-09-2011 are closed for holidays because of festivals Ramjan and Sri Ganesh Chathurthi respectively. So, the complainant had approached opposite party No.1 on 02-09-2011 and informed about wrong balance entry short of Rs.25,000/- and submitted a written representation to opposite party No.1 by requesting to recredit the said amount of Rs.25,000/- which is a wrong debit transaction and actually not withdrawn by him.
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2. | The complainant has further alleged that in the same para at page No.2 in his complaint that the opposite party No.1 promised to re-credit the said wrong entry in his Savings Bank Account and after several approaches and requests, on 10-10-2011, the opposite party No.1 had orally informed to the complainant that the amount of Rs.25,000/- was withdrawn on 30-08-2011 at 8.29 A.M. through the complainant ATM card through a single transaction through ATM No.2. It is further submitted by complainant that both ATMs attached to opposite party No.1 branch have been disbursing Rs.500/- denomination notes and not more than Rs.20,000/- can be drawn in a single transaction through ATMs.The same was also confirmed by the Bank employees. So, the said amount of Rs.25,000/- said to have been recorded as withdrawn in the ATM from an account of the complainant on 30-08-2011 at 8.29 A.m. was not actually drawn by him and it is a wrong entry. The complainant had also submitted another letter to opposite parties by requiring them to show the C.C. camera footage to ascertain the fact. But the opposite parties are covered up their negligence, did not choose to do the same and did not take any action to find the reasons for the said wrong debit entry. |
3. | It is also further alleged by the complainant that at para / at page No.2 in the bottom lines of his complaint that he had submitted e-mail representation dated 17-10-2011 to opposite parties, Head office, requesting them to enquire into the matter and to credit the said wrongly deducted entry amount of Rs.25,000/-, who replied by e-mail dated 21-10-2011 stating that the opposite party No.1 and D.G.M., Tirupathi will look into the matter and solve the problem. |
| But, as there is no response from the opposite parties, the complainant had again submitted another representation dated 04-11-2011 to the Banking Ombudsmen. The opposite party No.1 had sent a letter dated 12-12-2011 without taking any steps, simply stating that and it is a successful transaction. No cash excess was found on 30-08-2011. The said letter is baseless and not tenable under law. |
So, the complainant had again submitted representation dated 20-02-2012 at the Ombudsman, Hyderabad requesting to do justice to him. But to his utter surprise the Banking Ombudsman without any enquiry simply closed the complaint basing on the letter of opposite parties.
It is further submitted by the complainant in his complaint in page No.3 that it is the legal and bounden duty of the opposite parties to enquire into the matter when the complainant had issued complaint about the said wrong entry or even it is their duty to show the C.C. camera footage. But the opposite parties did not choose to do the same. It is the legal and bounden duty of the opposite parties to safeguard the amounts kept in their bank by the customers. If any complaint is received about wrong deduction of Rs.25,000/- the opposite parties to have thoroughly enquire into the matter and to find out he truth. But the opposite parties are kept quite and did not choose to re-credit the said amount of Rs.25,000/-. The acts of opposite parties are clearly to constitutes gross-negligence and deficiency in service. The complainant is being senior citizen having 71 years of age suffered a lot of mental agony, financial los and hardship. So, the opposite parties are not only liable to re-credit the said wrong deduction of amount of Rs.25,000/- with interest but also liable to pay damages. Hence, the complainant had approached the Hon’ble Forum for redressal.
There are causes of action to file this complaint as they are narrated at page No.4 of the complaint of complainant. Hence, the complaint.
II. DFFENCE:
The opposite parties have resisted the complaint and filed written version / counter of 1st opposite party on 31-07-2013 and an adoption memo of 2nd opposite party, had been filed on 31-07-2013 by denying the allegations of the complainant of the complaint.
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(a) | It is submitted by the 1st opposite party in it’s written version / counter in para-4 that the Hon’ble Forum has no jurisdiction to entertain the complaint. There is no deficiency of service on the part of the opposite parties as alleged in the complaint by the complainant. The complainant had got filed the complaint against the opposite parties suppressing true and correct facts. The 1st opposite party is not liable to pay any amount to the complainant as alleged and prayed in the complaint.
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(b) | It is also further submitted by 1st opposite party in it’s written version at para-5 that it is false to state that as alleged by the complainant the shortage of Rs.25,000/- in account is not correct; and that the record of withdrawal of Rs.25,000/- on 30-08-2011 in the ATM which is a wrong transaction is not correct. It is also not true and correct that the opposite party No.1 promised to re-credit the said wrong debit amount of Rs.25,000/- in the S.B. of complainant.
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(c) | It is also further stated by the 1st opposite party in para – 6 of it’s written version that the complainant namely Sri S. Chandra Rao, S/o.Krishnaiah is having S.B. account No.52079008208 with ATM card bearing No.5044352089700003346 at the respondent’s branch. It is further submitted that he had made a successful transaction of withdrawal of Rs.25,000/- on 30-08-2011 at 8.29 a.m. as per the J.P.Log which clearly shows that the respond code is 000 for the said transaction No.9306 dated 30-08-2011 and the amount is also debited the said amount of Rs.25,000/- on the same date. It is also further submitted that there was no excess cash found in ATM as on the date 30-08-2011 as per the cash certificate record. Thereby the respondent had duly submits that the complainant had duly received the said amount at the machine clearly shows that the said transaction was a successful transaction. Hence, the opposite party submits that they are not liable to re-credit the said wrong deduction amount of Rs.25,000/- with interest as alleged by the complainant and also to pay damages.
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(d) | It is also further stated by the 1st opposite party in para – 7 of it’s written version that the 1st opposite party had acted in accordance with the norms prescribed by the bank authorities and as such this complaint is a baseless; a false, vague and fancy litigation to harass 1st respondent to get wrongful gain. So, the 1st opposite party had humbly prays that this complaint is liable to be dismissed with exemplary costs. |
III. The complainant has filed his affidavit on 02-04-2014 and the documents are marked on his behalf Exs.A1 to A12. The opposite parties have filed their affidavit on 28-08-2014 and the only document is Exs.B1 which is marked on behalf of the opposite parties. The written argument of the complainant had been filed. There is no written arguments of the opposite parties are in the record.
IV. Basing on the material available on record such as complaint, written version, the documents of both the sides, the points that arise for determination of the case are as follows:-
1. Is there any deficiency in service on the part of the opposite parties towards the
complainant?
2. Whether the complainant is entitled the reliefs as prayed for, if it is so, to what extent?
3. To what relief?
V. POINTS 1 AND 2: In view of the points 1 and 2 are in the complaint, inter-dependant with each other. We have taken up together for discussion and determination of the case. The complainant has filed sworn affidavit in proof of the averments contained in the complaint. The written arguments of the complainant is filed before the Forum and it may be read as part and parcel of his oral arguments of the case.
The complainant has reiterated the facts of the case once again and basic facts are not disputed by the opposite parties but they are disputed only ATM transaction and withdrawal of the amount of Rs.25,000/- on 30-08-2011, is true and correct.
The learned counsel for the complainant Sri Md. Rahimkhan has vehemently argued that there is unauthorized deduction of the amount of Rs.25,000/- from complainant’s savings bank account No.52079008208 on 30-08-2011 by the opposite parties. He has also further argued that the complaint may be read as part and parcel of his oral arguments. The complainant had never withdrawn the said amount of Rs.25,000/- on 30-08-2011 from ATM. Inspite of complainant’s letters dated 02-09-2011 (Ex.A4), dated 17-10-2011 (Ex.A5), dated 04-11-2011 (Ex.A7) dated 25-11-2011 (Ex.A8) and dated 20-02-2012 (Ex.A11) to the opposite parties, they have not produced their evidence with documents such as C.C. camera footage and further more, they have said that by letter dated 03-01-2012 (Exs.A10) with regard to the disputed ATM transaction of Rs.25,000/- done on 30-08-2011 by the customer / complainant, is successful on the basis successful EJ Log and ATM Log; statement of account; No excess cash found, certificate from their branch and cash reconciliation sips. These are all within the custody of opposite parties and there is no scope for any body to look into the details of transactions, what they (opposite parties) said, one has to believe their statement is true, that is their concept, they won’t accept customer’s plea and they can’t understand that the complainant’s mental worry and agony.
(b) The said learned counsel for the complainant has further contended that Rs.500/- notes at a time for Rs.25,000/-, the opposite parties ATM machine will not certainly disburse, the size of Rs.25,000/- is too big. No one can withdraw such a big amount with single transaction that to Rs.500/- denomination of notes. He has urged that the opposite parties have to discharge their burden by showing that the amount which was kept at ATM chest with various denominations such Rs1,000/-, Rs.500/- and Rs.100/- the statement of it has not been filed before the Forum for the reasons best known to them. He has also argued that the opposite parties are not at all responded to complainant’s demands for enquiry into the matter till October, 2011. They are at last wrote a letter dated 12-12-2011 to the complainant without any basis and expressed that “it is a successful transaction”. They are also informed to the complainant by way of a letter dated 03-02-2012 (Exs.A10)” in view of the divergent contention of the complainant
and the Bank, the complaint is closed in our books under clause 13 (C) of Banding Ombudsman scheme, 2006. The said learned counsel for complainant has stressed much by arguing that it is absolutely one side decision of Banking Ombudsman, Hyderabad against complainant. To fortify his submissions, the learned counsel for the complainant is relied upon decision, which is reported in (2011 CTJ 703) Maharastra State Commission, Mumbai held that the Ombudsman’s findings in a dispute between bank and its constituent, are not binding on the Consumer Forums. They provide additional remedy but the final choice is of the constituent ie.., the consumer
(c) He has further contended that all the details of such documents of opposite parties have not filed before the Forum for determination of the case, for the reasons best known to them. His further contention is that C.C. camera footage should be kept intact after receiving a complaint from the complainant on 02-09-2011 itself. This is vital for a decision of the case and photograph, will decide on that disputed date and time on which whether the complainant has withdrawn the amount of Rs.25,000/- or not. The opposite parties are not produced C.C. camera footage before the Hon’ble Forum for the reasons best known to them. Finally, the said learned counsel for the complainant has argued that the complainant had suffered financial loss and with mental worry unexplained and put him much hardship, is caused to him. It is all contained in all the letters addressed to the opposite parties. But the opposite parties have leisurely responded to the call given by the complainant and said ‘it is a successful transaction’ without a proof of evidence. He has also prayed that the Hon’ble Forum may be pleased to allow the complaint with compensation and costs as the case may be.
ORAL SUBMISSIONS OF THE LEARNED COUNSEL FOR THE OPPOSITE PARTIES:
(d) On the other hand, Sri P. Gangadhara Reddy, the learned counsel for the opposite parties, has also vehemently argued that the complainant had got filed the complaint against the opposite parties suppressing true and correct facts with an intention to get wrongful gain and cause inconvenience to them. The opposite parties are not liable to pay any amount to the complainant as alleged and prayed in the complaint. He has also further contended that the complainant is not entitled for refund the same. He has also further argued that as alleged by the complainant that the shortage of Rs.25,000/- in his account is not correct and that the record of withdrawal of Rs.25,000/- on 30-08-2011 in the ATM which is a wrong transaction is not correct. It is also not true and correct that 1st opposite party had promised the complainant to re-credit the said wrong debit amount of Rs.25,000/- in the savings bank account of complainant.
(e) The said learned counsel for the opposite parties has further contended that the complainant had made a successful transaction of withdrawal of Rs.25,000/- on 30-08-2011 at 8.29 a.m. a per the J.P.Log (Ex.B1), which was clearly shows that the respond code is 000 for the said transaction No.9306 dated 30-08-2011 and the said amount is also debited on the same date. There was no excess cash found in ATM on the date 30-08-2011 as per the cash certificate record. Finally, the said learned counsel for the opposite parties has further advanced his argument by saying that the opposite parties had acted in accordance with the norms prescribed by the bank authorities and as such the complaint is baseless, a vague, false and fancy litigation to harass the opposite parties to get wrongful gain. In the said circumstances and facts of the case, the Hon’ble Forum may be pleased to dismiss the complaint with exemplary costs.
Forum’s Findings and Observations
(f) Heard, the learned counsel for both the parties and perused the record very carefully. Parties led their evidence by way of affidavits. Complaint against deficiency in service is one of the crucial aspects of Consumer Protection Act, 1986. A complaint can be filed under the said Act, 1986 in respect of unsatisfactory services.
(g) The only point to be determined by the Forum, is that the parties to the complaint are submitted their grievances about the subject matter of the case, the allegations with proof of documents or not. Both the parties are to discharge their burden to establish the fact and to be proved. Primarily, the complainant has to prove the case what he alleged beyond doubt.
CASE LAW:-
(h) Repeated deficiency in service of the service provider amounts to gross deficiency in it’s service for which the consumer has to be adequately compensated by it reported in 2010 C.T.J. (N.C.) 1159.
(i) The general provisions of Section-34 C.P.C. being based on justice, equity and good conscience would authorize the Consumer Forums to grant interest to the aggrieved consumers according to the circumstances of each case 2010 C.T.J. 1215 (S.C.).
Deficiency in Service:- To bring home an allegation of deficiency in service, the element of willful action (or as the case may be, inaction) needs to be established and the onus of proof such action / inaction lies on the complainant – 2010 (2) CPR 89 (N.C.).
(j)Complainant must prove it’s claim by reliable evidence 2011 (3) C.P.R. 81 (N.C.)
(k) It is no doubt that entire machinery to know the details are with the opposite parties. They are silent about it. Usually, the C.C. camera footage of concerned disputed fact will be a deciding factor that whether the complainant was present in ATM at relevant time and date, to withdraw the said amount of Rs.25,000/- at a single transaction. Is it possible for any prudent person to withdraw the said amount at once? A person will get deduction note but not an amount from ATM and thereafter there will be a reversal note for such amount from the Banks. Anything is possible in the circumstances of the case. The C.C. camera footage will describe the proof of such transaction of the person, who has withdrawn the amount as the case may be. Now, there is no such C.C. camera footage of opposite parties are with us, to findout the truth. An adverse inference can be drawn from the circumstances of the case. Every case has to be judged on its own facts. There is no hard and fast rule to apply to the facts of the case. It is true that proper appreciation of evidence is a matter of experience, common sense and knowledge of human affairs for weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and commonsense and shroudness must be brought to bear upon the facts elicited in every case.
In view of the technology that is developed, now-a-days, we are depending upon C.C. camera footage to know correct and accurate presence of the drawer at a relevant time. The Bank Ombudsman will act upon the information furnished by the opposite parties. Their investigation and results of it, are not before us to decide the case. Except the document (Ex.B1), no other such documents which are essential to weigh the evidence of opposite parties to say that it is a successful transaction, and they are all not available with us for determination of the case for the reasons best known to the opposite parties.
(f) Is it believable in the absence of reliable evidence on behalf of the opposite parties? The agony and mental worry which had suffered by the complainant in the form of letters addressed to the opposite parties, right from the beginning will be taken into account while assessing the evidence to arrive at a correct decision. The Consumers are now wandering and they are forced to go to pillar to post and post to pillar to realize what they had lost in ATMs due to technology development, under the guise of it, the mistakes are occurring and happened but justice will be done to some of them only. The Private Management had undertaken to fill-up the cash at ATMs on behalf of the Opposite Parties / Banks. We cannot expect that everything will go smoothly without any obstructions. The Forum / Court will judge the case, basing upon the evidence produced before it, and not by surmises and opinions of opposite parties without producing the documentary evidence. The Consumer Fora confers equity jurisdiction and based on justice, equity and conscience. The said Act, 1986 is a benevolent legislation to protect the consumer rights and thereby to do justice to them. We are convinced with the arguments of the counsel for the complainant. There is a lot of deficiency in service and negligence on the
part of the opposite parties towards the complainant. Mental worry cannot be measured in terms of money. There must be a justification for every action and not expected one side decision without producing most valuable and reliable evidence which the opposite parties had with them in their possession and custody but not opened their eyes to produce them before the Forum to decide the case. If the opposite parties had thinks so, vigilant, there will not be any much difficulty for them to produce but they are abstaining from doing so, what it means, welcoming to draw us an adverse inference. The complainant’s material had greater probative value compared to the material of the bank We have to much weightage to the evidence produced through the letters addressed to opposite parties initially after happening an event immediately.
(g) There is substance in the complaint of the complainant. There is a circumstantial evidence to prove a case and it is in favour of the complainant with regard to award of compensation for the complainant, we can say that measure of damages are dependant upon various factors. The time that took by the opposite parties to arrive at a decision from the side of them, is not justified and delay is certainly occurred. The service provider must dispense its service without any delay and prompt service to the satisfaction of the customers. So, the opposite parties are not supposed to act upon on their conclusion alone only and they must bring forth all the details before the Forum with documentary evidence what they have alleged and proved against the complainant to arrive at a decision as the case may be. It is totally unjustified on the part of the opposite parties. There is absolutely a deficiency in service and negligence on their part towards the complainant. We accept the averments contended in the affidavit as true and hold that complainant has proved his case as against the opposite party. Equitable jurisdiction confirmed on the Consumer Fora is to be exercised in just and equitable manner. So, the complainant is entitled to get his amount to be refunded by the opposite party and compensation is payable Rs.10,000/- and also costs of Rs.2,000/- also. These two points are held in favour of the complainant, accordingly.
VI. POINT No.3: In the result, the complaint is allowed in part, ordering the opposite parties 1 and 2 jointly and severally liable to credit Rs.25,000/- (Rupees twenty five thousand only) to the complainant’s account, which was wrongly debited on 30-08-2011 with interest at 9% p.a. from the date of deduction i.e., 30-08-2011 till realization, to pay Rs.10,000/- (Rupees ten thousand only) towards damages for deficiency in service and negligence on the part of opposite parties to senior citizen and also to pay Rs.2,000/- (Rupees two thousand only) towards costs of complaint. This point is answered in favour of complainant, accordingly.
Typed to the dictation to the Stenographer, corrected and pronounced by us in the open Forum, this the 24th day of July, 2015.
Sd/- Sd/-
MEMBER PRESIDENT(F.A.C.)
APPENDIX OF EVIDENCE
Witnesses Examined for the complainant
P.W.1 - | 02-04-2014 | Sri Suram Chandra Rao, S/o.Krishnaiah, Nellore-524 004. (Deposition Affidavit filed)
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Witnesses Examined for the opposite parties
R.W.1 - | 28-08-2014 | Sri Chukkala Satya Prasad, S/o.Chenchu Rao, Assistant Manager in opposite party. (Affidavit of opposite party No.1 filed) |
EXHIBITS MARKED FOR THE COMPLAINANT
Ex.A1 - | 18-08-2011 | ATM Customer Advice slip in A/c.No.00000052079008208 withdrawal for Rs.5000/-.
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Ex.A2 - | 30-08-2011 | ATM Customer Advice slip in A/c.No.00000052079008208 withdrawal for Rs.4000/-.
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Ex.A3 - | 31-08-2011 | ATM Customer Advice slip in A/c.No.00000052079008208 withdrawal for Rs.10000/-.
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Ex.A4 - | 02-09-2011 | Photocopy of letter from complainant to the opposite party No.1.
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Ex.A5 - | 17-10-2011 | Photocopy of letter from complainant to the opposite parties.
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Ex.A6 - | 20-10-2011 | Photocopy of Customer Complaint through e-mail from Ex.A7 - | 04-11-2011 | Photocopy of letter from complainant to the Ombudsman, C/o.Reserve Bank of India, CAMP-Nellore.
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Ex.A8 - | 25-11-2011 | Photocopy of letter from complainant to the Ombudsman, C/o.Reserve Bank of India, Saifatabad-Hyderabad-500004.
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Ex.A9 - | 12-12-2011 | Letter from opposite party No.1 to the complainant.
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Ex.A10 - | - | Complaint No.2011120090001706 addressed to the complainant and opposite party No.1 from Banking Ombudsman, Hyderabad-500 004, On 03-01-2012 letter from opposite party No.2 to the Banking Ombudsman, Reserve Bank of India, Hyderabad. Six AT.M. receipts in two pages and photocopy of certificate from opposite party No.2 and blank envelop from Reserve Bank of India, Nellore.
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Ex.A11 - | 20-02-2012 | Photocopy of letter from complainant to the Ombudsman, C/o.Reserve Bank of India, Saifatabad-Hyderabad-500004.
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Ex.A12 - | - | Photocopy of Pass Book two pages in favour of complainant in A/c.No.52079008208 at opposite party No.1bank. |
EXHIBITS MARKED FOR THE OPPOSITE PARTIES
Ex.B1 - | 25-11-2011 | Photocopy of letter from opposite party No.1 to the Assistant General Manager, Region I, Regional Office, Tirupath. |
Id/-
PRESIDENT(F.A.C.)
Copies to:
1. | Sri Md. Rahimkhan, Advocate, Nellore.
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2. | Sri P. Gangadhara Reddy and Sri P. Gopinath, Advocates, 23/826/1, Ramesh Reddy Nagar, Nellore-524 003. |
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