Telangana High Court
State Bank Of India vs Sri Biresh Chandra Gangopadhyay on 11 April, 2025
Author: Abhinand Kumar Shavili
Bench: Abhinand Kumar Shavili
THE HON'BLE SRI JUSTICE ABHINAND KUMAR SHAVILI
AND
THE HON'BLE SMT. JUSTICE TIRUMALA DEVI EADA
WRIT PETITION No.31150 OF 2024
ORDER:(Per Hon'ble Sri Justice Abhinand Kumar Shavili) This Writ Petition is filed aggrieved by the judgment, dated 30.07.2024, rendered in First Appeal No.684 of 2022, by the National Consumer Disputes Redressal Commission at New Delhi (for short, 'National Commission') and also the order, dated 04.08.2022, passed in C.C.No.102 of 2019 by the Telangana State Consumer Disputes Redressal Commission, Hyderabad (for short, 'State Commission').
2. Heard Sri M. Narender Reddy, learned Senior Counsel representing Sri V.U.S.S.R. Anjaneyulu, learned counsel appearing for the petitioner-Bank and Sri D.V. Sitaram Murthy, learned Senior Counsel representing Sri K. Kiran Kumar, learned counsel appearing for the respondents.
3. Learned Senior Counsel appearing for the petitioner-Bank had contended that the respondents were wife and husband. They 2 AKS,J& ETD,J W.P.No.31150 of 2024 have opened joint Savings Bank Account with the petitioner-Bank bearing A/c. No.10123103876 at Balkampet Branch, Hyderabad. The respondents have opened three fixed deposits for Rs.10,00,000/-, Rs.15,00,000/- and Rs.15,00,000/-, totaling Rs.40,00,000/-, on 09.08.2017 for a period of one year with a mandate of auto renewal. Accordingly, the petitioner-Bank has issued Fixed Deposit Receipts to the respondents.
4. Learned Senior Counsel appearing for the petitioner-Bank had further contended that with the technological advancement and as per the RBI guidelines, internet banking facility was promoted by all the Banks to enable all the depositors/customers of the Banks to voluntarily register themselves with internet banking facility and transact their accounts by withdrawing the amounts, transferring the amounts or create or break fixed deposits through the App itself and also through internet banking facility. As per the RBI Master Circular, dated 01.07.2011, all the Banks were mandated to ensure that all the banking facilities such as cheque book facility including third party cheques, ATM facility, 3 AKS,J& ETD,J W.P.No.31150 of 2024 net banking facility, locker facility, retail loans, credit card etc., are invariably offered to the visually challenged persons also, without any discrimination.
5. Learned Senior Counsel had also drawn our attention to the Terms of Service (Terms & Conditions) of petitioner-Bank and Clause No.4 of the said terms clearly states that a user would be allotted with a User-ID and Password (to be used at the time of login) by the Bank in the first instance and the user has to mandatorily change the User-ID and Password assigned by the Bank on accessing the internet banking services for the first time. Learned Senior Counsel further contended that only when the User-ID and Password are typed, the customer can use the internet banking services and the transaction will be completed, when OTP is entered.
6. Learned Senior Counsel appearing for the petitioner-Bank had further contended that the respondents have admittedly approached the petitioner-Bank for internet banking facility. 4
AKS,J& ETD,J W.P.No.31150 of 2024 Initially, they opted for 'view only' facility. However, later the respondents have enabled transaction rights by logging into petitioner-Bank's website on 05.08.2018 at 11:20 AM and carried out certain transactions.
7. Learned Senior Counsel had further contended that the petitioner-Bank, in order to safeguard the interest of the customers and to ensure that the customers accounts are not being hacked or fake transactions are being taken place without their knowledge, send SMS messages and OTPs to the registered mobile number of the customers. Only when the OTP sent to the customers is entered, the transaction will be done. In the instant case, SMS messages and OTPs were sent as a precaution to the registered mobile number of the respondents i.e. 9440531348 and only when the respondents have entered the said OTP number, the online transactions have been carried out.
8. Learned Senior Counsel had further contended that on 05.08.2018, at the request of the respondents, their account was 5 AKS,J& ETD,J W.P.No.31150 of 2024 upgraded to that of full-fledged internet banking and a KIT was also handed over to them, whereby they can change their password for internet banking facility and only when SMS message is sent and OTP is entered, the transactions will be carried out.
9. Learned Senior Counsel had further contended that the respondents have lodged a complaint with the police on 09.04.2019, which was registered as F.I.R.No.240 of 2019 of Cyber Crime Police Station, Hyderabad, complaining that without their knowledge certain transactions have taken place in their account and money to a large extent was withdrawn and misappropriated and that they are aged and visually impaired persons and they were not aware about the transactions, which were carried out in their account through online. Learned Senior Counsel further contended that it was alleged by the respondents that whenever they want to update their passbook, the petitioner-Bank was not updating their passbook on the ground that the printer was not working; that during November, 2018, to March, 2019, several online transactions took place in their account without their knowledge; and that they 6 AKS,J& ETD,J W.P.No.31150 of 2024 have taken 'view only' facility through internet banking, but without any request being made by the respondents, their account was upgraded to that of full-fledged online account and consequently, the amounts from the account of the respondents were withdrawn fraudulently.
10. Learned Senior Counsel had further contended that alleging that an amount of Rs.63,00,000/- was fraudulently withdrawn from the respondents account because of the negligence and deficiency of service by the petitioner-Bank and holding the petitioner-Bank as responsible for upgrading their account from 'view only' facility to that of full-fledged internet banking service through online, without there being any requisition by the respondents, the respondents filed a complaint i.e. C.C.No.102 of 2019 before the State Commission against the petitioner-Bank. The State Commission has erroneously came to a conclusion that it is the petitioner-Bank, which is responsible for fraudulent transactions in the account of the respondents and vide order, dated 04.08.2022, partly allowed the complaint preferred by the respondents and 7 AKS,J& ETD,J W.P.No.31150 of 2024 directed the petitioners to jointly and severally reimburse an amount of Rs.63,74,527/- along with interest at the rate of 9% per annum from the date of the complaint i.e. 11.06.2019 till realization thereafter. The State Commission has also awarded a sum of Rs.3,00,000/- towards compensation along with Rs.20,000/- towards costs.
11. Learned Senior Counsel appearing for the petitioner-Bank had further contended that the police have investigated the complaint filed by the respondents and filed Charge Sheet on 06.11.2023 on the file of learned I Additional Metropolitan Sessions Judge, at Hyderabad, and the same was numbered as C.C.No.6467 of 2024. As per the Charge Sheet filed by the police, the amounts from the respondents' account were transferred to M/s. Nearby Technologies, M/s. Avenues India Private Limited, M/s. Riya Travels, Interactive Fina and M/s. Flight Raja Travels and all the transactions took place between 09.08.2018 to 25.03.2019. It is also clear that much amounts were transferred to M/s. Nearby Technologies and M/s. Avenues India Private Limited and the 8 AKS,J& ETD,J W.P.No.31150 of 2024 police had also identified the accused, who are none other than the helpers of the respondents, which would mean that the respondents internet account information was known to their maids and they were responsible for the fraudulent transactions, which took place in the bank account of the respondents and therefore, the petitioner-Bank is no way responsible for the alleged fraudulent transactions.
12. Learned Senior Counsel had further contended that the internet banking User-ID, Password and OTPs, which are received from the Bank, shall not be shared by the customer to anyone and it is their responsibility but not the responsibility of the Bank. This fact was not properly appreciated by the State Commission and the State Commission has mechanically allowed the complaint in favour of the respondents and erroneously directed the petitioners to reimburse an amount of Rs.63,74,527/- jointly and severally to the respondents along with interest at the rate of 9% per annum from the date of complaint i.e. 11.06.2019 till realization thereafter 9 AKS,J& ETD,J W.P.No.31150 of 2024 and the State Commission has also awarded a sum of Rs.3,00,000/- towards compensation along with Rs.20,000/- towards costs.
13. Learned Senior Counsel had further contended that when the fault does not lie with the petitioner-Bank, the question of allowing the complaint filed by the respondents would not arise. Therefore, aggrieved by the order passed by the State Commission, the petitioner-Bank has carried the matter in appeal to the National Commission by filing the subject First Appeal No.684 of 2022 and the National Commission was pleased to dismiss the appeal preferred by the petitioner-Bank, without appreciating any of the contentions raised by the petitioner-Bank and confirmed the order passed by the State Commission.
14. Learned Senior Counsel appearing for the petitioners had contended that the issue raised in the present Writ Petition is squarely covered by the judgment rendered by the Honourable Supreme Court in Chairman and Managing Director, City Union 10 AKS,J& ETD,J W.P.No.31150 of 2024 Bank Limited and another v. R. Chandramohan1, wherein, the Honourable Supreme Court has held that the proceedings before the State Commission and National Commission are essentially summary in nature. The issues which involve disputed factual questions should not be adjudicated by the Commission and the issues in respect of fraudulent transactions, tortious acts, criminality like fraud and cheating could not be decided by the Commission under the Consumer Protection Act, 1986 (for short, 'the Act') and the 'deficiency of service', as well settled, has to be distinguished from the criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated under Section 2(1)(g) of the Act. In the instant case, when there is an element of fraudulent transaction committed at the end of the respondents through their maid and her husband, the State Commission could not have adjudicated the dispute and allowed the complaint in favour of the respondents.
1 (2023) 7 SCC 775 11 AKS,J& ETD,J W.P.No.31150 of 2024
15. Moreover, the charge sheet filed in the criminal case also discloses that the real culprits, who had carried out fraudulent transactions through the internet banking facility of the respondents, were the maid of the respondents and her husband and therefore, it is the respondents alone are to be blamed for allowing the access of their User-ID and Password of internet banking facility to their maid and her husband and that the petitioner-Bank is not responsible. Therefore, the State Commission was not justified in directing the petitioners to make good an amount of Rs.63,74,527/-, that too, along with interest at the rate of 9% per annum from the date of complaint till the date of realization. The petitioner-Bank has never done any fraudulent transactions. It is the staff of the respondents alone who have indulged in fraudulent transactions and the question of vicarious liability on the part of the petitioner-Bank would not arise. The concept of vicarious liability is not applicable in a criminal jurisprudence.
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16. Learned Senior Counsel had further contended that in the instant case, the State Commission has allowed the complaint preferred by the respondents on the ground that because of the lapses of the petitioner-Bank i.e. they have upgraded the respondents internet banking on their own from 'view only' facility to that of full-fledged internet banking facility, the fraudulent transactions have taken place. Learned Senior Counsel had further contended that online transactions were made available to the customers only on their request and admittedly, the request for upgrading the internet banking of the respondents from 'view only' facility to that of full-fledged internet banking facility has only been made through the registered mobile number of the respondents and User-ID and Password were directly sent to the respondents' registered mobile number and there is no doubt with regard to the registered mobile number of the respondents is concerned i.e. 9440531348. When the respondents have not disputed about the registered mobile number, they cannot deny that a request had not come from their registered mobile number. 13
AKS,J& ETD,J W.P.No.31150 of 2024 When once a request was made for upgrading the bank account from 'view only' facility to that of full-fledged internet banking facility, the petitioner-Bank has bona fidely upgraded the internet banking account of the respondents to full-fledged banking account and for every transaction, precaution was taken by the petitioner- Bank by sending SMS messages and OTPs to the registered mobile number of the respondents. Only when OTP is entered, the transaction will be completed. It is the responsibility of the respondents to ensure that their internet banking privacy and safety is protected by themselves. If the workers of the respondents have played fraud, then the petitioner-Bank cannot be made to pay the loss caused to the respondents. This fact was not properly appreciated either by the State Commission or by the National Commission. Therefore, appropriate orders be passed in the Writ Petition by setting aside the order, dated 04.08.2022, passed in C.C.No.102 of 2019 by the State Commission and the judgment, dated 30.07.2024, rendered in First Appeal No.684 of 2022 by the National Commission and allow the Writ Petition. 14
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17. On the other hand, learned Senior Counsel appearing for the respondents had contended that the respondents are aged persons and senior citizens. Respondent No.1 is a retired IAS Officer, who served as a Secretary to the Government of Andhra Pradesh, Secretary to Government of India and also as Secretary General, Afro Asian Rural Reconstruction Organization. Respondent No.1 is partially blind and respondent No.2 is totally blind. They are aged above 90 years. They have opened an account i.e. joint savings bank account bearing A/c. No.10123103876, with the petitioner-Bank at Balkampet Branch. They have also opened three fixed deposits on 09.08.2017 to a tune of Rs.10,00,000/-, Rs.15,00,000/- and Rs.15,00,000/-, for a period of one year with mandate for auto renewal, for which the petitioner-Bank has issued Fixed Deposit Receipts.
18. Learned Senior Counsel appearing for the respondents had further contended that the respondents have not surrendered the Fixed Deposit Receipts and even without submitting the Fixed Deposit Receipts, the petitioner-Bank has liquidated the fixed 15 AKS,J& ETD,J W.P.No.31150 of 2024 deposits, even before its maturity, without informing the respondents. Further, the respondents have sought 'view only' facility on internet banking, but they never sought full-fledged transactions on internet banking and on 05.08.2018, without the knowledge of the respondents, the petitioner-Bank has upgraded the internet banking of the respondents from 'view-only' facility to that of full-fledged internet banking facility. In spite of there being no request, the petitioner-Bank has upgraded the account of the respondents and that led to taking place of fraudulent transactions from the respondents account and consequently, the respondents amount to a tune of Rs.63,74,527/- was fraudulently withdrawn. Learned Senior Counsel had further contended that for the deficiency of service of the petitioner-Bank, the State Commission has rightly allowed the complaint in favour of the respondents.
19. Learned Senior Counsel appearing for the respondents had further contended that Section 2(g) of the Act states that "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance 16 AKS,J& ETD,J W.P.No.31150 of 2024 which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. Further, Section 2(o) of the Act states that "service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service. As per Section 2(o) of the Act, 'service' includes banking service also. Since there was deficiency in service on the part of the petitioner-Bank, the State Commission was justified in allowing the complaint in favour of the respondents and the National Commission was also justified in dismissing the appeal preferred by the petitioners.
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20. Learned Senior Counsel appearing for the respondents had relied upon series of judgments and contended that in a Writ of Certiorari, the scope of this Court is limited. Until and unless there is error of jurisdiction or error apparent on the face of record, the Court cannot interfere. Admittedly, in the instant case, no error was committed either by the State Commission or the National Commission.
21. Learned Senior Counsel appearing for the respondents had also relied upon the judgment of the High Court of Gauhati in State Bank of India v. Pallabh Bhowmick and others2, wherein, some online transactions have taken place from Pallabh Bhowmick's account and the learned Single Judge of Gauhati High Court has directed the State Bank of India to deposit an amount of Rs.94,204.80 ps. in his account, holding that when no negligence can be attributed on a customer for fraudulent transaction which took place without his knowledge, the Bank alone is liable for such online transaction, and when the same was challenged before a 2 2024 SCC OnLine Gau 1519 18 AKS,J& ETD,J W.P.No.31150 of 2024 Division Bench, the Division Bench of the Gauhati High Court has dismissed the Writ Appeal confirming the order passed by the learned Single Judge.
22. Learned Senior Counsel appearing for the respondents had further relied upon a judgment of the Honourable Supreme Court in Dav Public School v. Senior Manager, Indian Bank, Midnapur Branch and others3, wherein, certain fraudulent transactions have taken place in the School account and the Honourable Supreme Court has directed the Bank to pay an amount of Rs.25,00,000/-.
23. Learned Senior Counsel appearing for the respondents had further relied upon a judgment of the Honourable Supreme Court in Central Council for Research in Ayurvedic Sciences and another v. Bikartan Das and others4 and contended that the scope of Certiorari is only to confine the inferior Tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non- exercise or the illegal assumption of it and not to correct errors of 3 (2019) 20 SCC 31 4 Civil Appeal No.3339 of 2023, dated 16.08.2023. 19
AKS,J& ETD,J W.P.No.31150 of 2024 finding of fact or interpretation of law committed by them in exercise of powers vested in them under the Statute. When there is any error apparent on the face of the record, then only the High Courts can interfere under the jurisdiction of the Certiorari. In the instant case, the facts and the transactions were dealt with by the State Commission and the National Commission and they categorically gave a finding that there was deficiency of service on the part of the petitioner-Bank. The State Commission was justified in allowing the complaint preferred by the respondents. This Court cannot relook into the facts. Therefore, there are no merits in the Writ Petition and the same is liable to be dismissed.
24. This Court, having considered the rival submissions made by the learned counsel for the parties, is of the considered view that the petitioner-Bank has initially extended 'view only' facility on the internet banking to the respondents. However, on a specific request, which has come from the registered mobile number of the respondents on 05.08.2018, the petitioner-Bank has upgraded the internet banking of the respondents account from 'view only' 20 AKS,J& ETD,J W.P.No.31150 of 2024 facility to that of full-fledged internet banking facility. To that extent, the petitioner-Bank has produced a copy of the proceedings, wherein, a request has come from the respondents through their registered mobile number i.e. 9440531348, for upgrading their internet banking. The online transactions took place at the end of the respondents, may not be by the respondents, but from the workers of the respondents, and in all the transactions, there was a request made from the registered mobile number of the respondents and the petitioner-Bank has sent SMS messages and also OTPs to the respondents to their registered mobile number. Only when the OTP is entered, the transaction would be completed, which would mean that the fraudulent transactions took place at the side of the respondents, for which the petitioner- Bank may not be held responsible.
25. Further, the Charge Sheet filed by the police also makes it clear that one of the accused, who carried out the fraudulent transactions, is none other than the worker of the respondents and the responsibility of maintaining confidentiality of the bank 21 AKS,J& ETD,J W.P.No.31150 of 2024 account details lies with the respondents. Admittedly, the internet banking transactions took place at the end of the respondents, may not be by the respondents, but by the workers of the respondents, and therefore, the State Commission was not justified in directing the petitioner-Bank to reimburse the respondents an amount of Rs.63,74,527/- along with interest at the rate of 9% per annum from the date of complaint till the date of realization, for the fraud which was not committed by the petitioner-Bank, but was committed by the workers of the respondents and the same is contrary to law, more so, when the police investigation reveals that the amounts were transferred to various other accounts by the workers of the respondents. The amounts to be recovered by the police in the criminal case can be directed to be reimbursed to the respondents, but the State Commission was not justified in directing the petitioner-Bank to reimburse the loss caused to the respondents. This fact was also not properly appreciated by the State Commission and the National Commission. The National 22 AKS,J& ETD,J W.P.No.31150 of 2024 Commission ought to have allowed the appeal preferred by the petitioner-Bank.
26. As far as the judgment relied upon by the respondents in Bikartan Das's case (supra 4) is concerned, the ratio laid down therein is that in Certiorari jurisdiction Courts cannot go into factual position. As far as the finding recorded by the State Commission that the petitioner-Bank must reimburse the amount to the respondents is concerned, the State Commission could not have come to such a conclusion that the petitioner-Bank has committed any fraud or it has involved in any fraudulent transaction. When the petitioner-Bank was not involved in any fraudulent transaction or any irregularity, the question of directing the petitioner-Bank to reimburse the amounts would not arise. Moreover, the material placed before this Court i.e. Charge Sheet filed in the criminal case, also discloses that the amounts from the account of the respondents were transferred to several other accounts, that too, at the instance of the workers of the respondents. Therefore, the State Commission was not justified in 23 AKS,J& ETD,J W.P.No.31150 of 2024 directing the petitioners to reimburse the amounts to the respondents. This fact was also not properly appreciated by the National Commission.
27. Insofar as the judgment relied upon by the respondents in Dav Public School's case (supra 3) is concerned, admittedly, in that case, the complaint was lodged with the Bank on 09.09.2014 i.e. the next day of detecting the siphoning off the amount from the school account and in those set of circumstances, the Honourable Supreme Court has rightly directed the Bank to compensate the school to a tune of Rs.25,00,000/-. But, in the instant case, even before a complaint could be lodged, several fraudulent transactions have taken place, that too, at the end of the respondents, may not be by the respondents, but by their workers. The workers have gained access to the registered mobile number of the respondents and they have misappropriated the amounts and indulged in fraudulent transactions, for which the petitioner-Bank cannot be held to be responsible.
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28. Further, the Online RBI Guidelines also state that Passwords and OTPs should not be shared to anybody and that for a fraudulent transaction, the Bank is not responsible. Admittedly, in the instant case, the petitioner-Bank has taken precautions by sending SMS messages and OTPs to the registered mobile number of the respondents and when misuse has occurred at the end of the respondents' domestic help, the petitioner-Bank cannot be held to be responsible.
29. The Honourable Supreme Court in R. Chandramohan's case (supra 1) has rightly held that the proceedings before a State Commission are summary in nature and it should not adjudicate the matters where there is an element of fraudulent transactions, such as tortious acts, criminal fraud and cheating. The State Commission should not adjudicate complex matters. Admittedly, in the instant case, fraudulent transactions have occurred with the respondents' bank account, that too, by the domestic help of the respondents. Therefore, the State Commission could not have adjudicated the case when fraudulent transactions have taken place 25 AKS,J& ETD,J W.P.No.31150 of 2024 at the end of the respondents by their workers. Therefore, the State Commission was not justified in allowing the complaint filed by the respondents against the petitioner-Bank.
30. Further, the issue with regard to upgrading the internet banking from 'view only' facility to that of full-fledged internet banking facility, without there being any request from the respondents, is concerned, admittedly, the request was made through registered mobile number of the respondents for upgrading the account of the respondents to that of full-fledged internet banking facility and the petitioner-Bank, in its true faith, has upgraded the account of the respondents and also furnished User-ID and Password. The petitioner-Bank has taken every precautionary step to ensure protection of the respondents' money by sending SMS messages and OTPs to the respondents' registered mobile number. Only when the OTPs, which were received by the respondents, were entered, the transactions have been made. Therefore, the petitioner-Bank under no stretch of imagination can 26 AKS,J& ETD,J W.P.No.31150 of 2024 be held responsible for the fraudulent transactions, which have taken place in the respondents' account.
31. As far as the contention of the respondents that the petitioner-Bank could not have redeemed the Fixed Deposits even before the date of their maturity, that too, when the original Fixed Deposit Receipts are with the respondents, is concerned, the learned Senior Counsel appearing for the petitioner-Bank has produced the Terms of Service of petitioner-Bank, wherein, Rules 4 and 5 make it clear that the Fixed Deposits were also permitted to be redeemed through internet banking service. Admittedly, the request for redemption of fixed deposits was made through the registered mobile number of the respondents and the petitioner- Bank in a bona fide manner has redeemed the fixed deposits of the respondents. Therefore, the petitioner-Bank could not have been found fault for redemption of fixed deposits of the respondents.
32. Further, a perusal of the Fixed Deposit Receipts of the respondents also makes it clear that the fixed deposits can be 27 AKS,J& ETD,J W.P.No.31150 of 2024 redeemed through internet banking service. Therefore, while handling the account of the respondents, the petitioner-bank has taken all precautions in the form of sending SMS text and also OTP numbers to the registered mobile number of the respondents before the transactions were completed. Therefore, under no stretch of imagination the petitioner-Bank is found fault. If at all any mischief has taken place, it has taken place at the end of the respondents, may not be by the respondents, but by their domestic help, for which, the petitioner-Bank is not responsible. Therefore, the order, dated 04.08.2022, passed by the State Commission and the judgment, dated 30.07.2024, rendered by the National Commission are liable to be set aside.
33. Accordingly, the Writ Petition is allowed and the order, dated 04.08.2022, passed in C.C.No.102 of 2019 by the Telangana State Consumer Disputes Redressal Commission, Hyderabad, and the judgment, dated 30.07.2024, rendered in First Appeal No.684 of 2022, by the National Consumer Disputes Redressal Commission at New Delhi, are set aside. There shall be no order as to costs. 28
AKS,J& ETD,J W.P.No.31150 of 2024 Miscellaneous Applications, if any, pending in this Writ Petition shall stand closed.
________________________________ ABHINAND KUMAR SHAVILI, J __________________________ TIRUMALA DEVI EADA, J Date: 11.04.2025.
MD