BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION AT BANGALORE (URBAN)

DATED 15^THDAY OF NOVEMBER 2022

ORDER

SRI.H.JANARDHAN, MEMBER

1. This complaint has been filed by the complainant under section 35 of C.P. Act, 2019 seeking direction against the OP to direct the OP to reverse/remit the 4 DD’s amount of Rs.15,47,751/- along with 12% interest, to direct the OP to pay sum of Rs.3,00,000/- as compensation  and pay cost of the proceedings  and such other reliefs.

2. The brief facts of the complaint are as follows:

The complainant submits that the complainant is the customer and having account with the OP bank with account No.12081000033556. Further the complainant intended to purchase the land and in that  regard took 6 DDs from his account on 22.09.2017 bearing No.1)006533 for Rs.3,86,940/- in the name of Hanumantharaya, 2)006534 for Rs.3,86,937/- in the name of H.Narayana swamy, 3) 006535 for Rs.3,86,937/- in the name of Narasimhamurthy.H. 4) 006536 for Rs.3,86,937/- in the name of Krishnappa.H., 5) 006537 for Rs.3,86,937/- in the name of Smt.Indramma and 6)006538 for Rs.3,86,937/- in the name of Ramanjinappa.H. Likewise after taking said DD’s were handed over to the sellers as sale consideration at the time of execution of the sale deed. Subsequently, it came to the knowledge of the complainant that the sale deed were executed by cheating and fraud. As such the complainant immediately approached the jurisdictional police station  and lodged complaint. The police have lodged complaint on 26.09.2017, FIR was registered in Crime No.266/2017 in Gowribidanur Rural police station for the offence punishable under section 465, 468, 471,474, 420,120B of IPC. Further during the course of investigation Police have recovered 02 DD’s bearing no.006535 drawn in the name of Narasimhamurthy.H. for amount of Rs.3,86,937/- and  DD bearing no. 006536 for Rs.3,86,937/- drawn in the name of H.Krishnappa and these instruments were submitted for remitting back the amount into the account of the complainant. Further, other 04 DD’s   could not be traced by the police. The complainant requested the OP to remit of other 04 DD’s into his account as the DD’s were not honored/cleared.  Moreover the validity of the DD’s lapsed without presenting for clearance. Hence, DD’s become redundant and the amount ought to been reversed/remitted back into the account of the complainant. unfortunately, despite several requests the OP has not reversed/remitted the amount of 04 DD’s and deliberately protracted the issue. Hence,  the complainant alleged deficiency of service on the part of the OP for not remitting the amount of 04 DD’s  and moreover the complainant also issued legal notice and the said legal notice duly served on OP, but OP given vague and irresponsible reply. Hence, being aggrieved by the said act of the OP, the complainant filed this complaint.

3. After issuance of the notice, the OP appeared through their counsel and filed version. In the version, OP has contended that the complaint is not maintainable either in law or on facts and same is liable to dismissed in limine. Further, OP contends that complainant is the customer of OP bank has an S.B. account. Further,  the bank has failed in its part to reverse the DD’s money into customer’s account is false as it has been held as per the stop payment instructions from Gowribidanur Police Station and no revert order has been received from them for release of the stop payment till date. Further, the OP contended that the complainant has purchased 06 DD’s on 26.09.2017 and out of which 05 DD’s were for Rs.3,86,937/- each and 01 DD for Rs.3,86,940/- from the OP bank and it is submitted by the complainant that DD’s taken for sale consideration intending  handed over  to the seller and as the sale was later known to be fraudulent, the complainant had registered criminal case with Gowribidanur Jurisdictional Police station on 26.09.2017 under section 465,468,471,420, 120B of IPC against the sellers.  The OP has received a letter from the jurisdictional police dt.26.09.2017 requesting for stopping payment of 06 DD’s as the transaction is fraudulent and investigation is on and also informed that till further notice, the bank has requested to stop payment for all the DD’s  and same were marked on hold as per the instructions of police. Further contends that during the course of investigation police recovered 02 DD’s bearing no.006535 in the name of Narasimhamurthy.H. and no.006536 in the name of Krishnappa.H for Rs.3,86,937/- each and remaining 04 DD’s were untraceable. The complainant there after visited the OP and submitted a letter dt.13.08.2019 stating that the Police have recovered said 02 DD’s  and requested for cancellation. The 02 DD’s were cancelled and proceeds credited to complainant’s account on 20.08.2019 after stipulating the guidelines of the Bank.
4. The OP further contended that the complainant is fully aware of stopping of payment instructions  in 04 DD’s from the police and without revoking instructions of stop  payment by the police to the OP and OP could not cancel the revocation instructions for stop payment of 04 DD’s. Further OP submits that there is no deficiency  of service on the part of the OP bank, the OP have written to the jurisdictional police on 04.03.2020 knowing of the status of the 04 DD’s, but till date there is no reply regarding revert from the police. The complainant is fully aware  of the reasons for stopping of  04 DD’s which have  been withheld. Hence, the complainant without getting suitable order from the Jurisdictional Magistrate to revert back the said 04 DD’s and hence, OP alleges that there is not deficiency of service on the part of the OP.  The OP is not entitled to pay any amount towards compensation as claimed by the complainant and denies all other allegations made in the complaint and   prays for dismissal of the complaint.

5. The complainants filed affidavit evidence of the complainant and got marked exhibits P1 to P6. Authorized person of OP is examined and got marked exhibits B1 to B5.

6.     Heard arguments of the complainant. Arguments of the OP is taken as nil. Perused documents.

7.     The points that would arise for our consideration are as under:-

1. Whether there is deficiency in service on the part of the OP?
2. Whether the complainants are entitled for the reliefs sought?
3. What order?

8. Our answer to the above points are as under:

       Point No.1:- Negative.

      Point No.2:- Affirmative.

      Point No.3:-As per the final order.

REASONS

9.  Point No.1: Initially  the complainant has filed the complaint under section 35 of C.P. Act, 2019 and later amended the complaint by filing the application under order VI Rule 17  read with 151 CPC  sought for amendment with regard to cause of action. When 02 DD’s were reversed and further on 09.06.2020 legal notice was issued  and  legal notice served on 29.06.2020 and when the denial reply was issued by the OP and there was continuous cause of action to file the present complaint. The said application was allowed by this commission by its order dt.18.08.2022 and the complainant has amended the complaint and in the said complaint the complainant has stated that he had purchased 06 DD’s from his account on 22.09.2017 and said DD’s were handed over by the complainant to the sellers as sale consideration at the time of execution of the sale deed in favour of the complainant and the complainant subsequently came to know that the sale deeds which were executed in favour of the complainant was cheating and playing fraud by the sellers. After which the complainant has approached the jurisdictional police station  and lodged complaint and the complaint was lodged on 26.09.2017 in Crime No.266/2017 in Gowribidanur Rural Police Station under section 465, 468, 471, 474, 420, 120B of IPC. Both the complainant and OP have admitted about said fact and that the DD’s were bought by the complainant towards execution of the sale deed, but during the course of investigation by the police, the police have recovered 02 DD’s bearing no.006535 & 006536  which  was drawn in the name name of Narasimhamurthy.H & Krishnappa.H. respectively for sum of R.3,86,937/- each. These instruments were remitted back to the complainant’s account by the OP. Further, 04 DD’s were not traced by the police. However, in the preset complaint the complainant has requested the OP to remit the  amount of all 04 DD’s in to his account as the 04 DD’s were not cleared and also the complainant states that the DD’s have become redundant  and have to be reverted and remit to the account of the complainant. Further, the OP contends that the complainant had taken the said DD’s for intending sellers and as sale was later know to be fraudulent and complainant registered the complaint with the jurisdictional police  and the said police have registered case against the sellers and further the OP has received the letter from the jurisdictional police    on 26.09.2017 requesting of for stopping of 06 DD’s  as transaction is fraudulent and the investigation is still on and also it was informed by OP not to disburse the said DD’s till further notice. The OP bank requested to stop payment of all the DD’s and during the course of investigation the police have recovered 02 DD’s   and  said 02 DD’s also have been remitted to the complainant’s account and 04 DD’s which were pending were not recovered from the police and the OP bank have received the  written request from the concerned police on 04.03.2020 for knowing the status of the 04 DD’s and requested for specific direction for disbursing  of said 04 DD’s, but till date they were not recovered from the police and also no correspondence in that regard by the complainant. Further the complainant  has requested the OP bank  for cancellation of DD’s,  without submission of original DD’s and without production of direction from the police to revoking of said instruments. Further, the OP has also informed of the communication dt.04.03.2020 of OP to the police requesting for  current status of the DD’s which were revoked and there was no reply till date. Further, the OP submits that until and unless they receive the instructions to the contrary, the OP cannot cancel the DD’s and the complainant fully aware that the complaint has been lodged in Crime no.266/2017 and in which police investigation is going on and during the course of investigation the police have recovered 02 DD’s and remaining 04 DD’s which were not been recovered  and there is a stop payment and also no specific direction in that regard and as not to disburse the said DD’s by the OP bank, but till date no  revert order  either from the police or from the complainant. The specific direction for disbursing of the said DD’s, but the complainant could have file application before the Jurisdictional Magistrate under section 451 and 457 of CrPC and could have obtain specific direction from the Jurisdictional Magistrate, but in the instant case the complainant has not resorted to the  said relief before the Magistrate, but has came before this commission to revert back the amounts of 04 DD’s. The complainant is consumer, he approached the OP bank for the said DD’s and as such, the complainant is a consumer in the present case and as such though he has not resorted to approach the concerned jurisdictional Magistrate have approached this commission to revert back 04 DD’s in question, when he being the consumer the complainant is entitled for said 04 DD’s which has been obtained by the complainant is not in dispute and during the course of investigation 02 DD’s already reverted back to the complainant and regarding other 04 DD’s  ought to have been reverted back to the complainant with specific direction from the concerned authority. The OP bank has not reverted back the said amount, but the complainant is entitled for 04 DD’s is alleging deficiency of service on the part of the OP bank. The complainant without taking proper recourse alleges deficiency of service on the part of the OP, but without specific instructions, the OP bank have not revert the said 04 DD’s, but 04 DD’s belongs to complainant himself and also no counter claim in that regard as such he is entitled for 04 DD’s of Rs.3,86,937/-, Rs.3,86,937/-, Rs.3,86,937/-, Rs.3,86,940/- in total amounting to Rs.15,47,751/- without any interest from the OP bank, because the complainant has obtained said DD’s  towards sale consideration at the time of execution of sale deed and after execution of the sale deed the complainant came to know that said sale deed was executed by playing fraud and cheating. when the said fraud has been committed by the sellers not by the OP bank. The complainant alleges deficiency of service on the part of the OP, the OP is not a party to the proceedings of the execution of the sale deed in question and is only service provider to the complainant to provide DD’s and also complainant has not any revert order to receive the said DD’s from the competent authority. Hence, complainant has failed to prove the deficiency on the part of the OP. Hence, we answer the point no.1 in the negative.

10. POINT NO.2:- Further, 02 DD’s have already been remitted by the OP bank and 04 DD’s which belong to complainant is not in dispute and also there is no counter claim in that regard and also DD’s have been lapsed without presenting for clearance and said DD’s have become redundant  and as such the complainant is entitled for the amount of 04 DD’s amounts to Rs.15,47,751/-  without any interest as there is no deficiency of service on the part of OP and also OP is not party to the proceedings for execution of sale deed and he being only the facilitator to provide DD’s. Hence, in that regard imposing interest is not feasible in the instant case for no fault of the OP.  Hence, we answer the Point no.2 in the affirmative in part.

11.  Point no.3:- For the fore going reasons, we proceed to pass the following 

O R D E R

1. The complaint is allowed in part.
2. The OP is directed to remit back 04 DD’s amount of Rs.15,47,751/-  without interest.
3. Furnish the copy of this order to both the parties, and return the spare pleadings and documents to the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Commission on this 15^th  day of November, 2022)

Documents produced by the Complainant-P.W.1 are as follows:

Documents produced by the representative of opposite party – R.W.1 :