COMPLAINT NO.1713 OF 2009

Mohan Kumar,

#91, “Chirathana,

4th Cross, 1st Block,

East, Jayanagar,

Bangalore – 560 011.



Temporarily Residing at:

Nanjudeshwara Nilaya,

Kuvempu Road,

Off Shetty Halli Main Road,

Ragavendra Nagar,

Tumkur – 572 102.

…. Complainant.

V/s

01. The Chairman & Managing Director,

Canara Bank, #1/2, J.C.Road,

Bangalore – 560 002.

02. The Branch Manager

Housing Finance Branch,

Canara Bank, 1st Floor,

South End Road, Basavangudi,

Bangalore – 560 004.

03. The Branch Manager,

Canara Bank, Shopping Complex

Branch, Jayanagar, Bangalore – 560 011.



…. Opposite Parties

-: ORDER:-



This complaint is filed seeking the following directions to the Opposite Parties:-

i. Both the Branches of the Bank to credit back the amount excess debited to my SB a/c which stands at Rs.8415.96 and Rs.66/- debited towards non maintenance of minimum balance and any further sum that may be debited in future also either towards EMIs or short minimum balance;

ii. The Branches to treat my letter of authorization dated 04/04/2009 to automatically debit my SB a/c as REVOKED AND WITHDRAWN with immediate effect;

iii. To furnish all the workings in support of their claim that there is an overdue outstanding in my loan a/c 1655 duly explaining the circumstances leading to such abrupt development;

iv. If at all they convince me about any over-dues, to re-spread the EMIs as they have done in respect of loan 1488;

v. To furnish me separate interest work sheets for all the three loan a/cs i.e., 1488, 1655 and 15344 duly furnishing the different rates of interest charged for different periods from the respective dates of their borrowal to enable me to verify the correctness of their claim.

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

The complainant had availed loan of Rs.6,00,000/- under loan account No.1488, Rs.2,00,000/- under loan account No.1655 and Rs.1,90,000/- under loan account No.15344 totaling to Rs.9,90,000/- from the Canara Bank housing finance branch, South End Road, Basavanagudi, Bangalore for construction and improvement of his house at first block, East, Jayanagar, Bangalore during 2000-2002 under floating rate of interest. From April – 2001 to April 2009 he was paying the EMI’s by issuing 12 post-dated cheques for each year in April and has not delayed or defaulted in repayment of the loan at any time. In April every he used to visit the Bank to ascertain the EMI amount for all the three loans and used to issue 12 post-dated cheques and was making available sufficient funds in his S.B.Account. The interest rate was around 13.5% when he availed the first loan under loan account No.1488 and the rate of interest was revised down-word a few times and by June-2004 it was 8%. On 03/06/2004 he was given a work sheet indicating revised EMIs of Rs.6,125/- for loan a/c No.1488, Rs.2,080 for loan a/c No.1655 and Rs.2220/- for loan account No.15344. Accordingly he continued to pay a total EMI of Rs.10,425/- up to March-2007. Since there were few up-ward revisions in 2006-07, without any advise from the Bank he voluntarily enhanced the total EMI to Rs.11,000/- comprising of Rs.6,500/- for loan account No.1488, Rs.2,200/- for loan account No.1655 and Rs.2,300/- for loan account No.15344 from April-2007 and made payment accordingly till March-2009. In spite of the fact that in the letter dated 29/06/2007, the Bank stated that there was no over due outstanding in respect of loan account No.1488, during the last week of June-2008 he was informed over phone that there was over due outstanding of Rs.16,000/- in respect of loan account No.1488 while the status of the other two accounts were normal. On 07/07/2008 he went to the Bank and gave a letter explaining his inability to pay the entire amount in one lump-sum and requested the Bank to accept Rs.10,000/- as the one time payment against the over due amount and to re-spread EMI amount from April-2009, but there was no reply. In the first week of January-2009 he was advised to meet the AGM of Housing Finance Branch to sort out the matter amicably. Accordingly he meet the AGM on 12/01/2009 and handed over a letter explaining his hardship and also the fact that in view of a few down-ward revisions of interest in February and November 2008 to which he was also eligible the outstanding would be reduced to some extent. The AGM agreed to do the needful. He also forwarded a copy of the letter to the DGM of the circle office with a request to re-spread the EMIs, but there was no response. On 03/04/2009 at about 6.30 p.m. he received a phone call from Housing Finance Branch stating that the Bank had taken a decision to help the customers like him by extending the tenure of the loan and re-spread the EMIs so that there would be no extra monthly burden and he was asked to go to the Bank. Accordingly on 04/04/2009 he met the concerned staff to ascertain the revised EMIs for all the three loans and to issue post-dated cheques for the year 2009-10. The concerned staff gave the figures of EMIs as Rs.6,395/- for loan account No.1488, Rs.2,064/- for loan account No.1655 and Rs.2,274/- for loan account No.15344 and also asked to sign standing instruction/ECS authorization so that the issuance of cheques every year could be avoided. Accordingly he gave the letter dated 04/04/2009 authorizing the Bank to debit Rs.10,800/- on 15th of every month to his S.B.Account No.0408101062218. He furnished the breakup as Rs.6,400/- for loan account No.1488, Rs.2,100/- for loan account No.1655/- and Rs.2,300/- for loan account No.15344. On 26/04/2009 he took a mini statement of his account from ATM in Tumkur where he is temporarily residing and noticed three debits of Rs.205/-, Rs.5,885/- and Rs.6,395/- towards loan repayment totaling to Rs.12,455/- as against Rs.10,800/-. Since he had no information about the excess debit in his account, he wrote the letter dated 27/04/2009 explaining the blunder they had committed by violating the authorization and asked them to treat the letter of authorization as “revoked and withdrawn”. He also forwarded a copy of the letter to DGM of Jayanagar shopping complex Branch with request to take note of revocation and not to debit any further amount to his S.B.Account with immediate effect. There was no response to the above letter from either branch of the Bank. On 30/04/2009 he found further debit of Rs.616.96 paise which brought down the balance in the account to Zero. However, hoping that the Bank would heed to his request and act judiciously he credited Rs.18,595/- to his account in the first week of May 2009. Immediately after the credit, the Bank further debited Rs.572/- on 02/05/2009 and Rs.1415.04 paise and Rs.2,274/- on 04/05/2009 as against authorization to debit only on 15th of every month. This dealt him into a severe financial hardship and he wrote the letter dated 08/05/2009 to the DGM of Jayanagar shopping complex branch bringing to his notice about the unauthorized debit and urged him to credit back the excess amount debited. He also marked a copy of the letter to HFB asking them to transfer the excess amount to his account. There was no response to the said letter. The Bank again debited Rs.1,310.96 paise to his account on 26/05/2009. Thereupon he wrote the letter dated 25/09/2009 to the Chairman of the Bank seeking his intervention to redress his grievance. He received the letter dated 29/05/2009 from the office of the Chairman stating that his letter was forwarded to the circle office, Bangalore Metro with a request to take-up the matter with the branch. He also received the letter dated 02/06/2009, in which the Bank’s Retail Banking Division and the circle office assured him of suitable redressal on priority, but he is yet to hear from either of the branches. Since there was no response from either of the branch, he contacted the Chief Manager of HFB on 02/07/2009 to ascertain if there was any good news for him. But he received the information that the excess withdrawal from the S.B.Account was due to an overdue outstanding in the loan account No.1655 which was all along said to be normal. If at all there was to be any such overdue, the same would have been brought to his notice at-least over phone as it was done in respect of loan account No.1488. But no such information was given till that day which clearly shows that the Bank to justify its blunder has apparently manipulated the account and trying to make out a case for themselves. The up-word revision of interest was only for a short span and as such there was no scope for any accumulation of over-dues in respect of the said loan account. As a consequence of indiscriminate excess drawal beyond authorization, it resulted in nil balance in the S.B. account and the Jayanagar shopping complex branch has been debiting the account Rs.22/- for not maintaining minimum balance. Up-to 03/07/2009 a total sum of Rs.66/- was debited to the account in that regard. The HFB had no right to draw from his S.B.Account more than Rs.10,800/- per month and Jayanagar shopping complex branch had no authority to transfer more than 10,800/- per month that too on or after 15th of every month as expressly authorized in the letter dated 04/04/2009. They should not have drawn or transferred the amount indiscriminately in excess of what was authorized without bringing to his notice. Thus, the branches have committed breach of trust and have violated his personal right which has caused him severe mental agony and financial hardship. At-least when he wrote informing that he has revoked the authorization and it stood withdrawn, both the branches should have considered the request and stopped the withdrawal or transfer of the amount from his account. If there were any genuine overdues, the same could have been sorted out amicably. The Bank has debited totally Rs.8,415/- in excess of the authorization between April and June-2009 and have debited Rs.66/- towards non maintenance of minimum balance for which the Bank only is liable. Hence, the complaint.



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

Opposite Party Nos. 1 & 2 have granted the following three housing loans to the complainant:-

Housing Loan A/c


Sanctioned / Disbursed amount in Rupees


Period of payment


EMIs in Rupees


Date of Disbursement


Rate of Interest

1488


6,00,000=00


180 Mts


7,800=00


15/09/2000


13.5%

1658


2,00,000=00


180 Mts

2,700=00

28/01/2001
13.5%15344
1,90,000=00
132 Mts
2,270=00
05/07/2003
9%
The complainant has executed several documents including the loan agreements and pro-notes and has unconditionally agreed for waiver of notice of the change of interest and EMIs of the loan account. They have provided service to the complainant whenever the same was sought. The EMIs have been changed upward and downward due to change of rate of interest since the rate of interest adopted by the complainant is floating. Entire process is computerized by the Bank with software so that calculation of rate of interest and consequential changes of the amount of EMIs would be done by the computer automatically. There is manual work for that effect. Since the complainant has given standing instructions to debit the EMI’s and any arrears of loan account including difference amount due to changes of EMIs have been debited from the SB Account of the complainant. The complainant has been making payment towards the amount regularly. The periodical change of rate of interest of EMIs is as detailed in Para-2 of the version. In view of the transparency maintained by the Opposite Parties there is no discrepancy in maintaining the loan accounts of the complainant. No instructions were given by the staff of the Opposite Parties to the complainant regarding the alleged changes of EMIs of the loan accounts as alleged. Even now the complainant can be provided all the information regarding the loan accounts if he cooperates in a manner required. The complainant is a chronic litigant, he had already withdrawn a complaint 444/2003 filed against the Opposite Parties with regard to the same housing loans. For every small bit of an issue he rushes to the Forum making unnecessary and baseless allegations. He has also filed a case before the Hon’ble MRTP Commission, New Delhi pertaining to the very same housing loan accounts. In the year 2007 due to change of rate of interest, the EMIs were changed at Rs.6,815/- for loan account No.1488 and the same was intimated to the complainant through letter dated 07/08/2009. But the complainant had kept on making payment of Rs.6,500/- for loan account No.1488, Rs.2,200/- for loan account No.1655 and Rs.2,300/- for loan account No.15343 as against the changed EMIs. As a result, the differential EMIs amount was accumulated in the account as outstanding of Rs.16,000/-. Without any dispute, the complainant made payment of lump-sum amount of Rs.10,000/- and requested for further time to make payment of the balance and the same was accepted. Through the letter dated 24/07/2009 the Opposite Parties answered all the queries of the complainant intimating the changes of EMIs for the loan accounts and having debited differential EMI and for deletion of standing instructions. Initially the complainant had made payment towards the loan account through cheques. The rate of interest was 13.5% when the loan under account No.1488 was sanctioned. In June-2004 due to revision of rate of interest, it was reduced to 8% and accordingly the proportionate EMI was calculated. In 2006-07 due to upward revision, the rate of interest was increased to 11.5% and proportionately the EMI of Rs.6,815/- was fixed for loan account No.1488 and proportionately to other loan accounts and the same was intimated to the complainant by the letter dated 07/08/2007. The complainant had not voluntarily enhanced the EMI amount to all the accounts as contended. Instead of making payment of actual enhanced EMI amount, the complainant started making payment of lower amount and therefore there was an accumulated outstanding of Rs.16,000/- in loan account No.1488. The complainant did not raise any objection or dispute in respect of that arrears. As per the request of the complainant the loan account was restructured in March-2009. Accordingly from April-2009 the EMI was fixed at Rs.6,395/- for loan account No.1488, Rs.2,604/- for loan account No.1655 and Rs.2,274/- for loan account No.15344 and the same was intimated to the complainant orally on 04/04/2009. Accepting the same, the complainant gave standing instructions/ECS authorization for recovery of the installments with arrears and other charges towards all the three loan accounts from his S.B.Account with Opposite Party No.3. The allegation that the concerned staff gave EMIs of Rs.2,064/- for loan account No.1655 and asked for the standing instruction is denied. No such figures were given as alleged by the complainant in respect of loan account No.1655. With ulterior motive, the complainant changed the EMI as Rs.2,064/- instead of Rs.2,604/-. Since the process of calculation and maintenance of account has been computerized, there is no discrepancy or wrong calculation in the account. Since the arrears have not been fully credited by the complainant, the balance arrears and other charges are also recovered by the system from the S.B.Account based upon the standing instructions. The allegation that the amount was debited without communication is false. The recovery was made from the S.B.Account by the system based upon the instructions and no excess amount is recovered from the S.B.Account of the complainant. As such, there is no question of crediting back the excess amount to the S.B.account of the complainant. The information sought by the complainant was provided not only once but several occasions. Whenever the complainant visited the branch, he was given good response and all the information required by him was provided. The over-dues in all the three accounts were intimated to the complainant orally as he used to visit the Bank. The complainant is in the nature and attitude of dissatisfaction even though all the information is provided. As per RBI guidelines all the benefits under the loan accounts shall be provided to the complainant based on the request. The complainant mistook the EMI of Rs.2,604/- as Rs.2,064/- and started paying lesser amount. The complainant has failed to maintain the S.B.Account in a required manner and in violation of norms, warranting action. There is no discrimination or breach of trust and violation of personal rights as alleged in Para-19 of the complaint. The amount debited to the S.B.Account of the complainant towards the loan accounts are all genuine and bonafide. Without having any endurance to have information, the complainant has rushed to this Forum with ulterior motive in order to harass the officials of the Opposite Parties. This Forum has no jurisdiction either to maintain the complaint or to grant any relief sought in the complaint. The reliefs sought are in the nature of rescheduling the loan account and also the manner in which the process of recovery to be made. In the absence of any deficiency of service provided by the Opposite Parties, the complaint is out of the provisions of the Act and therefore liable to be dismissed. The complainant has tried to convert this Forum into a Civil Court for recovery of the alleged amount paid as excess. On these grounds, the Opposite Parties have prayed for dismissal of the complaint.

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

5. The points for consideration are:-



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

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

Point No(1) : In the Affirmative

Point No(2) : As per final order,

for the following:-

-:REASONS:-

6. At the outset we may point out that it is not a case disputing the correctness of the amount claimed towards the loan account of the complainant involving the accounts. No doubt as held by the Hon’ble TAMILNADU STATE CONSUMER DISPUTES REDRESSAL COMMISSION, in the decision reported in III (1993) CPJ 1614 on which the learned counsel for the Opposite Party relied upon, the Forum constituted under the Consumer Protection Act is not the proper Forum for taking accounts and deciding the amount due to any of the parties and such disputes are to be decided only by the Regular Civil Court of competent jurisdiction. But a reading of the complaint makes it clear that the complainant has not disputed the correctness of the amount claimed by the Opposite Parties towards the three loan accounts. The sole grievance of the complainant is with regard to the excess debiting of the amount to his S.B.Account based on the standing instructions given on 04/04/2009 to debit the particular amount to his S.B.Account towards the EMIs for three loans. It is the contention of the complainant that as per letter dated 04/04/2009 he has authorized the Bank to debit Rs.10,800/- on 15th of every month towards EMIs of the three loans and in spite of that specific standing instructions the bank has debited the amount in excess of Rs.10,800/- every month. It is the case of the complainant that in violation of the specific instruction to debit Rs.10,800/- on 15th of every month towards EMIs of three loans, the Bank has debited Rs.205/-, Rs5,885/- and Rs.6,395/- totaling to Rs.12,445/- towards the repayment of the loan on 25/04/2009 and it is in excess of Rs.10,800/-. It is the further allegation of the complainant that after noticing the excess debit to his account he gave the letter dated 27/04/2009 revoking the standing instructions given on 04/04/2009 and in spite of it, the Bank has debited the amount to his S.B.Account even subsequent to revocation of the authorization. Both the parties have produced the copy of the letter dated 04/04/2009 by which the complainant gave standing instructions to debit Rs.10,800/- to his S.B.Account on 15th of every months towards repayment of the three loans. In this letter the amount payable to each loan account is also mentioned. From this letter we are unable to make out that the complainant had authorized to debit any amount other than Rs.10,800/- towards the amount payable to the loan account. Therefore, we are unable to accept the contention of the Opposite Parties that the complainant has authorized to debit any amount over and above Rs.10,800/- every month towards any arrears of the loan account. When the complainant had given specific instructions to deibt only Rs.10,800/- to his S.B.Account on 15th of every month towards the repayment of the three loans in case of debiting excess amount than Rs.10,800/- it was necessary for the Opposite Party Bank to inform the complainant about the excess amount that was to be debited to his account and to seek his approval. Debiting the amount in excess of Rs.10,800/- without instruction by the complainant, in our opinion clearly amount to deficiency in service on the part of Opposite Parties. That apart, after the complainant sent the letter dated 27/04/2009 intimating that he has revoked the standing instructions given on 04/04/2009, the Bank sent the letter dated 24/07/2009 intimating the complainant about the EMIs amount under each loan account and about the accumulation of the arrears in respect of loan account No.1655 and further informing that they have deleted the standing instructions created in his S.B.Account towards the loan EMIs as per his request. The information convyed by the Opposite Party in this letter in this regard is as under:-

“ We have deleted the standing instruction created in your S.B.Account towards the loan EMIs as per your request”.

Thus, the Bank informed the complainant that they have acted upon his letter dated 27/04/2009 revoking or canceling the standing instructions given on 04/04/2009 with regard to debiting of the EMI’s to his S.B.Account. The letter dated 24/07/2009 is subsequent to the complaint which was filed on 22/07/2009. It appears the Bank sent the letter even before issuance of the notice of the complaint. In spite of promising in the said letter in July-2009 that the Bank has deleted the standing instructions created in the S.B.Account of the complainant with regard to the loan EMIs, the Bank never stopped debiting the S.B.Account of the complainant with the loan EMIs. From the entries in the pass book pertaining to S.B.Account of the complainant, a copy of which is produced, it is evident that till September – 2009 the Bank went on debiting the EMIs amount to the S.B account of the complainant. This is against promise and commitment made by the Bank in the letter dated 24/07/2009 and this also amounts to deficiency in service. During the pendency of the complaint after hearing arguments for some time, the Forum suggested to the parties to see the possibility of amicable settlement of the dispute. Accordingly it appears the complainant approached the Bank and got some issues settled. On 25/11/2009 he filed a memo with regard to issues settled and the same is as under:-

“AS advised by the Hon’ble forum, I met the AGM, Canara Bank, Bangalore Metro Circle office with my letter PER/H.Loan/07/09 dt.16/11/2009 on the day and explained him the issues and sought his intervention to redress the same. After hearing me, he spoke to the Sr.Manager, HFB, Canara Bank whom I was advised to meet on the next day. Accordingly I met the Sr.Manager HFB and after a lengthy discussion and interaction following issues, the redressel of which was sought, were partly sorted or concurred to be resolved at an early date.

(i) The excess amount deducted from my SB a/c 0408101062218 till date will not be sought to be refunded since already adjusted to may loan account.

However, regarding the penalty of Rs.154/- debited to my above account towards non maintenance of minimum balance, no assurance from HFB was forthcoming as it should be decided by another Branch i.e., Jayanagar Shopping Complex Branch. A direction in this regard from the Hon’ble Forum will be a great help to me.

(ii) The Sr.Manager has confirmed that the standing instruction issued by me on 04-04-09 has been cancelled effectively during second week of November i.e., subsequent to the latest debit effected on 03/11/2009 (as per bank pass book entry) and there would be no more debits).

(ii) Regarding overdue outstanding in my loan account 1655, based on the details furnished by the bank as sought by me in my complaint under relief (V) I have agreed to work out the EMIs and sort out the issue.



However, regarding the cost and the compensation I have prayed for in may complaint, the Hon’ble forum, before which I have placed all the documents to prove that the Bank has failed to respond to all my letters, numbering four including one to the chairman of the bank, before approaching the Hon’ble Forum, with total disregard to my hardship by their sheer indifference and apathy, may kindly grant my prayer.

As mentioned in this memo the complainant is not insisting for refund of the excess amount debited to his S.B.Account as the same is already adjusted to his loan account. It is also stated in the memo that the standing instruction given by the complainant on 04/04/2009 has been cancelled during second week of November namely subsequent to the latest debit effected on 03/11/2009 and there would be no more debits. The complainant has also agreed to work out the EMIs and to sort out the issue regarding the overdue outstanding in his loan account No.1655. Prayer Nos. 1 to 4 as sought in the complaint have been thus amicably settled between the parties and now the only issue is with regard to the debiting of Rs.154/- towards penalty for not maintaining minimum balance in the S.B.Account and the compensation claimed in the complaint as well as the cost of the proceedings. So far as the sum of Rs.154/- debited towards penalty for not maintaining the minimum balance in the account is concerned from the entries in the pass book of the complainant, it is seen that there are several withdrawals from the S.B.account of the complainant besides debiting of the loan amount.. In such circumstances, it was proper on the part of the complainant to maintain sufficient credit balance in his account. When the complainant failed to maintain the minimum balance, the Bank has levied penalty as per the rules in force and therefore in our opinion, the complainant is not entitled to seek refund of penalty amount levied by the Bank for not maintaining the minimum balance. With regard to compensation claimed by the complainant as stated earlier, the Bank debited the amount in excess of the specific instruction to debit Rs.10,800/- on 15th of every month. No information was given to the complainant with regard to excess amount debited to his S.B.Account. Assuming for a moment that in view of the undertaking given by the complainant in the loan agreement it was not necessary to give notice to the complainant with regard to excess amount due under the loan account consequent upon change of EMIs due, to variation in the rate of interest, at-least it was necessary for the bank to desist from debiting amount from the S.B.account of the complainant after he gave the letter dated 27/04/2009 revoking or canceling the standing instruction or at-least subsequent to 24/07/2009 when the Bank informed the complainant that it has deleted the standing instruction created in S.B.Account. The Bank admittedly failed to act upon the letter dated 27/04/2009 immediately or with effect from 24/07/2009 when the Bank stated that it has deleted the standing instruction. On the other hand, the Bank went on debiting the amount to the S.B. Account till November – 2009. In our opinion, as stated earlier, this act of the Opposite Parties amounts to deficiency in service and therefore the complainant is entitled to compensation for inconvenience and mental agony suffered by him. Considering the facts and circumstances of the case it appears to us that the sum of Rs.50,000/- claimed as compensation is on the higher side. In our opinion, it is just and sufficient if the complainant is awarded compensation of Rs.5,000/- including the costs of the proceedings having regard to the fact that the other issues are amicable settled by the Bank. In the result, we pass the following:-

-:ORDER:-



1. The complaint is allowed in part.
2. The Opposite Parties are directed to pay compensation of Rs.5,000/-
3. Compliance of this order shall be made within eight weeks from the date of communication, failing which the amount awarded shall carry interest at 6% Per Annum from the date of the order till the date of communication.
4. Send a copy of this order to both parties free of costs, immediately.
5. Pronounced in the Open Forum on this the 07th Day of DECEMBER 2009.

CONSUMER COMPLAINT NO:31/2006.

1. V.Paramasivam,

140, Amman Koil Street,

Kakkan Nagar,

Thimmarajapuram,

Tirunelveli – 2.

2. The General Secretary,

Tamil Nadu Peoples Consumer Federation,

14, Law Chambers,

District Court Complex,

Tirunelveli. …Complainants.
..vs..
1. The Manager,

Canara Bank,

Palayamkottai Branch,

Tirunelveli – 2.



2. The Regional Manager,

Canara Bank,

Vannarpet,

Tirunelveli – 627 003. … Opposite parties.

This complaint came before us for final hearing on 24-11-2009 in the presence of 2nd complainant for the complainants and Thiru S.Venkatakrishnan, Advocate for the opposite parties and having stood over till this day for consideration this Forum made the following:

ORDER

This complaint is filed under section 12 of Consumer Protection Act 1986.

1) The averments of the complainant in the complaint are briefly as follows: The 1st complainant is residing in the address mentioned in the complaint and doing plumber work. The 1st complainant’s brother one Thiru Periyadurai and brother-in-law Maharajan are working at Muscat and the brother-in-law of the 1st complainant is having savings account with the 1st opposite party, account number is S.B.46437. Brother of the complainant is not having any savings account in any of the banks at Tirunelveli and so he used to send money to the 1st complainant through cheque in the account of his brother in law Thiru Maharajan. On 26-12-2005 1st complainant brother Periyadurai sent Rs.20,000/- through the cheque drawn from the 1st opposite party in his brother-in-law name Maharajan by air mail. The cheque No. is 0722. The cheque was not a crossed cheque, brother of the 1st complainant informed this through phone to him and the 1st complainant enquired with the postman after two days regarding the thapal. Since the thapal had not reached the 1st complainant for few days the 1st complainant got suspicion and so he meet the 1st opposite party on 30-1-2006 and told about the cheque sent by his brother Periyadurai from Muscat drawn in the account of his brother-in-law Maharajan and requested to stop payment if the cheque was presented by a 3rd party for collection. He also gave an objection letter regarding this aspect to the 1st opposite party, but the 1st opposite party told him that stop payment could be given only by the drawer and not any 3rd party. On 19-1-2006 1st complainant came to know that some 3rd party had drawn Rs.20,000/- presenting the above cheque from the 1st opposite party. The 1st complainant sent a complaint to the 2nd opposite party on 20-5-2006 but no action was taken so far. Subsequently 1st complainant gave a complaint to the Palayamkottai Police Station (Crime Branch) on 29-1-2006 and it was registered under petition No.5/2006. Even after giving objection on 13-1-2006 the 1st opposite party had not taken any action to stop payment on the cheque in the name of the 1st complainant and thereby caused loss to the 1st complainant Rs.20,000/-. This amounts to deficiency of service on the part of the opposite parties. Hence the complainant has filed this complaint to direct the opposite parties to pay Rs.20,000/- towards the cheque amount and to pay Rs.50,000/- as compensation for the mental agony caused to him and the cost of the proceedings.

2) The averment in the counter of 1st opposite party adopted by 2nd opposite party are as follows: The complaint is not sustainable in law. The cheque bearing No.076222 dated 27-12-2005 drawn on Canara Bank, Palayamkottai was in favour of one Paramasivam. The cheque was a bearer cheque. It was signed by the drawer on the back also. Hence the bank is duty bound to honour the said cheque. The complainant never gave any letter dated 13-1-2006 as alleged by him. In any event, the ‘stop payment’ instruction can be given only by a drawer of the cheque. The privity of contract is between the customer and the bank. The bearer of the cheque is not a customer. The bank has acted as per law and as per the manual of instructions to the bankers. There is absolutely no violation of any rule. The complainant if he feels that somebody has stolen his cheque and misused it he has to only file a complaint to the Police for im-presentation and causing wrongful loss. The complainant had absolutely no locus standi to file this complaint before this Forum against the opposite parties. It is frivolous and vexatious. The opposite party bank is not bound to pay amount to the complainant. There is absolutely no cause of action for the complainant to file this complaint. Hence the complaint is liable to be dismissed.

5) The points for considerations are;

1. Whether there is any deficiency of service on the part of the opposite parties and if so;

2. To what relief the complainants are entitled to?

4) Points: The case of the 1st complainant is that his brother Periyadurai and brother-in-law Maharajan are working at Muscat and his brother-in-law Maharajan is having a savings account with the 1st opposite party and since the brother of the 1st complainant Periyadurai is not having any account with any Bank at Tirunelveli he used to send money to the 1st complainant by cheque in the account of his brother-in-law Maharajan. Likewise he sent a cheque for Rs.20,000/- on 26-12-2005 by airmail thapal in the name of the 1st complainant and informed about this to the 1st complainant over phone and the cheque No is 076222. Since the above cheque has not reached the 1st complainant for few days he got suspicion and informed about this to the 1st opposite party and requested not to pay the cheque amount if it is presented for collection by any 3rd party. But the 1st opposite party told him that stop payment instruction could be given only by the drawer and not by a 3rd party and subsequently 1st complainant came to know that the cheque was encashed by a 3rd party on 19-1-2006. The 1st complainant sent a complaint to the 2nd opposite party on 25-1-2006, since no action was taken on it he filed a Police complaint on 29-1-2006.

5) The counsel for the complainant would contend that even after a written objection given by the 1st complainant the 1st opposite party had not taken even the minimum care to verify whether the cheque presented for collection was the person to whom it was intended and mechanically paid the amount without following any procedure which amounts to deficiency of service on his part causing loss to the 1st complainant Rs.20,000/-. On the other hand the counsel for the opposite parties would contend that the cheque being a bearer cheque and not a crossed cheque the bank is bound to honour the cheque when it was presented by a person and stop payment instruction could be given only by the drawer of the cheque. He would further contend that complainant had not given any letter dated 13-1-2006 as alleged by him and hence there is no violation of any rule and deficiency of service by the opposite parties.

6) To prove the case of the complainant, proof affidavit of the 1st complainant was filed and Ex.A1 to Ex.A3 were marked. Ex.A1 is the copy of the letter by the 1st complainant to the 1st opposite party dated 13-1-2006. Ex.A2 is the copy of complaint given by the 1st complainant to the 2nd opposite party in which it has been stated that letter dated 13-1-2006 had been enclosed. Ex.A3 is the receipt from the Palayamkottai Crime Branch Police station for the complaint given by the 1st complainant. On the side of the opposite parties proof affidavit of 1st opposite party was filed and Ex.B1 and Ex.B2 were marked. Ex.B1 is rules of business of the banks and Ex.B2 is the manual of instructions for current and savings account. In Ex.B2 at page 2 the procedure to be followed for stop payment has been stated. Only drawer has the right to stop payment or countermand payment of a cheque. A payee or holder or a holder in due course has no right to ask the Bank to stop payment of the cheque. The counsel for the opposite parties would contend that as per the above instructions 1st opposite party has no right to withhold a cheque from payment when it is presented unless the drawer of the cheque had given instructions for stop payment. The procedure stated above would hold good in the normal circumstances. But in this case the person to whom the cheque was intended had given an objection in writing before the 1st opposite party that the cheque No.076222 sent by his brother-in-law Maharajan from Muscat was lost and had requested the 1st opposite party not to encash it when it is presented by a 3rd party. The opposite parties counsel argued that the letter dated 13-1-2006 was not given by the 1st complainant as alleged by him and so the 1st opposite party had no occasion to verify with the person who presented it for collection whether he is a true holder of the cheque or not. Under Ex.A2 1st complainant had given a complaint to the 2nd opposite party with a copy of the letter dated 13-1-2006. No reply was sent by the 2nd opposite party denying the receipt of the letter dated 13-1-2006. Hence the counsel for the complainants would contend that the denial of non receipt of letter dated 13-1-2006 by the opposite parties is an after thought and only to cover up their mistakes they have taken the stand at the latest stage. As rightly contended by the complainant’s side counsel the opposite parties have not denied in the earliest opportunity regarding the receipt of the letter dated 13-1-2006. Hence without taking the minimum care the 1st opposite party had encashed the cheque without any preliminary enquiry regarding the holder of the cheque. We hold that this amounts to deficiency on the part of the opposite parties.

7) Counsel for the opposite parties would contend that there is no privity of contract between the 1st complainant and the 1st opposite party since he is not having any account with the 1st opposite party and so the 1st complainant cannot be termed as a consumer under the Consumer Protection Act. U/s.2(1)(d) a person is a consumer who avails any services for a consideration which has been paid or promised or partly paid or party promised or any system of default payment and includes any beneficial of such services other than the person who hires or avails of the services. The complainant is a beneficiary under one Maharajan who is having account with the 1st opposite party and so he is to be construed as a consumer, hence the argument of the opposite parties counsel that since there is no privity of contract between the 1st opposite party and the 1st complainant, the 1st complainant cannot be termed as a consumer under Consumer Protection Act does not hold good. In the circumstances stated above we hold that the opposite parties have committed deficiency of service and the complainant is entitled to the relief as asked for. We decide this point accordingly.

8) In the result, this complaint is allowed and the 1st opposite party is directed to pay a sum of Rs.20,000/- being the cheque amount to the 1st complainant and to pay Rs.10,000/- as compensation for the mental agony and Rs.2,000/- towards costs within two months from the date of this order failing which the complainant is at liberty to execute this order u/s.25 and 27 of the Consumer Protection Act, 1986.

Dictated to the Steno-typist, taken and typed by him and corrected by me and pronounced by us in the Open Forum on this the 14th day of December 2009.

CC.No.92/2009
Dated of this 27th day of January 2010

Present:

Sri.K.M.Thammaiah President

Sri.D.Shivamahadevaiah Member

Smt.Girija Lady Member

Between:

B.S.Gopalakrishna s/o. late Seebaiah,

Aged about 55 years,

Residing at C/o.S.N.Krishnaiah Complainant

Rajesh Nilaya, Amarapura Road,

Jyothinagara, Sira, Tumkur Dist,

(By Sri.G.H.Srinivasa, Advocate)

AND

1. The Manager,

Canara Bank

Near Raghavendra temple,

Sira, Tumkur district Opposite parties

2. The Manager,

State bank of Mysore,

Madhugiri branch, Madhugiri

Tumkur district

(1st OP- Exparte)

(2nd OP- by Sri.G.S.Ramasesha, Advocate)

ORDER

(This order prepared by Sri.D.Shivamahadevaiah, Member)

This is a complaint filed Under Section 12 of the Consumer Protection Act, 1986 (hereinafter called as Act for short)

2. Through this complaint, the complainant prays for an award and order against the Opposite Parties (hereinafter called as the OPs for short) to pay a sum of Rs.38,815/- with interest at 12 per annum from the date of presentation of refund advise for realisation along with costs of the complaint and for such other reliefs.

3. The facts given rise to institute the complaint may be summarized as thus:

It is contended that, he has applied for grant of CL-9 license for half yearly under the quota of Tourism before the Deputy Commissioner of Excise, Tumkur district. He had deposited the license fee of Rs.32,750/- and development fee of Rs.5,065/- through respective bank challen No.130 and 131 dated 31-12-1998 at 2nd OP to be paid to the account of the above said office. The license in CL-9 was not granted to him. Therefore, he requested for the refund of deposit amount mentioned supra.

4. It is further contended that, the Deputy Commissioner of Excise, after due verification passed an order in No.EXE. IML 379/98-99, Tumkur dtd. 23-1-2006 for refund of amount mentioned supra in favour of the complainant. The above said office had issued the copy of the order to the 2nd OP for necessary action and had also issued advice of refund/adjustment of revenue and the order of refund adjustment of revenue payable at State Bank of Mysore.


5. It is further contended that, he has presented the documents mentioned supra through his SB A/c No.19725 at 1st OP through its bank challan on 27-1-2006 for realisation of Rs.38,815/-. The said amount was not realized for about one year and he requested about the order of refund advice and realisation of amount with the 1st OP. The 1st OP has evasively replied and issued a letter on 12-1-2007 to the Deputy Commissioner of Excise, Tumkur stating that, the complainant has deposited the cheque of Rs.38,815/- for collection in its bank and the same cheque lost in transit. Hence, he requested for issue of duplicate cheque. The 1st OP had assured the complainant that, he will look into it and see that, the amount is realized and also issued the copy of the letter dated 12-1-2007 to the complainant.

6. It is further contended that, after the lapse of one year, he enquired about the refund advice and the realisation of amount with the 1st OP. Again the 1st OP gave evasive reply and falsely assured to the complainant. On 26-7-2008 the 1st OP has issued letter to the Deputy Commissioner of Excise, Tumkur requesting for issue of duplicate refund advise. Again the complainant has approached the 1st OP and enquired the refund advice and realisation of amount. The 1st OP has replied that the refund advise was sent to the 2nd OP for realisation and it was lost in transit. Thus, the OPs are jointly and severally done defective service. The complainant has suffered mental agony and shock due to the loss of his amount. The cause of action arose on 23-1-2007, 27-1-2006, 12-1-2007 and subsequently on 26-7-2008. Hence, this complaint.

7. Among the OPs who have been notified of the complaint, the 2nd OP put in his appearance through his counsel and resisted the same by filing objections. The 1st OP inspite of service of the notice remained absent and accordingly, he is placed exparte.


8. The gist of the OP objections is as follows:

In the objections filed by the 2nd OP, it is contended that, the complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine for the following reasons:

The complainant himself has stated that, he had deposited the refund advice issued by the Deputy Commissioner of Excise, Tumkur dated 23-1-2006 at Canara Bank, Sira branch on 27-1-2006 and after nearly one year he had enquired about the same and the 1st OP has issued a letter that the refund advice is lost in transit. Therefore when the documents have not reached the 2nd OP as admitted clearly in the complaint itself, the question of 2nd OP answering his claim does not arise. There is no cause of action for the complaint against the 2nd OP and alleged cause of action is concocted imaginary one.

9. It is further alleged that, the averments made in the complaint are not within the knowledge of this OP. The allegations made in the entire complaint is directed only against the Canara Bank, Sira and just made a passing allegations that State Bank of Mysore, Madhugiri branch alleging, they are jointly liable without there being any transaction known to the 2nd OP. There is no deficiency of service by this OP bank at all. It is an attempt made by the complainant to make an unlawful gain against the bank. Accordingly, he prays for dismissal of the complaint against this OP with exemplary costs.

10. In support of the cases of the parties, the complainant and 2nd OP have filed their affidavits. The documents produced by the complainant came to be marked as Ex.P-1 to 5. We have heard the learned counsel appearing for the parties. We have also examined the materials available on record.

11. The questions that arise for our considerations are:

1. Is there any deficiency of service by the OPs?

2. Is the complainant entitled for the relief as prayed for?

12. Our findings on the above questions are here under:

Point No.1: Affirmative as against the 1st OP

Point No.2: As per order

REASONS

13. A careful perusal of the complaint, objection of the 2nd OP and affidavit, documents produced by the complainant that, it is clear that, the allegation of the complainant in so far as, his SB account No.19725 with the 1st OP and presentation of document issued by the Deputy commissioner of Excise, Tumkur district in order No.EXE IML 379/98-99 dated 23-3-2006 the refund of the deposited the document presented through a challan as per Ex-P-1 is concerned, there is no dispute. It is also not in a dispute that the said document has been received by the 1st OP for encashment from the 2nd OP. It is also not in dispute that, the amount in question has not yet been realized and credited to the account of the complainant. It is the case of the complainant that, despite making enquires with the 1st OP about the document no positive reply was given. From the document produced by the complainant, it is seen that, the amount of Rs.38,815/- as per Ex-P-2. The document presented through a challan of the 1st OP branch at Ex-P-1 bears seal of the 1st OP branch and signature of the concerned official of the said branch. When the 1st OP has received the document from the complainant for realization through the 2nd OP. The burden shifts on the 1st OP to establish that, it had presented the document for encashment from the 2nd OP. The 1st OP document shows that, it was lost in transit. Ex-P-5 reads as thus:

“Canara bank, Sira – 572137

MSCR.OSC/BRM/08-09/26-7-2008

To,

The Deputy Commissioner of Excise,

Tumkur Dist. Tumkur
Dear Sir

Sub: Issue of duplicate advice of refund order to

Sri.B.S.Gopalakrishna s/o. late Seebanaiah,

Sira for Rs.38,815/-

Ref: Your letter Exe/TML/379/1998-99.

Sri B.S.Gopalakrishna deposited refund advice of Rs.38,815/- for collection to our bank and the same has been sent for collection to State Bank of Mysore, Madhugiri. Now we came to know that the subject refund advice was lost in transit. Hence we request your good selves to kindly issue a duplicate refund advice and oblige.

Thanking you Yours faithfully

Place: Sira Sd/-

Date: 26-7-2008 (Manager)”

14. Therefore, the 1st OP should explain as to what had happened to the document and why the amount was not realized on credited to the account of the complainant. After notice duly served to the 1st OP, he did not appear before this forum in person or through his counsel. Nobody represented on behalf of the 1st OP. Hence, he was placed exparte. The 2nd OP in his objection has strongly opposed that, “when the document had not reached to the 2nd OP, the question of 2nd OP answering his claim does not arise” and denied all the allegations made against him. Now burden is on the 1st OP it show whether the alleged document is reached to the 2nd OP or not. Unfortunately the 1st OP did not appear before this forum to show the bona fide action taken in this regard. Admittedly, the document in question has not been realized and credited to the account of the complainant. Therefore, in our view the 1st OP is primarily guilty of the negligence of duties and thereby committed deficiency in service. As such we are of the opinion that, the 1st OP is liable to make good of the document amount and also to pay a reasonable compensation for causing mental agony and unnecessary delay to the complainant. Under the circumstance of the case, we quantify the compensation at Rs.3,000/-.

15. Being that opinion, we proceed to pass the following:

ORDER

The complaint is allowed in part with costs, directing the 1st OP to pay document amount of Rs.38,815/- together with a compensation of Rs.3,000/- to the complainant within 8 weeks from the date of this order failing which, the 1st OP shall pay an interest at the rate of 9% per annum on the said sum of Rs.38,815/- from 4-2-2006 till payment. The costs of the proceedings is fixed at Rs.1000/-. It is also ordered that, the bank is liberty to make an enquiry against the errored person and recover it from such person. The complaint as against the 2nd OP is hereby dismissed but without costs.


Dictated to the stenographer, typed by him, corrected and pronounced on open forum this 27th day of January 2010.

I am the pensioner of your bank ,since july 2011 pension was not cerdited on my account.I am only depend upon my pension .But till date,no pension is cerdited .I has written a application to bank on 13oct2011 .Branch manager unable to tell what was the resion So,please do the neadful for me. My A/C No.101084942&code-1749 at sultanpur branch.