Andhra Pradesh

Chittoor-II at triputi

CC/2/2014

Smt K.Pushpalatha W/o. N.Vijay Kumar - Complainant(s)

Versus

The Chairman and Managing Director, - Opp.Party(s)

Y.B.S.Bapujee

13 Oct 2015

ORDER

Filing Date:31.12.2013

Order Date: 13.10.2015

 

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II,

CHITTOOR AT TIRUPATI

 

 

      PRESENT: Sri.M.Ramakrishnaiah, President ,

        Smt. T.Anitha, Member

 

 

TUESDAY THE THIRTEENTH DAY OF OCTOBER, TWO THOUSAND AND FIFTEEN

 

 

C.C.No.02/2014

 

Between

 

Smt.K.Pushpalatha,

W/o. N.Vijay Kumar,

Hindu, aged about 32 years,

D.No.18-3-53/C, Santhi Nagar,

Khadi Colony,

Tirupati Town,

Chittoor District.                                                                                          … Complainant

 

 

And

 

1.         The Chairman and Managing Director,

            IDBI Bank Ltd.,

            IDBI Tower,

            WiC Complex,

            Cuffee Parade Colaba,

            Mumbai – 400 005.

 

 

2.         The Chief Manager,

            IDBI Bank Ltd.,

            Main Branch,

            IDBI Tower,

            WTC Complex,

            Cuffee Parade,

            Mumbai – 400 005,

            Maharastra State.

 

3.         The Branch Head,

            IDBI Bank Ltd.,

            No.19-8-8D, AIR Bypass Road,

            Annamayya Marg,

            Tirupati,

            Chittoor District.

 

4.         M.Rameswara Reddy,

            C/o. IDBI Bank Ltd.,

            No.19-8-8D, AIR Bypass Road,

            Annamayya Marg,

            Chittoor District.

 

5.         M.Vishnu Prakash Reddy (PH-9553598883),

            Father’s Name not known,

            D.No.110, T.K.Street,

            Tirupati – 517 501,

            Chittoor District.                                                                  …  Opposite parties.

 

 

 

            This complaint coming on before us for final hearing on 18.09.15 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.Y.B.S.Bapujee, counsel for the complainant, and Sri.L.Madhusudhana Reddy, counsel for the opposite parties 1 to 3, and opposite parties 4 and 5 remained exparte, and having stood over till this day for consideration, this Forum makes the following:-

 

ORDER

DELIVERYED BY SRI. M.RAMAKRISHNAIAH, PRESIDENT

ON BEHALF OF THE BENCH

           

            This complaint is filed under Section-12 of C.P.Act 1986 by the complainant K.Pushpalatha for the following reliefs 1) to direct the opposite parties to pay a sum of Rs.1,44,701/- along with future interest at 24% p.a. from the date of complaint, till realization, 2) to direct the opposite parties to pay a sum of Rs.50,000/- to the complainant towards mental agony and for deficiency in service on the part of the opposite parties 1 to 4 and 3) to direct the opposite parties to pay costs of the complaint.  

            2.  The averments of the complaint in brief are:-   that the complainant and her husband N.Vijay Kumar, jointly availed home loan under joint account bearing No.0436675100002301 from opposite party No.3. At the time of sanctioning the loan, opposite party No.4, the then Branch Manager, collected 7 cheques bearing Nos.445596 to 445602, drawn on HDFC Bank, from the husband of complainant, stating that he is obtaining the said cheques, as per bank rules and regulations. That the complainant and her husband were regularly paying the agreed installments. That the complainant came to know through the bank statement of her husband that opposite party No.5 (an un-known bearer) presented the cheque bearing No.445602 dt:15.05.2013 issued by her husband at the time of availing loan and has withdrawn a sum of Rs.80,000/- from the account of her husband N.Vijay Kumar. When she questioned opposite party No.4 about the presentation of cheque No.445602 in HDFC bank and withdrawal of Rs.80,000/-, opposite party No.4 convinced her with a promise that he will see that the said amount will be remitted into her husband’s account at the earliest, but failed to fulfill his promise. Subsequently, she came to know that opposite party No.4 has been transferred to some other branch and later he was placed under suspension. That on 11.07.2013, the complainant lodged a complaint before Alipiri Police Station, Tirupati, against opposite party No.4, for misusing the cheque issued by her husband. On her complaint a case in Crime No.271/2013, U/Sec.409 & 420 of IPC was registered. Police examined opposite party No.5 (who has withdrawn the amount), he gave statement that opposite party No.4 gave a cheque to opposite party No.5, for discharging the debt amount borrowed by opposite party No.4 from opposite party No.5. On 02.08.2013 and on 14.09.2013 complainant gave notice calling upon the opposite partiers to pay Rs.80,000/- together with interest at 24% p.a. from the date of withdrawal. Opposite parties 1 and 2 though received the said notice maintained silence, but opposite party No.3 gave reply on 01.11.2013 with false allegations. Hence the complaint.

            3.  Opposite parties 4 and 5 remained exparte.     

            4.  Opposite party No.3 (The Branch Head, IDBI Bank Ltd.) filed its written version and the same is adopted by opposite parties 1 and 2. In their written version, opposite party No.3 admitted the sanction of home loan in favour of complainant and her husband under loan account No. 0436675100002301 and also admitted that they have collected only 5 cheques as per the terms of the loan transaction. The complainant submitted only 5 cheques but not 7 cheques as stated, drawn on HDFC bank for the purpose of repayment of home loan, since the same is electronic clearing system loan. The complainant did not submit cheque bearing Nos.445601 and 445602. Opposite parties 1 to 3 are not aware of misusing of cheque No.445602 by opposite party No.5. The transaction between opposite party No.4 and opposite party No.5 is in their personal capacity. Opposite parties 1 to 3 further contended that the complainant lodged the complaint against opposite party No.4.

            5.  Opposite parties 1 to 3 further contended that the complainant has to prove that opposite party No.4 has did the mischief while discharging his duties, it requires investigation by proper agency to come to conclusion. Even according to complaint, giving and taking cheques in question between complainant and opposite party No.4. The cheque bearing No.445602 was not encashed in the bank of opposite parties. Opposite parties 1 to 3 have no role in the alleged transaction and misusing of cheque. That opposite party No.4, while working as Centre Head, RAC, Tirupati, sanctioned the home loan. In terms of re-organization of departments of the bank, the operation of RAC, Tirupati, was closed and opposite party No.4 had been transferred to Vanasthalipuram Retail Branch, Hyderabad, and he reported at the said branch on 10.06.2013. Later, he did not attend the branch from 25.06.2013 onwards. Therefore, opposite party No.4 was placed under suspension in the month of July 2013, as he was absent from duty without any intimation to his superiors. Opposite party No.3 lodged a complaint against opposite party No.4 on which a case in Crime No.38/2014 was registered in M.R.Palli Police Station, Tirupati, and investigation is yet to be completed and there is no deficiency in service on the part of opposite parties 1 to 3 and prays the Forum to dismiss the complaint with costs.   

            6. Complainant (Smt.K.Pushpalatha) and opposite party No.3 (Sri.A.V.V.K.Rao) filed their respective chief affidavits and written arguments and got marked Exs.A1 to A8 for the complainant and Exs.B1 and B2 for the opposite parties.

            7.  Now the points for consideration are:-      

            (i).  Whether the complainant and her husband have presented 5 cheques or       

        7 cheques of N.Vijay Kumar to opposite party - bank?

            (ii).  Whether the complainant is competent to file this case?

(iii)  Whether opposite parties 1 to 3 are not liable for the acts of opposite party

                   No.4?

            (iv).  To what relief?

            8.  Point No.(i):-  In order to prove this point, the burden lies on the complainant to prove that herself and her husband have presented 7 cheques. The opposite parties admitting that the complainant and her husband have presented only    5 cheques bearing Nos.445596, 445597, 445598, 445599 and 445600 and specifically they were denying the presentation of 2 cheques bearing Nos.445601 and 445602. Unless the complainant proves that they have presented 7 cheques, we cannot fix the liability on the opposite parties 1 to 4 for misusing of cheques bearing Nos.445601 and 445602. It is not the case of either complainant or the opposite parties that the cheque bearing No.445601 is very much available with the opposite party – bank, and both parties were silent about the said cheque bearing No.445601. Complainant allegation is cheque bearing No.445602 was misused. The entire case of complainant shows that herself and her husband have presented 7 cheques, but it was not mentioned specifically, whether those cheques were blank or antedated or given without dates and without mentioning any specific amount on each cheque. Complainant filed Ex.A8 cheque book. The entries in the last sheet of Ex.A8 shows the cheques bearing Nos.596 to 604 were given to IDBI bank i.e. the bank of opposite parties, which shows that the complainant and her husband have given / presented total 9 cheques to the IDBI bank but not 7 cheques. Therefore, it is for the complainant and her husband to clarify whether they have presented 9 cheques to the opposite party - bank or 7 cheques or 5 cheques as contended by the opposite parties. Apart from it, another important aspect is, the so called cheques said to have been presented to the opposite party – bank, were given by the husband of the complainant, alleged amount of Rs.80,000/- was also said to have been withdrawn from personal account of N.Vijay Kumar, husband of the complainant, that to from another bank but not from the bank of opposite parties. The amount was also not withdrawn from the joint account of complainant and her husband. So, N.Vijay Kumar, the husband of the complainant is the proper and competent person to file this complaint but the said N.Vijay Kumar, was not shown as party to this complaint, his affidavit was not filed, his evidence affidavit was also not filed in support of the averments of the complaint. It is the husband of the complainant to speak about the issuance of cheques and encashment of cheque bearing No.445602 from his personal account and withdrawing a sum of Rs.80,000/-, but he was stayed away from the proceedings. So, far he did not appear before this Forum. When the cheque book Ex.A8 shows that total 9 cheques were presented to the opposite party – bank, the complainant contending that herself and her husband have presented only 7 cheques, so it needs proper evidence from the husband of the complainant. He has to depose, as to how many cheques, he issued for the purpose of repayment of the bank loan.

            9.  For the reasons best known either the complainant or the opposite parties, have failed to mention when the loan was sanctioned in favour of complainant and her husband? How much amount was sanctioned as home loan? Number of installments to be paid, in order to repay the loan? How many installments paid so far? What is the amount of each installment? Whether the installments are monthly, half-yearly or annual installments? and also failed to mention whether those cheques were blank cheques or mentioning the amount for each installment under each cheque. If number of cheques are there, for one year or two years etc. and the cheques were collected only for the purpose of repayment of the loan sanctioned. Obviously, the opposite parties ought to have collected number of cheques equivalent to number of installments. These details were not found either in the complaint or in the written version or in the evidence affidavits of both parties. Therefore, in our opinion, the complainant is not a proper person to lodge the complaint and the complainant failed to prove that herself and her husband were presented 7 cheques bearing Nos. 445596, 445597, 445598, 445599, 445600, 445601 and 445602. The complainant did not assign reasons as to why her husband was not shown as party in this complaint and as to why he did not produce before the Forum or atleast why he could not file the affidavit or evidence affidavit narrating the issuance of cheques, number of cheques, date of cheques etc. and whether they were blank cheques or otherwise. Accordingly this point is answered.

            10.  Point No.(ii):- to answer this point, we have to state that the alleged cheque No.445602 was issued by N.Vijay Kumar, the husband of the complainant. An amount of Rs.80,000/- was said to be withdrawn from the account of N.Vijay Kumar but not from the joint account of complainant and her husband. So, the competent person to file the complaint before this Forum or to lodge complaint before police is N.Vijay Kumar but not the complainant herein. The complaint before Alipiri Police Station, Tirupati, in Crime No.271/2013, also lodged by the complainant Smt.K.Pushpalatha. Why N.Vijay Kumar did not chose to lodge complaint before police? And why he is not made party to this complaint?. These questions remained un-answered and un-explained. Opposite party No.5 Mr.M.Vishnu Prakash Reddy, in his statement in Crime No.271/2013 under Ex.A5 also did not mention the following details 1) When he advanced amount to opposite party No.4 Mr.M.Rameswara Reddy (the then Branch Manager of opposite party No.3)?  2) How much amount opposite party No.5 gave to Rameswara Reddy (opposite party No.4)? 3) When opposite party No.4 gave cheque bearing No.445602 to opposite party No.5, and for how much amount the chequeb was given and also failed to mention how much amount due from opposite party No.4. All these facts are necessary to be established by the complainant. Non-appearance of N.Vijay Kumar, not making him as party to the proceedings and staying away from the proceedings before this Forum are fatal to this case. To prove the allegations, lot of oral evidence including the evidence of N.Vijay Kumar is required.

            11.  It Prima Facie appears that both the complainant and opposite parties 1 to 5 are not placing true facts before this Forum. To extract the truth, investigation in the complaint, lodged by the complainant before Alipiri Police Station in Crime No.271/2013 is necessary. Under those circumstances, we are of the opinion that the complainant herein K.Pushpalatha is not competent to file the complaint with regard to alleged misuse of cheque bearing No.445602 issued by N.Vijay Kumar. The case is registered under Sections-409 & 420 IPC. Therefore, the complainant ought to have approach the appropriate Forum, which can deal with the offences under Sections-409 & 420 IPC. Accordingly, we hold that the complainant herein Smt.K.Pushpalatha, is not competent to file this complaint and this point is answered accordingly.

            12. Point No.(iii):-  to answer this point, we have to state that admittedly the then Branch Manager of opposite party No.3 Rameswara Reddy (opposite party No.4), was the sub-ordinate of opposite parties 1 and 2. Therefore, if opposite party No.4 Rameswara Reddy, the then Branch Manager, commits any mischief or misdeeds while discharging his duties, while acting as Manager of opposite party No.3, opposite parties 1 and 2 also responsible for the acts of opposite party No.4 and opposite parties 1 and 2 cannot absolved from their liability for the acts done by their sub-ordinate if actually opposite party No.4 commits mistake or misdeeds or misappropriation. Accordingly, this point is answered.

            13.  Point No.(iv):-  to answer this point, we have to state that under the discussion made in points 1 to 3, the complainant herein Smt.K.Pushpalatha, is not a competent person to file the complaint, as the allegation is that Rameswara Reddy (opposite party No.4), the then Branch Manager of opposite party No.3, misused the cheque issued by N.Vijay Kumar, the husband of complainant. In that regard, the complainant lodged a complaint before the SHO, Alipiri Police Station, Tirupati, on the basis of which a case in Crime No.271/2013 was registered under Sections-409 & 420 IPC. Therefore, the complainant has to approach the appropriate Forum to decide the case in Crime No.271/2013 under Sections-409 & 420 IPC, instead of approaching Consumer Forum.

            14.  The complainant and the opposite parties in their complaint, written version, chief affidavits and written arguments respectively, nowhere it is mentioned the amount sanctioned towards the home loan, date of sanctioning such home loan and how many installments were fixed for the repayment of the said home loan and how many installments the borrowers have paid. Sanctioning of loan is not in dispute but other facts in respect of the loan is suppressed by both parties. As such the Forum required, furnishing of all the above particulars with regard to loan. In this regard, instead of filing affidavit of the complainant, the learned counsel for complainant filed a Memo on 20.08.2015 disclosing the date of loan, amount sanctioned etc. When the contents of the Memo were not found place in the complaint or in the chief affidavit of complainant or in the written arguments filed on behalf of the complainant, the Memo bears no merits. Under the above circumstances, we are of the opinion that the complainant is not entitled for the reliefs sought for and the complaint is liable to be dismissed.

            15.  In the result, the complaint is dismissed, with a liberty to complainant to approach the appropriate Forum for Redressal. No costs.

              Dictated to the stenographer, transcribed and typed by him, corrected and pronounced by me in the Open Forum this the 13^th day of October, 2015.

       Sd/-                                                                                                                      Sd/-                                                                                        

Lady Member                                                                                                      President

 

APPENDIX OF EVIDENCE

WITNESSES EXAMINED ON BOTH SIDES

 

PW-1: Smt K. Pushpalatha (Affidavit filed).

RW-1: A.V.V.K. Rao (Affidavit filed).

 

EXHIBITS MARKED ON BEHALF OF THE COMPLAINANT/S

 

Exhibits	Description of Documents
Ex.A1.	Office copy of legal notice calling upon the Opposite Parties to pay the amount along with postal receipts. Dt: 02.08.2013.
2.	Office copy legal notice calling upon the Opposite Parties to pay the amount along with courier receipts. Dt: 14.09.2013.
3.	The No.3 of Opposite Party issued a reply notice with all false and untenable allegations (Original).
4.	The No.3 of Opposite Party issued a reply notice with all false and untenable allegations. Dt: 01.11.2013 (Photo copy).
5.	True copy the complainant lodged a complainant against No.4 of the Opposite Party. Dt: 11.07.2013.
6.	True copy FIR copy in crime No.271 of 2013. Dt: 11.07.2013.
7.	Photo copy bank extract copy.
8.	Bank cheque book (Original).

 

EXHIBITS MARKED ON BEHALF OF THE OPPOSITE PARTY/S

 

Exhibits	Description of Documents
Ex.B1.	A photo copy of FIR in Cr.NO.38/2014 on the file of M.R.Palle P.s., Tirupati. Dt: 13.02.2014.
2.	A True copy of order of suspension of 4th Opposite Party.

 

                                                                                                                                                                        Sd/-

                                                                                                                         President

             // TRUE COPY //

// BY ORDER //

Head Clerk/Sheristadar,

              Dist. Consumer Forum-II, Tirupati.

Copies to:-       1. The Complainant.

                       2. The opposite parties.