IN THE DISTRICT CONSUMERS’ DISPUTES REDRESSAL FORUM AT MYSORE<br /> <br /> PRESENT: 1. Shri.D.Krishnappa<br /> B.A., L.L.B - President <br /> <br /> <br /> 2. Smt.Y.V.Uma Shenoi<br /> M.Sc., B.Ed., - Member<br /> <br /> <br /> <br /> CC 320/08 DATED 12.01.2009<br /> <br /> ORDER<br /> <br /> Complainant Mrunmaya Mudigere, 656/C, 13th Main, T.K.Layout, 4th Stage, Mysore-570009.<br /> (INPERSON)<br /> <br /> Vs. <br /> Opposite Party The Manager, Indusland Bank, No.28, Devaraj Urs Road, Devaraj Mohalla, Mysore-570001.<br /> (By Sri.P.K.P., Advocate)<br /> <br /> Nature of complaint : Deficiency in service<br /> Date of filing of complaint : 17.10.2008<br /> Date of appearance of O.P. : 27.11.2008<br /> Date of order : 12.01.2009<br /> Duration of Proceeding : 1 ½ MONTHS<br /> <br /> <br /> <br /> PRESIDENT <br /> <br /> <br /> <br /> MEMBER<br /> <br /> <br /> <br /> <br /> <br /> Sri.D.Krishnappa,<br /> President<br /> <br /> 1. This is a complaint presented by the complainant against the opposite party with his grievance that, he has S.B. account with the opposite party and also had invested 3 separate term deposits of Rs.1,00,000/- each on 26.06.2007 and 2 deposits on 05.10.2007, which have matured on 26.06.2008 and 06.10.2008 respectively. Then he approached the opposite party to get maturity value deposited to his S.B. account and written letters to the opposite party on 17.07.2008 and on 07.10.2008, but, the opposite party refused to honour his request. It is further stated that the term deposits were separate term deposits, which are non-transferable and no where are linked to his S.B. account. The deposit first in particular is in the name of himself and M.R.Vani and that S.B. account stand in his name and in the name of his father Ramasesha Mudigere jointly. Every time when he and his father issued a cheque he was getting confirmed from the bank regarding availability of funds. The opposite party has stated partially broken to honour a cheque. No information what so ever was given to them. The opposite party has therefore has caused deficiency in his service by prematurely transferring the term deposits without his approval and therefore has prayed for a direction to the opposite party to pay them the term deposits with interest amounting to Rs.3,28,957.80 and interest due to him on Rs.1,00,000/- since July 2008 Rs.1,500/- and expenses of Rs.6,000/-.<br /> 2. The opposite party through his advocate has filed version admitting, this complainant having S.B. account with them jointly with his father and investment of Rs.1,00,000/- each in 3 transactions in term deposit scheme, but has contended that the complainant had issued a cheque for Rs.3,15,000/- on 14.07.2007 in favour of Mysore Home Developers, which was received by them for clearing as there was no sufficient balance in the S.B. account of the complainant and 2 sweep-in-ou amounts were not sufficient to honour the cheque, they contacted the complainant, and on the advise of the complainant, they encashed the term deposits prematurely and the cheque amount was paid to the drawee who presented the cheque. It is further stated that there was no other source for them to honour the cheque, they have acted in good faith in the interest of the complainant in closing the term deposit accounts and to honour the cheque issued by him and that too considering the long standing relationship between them and the complainant and to avoid dishonour of the cheque and also initiation of proceeding under section 138 of the Negotiable Instrument Act against the complainant. It is further stated the bank statement reflects that the complainant had no funds to honour his cheque, as such it is automatic to transfer funds from sweeping out account and when it was not sufficient, on specific advise from the complainant, he has transferred term deposit amount to honour the cheque. Therefore denying any malafide and deficiency, has further stated that the interest portion of the F.D’s after honouring the cheque has been credited to the S.B. account of the complainant on 13.08.2008, 03.04.2008, and 04.04.2008 as reflected in the statement and thereby has prayed for dismissal of the complaint.<br /> 3. In the course of enquiry into the complaint, the complainant and the opposite party have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant has produced copies of the letters he had addressed to the opposite party one is an undated one and two more letters dated 01.09.2008 and 07.10.2008 with copies of term deposits certificates. The opposite party has produced Xerox copies of two cheques issued one by the complainant and another by, his father and an account extract of the S.B. account of the complainant and his father. Heard the complainant who is in person, also perused his written arguments and heard the counsel for the opposite party and perused the records.<br /> 4. On the above contentions, following points for determination arise.<br /> 1. Whether the opposite party proves that he has prematurely transferred the term deposit amounts to the S.B. account of the complainant on his oral advice?<br /> 2. Whether the complainant proves that the opposite party has caused deficiency in transferring the term deposit amount prematurely without his consent?<br /> 3. To what relief the complainant is entitled to?<br /> 5. Our findings are as under:-<br /> Point no.1 : In the Negative.<br /> Point no.2 : In the affirmative.<br /> Point no.3 : See the final order.<br /> <br /> REASONS<br /> <br /> 6. Points no. 1 and 2:- The claim of the complainant that he has maintained an S.B. account jointly with his father in the opposite party branch and had invested Rs.1,00,000/- each in 3 term deposits with the opposite party as detailed above is not denied by the opposite party, therefore is admitted. It is also not further disputed that the first term deposit has matured on 26.06.2008 and the other 2 deposits were maturable on 06.10.2008. The complainant it is found after the maturity of the first term deposit appears to have addressed a letter to the opposite party, which is undated claimed to had been sent on 17.07.2008. In response to which, the opposite party on 28.08.2008 replied to the complainant stating that they had received a cheque issued by the complainant in favour of Mysore Home Developers for clearance found that there was no balance in the account of the complainant to meet the cheque claim and after referring to the complainant stated to had broken the F.D. considering the long relationship between them and the complainant. Thereafter, the complainant again on 01.09.2008 wrote another letter to the opposite party denying to had given any oral advise to the opposite party to brake the F.D. asking for deposit of the term deposit amount of the other deposits to his S.B. account and called for certain clarification as to when the opposite party took his oral permission to brake the F.D.’s and for other short comings alleged to had been committed by this opposite party. The complainant again on 07.10.2008 addressed another letter to the opposite party requesting him to transfer the term deposit amounts of the remaining two deposits to his S.B. account. Thereafter the opposite party found to had kept silent without responding to the request of the complainant.<br /> 7. As could be found from the affidavit evidence filed by the complainant, in the letters addressed to the opposite party, the complainant has vehemently denied in the opposite party having had approached him for oral advise to brake the F.D.s prematurely to honour the cheques. Therefore, the burden is on the opposite party to prove that he had taken advice to brake the F.D.s prematurely to honour the cheques issued by the complainant. No doubt, the complainant has not denied in having had issued a cheque for Rs.3,15,000/- in favour of Mysore Home Developers on 08.07.2007 drawn on the opposite party bank. He has also not disputed issue of one more cheque for Rs.1,00,000/- by his father in favour of Dheevaisa, Mudigere and the complainant has admitted that he had no sufficient funds in his account to honour these 2 cheques. However, the opposite party has contended as if he broke the term deposits with a bonafide intention of honouring the cheques issued by the complainant finding no other alternative and to avoid initiation of proceeding under section 138 Negotiable Instrument Act against the complainant having regard to the long relationship between themselves and the complainant. No doubt, the intention of opposite party found to be bonafide, but whether that would mitigate any short comings they have committed for braking the F.D. receipts without any standing instruction or authority of the complainant is the point that clinches the issue. <br /> 8. The opposite party has not placed any material before us through oral or documentary evidence to prove that any banking regulations or circular which empower them to prematurely withdraw F.D. amounts without authority from the investor. The opposite party’s contention that he had taken oral approval of the complainant for braking the F.D. has been seriously disputed by the complainant in all the letters he had addressed to the opposite party and also by way of filing affidavit evidence. Besides this, the complainant has also sought clarification in one on his letters addressed to the opposite party to clarify him as to when the opposite party contacted him seeking his approval to brake the F.D’s. With all these vehement opposition of the complainant, the opposite party has not proved any such authority or consultation made in braking these deposits prematurely. Further, the conduct of the opposite party in not discharging his duties as expected of him also speak for the deficiency in their service. The opposite party after braking the first term deposit, which was maturable on 26.06.2008 had never bothered to inform the complainant of braking that term deposit. Similarly, in the opposite party broke the remaining 2 deposits prematurely also but do not inform the complainant about the same and never bothered to write to the complainant to return the term deposit certificate. The term deposit certificates even as on today are still with the complainant. When the opposite party, even assuming for a second that he had prematurely encashed the term deposit with the approval of the complainant has immediate action should have been writing to the complainant to return the original term deposit certificates, but, has not chosen to do so. Besides that the opposite party for the first time on receipt of a letter of the complainant dated 17.07.2008 requesting him to transfer the first F.D. proceed to his S.B. account wrote a letter to the complainant on 28.08.208 informing the complainant about braking the first F.D. prematurely. Thereafter, the complainant on 01.09.2008 and again on 07.10.2008 addressed letters to the opposite party seeking certain clarifications and also requesting the opposite party to deposit the matured F.D. proceeds of the remaining two term deposits. The opposite party who received those letters did not even bother to give reply to the complainant. This is not the conduct of the men of the banking institutions. Therefore, in the absence of any authority to the opposite party by the complainant and in the absence of any enabling provision under the banking regulations or rules, the opposite party could not have prematurely withdraw the F.D. amounts and that in our view amounts to deficiency in his service. Even if he had acted bonafidely to honour the cheques of the complainant, he should have intimated the complainant called for the original F.D. receipts but even that has also not been done, which in our view is nothing sort of the deficiency in the service of the opposite party.<br /> 9. As already pointed out by us above, the complainant has not denied issue of two cheques drawn on his account and the fact he did not maintained sufficient funds to honour those two cheques. Therefore, the liability of the complainant has been met by the opposite party by an act of braking the term deposits and honouring the cheques issued by the complainant, which is towards discharge of the complainant’s legal liability. The opposite party in addition to discharging the legal liability of the complainant by way of honouring the cheques has remitted the balance amount including the interest upto date to the S.B. account of the complainant. With this act of the opposite party the complainant has not suffered any monitory loss, therefore the complainant is not entitled for the term deposit amounts and the interest accrued on them again. However, he would be entitled for some damages for the deficiency in the service rendered by the opposite party. With the result, we answer points no.1 and 2 accordingly and pass the following order:- <br /> ORDER<br /> <br /> 1. The Complaint is allowed in part.<br /> 2. The opposite party is directed to pay Rs.5,000/- as damages to the complainant and shall recover it from the officer who is responsible for braking the term deposit and remit to the bank. This amount shall be paid within 60 days from the date of this order, failing which he shall pay interest at 9% p.a. from the date of this order till the date of payment.<br /> 3. The opposite party shall also pay cost of Rs.500/- to the complainant.<br /> 4. Give a copy of this order to each party according to Rules.<br /> <br /> (Dictated to the Stenographer, transcribed by her, transcript revised by us and then pronounced in the open Forum on this the day 12th January 2009)<br /> <br /> <br /> <br /> <br /> <br /> (D.Krishnappa) <br /> President <br /> <br /> <br /> <br /> (Y.V.Uma Shenoi)<br /> Member<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />