BEFORE THE DISTRICT FORUM CONSTITUTED UNDER THE CONSUMER PROTECTION ACT (ACT NO. 68 OF 86) AT SRIKAKULAM


P R E S E N T

01. Sri P.Gurunadha Rao,
President, District Consumer Forum,
Srikakulam
02. Smt. D.Raj Kumari, B.A.(Hons.), B.L.,
Lady Member.

Dated this the 2nd day of March, 2009

C.C.No.20/2008


BETWEEN:

D.V.S.Ravikishore, S/o.Narasimha Rao, aged 25 years, Hindu, Business, Door No.4-165, Plot No.13, Bankers Colony, Srikakulam Town and Dist. ...Complainant.

AND:

01)The Senior Manager, State Bank of India, G.T.Road, Srikakulam.
02)The Manager, ICICI Bank Limited, Panjagutta Branch,
Nerella House No.4, Hyderabad. …opposite parties.

This complaint coming on 17-10-2008 for final hearing before us in the presence of Sri S.Ramesh and G.Visalakshi, Advocates for complainant and Sri B.S.R.Sreepada, Advocate for opposite party No.1 and Sri P.V.S.Seetharamayya, Advocate for opposite party No.2 and having stood over to this day for consideration, this Forum made the following:


O R D E R
This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 and facts of the case briefly are as follows:
Complaint presented a cheque for Rs.50,000/- for collection to opposite party NO.1 bank on 30-4-2007. It was returned with the endorsement “dishonor” by opposite party nO.2 bank. Hence the complaint is filed for a direction to opposite parties to deposit the cheque amount of Rs.50,000/- with interest and compensation of RS.30,000/-, Rs.15,000/- towards loss and mental agony and Rs.2,000/- towards expenses.

2) Opposite party No.1 filed counter stating that there is no deficiency in service on their part.

3) Opposite party No.2 filed counter sating that the cheque was dishonored because it was in mutilated condition.


4) Both parties filed affidavits. Exs.A1 to A8 are marked on behalf of the complainant. No documents are marked on behalf of the opposite parties.
Heard both parties.
Point for consideration is:
Whether there is deficiency in service on the part of the opposite parties.


5) Point:
Complainant filed affidavit. It is nothing but repetition of the facts contained in the complaint. Opposite party No.1 filed affidavit. It is nothing but repetition of the facts mentioned in the counter. Opposite party No.2 filed affidavit. It is nothing but repetition of the facts mentioned in the counter.


6) Cheque was presented to opposite party No.1 bank for collection. Opposite party NO.1 bank sent the cheque to opposite party No.2 bank for payment. Opposite party No.2 bank dishonored the cheque and returned it for the reason that it was in mutilated condition. Opposite party No.1 bank could not deposit the cheque amount in the account of the complainant because the cheque was dishonored. Opposite party NO.1 bank is not at fault for dishonoring the cheque by opposite party NO.2 bank. There is no deficiency in service on the part of opposite party NO.1 bank. Opposite party No.2 bank dishonored the cheque because it was in mutilated condition. Opposite party No.2 bank cannot be compelled to pay the amount because the cheque was in mutilated condition. There is no deficiency in service on the part of the opposite party No.2 bank. Complainant ought to have obtained another cheque in the place of mutilated cheque. There cannot be any loss for the complainant due to dishonor of the mutilated cheque. Complainant ought to have requested the person who issued the cheque for another cheque in the place of mutilated cheque. We therefore hold that there is no deficiency in service on the part of the opposite parties bank. Hence we answer the point accordingly.


In the result, complaint is dismissed. No costs. Advocate’s fee is fixed at Rs.500/- (Rupees five hundred only).
Dictated to the Shorthand Writer, transcribed by him, corrected and pronounced by us in open Forum on this the 2nd day of March, 2009.

C.C.No: 316/2007

BETWEEN:
Pentyala Jaihind,
S/o Papaiah, aged 60 years,
Hindu, R/o. Dronadula village,
Door No.6/21, Martur Mandal,
Prakasam District. ... Complainant.

Vs.

1. The Branch Manager,
Syndicate Bank, Idupulapadu,
Inkollu Mandal, Prakasam District.

2. The Branch Manager,
State Bank of India,
Martur, Prakasam District.

3. P.V. Prasad, employee in S.B.I.,
Martur Branch, Prakasam District.

O.P.No.3 is added as per orders in I.A. No.105/08
Dt. 01.04.2008. …Opposite parties.

COUNSEL FOR COMPLAINANT: SRI R. KESAVA RAO,
ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.1: SRI I. VENKATESWARLU,
ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.2: SRI R.V.S. BHARADWAJA,
ADVOCATE, ONGOLE.

COUNSEL FOR OPPOSITE PARTY NO.3: SRI W.R.BHARADWAJA
ADVOCATE, ONGOLE.


This complaint is coming on 03.03.2009 for final hearing before us and having stood over this day for consideration this Forum delivered the following:
ORDER:
1. This is a complaint filed by the complainant under Section 12 of Consumer Protection Act, 1986 against the opposite parties.

2. The averments in the complaint are as follows: The complainant is having Savings Bank Account No.SLV. 64 with the 1st opposite party, Syndicate Bank, Idupulapadu of Inkollu Mandal. The 3rd opposite party P.V. Prasad issued a cheque to the complainant on 01.02.2007 for Rs.80,000/- drawn on State Bank of India, Martur (O.P.2) with regard to the amount due to the complainant. The complainant presented the said cheque bearing No.640555 in OP.1 Bank on 09.05.2007 for collection. OP.1 Bank received the said cheque from the complainant and sent the same to OP.2 Bank for clearance so far the amount was not credited to the account of the complainant nor the cheque was returned. The complainant approached OP.1 Bank several times and questioned about the cheque presented by him. The Manager of OP.1 Bank represented that they are making correspondence with OP.2 Bank for the cheque amount and there was no response from OP.2 Bank. It is the bounden duty of OP.1 and OP.2 Banks to pass the cheque and credit the amount to his account. But they fail to do so and it amounts to deficiency in service on the part of OP.1 and OP.2. By their inaction opposite parties 1 and 2 caused mental agony and monitory loss to the complainant. Hence, the complainant is constrained to file the complaint for recovery of the cheque amount of Rs.80,000/- and compensation of Rs.50,000/- for mental agony and Rs.5,000/- towards costs of the litigation.

4. The 1st opposite party Branch Manager, Syndicate Bank, Idupulapadu filed counter contending as fallows: It is true that on 09.05.2007 the complainant presented the cheque bearing No.640555 payable at OP.2 Bank at Martur on 12.05.2007. OP.1 sent the said cheque for collection under OBC No.370/2007 along with 33 other instruments to OP.2 Bank under separate covering letters by way of a common consignment through professional courier receipt bearing No.CRL 55003 and it was received by the 2nd opposite party on 14.05.2007. Except the cheque presented by the complainant the other cheques were realized by the 2nd opposite party. The 1st opposite party appraised the 2nd opposite party by phone and through letters about non-realisation/non-receipt of the cheque proceeds of the complainant. The 1st opposite party also informed the complainant about the status of the cheque. The 1st opposite party wrote letters to the 2nd opposite party on 09.06.2007, on 05.07.2007 about the cheque. On 06.07.2007 the 2nd opposite party sent reply stating that the cheque of the complainant was not received by it. On 18.07.2007 the 1st opposite party addressed a letter to the complainant appraising him about the fact and asked him, to get duplicate instrument. In the instant case though the 1st opposite party has exercised due diligence in the matter of handling the assignment on collection, the cheque is reportedly lost due to the reasons beyond its control. There is no deficiency in service on the part of the 1st opposite party. The drawer of the so-called cheque is working with OP.2 Bank. OP.1 Bank addressed a letter dated 30.10.2007 to the Regional Manager of OP.2 Bank duly ventilating their suspicion and foul play in missing of the cheque by the drawer of the cheque who is OP.3. The complainant has a remedy to recover the money due to him from the drawer of the cheque and he is not entitled to claim the cheque amount from the bank. For the foregoing reasons OP.1 Bank prays the court to dismiss the petition.

5. 2nd opposite party State Bank of India, Martur Branch filed its counter contending as fallows: On 12.05.2007 the 1st opposite party sent 33 instruments as per OBC list from 371/2007 to 403/2007 along with collection cheque list for total amount of Rs.33,684/-. The cheque in question alleged to have sent under OBC No.370/2007 was not received in OP.2 Bank. 2nd opposite party gave reply on 05.07.2007 to the 1st opposite party Bank that instrument sent under OBC No.370/2007 for Rs.80,000/- was not received by them. It is a clear case of deficiency in service on the part of the 1st opposite party and to avoid their responsibility, the 1st opposite party is throwing play on the 2nd opposite party and making false allegation against the staff of the 2nd opposite party. For the foregoing reasons OP.2 prays the court to dismiss the complaint.

6. OP.3 filed his counter contending as fallows: The 3rd opposite party never barrowed any amount from the complainant nor issued any cheque to the complainant towards payment of the debt. The complainant filed false complaint blackmailing the Nationalized Banks for wrongful gain. About two years ago the complainant came to the house of 3rd opposite party during his absence and sat there for some time and left the house. At that time he might have committed theft of one leaf from the cheque book which was on the table without the notice of the inmates. 3rd opposite party is neither a necessary party nor a proper party to the complaint and prays the court to dismiss the complaint with costs.

7. On behalf of the complainant Exs.A1 to Ex.A5 were marked. The Ex.A1 is the Counter foil pertaining to Syndicate Bank, Idupulapadu dated 09.05.2007. Ex.A2 is the Letter issued by Syndicate Bank, Idupulapadu to the complainant dated 18.07.2007. Ex.A3 is the Cheque bearing No.640555 pertaining to S.B.I. Martur dated 01.02.2007. Ex.A4 is the Letter from Syndicate Bank, Idupulapadu to the Manager, S.B.I. Martur dated 09.06.2007. Ex.A5 is the Ledger extract issued by Syndicate Bank, Idupulapadu pertaining to the cheques transactions.

8. On behalf of the 1st opposite party Exs.B1 to Ex.B11 were marked. Ex.B1 is the Cheque collection form dated 09.06.2007. Ex.B2 is the Xerox copy of the letter addressed by the Branch Manager, Syndicate Bank, Idupulapadu dated 12.05.2007 to the Branch Manager, State Bank of India, Martur for Rs.80,000/-. Ex.B3 is the Xerox copy of the letter addressed by the Branch Manager, Syndicate Bank, Idupulapadu dated 12.05.2007 to the Branch Manager, State Bank of India, Martur for Rs.33,684/-. Ex.B4 is the Xerox copy of the account extract. Ex.B5 is the Postal Outward Register copy. Ex.B6 is the Letter of Syndicate Branch Manager to State Bank of India, Martur dated 09.06.2007. Ex.B7 is the Professional courier daily delivery statement. Ex.B8 is the Syndicate Bank, Idupulapadu letter to S.B.I., Martur dated 05.07.2007. Ex.B9 is the Reply letter of S.B.I to Syndicate Bank, Idupulapadu dated 05.07.2007. Ex.B10 is the Letter to Jaihind Pentyala, S/o Papaiah dated 18.07.2007. Ex.B11 is the Letter to the Regional Manager of S.B.I. dated 30.10.2007.

9. On behalf of the 2nd opposite party Exs.B12 to Ex.B17 were marked. Ex.B12 is the Letter dated 12.05.2007 by the Syndicate Bank, Idupulapadu to the Manager, S.B.I., Martur for Rs.33,684/-. Ex.B13 is the Collection Cheques List. Ex.B14 is the Post Card dated 29.05.2007. Ex.B15 is the Post Card dated 29.05.2007. Ex.B16 is the Letter dated 08.06.2007 given by Complainant to 1st opposite party Bank. Ex.B17 is the Letter dated 05.07.2007 by the State Bank of India, Martur. No documents are marked on behalf of the 3rd opposite party.

10. The point for consideration is among the opposite parties 1 to 3 who is liable to pay compensation to the complainant for missing of the cheque presented by the complainant in 1st opposite party bank.

11. The case of the complainant is that he is maintaining Savings Bank Account No. SLV. 64 with 1st opposite party bank. The 3rd opposite party P.V. Prasad, who is the working in 2nd opposite party bank and who is having account with 2nd opposite party bank issued a cheque bearing No.640555 for Rs.80,000/- to him for the amount due to him and he presented the said cheque in his account in OP.1 Bank for collection. The cheque amount was not credited to his account nor the cheque was returned. Hence, he filed the complaint claiming compensation from the opposite parties.

12. 1st opposite party Bank admitted that on 09.05.2007 the complainant presented the cheque bearing No.640555 for Rs.80,000/- payable at 2nd opposite party Bank and on 12.05.2007 the 1st opposite party sent the said cheque for collection under OBC. No.370/2007 to OP.2 Bank through Professional Courier under receipt No. CRL 55003 and it was received by OP.2 Bank on 14.05.2007. Except the cheque proceeds other cheques were realized and inspite of several reminders OP.2 fail to act and they informed the same to the complainant and the complainant also did not choose to take steps to obtain duplicate cheque from OP.3. 1st opposite party Bank expressed doubt that the drawer of the cheque (OP.3) who is working in OP.2 Bank might have played fraud and got the cheque misplaced so that the cheque issued by him should not be encashed. In these circumstances, there is no deficiency on the part of OP.1 Bank and OP.1 Bank is not liable for missing of the cheque.

13. OP.2 Bank contended that the cheque in question was not sent to their bank for collection by OP.1 Bank nor it was received by them under OBC No.370/2007. They further contended that OP.1 Bank sent 33 cheques as per OBC list from 371 to 403/2007 for Rs.33,684/- and the cheque amounts were already paid to OP.1. But they have not received the cheque bearing No.640555 alleged to have to sent under OBC No.370/2007 and they are not responsible for missing of the said cheque.

14. OP.3 says that he never barrowed any amount from the complainant nor issued the cheque in question to the complainant. According to him 2 years back the complainant came to his house in his absence and during that visit he might have committed with theft of one leaf from the cheque book lying on the table without the notice of the inmates.

15. 1st opposite party admitted about the presentation of the cheque bearing No.640555 by the complainant.

16. The point for consideration is whether the 1st opposite party bank sent the cheque bearing No.640555 to the 2nd opposite party bank and whether the same was received by the 2nd opposite party bank.

17. The learned counsel for the 2nd opposite party bank vehemently argued that cheques sent under OBC Nos.371/2007 to 403/2007 alone were received in OP.2 Bank and the disputed cheque sent under OBC 370/2007 was not received in OP.2 bank and that the allegation that it was misplaced in OP.2 bank is false. In support of his argument he produced Ex.B12 letter dated 12.05.2007 and Ex.B13 collection cheque list sent bank OP.1 bank to OP.2 bank. He further argued that the 33 cheques sent under Exs.B12 and Ex.B13 were received in their Bank and the amounts were credited on realization and disputed cheque was not in their bank.

18. The 1st opposite party explained the discrepancy and submitted that the 33 cheques sent under OBC Nos. 371/2007 to 403/2007 pertain to the Government cheques and they are sent in one bunch and the disputed cheque pertaining to private individual was sent under OBC No.370/2007 in the same consignment through Professional Couriers and the same was received in OP.2 bank. OP.1 bank further contended that Government cheques are realized and the disputed cheque was neither realized nor returned to OP.1 bank inspite of several reminders.

19. OP.1 Bank produced documents to prove that they sent the cheque bearing No.640555 to OP.2 Bank and it was received by OP.2 bank. As per Postal Outward Register marked Ex.B5 the instrument under OBC No.370/2007 was sent separately and the instruments under OBC 371 to 403/2007 were sent separately to OP.2 Bank on 12.05.2007 in the same consignment through Professional Couriers vide receipt No. CRL 55003. Outward Register entries are made during the course of regular business and I find no reason to suspect the entries. As per the delivery statement of Professional Couriers marked as Ex.B7, the cheques sent under the receipt CRL 55003 were delivered at OP.2 Bank on 14.05.2007. From the above documents it is clear that the cheque bearing No.640555 was received in OP.2 Bank on 14.05.2007 and it was misplaced in OP.2 bank. No other proof is required. Therefore, OP.2 Bank alone is liable to pay compensation to the complainant. The correspondence made by OP.1 Bank proves their bonafides and efforts to realize the amount and credit it to the account of their customer. But, there is no response from OP.2 Bank for the reasons best known to them.

20. In a case reported in 1 (2007) CPJ 1 (NC) in Canara Bank Vs. Sudhir Ahuja, it was held that “Consumer Protection Act, 1986 – Sections 2(1)(g), 14(1)(d) – Banking and Financial Services – Cheque lost in transit – Neither amount credited nor cheque returned – Deficiency in service proved – Bank liable to pay some amount of compensation and not entire amount of cheque – Order of State Commission directing OP to pay entire cheque amount not legally sustainable – OP liable to pay Rs.5,000/- compensation”.

21. In another case reported in 1 (2009) CPJ, Page No.44 in Azhar Mohammed & Ors. Vs. Punjab National Bank. The National Commission held that “In a catena of judgments, the National Commission has held that the case tantamounts to deficiency in service by the Bank, but the bank cannot be held liable to reimburse the value of the cheque lost in transit but the Consumer For a can award compensation commensurate with the deficiency in service”.

22. In view of the decisions sited above OP.2 Bank can be ordered to pay compensation to the complainant and not the entire amount of the cheque as claimed by the complainant. Considering the facts and circumstances of the case OP.2 Bank can be directed to pay Rs.10,000/- as compensation to the complainant within One month from the date of order.

23. In the result, petition is allowed directing the OP.2 State Bank of India, Martur Branch to pay Rs.10,000/- as compensation to the complainant within One month from the date of order. Petition against OP.1 and OP.3 is dismissed. No order as to costs.

ORDER DELIVERED BY Sri. R.G.PATIL, PRESIDENT



1)This is a complaint praying to direct the OP to pay to the complainant interest on amount of Rs.29,57,928-00 from 29-10-08 till 01-1-09 amounting to Rs.59,158-00 at the rate of 12% p.a., future interest on Rs.29,57,928-00 from date of petition till realization @ 12% pa, Rs.10,000-00 for mental agony and Rs.5,000-00 towards litigation expenses, and costs of proceedings.

2)Brief facts of the complaint are that the lands of the complaint were acquired by the SLAO Seabird. The complainant filed LAC 56/98 on the file of Adl.C.J. (Sr. Dvn. Karwar on whose award the SLAO Seabird deposited 25% of the decretal amount through cheque Dated 6-10-08. The SLAO Seabird deposited an amount of Rs.29,57,528/- in LAC No 56/98 (EX.276/07) on 22-10-08 towards part payment before the Civil Judge (Sr.Dn) Karwar under R.O. No7391. The same was sent for collection through the OP on 22-10-08 by the Pr. Civil Judge (Sr.Dn.) Karwar. The OP Bank ought to have deposited before the court within 7 days. Till today inspite of reminders and notices the OP failed to deposit the amount. The complainant who is a land looser is deprived of the interest on the deposited amount of Rs 29,57,928-00 due to delay and negligence of the OP. There is deficiency of service on the part of the OP and the OP is liable to pay Rs 59,158-00 with interest and cost.

3)The OP filed WS stating that the cheque in question was received by the OP on 22-10-08 and it was sent for collection on 24-10-08 to the drawee branch at Bangalore. The cheque amount has not been realized till date and after ascertaining that the cheque has been misplaced the OP has written to the Issuing authority for issue of fresh cheque. The delay in realization of the cheque amount has been caused due to inadvertent loss of the instrument and the OP would only be liable for overdue interest as per banking practice. The OP prays to dismiss the complaint.

4)The complainant and the OP have filed their affidavits. The complainant has got marked Ex.C-1 to C-8.

5)The point that arises for our consideration is: “For what relief the complainant is entitled” ?

6)It is the contention of the counsel for the complainant that the cheque is misplaced due to the negligence of the OP. The complainant who is a land looser is deprived of the interest on the deposited amount of Rs.29,57,928-00. He prays to allow the interest and costs.

7)The counsel for the OP vehemently urged that the cheque is lost due to inadvertent loss of the instrument and the OP would only be liable for overdue interest as per banking practice. He prays to dismiss the complaint with costs.

8)It is admitted fact that the cheque is lost during transit. The OP has admitted that the OP would only be liable for overdue interest as per banking practice. The complainant who is a looser of the land has filed LAC No 56/98 and the EP No.276/07 before the Civil Judge (Sr. Dn.) Karwar. He is a sufferer for the lost 10 years. He has to enjoy the fruit of the award amount. A delay in depositing the huge amount of more than 29 lakhs is injustice caused to the complainant. The OP ought to have got deposited the amount online but he has not done so. In our view the OP has to pay to the complainant interest @ 9% pa on Rs.29,57,928/- from 29-10-2008 till realization with cost of Rs.1000-00.
We pass the following order.
ORDER

The complaint is allowed.
The OP is directed to pay to the complainant interest @ 9% pa on Rs. 29,57,928/- (Rs.Twenty nine lakhs fifty seven thousand nine hundred and twenty eight only) from 29-10-2008 till realization and cost of Rs.1,000-00 (Rs.One thousand only).

Date of Filing:20.11.2008

Date of Order: 16.03.2009

BEFORE THE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SESHADRIPURAM BANGALORE-20

Dated: 16th DAY OF MARCH 2009

PRESENT

Sri. Bajentri H.M, B.A, LL.B., President

Smt.C.V. Rajamma, B.Sc., LL.B., PGDPR, Member


COMPLAINT NO. 2513 OF 2008

Sri. V. Rao Gulur,
S/o. Gulur Seshagiri Rao (Late),
Aged About 70 years,
R/at: Flat No. T3, Plot No.33,
“Shravanthi Crescent”,
Yelachanahalli,
BANGALORE-560 062. …. Complainant.

-V/s-

The Chief Manager,
State Bank Of India, PBB,
No.296, GVS Complex,
10th Main, 22nd Cross,
3rd Block, Jayanagar,
BANGALORE-560 011.…. Opposite Party.

ORDER

This complaint is filed claiming Rs.55,333/- from the opposite party for the loss suffered along with additional compensation towards deficiency in service on the following grounds:-
The complainant got the Security release Letters on his Rupee Loan Numbers 30292012076 and 30295172037 on 21.10.2008 from the opposite party Bank and left eleven of his pledged USD certificates with Sri. Ramaprasad for renewal and prompt dispatch to the SBI, Padmanabhanagar Branch. Sri Ramaprasad, an officer in opposite party Bank, promised to dispatch them duly renewed by courier on 21.10.2008, which according to him should get to the Padmanabhanagar Branch by 23.10.2008 as 22.10.2008 was a holiday. Frantically, he was earmarking his otherwise time of value in contacting Sri. Ramaprasad from 23rd to 30th October 2008 on his phone number 26540181 to reach was next to adventure he relentlessly was pouring confirmations that the renewed USD certificates would be delivered by courier. But on the second and subsequent calls Sri. Ramaprasad said on phone that, he would find where the certificates are and personally deliver them to the SBI Padmanabhanagar Branch after the closing time of the opposite party Bank. During all the time between 23rd and 30th October 2008, he was ringing up SBI Padmanabhanagar Branch to find out whether they had received the USD deposit certificates. On the evening of 30.10.2008 at about 6.00 PM he got a confirmation call from the SBI, Padmanabhanagar Branch that the said certificates are delivered by Sri. Ramaprasad. The USD and Rupee exchange rates where at a peak of Rs.49.98 on 24.10.2008 and continued during the first part of the week of 27.10.2008, but had fallen to Rs.47.25 by the time the opposite party Bank delivered the certificates on 30.10.2008 at 6.00 PM. The criminal negligence in handling a TIME SENSITIVE Foreign Exchange Instrument has forced on him a loss that hovers around Rs.40,000/- and the same clearly graduates to its family act that is deficiency of service. While lending Rupees on Dollars as Collateral, the Bank has reduced the face value in USD by 20% keeping the 20% as a cushion against the exchange rate fluctuations, by the same yardstick, he feels compelled to saturation in invoking an order from the Forum on the opposite party allowing a mere 10%, that compute to Rs.49.98 x 0.10 = Rs.4.998 or Rs.5/- per USD of Consumers Safety Cushion for Criminal Negligence by the Bank. Thus on the USD 11,506.66 of the certificates the Bank had held and prevented him from converting the dollars at favorable rates of exchange, it would be just to award Rs.55,333/- for the criminal negligence of the Bank that also graduates to deficiency of service. Hence the complaint.

2. In the version the contention of the opposite party is as under:-
The complainant has deliberately made certain false averments to suit his case. The complainant is a customer of Padmanabhanagar Branch of SBI and the opposite party Bank is maintaining the FCNB deposits of the customers on behalf of Padmanabhanagar branch. On 21.10.2008 the complainant handed-over eleven FCNB deposits to Sri. Ramprasad, Special Assistant in opposite party Bank for noting the renewal particulars on the receipts at the instance of Padmanabhanagar Branch. These deposits were auto renewed between the period from 10.08.2008 to 04.09.2008. On receipt of the said deposits the Officer requested the complainant to wait for half an hour, since some other customers who approached the Bank prior to the complainant were waiting, but the complainant instead of waiting told the Officer that there is no urgency and requested to send the USD certificates after renewal to SBI Padmanabhanagar Branch. On 23.10.2008 the complainant asked the Branch to convert one of the deposits bearing Account No.30251275078 for USD 1045.93 which was converted at the rate of Rs.49.51 per dollar on 24.10.2008 by the Forex Link Branch and credited to the SB Account of the complainant. Two branches have different weekly offs and there were continuous holidays on account of Diwali. Since it was month end, due to continuous holidays, the work pressure was too much, therefore the USD certificates could not be sent by courier on 25th and 28th October 2008, which were the only available working days during the said period. The opposite party ensured delivery of the certificates personally on 30.10.2008. The complainant had given instructions to convert only one of the receipts and had not given instructions for conversion of the remaining deposits. If really the complainant wanted to en-cash the certificates between 21.10.2008 and 30.10.2008 he could have instructed the opposite party Bank to do so. On 20.11.2008 as per the request of the complainant, the opposite party Bank arranged for conversion of his deposits at the rate of Rs.50.255 per dollar which is much more than his expectation of Rs.49.94. 29.10.2008 was public holiday and card rate for 30th and 31st October 2008 was 49.16 and 49.11 respectively. The card rate for conversion during the period from 21.10.2008 to 06.11.2008 obtained from Forex branch is as under:-

Date
Conversion Rate
Date
Conversion Rate
21.10.2008
48.36
29.10.2008
Holiday
22.10.2008
48.76
30.10.2008
49.16
23.10.2008
47.06
31.10.2008
49.11
24.10.2008
49.51
01.11.2008
Holiday
25.10.2008
Saturday
02.11.2008
Sunday
26.10.2008
Sunday
04.11.2008
48.45
27.10.2008
Holiday
05.11.2008
46.36
28.10.2008
Mumbai Holiday
06.11.2008
48.59
20.11.2008
50.255

The allegation that, the rates peaked between 27.10.2008 and 30.10.2008 is false and baseless as the market was closed for three days between 27.10.2008 and 29.10.2008 and there was no much difference between the rates on 30th and 31st of October 2008. Therefore there is no deficiency of service on the part of the opposite party Bank. There is no basis for claiming the damages from the opposite party. The complainant had not suffered any loss, he en-cashed the certificates on 20.11.2008 at the rate higher than the rates on 21.10.2008 and 30.10.2008. It is not the case of the complainant that he could not en-cash the certificates during the period from 21.10.2008 to 30.10.2008 to take advantage of the rate prevailing at that point of time. He en-cashed only one certificate and could have en-cashed others also, if he wanted to do so. The complainant has not approached this Forum with clean hands and therefore not entitled for any relief. On these grounds the opposite party has prayed for dismissal of the complaint.

3. In support of the respective contentions, both the parties have filed affidavits. We have heard arguments on both sides.

4. 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?

5. Our findings on the above points are in the Negative for the following:-

REASONS

POINT Nos. 1 & 2:-
6. It is not in dispute that the complainant handed-over the USD certificates on 21.10.2008 to Sri. Ramaprasad, an Officer in the opposite party Bank, and the same were to be dispatched to Padmanabhanagar Branch of SBI after renewal. It is also not in dispute that Mr. Ramaprasad personally delivered the certificates to Padmanabhanagar Branch of the SBI at 6.00 PM on 30.10.2008. Therefore the deficiency in service on the part of the opposite party as alleged by the complainant is with regard to the delay of about 7 or 8 days in delivering the certificates to Padmanabhanagar Branch of the SBI duly renewed. In the version it is contended by the opposite party that, on account of Diwali most of the days were general holidays during that period and both the Branches have different weekly offs, 25th and 28th October 2008 where the only available working days during that period and therefore the certificates could not be sent by courier to Padmanabhanagar of SBI before 30.10.2008. It is also contended by the opposite party that there was more pressure of work due to continuous holidays and it was a month end. If that is so, no fault could be found with the opposite party in not sending the certificates to Padmanabhanagar Branch of the SBI before 30.10.2008. It is not the case of the complainant that between 21.10.2008 and 30.10.2008 he wanted to convert the USD certificates and on account of not sending the certificates duly renewed he was deprived-off the same. The contention of the opposite party that on 23.10.2008 the complainant gave instructions to convert only one of the deposits and the same was done at the rate of Rs.49.51 per dollar on 24.10.2008 and that on 20.11.2008 the certificates were converted at the rate of Rs.50.255 dollar as requested by the complainant is not denied. This clearly goes to indicate that, between 21.10.2008 and 30.10.2008 the complainant had no intention to convert the USD certificates due to the decrease in the exchange rates and therefore on 20.11.2008 he got the certificates converted at the rate of Rs.50.255 per dollar and thereby he gained more than what he got on 24.10.2008. If that is so, the complainant has not sustained any loss on account of the delay in sending the certificates duly renewed to Padmanabhanagar Branch of the SBI. If the opposite party was unable to send the certificates before 30.10.2008 on account of continuous holidays and due to pressure of work, no fault could be found with the opposite party especially when the complainant has not sustained any loss on account of delay in sending the certificates to Padmanabhanagar branch of SBI. Therefore we hold that, the complainant has failed to make out any deficiency in service on the part of the opposite party and as such, not entitled for the relief prayed for. In the result, we pass the following:-

ORDER

7. The complaint is dismissed. No order as to costs.

8. Send a copy of this order to both the parties free of costs immediately.

9. Pronounced in the Open Forum on this 16th DAY OF MARCH 2009.

MEMBER PRESIDENT

Mr. V. Robert,
Mrs.R. Latha, Complainant
Both at # 44/29, Ramanujam Street,
II Floor, T. Nagar, Chennai-17.

Vs

1. Branch Manager SBI
PBB Indra Nagar Branch,
Plot No.# 4 Teacher’s Colony,
Indra Nagar, Adayar , Chennai-20. Opposite parties

2. The Branch Head,
SBI Life ;Insurance Co.,
# 149 Greams Road,
Greams Dugar “2nd Floor,
Chdnnai – 6.


Date of Complaint : 02.08.2007
M/s. S. Natarajan : Counsel for the complainant
M/s. S. Maran & C. Mahandran : Counsel for the 1st opposite party

Mr.V. Srinivas, : Head-Legal, for the 2nd opposite Party

ORDER

THIRU.P. ROSIAH, PRESIDENT.
Complaint under section 12 (1) of the Consumer Protection Act,1986.


1. The main averments of the complainant are as follows:
The complainant and his wife have jointly applied for the housing loan for Rs.8 lakhs from the 1st opposite party and that the loan was sanctioned on 03.06.2005. As advised by the 1st opposite party regarding State Bank of India Life Supersuraksha, for which 50% premium concession will be given for younger applicant. The complainant and his wife have jointly applied and paid premium of Rs.59,000/-. On 20.09.2005, the complainants were informed that the insurance premium benefit amount of Rs.55,142/- will be taken to cover his wife alone . As per the advice of the 2nd opposite party, the complainants had applied for loan again on 08.06.2005 and paid Rs.4,317/- in favour of the SBI Life Insurance Co Ltd., . The 2nd opposite party informed the complainant that the loan was jointly applied and hence 50% premium rebate cannot be given to the 2nd applicant. The letter addressed to the opposite parties by the complainant to include his name in the insurance was not responded by the opposite parties. Hence, there is deficiency in service on the part of the opposite parties. The complainants have filed this complaint to include the name of the 1st complainant in the insurance and pay Rs.1,45,000/- for deficiency in service and Rs.50,000/- for mental agony and Rs.5000/- as costs of the complaint.


2. The 2nd opposite party filed version which was adopted by he 1st opposite party. The averments of the version are briefly as follows:
The wife of the complainant R. Latha had submitted proposal under housing loan against the policy and her name was only mentioned as applicant. The 1st opposite party has not received any application seeking insurance cover from the complainant. Since the complainant has not applied for coverage, the policy was issued only in the name of his wife. Since the opposite parties have not received any proposal from the complainants seeking joint life cover it is not possible for the opposite party to issue joint insurance policy and prayed for the dismissal of the complaint.


3. Proof affidavits have been filed by both the complainant and the opposite parties. Exhibits A1 to A7 have been marked on the side of the complainant. Exhibits B1 to B3 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: The complainant and his wife were sanctioned housing loan of Rs.8,59,000/- by letter dated 03.06.2005 by the State Bank of India . Ex A1 is the copy of the sanctioned order. Ex A2 is the agreement for additional housing loan submitted by the complainant and his wife to the opposite party. They have sent cheque for Rs4,317/- for State Bank of India Life Insurance Company. By letter dated 06.09.2005, the opposite party informed the complainant and his wife for submitting medical questionnaire for considering SBI insurance. But the letter dated 20.06.2005 (Ex A4) the wife of the complainant R. Latha was admitted in the Insurance scheme. Even in Ex A5, the Insurance for housing loan, the name of both the complainants and his wife R. Laltha were mentioned. In Ex A6, the complainant was informed to rectify certain corrections. Hence, it cannot be said that the complainant has not applied for SBI Insurance. The application submitted by the complainant has not been rejected but it was returned for submissions and according to the complainant, the opposite parties, without considering his plea had issued only one certificate in the name of his wife. The act of the opposite parties amounts to deficiency in service.


6. Though the opposite parties would submit that the complainant has not sent any proposal for State Bank of India Insurance. We find from Exhibits A2, A3, A4 and A6 that the complainant had applied for SBI Life Insurance along with his wife. Those documents were filed by the complainant along with their proof affidavit. Hence, the non-inclusion of the name of the complainant in the SBI Insurance amounts to deficiency in service.



7. Point No.2: In the result, the complaint is allowed. The opposite parties 1 and 2 are directed jointly and severally to include the name of the 1st complainant, i.e., V. Robert in the insurance policy, if necessary, after obtaining necessary forms, within two months from the date of receipt of copy of this order. The opposite parties 1 and 2 are further directed jointly and severally to pay a sum of Rs.25,000/-as compensation for mental agony and Rs.5000/- as cost of the complaint to the complainant within two months 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.

K. Dhanabalan,
Advocate,
35-A, Muruganathapuram(South),
Karur Town, Karur TK & Dist. … Complainant

-versus-

The Branch Manager,
State Bank of India,
Vanagal Branch,
Vangal, Karur District. … Opposite Party

This complaint coming on this day for final hearing before us, in the presence of the complainant appeared in person and the opposite party not entered appearance and the complainant filed a memo stating that the matter is settled and this Forum passed the following:

ORDER

1. The complaint is for directing the opposite party to refund Rs.8,035/- with interest, to pay Rs. 5,000/- towards compensation for mental agony, loss of income and cost of this complaint to the complainant.

2. Full satisfaction Memo filed and recorded. Hence, this matter is settled out of this Hon’ble Forum. This petition is dismissed without costs.

Mr. K. Jayaram Kamath,
Smt. K. Jaya Kamath

Both residing at Alvares Road,
Kadri, Mangalore Taluka,
D. K. District …………………….Complainants
V

State Bank of India,
Ponda Branch, Goa
By its Chief Manager .......………...…..Opposite Party-1

Asst. General Manager
State Bank of India,
Ponda Branch, Goa,. .........………...…..Opposite Party-2

M/s. Saima Agro Industries,
No.10, Opp. Merk Maravasada,
Usgaon, Goa. .........………...…..Opposite Party-3

Mr. Aditya Prasad K. Prabhu,
Major, Saterimol, Nirankal,
Ponda, Goa .........………...…..Opposite Party-4



Date: - 23/03/09

O R D E R


(Per Smt. Shubhalaxmi U.P.Raikar, President)

1.It is the case of Complainant that Opposite Party1 & 2 released the loan to Opposite Party 3 before obtaining signatures of Complainant and Opposite Party 1 & 2 have not executed any documents evidencing the deposit of Title Deeds with Opposite Party 1 & 2 to create any charge on property bearing Sr.No. 234 1E situated at Mucchur – Mangalore.

2.It is further case of Complainant that for Opposite Party 3’s loan they stood as guarantors and they should be replaced with Opposite Party 4 as new guarantor and further to be

allowed to sell their property to Opposite Party 4 as they have already entered into an Agreement. The Complainant admit that original documents were given to Opposite Party 1 & 2 on 30/08/2005 but without any EMT.

3.There is no dispute on execution of Arrangement letters duly signed by Complainants in favour of Opposite Party 1 & 2 for loan sanctioned to Opposite Party 3.

4.The dispute is rejection on the part of Opposite Party 1 & 2 of request made to issue NOC to sell and replace the guarantor as well as taking of signatures of Complainant subsequent to sanction of loan on 8/4/05.

5.We find Arrangement letters dated 20/4/05 and admittedly the original papers are handed over by Complainant to Opposite Party 1 & 2 on 30/08/05 i.e. after 4 months. The Agreement for sale of mortgaged property between Opposite Party 4 and Complainants though mentioned in pleadings is not placed on record nor relied upon nor its date of execution is available.

6.The first letter of request filed by Complainant is on 24/8/06 i.e. after one year of handing over original title.

7.Here many questions are posed to our mind as to why original title deeds of Guarantors were handed over to Opposite Party 1 & 2 without creating EMT? As to why for one year Complainants were quiet on the issue? All these questions are unanswered and may touch to the merits and whether Forums should decide all these issues? Opposite Party has denied all above.

8.Opposite Partyin its preliminary objections have raised the issue of Consumerism and of deficiency on the part of Opposite Party 1 & 2 and lispendence i.e. pending suit in D.R.T. filed on 18/6/09. Opposite Party 1 & 2 has produced letter/ summons dated 7/7/08. It is not evident from this record as to when the Recovery proceedings were filed before D.R.T. but it certainly should have been filed in June ’08 or prior.

9.We are of the considered opinion on going through entire documents and pleadings that issues involved does not come under the purview of Consumer Protection Act, 1986 and this is a fit case of dismissal on the following grounds though at the admission stage it was admitted on looking at prima-facie pleading and documents of only Complainant: -

a)The Complaint filed involves disputed questions and contentions which are civil in nature.



b)Complainant proclaims to be Guarantor for the loan sanctioned to the Opposite Party No.3 has voluntarily offered his documents entitled of the property for mortgage.

c)The Complainant therefore is not a consumer under the Consumer Protection Act and we are of the considered opinion that he has to agitate his problems before the Death Recovery Tribunal for adjudication.

d)As the matter is already filed before the Death Recovery Tribunal we find that deciding the issue is beyond the scope of Consumer Protection Act. Hence we dismiss this Complaint on the basis of preliminary objections.

(Shubhalaxmi U.P.Raikar)

President

Consumer Complaint NO. : 10/ 2009


Sri Balai Kundu
S/o Lt. Murari Mohan Kundu
Vill.: Bura Hili,
PO & PS.: Hili
Dist. Dakshin Dinajpur- Complainant(s)


V-E-R-S-U-S
The Branch Manager,
State Bank of India,
Balurghat Branch,
PS.: Balurghat,
Dist. Dakshin Dinajpur - Opposite Party(s)






For the complainant - Sri Debashis Barman, Adv.
- Kamalika Pramanik, Adv.
- Madhumita Sarkar, Adv.




Date of Filing : on 13.03.2009
Date of Disposal : on 27.04.2009


Order No.6

Dt. 27.04.2009

Lawyer’s hazira has been filed on behalf of the complainant.
The case record is taken up for order.
Such order follows hearing on point of admission of the complaint.
Here the complaint was brought by the complainant Sri Balai Kundu u/s 12 CP Act on 13.03.2009 against the Branch Manager, State Bank of India, Balurghat Branch alleging deficiency in service.


Complainant’s case as made out in the said complaint, in brief, is that, one Sri Nirmal Kundu took loan from the OP Bank on 24.11.2000 for purchasing a tractor. In such loan transaction the complainant stood as a guarantor. The complainant deposited his fixed deposit certificate bearing No.084390 dt. 21.11.2000 as a security. In view of failure on the part of borrower in paying up the dues, OP Bank brought a money suit bearing No.M.S.6/2005 wherein complainant was also made a party. The suit was decreed in favour of present OP Bank. In the proceeding for execution for the said decree the complainant stated the description of the mortgaged property of the borrower as also the registration No. of the tractor of the borrower and the place at which such tractor remained engaged in cultivation. He virtually prayed before the Court that the dues respecting the loan could be recovered from those properties of the borrower and fixed deposit amount be released to him. The OP Bank instead of taking steps for recovering the dues from the property of the borrower attempted to adjust the fixed deposit amount of the complainant against the dues over the loan.


In response to complainant’s application for releasing the fixed deposit amount to him, the OP Bank informed the complainant that the amount of the fixed deposit had already been adjusted towards the loan amount.
It has been the case of the complainant that the OP Bank could not adjust the proceeds of the fixed deposit against the dues of the loan without exhausting process of recovery of the dues from the property of the borrower.
Date of maturity of fixed deposit account was 21.11.2003.


In the back drop of such circumstances, the complainant brought the complaint seeking direction upon the OP Bank to recover the dues of the borrower by way of attachment of his properties and to pay back the amount of fixed deposit to the complainant together interest. In the complaint, the complainant also prayed for compensation for mental agony and for costs of litigation.
In support of the complaint the complainant filed in this case copy of his application dt. 13.01.2009 addressed to the OP Bank seeking releasing of the fixed deposit amount to him and that of the fixed deposit receipt.
In course of hearing on point of admission the Ld. Counsel appearing for the complainant urged that the obligation of the surety is to indemnify the creditor in case the principal debtor fails to discharge his debt and so the OP Bank could not have adjusted the amount of the proceeds of the fixed deposit towards dues of the loan transaction without having taken appropriate steps for the recovering the dues from the property of principal debtor and so adjusting of the fixed deposit amount by the OP Bank without exhausting the process against the principal debtor, amounts to deficiency in service on the part of OP Bank and that in such premises the present complaint brought by the complainant should be entertained by this Forum under the CP Act.


We have gone through the complaint, perused the documents filed in support thereof and have carefully taken into consideration the submissions advanced by the Ld. Counsel.


Here it remains admitted by the complainant that he stood as surety for the loan transaction. It also remains admitted by the complainant in para 2 of his complaint that he made over the fixed deposit certificate “as a security against the loan transaction“. It also remains admitted that the dues in respect of loan transaction have not been paid back by the principal borrower and that the Money Suit brought against the borrower and the complainant by the present OP Bank was decreed in favour of the present OP Bank. It has virtually been the case of the complainant that the OP Bank did not have the authority to adjust the proceeds of the fixed deposit account of the surety without having exhausted the process for the recovery the dues from the principal borrower.


Sec. 128 of the Indian Contract Act, says that the liability of the surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract. Here it has not been the case of the complainant that the contract specifically provided that the recovery should not be made from the surety without having exhausted the process the recovering the dues from the principal debtor. We should therefore proceed treating that under the contract in question, the liability of the surety has been co-extensive with that of the principal debtor.


In the case of the Bank of Bihar Ltd. –vs- Dr. Damodar Prasad & Anr. reported in AIR 1969 SC 297 the Hon’ble Apex Court almost in the back drop of similar circumstances recorded the following observation in Para 4 of the judgement:-
“*** Before payment the surety has no right to dictate terms to the creditor and ask him to pursue his remedies against the principal in the first instance***”.


The Hon’ble Court further observed therein that the liability of the surety was immediate and that it was not deferred until the creditor exhausted his remedies against the principal debtor.


Having kept in view the said observation of the Hon’ble Apex Court, we are not in a position to accept the contention advanced by the Ld. Counsel that the adjusting of the proceeds of the fixed deposit of the surety without having exhausted process of recovering the dues from the property of the principal debtor, should be viewed to have been deficiency in service on the part of OP Bank. The complaint brought by the complainant in the instant case, therefore, cannot be regarded to be a “complaint” within the meaning of such term appearing in Sec. 2 (1) (c) of the CP Act. Such complaint brought by the complainant, therefore, cannot be allowed to be proceeded with in this Forum under the CP Act.
Accordingly it is.
O R D E R E D




That the complaint brought by the complainant Sri Balai Kundu on 13.03.2009 stands rejected in terms of Subsec (3) of Sec. 12 of the C.P. Act.
Let a plain copy of this order be furnished to the complainant free of cost forthwith.

Sunit Khanna son of Sh. Darshan Kumar Khanna, resident of House No.153, Janta Enclave, Dugri Dhandra Road, Ludhiana. (Complainant)
Vs.

1. State Bank of India through its Manager, Model Town Extn. Branch, Ludhiana.

2. Assistant General Manager, State Bank of India, Branch Fountain Chowk, Ludhiana.
(Opposite parties)

Complaint under section 12 of the Consumer Protection Act, 1986.
….

Quorum:
Sh. T.N. Vaidya, President.
Sh. Rajesh Kumar, Member.

Present:
Sh. S.S. Rai Advocate for the complainant.
Sh. B.L. Saini Advocate for opposite parties.

O R D E R


T.N. VAIDYA, PRESIDENT:


1. Complainant applied and obtained personal loan of Rs.1,00,000/-, sanctioned by opposite party on 12.1.2005 vide his loan account no.3000196244. While sanctioning the loan, opposite party obtained signatures of the complainant on printed format of loan agreement, columns of which were blank and not filled. Opposite party took for repayment of the loan in 22 equated monthly instalments, post dated cheques of Rs.5000/- each. Opposite party thereafter encashed 16 cheques, but failed to present remaining 6 cheques. Though complainant had sufficient amount in his account to meet requirement of those cheques. Had those 6 cheques presented by the opposite party, they would have been honoured. This happened as previous bank Manager was transferred and new incumbent failed to submit his 6 post dated cheques. He then declared the complainant to be a defaulter without any fault on his part. Complainant obtained on 11.10.2007 his bank statement and then came to know that his 6 post dated cheques were never presented by the opposite party on due dates till May,2006. Consequently, opposite party started burdening the complainant with additional interest on the balance amount, which remained unpaid due to fault of the opposite party for not encashing of his 6 post dated cheques. Opposite party threatened and forced him to pay excess interest on the loan amount. Complainant took up this matter with the senior officer of the bank for refund of Rs.3378/- interest illegally charged form him, but to no effect. Hence, in this complaint under section 12 of the Consumer Protection Act, 1986, complainant claimed that it was deficiency in service on the part of opposite party and therefore, entitled for refund of Rs.3378/- charged illegally as interest and also entitled for compensation of Rs.1,00,000/- for harassment.



2. Opposite party in reply have controverted the allegations of the complainant. However, admitted that loan of Rs.1,00,000/- was granted to the complainant who entered into an agreement for repayment of the loan. But rest of the allegations that loan was repayable in 22 monthly instalments of Rs.5000/-each is denied. Rather claimed that complainant under the agreement had agreed to repay the loan in 48 equated monthly instalments of Rs.2671/- each. They denied that 22 post dated cheques were issued by the complainant for Rs.5000/- each. Account of the complainant was regular and advance payments were coming, so, he was never declared defaulter. Complainant was aware that his 6 cheques were not presented, as he was getting regularly statements of account from his ICICI bank, on which the cheques were drawn. Cheques of the loan were presented on asking of the complainant, who revalidated the same voluntarily. Also denied that Rs.3378/- were wrongly and illegally charged form the complainant as interest.


3. Both the parties adduced their evidence by way of affidavits and documents in support of their respective contentions.


4. We have heard the arguments addressed by the ld. counsel for the parties, have gone through the file, scanned the documents and other material on record.



5. On behalf of the complainant, it is contended that while granting loan of Rs.1,00,000/- Manager of the Bank obtained signatures of the complainant on printed agreement form, columns of which were blank and he appended signatures in good faith as required by the Manager of the bank. Further argued that Manager of the OP Bank at that time also obtained 22 post dated cheques of Rs.5000/-each for repayment of the loan amount of Rs.1,00,000/-. But subsequently he was forced by opposite party to pay extra interest of Rs.3378/-.


6. On the other hand Sh. B.L.Saini Adv. ld. counsel for the opposite party argued that parties are bound by terms and conditions of the agreement where the complainant had agreed to repay the loan in 48 monthly equated instalments of Rs.2671/-each. This agreement also empowered the opposite party not to present the cheque due to any reason and that it was responsibility of the borrower to see that payment was made of the cheque amount. He as such contended that terms and conditions of the agreement were in knowledge of the complainant and his signatures on blank printed form were never obtained.



7. Before we appreciate rival contention of the parties, would prefer to refer established point revealed from bank statement Ex.C.10 of the complainant pertaining to his loan account with the OP-Bank. Total loan sanctioned in his favour was Rs.1,01,100/- and after debiting Rs.1,100/- as processing fee, loan of Rs.1,00,000/- was debited to the loan account of the complainant on 12.1.2006. Against this loan account, payment of Rs.5000/- each by way of cheques have been credited to the account of the complainant on different dates. From 25.2.2005 to 24.6.2006, receipt of Rs.5000/- each by encashing cheques of the complainant is credited to his account. So, it means, 16 cheques which the complainant claimed post dated cheques obtained form him while sanctioning the loan, were really encashed from his account by the opposite party.



8. Though as per terms and conditions of the loan agreement, copy of which is Ex.C.1 (R1) which is printed format of the loan agreement, columns of which have been filled by hand, shows that in terms of the agreement, complainant agreed to repay the loan amount in 48 equal monthly instalments of Rs.2671/-each. Thus condition in the agreement was to repay the loan in 48 monthly equated instalments of Rs.2671/-each. It was against the back drop of this agreement that the Manager of the opposite party-bank instead of obtaining 48 post dated cheques of Rs.2671/- each as mentioned in the agreement, obtained 22 post dated cheques of Rs.5000/- each from the complainant. Obtaining of those 22 post dated cheques of Rs.5000/- each from the complainant make his version strictly respectful, trust worthy and confidence inspiring, that agreement was to repay the loan in 22 instalments of Rs.5000/-each. It was for such reason that instead of 48 post dated cheques of Rs.2671/- each, 22 cheques of Rs.5000/- were taken from the complainant. This means that allegations of the complainant have some force that his signatures on the agreement Ex.C1 were taken when the columns of the same were blank and he signed the document in good faith.



9. It appears that officials of the opposite party subsequently when filled the columns of this agreement Ex.R.1 (C1) instead of mentioning repayment in 22 instalments of Rs.5000/- each recorded 48 instalments of Rs.2671/- each. Along with agreement Ex.C1, annexure CII also appears to be filled later on and not at the time of obtaining the signatures of the complainant.




10. Though we are aware that oral evidence may not be admissible to prove contents of the document. But herein there is no escape from the conclusion that format of the agreement Ex,C1 (R1) was not filled when signatures of the complainant were obtained while granting the loan. Had it been prepared at that very moment of granting the loan, then opposite party would not have accepted 22 cheques of Rs.5000/- each from the complainant, as the agreement reflects repayment in 48 instalments of Rs.2671/- each. Because 16 cheques out of 22, each of Rs.5000/- were encashed by the opposite party as apparent from the loan account statement of the complainant.


11. Further it was argued on behalf of the opposite party that borrower is not debarred to pay higher amount of instalments than agreed. We have no reason, not to agree with this contention. The borrower may pay to the opposite party higher amount than agreed. But in all events would be bound to pay total interest as calculated by the bank in terms of the agreement with the borrower. Earlier discharge of the loan, without seeking concession from the opposite party on interest part, by way of foreclosure would not absolve the borrower to clear the loan in entirety. But we are not convinced by this argument of the ld. counsel for the opposite party. As in the instant case, had agreement to repay the loan in 48 instalments of Rs.2671/- each, then the complainant would not have been foolish to have paid at the same time 22 post dated cheques of Rs.5000/-each. He consequently, would have saved his money by paying cheques of Rs.2671/-each. Action of the opposite party receiving 22 cheques of Rs.5000/-each shows that agreement between the parties was to repay the loan amount in 22 monthly equated instalments. Of Rs.5000/-each. It was for such reason that those cheques were accepted and out of which 16 were got encashed regularly, without fail by the opposite party. Therefore, we are not swayed by the contention of the opposite party that the borrower is not debarred to pay higher amount than agreed to clear his debt account. Because by making bigger amount, than agreed, the complainant would have sought foreclosure of the loan to save certain interest. But he never do so. All the events make it abundantly clear that understanding and agreement between the parties while granting loan to the complainant was to refund the same in 22 equated monthly instalments of Rs.5000/-each, but subsequently when the columns of the agreement and related documents were prepared and filled by the officials of the opposite party, they bonafidely, by mistake or otherwise mentioned repayment of the loan in 48 equated monthly instalments of Rs.2671/-each.



12. Hence, in scenario of the facts, we trust and believe the claim of the complainant that he was made to append signatures while granting loan on a printed format, columns of which were blank.



13. This, as such, make us to conclude that opposite party without any cause failed to present 6 post dated cheques, each of Rs.5000/-, of the complainant. This was done as according to the complainant previous Manager of the opposite party who had granted the loan was transferred. Ld. counsel for the opposite party justified the action in terms of the conditions of the agreement, empowering bank not to present any cheque and making borrower liable to pay monthly instalments. This condition of the agreement reads as under:
“On demand the Borrower agrees to deliver to the Bank post-dated cheques for the monthly instalments and the Borrower warrants that the cheques will be honoured on first presentation. Any non-presentation of a cheque due to any reason will not affect the liability of the Borrower to pay the monthly instalments or any other sum. The borrower agrees to forthwith replace the cheques/issue fresh cheques if required by the Bank”

14. No doubt, non presentation of the cheques was prerogative of the bank. But this clause in the agreement appears to the repugnant to the interest of a consumer. Because bank had protected its interest by procuring post dated cheques from the complainant, out of which majority of the cheques, numbering 16 out of 22, were encashed by the bank. Complainant had sufficient money in his account to meet the amount of 6 post dated cheques of Rs.5000/-each. But opposite party without any reason failed to encash those cheques. This way a sum of Rs.3378/- charged by way of excess interest from the complainant, in our view, certainly would amount to deficiency in service on the part of opposite party, resorting to unfair trade practice. That amount has wrongly been forced upon the complainant, though for payment of the loan amount had already furnished post dated cheques to the opposite party.




15. In these circumstances, for resorting to unfair trade practice, caused to the complainant/consumer under the opposite party, we allow this complaint and consequently direct the opposite party to refund Rs.3378/- to the complainant within 45 days of the receipt of copy of the order, failing which shall be liable to pay interest @9% per annum from the date of complaint till payment. In peculiar circumstances of the case, we pass no order as to compensation but order opposite party to pay him litigation cost of Rs.1000/-(Rs. One Thousand only).

CONSUMER COMPLAINT NO. 316/2008

Between:

Tallapragada Venkata Ratna Durga Varaprasad
S/o late Ramachandra Sarma, Hindu, male, 41 years
Rtd., Military employee, H.No.2/186, Teachers Colony
K. Savaram, Undrajavaram Mandal, W.G. Dist., -- Complainant

And

The Manager, State Bank of India, Eluru Main branch
Near District Court, W.G. Dist., Eluru -- Opposite Parties
This complaint coming before us for final hearing on 24-4-2009 and on perusing the Complaint, version and other material papers on record and on hearing the arguments of Sri. O.S. Nageswara Rao, Advocate for the complainant and opposite party remained exparte, and the matter having stood over for consideration to this day, this forum made the following:-

O R D E R

The complainant filed the present complaint under Sec. 9 of Consumer Protection Act, 1986 with a request to direct the opposite party to pay a sum of Rs.88,108/- ie., Rs.50,000/- towards compensation for mental agony and damages, Rs.8,108/- towards loss of interest on 2,48,187/- from 7-7-2008 to 15-10-2008 at the rate of 12% pa., and Rs.30,000/- towards compensation for deficiency in service and costs of the complaint. The averment of the complaint in brief are that :



2. The complainant is a retired serviceman. After his retirement a sum of Rs.2,48,187/- towards commutation of pension was released by the Record Office, Office of Army Medical Corps at Lucknow vide reference letter dt. 7-7-2008, SR13978018 Y/SP(COMM) to credit the same to the account of the complainant bearing No. 30401363976 of the branch of opposite party. The office of Lucknow also issued a letter to that effect to the complainant and asked him to approach the State Bank of India, Eluru. Accordingly when the complainant approached the State Bank of India, Eluru, the authorities of the bank asked him to approach the head office ie., the opposite party as the accounts of the complainant were transferred to the opposite party. On the said advise, the complainant approached the office of the opposite party several times to know about the said amounts referred above is credited to the said account. But the personnel of the opposite party did not give satisfactory reply and made the complainant to run from pillar to post. At last, on several visits of the complainant to the office of the opposite party, the complainant was ultimately informed that no such amount was received from the office of the Medical Camp at Lucknow. Thereupon since the account of the complainant is at SBI, Tanuku, the complainant approached the said branch at Tanuku and brought to their notice about the non-receipt of the said amount. Thereupon, the Manager of SBI, Tanuku informed the complainant that he is helpless and nothing to do unless and until Rs.2,418,187/- is credited by the SBI Main Branch to the online account of the complainant and asked the complainant to approach the opposite party again. When the complainant again approached the opposite party but there is no positive response from it. Thereupon the complainant on 22-9-2008 got issued a notice to the opposite party demanding it to inform the complainant about the receipt or non-receipt of commutation of pension of Rs.2,48,187/- by the opposite party from the office of medical corps at Lucknow and enable him to get his amount. The opposite party received the said notice on 24-9-2008 and simply kept quite. The opposite party is collecting Rs.35/- whenever the complainant received pension from the office of the Army Medical Corps at Lucknow. However, the services of the opposite party are deficient in nature. It is further averred that had the complainant received commutation of pension of Rs.2,48,187/- within time ie., on or before 10th July, 2008 he would have invested the same in the fixed deposit and he would get interest at the rate of 12% pa., on the said amount. Due to latches in the service of the opposite party, the complainant has to loose Rs.10,000/- which would be recovered by the office of Army Medical Corps, Lucknow from the pension payable to the complainant as the said office paid 100% instead of 55%. As the commutation of pension has not done within time due to deficiency in service on the part of the opposite party, the complainant sustained heavy loss. Thus the present complaint is filed for the aforesaid reliefs.




3. The opposite party having received the notice on the complaint did not turn up to oppose the complaint filed by the complainant and remained exparte.


4. Thereafter, the complainant in support of his complaint filed his affidavit and got marked Ex A.1 to Ex A.6.



5. The points for determination now are :
1)Is there any deficiency in service on the part of the opposite party to the complainant ?
2)Whether the complainant is entitled for the reliefs sought for by him ?
3)To what reoief ?



POINT No.1:
As per the case of the complainant and in view of Ex A.1 to Ex A.3, it is a fact borne out from the record that the complainant is a retired serviceman having his SB. A/c No.30401363976 with the State Bank of India, Tanuku branch and his pension is being credited to the said account. It is the further case of the complainant that on receipt of the copy of pension payment order agreeing sanction of the commutation of pension, he approached the authorities of the State Bank of India, Eluru branch at Powerpet, who in turn informed him to approach the State Bank of India, main branch, Eluru ie., the opposite party on the ground that the accounts of the complainant were transferred to the opposite party, that thereupon the complainant approached the opposite party several times to know whether the said amount is credited to his account but the authorities of the opposite party did not give satisfactory reply and made him to run from pillar to post. It is also the case of the complainant that he again approached the authorities of the State Bank of India, Tanuku where he is maintaining account and brought the same to their notice about the non-receipt of the said amount that later, on the advise of the authorities of the State Bank of India, Tanuku, he again approached the opposite party but he could not get any positive response from the opposite party. It is also the further case of the complainant that he, having no alternative, got issued a notice dt. 22-9-2008 as can be seen from Ex A.5, demanding it to inform him about the receipt or non-receipt of commutation of pension amount of Rs.2,48,187/- from the office of the Medical Corps at Lucknow and in case of non-receipt of the said amount, the steps taken by the opposite party in response to the letter dt. 7-7-2008 addressed to the opposite party by the Record Office at Lucknow and to enable him to get his amount. As can be seen from Ex A.6 postal acknowledgement, it is a fact that the notice dt. 22-9-2008 got issued by the complainant was received by the opposite party on 24-9-2008. It is the contention of the complainant that inspite of it, the opposite party kept quite. It appears from the averments of the complaint that the said amount of Rs.2,48,187/- was credited to the account of the complainant on or before 15-10-2008. The said part of the case of the complainant is not denied by the opposite party and in fact the opposite party having received the notice on the complaint filed by the complainant remained exparte.
As stated above, it is the case of the complainant that the opposite party had not shown any positive response for crediting the said amount of Rs.2,48,187/- between 7-7-2008 the date on which the payment order was made till on or before 15-10-2008 resulting the complainant making his rounds on several occasions from one branch to another of the opposite party. If really the opposite party would have given proper response in time and the amount of Rs.2,48,187/- would have been credited to the account of the complainant within time he would not have sustained any loss over the said amount for the reason that it is the contention of the complainant that if he would have invested the same in fixed deposit, he would have get interest at 12% pa., on the said amount. The said activity of the opposite party in not giving proper response to the complainant and making him to approach from one branch to another branch on several occasions naturally causes mental agony. Under the said circumstances not giving positive response by the opposite party to the complainant amounts to deficiency in service.
As stated above, the opposite party did not challenge the case of the complainant and in fact it remained exparte. The silence on the part of the opposite party in not giving any reply to the notice got issued by the complainant under the original of it Ex A.5 also amounts to admission of the case of the complainant.



Pont No. 2 :
Under the stated circumstances and for the reasons stated above, we hold that the complainant has succeeded in establishing his case and the part played by the opposite party in not giving proper response to the complainant amounts to deficiency in service, as such the complainant is entitled for a reasonable relief. The point is answered accordingly.




Pont No. 3:
In the result, the complaint is allowed directing the opposite party to pay to the complainant a sum of Rs.5000/- (Rupees five thousands only) towards compensation for the deficiency in service, Rs.5000/- (Rupees five thousands only) towards compensation for mental agony suffered by the complainant from the date of the payment order till the amount is credited to his account within 30 days from the date of due dispatch of free copy of this order.
Since the claim made by the complainant towards loss of interest is unwarranted as he is reasonably compensated and in view of the facts and circumstances, no order as to costs.

C.C.No.107/2008

Between

T. Nagaraja,
S/o. T. Gangula Chetty,
Hindu, aged about 53 years,
Polichettyvaripalle Village,
Damalacheruvu Post,
Pakala Mandal,
Chittoor District … Complainant

And

State Bank of India,
Rep.by its Branch Manager,
Near A.P.S.R.T.C. Bus-Stand,
Pakala,
Chittoor District. … Opposite party

This complaint coming on before us for final hearing on 13.04.09 and upon perusing the complaint, written version and other relevant material papers on record and on hearing Sri.S.Naveen Kumar, counsel for the complainant and Sri.L.Madhusudhan Reddy, counsel for the opposite party and having stood over till this day for consideration, the Forum made the following:-

ORDER

DELIVERED BY SRI. G.V.RAGHAVULU, PRESIDENT

ON BEHALF OF THE BENCH

This complaint is filed under Section-12 of Consumer Protection Act 1986, to pass an order directing the opposite party to pay Rs.1,05,093/- towards recurring deposit amount with interest at 12% per annum from 01.08.2008 till the date of realization, to pay Rs.50,000/- towards damages, loss and mental agony and to pay costs of Rs.5,000/- towards incidental expenses to the complainant.




2. The averments of the complaint in brief are :- In the year 1992, the opposite party, which is a nationalized bank, invited deposits of various kinds from the public by giving so much publicity by way of paper pamphlets and hoardings in and around Pakala town. The complainant, attracted by the publicity given by the opposite party, invested a sum of Rs.14,400/- under scheme No.3 stated in the pamphlet in recurring deposit account No.59 on 01.08.1992 for a period of 15 years. The opposite party issued a pass book mentioning the maturity value as Rs.1,05,093/-. The maturity date is 01.08.2007, but due to typographical mistake, the opposite party wrongly mentioned the date of maturity as 01.08.2008. The complainant approached the opposite party for correcting the maturity date for which the opposite party assured that there will be no problem at all and after completion of the said scheme the complainant can take the amount. Upon the assurance given by the opposite party, the complainant kept quiet. As per the terms and conditions of recurring deposit and contract entered on the date of the recurring deposit account, the opposite party has to repay the maturity amount on 01.08.2007. But to the utter surprise of the complainant, the opposite party refused to pay the maturity amount as shown in the pass book and offered to give only Rs.9,000/-. As the terms of the contract are violated, there is deficiency of service on the part of opposite party. The complainant got issued personal notice to the opposite party on 06.09.2007. The opposite party, having acknowledged the same, did not comply the demands of the notice. The complainant with fond hope that the bank will pay the recurring deposit amount within stipulated time for the purpose of his daughter’s marriage deposited the amount, but due to non-receipt of the amount from the opposite party, the complainant very much disappointed as to how he will perform his daughter’s marriage. The complainant was forced to file a complaint in C.C.114 of 2007 on the file of this Forum seeking remedies against the opposite party. This Forum dismissed the said complaint on 31.01.2008 as premature with a finding that the maturity date is 01.08.2008. The complainant after completion of maturity date i.e. 01.08.2008 got issued legal notice dt:08.09.2008 calling upon the opposite party to pay the maturity value of Rs.1,05,093/- along with other benefits. The opposite party, having acknowledged the notice, neither complied nor replied. The opposite party is liable to pay the said sum with interest at 12% from 01.08.2008. Due to the deficiency in service on the part of opposite party, the complainant suffered mentally and physically and was put to severe mental agony. Hence the complaint.




3. In the written version filed on behalf of opposite party, while denying the material averments / allegations made in the complaint, it is inter alia stated that the scheme was announced by the bank as E.W.Scheme. As per the R.B.I. rules, the banks not to have the fixed deposits or term deposits for more than the period of 10 years and the same is confirmed by the Finance Department of Government of India. As per the scheme, the amounts collected are treated as term deposits for a period of 10 years and the later period is treated as renewal period. Accordingly the same is mentioned in the rules of the scheme and also affixed to the notice board. So, as per the rules and circular issued by the bank and as per the R.B.I. guidelines only the scheme maturity amount will be paid and the same was displayed on the notice board of the bank and intimated to the customers by the then bank officials. The maturity value mentioned on the certificate alone is not the criteria and it is subject to rules of the scheme. One of the scheme holder Rankipalli Mallaiah Naidu of Thotavari Palli and several other members came to the bank and presented the R.D. bonds and received the amount payable as per the scheme rules. The complainant never approached the opposite party for correction of maturity date and the opposite party never assured as alleged in Para.4 of the complaint. The complainant deposited a sum of Rs.14,400/- on 01.08.1992 under recurring deposit account No.59. As per rules of the scheme, the amount will be kept for one year as deposit and after that period special term deposit scheme rules will be applied. Thus the special term period started from 01.08.1993 but not from 01.08.1992. The period elected by the complainant is 15 years. Thus it will mature on 01.08.2008. As per clause-5.1 of the scheme, the special term deposit would initially be issued for a period of 10 years each at the rates of interest prevailing on the respective maturity dates. If the last renewal is for a period of lower than the period for which the maximum rate of interest is applicable, the penultimate renewal will be done for a suitable shorter duration, so that the last renewal may be done for a period, which will fetch the maximum rate of interest on bank deposits. The clause-9.0 of the scheme also stated that the table showing maturity values for different maturity periods is worked out on the basis of the then prevailing rate of interest on bank deposits i.e., at the rate of 11% per annum and subject to the clause-6.0 of the scheme. The clause-6.0 speaks that the rate of interest would be subject to R.B.I directions. On the date of deposit made by the complainant i.e. on 01.08.1992 the rate of interest was 11% per annum. With that rate the complainant is entitled to interest upto 10 years i.e. upto 01.08.2003. As per the rules, the complainant’s deposit would be automatically renewed on maturity for further period, which will fetch the maximum rate of interest on deposit. Thus as on 01.08.2003 the maximum rate of interest is 6% per annum for deposits of 3 months. The complainant has no right to enrich, much against the R.B.I. rules only on the basis of wrong entry in the passbook. The special term deposit account No. of the complainant is 01292/011090, and the bank is maintaining account ledger from 01.08.2003 from the date of completion of initial special term deposit period of 10 years. The complainant after depositing the amount on 01.08.1992 under the said scheme availed a demand loan of Rs.10,800/- from the opposite party on 04.11.1992 under account No.107 by executing relevant documents accepting the terms and conditions of the loan. In usual course of business the opposite party – bank, is maintaining ledger for the demand loan with present account No.01590/010963. Inspite of repeated demands the complainant failed to clear the said demand loan and by 15.01.2005, as per the ledger, the complainant is due an amount of Rs.41,196/-. After deducting the said amount the complainant is entitled to a sum of Rs.7,837/- as on 15.01.2005. From that date with accrued interest, the complainant is entitled to withdraw the amount on 01.08.2008. The complainant filed C.C.No.114/2007 in the year 2007 itself and the same was dismissed as premature on 31.01.2008. By suppressing the said availed loan, the complainant filed the present complaint for wrongful gain. Hence, the complaint may be dismissed with exemplary costs.





4. In support of the averments made in the complaint, the complainant filed his affidavit. The complainant also filed 5 documents, which are marked as Exs. A1 to A5. Ex.A1 is served copy of order dt:31.01.2008 in C.C.No.114/2007 on the file of District Forum – II, Tirupati. Ex.A2 is office copy of legal notice dt:08.09.2008 got issued by the complainant to the opposite party. Ex.A3 is postal acknowledgement of opposite party for Ex.A2 notice. Ex.A4 is original R.D. passbook bearing No.59 issued in the name of the complainant by the opposite party. Ex.A5 is xerox copy of paper pamphlet circulated by the opposite party.





5. In support of the case set up in the written version, the Branch Manager of opposite party filed his affidavit. The opposite party also filed 4 documents, which are marked as Exs.B1 to B4. Ex.B1 is attested xerox copy of account opening form executed by the complainant on 01.08.1992. Ex.B2 is attested ledger extract copy for the deposit account No.01292/011090 of the complainant. Ex.B3 is attested loan account ledger extract copy for the loan account No.01590/010963 of the complainant. Ex.B4 is xerox copy of terms and conditions of the
Police Welfare Scheme.




6. On behalf of the complainant and opposite party written arguments were filed and we have heard the oral arguments of counsel of both sides.



7. On the basis of pleadings of both the sides, the points that arise for consideration are:-
(i)Whether there is any deficiency in service on the part of the opposite party towards the complainant?
(ii)Whether the complainant is entitled to the reliefs as prayed? If so, to what extent?
(iii)To what result?




8. Point No.(i):- The brief facts of the case are:- The opposite party in the year 1992 invited deposits under Agriculturists and Businessmen Welfare Scheme giving publicity by way of Ex.A5 pamphlet. The complainant deposited an amount of Rs.14,400/- on 01.08.1992, and the opposite party issued Ex.A4 Recurring Deposit Account pass book noting the payment of Rs.14,400/- by cash paid by the complainant. In Ex.A4 it is noted as E.W.S. 15 year’s scheme with red pen. The maturity date is mentioned as 01.08.2008 and the amount repayable on maturity is noted as Rs.1,05,093/-. As per Ex.A5 also the maturity value of Rs.14,400/- after 15 years is mentioned as Rs.1,05,093/-. The complainant filed C.C.No.114/2007 to pass an order directing the opposite party to pay Rs.1,05,093/- towards recurring deposit amount along with further interest from the date of maturity i.e. 01.08.2007, to pay Rs.50,000/- towards damages, loss and mental agony and to pay the costs of the complaint. This Forum by order dt:31.01.2008 dismissed the complaint as premature. As the opposite party did not pay the maturity amount of Rs.1,05,093/- even after the maturity date i.e. 01.08.2008, the complainant got issued Ex.A2 legal notice on 08.09.2008 calling upon the opposite party to pay the matured amount. The opposite party received the notice but failed to pay the amount. The complainant filed the present complaint on 05.11.2008.




9. As seen from Exs. A4 and A5 the opposite party agreed to pay the maturity amount of Rs.1,05,093/- to the complainant on the maturity date i.e. 01.08.2008. The case of the opposite party is that the amounts collected under the scheme are treated as the term deposits for a period of 10 years and the later period is treated as renewal period, that the same is mentioned in the rules of the scheme affixed on the notice board and that as per the R.B.I. rules confirmed by the Finance Department of Government of India, the banks not to have the fixed deposits or term deposits for more than 10 years. It is the further case of the opposite party that as per the rules and circulars issued by the bank on the guidelines of R.B.I. only the scheme maturity amounts will be paid, that the same was displayed on the notice board of the bank and intimated to the customers and that so the maturity value mentioned in the scheme certificate is not criteria and it is subject to rules of the scheme. As per Ex.A5 the scheme is Agriculturists and Businessmen Welfare Scheme. The opposite party in Ex.A4 R.D.Account pass book mentioned the scheme as E.W.S. 15years scheme. The opposite party filed Ex.B4 xerox copy of Police Welfare Scheme rules. As seen from Ex.B4 the scheme is applicable to new constables recruited or existing police employees. It further shows that as soon as the new constable or an existing police official agrees to join the scheme by completing the account opening form, a one year recurring deposit account would be opened in his name jointly with the Superintendent of Police, that the controlling authority will deduct a sum of Rs.100/- per month from the salary of the member of the scheme for crediting the same to the R.D.account of the member and that after completion of 12 months period for the maturity amount of Rs.1,253/- a special term deposit receipt would be issued in favour of the concerned member jointly with the Superintendent of Police. This Police Welfare Scheme has nothing to do with the scheme under which the complainant deposited an amount of Rs.14,400/-. No scrap of paper is filed before this Forum by the opposite party to show that Police Welfare scheme rules are made applicable to Agriculturists and Businessmen Welfare Scheme. At the time of deposit of amount by the complainant, the opposite party obtained the original of Ex.B1 Account Opening Forum. In Ex.B1 also E.W.S. (15 years) scheme is noted. The opposite party did not also produce the rules and guidelines issued by R.B.I. before this Forum. The opposite party also failed to adduce any evidence to prove that the rules which show that banks cannot issue fixed deposits or term deposits for more than the period of 10 years were displayed in the notice board and intimated to the complainant. The opposite party – bank, having invited deposits from the public offering to pay particular amount on the maturity date, cannot subsequently say that the complainant is not entitled to the agreed amount as mentioned in Ex.A4 pass book.





10. It is the further case of the opposite party that the complainant after depositing the amount of Rs.14,400/- on 01.08.1992 availed demand loan of Rs.10,800/- on 04.11.1992 as per the scheme rules under Account No.107 by executing relevant documents and accepting terms and conditions of the loan, that inspite of repeated demands the complainant failed to clear the demand loan and by 15.01.2005 an amount of Rs.41,196/- as per loan ledger extract was due from the complainant and that as per the request of the complainant on 15.01.2005 the said amount was deducted from the special term deposit account of the complainant and the complainant is entitled to a sum of Rs.7,837/- as on 15.01.2005. The opposite party produced Ex.B2 ledger extract copy for the deposit account of complainant and Ex.B3 ledger extract copy for demand loan account No.01590/010963. The complainant totally denied having taken any demand loan. Except Ex.B3 the opposite party adduced no evidence to establish that the complainant availed demand loan of Rs.10,800/- on 04.11.1992. According to the opposite party as per Ex.B4 scheme rules demand loan of Rs.10,800/- was given to the complainant. As per Ex.B4 the bank could consider grant of cycle advances, loans for purchase of sewing / knitting machines to the wives of the members and housing loans upto Rs.5,000/-. There is no mention about sanction of demand loan in Ex.B4 Police Welfare Scheme rules. According to the opposite party the complainant executed documents by accepting the terms and conditions of the loan at the time of demand loan. The said documents executed by the complainant are not filed before this Forum. The opposite party did not also produce the application given by the complainant requesting for sanction of demand loan. According to the opposite party in view of the consent letter given by the complainant on 15.01.2005 an amount of Rs.41,196/- due from the complainant was deducted from the term deposit amount due to the complainant. The opposite party did not even file the consent letter given by the complainant on 15.01.2005. The opposite party miserably failed to establish that the complainant availed demand loan of Rs.10,800/- on 04.11.1992 and by 15.01.2005 an amount of Rs.41,196/- was due from the complainant.




11. For the above reasons, we find that the acts of the opposite party amount to deficiency in service and, as such, the complainant is entitled to Rs.1,05,093/- covered under Ex.A4. This point is accordingly answered in favour of the complainant.



12. Point No.(ii):- In view of our finding on point No.1, the complainant is entitled to Rs.1,05,093/- with further interest at the present bank rate of 9% per annum from 01.08.2008 till the date of realization. The complainant claimed Rs.50,000/- towards damages, loss and mental agony sustained by him. There is no basis and evidence adduced by the complainant for claiming such huge amount towards damages etc. Further the complainant is not entitled to any separate amount towards damages etc. as interest on the amount due to him is granted from the maturity date. The complainant is, however, entitled to Rs.1,500/- towards costs but not Rs.5,000/- as claimed. Hence, we find that the complainant is entitled to Rs.1,05,093/- with interest at 9% per annum from 01.08.2008 till the date of realization and Rs.1,500/- towards litigation expenses.




13. Point No.(iii):- In the result, the complaint is allowed in part directing the opposite party to pay Rs.1,05,093/- with interest at 9% per annum from 01.08.2008 till the date of realization and to pay Rs.1,500/- towards litigations expenses to the complainant within six weeks from the date of receipt of copy of order.

C.C.No. 85 / 2008


BETWEEN:
Chintada Laxmi, W/o.late Adinarayana, Aged 50 years,
Household duties, Udigalapadu Village, Challavanipeta Post,
Jalumuru Mandal, Srikakulam District. ...Complainant.

AND:
The Branch Manager, State Bank of India,
Narasannapeta Branch, Narasannapeta, Srikakulam District. …opposite parties.

This complaint coming on 02-04-2009 for final hearing before us in the presence of Sri K.Kameswara Rao, Advocate for complainant and Sri B.S.R.Sreepada, Advocate for opposite party and having stood over to this day for consideration, this Forum made the following:


O R D E R


This is a complaint filed under Section 12 of the Consumer Protection Act, 1986 and facts of the case briefly are as follows:

Complainant presented to opposite party bank a cheque for collection on 26-5-2006. The said cheque was cleared by the drawee bank on 15-6-2006, but the opposite party bank did not credit the cheque amount into the account of the complainant till 2-5-2007. Hence complaint is filed for a direction to the opposite party bank to pay an amount of Rs.10,174-74ps. with interest at the rate of 24% per annum, compensation of Rs.80,000/-, costs of Rs.3,000/- and expenses of Rs.3,000/-.
2) Opposite party bank filed counter denying the allegations of the complaint.
3) Both parties filed affidavits. Exs.A1 to A6 are marked on behalf of the complainant. No documents are marked on behalf of the opposite party.
Heard both parties.
Point for consideration is:
Whether there is deficiency in service on the part of the opposite party bank.



4) Point:
Complainant filed affidavit with the same facts contained in the complaint. Opposite party filed affidavit with the same facts contained in the counter. Complainant has relied on Ex.A4 to show that the cheque was cleared on 15-6-2006.Complainant has stated in the complaint that the cheque was cleared by the drawee bank on 15-6-2006 and the opposite party bank did not credit the cheque amount into the account of the complainant till 2-5-2007. Opposite party bank has filed counter denying the allegations of the complaint. Opposite party bank has not

stated in the counter when it had received the cheque amount from the drawee bank. Opposite party bank has not stated anything about the delay in crediting the cheque amount into the account of the complainant. Opposite party bank has not stated anything about the delay in collection of the cheque amount from the drawee bank. Except denying the case of the complainant, the counter is evasive. It has not denied the allegation of the complainant that the cheque was cleared by the drawee bank on 15-6-2006. It shows that the cheque was cleared by the drawee bank on 15-6-2006 and there was delay of 11 months in crediting the cheque amount into the account of the complainant. It is the duty of the opposite party bank to credit the cheque amount into the account of the complainant soon after it received the cheque amount from the drawee bank. It is the duty of the opposite party bank to explain why there was delay in crediting the cheque amount into the account of the complainant. Opposite party bank is silent about the delay in crediting the cheque amount into the account of the complainant. Opposite party bank has not stated that it had received the cheque amount or the cheque was accepted by the drawee bank for payment not on 15-6-2006 but at a later date. It shows that the opposite party bank has delayed crediting the cheque amount into the account of the complainant. There is no explanation for the delay. We therefore hold that there is deficiency in service on the part of the opposite party bank. Hence we answer the point accordingly.


In the result, complaint is partly allowed. Opposite party bank is directed to pay interest at the rate of 6% per annum on the cheque amount of Rs.67,890/- from 1-7-2006 to 1-5-2007 and costs of Rs.500/- (Rupees five hundred only). Advocate’s fee is fixed at Rs.500/- (Rupees five hundred only).

COMPLAINANT:- Smt. Shantabai W/o Srikanth Sinnurkar,
Age: 35 yrs, Occ:Household,
R/o MOGHA (B), Tq. Aland,
Dist. Gulbarga.

………..Complainant in 168/2008

Smt. Siddamma W/o Ramling Poojari,
Age: 36 years, Occ: Household,
R/o MOGHA (B), Tq. Aland,
Dist. Gulbarga.

………..Complainant in 169/2008

(By Sri Vaijanath Zalki, Advocate).

// Versus //

OPPONENT:-(1) The Branch Manager,
State Bank of India,
Madan Hipparga,
Tq. Aland, Dist. Gulbarga.


(2) The Dy. General Manager,
State Bank of India,
Zonal Office, Solapur Road,
Keshwapura,
HUBLI.


(3)The Dist. Manager,
Backward Class and Minorities Development Corporation,
GULBARGA.

………..O.Ps. in 168/08 & 169/08

(O.P.No.1 & 2 by Sri R.A. Patil, Advocate).
(O.P.No.3 – Exparte).

: : C O M M O N O R D E R : :

1.These two complaints are filed separately u/s.12 of Consumer Protection Act 1986 and both cases are disposed off by passing common order. In both cases O.Ps. are one and the same.

2.Complainant in C.C.No.168/2008 praying that, direction may be given to O.P. bank to release the sanctioned loan amount of Rs.85,000/- with interest. Further direction may be given to O.Ps. to pay Rs.10,000/- towards mental agony and cost of this proceedings in the interest of justice.
3.Complainant in C.C.No.169/2008 praying that, direction may be given to O.P. bank to release the sanctioned loan amount of Rs.40,000/- with interest. Further direction may be given to O.Ps. to pay Rs.10,000/- towards mental agony and cost of this proceedings in the interest of justice.

4.The brief facts of the case of the complainants in both cases are that;
Complainants have applied for loan in the office of Dist. Manager Backward Class and Minorities Development Corporation through application No.53768 & 83708 respectively dated 12.7.2005 under Chaitannayya Safe Loan cum subsidy scheme for the purpose of carrying out the business of dairy farming. O.P.No.1 bank had recommended & consented for granting the loan of Rs.85,000/- & Rs.40,000/- respectively to complainants along with a loan of Rs.40,000/- & Rs.85,000/- respectively to complainants through its letter dated 18.11.2005 addressed to B.C.M., Manager, Gulbarga. After the said recommendation letter of O.P.No.1, O.P.No.3 forwarded the said loan application & the recommendation letter to Managing Director, Karnataka Backward Class & Minorities Development Corporation Ltd., Bangalore through its letter dated 27.12.2005 for further action. On receipt of the said loan application forms and O.P. bank recommendation letter, Karnataka Backward and Minorities Development Corporation Ltd., Bangalore was pleased to Order and released cheque bearing No.12976 of Rs.35,000/- dated 23.1.2006 as a margin money, subsidy money in respect of complainant loan application No.53768 & 83708 respectively by virtue of its order dated 31.1.2006.
Loan application number
Margin money
Subsidy
83708
Rs.8,000/-
Rs.5,000/-
53768
Rs.17,000/-
Rs.5,000/-

Thereafter, Asst. Development Corporation, Gulbarga directed to O.P.No.1 bank that the beneficiaries of loan application No.53768 and 83708 are fulfilled the formalities for getting subsidy and margin money so you i.e O.P.No.1 bank kindly be disburse/release the said sanctioned loan amounts along with subsidy and margin money to the beneficiaries of application No.53768 and 83708 and sought the details of this same to be furnished to office i.e Sri Devaraj urs Development Corporation Ltd., previously known as BCM Development Corporation Ltd., vide its letter dated 4.3.2006. O.P.No.1 bank even after release of Rs.35,000/- by Karnataka Backward Class and Minorities Development Corporation Ltd., Bangalore, O.P.No.1 bank has failed to do same for the no fault of complainants. Thereafter complainants have approached O.P.No.1 bank several occasions with all required documents but O.P. neglected request of complainants. Thereafter, complainants sent letter dated 13.7.2006 to General Manager, SBI, Bangalore requesting to give direction to O.P.No.1 to release the sanctioned loan amount. Then the lead bank SBI Gulbarga sent a letter dated 8.8.2006 to O.P.No.1 bank to disburse/release the said sanction loan amount. But O.P.No.1 bank fails to obey the order of lead bank SBI Gulbarga. Finally complainants have issued legal notice to O.P.No.1 on 11.8.2006, but O.P.No.1 neglected the complainant request. This act of O.P. bank clearly shows that there is a deficiency of service on his part. Complainants are poor. They approached the O.P. scheme but O.Ps. bank repudiated the sanctioned loan amount without any sound reasoning and inquiry. Hence there is a deficiency of service on the part of O.Ps. This Forum have got jurisdiction to entertain the complaint. Under these circumstances, it is submitted that, complaints may be allowed and direction may be given to O.Ps. as prayed in the complaints.

5.After registering the cases, notices were issued to O.Ps. in both cases. After serving the notices, O.P.No.3 did not appear, hence he was placed exparte. O.P.No.1 and 2 appeared through counsel and filed Written Statement in both cases contending that, it is a fact that, complainants have applied for loan through application No.53768 and 83708. O.P.No.1 after receipt of the same, forwarded the claim forms to concerned authorities for releasing subsidy amount.

6.In C.C.No.168/2008, O.P.No.1 stated that, he found that, complainant had already availed the loan under Udyogini Scheme and she was defaulter for the said loan. Further complainant had availed the crop loan of Rs.70,000/- and same has not been renewed and her account is not regular. Complainant as a President for Mahadevi S.H.G., had availed a loan of Rs.2,62,000/- from O.P.No.1. The activities of the said SHG are not satisfactory and account is also irregular. Apart from this, complainant has introduced some loan accounts and most of them irregular. This has been brought to the notice of complainant, but complainant is dragging the matter at one or the other pretext by giving false promises to close the earlier accounts. The family members of the complainant i.e husband Srikanth Phulari and mother-in-law Smt. Nagamma have also availed the crop loan of Rs.49,000/- and they are also defaulters. Hence O.P.No.1 decided not to sanction the loan to complainant and returned the subsidy amount on 1.9.2006 received from BCM Corporation Gulbarga under Chaitannya Scheme through D.D. Hence there is no deficiency of service on the part of this O.P. It is denied that, complainant approached O.P. bank on several occasions but O.P. bank neglected the complainant’s request. It is also denied that, Lead bank, SBI Gulbarga directed the O.P.No.1 to disburse or release the amount. It is submitted that, on 8.8.2006, the Lead Bank SBI informed the O.P.No.1 to look into the matter. Hence the allegation of the complainant that O.P.No.1 bank fails to obey the orders of Lead Bank SBI Gulbarga is not correct. It is true that, complainant has issued the legal notice to O.P. on 11.8.2006 and O.P. bank has issued the reply notice to the said notice. Hence the allegation of complainant that, O.P.No.1 bank neglected and utterly failed to fulfill to serve the complainant and there is deficiency of service on the part of O.P.No.1 is not correct. It is submitted that complainant is not entitled for any relief from this Forum.

7.Further O.P.No.1 in C.C.No.169/2008 stated that, it is not correct to allege that, in spite of direction of the BCM Development Corporation Gulbarga (O.P.No.3) to disburse/release sanctioned loan amount along with the margin money and subsidy to complainant with reference to the loan application, O.P.No.1 bank has failed to release for no fault of the complainant is not correct. It is absolutely false to allege that, complainant has approached the O.P.No.1 bank on several occasions with all required documents personally and through letters, but O.P. bank neglected the complainant’s request. It is submitted that, complainant has not given correct facts. As a matter of fact after receipt of BCM loan application by O.P.No.1, complainant never approached the O.P.No.1 for financial assistance as such O.P.No.1 returned the subsidy amount received from the BCM Corporation, Gulbarga. It is denied that, Lead Bank SBI Gulbarga directed the O.P.No.1 to disburse or release the amount. It is submitted that on 8.8.2006, Lead Bank SBI informed O.P.No.1 to look into the matter. It is true that, complainant has issued legal notice to O.P.No.1 dated 11.8.2006. O.P.No.1 has replied to the legal notice on 18.9.2006 to withdraw the notice and not to take any hasty steps, as there is no deficiency of service on the part of O.P.No.1. Hence the allegation of complainant that, O.P.No.1 bank failed to sanction the loan amount even after the repeated requests by the complainant for no fault of her is not correct. It is submitted that, there is no negligence in rendering the service, as such there is no deficiency of service on the part of O.Ps.

8.Further O.P.No.1 stated in both cases that, complainants are not consumer as defined under the Consumer Protection Act. Complainants have no cause of action against the O.Ps. Complainants are not entitled to claim any compensation against the O.Ps. This Forum have no jurisdiction to entertain the complaints. Complaints are clearly time barred. Complainants have already approached before the Banking Ombudsman of Karnataka, hence they cannot approach this Forum for relief. The O.P. bank took a conscious decision not to go ahead with grant of loan, hence it cannot be described as deficiency of service. Under these circumstances, it is submitted that, complaints may be dismissed with costs.

9.To prove the claim of complainants, they have filed affidavit by way of evidence in their respective cases, both examined as PW-1, documents got marked Exh.P-1 to P-10 separately. O.P. No.1 filed affidavit by way of cross of PW-1 in both cases. Complainants side evidence closed. O.P. also filed affidavit by way of evidence who examined as RW-1. In C.C.No.168/2008, got marked documents Exh.R-1 to R-16. In C.C.No.169/2008, O.P. have not filed any documents in support of his claim. Complainants filed affidavit by way of cross of RW-1. O.P. side evidence closed.
10.Heard the arguments from both sides.

11.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?

12.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 : :

13.Point No:1 :
We have carefully perused the evidence of complainants in both cases, affidavits and documents. Complainants case are that, they have applied for loan in the office of Dist. Manager Backward Class and Minorities Development Corporation by filing application No.53768 & 83708 respectively under Chaitannayya Safe Loan cum subsidy scheme for the purpose of carrying out the business of dairy farming. O.P.No.1 bank had recommended for granting the loan to complainants by writing letter dated 18.11.2005 which was addressed to B.C.M., Manager, Gulbarga. After the said recommendation letter of O.P.No.1, O.P.No.3 forwarded the said loan application and recommendation letter to Managing Director, Karnataka Backward Class & Minorities Development Corporation Ltd., Bangalore by writing letter dated 27.12.2005 for taking further action. On receipt of the loan application form and O.P. bank recommendation letter, Karnataka Backward and Minorities Development Corporation Ltd., Bangalore was pleased to Order and released cheque bearing No.12976 of Rs.35,000/- dated 23.1.2006 as a margin money, subsidy money in respect of complainants loan application No.53768 & 83708 respectively by virtue of its order dated 31.1.2006. After that, Asst. Development Corporation, Gulbarga directed to O.P.No.1 bank for disbursing the said sanctioned loan amounts along with subsidy and margin money to the beneficiaries and sought the details of this same to be furnished to office i.e Sri Devaraj urs Development Corporation Ltd., previously known as BCM Development Corporation Ltd., vide its letter dated 4.3.2006. O.P.No.1 bank even after release of Rs.35,000/- by Karnataka Backward Class and Minorities Development Corporation Ltd., Bangalore, O.P.No.1 bank has failed to do same for no fault of complainants. Thereafter complainants approached O.P.No.1 bank several occasions with all required documents but O.P.No.1 has not released the loan amount. Therefore there is a deficiency of service on the part of O.P. During the course of evidence, complainants examined as PW-1 got marked documents Exh.P-1 to P-10 in both cases. The documents marked in C.C.No.168/2008 are Exh.P-1 is loan application, Exh.P-2 is recommendation letter issued by O.P.No.1 bank, Exh.P-3 is letter issued by Managing Director, BCM Development Corporation Ltd., Bangalore, Exh.P-4 is letter issued by O.P.No.1 in favour of O.P.No.3, Exh.P-5 is letter issued by Asst. Development Officer, BCM Development Corporation Ltd., Gulbarga in favour of O.P.No.1, Exh.P-6 is letter issued by complainants to M.D., SBI, Bangalore, Exh.P-7 is letter issued by Lead Bank Manger, SBI, Gulbarga in favour of Asst. General Manager, SBI, Gulbarga, Exh.P-8 is legal notice which was issued by complainant to O.P.No.1, Exh.P-9 is postal acknowledgement, Exh.P-10 is reply to legal notice issued by O.P.No.1. In C.C.No.169/2008, documents got marked are Exh.P-1 is loan application, Exh.P-2 is recommendation letter issued by O.P.No.1 bank, Exh.P-3 is letter issued by O.P.No.1 to O.P.No.3, Exh.P-4 is letter issued by Managing Director, BCM Development Corporation Ltd., Bangalore, Exh.P-5 is letter issued by Asst. Development Officer, BCM Development Corporation Ltd., Gulbarga to O.P.No.1, Exh.P-6 is letter issued by complainants to M.D., SBI, Bangalore, Exh.P-7 is letter issued by Lead Bank Manger, SBI, Gulbarga to Asst. General Manager, SBI, Gulbarga, Exh.P-8 is legal notice issued by complainant to O.P.No.1, Exh.P-9 is postal acknowledgement, Exh.P-10 is reply to legal notice issued by O.P.No.1. On the other hand, O.P.No.1 also filed affidavit by way of evidence who examined as RW-1 who deposed in his evidence in both cases that, it is admitted that, complainants have applied for loan through application No.53768 and 83708. Further O.P.No.1 deposed in C.C.No.168/2008 that, he found that, complainant had already availed the loan under Udyogini Scheme and she was defaulter for the said loan. Further complainant had availed the crop loan of Rs.70,000/- and same has not been renewed and her account is not regular. Complainant as a President for Mahadevi S.H.G., had availed a loan of Rs.2,62,000/- from O.P.No.1. The activities of the said SHG are not satisfactory and account is also irregular. The family members of the complainant i.e husband Srikanth Phulari and mother-in-law Smt. Nagamma have also availed the crop loan of Rs.49,000/- and they are also defaulters. Hence O.P.No.1 decided not to sanction the loan to complainant and returned the subsidy amount on 1.9.2006 received from BCM Corporation Gulbarga under Chaitannya Scheme through D.D. Therefore there is no deficiency of service on their part. Further O.P.No.1 deposed in C.C.No.169/2008 that, after receipt of BCM loan application by O.P.No.1, complainant never approached the O.P.No.1 for financial assistance as such O.P.No.1 returned the subsidy amount received from the BCM Corporation, Gulbarga. Further he deposed in his evidence that, it is admitted that, complainant has issued legal notice to him and he replied to the legal notice to withdraw the notice and not to take any hasty steps, as there is no deficiency of service. When he was examined as RW-1, documents got marked in C.C.No.168/2008 Exh.R-1 to R-16. In C.C.No.169/2008, O.P.No.1 has not filed any documents in support of his claim. The documents got marked in C.C.No.168/2008 are, Exh.R-1 is loan application under Chaitanya scheme, Exh.R-2 is slip showing A/c. No. of Nagamma, Exh.R-3 is loan application of Nagamma, Exh.R-4 is loan sanctioned letter to Nagamma, Exh.R-5 is hypothecation agreement of Nagamma, Exh.R-6 is Slip showing A/c. of Srikanth who is husband of complainant, Exh.R-7 is loan application form of Srikanth, Exh.R-8 is loan sanctioned letter of Srikanth, Exh.R-9 is hypothecation agreement of Srikanth, Exh.R-10 is slip showing A/c. of Shantabai, Exh.R-11 is loan application of Nagamma, Exh.R-12 is Slip showing A/c. of Shantabai, Exh.R-13 is loan application of Shantabai, Exh.R-14 is loan sanctioned letter, Exh.R-15 is loan agreement of Srikanth, Exh.R-16 is details of loan. We have carefully perused the documents filed in both cases i.e Exh.P-1 which are loan applications which reveals that complainants have applied for loan under Chaitanya Scheme. On further going through the documents filed in C.C.No.168/08 i.e Exh.P-3 and in C.C.No.169/2008 i.e Exh.P-4 which are letters issued by Managing Director, BCM Development Corporation Ltd., Bangalore wherein it is mentioned that, they have sanctioned loan and released amount through cheque No.12976. Further it is reveals that, even after release of Rs.35,000/- by the said authority, O.P.No.1 has not released the said amount in favour of complainants. On the other hand, O.P.No.1 deposed in his evidence unnecessarily which are not relevant to the present case. He deposed in his evidence that, complainant, her husband and mother-in-law Smt. Nagamma have taken crop loan etc., and they are also defaulter. To prove this aspect, he has not examined any persons. Mere taken contention that, they are defaulter of crop loan and other loans, it is not a ground to O.P. for not sanctioning the loan in favour of complainant. On perusal of the evidence of complainant, it clearly goes to show that, though loan was sanctioned by BCM development Corporation, it is the bounden duty of the O.P. to release the loan amount to the beneficiaries. The documents filed on behalf of O.P. i.e Exh.R-1 to R-16, those documents are not helpful to the case of O.Ps. On going through the evidence of complainants, affidavits and documents, in our considered opinion, there is a deficiency of service on the part of O.Ps., therefore we answered this point in affirmative.

14.Point No.2 :
In view of the discussions made on point No.1, we answered this point in affirmative. Hence we proceed to pass the following;

: : O R D E R : :

Both the complaints i.e C.C.No.168/2008 and 169/2008 are allowed. O.P.No.1 to 3 are directed to release the loan amount to both complainants. Further both complainants are entitled to recover a sum of Rs.1,000/- each towards mental agony and cost of this proceedings from O.P.No.1 to 3. Further O.P.No.1 to 3 are jointly and severally comply the order of this Forum within one month from the date of this Order.

Keep the copy of this Order in C.C.No.169/2008.

Sri.Ganapati P Naik

...........Appellant(s)

Vs.

State Bank Of India

...........Respondent(s)


ORDER DELIVERED BY Shri. R.G. PATIL, PRESIDENT


1)This is a complaint praying to direct the OP to pay the amount of Rs.20,000-00 with interest and costs.

2)Brief facts of the complaint are that the complainant being a card holder of ATM Facility of the OP Bank wanted to withdraw the amount of Rs.25,000-00 on 5-7-2008. The complainant applied for Rs.5,000-00 from the ATM. The amount was drawn. Again he applied for the amount of Rs.20,000-00 but it was not drawn. Again he applied for the amount of Rs.15,000-00. The same was drawn. On 7-7-2008 he got entries made by the Bank in his passbook. He was shocked to see the entry made in the passbook that an amount of Rs.20,000-00 was drawn. He issued a letter to the Manager, on 7-7-2008 stating that the amount of Rs.20,000-00 was not drawn from the ATM. The Manager, on 14-10-2008 replied that the transaction is correct. The capacity of withdrawal from the ATM per day is Rs.18,000-00. The OP has not properly enquired. There is deficiency of service by the OP and the OP is liable.

3)The OP filed WS stating that the complainant has successfully withdrawn Rs.20,000-00 from the ATM on 5-7-2008 as per the transaction generated from the system. The OP has denied that the capacity of ATM limit is Rs.18,000-00 per day. The complaint is frivolous with intention to unjustly enrich himself. The books of accounts also show that the complainant has withdrawn Rs.20,000-00 through ATM. There is no deficiency of service by the OP and the complainant is not entitled for any compensation or damages. He prays to dismiss the complaint.

4)The complainant has filed his affidavit and got marked Ex.C-1 to C-6 & the OP has filed his two affidavits and got marked Ex.R-1 and R-2.

5)The points that arise for our consideration are :-
I)“Whether the complainant proves that the ATM machine failed to emit Rs.20,000-00 on 5-7-2008.
II)What Order ?
6) Our replies to the above points are :-
I) Negative.
II) As per order.

7) Point No.1: It is the contention of the counsel for the complainant that on 5-7-08 the complainant having account in OP Bank and being in need of Rs 25,000-00 withdrew Rs.5,000-00.from the ATM of OP Bank. Again he applied for Rs.20,000-00 but the withdrawal failed. Again he applied for Rs.15,000-00. The amount was drawn. In the entries made in the passbook by the OP Bank on 7-7-08 it showed that Rs.20,000-00 was drawn though the transaction failed. On 7-7-08 the complainant complained the OP about the failure of the machine to emit the amount of Rs.20,000-00. But the OP on 14-10-08 replied that the transaction of withdrawal of Rs.20,000-00 was successful. Due to such failure the complainant is put to the loss of Rs. 20,000-00. It is deficiency of service on the part of the OP and the OP is liable.

8)On the other hand the counsel for the OP vehemently urged that on verification of the accounts, investigation, replenishment of the ATM, testing of the machine, and on thorough enquiry made with switch center of Mumbai it was confirmed that the withdrawal of Rs.20,000-00 was successful. The complainant with an intention to make illegal gains has filed this false complaint. There is no deficiency of service by the OP and it is not liable. He prayed to dismiss the complaint with costs.

9)We have gone through the pleadings, affidavits and documents submitted by both the parties. The OP has produced Ex.R-1 the statement of account and ExR-2 the zerox copy of ATM slip. The OP also relied on Ex.C-3, which is also zerox copy. It is issued by the OP to the complainant alongwith the letter Ex.C-2. Both the documents Ex.C-3 and Ex.R-2 are not visible even with the help of magnifier glass. The OP has not produced some prime important documents like ATM Machine Test Report, opening-closing and total balance in the ATM machine on 5-7-08, the document showing withdrawal limit at a time and for a day and the Suspense Account. The complainant has produced three customer advice slips at Ex.C-5. One of the slips is the statement, which shows that the complainant came to know on 5-7-08 itself that there was withdrawal of Rs. 20,000-00. The complainant has not produced the slip of statement of withdrawal of Rs 20,000-00. He has not stated anywhere that the ATM machine has not emitted such slip. The slips at Ex.C-5 show that there were withdrawals by some other account holders in between the gap of time. The complainant has not adduced evidence of any of these persons. Ex.R-1 shows that the complainant has withdrawn Rs.60,000-00 through cheque on 5-7-08. The contention of the complainant that he came to about the withdrawal of Rs.20,000-00 on 7-7-08 can not be believed. Merely because the OP has not produced any important document can not be made ground for concluding that the ATM Machine did not emit the amount of Rs.20,000-00. So in our view the complainant fails to prove that the ATM machine failed to emit Rs.20,000-00 on 5-7-08. We reply the Point No 1 in negative.

10)Point No.2: In view of the above discussions we are of the opinion that the complaint fails.
We pass the following Order.

: O R D E R :

The complaint is dismissed.

Between:

Smt. Gummadi Ratna Kumari, W/o late Sri Satyanarayana, GF-1, Gummadi Paradize, Maruti Colony,
Patamata, Vijayawada – 7.

…… Complainant.

And

State Bank of India, rep: by its Branch Manager, Nunna, Vijayawada Rural Mandal, Krishna District.

…. Opposite party.


ORDER




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


That the complainant is a resident of Vijayawada city where as the opposite party stationed at Nunna of Krishna District. Late husband of the complainant by name G. Satyananrayana pledged gold ornaments weighing 786 gms of the complainant in his name from the opposite party and availed a loan. Late Satyanarayana executed his last will during his life time on 26.12.2002 while he was in sound state of mind and out of his free will and the same was registered vide document No.121/BK-3/2002. Satyanarayana died on 19.04.2007. Later the complainant paid the entire gold loan of Rs.3,27,029/-. There after the complainant requested the bank authorities to return the ornaments but the opposite party failed to comply and insisted for several certificates including legal heir certificate though, furnished but the opposite party failed to act, the complainant is also entitled for interest waiver under the debt relief scheme announced by Government of India yet no avail and hence, the complainant got issued legal notice on 14.07.2008 to the opposite parties though, received the opposite party kept mum hence, the complaint.


2. The opposite party filed version interalia denying the allegations of the complaint but admitted that late G. Satyanarayana pledged discharging gold ornaments and loan by the complainant and further averred that there is no proof that the will is the last testament. The complainant is not entitled for the waiver of the interest and that the opposite party acted in good faith as such there is no deficiency in service on the part of this opposite party and prayed to dismiss the compliant.


3. On behalf of the complainant the complainant herself examined as Pw.1 and got marked Exs.A1 to A7 are marked. On behalf of the opposite party Sri K. Bhushanam filed an affidavit and no documents are marked.


4. Heard both the counsel.


5. Now the points that arise for consideration in this complaint are:

I) Whether there was deficiency in service on the part of the opposite party?
II) Whether the complainant is entitled for the return of the gold ornaments?
III) To what relief the complainant is entitled?



6. Point Nos.1 and 2: Before considering the rival contentions it is better to analyze the material on hand , as per the averments of the complaint the plea of the complainant is that her late husband pledged her ornaments and availed a loan with the opposite party under the original of Ex.A1 further plea is that her husband died and filed proof vide Ex.A7 so much so late Satyanarayana executed last testament under the original of Ex.A6 why, it was mentioned as last testament because no other will was filed as per the material on hand claiming that another will was executed by late Satyanarayana etc., further, the complainant discharged the loan under the original of Ex.A2.

Further, there is no dispute with regard to pledging of gold ornaments further, the bank authorities asked some certificates that of will probity, legal heir certificate and family member certificate and that the complainant furnished legal heir certificate and no need of obtaining probity since it is the last testament and that the complainant is the only wife of late Satyanarayana and further as all the efforts of the complainant became futile in getting back of the ornaments and so, she got issued legal notice under the original of Ex.A4 and that the same was received by the opposite party but no reply, which acts of the opposite party falls within the purview of deficiency in service ofcourse, the learned standing counsel for the opposite party may contend that the opposite party is a nationalized bank so it has to follow the procedure etc., no doubt about that, but the will speaks bequeathing of the properties of late Satyanarayana to the complainant so, no need to object and on the other hand she has furnished the required documents so, there is no need to give any priority to the submissions of the learned standing counsel for the opposite party.

The learned counsel for the complainant mentioned four decisions of the Hon’ble High Court in the affidavit and in the complaint but he has not filed those decisions before this Forum and those decisions were also with regard to will and the plea of the learned counsel for the complainant is that of return of the gold ornaments and there is force in it, why because, the complainant is the person who discharged the debt but however, in cross examination the complainant admitted that the bank authorities never stated that they would not give ornaments and further stated that she is ready to furnish indemnity bond and third party security so, such is the case, what is the apprehension to the bank authorities infact no need to think otherwise also and as it is the material on hand clinchingly show that the complainant is entitled for the return of the ornaments and accordingly these points are answered.

7. Point No.3: In the result the complaint is allowed and the opposite party is hereby directed to return the ornaments pledged by late Satyanarayana to the complainant forthwith on furnishing of indemnity bond and third party guaranty by the complainant. But In the circumstances of the case no order as to costs.