BANGALORE URBAN DISTRICT, NO.8, SAHAKARA BHAVAN, CUNNINGHAM ROAD, BANGALORE – 560 052           

C.C.No.2269/2011

DATED THIS THE 20^th JANUARY 2014

PRESENT

SRI.J.N.HAVANUR, PRESIDENT

SRI.H.JANARDHANA, MEMBER

Complainant: -

                                                Sri.Mohan.H.N,

S/o. H.Narasinga Rao,

R/at No.68/9, Janapriya

Abode, Kenchanahalli,

Rajarajeshwarinagar,

Bangalore-98                                                                          

V/s

Opposite parties:-        

1.     The Manager,

State Bank of India,

Rajarajeshwarinagar branch, No.294A and B, 17^th Main Road, Ideal Homes Township, Bangalore-98

2.     The Manager,

State Bank of Mysore,

Hanumanthanagar branch,

Bangalore

ORDER

SRI.J.N.HAVANUR, PRESIDENT

        This is a complaint filed by the complainant against the OPs, no.1 and 2, under section 12 of the Consumer Protection Act, 1986, praying to pass an order, directing the OPs no.1 and 2 to refund Rs.6,065 along with three times of principal amount, and also to pay Rs.20,000=00 towards damages and cost of litigation, in the interest of justice and equity.

2. The brief facts of the complaint can be stated as under.

The complainant has opened a housing term loan account no.10334123101 product name HTL floating interest (PER) dated 22-7-2004 for the period of 10 years payable monthly installment basis. The total loan amount availed is Rs.5.00 lakhs with interest at the rate of 10.25% p.a. and monthly installment amount is Rs.6,065=00. The complainant has paid as EMI through cheques from his son’s SB account no.54015319713 drawn on SBM Hanumanthanagar branch. The complainant has made final clearing balance payment through cheque bearing no.029982 for 2,60,000=00 dated 1-12-2008 and through cheque bearing no.992203 for Rs.1,01,460=00 dated 1-12-2008 and remaining closing balance of Rs.3,158=00 on 5-12-2008 by way of cash as per the instructions given by the OP no.1 and the complainant was not due any balance payable towards HTL account number mentioned above, and the OP bank has given statement of account for the above HTL account which is Rs.0.00 as on 25-2-009 and as such the entire loan amount has been cleared. After closing of his HTL account in OP bank, the complainant opened another SB account no.31147551869 dated 27-04-2010 in OP bank. When he saw the status of his entries made in his pass book to his shock and surprise an amount of Rs.6,065=00 was deducted from his SB account on 11-5-2011. The said amount was deducted without informing the knowledge of the complainant in spite of the loan amount pertaining to the HTL account was cleared. Later the complainant requested the OP bank to rectify the mistake by the OP bank and the OP bank has issued on endorsement dated 23-5-2011 to the effect that, they have to clarify that the complainant has issued post dated cheques towards EMI of his HLA account no.10334123101 in respect of one such cheque bearing no.361920 dated 23-4-2009 drawn on SBM same was returned unpaid however inadvertently, they have given credit to his housing loan account for that amount, this error has come to light when they are reconciling their office account. Hence, the amount inadvertently credited on 23-4-2008 is reversed by debit from the SB account on 11-5-2011. After the OP bank endorsement, the complainant went and enquired his son’s SBM bank account about the said cheques and they have given endorsement as with reference to letter seeking the details of the cheque return on his account on 23-4-2008, they would like to write, as per their record there is no cheque return on their account bearing no.5401531913 on that date. Under such circumstances the complainant issued legal notice demanding refund of the amount of Rs.6,065=00 deducted from the SB account of the complainant, and the said notice was served on the OP on 2-9-2011. Despite service of legal notice, the OP has given reply to his legal notice dated 6-9-2011 stating that please send him the copy of SBM bank statement and endorsement and they will settle the matter soon and after that the complainant went and met the OP bank manager and explained the happened proceedings and furnish the copy of SBM bank statement and endorsement on 17-9-2011. The OP bank was issued again one more letter on 26-9-2011 and now they are saying that they forward herewith housing term loan account statement of Sri.Mohan.H.N. It can be observed from the statement that on 20-5-2008 there are two credits for Rs.6,065=00 of which one is extraneous. In order to rectify that position, they have debited customers account on 11-5-2011 now they are giving evasive reply notice dated 6-9-2011 and 26-9-2011. Under the above circumstances the OP bank that acted contrary to the settled principals of law and the complainant has suffered due to the OP bank action, so the complainant has come with the present complaint.

3. After service of notice, the 1^st OP has appeared through its counsel and filed version. During the pendency of the complaint, the 2^nd OP was impleaded, but the 2^nd OP has not filed any version to the complaint.

3. The averments of version of the 1^st OP can be stated as under:

The complaint of complainant is not maintainable and it is liable to be dismissed. The 1^st OP denies all the allegations made in the complaint except those that are specifically and individually admitted by the 1^st OP. About para-8 of the complaint that, the OP bank has informed the complainant by explaining that cheque bearing no.361920 drawn on SBM Hanumanthanagar branch, Bangalore for Rs.6,065=00 credited to his housing loan account was returned unpaid. However, same is erroneously credited to his housing loan account on 23-4-2008 by debiting the OP bank office account in the name of clearing parking account. During reconciliation of office account it was traced that cheque bearing no.361920 though returned, credit was afforded to the complainant’s housing loan account by error. Later the said housing loan account was closed though there was due of Rs.6,065=00 due to erroneously credit to home loan account of the complainant. So the complainant has to prove before this forum that his cheque bearing no.361920 was not returned unpaid by the SBM bank and not suffered cheque returned charges from the SBM. Since the housing loan account was closed on 5-12-2008 the OP bank is left with no other recourse but to debit the said Rs.6,065=00 to SB account number of the complainant under advice to him. The OP bank is dealing with the public money, it is not fair and correct on the part of the complainant to take advantage of the technical error or mistake of the situation to gain for him by dragging the issue to the court. The complainant was unlawfully gained by the technical error of the OP bank by getting the home loan account closed without paying the one month installment of Rs.6,065=00 and the complainant cannot be called as aggrieved when it was found later by the OP bank and taken necessary action to recover back without any further interest from the complainant’s SB account under advice to him. After 11-5-2011 i.e. debiting Rs.6,065=00 to the complainant’s SB account, the OP bank has clearly informed him about the said technical error. Inspite of the said information, the complainant has filed this complaint on his own with an intention to make more money out of the technical error of the OP. The complainant should have respected the action taken by the OP bank. The transaction of the OP bank is transparent and there is no malafide intention in the OP bank. The complainant is not entitled for any compensation as claimed by him in the complaint. The question of refunding the said recovered public money of Rs.6,065=00 without any further interest to the complainant does not arise. Hence it is prayed to dismiss the complaint with exemplary cost.

4. So from the averments of the complaint of the complainant and version of the 1^st OP, the following points arise for our consideration.

1.                           Whether the complainant proves that, the 1^st OP is negligent and there is a deficiency of service on the part of the 1^st OP, in deducting the amount of Rs.6,065=00 from his SB account without his knowledge even though his HTL account was closed long back?

2.                           If point no.1 is answered in the affirmative, what relief, the complainant is entitled to?

3.                           What order?

5. Our findings on the above points are;

          Point no.1:  In the Affirmative

Point no.2:  The complainant is entitled to 

Rs.6,065=00 from the 1^st OP alongwith 7% interest per annum on the said amount within 30 days from the date of  this order, failing which, the 1^st OP shall pay the said amount to the complainant alongwith 8% interest p.a. from the date of this order to till the date of realization along with cost of Rs.2,000=00.

          Point no.3:  For the following reason

REASONS

          6. So as to prove the case, the complainant has filed his affidavit by way of evidence and produced nine copies documents alongwith list dated 14-12-2012 and seven documents with memo dated 29-12-2012 and one letter of OP no.1 dated 6-12-2008. On the other hand, one Vittalasettygar, who being the chief Manager working in the 1^st OP bank has filed his affidavit on behalf of the OP no.1 bank and produced three copies of letter of the 2^nd OP. We have heard the arguments of both parties and we have gone through the oral and documentary evidence of both sides meticulously.

7. One Sri.Mohan.H.N, who being the complainant has stated in his affidavit evidence that, he has opened a housing term loan account no.10334123101 product name HTL floating Int. (PER) dated 22-7-2004 for a period of 10 years payable monthly installment basis. The total loan amount availed was Rs.5.00 lakhs with interest at the rate of 10.25% p.a. and monthly installment amount was Rs.6,065=00, and he has paid as EMI through cheques from his son’s SB account no.54015319713 drawn on SBM Hanumanthanagar branch. He made final clearing balance payment through cheque bearing no.029982 for Rs.2,60,000=00 dated 1-12-2008 and through cheque bearing no.992203 for Rs.1,01,460=00 dated 1-12-2008 and remaining closing balance of Rs.3,158=00 on 5-12-2008 by way of cash, as per the instructions given of the OP no.1 and he was not due any balance payable towards HTL account number and in this regard the OP bank has given statement of account showing as Rs.0.00 as on 25-2-2009 and after closing of his HTL account in OP bank, and he opened another SB account no.31147551869 dated 27-04-2010 in OP bank. When he saw the status of bank account entries made in his pass book, he was shocked and surprised an amount of Rs.6,065=00 was deducted from his SB account on 11-5-2011 without informing him, even though he has cleared the HTL loan account. Later he requested to rectify the mistake and to that bank has issued an endorsement dated 23-5-2011 to the effect that, they have to clarify that he has issued post dated cheques towards EMI of his HLA account no.10334123101 in respect of one such cheque bearing no.361920 dated 23-4-2008 drawn on SBM and same was returned unpaid however inadvertently, they have given credit to his housing loan account for that amount, and this error has come to light when they are reconciling their office account. So, the amount inadvertently credited on 23-4-2008 is reversed by debit from his SB account on 11-5-2011. Then he went and enquired his son’s SBM bank account about the said cheques, and they have given endorsement as per their records there is no cheque return on his account no.5401531913 on that date. Thereafter he got issued legal notice on 2-9-2011 to refund of Rs.6,065=00 and the OP has given reply. The OP bank has issued one more letter dated 26-9-2011 and it can be observed from the statement that on 20-5-2008 there are two credits for 6,065=00 of which one is extraneous, and in order to rectify that position, they have debited customers account on 11-5-2011 and the OP gave evasive reply notice dated 6-9-2011 and 26-9-2011. The OP bank has acted contrary to the settled principals of law and he has suffered due to the OP bank action, and there is deficiency of service on the part of the OP bank  and the OP bank is liable to refund the Rs.6,065=00 debit to his account. The OP bank has caused mental agony and torture, so he is entitled for a sum of Rs.20,000=00 as damage and cost of this litigation, so the complaint be allowed and pass an order as prayed for.

8. Let us have a look at the relevant documents of the complainant. Document no.1 of the list dated 14-12-2012 of the complainant is the copy of loan agreement dated 22-7-2004 between the complainant and the 1^st OP and this document revealed that, the complaint has availed the housing loan of Rs.5.00 lakhs from the 1^st OP bank during the year 2004 agreeing to pay the amount with interest at 10.25% per annum in monthly installment of Rs.6,065=00 within 120 EMI and the said agreement was signed by the complainant and 1^st OP. Document no.2 of the list of complainant is the copy of certificate issued by the 1^st OP dated 12-1-2008 showing provisional interest to be payable by the complainant and housing loan account was 10334123101. Document no.3 is the copy of SBI pass book of the complainant bearing SB account no.31147551869 wherein we found that on 11-5-2011 an amount of Rs.6,065=00 was debited from SB account of the complainant. Document no.4 is the copy of letter of SBI, Rajarajeshwarinagar branch, Bangalore addressed to the complainant dated 23-6-2011 stating that the complainant gave post dated cheque towards EMI of his HLA account no.10334123101 and in respect of one such cheque bearing no.361920 dated 23-4-2008 drawn on SBM was returned unpaid. However inadvertently they have given credit to his housing loan account for that amount and this error has come to light while they are reconciling their office account, so the amount inadvertently credited on 23-4-2008 is reversed by debit to his SB account on 11-5-2011. Document no.5 is the copy of letter of SBM, Hanumanthanagar branch, Bangalore addressed to Sri.Sripramod.H.M, stating that, as per their records, there is no cheque return on this account bearing no.54015319713 of that date. Document no.6 contained postal receipts and acknowledgement.  Document no.7 is the copy of legal notice dated 2-9-2011 sent by the complainant through his lawyer to the 2^nd OP calling upon to credit Rs.6,065=00 deducted from his SB account failing which he will take legal action against the OP bank. Document no.8 is the copy of letter of SBI dated 26-9-2011 addressed to the lawyer of complainant stating that, on 20-5-2008 there are two credits for Rs.6,065=00 of which one is extraneous and in order to rectify that mistake, they have debited customers account on 11-5-2011. The complainant has produced one letter dated 6-8-2008 issued by the SBI, Rajarajeshwarinagar branch, Bangalore addressed to the Asst. General Manager, SBI, Bangalore stating that, the complainant has closed his housing loan on 5-12-2008 and there are no dues, the customer has no other liabilities and requested to release of the title deed. The complainant has produced one original loan agreement and provisional interest certificate and original endorsement of the 1^st OP bank and original reply notice of the OP and regarding these documents, we have already made discussion while dealing with the copies of documents of the complainant. The complainant has produced statement of account of HTL account letter issued by the 1^st OP bank wherein it is stated clearly by the 1^st OP that on 5-12-2008 the complainant paid cash of Rs.3,158=00 and two cheque for Rs.2,60,000=00 and Rs.1,01,460=00 on 3-12-2008 and close the loan account and the balance is shown as Rs.0.00.

9. Let us have a cursory glance at the material evidence of the 1^st OP bank. One Vittalasettygar, who being the Chief Manager of the 1^st OP bank has stated in his affidavit that, they have informed the complainant by explaining that cheque bearing no.361920 drawn on SBM Hanumanthanagar branch, Bangalore for Rs.6,065=00 credited to his housing loan account was returned unpaid, and however the same is erroneously credited to his housing loan account on 23-4-2008 by debiting their bank office account. During reconciliation of office account it is revealed that cheque bearing no.361920 though returned  credit was afforded to the complainant’s housing loan account by error. Later the said housing loan account was closed though there was due of Rs.6,065=00. So the complainant has to prove before the forum that his cheque bearing no.361920 was not returned unpaid by the SBM bank and not suffered cheque returned charges from the SBM for the said account. The complainant is well aware that the alleged cheque bearing no.361920 drawn on SBM Hanumanthanagar branch, Bangalore was returned unpaid on 23-4-2008 and that amount was not credited to his home loan account. So, the said conduct of the complainant has to be dealt with seriously by imposing heavy cost. It is not fair and correct on the part of the complainant to take advantage of the technical error or mistake of the situation to gain for him and their bank has clearly informed the complainant about the said technical error. Inspite of it, the complainant has filed this complaint to make more money out of the technical error of the bank. The transaction of their bank is transparent and there is no malafide intention involved. The complainant is not entitled for any compensation as claimed and the question of refunding the amount of Rs.6,065/- with interest does not arise, so the complaint be dismissed with cost.

10. Ex-D1 is the letter of SBM, Hanumanthanagar branch, Bangalore addressed to the 1^st OP stating that the cheque no.361920 issued on the captioned account holder by name Sripramod.H.M, and the said cheque has been returned at their end and the relative cheque has been debited to the account on 16-5-2008. Ex-D2 is the letter of SBI addressed to the SBM, Hanumanthanagar branch, Bangalore dated 2-2-2012 stating that, cheque no.361920 for Rs.6,065=00 was returned unpaid by the branch, however, they have erroneously credited customers housing loan account by debiting their clearing parking account, the error has come to light while reconciliation of their office account and they have recovered the amount by debit to the customers account no.31147551869 on 11-5-2011 and requested the bank to issue a certificate to that effect to produce the same  in the consumer court. Ex-D-3 is the letter of SBI addressed to the Branch Manager, SBM, Hanumanthanagar branch, Bangalore dated 9-2-2012 requesting to furnish information as prayed in respect of cheque bearing no.361920.

11. So making careful scrutiny of the oral and documentary evidence of both parties with more than ordinary care and precision, it is made unambiguously clear that, the 1^st OP has tried its level best to get information from the SMB, Hanumanthanagar Branch, Bangalore in respect of cheque no.361920 for Rs.6,065=00, but the 1^st OP did not succeed in getting information from the SBM, Hanumanthanagar branch, Bangalore, with reference to the said cheque in question. On the other hand, the complainant has asserted in his evidence that, though he repaid the entire housing loan account of the 1^st OP still then the 1^st OP has debited Rs.6,065=00 from his SB account without brining this fact to his notice. The said oral evidence of the complainant in relation to debiting Rs.6,065=00 from his SB account of complainant, though he closed the housing loan account in the year 2008 stands corroborated by statement of account of loan account and letters of Ops.

12. Taking the oral and documentary evidence of complainant and compare the same with the material evidence of the 1^st OP, it is no doubt true that, the complainant who comes to the forum seeking relief has established with clear cogent and consistent  material evidence that, the 1^st OP is negligent and there is deficiency of service on the part of the 1^st OP in deducting the amount of Rs.6,065=00 from his SB account without his knowledge, even though his HTL account was closed long back and as such, we hold that, the material evidence of complainant is more believable trustworthy and acted upon than the material evidence of the 1^st OP. The act of the 1^st OP in deducting Rs.6,065=00 from SB account of complainant without knowledge of the complainant, even though HTL loan account was closed by the complainant in the year 2008 tantamounts to negligence of 1^st OP and deficiency of service on the part of the 1^st OP, and according, we answer this point in a affirmative.

13. In view of our affirmative finding on the point no.1, the complainant is entitled to get refund of Rs.6,065=00 from the 1^st OP, so the 1^st OP is directed to refund Rs.6,065=00 to the complainant alongwith 7% interest per annum on the said amount within 30 days from the date of this order, failing which, the OP no.1 shall pay the said amount to the complainant alongwith 8% interest per annum from the date of this order to till the date of realization, and the 1^st OP is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation. Since no relief is sought against the 2^nd OP, so the complaint is dismissed against the 2^nd OP, and accordingly, we answer this point. In the result, for the foregoing reasons, we proceed to pass the following order.

ORDER

          The complaint of complainant is partly allowed. The OP no.1 is directed to refund Rs.6,065=00 to the complainant alongwith 7% interest per annum on the said amount within 30 days from the date of this order, failing which, the OP no.1 shall pay the said amount to the complainant alongwith 8% interest per annum from the date of this order to till the date of realization.

          The OP no.1 is further directed to pay Rs.2,000=00 to the complainant towards cost of litigation.  

          The complaint of complainant filed against the 2^nd OP is dismissed.

          Supply free copy of this order to both parties. 

          (Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open forum on this, the 20^th of January 2014).

MEMBER                                 PRESIDENT