Mr.K. Loganathan,

S/o. Kothandaraman,

Old No.14, Karpagam Garden, Complainant

6th Cross Street, Adayar,

Chennai – 600 020.

Vs

Bank of Baroda,

Represented by its Senior Manager, Opposite Party

R.K. Nagar Branch,

Chennai – 600 028.


ORDER

The complainant had deposited outstation cheque for Rs.1,50,000/- with the opposite party bank on 20.03.2006 and the cheque was honoured on 18.04.2006. On enquiry at the I.C.I.C.I Bank, Bangalore regarding the clearance of the cheque which was drawn on that bank, he was informed that the cheque for Rs.1,50,000/- was cleared from the account of Mr. Ovia Kumaran who issued cheque for Rs.1,50,000/- on 28.03.2006. He issued cheuqe for Rs.28,384/- dated 21.03.2006 in favour of the Life Insurance Corporation of India to pay the premium for Insurance Policy.


But, the Life Insurance Corporation of India by letter dated 20.04.2006 returned the cheque for “ Insufficient Funds “ and the policy get cancelled. Because of the lethargic attitude of the opposite party, he lost Golden Jubliee Policy worth Rs.2,00,000/-. The opposite party took 30 days to honour the cheuqe and collected Rs.461/- as commission. Hence, there is deficiency in service on the side of the opposite party. Therefore, the complainant filed this complaint for refund of rs.461/- being the charges collected by the opposite party and to pay compensation of Rs.1,00,000/- for deficiency in service and cost of the complaint.

2. The opposite party field version and contended inter alia that the complainant had deposited an outstation cheque for Rs.1,50,000/-drawn in ICICI Bank, Bangalore on 20.03.2006 in his account for collection. The cheque was sent for clearance through the national clearinghouse. The opposite party received the proceeds of the cheque on 18.04.2006 and the amount was credited in his account on the date itself. The delay in clearance of the cheque was not due to any fault or deficiency on the part of the opposite party.

During that period the employees of State Bank of India were on strike. The delay in the realization of the proceeds was due to the facts beyond the control of the opposite party. Even according to the complainant, the cheque was cleared on 28.03.2006 and he issued cheque for Rs.28,384/-dated 21.03.2006. Since no sufficient fund was available, the cheque was dishonoured. There is no deficiency in service on the part of the opposite party.

3. Proof Affidavits have been filed by both the complainant and the opposite party. Exhibits A1 to A8 were marked on the side of the complainant. Exhibit B1 was marked on the side of the opposite party.

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: Admittedly, the complainant had deposited a cheque for Rs.1,50,000/- drawn on ICICI Bank, Bangalore, in the opposite party bank on 20.03.2006 in his account for collection. But, the cheque was cleared on 28.03.2006 but it was credited on 18.04.2006 by the opposite party bank. The complainant issued cheque in the name of LIC of India on 21.03.2006 which was presented for collection on 05.04.2006. Since there is no amount in the account of the complainant the cheque was returned for “insufficient funds”. The complainant alleges deficiency in service because of the opposite party took 30 days for crediting the cheque amount in his account. The opposite party would submit that the cheque was sent through collecting agency and the delay was caused by the clearinghouse and not by the opposite party and the delay was beyond their control. Though the cheque dated 21.03.2006 was issued by the complainant without sufficient funds on that date in his account which was sent for collection to the opposite party and presented only on 05.04.2006. Admittedly, the cheque was cleared at Bangalore on 28.03.2006 but it was credited only on 18.04.2006.

The delay on the part of the opposite party in crediting the cheque amount in the complaint’s account. The act of the opposite party amounts to deficiency in service. The cause of the delay offered by the opposite party that it was beyond their control is unacceptable. It is the duty of the opposite party bank to credit the collection amount into the account of the complainant at least within a week. Exhibits B1 and A8 are the statements issued by the opposite party which would show that the cheque amount of Rs.1,50,000/- was credited in the account of the complainant only on 18.04.2006 after debiting Rs.461/- as commission. The long delay in credit the cheque amount by the opposite party amounts to deficiency in service.

6. Point No.2: In the result, the complaint is allowed. The opposite party is directed to pay commission of Rs.461/- to the complainant and to pay an amount of Rs.25,000/- as compensation for mental agony and Rs.2000/- as cost of the complaint within six weeks from the date of receipt of copy of this order, failing which the amount shall carry interest at the rate of 9% per annum till the date of payment.

Sushil Malik s/o late Smt. Ram Rakhi & Amolak Ram r/o B-XX-111, 425, Kucha No.6, Field Ganj, Ludhiana.



…..Complainant.

Versus



1- Bank of Boroda, Samrala Chowk, Ludhiana, through Bank Manager.

2- Bank of Baroda, SCO 62-63, Bank Square, Sector 17-B, Chandigarh, through DGM.



…..Opposite parties.











O R D E R







1- Smt. Ram Rakhi was mother of the complainant Sh. Sushil Malik. She had saving bank account no.2797 with opposite party bank. Smt. Ram Rakhi made six applications to opposite party, for converting amount of her saving bank account, into FDR, for three year periods. Sequel to such request, opposite party made following six different FDRs in the name of Smt. Ram Rakhi:-

Sr. No.


FDR No.


Amount(Rs)


Value Date


Due Date


Maturity Amount(Rs)

A)


946674


45000


8.6.2004


8.6.2007


51302

B)


946693


45000


21.6.2004


21.6.2007


54202

C)


946720


45000


5.7.2004


5.7.2007


54603

D)


946915


45000


29.9.2004


29.9.2007


53013

E)


946919


45000


6.10.2004


6.10.2007


53013

F)


946932


45000


13.10.2004


13.10.2007


53013



While converting the amount of saving account, into FDRs, Smt. Ram Rakhi in all her six applications, nominated complainant as nominee, for the purposes of FDRs. She had earlier nominated complainant as nominee qua her saving account no.2797, while submitting the form on 31.5.2004 and duly accepted by the opposite party bank. Smt. Ram Rakhi died on 1.6.2005. Thereafter, complainant approached opposite party bank, for release of amount o the FDR, but was intimated that such amount can only be released on maturity of FDRs. Thereafter, on maturity of FDRs, filed application dated 29.11.2007 and thereafter, on 28.7.2008 to the opposite party. Had also moved opposite party bank, under RTI Act, for supply of copy of application of his mother, which was supplied to him, vide order dated 22.10.2008.


But his letters dated 29.11.2007 and 28.7.2008, have remained unanswered from opposite party. But whenever, he visited opposite party bank, was apprised that in FDRs, complainant has not been mentioned as nominee, as no form was filled for nominating the complainant as nominee. So, payment as nominee, can not be released to the complainant. Such act on part of opposite party, claimed amounting to deficiency in service. Because no form was filled, while converting amount of saving bank account, into FDR by his mother. FDRs of the amount from saving account funds, were made, on application of his mother, wherein complainant was nominated as nominee.


It was for opposite party on the basis thereof, to have mentioned complainant, as nominee in FDRs. Hence, such act of opposite party, claimed amounting to deficiency in service, by filing this complaint u/s 12 of the Consumer Protection Act, 1986, and claimed compensation of Rs.50,000/-, for harassment as well as direction to them, to release total maturity amount of six FDRs (Rs.3,19,144) alongwith interest prevalent from time to time due after the date maturity and to release amount of Rs.20345.15 as per pass book entry dated 3.1.2007 and pay him litigation costs of Rs.7500/-.

2- Opposite party in their reply, claimed that complainant has not come with clean hands, by not disclosing true facts. Rather, in order to obtain wrongful gain and grabb money of other legal heirs of deceased Smt. Ram Rakhi, has filed this complaint on frivolous allegations. Averred that Smt. Ram Rakhi never made any nomination regarding the FDRs in dispute, in favour of the bank, for appointing the complainant as nominee in the FDRs. Nor she completed other formalities, for appointing complainant as her nominee, as per banks guidelines. Had she nominated complainant as nominee, regarding the FDRs, the bank must have paid the proceeds of the FDRs to the complainant. Nor Smt. Ram Rakhi ever during her life time, conveyed to the bank, nominating complainant as nominee. Rather, they had received legal notice dated 21.8.2008 from one Sh. Suresh Malik, other legal heir of the deceased and came to know through such notice that Smt. Ram Rakhi had left three sons, three daughters, as her first class legal heirs.


All of them are entitled to 1/6th share in the proceeds of the FDRs. Sh. Suresh Malik has clearly mentioned in the notice that no nomination regarding the proceeds, in favour of the complainant, was ever made by Smt. Ram Rakhi. Therefore, in these circumstances, opposite party bank can not release the amount, until and unless, complainant gets succession certificate qua proceeds of the FDRs, from competent court of law. As dispute was between the legal heirs of Smt. Ram Rakhi, so it is mandatory, to obtain the succession certificate. Further claimed that complaint is bad for non-joinder of legal heirs of Smt. Ram Rakhi. In these circumstances, denied that complainant was ever appointed nominee qua the amount of FDR. The bank had supplied form DA-1 to the deceased from time to time, but she never executed the same, nor returned filled form to the bank. Death of Smt. Ram Rakhi on 1.6.2005, is admitted.

3- Both parties adduced evidence in support of their claims and stood heard through their respective counsels.

4- Ex.C4 to Ex.C9 are the photo copies of the FDRs, standing with opposite party bank, in the name of Smt. Ram Rakhi. Following table would reflect FDR no, amount invested, date of issue, maturity date, maturity amount:-



Sr. No.


FDR No.


Amount(Rs)


Issue Date


Maturity Date


Maturity Amount(Rs)

Ex.C4


946693


45000


21.6.2004


21.6.2007


54202

Ex.C5


946674


45000


8.6.2004


8.6.2007


54202

Ex.C6


946720


45000


5.7.2004


5.7.2007


54603

Ex.C7


946915


45000


29.9.2004


29.9.2007


53013

Ex.C8


946919


45000


6.10.2004


6.10.2007


53013

Ex.C9


946932


45000


13.10.2004


13.10.2007


53013



In all these FDRs, there is no mention of any nominee.

5- However, it is not in dispute that Smt. Ram Rakhi had saving bank account no.2797 and out of funds available in the account, she got six FDRs prepared, by making six applications to the bank, copies of which are Ex.C12 to Ex.C17. In all these applications, contents are the same, vide which from her saving bank account no.2797, got six FDRs prepared for Rs.45000/- each for three years. Application Ex.C12 is dated 26.6.2004, Ex.C13 undated, Ex.C14 dated 13.10.2004, Ex.C15 dated 4.10.2004, Ex.C16 dated 29.9.2004 and Ex.C17. For the sake of convenience, we are referring application Ex.C12 only, which reads as under:-

“To

The Branch Manager,

Bank of Baroda,

Samrala Chowk, Ludhiana.

Sub:- For issuance of FDR (A/c no.2797).

Sir,

I, Smt. Ram Rakhi make hereby request you to convert my saving a/c(No.2797) into FDR of forty five thousand for three(3 years). I recommend my son Sushil Malik as nominee for the same. I will be very thankful to you for this act of kindness.

Yours faithfully,

Dt.26.6.04. Sd/-

(Ram Rakhi)”.



6- In all these applications Ex.C12 to Ex.C17, Smt. Ram Rakhi nominated and recommended her son Sh. Sushil Malik, as nominee. It was on the strength of these applications Ex.C12 to Ex.C17 that six FDRs Ex.C4 to Ex.C9 were prepared by the opposite party bank, in favour of Smt. Ram Rakhi. Copies of the applications Ex.C12 to Ex.C17 were obtained by complainant from opposite party bank, vide his application Ex.C11 dated 22.10.2008, under Right to Information Act, 2005. On few of the applications, opposite party bank recorded FDR number also. This is apparent from the following chart:-



Application Exhibit


FDR No.


FDR Ex.

Ex.C12


37202


Ex.C6

Ex.C13


37187


Ex.C4

Ex.C16


37306


Ex.C7



7- It is, as such, clear that out of 6 applications moved by Smt. Ram Rakhi, for converting amount of Rs.45000/- each from her saving bank account, opposite party, on three applications, entered serial number of the FDR.

8- It is contended in these circumstances on behalf of the opposite party bank by the ld. counsel that nomination forms were given to Smt. Ram Rakhi, which she never filled and as a result, no nomination appeared in FDRs, so prepared by the bank. Other legal heirs have raised objection on release of amount to the complainant, on ground that no nominations were ever made by Smt. Ram Rakhi, so complainant alone, is not exclusive legal heir of Smt. Ram Rakhi and consequently, not entitled for the amount. Ld. counsel also referred to notices Ex.R7 dated 21.8.2008 and Ex.R8 dated 31.1.2008 issued to the bank by Sh. Suresh Malik, claiming interest, as legal heir of Smt. Ram Rakhi, alongwith others in all the 6 FDRs.

9- Whereas, on behalf of complainant, it was contended that complainant was nominated by Smt. Ram Rakhi, as nominee while preparing 6 FDRs, out of her account and it was for the bank, to have acted upon such instructions, by mentioning complainant, as nominee, which fact was clearly communicated in writing by Smt. Ram Rakhi, in her applications Ex.C12 to Ex.C17 to them.


By not doing so, opposite party would be guilty of not acting according to instructions of its customers and now they can not deny complainant to be nominee, for the purposes of all the 6 FDRs. Though opposite party have taken plea that nominations forms were given to account holder, which were never returned filled up to the bank. But qua such plea, no proof has forthcome on the record, except affidavit Ex.RW1/A of Sh. A.K. Kundra, manager of the bank. But he has given affidavit, on the strength of record, by stating that as per FDRs, there is no mention of any nomination and Smt. Ram Rakhi never made any nominee qua these FDRs. He says deceased has not executed any form, in favour of the bank, for appointing complainant, as nominee qua the FDRs.


But he does not say that when FDRs were prepared, he was Incharge of the branch and himself submitted such forms to the account holder. Nor any affidavit of any official of the bank, is placed to prove that actually, such forms were ever made available by the bank to Smt. Ram Rakhi. Hence, in these circumstance, we feel that there is clear cut communication and direction by Smt. Ram Rakhi, in all these applications Ex.C12 to Ex.C17, to convert a sum of Rs.45000/- each in fixed deposit receipts, for three years, out of her saving bank account no.2797 and recommended her son Sushil Malik (Complainant), as nominee in the same. That was clear message to the bank and when they acted on the basis of those applications, by converting the amount from saving bank account to fixed deposit account, it would mean that they accepted her instructions to be correct and then prepared FDRs out of saving bank account in her name. But while doing so, they did not act on her second instructions, recommending complainant as nominee. It is as such deficiency committed by opposite party, by not showing in those FDRs, complainant to be nominee, despite specific instructions by the account holder to them in this regard.

10- Therefore, in these circumstances, we feel that it now doesn’t lie in the mouth of opposite party bank, to deny that complainant is not nominee in all the 6 FDRs of his mother. Rather, we have to take complainant, as nominee in all these 6 FDRs. Because these FDRs were prepared on application signed by Smt. Ram Rakhi and wherein, she had nominated complainant, as nominee for purposes of FDRs. Therefore, in these circumstances, we hold and conclude that complainant is deemed to be nominee of Smt. Ram Rakhi, for purposes of all the 6 FDRs Ex.C4 to Ex.C9 and opposite party to take him, as nominee of the FDRs.

11- Now, question is whether right of other legal heirs of Smt. Ram Rakhi, stands snatched or finished, on account of complainant being nominee under the FDRs. Because right of inheritance stands governed under provisions of Hindu Succession Act. Under that Act, all legal heirs succeed to the estate simultaneously, having equal right. Therefore, rights of other legal heirs of Smt. Ram Rakhi, can not be denied only on account of complainant being nominee under all these 6 FDRs. However, Hon’ble Supreme Court in Smt. Sharbati Devi & Ors. Vs Smt. Usha Devi AIR 1984 (SC)-346, have held that “nominee only will be entitled to receive the amount which he shall hold as a trustee for the legal heirs of the deceased. In the words, Their Lordships:-

“A mere nomination made under section 39 does not have the effect of conferring on the nominee any beneficial interest in the amount payable under the life insurance policy on the death of the assured. The nomination only indicates the hand, which is authorized to receive the amount, on the payment of which the insurer gets a valid discharge of its liability under the policy. Decision of Allahabad High Court reversed. AIR 1962 Allahabad 355; AIR 1978 Delhi 276 and AIR 1982 Delhi 36 overruled”.



12- Thus, this law of the Hon’ble Supreme Court make it abundantly clear that payment to a nominee would amount to a valid discharge of liability of insurance company. Similarly, in the instant case, if opposite party releases the amount of six FDRs to the complainant, they for the purposes of law, shall be deemed to have been discharged from liability. But complainant shall hold entire amount of 6 FDRs, as proceeds as trustee for legal heirs of deceased Smt. Ram Rakhi. But opposite party bank can not deny release of account to the complainant, on the ground that he is not a nominee.

13- In these circumstances and in view of the discussions, we consequently, allow this complaint, by holding and concluding that complainant be taken and deemed as nominee of Smt. Ram Rakhi, for purposes of 6 FDRs Ex.C4 to Ex.C9, which she had clearly communicated to opposite party, under applications Ex.C12 to Ex.C17, by converting her saving bank account, into FDR account. But opposite party failed to mention complainant, as nominee in the FDRs, for which complainant can not be blamed. Therefore, we direct opposite party, to release entire amount of all the 6 FDRs Ex.C4 to Ex.C9 on maturity.


The maturity amount alongwith applicable upto date rate of bank interest, as applicable as per guidelines of the RBI and rates prescribed by the bank, for renewal of FDRs and maturity amount of 6 FDRs with upto date interest, be paid to the complainant, who shall hold the entire amount so released and paid by the bank, as trustee for the legal heirs of the deceased Smt. Ram Rakhi. Those legal heirs shall have right in the amount as per their respective shares. In the peculiar circumstances, we do not pass any order, as to compensation, but direct opposite party to pay litigation cost of Rs.2000/- to the complainant. Order be complied within 45 days of receipt of copy of order, which be provided to the parties free of charge. File be completed and consigned to record room.

C.C.NO.50/2009
Between :
Sweeti Kumari Agarwal,

D/o Madan Lal,

25 years,

Residing at 4-3-29, Kothagraharam,

Vizianagaram. --- Complainant
And :
The Chairman and Managing Director,

The Industrial Finance Corporation of India Ltd.,

Regd., Office: Bank of Baroda Building,

16 Sansad Marg, P.B.No.363,

New Delhi. --- Opposite Party



This complaint is coming on for final hearing before us in the presence of Sri Ashok Kumar Sarma, Advocate for Complainant and of Sri K.V.N.Thammanna Setty, Sri D.Swaroop Kumar and Sri A.Srinivas, Advocates for opposite party and having stood over for consideration, the Forum made the following:

O R D E R

This is a complaint filed under section 12 of the Consumer Protection Act by the above named complainant praying this Forum to pass an order cum award in favour of the complainant and against the opposite party by directing them to pay a sum of Rs.34,865/- along with subsequent interest @ 18% p.a. on the said amount to the complainant or pay a sum of Rs.7,865/- along with interest @ 24% p.a. from the date of 3rd redemption till the date of payment or pass appropriate orders as the Honourable forum deems fit and proper in the circumstances of the case and to pay a sum of Rs.25,000/- towards compensation for mental agoney and for costs and other reliefs.

The complainant submit that she deposited Rs.5,000/- in Family bonds (millionaire bonds) of the opposite party company with a fond hope that the said amount will raise good return in the year 2024. In the said scheme, the opposite party has also given option to redeem the bonds. The above said option is only to the depositor, but not to the company. The complainant submits that quite contrary to the understandings, the complainant never demanded or opted for any redemption of the certificates on 27-0-8-2008, the opposite party has issued a cheque bearing No:120880 for Rs.15,135/- to the complainant stating that the complainant is only entitled for the said amount towards the said deposit amount and the complainant encashed the cheque under protest by reserving her right to claim the remaining amount. Even if the bonds are redeemed on September 2006 the complainant is entitled to get Rs.23,000/- as per the terms and conditions, but the said bonds are redeemed against the complainant consent, so the company is liable to pay the 4th redeemed option, i.e., September 2011 and the company is liable to pay the said amount.

The opposite party filed his counter denying all the allegations mentioned in the complaint and put the complainant to strict proof of the same. The opposite party submits that as the original complainant applied for redemption which was duly redeemed by the opposite party and discharged the amount after paying the entire amount, as per the redemption conditions. The opposite party further submits that the opposite party is a public financial institution. In the year 1996 to augment its financial resources, opposite party mobilized deposits from public by way and in the name and style of Family bonds under difference shames as per the prospectus Dt:03-07-1996 which contained detailed terms and conditions of governing the issue of bonds, subscription, allotment, repayment, the rights and privileges available to the opposite party as well as the investor, inter-alia in regard to early redemption of bonds by each party. Having agreed upon the terms and conditions provided in the bond, it was clearly mentioned in the bond certificate, application form/aforesaid prospectus that opposite party and the complainant had the right for early redemption of the bonds. Notices were also issued to the complainant about the complainant under the guardianship of Durga Devi had applied for one millionaire bond under Option-II of Rs.5,000/- issued by the opposite party and the bond bearing Folio No:5160-473 with Certificate No:115984 was issued in the name of complainant. The allegations made by the complainant that the right for early redemption of bonds was only with the bond holder and not with the issuer is grossly wrong and misleading and denied all the other allegations and opposite party prays this forum that the complaint may be dismissed, since, the claim of the complainant has not been properly filed by all the parties to the suit and since there was no deficiency in service on the part of the opposite party. Hence, the opposite party prays to dismiss the complaint with costs.

Perused the entire material available on record. Heard both sides. The orders are as follows:

As seen from the material filed by the opposite party, the opposite party alleged that the office copy of the notice issued to the complainant was not filed. As seen from the complaint the age of the complainant is 25 years. The alleged redemption of the bond by the mother of the complainant in the year 2008, as there is no dispute regarding the complainant age, so it can be accepted that the age of the complainant at the time of filing of complaint i.e., 31-03-2008 was aged about 25 years, 7 years prior to filing of complaint, the complainant became major. When once the complainant is major the question of redemption of bond by the complainant’s mother as guardian does not arise, if any such redemption that is ab-initio, void because the mother has no authority to redeem the bond of a major daughter. The acceptance of redemption when mother applied for early redemption is illegal and not binding on the complainant. So, the alleged redemption is not in accordance with law. As seen from the complaint, the complainant’s mother deposited Rs.5,000/- under the scheme family (millionaire bond) and repayable Rs.5,00,000/- in the year 2024. But the contention of the complainant is that without her consent and quite contrary to understandings, the complainant never demanded or opted for any redemption of the certificates, on 27-08-2008, the opposite party has issued a cheque bearing No:120880 for Rs.15,135/- to the complainant stating that the complainant is only entitled for the said amount towards the said deposit amount. The complainant encashed the cheque under protest by reserving her right to claim the remaining amount. The complainant fees that some issues happened against her and to get wrongful gains the company acted illegally and redeemed the said bonds without the consent of complainant. Even if the bonds are redeemed on September 2006 the complainant is entitled to get Rs.23,000/- as per the terms and conditions. The above contentions are quite acceptable. Firstly, the redemption accepted by the opposite party on the application of mother of the complainant is illegal and not binding on the complainant. The complainant received the said amount under protest, as seen from the conditions of redemption, the complainant is entitled to get Rs.23,000/- as on September 2006. No doubt, as there is no proper redemption of bond, discharged by the opposite party is illegal, but to avoid further litigation, even assuming that the bond is redeemed on September 2006 the complainant is entitled for Rs.23,000/- but only Rs.15,135/- was paid already. The act of the opposite party in redeeming the bond without the consent of the complainant on the application made by the complainant’s mother is amounts to deficiency of service and unfair trade practice. In these circumstances, the complainant is entitled for refund of Rs.23,000/- after deducting Rs.15,135/- payable within 15 days failing which the complainant is entitled for interest @ 12% p.a. in the peculiar circumstances of the case, no order as to compensation and costs.

In the result the opposite party is directed to pay a sum of Rs.7,865/- (Rupees Seven thousand eight hundred and sixty five only) payable within 15 days, failing which the complainant is entitled for interest at 12% p.a. from the date of filing complaint till the date of realization. No order as to costs.

Dictated to the Steno, transcribed by her, corrected by me and pronounced us in the open Forum, this the 10th day of November, 2009.

Consumer Case No.-73 /2009

Ayodhya Mishra

R/o Qr. No.- 1838 Sector I/B, Bokaro Steel City, Bokaro. (Jharkhand)

Vs.

Branch Manager,

Bank of Baroda, Sector-IV Branch,

Bokaro Steel City.

Present-

S.M. Alam, President

Sri Vijay Bahadur Singh, Member

Shabnam Praveen, Member

Date of Judgment-24/12/2009

Date of Case filing-10/10/2009

-: Judgment:-

The complainant has filed the present case against the opposite party for refund of Rs. 15000/- wrongly debited in his account besides payment of Rs. 1000/- against litigation cost.

2 The complainant’s case in brief is that he is having a joint account with his wife in the opposite party Bank, account No. being 00140100006572 with ATM facility. The complainant withdrew Rs. 15000/- through his ATM Card on 05.01.2008. On the same day he again tried to withdraw Rs. 15000/- but could not succeed. But a total of Rs. 30000/- has been shown as debited from his account mentioned above as per the opposite party Bank Statement for the period of 01.01.2008 to 23.06.2008 a copy of which is available in the case records. The complainant took up the matter with the opposite party for refund of Rs. 15000/- but in vain. Hence this case.

3 Upon issuance of notice, the opposite party appeared and filed its written statement submitting therein that the complainant had withdrawn Rs. 15000/- through ATM on 05.01.2008 and Rs. 15000/- again on 06.01.2008 through ATM. Since the bank branch in question was under the process of transition to core banking system, the amount of Rs. 15000/- withdrawn on 06.01.2008 (being Sunday) was shown debited as on 05.01.2008. As such there has not been any deficiency and negligency by the opposite party and is therefore, not liable to refund the said amount to the complainant. The opposite party has prayed to dismiss this complaint petition.

4 We heard both the parties and perused the entire case records and documents filed on behalf of the parties. The opposite party has filed copies of On Line Financial Transaction Interface of Account Ledger Inquiry pertaining to the ATM transaction of the complainant which are available in the case records. On scrutiny of the same, it is observed that the amount of Rs. 15000/- was withdrawn by the complainant on 05.01.2008 at 12:07:19 and Rs. 15000/- withdrawn by the complainant on 06.01.2008 at 16:02:25 through his ATM Card. Since the opposite party Branch was under process of transition to core banking system, both the amounts withdrawn as above were shown debited on 05.01.2008 in the Banks Statement of Account for the period of 01.01.2008 to 23.06.2008. We agree in he above contains of the opposite party.

5 In view of the above we have arrived at the conclusion to hold that the opposite party has not been deficient and negligent in service towards the complainant. The opposite party is hence held not liable to refund the alleged Rupees 15000/-.

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

Consumer Complaint No: 104/2008

Date of presentation: 10.04.2008

Date of decision: 24/12/2009

Sh. Vijay Pruthi, S/o Sh. M.K. Pruthi,

R/o Hous No. 151 MIG (Deluxe)

Sector -4 Parwanoo,Tehsil Kasauli,

District Solan H.P.

… Complainant

Versus



1. Bank of Baroda, Taksal/ Parwanoo Branch,

Tehsil Kasauli, District Solan H.P.

Through its Branch Manager.

2. The Chief Manager, Bank of Baroda,

(A Government of India Undertaking)

Head Office, Mandvi, Baroda.
…Opposite Parties.
For the complainant: Mr. Vijay Mohan, Advocate.
For the Opposite Parties: Ms. Anju Kohli, Advocate.

O R D E R:

Sureshwar Thakur (District Judge) President:- The instant complaint has been filed by the complainant, by invoking the provisions of Section 12 of the Consumer Protection Act, 1986. The complainant, avers that, he booked a plot with Punjab Urban Development Authority, at, Rajpura, on, 24.03.1994, hence, issued a demand draft of Rs.8250/- to PUDA, which later on, was not allotted to him, as such, he applied for refund of earnest money, which was refunded to him, through cheque bearing No.590083, dated 10.08.1994, hence, he deposited the said cheque with the OP No.1, on, 18.08.94 for payment in his saving bank account, which is averred to have not been credited in his saving bank account. The complainant further proceeded to aver that thereafter he is running from pillar to post, for getting the amount of Rs.8250/-, but all in vain. Hence, it is averred that there is apparent deficiency in service on the part of the OPs and accordingly relief to the extent as detailed in the relief clause be awarded in favour of the complainant.

2. The OPs, in its reply, raised preliminary objections regarding maintainability of the complaint, and denied that the cheque of Rs.8250/-, is, not credited in the account of the complainant. It is contended that when the cheque has been cleared on, 25.08.94, by the drawee bank, then, it must be credited in the account of the complainant, on the same date. Hence, it is denied, that, there was any deficiency in service on their part or that they have indulged in an unfair trade practice.

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

4. We have heard the learned counsel for the parties at length and have also thoroughly scanned the entire record of the case.

5. The complainant, is, aggrieved by the act of the OPs, in not crediting the proceeds of cheque bearing No.590083 dated 10.08.1994 amounting to Rs.8250/-, in his saving bank account. The OPs, have repudiated the claim of the complainant, inasmuch, as, when the cheque has been cleared, on, 25.08.1994, by the drawee bank, then, it must be credited in the account of the complainant, on the same date, because as per norms ledger/register above 12 years have been destroyed, hence, is, exculpating their liability.

6. At the very outset, we may observe here that this is a unique complaint of its own nature, which came to be received by this Forum, on, 10.04.2008, by post, ventilating therein a grievance aged 14 years, as, the complainant avers that, on, 18.08.1994, he, deposited a cheque bearing No.590083, dated 10.08.1994, with the OPs, for crediting its proceeds in his savings bank account. Assuming that, the grievance of the complainant, as ventilated in this complaint, is, true, then, lapse on his part to not lodge the claim before this Forum, well within the prescribed period of limitation of two years, not only bars the remedy, but, also makes the complainant, being, hence, for, the reasons aforesaid to be steeped, in, suspicion. Though, he, is, seeking leverage from Annexure C-8, which is, a copy of certificate dated 15.11.2006 issued by Bank of Baroda, yet, its perusal divulges the fact that, cheque No.590083 dated 10.08.1994, does not appear to be credited in his account, as, the records qua it being more-than 12 years and as per Bank’s norms ledger/register, above 12 years have been destroyed, yet, when the complainant, has, not placed on record any proof qua the fact that the proceeds of the aforesaid cheque, has, not, been credited in his account. Hence, obviously when it was incumbent upon the complainant to have placed on record the copy of the pass book reflecting the crediting of the amount comprised in the cheque, or otherwise for us, to, construe his contention qua non-crediting of the amount comprised in the cheque to be sustainable. Therefore when, it comprised the best evidence, its withholding leads to, an, adverse inference against him.

7. Moreover, the OPs, have specifically averred that as per norms ledger/register above 12 years have been destroyed, which fact has remained un-repulsed, rather, is fortified, as well, as, is legal, inasmuch, as, the abstract of the rules, permitting such destruction, is, placed on record, hence, it cannot be construed, that, the cause ventilated by the complainant after expiry of 12 years, is, maintainable, as, it appears that, he, intentionally and deliberately intends to seek leverage of certificate Annexure C-8, which, in our opinion, is, the result of an after thought, of the complainant, in order to claim, the proceeds of cheque, qua whose non-crediting in his account, he, has withheld the best evidence, for, whose withholding by him, we, have drawn an adverse inference against him. Hence, for above, no deficiency in service can be attributed on the part of the OPs, as such, the complaint, being without any merit, deserves dismissal. Ordered accordingly. No order as to the costs. The learned counsel for the parties undertook to collect the certified copy of this order from the office, free of cost, as per rules. The file after due completion, be consigned to record room.