BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, VELLORE DISTRICT AT VELLORE. PRESENT: THIRU. A. SAMPATH, B.A., B.L., PRESIDENT TMT. G. MALARVIZHI, B.E. MEMBER – I THIRU. K. DH.AYALAMURTHI,B.SC. MEMBER – II CC. 34 / 2003 TUESDAY THE 10th DAY OF AUGUST 2010. Tmt. Hemalatha Natarajan, W/o. Natarajan, Plot No.T.A., 3rd Floor, No.580, School Road, Anna Nagar Western Extension, Chennai 101. … Complainant. -Vs – The Senior Manager, Indian Overseas Bank, Main Branch, Bangalore Road, Vellore. … Opposite party. . . . . . This petition coming on for final hearing before us on 20.7.2010, in the presence of Thiru. T. RAjasekar, Advocate for the complainant and Thiru. K.M. Boopathi, Advocate for the opposite party and having stood over for consideration till this day, the Forum made the following: O R D E R Pronounced by Thiru. A. Sampath, President of the District Consumer Disputes Redressal Forum, Vellore District. 1. The brief facts of the case of the complainant is as follows: The complainant is a registered contractor who does regular contract works with Bharat Petrolium Corporation Limited having its registered office at Mumbai. On 17.4.98 she was allotted a contract work by the said Bharat Petrolium Corporation at Vellore, and for that she was asked to pay a sum of Rs.80,000/- towards security deposit by the Petrolium Corporation. She approached the opposite party to issue bank Guarantee for the above said contract work. The opposite party agreed to give bank guarantee to the complainant on condition that she should deposit amount equal to that guarantee amount. She agreed for the terms and deposited amount by way of two fixed deposits as follows on 16.4.1998 No.96/DR G. 747744 for Rs.40,000/- and (2) No.96 / DR G. 747742 for Rs.40,000/- both the amounts were deposited for a period of 42 months which occurs 12% interest per annum and date of maturity was mentioned as 16.10.01 and maturity Value is Rs.60,504/- each. The opposite party issued the indemnity bond to the said Bharat Petrolium Corporation only on 17.4.98 for Rs.80,000/- and under take to indemnify the complainant till 20.11.01 issued the said bond, the opposite party collected Rs.2200/- as commission from this complainant. She successfully completed the said contract work within the period allotted by the Corporation. After completing the said work, she did not interest to get refund of the said fixed deposit amount from the opposite party only on 12.3.02. She returned the two fixed receipts and asked the opposite party to issue the amounts with accrued interest upto 12.3.02. She shock and surprise the opposite party issued two bankers cheque as follows: 1) 84/B CD 474604 for Rs. 52,314.00 2) 84/BCD 474605 for Rs. 60,504.00 ------------------------ Total Amount Rs.1,12,818.00 -------------------------- When she enquire about the difference in one of the matured fixed deposits, the opposite party gave reply that a sum of Rs.8,190/- as commission for the indemnity bond has been deducted from the interest for fixed deposits paid till 16.10.01 only and interest was not paid for the excess period from 17.10.01 to 11.3.02 i.e. four months and twenty five days. 2. The reply was not correct because the opposite party already received commission on 17.4.98 itself so the deduction of Rs.8,190/- is not maintainable either in law or on facts, further the opposite party failed to pay interest for the excess period of four months and twenty five days after maturity date. This shows there is clear deficiency of service on the part of the opposite party. On 22.3.02 she sent a letter to the opposite party asking him to return the excess commission amount of Rs.8190/- which was deducted arbitrarily and illegally and also pay interest for Rs.80,000/- for the period of 17.10.01 to 11.3.02. The opposite party received the same but no reply was given by the opposite party. So the complainant issued notice on 25.6.02 through her lawyer. The opposite party did not give reply for that notice also. She prayed for directing the opposite party to return the sum of Rs.8190/- with interest at the rate of 18% per annum from 17.1.02 to till payment to the complainant which was deducted arbitrarily, and pay interest for Rs.80,000/- for the period of 16.10.01 to 11.3.02 and to pay a sum of Rs.50,000/- towards loss and sufferings and to pay a sum of Rs.50,000/- towards mental agony and to pay a sum of Rs.5000/- towards the costs of this proceedings. 3. The averments in the counter filed by the opposite party is as follows: The opposite party does not admit any of the allegations in the complaint as true and correct. The complainant has made wrong and untenable allegations in the complaint. There is no deficiency of service in the conduct of the opposite party. At the request of the complainant the bank issued a letter of guarantee infavour of Bharat Petrolilum Corporation. The complainant entered into a contract with Bharat Petroleum Corporation Limited for executing of contract work for the corporation. She was ask to obtain guarantee for a sum of Rs.80,000/- by the Corporation for entrusting the work. Therefore at the request of the complainant the opposite party bank issued the letter of guarantee on 17.4.98. On the basis of the letter of guarantee the complainant was entrusted with the corporation contract work. The bank guarantee was valid up to 20.10.01. As per the bank guarantee the complainant has to complete the works before the date. As per the Rules of the bank the complainant was directed to deposit Rs.80,000/- as fixed deposit with the bank. Two fixed deposits for Rs.40,000/- each for a period of 42 months was deposited in the Bank. The maturity value of the deposits were also mentioned. The commission for giving the letter of guarantee is Rs.9000/- and the complainant has to pay the said amount. The complainant also agreed to pay the said commission. The bank sent a letter dt. 13.4.99 to the complainant informing the grant of letter of guarantee and the commission of Rs.9100/- payable by the opposite party (Commission Rs.9000/- and Rs.100/- towards handling charges). Even though the complainant completed the contract works the complainant surrendered the bank guarantee to the bank only 11.3.02. The opposite party bank collected only Rs.2350/- from the complainant towards commission charges. The balance amount of Rs.6750/- is to be paid by the complainant (Rs.9100 – Rs.2350 = Rs.6750/- ) namely the total commission and handling charges is Rs.9100/-. Balance amount due is RS.6750/- towards commission charges lawfully payable by the complainant. Further as per the bank guarantee agreement the complainant has to pay commission from the date of the expiry of the bank guarantee till the date of return of the letter of guarantee agreement. The complainant returned the letter of guarantee only on 12.3.02. The commission payable from 21.10.01 to 12.3.02 is Rs.1440/- The bank therefore recovered a total amount of Rs.8190/- lawfully due to the bank as per the letter of guarantee. There is no deficiency in service as alleged in the complaint. The opposite party bank is not liable to pay any interest for the period from 16.10.01 to 11.3.02. The complainant returned the original bank guarantee only on 11.3.02 and also sent a letter to withdraw the fixed deposit only on 11.3.02. The deposits already matured on 20.11.01 and the complainant has not chose to surrender or renew the deposit. Interest paid on the deposits as per the rules of the bank. As per the rules the complainant is not entitled interest from 16.10.01 to 11.3.02. The bank has paid full amount to the complainant namely a total amount of Rs.1,12,818/- deducting the sum of Rs.8190/- due to the bank. The opposite party is not liable to pay any amount to the complainant as claimed in the complaint. Hence this complaint is to be dismissed with costs. 4. Now the points for consideration are: (a) Whether there is any deficiency in service, on the part of the opposite party? (b) Whether the complainant is entitled to the reliefs asked for?. 5. Ex.A1 to Ex.A7 were marked on the side of the complainant and Ex.B1 to Ex.B5 were marked on the side of the opposite party. Proof affidavit of the complainant and Proof affidavit of the opposite party have been filed. No oral evidence let in by either side. 6. POINT NO. (a): It is admitted case of the parties that the complainant was allotted a contract work by the Bharat Petrolium Corporation Limited at Vellore on 17.4.98 and for that she was asked to pay a sum of Rs.80,000/- towards security deposit by the Petrolium Corporation. The opposite party agreed to give bank guarantee to the complainant on condition that she should deposit amount equal to that guarantee amount. Accordingly the complainant deposited the amount by way of two fixed deposits on 16.4.1998 (1) No.96/DR G. 747744 for Rs.40,000/- and (2) No.96 / DR G. 747742 for Rs.40,000/- both the amounts were deposited for a period of 42 months with 12% interest per annum and date of maturity on 16.10.01 and maturity Value is Rs.60,504/- each. The opposite party issued the indemnity bond to the said Bharat Petrolium Corporation on 17.4.98 for Rs.80,000/- and the opposite party collected Rs.2200/- as commission from complainant. The complainant successfully completed the said contract work within the period allotted by the Corporation. 7. The complainant contended that after completing the said work, she sent a letter Ex.B5, dt. 11.3.02 to the opposite party for return of bank guarantee for Rs.80,000/- and withdrawal of two fixed deposits along with interest till 11.1.02. The opposite party issued two banker cheques i.e.(1) 84/B CD 474604 for Rs. 52,314.00, (2) 84/BCD 474605 for Rs.60,504.00, when the complainant enquire about the difference in one of the matured fixed deposits, the opposite party gave reply that a sum of Rs.8190/- as commission for the indemnity bond has been deducted from the interest for fixed deposits paid till 18.10.01 only and interest was not paid for the excess period from 17.10.01 to 11.3.02 i.e. 4 months and 25 days. The opposite party already received a sum of Rs.2200/- towards commission on 17.4.98 itself, so the deduction of Rs.8,190/- is not maintainable either in law or on facts. This shows there is clear deficiency of service on the part of the opposite party. 8. The opposite party contended that the bank sent a letter dt. 13.4.99 to the complainant informing the grant of letter of guarantee and the commission of Rs.9100/- payable by the opposite party (Commission Rs.9000/- and Rs.100/- towards handling charges). But the opposite party bank collected only Rs.2350/- from the complainant towards commission charges. The balance amount of Rs.6750/- is to be paid by the complainant (Rs.9100 – Rs.2350 = RS.6750/-) namely the total commission and handling charges is Rs.9100/-. As per the bank guarantee agreement the complainant has to pay commission from the date of the expiry of the bank guarantee till the date of return of the letter of guarantee agreement. The complainant returned the letter of guarantee only on 12.3.02. The commission payable from 21.10.01 to 12.3.02 is Rs.1440/-. Therefore the bank recovered a total amount of Rs.8190/- lawfully due to the bank as per the letter of guarantee. T here is no deficiency in service as alleged in the complaint. 9. It is admitted fact of the parties that the opposite party has given a bank guarantee on behalf of the complainant to the Bharat Petrolieum Corporation, for the contract work entrusted by the said Corporation to the complainant. From the perusal of Ex.B1, dt.17.4.98 Bank guarantee given by the opposite party to the Bharat Petrolieum Corporation Limited it is seen that the said bank guarantee shall be valid upto 20.10.01. After completion of the contract work the complainant sent a letter Ex.B5, dt. 11.3.02 for return of bank guarantee for Rs.80,000/- and withdrawal of two Fixed Deposits amount along with interest till 11.3.02. The opposite party has returned the deposited amount by way of two fixed deposits i.e. 1) 84/B CD 474604 for Rs. 52,314.00 , 2) 84/BCD 474605 for Rs. 60,504.00. From the perusal of Ex.A1 dt.16.4.98, 1st deposit receipt No.ROP202/98, amount Rs.40,000/- period 42 months, rate of interest 12%, maturity date 16.10.01 and maturity amount Rs.60504/- and second deposit receipt No.ROP200/98, amount Rs.40,000/- period 42 months, rate of interest 12%, maturity date 16.10.01 and maturity amount Rs.60504/-. From the perusal of Ex.A3, dt.17.4.98 it is seen that Rs.2200/- already collected from the complainant towards the commission charges. 10. According to the opposite party the bank sent a letter dt. 13.4.99 to the complainant informing the grant of letter of guarantee and the commission of Rs.9100/-. But the opposite party collected only Rs.2350/- from the complainant towards commission charges. The balance amount of Rs.6750/- is to be paid by the complainant. The commission payable from 21.10.01 to 12.3.02 is Rs.1440/-. Therefore the bank recovered a total amount of Rs.8190/- lawfully due to the bank. (Rs.6750/- + 1440 = Rs.8190/-) from the 1st deposit amount. The contention of the complainant that the opposite party already collected Rs.2200/- as commission from the complainant on 17.4.98 itself, so the deduction of Rs.8190/- is not maintainable either in law or on facts. From the perusal of Ex.B4, dt. 13.4.99 it is mentioned that the bank issued the guarantee on 17.4.98 and collected Rs.2200/- as commission and the guarantee is valid for 15 quarters from 17.4.98 and commission payable is Rs.9000/- plus Rs.100/- handling charges. From the perusal of Ex.B1 application for security and Ex.B2 General Counter guarantee, it is seen that there is no specific condition to collect the commission for every quarter. 11. The opposite party to give bank guarantee to the complainant, and condition that the complainant and deposited a sum of Rs.80,000/-. Accordingly the complainant deposited the said amount by way of two cheques for the period of 42 months and at the rate of interest 12%. Thereafter the opposite party has issued the bank guarantee to the Bharat Petrolium Corporation. At the time of executing the bank guarantee the opposite party collected a sum of Rs,2200/- towards commission charges. After a year the opposite party sent a letter Ex.B4, dt.13.4.99 to the complainant stating that the commission charge is Rs.9100/-. But the opposite party collected only Rs.2350/- the balance amount of Rs.6750/- is to be paid by the complainant. The opposite party bank is not proved in his documents and proof affidavit that under what basis the bank calculated the said commission charge of Rs.9100/-. Further the bank guarantee given by the opposite party is entitled to get her two fixed deposits amount along with interest mentioned in Ex.A1 Deposit Receipt. The complainant sent a letter Ex.B5, dt. 11.3.02 to the opposite party for return of the bank guarantee for Rs.80,000/- and withdrawal of two fixed deposits along with the interest till 11.3.02. The opposite party stated that as per the bank guarantee agreement the complainant has to pay commission from the date of expiry of the bank guarantee till the date of return of the letter of guarantee agreement. But there is no specific condition mentioned in the bank guarantee agreement that the complainant has to pay commission from the date of expiry of the bank guarantee till the date of return of the letter of guarantee agreement. Under these circumstances the contention of the complainant that the opposite party already received commission charge a sum of Rs.2200/- on 17.4.98 itself, so the deduction of Rs.8190/- from the complainant, deposit amount is not maintainable either in law or on facts is acceptable. The complainant contended that the opposite party has failed to pay the interest for Rs.80,000/- for the period of 17.10.01 to 11.3.02 i.e. 4 months and 25 days. This also shows deficiency in service on the part of the opposite party. In the connection the learned counsel for the complainant relying upon the following judgment of National Consumer Disputes Redressal Commission, New Delhi is held that 2005 TNCR 82-86 (NCDRC) Allahabad Bank Versus Chandigarh Construction Co. Pvt. Ltd., The National Consumer Disputes Redressal Commission, New Delhi is held that ” Respondent got bank guarantee for a sum of Rs.1,52,000/- against security of fixed deposit receipts (FDRS) worth Rs.1,50,000/- - Sent the same to the Executive Engineer, Construction Division, SYL CANAL Project, SAS Nagar, (Mohali) – Validity period of the bank guarantee was upto 28th September 1990 – After the expiry of the bank guarantee – The bank did not released the FDRS – Hence moved the District Forum for a direction in release the FDRs- District Forum allowed the complaint and directed the bank to pay the value of FDRs with interest at 18% from 1st October 1990 – Against this order appeal preferred which was dismissed on 26th February 2003. Interest reduced from 18% to 12% p.a. – Directed to pay interest from 1st October 1990 till the amount is paid in 2003 on the basis of the order passed by this Commission – Revision partly allowed – No order as to cost. ” According to the opposite party the bank is not liable to pay any interest for the period from 17.10.01 to 11.3.02. Since the complainant sent a letter to withdraw the fixed deposit only on 11.3.02. 12. Clause -7 (II) of the bank guarantee Ex.B1, clearly stipulated that the bank guarantee was valid only upto 20.10.01 and thereafter it was deemed to have been cancelled automatically if not invoked upto 20.10.01. Therefore the complainant is entitled to get the interest for the fixed deposit of Rs.80,000/- for the period of 16.10.01 to 11.3.02. The ruling cited by the learned counsel for the complainant is squarely applicable to the facts and circumstances of this case. 13. Taking into account, with regard to the contention in the complaint, and from the averment in the proof affidavit of the complainant herein, and from the documents Ex.A1 to Ex.A7 marked on the side of the complainant herein, we have come to the conclusion that the attitude of the opposite party herein deficiency in service on their part. In view of Ex.A1 deposit receipt, the complainant herein is entitled to a sum of Rs.8190/- and interest at the rate of 12% for the fixed deposit of Rs.80,000/- for the period of 16.10.01 to 11.3.02, and the complainant herein is also entitled to a sum of Rs.2000/- towards mental agony and suffering in view of the deficiency in service on the part of opposite party herein on the part of the opposite party. Hence, we answer this point (a) accordingly. 14. POINT NO. ( b): In view of our findings on point No.(a), the complainant herein is entitled to a sum of Rs.8190/- under Ex.A1 and interest @ 12% for the fixed deposit of Rs.80,000/- for the period of 16.10.01 to 11.3.02, and the complainant herein is also entitled to a sum of Rs.2000/- towards mental agony and suffering in view of the deficiency in service on the part of opposite party herein. Hence, we answer this point (b) is also accordingly. 15. In the result, this complaint is partly allowed. The opposite party is hereby directed to pay a sum of Rs.8190/ under Ex.A1 Deposit Receipt and interest at the rate of 12% for the fixed deposit of Rs.80,000/- for the period of 16.10.01 to 11.3.02. The opposite party herein is also directed to pay a sum of Rs.2,000/- towards the mental agony and suffering caused to the complainant in view of the deficiency in service on their part, and also to pay a sum of Rs.1000/- towards the cost of this complaint. The opposite party is hereby directed to pay the above said amount within one month from the date of copy of receipt of this order, failing which, the complainant is also entitled to interest, on the above said sum @ 9% p.a. from the date of default, to till the date of payment. Dictated to the Steno-typist and transcribed by her, corrected and pronounced by the President, in Open Forum, this the 11th day of August 2010. MEMBER-I MEMBER-II PRESIDENT. List of Documents: Complainant’s Exhibits: Ex.A1 - 16.4.98 - X-copy of fixed deposit receipts. Ex.A2 - 17.4.98 - X-copy of Indemnity bond issued by the opp party. Ex.A3 – 17.4.98 - X-copy of the receipt for the commission received by the Opp party for the Indemnity bond. Ex.A4- 12.3.02 - X-copy of the Bankers cheque issued in the name of the Complainant. Ex.A5- 22.3.02 - X-copy of the letter sent to the opp party by the complainant. Ex.A6- 25.6..02 - X-copy of the lawyer notice. Ex.A7- -- - Ack. Card issued by the opp party. Opposite party’s Exhibits: Ex.B1- 17.4.98 - Bank Guarantee. Ex.B2- 17.4.98 - Application for financial assistance against security of Term Deposit. Ex.B3- 17.4.98 - General counter Guarantee. Ex.B4- 13.4.99 - X-copy of letter written by the IOB to complainant. Ex.B5- 11.3.03 - Letter written by the complainant to the IOB. MEMBER-I MEMBER-II PRESIDENT.
| | [HONORABLE K.Dhayalamurthy] Member[HONABLE MR. JUSTICE Thiru A.Sampath] PRESIDENT[HONORABLE TMT .G.Malarvizhi] Member | | 
