Sh.Makhan S/o Sh.Krishan Kumar, resident of Ward No.14, Water Works Road, Mansa.


VERSUS

1.

A.G.M., State Bank of India, First Floor, Regional Business Office, Bhagu Road, Bathinda.
2.

Manager, Main Branch, State Bank of India, Water Works Road Branch, Mansa.


Sh.Makhan son of Sh.Krishan Kumar, a resident of Mansa, has filed this complaint, under Section 12 of the Consumer Protection Act, 1986 (in short called the 'Act') against the opposite parties for award of compensation in the sum of Rs.50,000/- for mental and physical

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harassment. Briefly stated, the case of the complainant is described as under:

2. That on 5.6.2008, he opened joint account with his wife with OP No.2 and deposited a sum of Rs.1,51,000/-. They have also secured 'Multi City Cheque Facility' provided for encashment of cheques issued by them in any branch of the opposite parties.

On 26.11.2008, complainant issued cheque bearing No.000105 dated 26.11.2008 in the name of his father-in-law Sh.Pawan Kumar S/o Sh.Ram Nath, resident of Bharat Nagar, Bathinda. On presentment of the said cheque, by the drawee, the branch of the opposite parties, situated at Bathinda, refused to encash the same, despite adequate credit, in the account of the complainant, on the plea that his signatures are not scanned on computer system of the opposite parties. The father-in-law of the complainant, in whose name cheque, has been drawn, is a old person and a patient of heart ailment, who needed money for his personal needs. He also maintains account No.30397593617 in the branch of opposite parties at Bathinda. After receiving the intimation, regarding dishonoring of the cheque, the complainant approached the main branch of the opposite parties, but the officials posted therein, refused to listen to his grievance ,thereafter he sent several applications expressing his problems faced by him due to non scanning of his signatures on the computer system, but OP No.2 did not pay any heed and has not given any response, to the notice sent through registered post and FAX. Hence the complaint.

3. On being put to notice, opposite parties filed written version, resisting the complaint, by taking preliminary objections; that the complainant, is not the 'consumer' within the purview of its definition given in the Act, as such, complaint, is not maintainable; that complainant,

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has no cause of action, and locus standi, to file the complaint; that the complaint is bad for mis-joinder and non-joinder of necessary parties; that the complainant, has concealed the material facts, from the knowledge of this Forum and has not approached this Forum with clean hands, as he has suppressed the material facts touching the merits of the case; that no loss has been suffered by the complainant and drawee of the cheque has not filed the complaint for loss suffered by him, as such, he is not entitled, to payment of any compensation; as such, his complaint, being false and vexatious, is liable, to be dismissed, with costs.

On merits, factum of opening of a joint account, by the complainant and his wife, and availing of 'Multi City Cheque Facility', is not denied, but it is submitted that complainant, has operated his account several times, but he has not faced any difficulty in operation thereof. It is submitted that cheque in question, could not be cleared, for payment, for want of signatures scan of the complainant, which could not be scanned ,due to technical difficulties faced by the opposite parties. It is denied, that there is any deficiency in service, on the part of the opposite parties or that complainant, is entitled to seek compensation, as sought in the instant complaint. Rest of the allegations, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs.

4. On being called upon, by this Forum, to do so, the counsel for the complainant tendered his affidavit and of Sh.Pawan Kumar and copies of documents Ext.C-1 to C-7 and closed evidence. On the other hand, learned counsel for the opposite parties tendered in evidence affidavit of Sh.Rakesh Kumar, G.M., Ext.OP-1 and closed evidence on their behalf.

5. We have heard the learned counsel, for the parties and gone through, the facts borne on record, carefully, with their kind assistance.

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6. At the outset, learned counsel for the opposite parties Sh. P.K.Singla, Advocate, has submitted that complainant, has not disclosed the name of the branch of the opposite parties, where his father-in-law, in whose favour the cheque, has been issued, has presented the same for encashment and, as per allegations made in the complaint, he has not suffered any personal loss, as such, he has no locus standi to file the complaint and person aggrieved, if any, is his father-in-law, but he is not party to the complaint, as such, complaint is liable to be dismissed with special costs.

7. On the other hand, learned counsel for the complainant Sh. Vishvpreet Garg, Advocate, has submitted that cheque, in question, has been issued, by the complainan,t which has been dishonored, by the opposite parties without any justifiable cause, as such, complainant, has locus standi and his complaint, is maintainable, although his father-in-law, may file separate complaint, for physical and mental harassment, suffered by him, against the branch concerned, at Bathinda, if he so desires.

8. We find merit in the argument advanced by the learned counsel for the complainant, because cheque in question, issued by him has not been honored, by the opposite parties for want of loading of signatures scan on their computer network due to technical difficulties. In the given circumstances, we are unable to accept the plea of the counsel for the opposite parties, that complainant is not the person aggrieved or that he has no locus standi, to file the complaint. The remedy open to his father-in-law, who operates distinct account with the branch of the opposite parties at Bathinda, is independent. If he is aggrieved due to dishonoring of the cheque on any other ground by the opposite parties, he may file separate complaint against his bankers. Since the facility of 'Multi City Cheque

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Facility', has been secured by the complainant and his wife and their reputation, has gone down in the eyes of the drawee, therefore, complaint filed by the complainant, against his bankers, for dishonoring the cheque, on being presented, by the drawee, is maintainable.

9. Learned counsel for the opposite parties, has further submitted that complainant, as per his own version projected in the complaint, has issued cheque in the sum of Rs.70,000/-, but as per the Banking Law and Regulations, payment of amount above Rs.50,000/-, can be made to the drawee through Account Payee Cheque, but complainant, has not produced on record the counter foil of Pay-in-Slip, through which cheque in question ,was presented with any branch of the opposite parties, at Bathinda, for deposit of the same in his account.

Learned counsel has reiterated, that no personal loss to the complainant, has been caused and he has failed to approach the OP No.2 and to inform him about dishonoring of the cheque, so that remedial steps could be taken in time, as such, he cannot claim benefit of its own omission and be allowed to shift the liability upon the opposite parties, for dishonoring of the cheque. Learned counsel, has drawn our attention to Statement of Accounts of the complainant, containing entry regarding transfer of a sum of Rs.50,000/-, by him, on 28.11.2008 in Fixed Deposit Account and has argued, that complainant has served notices upon the opposite parties despite knowledge that amount in his account, is not sufficient for honoring the cheque, as such, inference is that he has fabricated the evidence with malafide intention, to secure wrongful gain and his complaint deserves to be dismissed with compensatory costs.

10. At the stage, learned counsel for the complainant, has submitted that, opposite parties in their written version, has admitted the

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dishonoring of the cheque, as such, they cannot be allowed to wriggle out of the said admission or due to non impleading of the the branch of the opposite parties situated at Bathinda, where cheque was presented, by the drawee. Learned counsel further argued, that despite issuance of reminders by the complainant for scanning of his signatures, to the opposite parties, they have failed, to take any remedial action for scanning of his signatures, as such, there is deficiency in service on the part of the opposite parties and the complainant, is entitled to claim compensation from them.

11. The argument advanced by the learned counsel or the complainant is not devoid of merits, because in the written version, the opposite parties have categorically admitted, that cheque in question, on presentation by the drawee, has not been encashed for want of scanning of signatures of the drawer on computer network, due to technical problems. Yhey have not attributed any lapse, on the part of the account holder, because of which their signatures could not be scanned on their computer network or to facilitate the other branches to honour the cheques issued by them under Multi City Cheque Facility.

It is well settled that admitted facts need no formal proof and that admission is the best evidence, which can be relied upon by the opponent, until it is successfully withdrawn or proved to be erroneous. It is not the case of the opposite parties, that above admission has been made by them out of inadvertence. It was the duty of the OP No.2 to scan the signatures of the account holders immediately after they secured the facility. The reliefs to the complainant cannot be denied, even if, he has not conveyed any intimation to the opposite parties, for dishonoring of the cheque on being presented by his father-in-law for encashment.

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12. As per entries made in the Statement of Accounts issued by the opposite parties, Ext.C-2, he has withdrawn a sum of Rs.50,000/- on 28.11.2008. He has issued the cheque on 26.11.2008 after deposit of Rs.70,000/- in his account on even date, in the name of his father-in-law. The dates mentioned in the copies of notices Ext.C-4 to C-6 suggests that they have been served upon the opposite parties subsequent to the transfer of Rs.50,000/- in his Fixed Deposit Account. These notices are dated 13.1.2009, 12.2.2009 and 26.2.2009, but in these notices, complainant has himself requested the opposite parties for scanning of his signatures and not for honoring of the cheque issued by him, but the opposite parties have not produced on record any documentary proof to show that his grievance has been redressed, although it is not their plea that facility secured by the complainant and his wife, has been withdrawn or cancelled, due to their conduct or some other reason.

13. In the light of our above discussion, we have come to the conclusion that deficiency in service on the part of the opposite parties, is clearly demonstrated, by the facts discussed above. Therefore, complaint cannot be dismissed, even if , complainant has failed to prove any financial loss, which might have been caused to him. In our opinion, dishonoring of cheque, issued by the drawer, lets him down in the eyes of the drawee, irrespective of his relationship and it also affects the reputation of the bankers in the eyes of the general public. Therefore, the opposite parties have no option, but to adequately compensate the complainant, as per the nature of deficiency in service and circumstances of the case.

14. For the aforesaid reasons, we accept the complaint with a direction to the opposite parties, to pay a sum of Rs.2,000/-, on account of compensation, to the complainant. Since the complainant has not sought

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any payment, on account of costs of litigation, therefore, parties are left to bear their own costs. The compliance of this order be made within a period of two months from the date of receipt of the copy of the order.

Sri. M.V.S. Ramachandra Murthy, S/o Late M.A. Ramiah, Hindu, aged 67 years, R/o Flat No.205, Om Vigneswara Apartments, Abidnagar, Visakhapatnam

… Complainant

1. The Manager, Customer Services, State Bank of India, Credit Cards, New Delhi.

2. The Branch Manager, Credit Card Division, State Bank of India, Dwarakanagar, Visakhapatnam.

... Opposite Parties

: O R D E R :

1. The complainant is having a Credit Card No.4317 5750 1787 5403 of the opposite parties, State Bank of India right from 2003. He claims that he used the credit card still December 2005. His complaint is that the opposite party has been making wrong calculations and sending such wrong statements. He sought for clarification of the dues. His specific complaint is that an entry shown as flexi pay amount of INR 2006 for Rs.1,388-62ps was shown wrongly besides Government Tax.

With this complaint, he even got issued two legal notices on 04-09-2006 and 15-12-2006 to the opposite parties, seeking clarification of the account and settlement of the same. Having failed to get proper reply from them, pleading that this act of opposite parties is nothing but deficiency in service, as it failed to render proper account causing much tension, mental agony and financial hardship to him. He further pleaded that he even asked the opposite parties to settle the account and to cancel the Credit Card. With these averments, he came up with this complaint seeking direction for settlement of account and refund of the balance amount to the complainant and for deficiency of service resulting in mental agony, pain and suffering a compensation of Rs.15,000/- besides costs.

2. Opposite parties naturally resisted the claim and pleaded in the counter that as per the terms and condition of State Bank of India, Card services, it sent bills.

3. Statement of Account to the complainant to the extent amount due from him and denied that it failed to respond to the customer clarification, more so the complainant and urged the two notices were issued by the complainant, only to evade payments of amount due. The failure of the complainant to clear the dues within time resulted in levying charges as per the terms of the agreement and he cannot now complain or deny to make such payments. Hence he is not entitled for any reliefs.

4. At the time of enquiry both the parties filed proof affidavits to support their pleadings and also marked Documents Ex.A.1 to Ex.A.18 and Ex.B.1.

5. Both the counsels were heard. It is vehement contention of the counsel for the complainant that his client never committed default in payment of the dues and illegal demand was being made by the opposite parties by furnishing wrong calculation and pointed out entries relating to flexi pay amount as one such instance. He urged that inspite of repeated requests oral and in writing by way of issuing legal notice, the opposite party failed to clarify and settle the accounts. He pointed out that after December 2005 the complainant never utilized the credit card and infact requested the opposite party to cancel it. But instead of doing the same, the opposite parties are sending bills periodically, as if amount was due from him, causing mental agony and tension to his client. This conduct of the opposite parties is nothing but deficiency in service and sought for payment of compensation.

6. The counsel for the opposite parties urged that the bills sent from time to time as per the terms and conditions of the agreement only and never any excess amount is demanded or collected from the complainant. He pleaded that flexi pay is not a liability upon the complainant but facility to pay the amount due in installments. Thus he urged that there is no deficiency in service on the part of the opposite parties.

7. Both the parties submitted written arguments reiterating their contentions.

8. Inview of the contentions raised by either side the point that would arise for consideration in this case :

Whether there is any deficiency in service on the part of the opposite party and resulted in excess payment by the complainant and if so whether the complainant is entitled for compensation claimed?

9. The fact that the complaint was issued Credit Card in the year 2003 and have been using the same and making payment periodically is not in dispute. However the greivance of the complainant is that excess amount is being charged by making wrong calculation by the opposite parties and inspite of demand for settlement of account, the opposite parties failed to do so and on the other hand continued to issue bills periodically inspite of the fact that after December 2005 the complainant never used the card. This conduct of the opposite parties, he alleges caused any amount of mental agony and tension to him.

10. With regard to the allegation that wrong calculation are being made and excess amount was charged, a perusal of the bills Ex.A.1, Ex.A.9, Ex.A.10 and Ex.A.11, would show that apart from the debit entries of purchases and payments made by the complainant, using the Credit Card the other debit entries represent charges paid for delayed payment, interest charges on purchases, insurance premium, service tax etc., which in our view the opposite parties are legitimately entitled to levy as per the terms and conditions of the Cards issued. Obviously the only entry which cause this apprehension of excess charges being made is the item, shown as flexi pay amount in Ex.A.1 bill dated 02-10-2005 and also in Ex.A.11 dated 02-11-2005. It is contended by the counsel for the opposite parties, it is not a debit entry but only a facility given to the Credit Card user to make payments by installments. A verification of these two bills Ex.A.1 and Ex.A.11 would show this entry that is not taken into consideration either as a receipt or payment in arriving at the amount due.

11. Though the complainant pleads that excess amount was collected from him, in our view, the debit entries in Ex.A.1, Ex.A.10 showing mercantile transactions not being in dispute and other items shows as charges were held to be in accordance with the agreement between the parties, the complainant could not establish any excess charges collected from him.

The fact to be specifically noted is that subsequent to December 2005, the complainant never used the card, obviously in view of his apprehensions and failure to get clarifications of the various demands made against him in the bills. It is to be further noted that the last bill Ex.A.11, for November 2005, would show that only Rs.1,325-44ps is due and in that bill, there was no transaction of purchase by the complainant during October 2005. It is specific case of the complainant he did not use the card thereafter. Ex.B.1 statement of payment details filed by the opposite party would show that on 03-01-2006 an amount of Rs.1,388-62ps was paid by him. This would to a great extent lend credence to the contention of the complainant that nothing was due from him. In the absence of any material by the Bank, to contradict the same, it has to be accepted.

12. The main complaint is that the opposite parties failed to clarify the account entries and furnish correct statement of account inspite of demands in that regard. Apart from making oral requests, the complainant has written a letter, office copy of which is Ex.A.2 dated 14-12-2005. This shows in it, he specifically mentioned that as per his account, nothing was outstanding and it also shows that he made requests in this regard to the opposite party orally and also even sent E-mail and inspite of it, the opposite parties did not verify the account. In it he made it very clear that he did not expect any further demand from them without settlement of account. Besides it, there is a Ex.A.3 legal notice dated 04-09-2006, complained of sending wrong bills of dues insipte of the fact that subsequent to December 2005 the complainant stopped utilizing the credit card. Conspicuously it is specifically mentioned about entry of Flexi pay shown in the statement of account and it is complained that it is illegal, arbitrary and capricious. It further reads that wrong statements are being sent regularly and nothing was due from him.

This notice was sent on 11-09-2006, as can be seen from Ex.A.13 postal receipt and Ex.A.8 letter from postal superintendent would show that it was received by the opposite party, on 16-09-2006. Another notice was also got issued by the complainant on 05-12-2006 in Ex.A.6 . Ex.A.14 is the postal receipt for sending this notice. In this notice also the complaint made was that illegally certain amounts were shown as due and bills were being sent wrongly and requests for cancellation of bills was made. Inspite of these two notices, the opposite parties did not choose to clarify the dues of the complainant and never tried to explain to him that no wrong claims were being made against him. The bills subsequent to December 2005 would only show interests on alleged delayed payment. Ex.A.12 dated 12-06-2008 would show surprisingly pending balance as Rs.11,572/- and other taxes such as delayed payment interest and also total GST debited for current STMT and ultimately outstanding was shows as Rs.11,923-28ps. When the earlier Ex.A.11 bill dated 02-11-2005 shows only Rs.1,325-44ps was due and in the absence of any transactions made by the complainant using the card, how it became Rs.11,923-28ps as outstanding by 12-06-2008 is not explained by the opposite parties.

It being the case when he was not using the card at all, still sending the bills every month showing huge amounts as due without furnishing proper account to the complainant, inspite of repeated demands in our view clearly amounts to deficiency in service. The minimum that is expected from the opposite party’s Bank is proper response to the quarries raised by the customer with regard to the bills that are being issued to him. This is absolute lack of response to the customers requests by the opposite party Bank is quite reprehensible. It is nothing surprising that there was complaint of mental agony and tension by this conduct and the complainant deserves to be compensated. In our view, payment of compensation of Rs.10,000/- by the opposite parties to the complainant would meet the ends of justice. Accordingly this point is answered.

13. In the result, the complaint is partly allowed, directing the opposite parties to pay compensation of Rs.10,000/- (Rupees ten thousand only) to the complainant within one month and on its failure, to pay with interest @ 9% p.a., till the date of payment. It is further directed that the opposite parties shall pay Rs.2,500/- (Rupees two thousand five hundred only) as costs to the complainant. Advocate fee is Rs.2,000/- (Rupees two thousand only).

L.Abu Bakar,
S/o Late Mohammadali,
Aged about 35 years, Muslim,
Residing at Society Colony,
Madanapalle, Chittoor Dist. A.P.
… Complainant.

The Branch Manager,

State Bank of India,

Angallu Branch, Angallu,

Kurabalakota Mandal,

Chittoor Town & District.

… Opposite party.

ORDER

This is a complaint filed by the complainant to direct the opposite party to return the gold ornaments which are pledged on 29.07.1999 and to pay Rs. 60,000/- towards damages for mental agony.


The complainant submits that on 29.07.1999, he pledged 40gms gold ornaments to the opposite party Bank and availed a loan of Rs. 9,000/- and subsequently he repaid the loan amount. After repayment of the loan amount he was demanding the opposite party to return the gold ornaments, but the opposite party did not return the same. The complainant submits that the opposite party gave reply notice dated 12.01.2009 that the complainant is due an outstanding balance of Rs.51,840/- in connection with another loan dated 13.05.1999 and that the bank has got right of lien over the pledged jewels. The complainant submits that the loan dated 13.05.1999 for Rs. 25,000/- is nothing to do with the gold loan. The opposite party cannot keep the gold ornaments with the Bank after the loan was discharged. There is deficiency of service on the part of Bank. Hence the complaint may be allowed directing the opposite party to return the gold ornaments pledged on 29.07.1999 and pay Rs. 60,000/- towards compensation for mental agony.


The opposite party filed written version stating that the complainant availed a loan of Rs. 25,000/- on 13.05.1999 for his business purpose. He also availed gold loan of Rs. 9,000/- on 29.07.1999 and pledged his gold ornaments with the opposite party. The opposite party submits that on 10.01.2002, the complainant cleared his gold loan account and claimed return of gold ornaments. But the opposite party refused to return the gold ornaments till the complainant clears his commercial loan availed by him on 13.05.1999. There is no deficiency of service on the part of opposite party. The complainant ought to have approached this Forum within two years from the date of refusal and denial to return the gold ornaments i.e. on 10.01.2002. Hence the complaint is barred by limitation. The bank retains the gold ornaments as security to the outstanding loan due to it. Hence the complaint may be dismissed.

The points for consideration are:

1) Whether the Bank can retain the gold ornaments pledged on

29.07.1999 till the complainant discharges the earlier loan dated

13.05.1999 for Rs. 25,000/-?

2) Whether the complainant can claim the gold ornaments from the

opposite party bank?

3) Whether the complainant is entitled to damages of Rs. 60,000/- against

the opposite party Bank?

4) To what relief?


The complainant filed Chief Affidavit of Pw.1 and marked Exs. A1 and A2.

The opposite party bank filed Chief Affidavit of Rw.1 and marked Es. B1 to B6. Ex.A1 is the Office copy of legal notice dated 07.01.2009 issued to the opposite party. Ex.A2 is the reply notice dated 12.01.2009 issued to the complainant. Ex.B1 is copy of ledger account in respect of gold loan. Ex.B2 is the copy of ledger extract in respect of commercial loan availed by the complainant. Ex.B3 is the copy of Executive Petition filed by the opposite party against the complainant. Ex.B4 is proforma agreement for Hypothecation. Ex.B5 is the true copy of decree passed in O.S.No. 335/01 on the file of Principal Junior Civil Judge, Madanapalle. Ex.B6 is the true copy of the complaint in O.S.No. 335/09.


Point Nos. 1 to 3 :-

It is an admitted fact that the complainant availed two loans; 1) Gold loan of Rs. 9,000/- on 29.07.1999 and another personal loan of Rs. 25,000/- on 13.05.1999 for his business purpose. It is also an admitted fact that the complainant cleared his gold loan account and claimed return of gold ornaments but the opposite party refused to return gold ornaments since the complainant has not cleared his commercial loan availed on 13.05.1999.

The learned counsel for the complainant submits that the loan dated 13.05.1999 for Rs.25,000/- is nothing to do with the gold loan. After repayment of the gold loan, he demanded the opposite party to return gold ornaments but the opposite party refused to return the same. The bank cannot keep the gold ornaments after the gold loan account was cleared. Refusing to return gold ornaments amounts deficiency in service on the part of Bank. The Bank may be directed to return the gold ornaments.

The learned counsel for the opposite party contends that the complainant cleared the gold loan account on 10.01.2002 and demanded for return of gold ornaments. But the opposite party refused to return the gold ornaments since the complainant failed to repay another loan availed on 13.05.1999. When the opposite party bank refused to return the gold ornaments to the complainant on 10.01.2002, the complainant ought to have filed the complaint within 2 years thereafter. But the complainant filed this complaint after 6 years and the complaint is barred by time and the same may be dismissed.

I am unable to agree with the contention of the learned counsel for the opposite party. The opposite party bank admits that the complainant cleared the gold loan account on 10.01.2002 and the bank refused to return the gold ornaments to him and retained them with it. The gold ornaments are the property of the complainant. Therefore the complainant can claim the gold ornaments at any time after he discharged the gold loan U/Sec. 60 of Transfer of Property Act. The bank is not owner of the gold ornaments. According to the opposite party bank, it retained the gold jewels as it has got right of general lien U/Sec. 171 of Indian Contract Act. So, the Bank is in possession of the gold ornaments of the complainant as a security to another loan. As and when the complainant cleared another loan, the opposite party has to return the gold ornaments. Therefore the point of limitation does not arise.

Further the opposite party/ bank retained the gold ornaments of the complainant exercising the right of general lien U/Sec. 171 of the Indian Contract Act. As long as the bank holds the property of the complainant it is a continuous cause of action and the complainant has right to demand his gold jewels. Of course, the right of the opposite party bank U/Sec. 171 of Indian Contract Act is a different aspect which will be decided later on. Further the opposite party bank has not produced any document that it refused to return the gold loan. Even if such document is there it is not a starting point for limitation. Therefore the opposite party failed to establish that this complaint is barred by limitation.


The learned counsel for the complainant contends that he obtained gold loan of Rs. 9,000/- by pledging gold ornaments and cleared the loan account on 10.01.2002. When he asked the opposite party/Bank to return his gold jewels, the bank refused to return them. He further submits that he obtained another loan of Rs. 25,000/- on 13.05.1999 it is still outstanding. The loan availed on 13.05.1999 is nothing to do with the gold loan. The bank cannot retain the gold ornaments in connection with another loan account. Therefore the opposite party bank may be directed to return the gold ornaments to him.


The learned counsel for the opposite party bank contends that the bank has got right of general lien U/Sec. 171 of Indian Contract Act and can retain gold ornaments as a security to another loan amount due to the Bank by the complainant.


I agree with the contention of the learned counsel for the opposite party bank that the bank can retain the gold jewels with it as a security to another loan. In this regard I rely on the decision reported in AIR – 1999 – A.P – 367 in Sita Vs Corporation Bank, Kakinada – wherein their lordships held as follows :-

“The rule of law with regard to general liens is clearly laid down in the 171st section of the Contract Act. Bankers have such a lien on things bailed with them unless there is a contract to the contrary. It was for the plaintiff in this case to prove the existence of such contract………….It being incumbent on the plaintiff to show that the bank had agreed to give up the general lien to which by law a bank is prima facie entitled, I must say that in my opinion the plaintiff has failed in his proof”.


……..The banker’s lien contemplated by S. 171 as such is specific provision relating to banker’s lien and has an overriding effect on general provisions of S. 174 which provide for relationship of pawnee and pawnor in respect of pledged goods. The banker’s lien will carry over to such pledges and bank can retain pledged goods, if the debtor had not cleared his amount in connection with another loan.

In the above decision their lordships held that the Banker’s have such a lien on things bailed with them unless there is a contract to the contrary. Their lordships further held that the bank can retain pledged goods. Therefore the opposite party bank retained the gold ornaments to the complainant as a security to another loan and it has not committed any deficiency in service.

Points 1 to 3 are answered against the complainant.

Point No. 4 :-

In the result the complaint is dismissed.

Sri Yarlagadda Krishna Murthy (HUF), S/o Seetha Ramaiah, C/o Sri Krishna Tyres (P) Ltd., Door No.27-06-60,

Prakasam Road, Governorpet, Vijayawada – 2.
…… Complainant.

1. The Branch Manager, State Bank of India, Madurai Branch, Madurai.
2. Mr. Devasenapathi A.G.M., State Bank of India, Madurai Branch, 7A West, Veli
Street, Madurai – 625001.
3. M/s Fennar (India) Ltd., Rep: by its M.D. Sri R.C. Gupta, Madurai Melakkal Road,
Madurai.
4. Raghupathi Singhanai, Chairman of M/s Fennar (India) Ltd., Madurai Melakkal
Road, Madurai – 625016.
5. A.G.M. Regional Office, State Bank of India, Prakasam Road, Vijayawada.
…. Opposite parties.

ORDER

1. The averments of the complaint in concise are as follows:

That the complainant is holder of shares from M/s Fennar (India) Limited., since long and he is entitled for dividends and that the said Fennar (India) Limited., is/was not sending the dividends to the complainant as per the procedure so, the complainant filed C.D.838/98 and later those amounts were paid and there after also the said company adopted the same procedure and harassing the complainant so, he filed C.C.201/2007 for claiming dividends wherein M/s Fennar (India) Limited., admitted that it has to pay the dividends and those dividends were deposited in 1st opposite party branch, Madurai and that this Forum also gave finding that the complainant is entitled for the dividends there after, the complainant addressed a letter to the opposite parties and got issued legal notice, which were acknowledged by the opposite parties but of no avail hence, the complaint.

2. The 1st opposite party filed version which was adopted by the opposite parties 2 and 5, the gist of it is denial of the contents of the complaint and contended that this Forum has no territorial and pecuniary jurisdiction and that there is no cause of action and that the 5th opposite party is an unnecessary party and that the complainant intentionally added 5th opposite party and thereby the complainant played fraud against these opposite parties and on the Forum hence, the complaint is bad for mis-joinder of parties and there are no any merits to allow the complaint and that these opposite parties cannot pay the amount deposited without any order from the competent Court or Forum hence, these opposite parties has not paid the amounts lying in the bank in the name of the complainant. There is no any deficiency in service on the part of these opposite parties and prayed to dismiss the complaint with exemplary and compensatory costs.


3. The 3rd opposite party filed separate version/counter which was adopted by the 4th opposite party the essence of it is total denial of the allegations of the complaint and further averred that the opposite parties 1,2 and 5 are unnecessary parties and so the complaint is bad for mis-joinder of parties. The earlier complaints filed by the complainant vide C.Cs 201and 202 of 2007 were dismissed for lack of territorial jurisdiction and as such this complaint is not maintainable and those orders operates as Resjudicata yet to create fresh jurisdiction the complainant filed this complaint by the opposite parties supra. The 4th opposite party is an unnecessary party as he is one of the Directors. The complainant is not a consumer and so this Forum is not competent to decide the issue in dispute and that civil dispute is pending between M/s. Vikrant Tyres Limited., Vs M/s Krishna Tyres Limited., on the file of Additional Senior Civil Judge, Vijayawada vide O.S.237/1996 and that several I.As are pending in that suit and that the claim of the complainant is barred by limitation and prayed to dismiss the complaint with costs.

4. On behalf of the complainant, the complainant himself filed an affidavit and got marked Exs.A1 to A16 and on behalf of the opposite parties 1, 2 and 5 Sri M. Devasenapathi filed an affidavit and no documents are marked and Sri R. Vijayaraghavan filed an affidavit on behalf of the 3rd opposite party and got marked Exs.B1 to B4.

5. Heard the counsel for all.

6. Now the point that arises for consideration in this complaint are:

I) Whether there was deficiency in service on the part of the opposite parties 1,2 and 5?


II) Whether this Forum has no territorial and pecuniary jurisdiction?

III) Whether the complaint is barred by limitation?

IV) Whether the complaint is bad for mis-joinder of parties?

V) To what relief the complaint is entitled?



7. Point No.4: Though the learned counsel for the opposite parties 3 and 4 submitted that the opposite party No.4 is an unnecessary party to this proceedings as he was impleaded in his personal capacity and infact he is one of the directors etc., and ofcourse the same is the submissions of the learned standing counsel for the opposite parties 1,2 and 5 and in particular that the opposite party No.5 is an unnecessary party. Where as the submission of the learned counsel for the complainant is that they are necessary parties, why because, the 1st opposite party is a nationalized bank and it is doing business for gain all over the country and one of its office is situated in Vijayawada city so, the opposite party No.5 is a necessary party and further submitted that the 4th opposite party being chairman of the company so, he is also necessary party and hence they were impleaded in the proceedings for proper adjudication and infact they are proforma parties and no specific relief is asked against them in this case. In view of the rival contentions, and as could be seen from the material on hand it is a fact that the complainant has not asked any specific relief against the opposite parties 4 and 5 and that they are proforma parties being the chairman and one of the officers of the State Bank of India further the opposite parties 1 and 2 may be one and the same as contended yet, the amount is lying with them so they are necessary parties as such there is no scope to come to a conclusion that they are unnecessary parties and so, the question of misjoinder of parties does not arise and that they are necessary parties in the circumstances of the case and so this point is answered accordingly.



8. Point No.3 : It is the submission of the learned counsel for the opposite parties 3 and 4 that the complaint is barred by limitation and infact in para-19 of the counter and in the affidavit he contended that the case can be filed before District Forum within two years but failed to substantiate the same by cogent reasons further, the submission of the learned counsel for the complainant is that the cause of action continues since the payment of dividends is continuous process so the question of limitation does not arise and that the earlier C.C. was disposed off in the year 2008 wherein this Forum categorically held that the complainant is entitled for the dividends which were deposited in the 1st opposite party bank and that the opposite parties 3 and 4 reiterated that they have deposited the dividends in the name of the complainant with the 1st opposite party so, there is no scope to agitate again regarding limitation aspect.

Before considering this aspect on perusal of the material on hand it is crystal clear that the complainant filed C.C..No.201/2007 and in that the opposite parties 3 and 4 herein, were the opposite parties 1 and 2 who filed version wherein they clearly admitted that the complainant is a share holder having several shares and also admitted filing of 838/1998 and payment of amount/dividends and contended that the 3rd opposite party herein deposited the entire amounts in the name of the complainant in the 1st opposite party bank that means the amount is lying in the 1st opposite party bank to which the complainant is entitled to receive or to the said amount exclusively belongs to the complainant and none else. As such the 3rd and 4th opposite parties have no right to agitate again and again the issue that of limitation aspect and as it is there is no scope to give any priority to the submissions of the learned counsel for the opposite parties 3 and 4 and further the opposite parties 1,2 and 5 have no right to question the complainant with regard to limitation as the amount is lying with them so, it can be safely presumed that the cause of action is continuing and that the complaint is in time and accordingly this point is answered.



9. Point No.2: The contention of the learned counsel for the opposite parties 3 and 4 is that the complainant split the claim and filed the complaint to create pecuniary jurisdiction and that this Forum has already gave finding in C.C.No.201/2007 about territorial jurisdiction and that this Forum has no territorial jurisdiction and so this complaint is not maintainable and prayed to dismiss the same. Where as the submissions of the learned counsel for the complainant is that, that the complainant is not asking any relief against the opposite parties 3 and 4 and that the complainant asked relief against the opposite parties 1,2 and 5 and that the opposite parties 3 and 4 are proforma parties as such the question of territorial jurisdiction does not arise, why because, the 5th opposite party is stationed in Vijayawada city which is one of the branches of State Bank of India doing business for gain etc., so this Forum has ample jurisdiction and that the complainant approached and addressed letters to the 1st opposite party but no reply so, it creates territorial and pecuniary jurisdiction since the amount claimed is within the limits of this Forum.

In view of the rival contentions and as could be seen from the material on hand the opposite parties 3 and 4 have no right to question the jurisdiction aspect, why because, they are added as proforma parties and the main relief asked by the complainant is against the 1st opposite party only with whom the 3rd opposite party deposited the dividends that of the complainant as such the plea that of territorial or pecuniary jurisdiction taken by the opposite parties 3 and 4 has no legs to stand. Further the pecuniary jurisdiction of this Forum is Rs.20,00,000/- and the claim is below 20 laksh, so much so the opposite party No.5 is stationed in Vijayawada city even otherwise also State Bank of India is a nationalized bank and it is having branches all over India (Nook and corner) so, the question of territorial jurisdiction does not arise as per the Act, Section (d) (II) “[hires or avails of] any services for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose”.

And Section 2 (o) “service” means service of any description which is made available to potential [users and includes but not limited to, the provision of] facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both [“housing construction,”] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service; and Section 11 (2) (a) ‘A complainant shall be instituted in a District Forum within the local limits of whose jurisdiction’, “the opposite party or each of the opposite parties, where there are more then 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”.



10. In view of the above there is force in the arguments of the learned counsel for the complainant and that this Forum is not inclined to give any precedence to the pleas of the learned counsel for the opposite parties 3 and 4. That apart as already noted supra, one of the branches of opposite party No.1 is situated in Vijayawada city (Opposite Party No.5) so this Forum has territorial jurisdiction as per the Act and accordingly this point is answered.



11. Point No.1: As could be seen from the material on hand there is no dispute that the complainant is the owner of many shares and that he is entitled for dividends. The opposite parties 3 and 4 are doing business or what ever it may be and earning for that they have floated shares and collected money from the individuals (share holders) and serving them by parting with profits. As a matter of fact and in general it is said and state that the dividends has to be sent to the individuals wherever the share holders/beneficiaries resides, but here in this case it is contra, though, the opposite party No.3 fully aware of the correct address of the complainant herein and the reasons best known to it.

Further, instead of sending the dividends directly to the complainant, opposite party No.3 deposited the same with the opposite party No.1 without intimation what so ever to the complainant thereby, the 3rd opposite party washed of its hands and there after the opposite party No.1 came into picture being custodian of amount of the complainant herein so, there is clear relationship between the complainant and the opposite parties 1,2 and 5 at length. The same is evident from the pleadings and even in the earlier C.C.201/2007 wherein the 3rd opposite party as opposite party No.1 clearly admitted that it has deposited the amounts with the 1st opposite party ofcourse the reasons mentioned therein as unclaimed which is incorrect and against the principles of natural justice, why because, they know the whereabouts of the complainant yet, it is not the question to be considered, the core question is whether there was deficiency in service on the part of the 1st opposite party in particular and the opposite parties 2 and 5 at length? Since, the opposite parties 3 and 4 are only proforma parties as they have already deposited the dividends of the complainant in the bank as already noted supra.



12. For the above there is abundant and clear proof with regard to deposit of dividends in the 1st opposite party bank one such is Ex.A16 so, there is no need to consider Exs.B1 to B4 filed on behalf of the opposite parties 3 and 4 those can be considered when the dispute is in between the complainant and the 3rd and 4th opposite parties. Now there is no dispute between them as such they are (Exs.B1 to B4) almost unnecessary documents to the proceedings. Further more, the complainant after knowing that the dividends were deposited in the 1st opposite party bank he got issued legal notice (Ex.A2 office copy) to the 1st and 2nd opposite parties herein along with 3rd and 4th opposite parties and they received under Exs.A3 and A4 but no reply from the bank authorities that itself is sufficient to come to a conclusion that there is clear deficiency in service on the part of the 1st opposite party much less on the 2nd opposite party.

Though, the counsel on behalf of the opposite parties 1, 2 and 5 contended that the complainant is not entitled to receive the dividends etc., basing on the evidence in C.C.201/2007 which is not correct, why because, in that order the finding of this Forum is that, that the complainant is entitled for the dividends as he is legally entitled to so, the complainant is entitled for the dividends/amount and that the amount is lying with the 1st opposite party so, it is the duty of the 1st opposite party to pay the amounts to the complainant on receipt of letters or atleast after receipt of legal notice but the 1st opposite party kept mum, which amounts to deficiency in service or to say that it had adopted to unfair trade practice. Further, the averments of the legal notice are so clear that the complainant addressed letters on 12.07.2008 and on 27.03.2008 and even inspite of repeated demands and telephone calls the 1st opposite party failed to answer and finally the complainant also asked for compliance and also averred his intention to approach proper Forum yet no reply/response.

The other aspect raised by the counsel for the 3rd and 4th opposite parties with regard to civil dispute is nothing to do with the present proceedings since, the civil dispute is between M/s Vikrant Tyres Limited, Vijayawada and M/s Krishna Tyres so that the suit is not a hurdle and no proof also filed about the pendency or otherwise attachment etc., so, no need to give any precedence to that plea. That apart, the letter addressed by the complainant is unanswered or unattended by the 1st opposite party and the proof filed by the complainant vide Ex.A10 and A11 etc., clinchingly show that the complainant is demanding payment from the 1st opposite party and that the 1st opposite party also sent a letter with balance and the contents of it also clear that the amount was deposited in the name of the complainant herein so, undisputedly the amount belongs to the complainant as such the complainant is entitled for the same, since the 1st opposite party failed to send the same on the request of the complainant means it amounts to deficiency in service. Further more, the reply statement/version is nothing but adoption of the version of the opposite parties 3 and 4 which is not correct by the 1st opposite party, why because, it bells that of sailing with the opposite parties 3 and 4 and gives suspicion/bonafidies/independency of opposite party No.1 even otherwise also in the affidavit Sri M. Devasenapathi categorically admitted in para-6 page-3 “we are maintaining the dividend account in the name of the 3rd opposite party company” which is contra.

In view of Ex.A16 further averments of the affidavit discloses unless there is written mandatory we cannot make any payment either to the complainant or to any other person muchless there should be an order from a competent court or Forum enabling us to debit the amount to 3rd opposite party and make payment in the absence of such order or mandatory, we cannot act upon and comply with the demands of the complainant which are also not correct in the light of recitals in Ex.A16 wherein it is categorically noted name of Y. Krishna Murthy the complainant herein so, no need to give any priority to the version/affidavit of the 1st opposite party. So, no need to discuss at length in the circumstances of the case and on the whole the complainant has proved deficiency in service on the part of the 1st opposite party in particular and the 2nd opposite party at length and so, the complainant is entitled for the relief and accordingly this point is answered.


13 Point No.5: In the result the complaint is allowed and the opposite parties 1 and 2 (Jointly and severally) are directed to pay Rs.9,64,000/- (Rupees nine lakhs and sixty four thousand) only (the dividends deposited with it) to the complainant with interest at 9% p.a., from the date of its deposit till the date of payment and do pay Rs.2,000/- (Rupees two thousand) only towards costs. Complaint against opposite parties 3 and 4 is dismissed but no costs. Since no specific relief is clamed against the 5th opposite party no need to grant any relief against 5th opposite party. Rest of the claim if any claimed by the complainant is rejected. Time for compliance one month.

Ajith Kumar.S., Manoj Bhavan, Madhavapuram, Titanium ` P.O., Thiruvananthapuram-21. Now residing at Vaishnavam, Manikanteswaram-P.O., Kuzhivila, Vettikonam, Vazhayila, Thiruvananthapuram.

Opposite parties:
1.

The Manager, SBI CPSL, P.O.Bag No.24, GPO, New Delhi-110 001.
2.

The Manager, SBI Cards, T.C.14/2132, Behind Saphalyam Complex, Near Jubilee Hospital, Thiruvananthapuram-34.

ORDER

The complainant is Ajith Kumar.S and his grievance against the opposite parties are the following: The complainant had availed credit card facility from SBI cards and the said credit card was issued by the opposite parties to the complainant on 22/7/2004 vide credit card No.4006676014662129. Eventhough the complainant promptly paid the outstanding amount, the opposite parties were reluctant to issue statement showing the balance amount due to them, the complainant contacted the opposite parties several times to provide the statement of account to the complainant, but the opposite parties did not provide the same.

Due to the inaction and non-co-operation attitude adopted by the opposite parties, the complainant decided to close the credit card account. As and when the complainant contacted the opposite parties to close the said account, the opposite parties informed the complainant that he has to pay late fee of Rs.3,400/- to the opposite parties. Accordingly, the complainant remitted the above said amount by way of cheque bearing No.189528 to the opposite parties. The said cheque was collected by the opposite parties on 13/9/2005. Even after that the opposite parties never cared to close the credit card account of the complainant. The opposite parties illegally realized Rs.31,000/- from the complainant on different occasions and the opposite parties failed to close the credit card account. Hence this complaint for refund of the amount excessively collected from the complainant along with compensation and costs.

2. The 2nd opposite party has filed their version for and on behalf of the 1st opposite party also contending as following: On 16/8/2005, the complainant had an outstanding dues of Rs.35,215/-. Against this amount the complainant had paid only the minimum amount due ie. Rs.3,400/- on 13/9/2005, that on the next billing date ie.on 16/9/2005, the outstanding due was Rs.33,383.94/-, the complainant has not paid any amount. The complainant made a total payment of Rs.27,000/- by way of two cheques dated 22/10/2005 & 7/11/2005 (Rs.25,000/- & Rs.2,000/- each) as against the total outstanding dues of Rs.32,721.07 as on 16/10/2005, that the balance amount due was Rs.6,065/- as on 16/11/2005. While so, the opposite parties offered Rs.12,000/- as 'Easy Money', that this amount was declined by the complainant and he did not encash and the same was returned.

Hence the same amount is revised on 18/1/2006 and the balance amount due was Rs.5,399.22 as on 16/1/2006. The complainant has not made any payment till 16/4/2006. So the total outstanding was Rs.6,932.22 as on 16/4/2006. Against this outstanding dues the complainant made a payment of Rs.2,700/- on 25/4/2006 and the balance due was Rs.4,397.65/-. The complainant did not make any payment after 25/4/2006. Now the total outstanding amount as on 16/3/2007 is Rs.8,657.33 including all the financial changes due to the non-payment. The opposite parties had never agreed to write off the dues, that the 2nd opposite party had never agreed the complainant that on paying Rs.2,000/- the credit card account will be closed.

The complainant had defaulted the payments in time and as on 16/3/2007 Rs.8,647.33 is still due from the complainant. The credit card account can be closed only when he remits the full balance amount due with other financial charges as on the date of payment. There is no deficiency in service or unfair trade practice on the part of the opposite parties. As and when he pays off the dues with interest and other financial changes, then only the opposite parties will close his credit card facility and issue the final settlement letter. The opposite parties are entitled to receive the amount legally due from the complainant. Hence opposite parties pray for dismissal of the complaint.


3. The complainant has filed affidavit in lieu of chief examination and marked Exts.P1 to P5. The complainant has not been cross examined and hence his affidavit stands unchallenged. The opposite parties have neither filed any affidavit in support of their contention nor filed any documents.

4. The points that would arise for consideration are:

1.

Whether the complainant is liable to pay the amount claimed by the opposite parties?
2.

Whether there is any unfair trade practice or deficiency in service on the part of the opposite parties?
3.

Reliefs and costs?

5. Points (i) to (iii) : There is no dispute with regard to the fact that the complainant is the holder of credit card bearing No.400667601 4662129 issued by the opposite parties. According to the complainant, even after the clearing of entire dues, the opposite parties failed to close the credit card account and besides this the opposite parties have realized excess amount from the complainant on different occassions. The opposite parties contend in their version that it was the complainant who had defaulted the payments in time and as and when the complainant pays off the dues with interest, the opposite parties will close the credit card facility. The complainant, in support of his complaint, has produced documents Exts.P1 to P5. The complainant as PW1 has not been cross examined and hence his sworn statement stands uncontroverted.

As per Ext.P3 dated 10/9/2005 and Ext.P2 dated 19/10/2005, it is evident that the complainant has paid an amount of Rs.3,400/- and Rs.25,000/- respectively to the opposite parties. The complainant alleges that the payment of said amount was towards full and final settlement of the outstanding balance due in the said account and the complainant had thereafter requested for closure of the said account by the opposite parties, which is revealed by Exts.P4 & P5. In the receipt dated 21/4/2006 issued by the opposite parties for Rs.2,700/- it has been endorsed that 'Full settlement 0 balance'. This document has not been challenged by the opposite parties. Opposite parties have not produced any documents to support their contention though they have contended in their version that the monthly statements are produced.

The opposite parties have contended in their version that the total outstanding amount as on 16/3/2007 is Rs.8657.33 including all the due financial charges. But the opposite parties have not produced any records to substantiate the same. As the opposite parties have not produced any documents and since the opposite parties have not challenged the documents produced by the complainant, we are of the view that the allegations levelled against the opposite parties are true. Having received the entire amount from the complainant and after issuing Ext.P1, the opposite parties were duty bound to cancel the credit card of the complainant.

6. On the basis of documents and affidavit on record, we find that the opposite parties are guilty of deficiency in service and unfair trade practice.

In the result, the complaint is allowed and the complainant is found not liable to remit any further amounts to the opposite parties. The opposite parties shall stop such unfair trade practice and shall close the account of the complainant with immediate effect. The opposite parties shall also pay Rs.3,000/- (Rupees three thousand only) as compensation and Rs.2,000/- (Rupees two thousand only) as costs to the complainant within a period of one month of receipt of the order, failing which the above amount shall carry interest @ 12%.

Smt. Jaisheela W/o Sahdevappa Raipalli,

Age: 46 years, Occ: Head Mistress

Working at Govt. Practicing High School,

Resident of H.No.50, Gampa Layout,

Shahabad Road, Post: Rajapur,

Gulbarga-5.

// Versus //

OPPONENT:- 1) The Branch Manager,

State Bank of India,

Station Bazar Branch,

M.S.K. Mill Road,

Opp. Govt. Printing Press,

Gulbarga.

2) The Chief Manager,

State Bank of India,

Super Market Main Branch,

GULBARGA.


3) The General Manager,

State Bank of India,

St. Marks Road,

BANGALORE.

: : O R D E R : :

1. This complaint is filed by Smt. Jaisheela W/o Sahdevappa Raipalli, R/o Gulbarga against O.Ps. u/s.12 of Consumer Protection Act 1986 praying that, direction may be given to O.Ps. to pay compensation of Rs.23,500/- in the interest of justice.

2. The brief facts of the case of the complainant are as under;

Complainant is customer of O.P.No.1 having S.B. A/c.No.10215087860, accordingly O.P.No.1 has issued ATM card brg.No. 6220180786400015511 in the name of complainant. It is submitted that, Complainant is Govt. Servant working as Head mistress at Govt. Practicing High School at Gulbarga and she is respectable women in the society and she is getting handsome salary from Karnataka State Govt. since the date of opening of S.B. Account in the O.P.No.1 bank, the same account is operating by complainant regularly and complainant withdrawing amount from the S.B. Account by using ATM card issued by O.P.No.1 bank.

It is submitted that, complainant has withdrawn a sum of Rs.100/- on 10.6.2008 at 18.04 hours by using ATM card through ATM machine which is installed by the O.Ps. After withdrawn of Rs.100/-, the ATM machine has delivered a printed report showing that available balance of Rs.8,538.21/- in the S.B. Account of the complainant and immediately at 18.06 hours complainant has verified balance enquiry of her account by using ATM card, the ATM machine of O.Ps. has shown available balance of Rs.3,928.21/- and subsequently at 18.07 hours complainant operated one more operation of the same ATM machine, and verified the available balance of her account, the ATM machine of O.Ps. has shown a balance of Rs.8,538.21/- obviously. The aforesaid three operation operated by the complainant are demonstrating that the ATM machine of the O.Ps. have shown distinguish statement of S.B. Account of complainant.

It is submitted that, complainant has operated her ATM card on 16.5.2008 at 15.23 hours under ATM ID. SIAN00330401 through ATM card No.6220180786400015511 and withdrawn a sum of Rs.5000/- from the S.B. Account No.10215087860 as soon as withdrawal is completed the ATM machine of the O.Ps. has delivered the printed statement of account as a customer advise dated 16.5.2008 has shown the available balance of Rs.9,173.21/- when the said withdrawal has made by the complainant. The credit balance of complainant S.B. Account was Rs.14,173.21/-. It is submitted that as mentioned above, complainant drawn Rs.5,000/- and after withdrawal the available balance was Rs.9,173.21/- at 15.23 hours. Subsequently at 15.24 hours, complainant inserted her ATM card in the ATM machine of the O.Ps. and operated the machine for withdrawal of Rs.4,000/- operation completed, complainant waiting for amount which has to come out from the machine as command given by the complainant, but suddenly electricity power of the ATM machine has cut off, withdrawn amount Rs.4,000/- has not come out from the ATM machine, immediately complainant has informed to the helpline phone number 08026599990 of the ATM machine concerned through her mobile No.9886302446.

The helpline officer advised to the complainant to wait till power would come back, after few minutes power has come back but ATM machine not delivered Rs.4,000/- and also the machine not delivered print out of the customer advise of the function operated by the complainant immediate after 15.23 hours. It is submitted that as mentioned above, complainant verified the balance of her S.B. Account through the ATM machine by way of putting the ATM card in the machine, complainant operated the ATM machine to verify the balance of her S.B. Account, accordingly the ATM machine has given printed report as customer advise at 15.45 hours with ATM ID SIAN20022301 and shown available balance of Rs.5,173.21/-. Immediately complainant informed the above said incident to the helpline contact of ATM machine and given written complaint to SBI Station Bazar as well as Super Market Branch Gulbarga. But O.Ps. not responded properly and acted negligently and deficiently. It is submitted that, on 23.5.2008 at 12.59 hours, complainant operated ATM card by way putting inside the machine and withdrawal a sum of Rs.4,000/- under ATM ID SIAN00330402 through ATM card No.6220180786400015511 from the S.B. Account of complainant, the ATM machine shown available balance of Rs.1,173.21/- through customer advise after withdrawal of Rs.4,000/- on 23.5.2008. It is submitted that in view of the aforesaid withdrawal and balance inquiry made by the complainant pertaining to her Saving Bank Account, the ATM machine has given distinguish statements and wrong statements.


It is submitted that the ATM machines are not working properly and O.Ps. have installed defective machines. It is submitted that, when ATM machine of the O.Ps. not delivered the printed customer advise of the operation made by complainant on 16.5.2008 at 15.24 hours, neither machine delivered amount nor delivered the printed matter, under such circumstances, O.Ps. have confirmed the withdrawal which has failed on 16.5.2008 at 15.24 hours, the withdrawal which was not completed on 16.5.2008 made by complainant is falsely confirmed by O.Ps. which is deceptive practice, it amounts to deficiency of service. It is submitted that, due to deficient and negligent act of O.Ps., complainant has suffered and sustained the following loss which are given below;

1) Rs.10,000/- -- Loss of benefit of scheme.

2) Rs.10,000/- -- Mental agony

3) Rs.3,500/- -- stationary, phone bill, petrol cost of proceeding.

Complainant has issued legal notice on 4.7.2008. But O.Ps. have not replied to the said notice. Thus, there is a deficiency of service on the part of O.Ps. It is submitted that, the above facts constitute the cause of action. This Hon’ble Forum have got jurisdiction to entertain the complaint. Under these circumstances, it is submitted that, complaint may be allowed and direction may be given to O.Ps. as prayed in the complaint.

3. After registering the case, notices were issued to O.Ps After serving the notices, O.Ps. appeared through counsel and filed Written Statement contending that, it is true that, complainant is the customer of O.P.No.1 bank. It is also true that, complainant is having S.B. Account brg.No.10215087860. Further it is also true that, the ATM card brg.No.6220180786400015511 was issued to complainant. It is true that, complainant might have used the S.B. Account as well as ATM card for operation of withdrawal or deposit of the amount. In reply to para No.5 & 6 of complaint, complainant is free to operate the ATM machine any time towards withdrawal of amount.

Hence as and when the complainant used the ATM machine, the transaction are entered in the S.B. Pass Book and further the complainant is at liberty to seek the balance confirmation by way of obtaining the statement of account from the concerned bank. Hence all allegations made in the said para are all denied specifically for want of knowledge. In reply to para No.7 of complaint, it is true that, complainant operated the ATM machine and has withdrawn Rs.4,000/-, but it is specifically denied that, the amount has not come out from the ATM machine. The said transaction was completed and the complainant has withdrawn the amount of Rs.4,000/- on 16.5.2008 and the balance amount shown of Rs.5,173.21ps is as per amount held by the complainant in her account, after the transaction made by the complainant with the ATM machine. In reply to para No.8, 9, 10 and 11 of complaint, the ATM machine is installed to help the customer of the Bank for easy transaction of money.

As such as and when the customer of the Bank makes any transaction, after the transaction, the information is provided by the machine by way of small slip giving the status of the account after the transaction. The entire process after the transaction is just to provide the information to the customer. The customer further can verify the small slip with the S.B. Account Pass Book or even by obtaining the statement of account certified by the Branch Manager. In this case also, complainant as and when transacted with the ATM machine, he was informed his status of account by way of small slip issued by the ATM machine on preliminary information, the complainant had every right to approach the Branch Manager to obtain the statement of account and update the pass book for further clarification. Hence, the other contents of the said paras and allegations are false and baseless, hence denied.

In reply to para No.12, 13 & 14 of complaint, it is false to say that, complainant requested to pay the amount of Rs.4,000/-. It is further false to say that, the ATM machine has failed to deliver the money of Rs.4,000/-, the Bank has ample proof to show that the machine has delivered the amount to complainant in the same transaction. Hence there is no defect in the machine nor there is any deficiency of service on the part of O.P. Bank. There is no cause of action. Under these circumstances, it is submitted that, complaint may be dismissed with costs.

4. To prove the claim of complainant, herself was filed affidavit by way of evidence who examined as PW-1, documents got marked Exh.P-1 to P-18 O.Ps. also filed affidavit by way of cross of PW-1. Complainant side evidence closed. O.Ps. also filed affidavit by way of evidence, who examined as RW-1, document got marked Exh.R-1. Complainant also filed affidavit by way of cross of RW-1. O.Ps. side evidence closed.

5. Heard the arguments from both sides.

6. The points that arises for our consideration are;

(1) Whether there is a deficiency of service on the part of O.Ps?

(2) What Order?

7. Our answer to the above points are as under:-

(1) Yes.
(2) As per final order for the following;

: : R E A S O N S : :

8. Point No:1 :

We have carefully perused the evidence of complainant, affidavit and documents. Complainant case is that, she is customer of O.P.No.1 having S.B. A/c.No.10215087860, accordingly O.P.No.1 issued ATM card brg.No. 6220180786400015511 in the name of complainant. Further she stated in the complaint that, on 16.5.2008 at 15.24 hours, she inserted her ATM card in the ATM machine belonging to O.Ps. and operated the machine for withdrawal of Rs.4,000/-, operation completed, complainant waiting for amount which has to come out from the machine as command given by the complainant, but suddenly electricity power of the ATM machine has cut off, withdrawn amount Rs.4,000/- has not come out from the ATM machine, immediately she informed to the helpline phone number 08026599990 of the ATM machine concerned through her mobile No.9886302446.

The helpline officer advised to the complainant to wait till power would come back, after few minutes power has come back but ATM machine not delivered Rs.4,000/- and also the machine not delivered print out of the customer advise of the function operated by the complainant immediate after 15.23 hours. She further stated in the complaint that, she verified the balance of her S.B. Account through the ATM machine by way of putting the ATM card in the machine, complainant operated the ATM machine to verify the balance of her S.B. Account, accordingly the ATM machine has given printed report as customer advise at 15.45 hours with ATM ID SIAN20022301 and shown available balance of Rs.5,173.21/-. Immediately complainant informed the above said incident to the helpline contact of ATM machine and given written complaint to SBI Station Bazar as well as Super Market Branch Gulbarga. But O.Ps. not responded properly and acted negligently and deficiently.

Further she deposed in her complaint that, ATM machines are not working properly and O.Ps. have installed defective machines. Hence, there is a deficiency of service on the part of O.Ps. She was examined as PW-1, got marked documents Exh.P-1 to P-18 they are Exh.P-1 to P-3, P-7 to P-9 are ATM Customer Advise of SBI, Exh.P-4 is Request details issued by SBI Group Service Desk on 29.5.2008, Exh..P-5 is letter issued by complainant in favour of O.P.No.2, Exh.P-6 is letter issued by O.P.No.2 in favour of O.P.No.1, Exh.P-10 is statement of account which was issued by O.P.No.1 bank, Exh.P-11 is itemized calls report issued by Vodafone, Exh.P-12 is legal notice which was issued by complainant in favour of O.Ps., Exh.P-13 to P-15 are postal acknowledgements, Exh.P-16 to P-18 are RPAD cards. We also perused the affidavit of O.Ps. who deposed in their evidence that, they admitted that, complainant is the customer of O.P.No.1 bank vide S.B. Account brg.No.10215087860 & the ATM card brg.No.6220180786400015511 was issued to complainant.

It is also admitted by O.Ps. that, complainant operated the ATM machine and has withdrawn Rs.4,000/-, but they denied that, the amount has not come out from the ATM machine. The said transaction was completed and complainant has withdrawn the amount of Rs.4,000/- on 16.5.2008 and the balance amount was also shown of Rs.5,173.21ps is as per amount held by the complainant in her account, after the transaction made by the complainant with the ATM machine. They also examined as RW-1 document got marked Exh.R-1. On going through the document Exh.R-1 which is statement of account wherein it was mentioned that, Rs.4,000/- was debited from the account of complainant. The case of complainant is that, she inserted the ATM card in the machine and tried to withdraw Rs.4,000/-, operation completed, but amount has not come out.

This fact is not proved by the O.Ps. Mere filing of the statement of account that, complainant has taken Rs.4,000/- by operating the ATM machine, it will not be considered. But case of complainant is that, she operated the ATM machine, meanwhile the current failed, amount not come out from the ATM machine. In this case, O.Ps. also not proved that, complainant has taken the amount. Without adducing cogent and convince evidence this aspect cannot be considered. On gong through the facts and circumstances of this case, if we award Rs.10,000/- it will meets ends of justice. On going through the evidence of complainant, affidavit and documents, in our considered opinion, there is a deficiency of service on the part of O.Ps., accordingly we answered this point in affirmative.

9. Point No.2 :

In view of the discussions made on point No.1, we also answered this point in affirmative. Hence we proceed to pass the following;

: : O R D E R : :

Complaint is partly allowed. Complainant is entitled to recover a sum of Rs.10,000/- with interest @ 6% per annum from the date of filing of this complaint, till the date of realization from O.Ps. Further complainant is entitled to recover a sum of Rs.1,000/- towards mental agony and cost of this proceedings from O.Ps.

V.Subramanya,

S/o Venkatachalapathy,

Aged about 56 yrs,

Residing at No.240,

Venkatapura Teacher’s Colony,

Bangalore – 560 034.

…. Complainant.

V/s


The Manager,

State Bank of India,

ISRO Branch,

Airport Road,

Vimaanapura,

Bangalore – 560 017.

…. Opposite Party

-: ORDER:-

This complaint is for a direction to the Opposite Party to return the original documents of title and to pay compensation of Rs.5,00,000/- (Rs.Five Lakhs Only) towards deficiency of service, mental agony and hardship caused to the complainant.

2. The case of the complainant is as under:-

The complainant had availed loan of Rs.2,50,000/- from the Opposite Party by creating equitable mortgage in respect of the house property bearing No.240, Kendriya Upadhyara Sangha, Jakkur, Bangalore and had furnished the sale deed, Katha, approved plan and estimate to the Opposite Party. He cleared the loan with interest in the month of June-2003. As such it is the duty of the Opposite Party to return the documents furnished at the time of availing the loan.

In spite of repeated demands and requests, the Opposite Party failed to return the documents. When the original documents of title are not available, the value of the property is going to be depreciated. The intending purchasers are likely to suspect the title of the property. In such event, the complainant has to face severe consequences for no fault on his part. He wrote the letter dated 14/11/2008 requesting the Opposite Party to return the documents as he has cleared the entire loan. In spite of receipt of the letter, the Opposite Party did not turn-up to return the documents. He also issued legal notice dated 24/11/2008 calling upon the Opposite Party to return the documents, but the Opposite Party neither returned the documents nor gave any reply to the notice. Hence, the complaint.

3. In the version, the contention of the Opposite Party is as under:-

The complainant had availed the loan of Rs.2,50,000/- from the Opposite Party Bank agreeing to re-pay the same in monthly equated installments by creating equitable mortgage by depositing original title deeds such as sale deed, Katha, approved plan and estimation in respect of the property bearing No.240, Kendriya Upadhyara Sangha, Jakkur, Bangalore. The complainant cleared the loan on 09/06/2008 and the Bank has issued clearance certificate. But the original title deeds in respect of the said property were misplaced and are not available immediately to hand over the same to the complainant in spite of due diligence of the Bank. The Bank requested the complainant to grant some more time to trace the original documents.

In order to show its diligence, the Bank has also obtained certified copies of the documents from the Competent Authority and the same is kept ready to hand over to the complainant. But the complainant did not turn-up to collect the same and has approached this Forum with intention to make un-lawful gain. As such there is no deficiency of service on the part of the Opposite Party. The complainant is well aware that the Bank is doing its best with due diligence to search and trace the original documents. There is no basis for claiming damages from the Bank as the complainant has not suffered any loss. The complainant has not made out a prima-facie case against the Opposite Party. Hence, the complaint is liable to be dismissed.

4. In support of the respective contentions both parties have filed affidavits and have produced copies of documents. We have heard the arguments on both side.

5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings are:-

Point No.1 : In the Affirmative

Point No.2 : as per final order, for

the following:-
-:REASONS:-

7. There is no dispute that the complainant had availed loan of Rs.2,50,000/- by the Opposite Party Bank by creating equitable mortgage by deposit of title deeds in respect of the immovable property described in the complaint. It is also not in dispute that the complainant has cleared the entire loan due to the Bank. The complainant claims to have cleared the loan in June-2003 whereas the Opposite Party has stated that the complainant cleared the loan on 09/06/2008. However, the fact remains that long prior to the date of the complaint, the complainant had cleared the entire amount due to the Bank. When once the loan is cleared, the Bank is bound to return the original documents of title pertaining to the property deposited with it by the borrower. Alleging non return of the documents, the complaint is filed on 21/02/2009 about eight months after clearing the loan. It is the contention of the Opposite Party that the documents deposited by the complainant are misplaced and the same are not yet traced.

It cannot be believed that in spite of best efforts, the Bank is unable to trace the documents for nearly eight months from the date of clearing the loan on 09/06/2008. it is further contended by the Opposite Party that it has obtained the certified copies of the documents, but the complainant failed to collect the same. The certified copies of the document cannot replace the original. In case of loss of original documents, there is possibility of depreciation in the value of the property in case the complainant intends to dispose of the same. However, it is not the case of the complainant that he is intending to dispose of the property. It appears in the first instance, the complainant had availed housing loan from the Department and when he intended to raise loan with the Opposite Party by creating second mortgage over the same property, the concerned Department forwarded the documents of title to the Bank through letter dated 10/11/1999 requesting the Bank not to part with the said documents with anybody.

After the complainant cleared the Department loan also, the concerned Department addressed the letter dated 11/03/2008 requesting the Bank to hand over the documents of title to the complainant directly, stating that the complainant has cleared the housing advance raised with them. Therefore, admittedly the complainant has cleared the housing loan availed from the Department as well as the loan availed from the Opposite Party Bank. When once the loan is cleared it is the duty of the Opposite Party to return the documents of title to the complainant. The failure on the Opposite Party Bank for more than eight months from the date of clearing the loan amounts to deficiency in service. In similar circumstances, in the decision reported in IV (2005) CPJ 137 in the case of C.L.KHANNA VSS. DENA BANK , the Hon’ble National Commission directed the Bank to publish an advertisement in the newspaper with regard to the loss of title deed and to pay compensation of Rs.1,00,000/- to the complainant for deficiency in service.

The Hon’ble National Commission has also observed that it would not be difficult to sell the property in a case of loss of registered gift deed if proper advertisement is given by the Bank that the original gift deed is lost and that the property is free from any encumbrances. In the case on hand it is not the contention of the Opposite Party that the original documents of title deposited by the complainant are lost. It is only contended that the documents are misplaced and the Bank is making diligent efforts to trace the same. In these circumstances, in our opinion it is necessary to grant some more time to the Opposite Party Bank to trace and hand over the original documents of title to the complainant and in case the documents are not traced, issue public notice regarding the loss of the documents of title and to furnish certified copies to the complainant. Considering the facts and circumstances of the case we also deem it proper to grant compensation of Rs.20,000/- to the complainant on account of deficiency in service on the part of the Opposite Party. In the result, we pass the following:-

-:ORDER:-

1. The complaint is allowed.

2. Within four months from the date of this order, the Opposite Party shall trace the original documents of title deposited by the complainant and return the same to the complainant. If the documents are not traced within four months, it shall issue public notice regarding loss of documents making it clear that the property in question is not encumbered in any manner and hand over the certified copies of the documents to the complainant. The Opposite Party shall also pay compensation of Rs.20,000/- to the complainant.

P. Vijaya Kumar,

S/o. R. Padmanaban.

No.6, Jothi Raman Avenue, 2/194, Complainant

Shanmugam Nagar Extn.

Mannivakkam, Chennai-48.



Vs



1. The Branch Manager,

State Bank of India,

Ashok Nagar Branch,

Chennai – 600 083. Opposite Parties



2. The Regional Manager,

Regional Offie,

State Bank of India,

Parrys Corner,

Chennai – 600 001.

ORDER


The complainant is a savings Bank account holder of the 1st opposite party bank. He deposited a cheque in the 1st opposite party bank on 21.04.2006 for an amount of Rs.50,000/- dated 24.01.2006. But, after a week, the complainant found that the amount has not been credited to the complainant’s account. When contacted the 1st opposite party informed that the cheque was sent for collection to the complainant’s Provident Fund office, Ludiana, and it will be credited soon.

But, even after two months, the cheque was not cleared. The 1st opposite party informed the complainant by letter dated 02.06.2006 that the chdeqe was lost in transit. When contacted the Provident Fund Commissioner, the complainant was asked to file indemnity bond. Accordingly, the complainant filed indemnity bond but the amount was not credited in his account. Hence, the opposite parties committed deficiency in service. Therefore, the complainant has filed this complaint for recovery of Rs.50,000/- being the provident fund amount of the complainant and also payments of compensation of Rs.2,00,000/- by both the opposite parties for mental agony and Rs.10,000/- as cost of the complaint.

2. The first opposite party filed version which was adopted by the 2nd opposite party. The main averments of the version are briefly as follows: The cheque deposited by the complainant for Rs.50,000/- on 24.01.2006 was sent for collection by UAF Courier. But the Courier has lost the cheque in transit. The loss was not due to negligence of the opposite party. The Provident Fund office at Ludhiana was contacted and also obtained indemnity bond from the complainant. On receipt of payment from Ludhiana Branch, the amount was credited. They had also offered interest for delayed payment. The 2nd opposite party is an unnecessary party. Hence, there is no deficiency in service on the part of the opposite party.

3. Proof Affidavits have been filed by both the complainant and the opposite party. Exhibits A1 to A15 were marked on the side of the complainant. Exhibits B1 to B7 were marked on the side of the opposite parties.

4. The points that arise for consideration are as follows:

1) Whether there is any deficiency in service on the

part of the opposite party.

2) To what relief the complainant is entitled to?

5. Point No.1: It is the case of the complainant that he had deposited the Provident Fund amount by way of cheque of Rs.50,000/- with the opposite party bank for collection on 24.01.2006. But it was not credited in his account till 09.03.2006. When contacted he was informed by the 1st opposite party that the cheque was lost in transit when it was sent through courier service.

6. The opposite party would submit that the cheque was lost in transit when it was sent through courier service. They would further submit that they offered interest for the delayed period. The complainant had also submitted indemnity bond to the provident Fund Commissioner by way of duplicate cheque. The amount of Rs.50,000/-was credited into the complainant’s account after a long delay of six months and this act of the opposite party amounts to deficiency in service.

7. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay Rs.50,000/- as compensation for mental agony and Rs.10,000/- as cost of the complaint to the complainant within six weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

Dictated by the President to the Steno-Typist, taken down and computerized by him, corrected by the President and pronounced by is in the Open Forum, on this the 9th day of June 2009.

Sardar Swarn Singh S/o late Hari Singh

R/0 10/10 Sunday Bazar, P.O.-Sunday Bazar,

Dist.- Bokaro.

Versus

The Branch Manager, State Bank of India

Bokaro Colliery, Sunday Bazar, Bokaro.


-: Judgment:-

The Complainant has filed this case against the opposite Party to credit/refund of Rs. 13000/- deducted from the saving Bank Account No. 11471757520 of the complainant with 12% interest since January, 2009 till the date of payment besides Rs. 5000/- compensation for mental and physical agony.

2 Brief fact of the case is that the complainant is a permanent employee of Khash Mahal Project and has a saving Bank Account No. 11471757520 in the SBI (Opposite party). The monthly salary of the complainant also being sent to the opposite party by his employers. On 19.01.2009 the complainant sent to the opposite party for up dating of his Pass Book and noticed that Rs. 8000/- and RS.5000/- respectively were debited. From his account in the Colum of his Passbook/ATM OD 10.03.2008 was mentioned and Rs. 13000- was shown in the column of amount withdrawn. The complainant immediately met to the staff concern and the branch Manager who told him that the said amount were withdrawn by the complainant on 10.03.2008 which was not recorded in the ATM machine and therefore that amount was deducted on 19.01.2009 by the opposite party.

On 10.03.208 the complainant had Rs. 53281.02 in his said account and out of said amount, the opposite party debited Rs. 7000/- towards personal loan and complainant withdrawn Rs. 45000/- on same date. After withdrawal of same amount there was Rs. 1281.02 left only and therefore, the allegation of withdrawn of Rs. 13000/- by the complainant is false and baseless and wrong. The complainant sent a legal notice on 31.01.2009 to the opposite party who, through their lawyer replied that the allegation of complainant was not correct and annexed the Xerox copy of transaction dated 10.03.2008, by the complainant. From perusal of said Xerox copy it appeared that there was no similarity in the statement of account, entry in the passbook and the statement sent by the lawyer of the opposite party. The complainant has mentioned the transaction which would be made on 10.03.2008 by the complainant at the foot of this complaint. According to entry in the Passbook and statement in account Rs. 1000/- is the last withdrawal by the complainant but as per documents of the opposite party said amount is the first withdrawal.

Due to Mechanical defect of number of entries are wrongly reported by the ATM Machine which results in undue harassment and agony to its customer. The complainant had not withdrawn the said amount and alleged withdrawal has wrongly been recorded by the ATM Machine. Thus under the aforesaid circumstances the opposite party is not only liable to credit of Rs. 13000/- with interest in the account of complainant but also compensation for losses caused to him. The cause of action arose on 19.01.2009 when the opposite party debited Rs. 13000/- from the account of the complainant. There is deficiency on the part of the opposite party and the opposite party is liable to pay the aforesaid amount together with compensation to the complainant.

3 Upon issuance of notice, the opposite party appeared and filed written statement. It is submitted on the basis of the complainant that on 10.03.2008 the complainant withdrawn a sum of Rs. 5000/- and Rs. 8000/- through ATM but due to mechanical error the machine did not debit the account though it has disbursed the amount as per report of ATM Switch Centre. Some time cash is disbursed by the ATM but customer’s account is not debited and it can be noticed through No. 98581 and sometimes cash is not disbursed by the ATM but customer’s account is debited and it can be noticed through No. 98582. On thorough scrutiny of the account of the complainant it was detected that out of these 2 transactions a sum of Rs. 13000/- has been withdrawn by the complainant through ATM which has not been debited, as such the opposite party Bank was lawfully entitled to debited the account and it has rightly debited the same on 19.01.2009.

The further submission of the opposite party is that in order to take undue advantage of mechanical error of ATM of not debiting the withdrawn amount of Rs. 13000/-, the complainant might have siphoned off the account by subsequent withdrawals as is alleged in paragraph 5 of the complaint petition and this further transaction can in no way justify dishonest statements of the complainant. The opposite party Bank has not committed any deficiency in rendering service and the complainant has not got valid cause of action because the real fact was dully intimated to the complainant as he himself admitted in paragraph 4 of complaint petition. Under the above fact and circumstances, the complaint petition having no merit and is liable to be dismissed with cost in favour of the opposite party.

4 Heard both the parties. On perusal of the entire case records and documents filed on behalf of the parties, it is observed that complainant had withdrawn a sum of Rs. 8000/- as Rs. 5000/- on 10.03.2008 through ATM operation. Though the above sums were disbursed as per the ATM Switch Centre, the same could not be debited in the complainant’s account due to certain error in the ATM Machine. Finally the amount of Rs. 13000/- (Rs.8000/- + Rs.5000/-) was debited in the account of the complainant on 19.01.2009. In view of the above we find no error committed by the opposite party Bank. We, therefore, do not hold the opposite party negligent and deficient towards the complainant and hence it is not held liable to pay any relief to the complainant.

5 Under the facts and circumstances of the case, no merit is found in the complaint case and the same is dismissed according hereby.

Yogesh Pai P.,

Aged about 31 years,

S/o Bhaskar Rao,

Flat No.306, Shiribeedu Towers,

Near City Bus Stand,

Udupi – 576 101.



……….. Complainant



Versus



1. S.B.I. Cards and Payment

Services Pvt. Ltd.,

(SBI Cards),

P.B.No.28, GPO,

New Delhi – 110001.



2. S.B.I.Cards and Payment

Services Pvt. Ltd.,

(SBI Cards),

Mythri Complex, Udupi.

………Opposite Parties





1. The Complainant filed this complaint u/s 12 of CPA alleging Unfair Trade Practice against the Opposite Parties and thereby committed deficiency in their service and prayed for a direction to Opposite Parties to furnish the actual bills of demand after reversing all illegal debits, Rs.1,00,000/- towards compensation with interest @ 12% per annum from the date of said notice, till payment. Further direction to Opposite Parties to pay Rs.5,000/- being the expenses incurred by the Complainant, Rs.5,000/- towards cost of the proceedings, Rs.2,500/- being the cost of the legal notice alongwith future interest at 12% per annum from the date of complaint, till payment.

Contd…….2

2. The case of the Complainant is that he is a customer and holder of OP's credit card No.5264 6853 1516 6718 of the credit limit of Rs.44,000/-. The Complainant has purchased the said credit card through the marketing agents the OP's at his office where he signed necessary application and took delivery of the card.



3. As per contract, one of the modes of payment of the bills is by way of dropping cheque in the nearest drop boxes and one such box is housed at Manipal. Complainant had dropped cheque No.814041 dated 06.04.2007 for Rs.1,013/- and cheque No.814044 dated 03.05.2007 for Rs.3,600/- at the said drop box on the respective dates. When the Complainant received bills of demand he was surprised to note that the payments made by him through cheque through drop box have not been taken into account and Opposite Parties have illegally debited late payment charges, interest, etc, when the Complainant received bill dated 17.05.2007 he enquired with officials concerned through the contact numbers provided in the bills, at that time one Mr.Pradeep connected to the Opposite Parties office contacted the Complainant and requested him to be present at the time of opening the drop box. Accordingly when the bank officials opened the drop box in the presence of said Pradeep, the Complainant was physically present and witnessed the cheques found in the drop box which included in it his aforesaid two cheques. At the request of Pradeep the Complainant changed the dates and amount of the cheques as follows:

Sl.

No.


Cheque

No.


Original amount and date


Revised amount and date

01


814041


Rs.1,013/-

06.04.07


Rs.4,613/-

29.05.2007

02


814044


Rs.3,600/-

03.05.07


Rs.5,891/-

12.06.2007



At that time, the said Pradeep asked the Complainant to club the amount of the earlier cheques and to pay further amount Rs.5,891/- as endorsed by him on the bill and assured that the interest, late payment charges would be reversed.



4. When position stood thus the Complainant went on receiving bill after bill without reversing the illegal debits. Complainant contacted OP's office customer care centers number of times and requested to send revised bills after giving

Contd…….3

due credit to the illegal debits so that he could pay the genuine bills of demand. Instead of catering the needs of the Complainant, OP's went on dodging claim of the Complainant under one false pretext or the other. In the mean time, they went on issuing bill after bill every month by levying heavy charges for late payment and interest on compounding rate, against the contract, law and precedents.



5. Complainant further submits that not being satisfied with the above harassment meted to him, the OP's indulged in threatening the Complainant over the lines that in case Complainant fails to clear the bills his employers, university would be notified branding him as a defaulter. The muscle team attached to the OP's also called the Complainant over the lines and warned him with bodily injuries come what may. When the Complainant was asking about the exact amount due, OP's have not responded but went on continuing the atrocities on account of which Complainant has suffered acute mental agony, sleepless nights, strain and stress.



6. Complainant is a lecturer in the world famous Manipal University and he hails from a very reputed family who commands good reputation and respect in the society and also his colleagues. Complainant is and has been willing to settle the accounts and ready to pay the genuine bills which he has been requesting OP's all these days. The OP's have also blocked operation of his credit card account and threatened the Complainant that they would share the information of Complainant as a defaulter with the Credit bureau and other institutions in order to put an end to the credit worthiness of the Complainant.



7. The acts of maligning Complainant did not stop but continued unabated and the OP's got issued a legal demand notice dated 11.10.2008 making all sorts of frivolous and vexatious allegations against the Complainant and threatening him of criminal prosecution which have disturbed the mental piece of the Complainant and resultantly Complainant could not effectively carry on his profession in the manner expected of him.



8. The acts and deeds of OP's as stated above are nothing but adoption of unfair trade practice, deficiency of service and extortion of money. The OP's are therefore liable to be prosecuted before the appropriate forum. Hence, this complaint.

Contd…….4

9. After issue of notices of the complaint, notice of Opposite Party No.1 served, remained absent, hence placed exparte. Notice of Opposite Party No.2 returned unserved. On 26.06.2009 Complainant filed memo stating that the complaint is not pressed against Opposite Party No.2.



10. Complainant has produced 19 documents which are marked as Exs.C-1 to Ex.C-19. Complainant filed affidavit swearing to the facts stated in the complaint. We heard the complainant.



11. Now the points that arise for our consideration are:

1) Whether the Opposite Parties have committed Unfair Trade Practice and thereby committed deficiency in service?

2) Whether the Complainant is entitled for the reliefs claimed in the complaint?

3) What Order?



Point No.1:

12. We have perused the entire records placed before this Forum. The case of the Complainant is that he is a customer and holder of Credit Card No.5264 6853 1516 6718 of the credit limit of Rs.44,000/- issued by the Opposite Party No.1. As per the contract one of the modes of payment of the bills by way of dropping cheque in the nearest drop box and one such drop box is housed at Manipal.



13. The main allegation of the Complainant is that he dropped one cheque bearing No.814041 dated 6.4.2007 for a sum of Rs.1,013/- and another cheque bearing No.814044 dated 03.05.2007 for a sum of Rs.3,600/- on respective dates at the nearest drop box is housed at Manipal. Complainant received bills of demand and surprised to note that the payments made by him by way of cheques through drop box have not been taken into account and Opposite Parties have illegally debited late payment charges, interest, etc. When enquired to one Mr.Pradeep connected to Opposite Party’s office, bank officials opened the drop box in the presence of said Pradeep, the Complainant was physically present and witness the cheques found in the drop box which included in it his aforesaid two cheques and at the request of the Pradeep Complainant changed the dates and amount of the cheques.

Contd…….5

14. Counsel for the Complainant argued that the Complainant was receiving bills after bills without reversing the illegal debits. If this is so, the Complainant has kept quite for more than one year and there is no document forthcoming to show that Complainant has made correspondences with the Opposite Parties.



15. Complainant has made purchases as per bills Ex.C-1 to Ex.C-4. As per Ex.C-1 the total outstanding was Rs.1,012.50 including purchase and tax. As per Ex.C-2 the total outstanding was Rs.5117.51 including the purchase plus payment due and taxes. As per Ex.C-3 the total outstanding was Rs.11,703.84 including the purchase, interest thereon. Ex.C-4 is the monthly statement for the month of June 2007 wherein the Opposite Party has deducted the amount paid by the Complainant by way of Cheque bearing No.814041 dated 6.4.2007 amounting to Rs.4613/- and Cheque bearing No.814044 dated 3.5.2007 for a sum of Rs.5,891/- in total Rs.10,504/-.


Further the amount of Rs.1,159.74 has been shown as debit balance towards the transaction made by the Complainant with Sri Krishna Petroleum Mangalore and total outstanding amount shown as Rs.2,640.84 as per Ex.C-4 and the same also not disputed by the Complainant. Subsequently the Complainant stopped purchasing but the Opposite Party went on charging interest and other taxes over the outstanding balance. The tariff of charges are shown in the schedule of charges in the back side of every monthly statement. It is made known to the Complainant in every monthly statement, the Complainant is not disputing the tariff of charges.





16. The document produced by the Complainant Ex.C-16, which is the notice dated 17.07.2007 sent by Opposite Party’s Payment Assistance Unit to the Complainant, wherein the Opposite Party clearly stated that the total outstanding balance was Rs.3,127.52 as on 17.7.2007 and minimum amount due is Rs.400/-. Inspite of this notice, Complainant failed to pay either the total amount outstanding or minimum amount due.



17. The details of monthly statements are as follows:

Statement Date


Opening Balance


Purchase & others debit


Total Outstanding

17 Aug 2007


3127.52


507.43


3634.5

17 Sep 2007


3634.95


525.44


4160.39

17 Oct 2007


4160.39


538.88


4699.27

17 Jan 2008


5886.57


158.93


6045.50

17 Mar 2008


6208.72


167.63


6376.35

17 May 2008


6569.79


199.30


6769.09

17 Jun 2008


6769.09


205.35


6974.44

17 Aug 2008


7186.01


218


7404.01

17 Oct 2008


7628.62


231.43


7860.05

Contd…..6

18. Ex.C-6 to Ex.C-14 are the monthly statements, wherein the SBI Cards and Payments Services Pvt. Limited have charged monthly interest on the outstanding amount and the last outstanding amount as per Ex.C-14 was Rs.7,860.05. SBI Cards and Payments Services Pvt. Ltd. have blocked the transaction of credit facility as well as cash facility, as per Ex.C-6 since the outstanding amount is not settled by the Complainant the interest and others charges are continuing as per rates prescribed in the schedule. The SBI Cards and Payments Services Pvt. Limited sent a legal notice 11.10.2008(Ex.C-15) to the Complainant demanding to pay outstanding amount of Rs.7404/- within a period of seven days of the receipt of the notice, failing which legal proceedings will be initiated.



19. The Complainant has not stated in the complaint anything about the issuance of the notice dated 17.07.2007 demanding for the payment from the Complainant Rs.3,127.52 total outstanding as on 17.7.2007 but inspite of the receipt of the said notice the Complainant has not made any payment nor raised any objections. The Opposite Party as per their terms and conditions of credit card scheme and as per the tariff schedule charged interest and other taxes on the above said outstanding amount, as chargeable to its all credit card holders.



20. Notice of the Opposite Party No.2 returned with postal endorsement “No such address at SBI Udupi”. The Complainant alleged in the complaint that he contacted Opposite Party’s customer care centers numbers of times and requested to send revised bills after giving due credit to the illegal debits so that he could pay the genuine bills of demand, this allegations of the Complainant cannot be believed. Complainant himself is not specific with regard to the whereabouts of the Opposite Party No.1’s branch office or marketing agent or customer care centre at Udupi. Anyhow the Complainant has filed a memo stating that the complaint against Opposite Party No.2 is not pressed. Complainant has stated in the complaint that he had purchased the said credit card through the marketing agents of Opposite Party at his office where he signed necessary application and took delivery of the card. The Complainant do not say specifically who is the marketing agent of Opposite Party and where its office is situated.



21. The counsel for the Complainant argued that the Complainant is a lecturer in the world famous Manipal University and hails from a very reputed

Contd……7

family who commands good reputation and respect in the society and also his colleagues and has been willing to settle the accounts and ready to pay the genuine bills which he has been requesting Opposite Parties all these days. Ex.C-1 to Ex.C-14 are the monthly statements issued to the Complainants which are self explanatory and the addresses are furnished in every statement “4 ways to reach at SBI Cards”.



22. The Complainant has not sent any legal notice to the Opposite Party No.2. Legal notice dated 25.11.2008 was sent only to the Opposite Party No.1 who is the customer service helpline of SBI Cards and Payments Services Pvt. Limited instead of issuing legal notice to the correspondence address furnished in Ex.C-16 as “SBI Cards & Payment Services Pvt. Ltd., DLF Infinity Towers, Tower C, 12th Floor, Block 2, Building 3, DLF Cyber City, Gurgaon-122002 (Haryana) India”. The Complainant has already received the legal notice of the Opposite Party which clearly shows M/s SBI Cards and Payments Services Limited, having its office at 11 Parliament Street, New Delhi – 01 but neither the legal notice nor the notice of complaint was sent to the above address for the reasons best known to the Complainant and they were not made as a parties in the complaint.



23. The first prayer of the Complainant is that directing the Opposite Parties to furnish actual bills of demand after reversing all illegal debits. As per Ex.C-15, legal notice dated 11.10.2008, actual bill of demand was Rs.7,404/- as on 11.10.2008. Prior to that as per Ex.C-16 Opposite Party has demanded Rs.3,127.52 as total outstanding amount as on 17.7.2007. There is no dispute with regard to the above amount in the whole complaint. Ex.C-15 and Ex.C-16 are produced by the Complainant himself. Ex.C-17 legal notice dated 25.11.2008 was issued only after receipt of Ex.C-15 legal notice dated 11.10.2008 from Opposite Party wherein SBI Cards and Payments Services Pvt. Ltd. demanded Rs.7,404/- stating that the said amount to be paid within seven days failing which the legal proceedings will be initiated.



24. For availing credit card facilities the Opposite Party SBI Cards and Payments Services Pvt. Limited is charging interest and other charges as per the schedule of charges and the tariff mentioned therein. The details are served to the Complainant in every monthly statements issued by the Opposite Party SBI

Contd……8

Cards and Payments Services Pvt. Ltd. Therefore, we find no illegality or excess charging as alleged by the Complainant. Hence, we are of the opinion that there is no Unfair Trade Practice committed by the Opposite Party No.1. In the result, we find no deficiency in their service. Therefore, we answer the point No.1 in the Negative.



Point No.2 & 3:

25. In view of the Negative answer to point No.1, we hold that the Complainant is not entitled for the reliefs claimed in the complaint. The SBI Cards and Payments Services Pvt. Limited has furnished detailed addresses of “4 ways to reach at SBI Cards” in every monthly statement i.e. By Phone – 24 hours, By Email, By Letter and by Web. The Complainant can ascertain the actual due as on date and pay the same amount. Hence, we answer the point No.2 also answered in the Negative.



26. In the result, we pass the following:

ORDER

Complaint is dismissed. In the circumstances of the case the parties to bear their own costs.

Sri.Jagadish,

Major, S/o Late Dr.Hanumappa,

No.7, Walton Road,

Bangalore – 560 001.



…. Complainant.

V/s



The State Bank of india,

Credit Card Division, Head Office,

St. Marks Road,

Bangalore – 560 001.





…. Opposite Party







-: ORDER:-



This complaint is filed seeking the following reliefs from the Opposite Party:-

i. Direct the Opposite Party to reschedule and restructure the repayable credit card loan amount of the complainant by extending the repayment period from 20 EMI’s to 60 EMI’s in regard to the above said credit card,



ii. Direct the Opposite Party give the credit card loan account statement to the complainant,



iii. Direct the Opposite Party to delete all the illegal, hidden and unauthorized charges levied by the Opposite Party from the date of issuance of credit card,



iv. Direct the Opposite Party to reduce the interest,



v. Direct the Opposite Party to consider the representation dated 12.03.2009 of the complainant,



vi. Direct the Opposite Party to pay the complainant compensation/damages of Rs.1,00,000/- for the mental harassment, agony, anxiety and fear caused due to the Opposite Party’s attitude and conduct, and



vii. Pay the costs of the complainant including legal expenses and any other reliefs that this Hon’ble forum deems fit.



though the complaint runs to 13 pages, excluding the paper clippings and the decisions referred in the complaint, the case of the complainant in brief is as under:-

The complainant had taken credit card No.5264685315277721 form the Opposite Party and till today he never defaulted in the repayment. On 12/03/2009 and 03/04/2009 he gave representation to the Opposite Party stating that because of recession/slowing economy, there is problem in regard to cash flow and therefore he is not able to pay the stipulated EMIs and requested to reschedule and restructure the repayment of the credit card loan by extending the term of repayment to 60 EMI’s in place of 20 EMI’s. He is not able to pay the stipulated EMI’s as the Opposite Party has charged illegal and unauthorized charges contrary to the provisions of the Indian Contract Act.


The interest charged is excessive and more than 30% and therefore he is unable to pay the stipulated EMI’s. Because of the sudden death of his brother, he is not able to pay the EMI’s as stipulated. He requested the Bank to issue a detailed statement deleting all the illegal, hidden and unauthorized charges levied from the date of issuance of credit card and to reduce the rate of interest. He surrendered the credit card to the Opposite Party as per the letter dated 03/03/2009. Non consideration of his representations to reschedule and restructure the repayment by extending the repayment term to 60 EMI’s amounts to deficiency of service. Non consideration of his application when similarly situated 50,000 applications have been considered is bad in law and amounts to deficiency in service. Non furnishing of the detailed statement from the date of issuance of loan also amounts to deficiency in service.


The Hon’ble National Commission has held that the charging of interest in excess of 30% Per Annum from credit card holder is unfair trade practice and penal interest could be levied only once for the period of default and should not be capitalized. Non consideration of his representations dated 12/03/2009 is arbitrary. The complainant wants the statement of his accounts to demonstrate the illegal, hidden and unauthorized charges levied by the Bank from the date of issuance of the credit card. If those charges are deleted, he would not be left with the alleged credit amount. The cause of action for the complaint arose on 12/13/2009 and 03/04/2009 when the Opposite Party failed to consider his representations. Hence, the complaint.



2. In spite of service of notice, the Opposite Party has remained absent. In support of the claim, the complainant has filed his affidavit and has produced copies of documents. The learned counsel for the complainant has filed written arguments.



3. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?

2. Whether the complainant entitled to the relief prayed for in the complaint?



4. Our finding to both points is in the NEGATIVE for the following:-



-:REASONS:-

5. The complainant admits that he had taken the credit card from the Opposite Party and claims that he never defaulted in repayment of the amount due under the credit card account till date. He claims to have addressed the representations dated 12/03/2009 and 03/04/2009 to the Opposite Party Bank. The grievance made in the representations is to the effect that because of recession/slowing economy there is problem in regard to cash flow and therefore he is unable to pay the stipulated EMI’s and requested to extend the repayment schedule from 20 EMI’s to 60 EMI’s. He claims that the Opposite Party has charged illegal and unauthorized charges contrary to the provisions of the Indian Contract Act and interest charged is more than 30%. He also states that because of the sudden death of his brother, he is not able to pay the EMI’s as stipulated.


When the complainant claims that he had availed credit card from the Opposite Party, we are unable to make out that he is required to pay the amount due in 20 EMI’s as claimed. Nothing is placed on record to show that the Bank had permitted him to pay the amount due in 20 EMI’s. As generally understood, a credit card holder is required to make payment of the minimum amount due as disclosed in the monthly statement issued by the Bank. The complainant has not disclosed as to the nature of avocation he is carrying and how the avocation is affected by the recession or slowing economy affecting the cash flow. He has also not disclosed, his total liability to the Opposite Party Bank. Without disclosing how the recession or slowing economy has affected the cash flow, the complainant is not entitled to contend that he has been affected by the recession or slowing economy.


In the absence of material to show that the Bank had permitted him to pay the outstanding balance in 20 EMI’s, the complainant also cannot be heard to say that the Bank is required to restructure the repayment by granting him 60 EMI’s. From the monthly statements produced by the complainant it is seen that in June-2009, the total liability of the complainant under the credit card account was Rs.32,732-23 paise. The complainant has not disclosed that the Bank has charged more than 30% interest on the amount due or that it has charged illegal and unauthorized charges contrary to the provisions of the Indian Contract Act. Without disclosing those particulars a vague allegations that the Bank has charged more than 30% interest and has charged illegal and unauthorized charges is not sufficient to prove the allegations in the complaint.


The complainant cannot claim reschedule or restructuring of the repayment amount due as of right. It is always the discretion of the Bank to either accept such request of the customer or to reject it. Admittedly the complainant made representations on 12/03/2009 and 03/04/2009 requesting the Bank to restructure the repayment of the amount due by extending the EMI’s to 60 in place of 20. Within a month thereafter the complaint is filed on 20/04/2009. According to the complainant, the delay in considering the representations itself amounts to deficiency in service. In this regard, the complainant wants to rely upon the decision reported in 1991(2) CPR 341 in the case of A.R.NARAYANAN VS. THE MANAGER UCO BANK.


That was a case where the bank had delayed considering the application for grant of credit facility. There was delay of more than eight months in considering the application for grant of credit facilities and it is in those circumstances it is held that the delay in passing the orders on application amounts to deficiency in service. But in the case on hand, the representations made by the complainant are with regard to rescheduling of the repayment of the amount due under the credit card account and within a month after submitting the representations, the complainant has filed the present complaint. As such it cannot be said that there is undue delay in considering the representations. As stated earlier, the complainant cannot claim as of right rescheduling of the repayment of the amount due.


It is always discretion of the Bank to grant or reject the relief prayed for by the customer. As such we are unable to accept the contention of the complainant that the delay in considering the representations amounts to deficiency in service on the part of the Bank. From the documents produced by the complainant, it is clear that the Bank has been sending monthly statements pertaining to the credit card account of the complainant regularly. From the monthly statements, the complainant is able to make out the transactions he has carried making use of the credit card, and the amount claimed towards his credit card account.


That being so, we do not see any substance in the contention of the complainant that the Bank failed to furnish him the detailed statement pertaining to his credit card account. Without disclosing as to what are the illegal, hidden and unauthorized charges levied by the Bank, the complainant is not entitled to seek a direction to the Opposite Party to delete such charges. So far as the rate of interest charged by the Opposite Party is concerned, the same is governed by the agreement between the parties and as such the complainant is not entitled to seek a direction to the Opposite Party to reduce the rate of interest especially when the complainant has not proved that the Bank has charged more than 30% interest.


The articles that appeared in the news paper will not give any right to the complainant to claim the relief nor those articles be considered as contract between the parties. Thus, we are unable to make out any deficiency in service on the part of Opposite Party and therefore hold that the complainant is not entitled to any of the relief prayed for in the complaint besides claiming compensation of Rs.1,00,000/-. In the result, we pass the following:-

-:ORDER:-

1. The complaint is DISMISSED. No order as to costs.

2. Send a copy of this order to both parties free of costs, immediately.

3. Pronounced in the Open Forum on this the 23rd Day of JULY 2009.

Jaya Appachu, @ Neelam Jaya,

W/o Mr.Jaya Appachu, A/a 50 yrs,

R/at No.12, BDA Commercial Complex,

Indiranagar, 2nd Stage,

Bangalore – 560 038.

…. Complainant

V/s



The Chief Manager,

State Bank of India,

SSI Branch, Kumara Park,

8577, No.179, S.C.Road,

Seshadripuram, Bangalore – 560 020.

…. Opposite Party



-: ORDER:-







2. Sri. Jaya B.Appachu – the husband of the complainant and who is the proprietor of Graphic Photo Creations had obtained loan under SSI scheme from the Opposite Party Bank for his Photographic business. The loan was sanctioned in the year 1994 and he intended to close the loan outstanding of Rs.2,80,000/- well in advance in the month of June – 1999 by seeking concession in interest. Since he was under treatment for heart ailment at that time the complainant and her brother (guarantor) discussed with the Chief Manager of the Bank about the modalities as the Bank insisted an early settlement of the accounts for which legal notice had already been issued. After discussion, the Chief Manager agreed to send the compromise proposal to the local Head office for settlement in a sum of Rs.2,50,000/- provided Rs.2,00,000/- was immediately deposited in the same branch in the name of the complainant. On 14/06/1999 when the complainant and her brother went to the Bank, the Chief Manager wrote a model form of letter in his own handwriting.


The complainant got the said letter typed and gave it to the Chief Manager along with the TDR for Rs.2,00,000/- for having deposited cash of Rs.2,00,000/- It was specifically agreed to return the said deposit with interest if the proposal is not approved. She had been making enquiries orally and over phone now and then about the outcome of the compromise proposal of her husband and she was being informed from time to time that the talks were going on and the matter was not finalized. After repeated oral reminders and requests she wrote a letter dated 20/12/2008 requesting the Bank to intimate about the status of term deposit. She got the reply dated 29/12/2008 intimating that the term deposit for Rs.2,00,000/- has already been closed as early as on 31/07/1999 and the proceeds of the same have been credited to her term loan account of M/s Graphic Photo Creations.


The complainant is neither the owner of M/s Graphic Creations nor she has any account in the Opposite Party Bank. The sum of Rs.2,00,000/- was deposited as security as desired by the Chief Manager till the compromise was arrived at between the Bank and the loanee. It was also specially mentioned in the letter to adjust the proceeds against the loan account of Graphic Photo Creations only after the compromise proposal was approved. From 1999 till 29/12/2008 she was kept in dark about the status of the term deposit and the Bank has not only gone against the assurance given to the complainant but also violated the banking norms in not informing the complainant about the status of the term deposit and adjustment of the amount against the loan account.


In the letter dated 29/12/2008, the Bank has erroneously stated that the TDR for Rs.2,00,000/- has been closed and the proceeds of the same credited to your term loan account of M/s Graphic Photo Creations on 31/07/1999. The complainant had no term loan account in her name or in the name of M/s Graphic Photo Creations. She did not authorize Opposite Party Bank to adjust the proceeds to the loan account of Graphic Photo Creations in case there was no confirmation of compromise proposal initiated by her.


There is blatant violation of banking norms and thus deficiency in service on the part of Opposite Party for which the complainant is entitled to compensation. The action of the Bank in deciding the adjustment unilaterally is arbitrary, illegal and unknown to banking procedures. Being fully aware of the undertaking / authorization given by the complainant in her letter dated 14/06/1999, the Bank has deliberately misappropriated the money resulting in financial loss and mental agony to the complainant. Therefore, the Bank is liable to compensate the complainant in that regard. Hence, the complaint.



3. In the version, the contention of Opposite Party is as under:-

Sri. Jaya B.Appachu had borrowed loan from the Opposite Party Bank for his business of Graphic Photo Creations. Since he failed to repay the outstanding due, he came with a proposal for one time settlement and deposited Rs.2,00,000/- in the name of his wife to clear the entire loan amount. The deposit was made on 14/06/1999 up-to 30/06/1999. Since he failed to arrange the balance amount, on 30/06/1999 he and his wife namely the complainant instructed the bank to adjust the deposit to the loan account and requested for some more time to clear the dues payable to the Bank. Therefore on the instructions of the complainant and her husband, the deposit amount was credited to the loan account of Mr.Jaya B.Appachu on 30/06/1999. The compromise proposal was for Rs.2,50,000/- in the year 1999.


The complainant, her husband and the guarantor approached for compromise and Rs.2,00,000/- was deposited in the name of the complainant by her husband. Since the balance amount was not paid, original suit was filed for the remaining outstanding dues, in O.S.No.4985/2003 on the file of CCH-26. After service of notice in the suit, the complainant and her husband started for bargaining. The complainant was actively involved in all the discussions and the amount in question was deposited by the husband of the complainant for the purpose of clearing the outstanding dues. After approaching the Bank for concession to settle the claim in O.S.4985/2003, the present complaint is filed at the instance of the husband of the complainant only with mala-fide intention to pressurize the bank to withdraw the suit.


As on 26/02/2008, the amount due was Rs.3.11 Lakhs. By considering the credit of Rs.2,00,000/- made from deposit, the Bank agreed for settlement in the suit. The present complaint is filed with ulterior motive to pressurize the bank and therefore the same needs to be crushed with heavy hands. The complainant and her husband are trying to get an unlawful gain in the public money. The documents produced by the complainant prove that the deposit was made to clear the loan transactions of Graphic Creations. Having the knowledge of the credit transaction of the year 1999 filing of the suit for recovery in 2003, the present complaint is filed in 2009.


The information furnished in the reply dated 29/12/2008 was known to the complainant in the year 1999. Since the amount was deposited by the husband of the complainant and it is deducted at the instance of the complainant and her husband, there is no justification in the averments made in this regard. The Opposite Party has not violated any norms. In the written statement filed in the suit, the husband of the complainant has stated that the sum of Rs.2,00,000/- is deducted from the deposit and he is liable to pay only Rs.65,000/-.


In the suit, the complainant asked for settlement and sought for major concession. Since the Bank did not agree for concession, the present complaint is filed with intention to put pressure on the Bank to get major concession. The matter is seized before the Civil Court and the alleged transaction is barred by limitation. The complainant was aware of the appropriation of her deposit in the year 1999 and the demand of the Bank for payment of Rs.50,000/- with interest. Hence the complaint is hopelessly barred by limitation. On these grounds, the Opposite Party has prayed for dismissal of the complaint.



4. In support of the respective contentions both parties have filed affidavits. We have heard arguments on both side.



5. The points for consideration are:-

1. Whether the complainant has proved deficiency in service on the part of the Opposite Party?



2. Whether the complainant entitled to the relief prayed for in the complaint?

6. Our findings to the above points is in the NEGATIVE for the following:-

-:REASONS:-

7. The complainant admits that her husband as proprietor of Graphic Photo Creations had availed loan from the Opposite Party Bank for the purpose of business and in June 1999 with intention to close the loan transaction, the complainant deposited term deposit receipt for Rs.2,00,000/- with the Opposite Party as security for the loan availed by her husband. From the copy of the term deposit receipt produced by the complainant, it is clear that the deposit was made on 14/06/1999 up to 30/07/1999. Therefore, the amount under term deposit was payable on 30/07/1999.


The complainant has also produced the copy of the letter dated 14/06/1999 addressed to the Chief Manager of the Bank at the time of depositing the TDR as security for the loan availed by her husband. In this letter, the complainant has stated that she is enclosing TDR for Rs.2,00,000/- in her name to be kept as security provided the Bank agrees for concession and in case the Bank did not agree for the compromise the amount shall be paid to her. It is also stated in the letter that the complainant authorized the Bank to adjust the proceeds with the loan account of Graphic Photo Creations only if the compromise as requested was approved.


Though the amount under the TDR was due for payment on 30/07/1999, the present complaint is filed on 23/03/2009, about 10 years after the date on which the TDR become due for payment. Though the complainant contends that between June – 1999 and 20/12/2008 she had been reminding the Bank about the status of her TDR, no documents are produced to substantiate that contention. The first letter addressed by the complainant to the Bank seeking information about her TDR appears to be on 20/12/2008, about more than nine years after the TDR became due for payment. In the letter dated 20/12/2008, the complainant has mentioned that she has been writing to the Bank on various occasions to know the status of the TDR, but except the copy of the letter dated: 20/12/2008, the complainant has not produced only other documents to substantiate the contention that on various occasions she had written letters to the Bank prior to 20/12/2008.


This circumstance supports the contention of the Opposite Party that in 1999 itself the complainant was aware of the adjustment of the deposit amount towards loan account of her husband. The fact that the Bank filed O.S.No.4985/2003 against the husband of the complainant and the guarantor for recovery of the balance amount is not disputed, though the same is not disclosed in the complaint. The Opposite Party has produced the copy of the written statement filed by the husband of the complainant in O.S.No.4985/2003. It is seen that the written statement was filed on 25/02/2006. Thereafter the present complaint is filed on 23/03/2009. In Para-4 of the written statement, the contention of the husband of the complainant is as under:-

“The First Defendant submits that in June 1999 First Defendant approached the Chief Manager for a compromise proposal since there was a threat of legal action. He suggested that a compromise proposal could be considered for Rs.2,50,000/- in full and final settlement of all the dues provided a sum of Rs.2.00 lakhs was immediately deposited as term deposit in the name of the wife of First Defendant in the Bank as a security to avail the concession. Accordingly on 14.06.1999 the First Defendant, his wife Mrs.Jaya Apachu and the Second Defendant met the Chief Manager at his chambers and after discussion the compromise proposal was reduced into writing. The then Chief Manager Mr.Ravinder wrote a letter in his own handwriting to be signed by the said Mrs. Jaya Apachu agreeing to the said proposal. The letter indicates that on 14.06.1999 the wife of First Defendant had enclosed a Fixed Deposit Receipt for Rs.2,00,000/- (Rupees tow lakhs only) in her name for being kept as security. It is also stated therein that the said amount could be adjusted to the loan account of First Defendant on approval of the compromise proposal.


Accordingly the sum of Rs.2.00 lakhs was transferred to the account of First Defendant on 31.07.1999 leaving a balance of Rs.85,737.79. Though the wife of the First Defendant made it clear in her letter dated 14.06.1999 that in the event of failure of compromise proposal for Rs.2,50,000/- her TDR should be returned to her. Surprisingly the Plaintiff- Bank had appropriated the said FDR amount against the First Defendant’s account without any intimation whatsoever. As the amount was not returned the depositor was under the bona-fide belief that the compromise proposal had been accepted. The First Defendant was ready and willing to pay the above said balance amount of Rs.50,000/- in full and final settlement.


In this regard the First Defendant had made number of representations to the Chief Manager, Asst.General Manager, Dy.General Manaer and General Manager of the bank bringing to their notice as to under what circumstances the compromise proposal was moved and how it failed. In fact on one occasion the General Manager Mr.Som Choudhury on 24.04.2000 had admonished and directed Mr.Sounderarajan, Manager(NPA) cell to give interest to FDR for Rs.2 lakhs, deduct the interest from Rs.50,000/- and close the account by accepting Rs.32,000/-. In spite of all these directions the Bank had not closed the account but went on adding interest to the alleged balance dues”.



From the above contentions, it is clear that the husband of the complainant was well aware of the adjustment of term deposit amount of Rs.2,00,000/- to the loan account on 31/07/1999. From what is stated in Para-3 of the complaint, it is clear that the complainant had taken personal interest in settlement of the loan account of her husband with the Bank. Therefore it can be presumed that the complainant was also aware of adjustment of the term deposit amount of Rs.2,00,000/- to the loan account of her husband on 31/07/1999. If that is so, the complainant is not entitled to take a contrary stand in the present complaint.


When the complainant was aware in 1999 itself that the term deposit amount of Rs.2,00,000/- has been adjusted to the loan account of her husband on 31/07/1999, the complaint filed about 10 years thereafter in 2009, is clearly barred by limitation. Admittedly the term deposit was offered as security for the loan availed by the husband of the complainant.


Therefore, the Bank had authority to adjust the term deposit amount offered as security towards the loan account of the husband of the complainant. It is the contention of the Opposite Party that the adjustment was made only on the instructions of the complainant and her husband. From what is stated in the written statement it is clear that there is dispute between the Bank and the husband of the complainant with regard to amount due and payable. The suit is filed claiming Rs.2,57,488.49 paise. Whereas in the written statement, the husband of the complainant has contended that he has to pay to the extent of only Rs.65,000/- and has requested the court to decree the suit only for Rs.65,000/-.


When there is clear admission on the part of the husband of the complainant that the sum of Rs.2,00,000/- offered as security has been adjusted to the loan account as long as 31/07/1999, after the lapse of 10 years, the complainant is not entitled to seek payment of the amount under the term deposit receipt. As contended by the Opposite Party, the complaint appears to be an after thought with intention to pressurize the bank to concede to the request of the complainant and her husband to give major concession in the amount claimed. Thus, we are unable to make out any deficiency in service on the part of Opposite Party and therefore hold that the complainant is not entitled to the relief prayed for. In the result, we pass the following:-



-:ORDER:-





1. The complaint is DISMISSED. No order as to costs.

2. Send a copy of this order to both parties free of costs, immediately.

3. Pronounced in the Open Forum on this the 22nd Day of JULY 2009.

Amar Singh S/O late Shri Ram Dass Mankotia,

R/O House No.121, Housing Board Colony, Phase-1, Saproon Solan, Tehsil and District Solan, H.P.





….. Complainant.





Versus





SBI Cards and Payment Service Pvt. Ltd.,

P.O. Bag No.28, GPO New Delhi-110001, Registered Office, SBI Local Head Office 11 and Parliament Street, New Delhi-110001 through its Authorized signatory/Manager/Agent.



… Opposite Party




ORDER:





This order shall dispose of, a complaint, under section 12 of Consumer Protection Act, 1986. The complainant avers that he was issued credit card baring No.4317575025421000, valid up to November, 2006, which was later on renewed up to November, 2008. He further avers that he availed the cash credit facility, as well, as purchase credit facility during the period 06.12.2004 to 05.05.2007, amounting to Rs.45,637/-. It is averred that despite clearance of all due amounts, the OP issued a notice dated 08.04.2008, demanding a sum of Rs.41,718.04, which was duly replied by him. The OP again vide letter dated 29.07.2008, demanded a sum of Rs.10,000/-, whereas nothing is payable to the OP. Hence, the complainant feeling aggrieved and dissatisfied by the act and conduct of the OP, the complainant perforce file this complaint against the OP.

2. That the notice of this complaint was issued to the OP through registered AD, which was not received back and as such, presumption of service was drawn against the OP, vide zimni order dated26.12.2008 and as such, the complaint was ordered to be heard exparte.

3. We have heard the learned Counsel for the complainant at length and have, also scanned the entire record of this case.

4. The complainant in support of his claim relies upon various documents, i.e. Annexure C-1, copy of legal notice dated 8th April, 2008, Annexure C-2 reply of the notice issued by the complainant, on, 05.05.2008, Annexure C3 and statements Annexure-5 to C-8. Besides, the complainant has also placed on record detailed affidavit.

5. A, combined and harmonious reading of the aforesaid documents and evidence, which remained unrebutted or un-controverted on behalf of the OP, it is proved on record that the OP has nothing to say in response to the allegations as leveled against it by the complainant.

6. Moreover, the OP did not put in appearance and their non-appearance also leads us to draw adverse inference against them. As such, they are not only guilty of rendering deficient services to the complainant, rather are also guilty of indulging in an unfair trade practice.

7. Hence, we allow this complaint, and direct the OP not to issue telephonic calls/message, as well, as, illegal demands in future to the complainant. However, their shall be no order as to the grant of compensation, but certainly the complainant is entitled for grant of litigation cost, which in the facts and circumstances of the case is quantified at Rs.1000/- payable by the OP to the complainant within a period of forty five days after the date of receipt of copy of this order. In the above terms, the complaint stands disposed of. The learned counsel for the complainant has undertaken to collect the copy of this order, whereas, the certified copy of this order shall, be, supplied to the OP, free of costs, as per rules. With this, the complaint stands disposed of. The file after due completion, be consigned to record room.

Shri Jai Ram Kaushal

R/O G.R. House, Lower Khalini,

P.O. Razhana Shimla-171009.



… Complainant

Versus



Chief Executive Officer,

SBI Cards & Payment Service Pvt. Ltd.,

P.O. Bag Number 28, GPO, New Delhi-110001.



…Opposite Party


O R D E R:

Per, Charanjit Singh, Member:- The instant complaint has been filed by the complainant by invoking the provisions of section 12 of the Consumer Protection Act, 1986. It is averred that the complainant is holder of credit card bearing No.4317 5750 2426 0581, and is aggrieved by the action of the OP, inasmuch, as, charging late fee and levying interest on the outstanding amount, as reflected in the monthly statements. He further avers that the outstanding amount of Rs.8,205.51 being demanded by the OP, is arbitrary and illegal and in order to grab money by dishonest means. Hence, it is averred that there is apparent deficiency in service on the part of the OP and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. Pursuant to the notice issued by this Forum to the OP, Mr. Umesh Sharma, Advocate filed memo of appearance on behalf of the OP, on, 19.08.2008. However, on 03.11.2008, none appeared on behalf of the OP and as such the complaint was ordered to be heard exparte.

3. We have heard the complainant at length and have also thoroughly scanned the entire record of the case minutely.

4. The claim of the complainant, as asserted in the complaint, is sought to be substantiated by his duly sworn affidavit and documents Annexure-1 to Annexure-XVI, which are copies of the schedule charges, and correspondence exchanged between the parties. Since, the allegations, as asserted in the complaint, which also remains unrebutted and un-controverted, we are of the considered view that the amount as shown outstanding, amounting to Rs.8,205.51, on account of charging late fee and levy of interest, is arbitrary and illegal, as the OP did not contest the complaint and repudiate the allegations of the complainant by filing any reply or documents in this behalf.


Further more, the non-appearance of the OP, also forces us to draw an adverse inference against them, inasmuch, as, that the OP has nothing to say in response to the allegations as leveled against them by the complainant. Hence, the result of the above discussion is that the outstanding amount of Rs.8,205.51 as is being shown in the monthly statement, is set aside and quashed, and he is not liable to pay the same.

5. Resultantly, we allow this complaint, and the outstanding amount of Rs.8,205.51, being reflected in the monthly statement, is set aside and quashed. The litigation cost is quantified at Rs.1000/- payable by the OP to the complainant. This order shall be complied with by the OP within a period of forty five days after the date of receipt of copy of this order. The complainant has undertaken to collect the certified copy of this order from the office, free of cost, as per rules, whereas the certified copy of this order shall be sent to the OP through UPC. The file after due completion, be consigned to record room.