Complaint filed on: 26-12-2019

                                                      Disposed on: 29-09-2021

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, TUMAKURU

CC.No.192/2019

DATED THIS THE 29^th DAY OF SEPTEMBER, 2021

PRESENT

SRI.C.V.MARGOOR, B.Com, L.L.M, PRESIDENT

SRI.KUMARA.N, B.Sc., L.L.B, MEMBER

SMT.NIVEDITA RAVISH, B.A., L.L.B, LADY MEMBER

Complainant: -

V.Nagabhushan Reddy,

S/o late V.Pothareddy,

Aged about 70 years,

Class-1 Contractor,

R/at Reddy Colony,

Pavagada town, Pavagada

Tumakuru dist.  

(By Sri.H.V.Ranganatha Reddy, Advocate)

V/s

Opposite parties:-    

1. The Manager,

Vijaya bank

Pavagada town,

Pavagada

2. The Chief Officer,  

Municipal office,

Pavagada town,

Pavagada

(OP No.1-by advocate Sri.Lakshmikanthan,

Advocate)

(OP No.2-Exparte)

ORDER

SRI.KUMARA.N, MEMBER

This complaint is filed to direct the OP Nos.1 and 2 to pay the Demand Draft amount of Rs.30,000-00 which was purchased from the 1^st OP bank in favour of 2^nd OP towards the getting contract and Rs.20,000-00 towards mental torture and financial loss with interest to the complainant.

2. The OP No.1 is Vijaya Bank, Pavagada town, Pavagada and the OP No.2 is the Chief Officer, Municipal Office, Pavagada town, Tumakuru.

3. It is the case of complainant that he is the class-1 contractor and on 7-8-2007 he purchased DD No.001799 for a sum of Rs.30,000-00 drawn in favour of 2^nd OP towards getting contract work from the 2^nd OP. After the completion of contract work the complainant has obtained final bill from 2^nd OP. The complainant has requested and demanded the 1^st OP to refund DD amount of Rs.30,000-00, but the 1^st OP has failed to refund the said amount. On 23-1-2019 the 2^nd OP has made letter correspondence with the 1^st OP to release DD amount in favour of complainant, but the 1^st OP has not released the said DD amount. Even after repeated requests and demands made by the complainant, the OPs have not paid the DD amount. On 24-10-2019 the complainant has issued a legal notice to the OPs and even after service of said legal notice the OPs have neither paid the amount nor replied the same.  Due to negligent act of the OP Nos.1 and 2 the complainant has suffered mental agony hence, the complainant has approached this Commission for deficiency in service on the part of OP Nos.1 and 2.

          4. The OP No.1 after the service of notice appeared through its learned counsel and filed written version admitting that on 7-8-2007 the complainant had purchased DD No.001799 from the 1^st OP bank for a sum of Rs.30,000-00 in favour of 2^nd OP for payment of EMD amount to the 2^nd OP to carry out the contract work. But the said DD has not submitted to the bank for encashment. After completion of contract work, on 11-2-2016 the complainant requested the 2^nd OP to return DD amount of Rs.30,000-00. The 2^nd OP gave an endorsement that the said DD amount is not credited to the account of 2^nd OP as the DD is lost or misplaced. In this regard the complainant requested the 1^st OP bank to issue duplicate DD since the original DD is misplaced and it is not traceable. As such on 9-1-2018 the 1^st OP bank written letter to 2^nd OP to issue permission for issuing duplicate DD to the complainant and on 30-1-2018 the 2^nd OP wrote  a letter to the 1^st OP bank to issue duplicate DD in place of original one. It is further case of 1^st OP that after getting clarification from its regional office, the 1^st OP bank has wrote letter to the 2^nd OP on 9-3-3018 requesting it to furnish details i.e. 1) xerox copy of DD, 2) how the DD lost (date of lost of DD), 3) Indemnity bond for the list of DD and 4) complaint regarding the lost of DD in order issue duplicate DD. After receipt of letter by the 2^nd OP till this day, the complainant or 2^nd OP have not furnished required details. Even now also as per bank rules, if the 2^nd OP or complainant furnished required details, the 1^st OP bank is ready to issue duplicate DD or to release the amount of DD.  It is further case of OP that on 25-4-2018 the 1^st OP bank written letter to the complainant informing that he has not furnished the details of DD nor indemnity bond and failing which the 1^st OP bank is not in a position to issue duplicate DD.

5. It is the case of 1^st OP bank that the complainant had obtained loan in the 1^st OP bank for Agricultural allied activities. The said loan has became NPA because the complainant has not made repayment of said loan properly and as such on 1-7-2019 the 1^st OP bank has filed a suit for recovery of said loan amount in OS.188/2019 on the file of Additional Civil Judge at Pavagada. After receiving summons in the said suit the complainant has filed this complaint by narrating false story against the 1^st OP bank to escape from his liability hence, this complaint is not maintainable and it is filed without any just and proper grounds. On the amongst other grounds, the 1^st OP asked to dismiss the complaint.

6. In response to the notice the 2^nd OP failed to appear hence, it is placed exparte.

7. The Complainant has filed his affidavit in lieu of evidence and marked Exs-P1 to P10 documents. On behalf of the 1^st OP its Manager, Sri.Rajendra.V has filed his affidavit and marked Exs.R1 to R9 documents.

          8. We have heard the arguments of learned counsel for the complainant and 1^st OP and in addition to written brief submitted by them and the points that would arise for determination are as under:

1)      Whether the complainant proves deficiency of service on the part of OPs?

2)      Is complainant entitled to the reliefs sought for?  

9. Our findings on the aforesaid points are as follows:

Point No.1: In the partly affirmative

Point No.2: In the partly affirmative for the   

                   below

REASONS

          10. Point nos.1 and 2: The learned counsel for complainant submitted that the OPs have failed to pay DD amount of Rs.30,000-00 nor issued duplicate DD, which was purchased on 7-8-2007 from the 1^st OP in favour of 2^nd OP towards EMD to get contract work. The 1^st OP bank has not disputed issue of DD bearing No.001799 which was purchased from the 1^st OP bank in favour of 2^nd OP for Rs.30,000-00 for getting contract from the 2^nd OP towards EMD. It is further case of complainant that after completion of contract work and obtaining the final bill from the 2^nd OP has requested and demanded to pay DD amount of Rs.30,000-00 from the OPs.

          11. The complainant has produced Ex-P1 legal notice dated 24-10-2019 and Exs.P2 to P5 are postal receipts and postal acknowledgements for issue and service of notice to the OP Nos.1 and 2. Exs.P6, P8 and P9 letters dated 23-1-2019, 30-1-2018 and 11-8-2016 respectively issued by the 2^nd OP to 1^st OP to release pledged DD Rs.30,000-00 bearing No.001799 dated 7-8-2007 which was purchased by complainant from the 1^st OP in favour of 2^nd OP, since DD is not available with the 2^nd OP. Ex.P7 and P10 are the reply of 1^st OP wherein it is requested to furnish the details of 1) Xerox/Original copy of the DD, (2) details of how the DD lost (lost date), 3) indemnity bond for the lost of DD and 4)  complaint regarding the lost of DD. These informations sought from the 2^nd OP by the 1^st OP as per their regional office directions to issue duplicate DD.

          12. The 1^st OP bank admitted in written version and affidavit evidence that the complainant has purchased DD in favour of 2^nd OP dated 7-8-2007 for Rs.30,000-00 (DD No.001799). Further the learned counsel for the 1^st OP bank has vehemently argued that either the complainant or 2^nd OP so far not produced the required documents to issue duplicate DD as per the 1^st OP regional office instructions i.e. 1) Xerox copy of DD, 2) details of circumstances how the original DD lost (lost date of DD), 3) indemnity bond for lost of DD and 4) copy of complaint regarding lost of DD.

          13. Exs.R3 and R5 dated 9-1-2018 and 31-1-2018 respectively are the reply of 1^st OP to 2^nd OP letters and wherein requested the 2^nd OP to furnish details and documents which are required to issue duplicate DD. Exs.R4 and R5 are postal acknowledgments for service of reply sent by the 1^st OP to the 2^nd OP. Hence, we come to conclusion that there is no deficiency of service on the part 1^st OP but on the contrary there is deficiency of service on the part of 2^nd OP since DD was drawn in favour 2^nd OP to award contract as a EMD. Further that DD had not presented by the OP No.2 for realization. The complainant has approached the OPs to refund/release the DD which was pledged as EMD after ten years to release the DD amount.  Then the complainant came to know that the 2^nd OP had not presented the DD for realization and on the contrary it has lost or misplaced in the office. This negligence act of 2^nd OP resulted in deficiency in service. The complainant or 2^nd OP have not complied with the instructions given by the 1^st OP to furnish the details to issue duplicate DD or to make payment of DD amount. It shows that the complainant and 2^nd OP are negligent to get DD amount. The complainant has not disputed filing OS No.188/2019 on the file of Addl.Civil Judge, Pavagada on 1-7-2019 for recovery of money by the 1^st OP against him. After filing suit by the 1^st OP this complaint has been filed on 26-12-2019. In view of the above reasons, the complainant is not entitled for litigation cost. Hence, we proceed to pass the following;

ORDER

The complaint is partly allowed without costs.

The 2^nd OP is directed to arrange for getting the duplicate DD from the 1^st OP or pay the DD amount of Rs.30,000-00 to the complainant within 45 days from this order, otherwise it carries interest @ 8% p.a. from the date of default.

Furnish the copy of order to the complainant and opposite parties at free of cost.