BEFORE THE DISTRICT CONSUMER

       DISPUTES REDRESSAL FORUM, BAGALKOT.

COMPLAINT NO. 55/2016
DATE Of FILING: 18/04/2016

Date:  21^th day of August, 2018

   P r e  s e n t: 

01) Smt.Sharada.K.                                                    President…

     B.A.LL.B. (Spl) 

02) Smt. Sumangala.C.Hadli.                         Lady   Member…

                            B.A (Music)

                V/s

JUDGEMENT DELIVERED BY SMT.SHARADA.K., PRESIDENT

The Complainant filed this complaint u/sec. 12 of Consumer protection Act, 1986 seeking direction to Opposite Parties (herein after referred in short as Ops) to refund Rs.8,00,000/- along with interest @ 18% p.a. from 09/09/2014 till realization, Rs. 2,00,000/- compensation for mental agony and Rs.1,00,000/- loss of the business and Rs.25,000/- cost of the proceeding.  

2.   Brief facts of the case are as follows:

The complainant has filed this Complaint against the Ops for refund of the deposited amount after maturity. The complainant has deposited in F.D. Receipt bearing No.0444 from 09/09/2014 in a sum of Rs.8,00,000/- and F.D maturity amount of Rs.8,08,877/- and date of maturity was 24/10/2014. The said amount was invested for a period of 45 days. Complainant wanted to invest his saved money in some private Banks, the complainant is a consumer within the meaning of Consumer Protection Act. Respondent is a society registered under the Karnataka Societies Registration Act and dealing in Banking business with a licence from Reserve Bank of India and having offices and branches at Bagalkot, Kamatagi etc and head office at Guledgudda. O.P.2 is a private Bank dealing in Banking business, branch at Bagalkot and O.P.3 is a society registered under the concerned Act and dealing in Banking business with licence from the R.B.I. Complainant further stated that above invested his amount in fixed deposit in Vishwaguru Multi Purpose Co-Operative Society Niyamit Belagavi O.P.3 in this complaint. The said investment was with the inducement by O.P.1 through their Bank at Bagalkot. The O.P.3 has acknowledged the fixed deposit amounts of the complainant. The complainant was in need of money for his business and private commitments, in order to encash the fixed deposits with respondent No.3 which has been matured on 24/10/2014. The complainant was persuaded by O.P.1 Bank to open his account in O.P.No.1 Bank at Bagalkot encashment and presentation of the original fixed deposit receipts for realization and encashment of F.Ds. In pursuance of presentation of the original fixed deposit receipts on 19/02/2015 O.P.1 bank has issued independent acknowledgement for having received the original fixed deposit receipts of the complainant and complainant was intimated that the said fixed deposit receipts will be sent to O.P.2 Axis Bank which is clearing Bank for O.P.1 for realization of cheque.  Complainant was informed by O.P.1 that after realization of the fixed deposit proceeds through their Bank O.P.2 from the O.P.3 Bank the proceeds will be granted to the account of complainant opened in O.P.1 Bank. The said fixed deposit receipts were presented to O.P.1 in February 2014. Itself nothing was heard from O.P.1 Bank about the encashment of the fixed deposits and crediting of the same in the S.B. Account of the complainant. The complainant made enquiries often and often to O.P.1 Bank but all the while they were representing that the fixed deposit receipts have been presented to Axis Bank O.P.2 for encashment who is their Banker and the Axis Bank has sent the original fixed deposit receipts to payee Bank O.P.3 and they have not yet released the said proceeds.  

Complainant further submits that on 25/04/2015 as the O.P. has not released the proceeds of the fixed deposits. Complainant got issued a notice through his Advocate to O.P.1 Bank as well as to O.P.3 Bank in the said matter. The notices have been served upon them and there was no response. Ultimately on 07/05/2015 O.P.1 gave a reply to the said notice having that the original fixed deposit receipts presented by the complainant to his Bank have been handed over to O.P.2 Axis Bank for clearance from payee Bank respondent No.3 and they have not given any response.  The complainant has issued a legal notice through his counsel.  The O.Ps. have not settled the claim, complainant no other option to file the Complaint and seeking direction to OPs to refund Rs.8,00,000/- along with interest, Rs.2,00,000/- compensation for mental agony and harassment and cost of the proceeding.  

3.      After receipt of notice, the OP-Counsels present before the Forum and filed Written Version and arguments of Ops.

           Written Version of O.P.1 are as hereunder:

          O.P.1 deny all the averments made in the complaint, except to the extent that are expressly admitted by this O.P.No.1. The contentions of para No.1 of the complaint are not concerned to this O.P.No.1. and para No.2 of the complaint are false and imaginary one. At the time when complainant was deposited the his amount in O.P.No.3, this complaint was nowhere concerned to this O.P.No.1 and at the time complainant is not have a any account in O.P.No.1’s Bank. O.P.1 had want to strict proof for complainant is induced by O.P.1. O.P.3 is nowhere concerned to the O.P.No.1. O.P.No.1 wants to strict proof of has said by the complainant is his complaint at para No.3. The complainant is persuaded by O.P.1 to open the account in O.P No.1’s Bank and this facts are false and imaginary one. It is true that the complainant was opened his S.B. Account at this O.P.No.1’s Bank on 31/12/2014, it is also true that on 19/02/2015 complainant had presented the FD receipt bearing No.0444 and dated 09/09/2014 of Rs.8,00,000/- issued by the O.P.No.3. At the time this O.P.No.1 had clearly said that this FD receipt will sent to O.P.No.2 for clearing which is the clearing bank of O.P.No.1. It is most humbly submits that O.P.1 had acted as a only mediator between the complainant and O.P.3 and O.P.1 further submitted that complaint is not a customer of the provisions of the C.P. Act, this complainant is the customer of O.P.3 in respect of the FD receipts. Hence there is no cause of action arose to complaint for filing complaint against O.P.No.1 and after the presentation of the FD receipt by this complainant O.P.1 had sent those FD receipt for the collection through O.P.No.2 which is the clearing that of O.P.1 on 19/02/2015. O.P.2 had sent those FD receipts for realize through Registered AD to the O.P.3. But the O.P.No.3 have not realize the FD receipts till today. For that reason the O.P.No.1 had made correspondence to the O.P. No.2 at many times. The replies given by the O.P.2 to O.P.1 are intimated to the complainant and O.P.3 intimated that this complainant has no account at O.P.3 and FD receipts are fake. So this was intimated to the complainant. Complainant has not taken any action against the O.P. No.3 till today and O.P.No.3 also not taken any legal action against this complainant for fake FD receipts. O.P.3 further submits that at the time when the complainant came to present the FD receipts for clearing before this O.P.No.1, O.P.No.1 had advised to the complainant that you may personally present this FD receipts before the O.P.No.3 and clear encash it and complainant does not heed the advice of O.P.No.1 and forcibly present those FD receipts to this O.P.No.1 for clearing those FD receipts. Hence complainant has unnecessarily made complaint against O.P.1 and O.P.1 is not liable to pay anything to the complainant has prayed in his complaint. Hence, O.P.1 prays that dismiss the Complaint in the interest of justice and equity.

          4.      Written Version of O.P.2 are as hereunder:

O.P.2 deny all the averments made in the complaint, the averments expressly not denied may not be construed to have been admitted. The complaint filed by the complainant against O.P.2 is false and frivolous as such deserved to be dismiss against O.P.2. and contention of para No.1 of the complaint is not concerned to us and this facts are not within our knowledge. It might be true that the complainant had invested his amount in fixed deposit with O.P.No.3. It is absolutely false to say that as per the prayer of the complainant we are jointly and severally liable to pay the amount of Rs.11,00,000/- and other costs etc.,  Complainant is not a consumer as per the provisions of the C.P. Act as this complainant is not at all the customer of our Bank and hence there is no any cause of action to file this complaint against O.P.2. O.P.2 submits that we have acted as only mediator to the O.P.1 and the O.P.No.3. Complainant has admitted at Para No.2 of his complaint that he had invested his amount in Fixed Deposit with O.P.3 the Vishwaguru Multi Purpose Co-Op. Society Niyamita Belganvi and also stated at para No.3 of his complaint that, after the maturity of the F.D. the complainant had opened an account with O.P.No.1’s Bank and presented to O.P.1 for enhancement and O.P.No.1 had intimated to complainant that the said F.D. receipts will be sent to O.P.2 i.e., Axis Bank which is a clearing Bank. O.P.2 further contended that complainant it is very much clear that O.P.2 is the only clearing bank to O.P.1 as the O.P.No.1 has an Account with our Bank and complainant submitted his FD receipts with O.P.1 for realize the proceeds and pay the proceeds to his Savings Bank account after close of the term deposit Accordingly the O.P.1 has given a request to our Bank to realize this FD of the complainant as we are the clearing Bank. O.P.2 have sent this FD collection to O.P.3 Shri Vishwaguru Multi purpose Co-Op Bank Society Niyamit Belganvi on 20/02/2015 along the Original FD receipt with a letter through a Registered AD with a request to realize the proceeds of the said FD. Therefore we have make the correspondence on 20/02/2015, 07/03/2015 and 17/04/2015 with the O.P.3 for the said proceeds of the complainant but the O.P.3 did not turned up for the same. O.P.2 contended that O.P.3 has replied to us by his letter dated 04/05/2015 and stated that since your letter did not carry any attachments and the names suggested in our letter have not contented to the O.P.3’s society and also stated that as the term deposit receipts being Nos. 0442, 0443 and 0444 stand in the name of the customers of O.P.No.3’s society and O.P.3 is contending that we had sent only a letter on 20/02/2015 to the O.P.3 without attaching the FD receipt. It is to be submitted that how it is possible we have sent only a bare letter without original FD receipt for collecting the proceeds of the said FD. Hence it is absolutely false to say that we did not attached the FD receipt along with its letter dated 20/02/2015. O.P.2 contended that it is absolutely false to say that, we did not attached the FD receipts along with its letter dated 20/02/2015.  In his letter dated 20/02/2015 we have clearly mentions the terms deposit receipt has been attached herewith. Hence O.P.3 falsely contending that the FD receipt is not sent to him. Hence the O.P.3 is playing a game with the complainant. O.P.No.2 is not at all liable to pay anything to the complainant as prayed in this complaint. Hence, O.P.2 prays that this complaint has to be dismissed with costs. 

          5.     Written Version of O.P.3 are as hereunder:

O.P.3 contended that the complaint filed by the complainant is not maintainable as against O.P.3 and hence deserves to be dismissed. O.P.3 denies contents of para No.1 of the complaint and except O.P.3 is a society duly registered and is doing banking business. It is specifically denied O.P.3 that the complainant invested his alleged amount in Fixed deposit in O.P.3 society and that too with the inducement of O.P.1. It is false to aver that O.P.3 has acknowledged the fixed deposit amounts and issued F.D. Receipt Nos.0444 and dated 09/09/2014 for Rs.8 lakhs and that the said amount was invested for a period of 45 days from 09/09/2014 to 24/10/2014. All these averments is an imagination of the complainant having no truth therin and contended in para No.3 of the complaint that he wanted to encash the alleged fixed deposit from the O.P.3 alleged to have been matured on 24/10/2014 is denied by O.P.3. Allegations alleged in para No.4 of the complaint are categorically repudiated by O.P.3. It is true that a legal notice was received by O.P.3 from the counsel of the O.P.1. As O.P.3 had nothing to do with the subject matter of the said notice, O.P.3 has appropriately replied to the said notice. There is no cause of action for filing this complaint and the one mentioned in para No.11 is imaginary and baseless.

O.P.3 further contended that complainant has kept F.D. with O.P.3 a society situated at Belagavi which obviously is beyond the jurisdiction of this Hon’ble Forum. As such this complaint cannot be entertained by this Hon’ble Forum as contemplated U/s. 11 (2) of Consumer Act and O.P.3 submits that the F.D. receipt No.0444 which the complainant claims to be issued in his name is infact issued in the name of one of the customer of the O.P.3 namely Smt. Usha Prakash Mestri for an amount of Rs.6,00,000/- who held an A/c. bearing No.376 and said account has been already closed. Hence O.P.3 prayed that the complaint filed by the complainant dismissed with costs as not maintainable as against O.P.3 in the interest of justice and equity.

6.     To prove the case of the complainant, tendered affidavit evidence and placed following documents: 

1. Zerox copy of the F.D. receipt dt: 09/09/2014.

2. Application of the complainant to Laxmi Bank with original F.D. receipt for collection of the proceeds Zerox copy containing acknowledgement of receipt of original FDR.

3. Another letter by Axis Bank to respondent No.3.

4. Copy of the notice issued by the complainant through Advocate to respondent No.1.

5. Letter of respondent No.3 to Axis Bank respondent No.2.

6. Letter by Axis Bank to Laxmi Sahakari Bank.

7. Reply notice by respondent No.1.

8.Reply notice by Laxmi Sahakari Bank to the complainant’ Advocate.

9. Another letter by Axis bank to respondent No.3

10. Reply notice by Advocate of respondent No.3 to complainant’s Advocate.

11. Another notice by complainant through Advocate to respondent No.1.

12. Office copy of another notice issued by the complainant dt: 17/02/2016.

13. Reply notice respondent No.1.

14. Zerox copy of the letter issued by Axis Bank to Manager, Vishwaguru Multi purpose society R-3 and other documents etc.,

O.P.1 tendered affidavit evidence and placed following documents:

          1. S.B. Account Opening form Sunil Sampatraj Betala.

2. Self attested Xerox copy of the Pan Card and Voter Card of Sunil Sampatraj Betala.

          3. S.B. Account Opening form Ashish Sampatraj Betala.

4. Self Attested Xerox copy of the Pan Card, Driving license and Voter Card of Ashish Sampatraj Betala.

5. S.B. Account Opening form Shobha Sunil Betala.

6. Self attested Xerox copy of the Voter Card Shobha Sunil Betala.

7. Local Bank Cheque collection extract (LBC).

8. Axis Bank Challan Slip.

9. Notice given by complainant dt: 25/04/2015, 25/04/2015, 01/07/2015.

10. Second Notice given by complainant dt: 25/04/2015, 01/07/2015.

11.  Notice given by complainant dt: 17/02/2015.

12. Reply notice issued by O.P. dt: 23/02/2015.

13. Letter to Axis Bank dt: 16/04/2015.

14. Reply notice issued by Axis Bank dt: 06/05/2014.

15. Reply notice issued to complainant by O.P. dt: 07/05/2015, 07/05/2015, 07/05/2015.

16. Letter given to Axis Bank dt: 07/05/2015.

17. Letter given to Axis Bank dt: 12/05/2015.

18. Reply notice to Axis Bank dt: 15/05/2015.

19. Letter given to Axis Bank dt: 16/07/2015.

20. Reply notice given to the O.P. Lawyer dt: 16/07/2015.

21. Letter given to the Axis Bank dt: 19/02/2016.

22. Reply letter given to O.P. Lawyer dt: 23/02/2016.

23. Letter given to the Axis bank dt: 19/02/2016.

O.P.2 tendered affidavit evidence and placed following documents:

1. Copy of the letter O.P.2 with acknowledgement.

2. Copy of the F.D. receipts.

O.P.3 tendered affidavit evidence and placed following documents:

1. Attested Copy of Scroll Book.

2. Attested Copy of FD Ledger.

3. Attested Copy of Day Book.

4. Attested Copy of Fixed Deposit.

7.      We have heard the arguments and perused the documents.

8.      On the basis of the above said pleading, oral and documentary evidence, the following points arises for adjudications are as follows:

1. Whether the complainant proves that the  complaint is come under this jurisdiction ?
2. Whether the complainant falls under Consumer Protection Act ?
3. What order?

9.    Our Answer to the above points are as follows:-

1. Affirmative,
2. Negative,

2) As per final order.

R E A S O N S

10. POINT NO.1: The complainant filed this complaint against the O.P. claiming the FD receipt amount from O.P.No.3 this is the disputed fact that weather this complaint falls under this jurisdiction or not, since O.P.3 is at Belgaum O.P.No.3 submits that as per the consumer protection act complaint any be made where the O.P. residing, on going through the complaint and cause title of the complaint its mentioned that O.P.No.1 and 2 are residing at Bagalkot, here we have to observe that;

Section 11 sub section (2) (a) says that;

The Opposite party or each of the opposite party, where there are more than one, at the time of institution of the complaint, actually and voluntarily resides or carries on business. (or has a branch office or) personally works for gain; or

(b) Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business (or has a branch office), or personally works for gain: PROVIDED that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or carry on business, (or have a branch office), or personally work for gain, as the case may be, acquiesce in such institution; or

(c) the cause of action, wholly or in part, arises.

11.   Such being the case we have given a thoughtful consideration to the complaint and arguments made by the learned council for the complainant we came to conclusion that, the complaint filed by the complainant is well in the jurisdiction of this forum only, hence we answer point No.1 in Affirmative.

12.   POINT NO.2: The complainant filed his complaint against the OP’s stating that, his FD receipts are not at all realized till today. It is the contention of the complainant is that he invested his hard earned money with O.P.No.3 Rs.8,00,000/- as fixed deposit for 45 days the said FD receipt was presented before the O.P.No.1, O.P.No.1 sent those original FD receipts to O.P.No.2, it is the collecting bank of O.P.No.1. Further O.P.No.1 and 2 said that those FD receipts have sent to O.P.No.3 for realization unfortunately O.P.3 denied the relationship of complainant with his bank further it contended that, complainant FD receipt which has been mentioned in the covering letter i.e. 0444 belong to one Smt. Usha Prakash Mestri which is for Rs.6,00,000/- FD receipts it has been already encashed to the customer as under the FD receipt No.0444 and O.P.3 denied that, he did not received any original FD receipt from O.P.No.2 and further O.P. No.3 submits that, it may be fake FD receipts. Further we observes that, written version of O.P.No.1 and 2 stated that, they have received the original FD receipt bearing No.0444 which has been forwarded by OP No.1 to O.P.No.2 vice-versa O.P.No.2 forwarded the same to O.P.No.3. Hence it is the disputed fact that, where the original FD receipt lost and why both complainant and O.P.No.3 kept quite till today without action taking any complainant stated that, he invested the amount with OP No.3 but O.P.No.3 had refused the same stating that, the FD receipt is fake. Such being the things why both the complainant and O.P’s have not moved forward through proper channel to take appropriate action against each other and even there is no original receipt filed before the forum. Hence it is very difficult to trace out the truth since it needs lot of evidence and lengthy proceedings. Hence forum came to the conclusion to direct both the parties to approach a proper channel, since we answer point No.2 in Negative.

13. The Advocate for complainant has produced the citations which are:-

i) 2000-AIR (SC)-2966,

ii) ILR 2010 KAR 2507,

iii) (2018) CJ 10 (N.C.)

The said citations are not applicable to this present complaint.

14. POINT NO:3: In view of our findings on the above points,  we proceed to pass the following:

O R D E R

1. The complaint filed by the complainant is here by dismissed. No order as to cost.
2. Send the free copies to both the parties.

(Dictated to the Stenographer directly on computer corrected by me and then pronounced in the open Forum on this 21^st day of August, 2018).