State Consumer Disputes Redressal Commission
Mrs. C.Fitzgerald vs M/S. Oriental Bank Of Commerce on 7 December, 2009
CONSUMER DISPUTES REDRESSAL COMM CONSUMER DISPUTES REDRESSAL COMMISSION MAHARASHTRA STATE, MUMBAI Complaint no.456/1999 Date of Order: 07/12/2009 1. Mrs. C.Fitzgerald, Complainant R/at- Chamunda Niwas, B Wing, 6th floor, Tagore Road, Behind Shalimar Apartment Santacruz(W), Mumbai- 54. 2. Mr.Birendra Higgins, R/at- Chamunda Niwas, B Wing, 6th floor, Tagore Road, Behind Shalimar Apartment Santacruz(W), Mumbai- 54. V/S 1. M/s. Oriental Bank of Commerce, Opp.Parties branch office at ALF, Gokhale Road (South), Dadar (W), Mumbai- 400 028. 2. M/s. Acme Creation, at Kamani Oil Mills, Peru Chawl Compound, Near Lalbaug Flyover, Mumbai- 400 073. Quorum : Justice Mr.S.B.Mhase, Hon'ble President Mr.S.R.Khanzode,Honble Judicial Member.
Present:
Smt Sneha Divedi for complainant.
Adv.Shri Shailesh Rajad I/by D.S.R.Asosciates for opposite party no.1.
None for Opposite party no.2.
:- ORAL ORDER :-
Per Shri S.B.Mhase, Honble President :
We heard Adv. Smt Sneha Divedi for complainant and Adv.Shri Shailesh Rajad I/by D.S.R.Asosciates for opposite party no.1 Opposite party no.2 though served, absent and has not filed written version.
This complaint is basically directed against opp.party no.1/ M/s.Oriental Bank of Commerce which is a nationalized bank. The complainants were having a joint account with opp.party no.1 being account no.S.B.-95966. The grievance of the complainant is that on 20/10/1995 the complainants have issued a cheque no.114303 of Rs.10 Lakhs to opp.party no.2 by way of a friendly loan. It was an account payee cheque. Said amount of Rs.10 Lakhs was debited on 20/10/1995 from the account of the complainant i.e. saving bank account no.95966. The account extract of complainant shows that the said amount was debited by way of a transfer. However, said entry made in account of complainant does snot show that the amount has been transferred to the account of opponent no.2. Therefore, the complainant made correspondence with opp.party no.1 and called upon them to disclose in which account said amount was transferred. Opp.party no.1 failed to give such information and therefore, claiming deficiency in service the complainant has approached this Commission. Complainant therefore prayed that if said amount of Rs.10 Lakhs is not transferred to the account of opponent no.2 then said amount be directed to be refunded to complainant along with interest 21% p.a. Thus, at the time of filing of complaint, according to complainant, the amount which was due and payable by opp.party no.1 was Rs.17,20,000 (Rs.10 Lakhs principal plus Rs.7,20,000/- by way of interest). The complainant has also prayed for interest @ 21% p.a. on Rs.10 Lakhs from the date of filing of complaint till realization of the amount.
The opposite party no.1 has appeared and contested the claim. Their contention is that opp.party no.1 honored the cheque and has debited the said amount from the account of the complainant. But they did not disclose in the reply version also in which account said amount was transferred. Their contention is that it is not necessary for them to disclose in which account said amount is transferred and thus, they say that their service liability is over the moment the cheque is honored and debited having found that there is sufficient amount in the account of complainant. Thus, in spite of opportunity being given to them, they at a relevant time did not disclose to this Commission in their reply version and affidavit as to in which account or where this amount has been transferred.
On perusal of the accounts sheet of saving account of complaiannt, which was given to the complainant as on 03/07/1996 & 06/07/1996, we find at least two entries wherein amounts have been debited by way of transfer wherein it is disclosed that the amount has been transferred to specific account of drawee. The entry dated 04/09/1995 shows that the amount of Rs.40 Lakhs was transferred by cheque no.114310 to the saving bank account no.71595 of drawee. The entry dated 08/09/1995 shows that the amount of Rs.6 Lakhs was transferred from the complainants account by cheque no.114302 to the current account no.11578 of drawee. Thus, after going through these entries we find that amount stated in those respective cheques which have been transferred from the account of the complainant to saving bank account no.71595 and current account no.11578. That shows that opposite party has not only transferred the amount debiting from the account of the complainant but they equally have disclosed in which account number the amounts are/were transferred. However, the said practice has not been followed in respect of disputed cheque of Rs.10 Lakhs dated 20/10/1995. There opp.party has only stated the transferred cheque numbers and amount but specifically has suppressed information as to account number where said amount is transferred and exactly the same information has been asked by the complainant. Since the cheque no.114303 was issued in the name of opp.party no.2 with an endorsement at the corner of cheque that this is a account payee cheque and since the amount was a loan amount advanced to opp.party no.2, the complainant was/is definitely interested in knowing that amount has been transferred in the account of opp.party no.2 or not because thereafter, it should not be open to the opp.party no.2 to contend that such amount is/was never transferred to his account. On instructions of the complainant and on demand of complainant, opp.party no.1 has to disclose the account in which said amount was/has been transferred. The demand made by complainant was justifiable in the facts and circumstances. The opp.party no.1 was under obligation to disclose the said facts. What we find is that that in respect of other account payee cheques the said information is reflected in the account but in case of complained cheque no. 114303 such information has been suppressed by opp.party no.1 and in spite of complainant called upon them to disclose and in spite of the facts that the complainant has come to this Commission for getting such information, the opp.party no.1 has not provided such information in the written reply. Therefore, the deficiency in service is in the facts and circumstances is palpably evident on the part of opp.party no.1 When we heard the matter on 07/11/2009 for the first time, it was disclosed to this Commission by oral information that the amount of Rs.10 Lakhs which was shown have been transferred from the saving bank account of the complainant was transferred to the sundry account and from the sundry account, on the instruction of opp.partyno.2, the said amount has been transferred. What is interesting to note that even though it is submitted that amount has been transferred to the sundry account of the bank, it was further not disclosed that what were the instructions given by the opp.party no.2 to transfer the amount and in whose account the amount has been transferred by the opp.party no.1. Those instructions of opp.party no.2 should have been produced on record. We by way of abundant precaution therefore by order dated 07/11/2009 directed to opp.party no.1 to file an affidavit and accordingly affidavit of one Mr.Vilas Sawant, Senior Manager of opp.party no.1 is filed. Said affidavit is dated 11/11/2009. We mark the same as Exhibit-X for identification. In para 5 & 6 the affiant state as under:
5.
I say and submit that the complainants have drawn cheque in favour of the respondent no.2 who is the actual beneficiary. I say and submit that at not point of time the respondent no.2 ever complained to the respondent no.1 Bank that the cheque amount is not credited in his account
6. I say and submit that as per the oral instructions of the respondent no.2, the respondent no.1 deposited the cheque amount in the sundry deposit account and therefore, the account of the respondent no.2 was not credited. Thereafter, on oral instructions of the respondent no.2 , one pay order was issued for a consolidated amount in favour of third party. Hereto annexed and marked Exhibits A to E are of the Bank vouchers. I say and submit that since the cheque was not deposited in the respondent no. 2s account as per his oral instructions, the respondent no.2 has not filed complaint against the respondent no.1.
In order to show that opp.party no.1 has acted on the instructions of opp.party no.2 they have produced by way of exhibit-A to the said affidavit, transfer voucher. From this transfer voucher it appears that amount of Rs.3Lakhs and Rs.10Lakhs total amounting to Rs.13Lakhs have been transferred to sundry account. Out of this Rs.13 Lakhs, the amount of Rs.10Lakhs is by way of cheque no.114303 from the S.B.account no.95966 and Rs.3Lakhs are by way of pay order of the account no.23518/95. The complainant is not concerned with an amount of Rs.3Lakhs since said pay order was not issued by complainant. Thus, it appears from the transfer voucher that the amount of cheque of the complainant and the amount of the pay order issued by some other person was transferred to sundry account. Said voucher does not disclosed that on oral instruction of opp.party no.2 said voucher is prepared. It appears that said pay order referred to in the transfer voucher dated 20/10/1995 was issued in favour of one Shri Saxena by cheque no.541026. Thus, the pay order was not in favour of opponent no.2 so that opponent no.2 can give oral instructions to transfer said amount of Rs.3 Lakhs to the sundry account of bank. What is important to be noted is that that said pay order was not issued in favour of opp.party no.2 and therefore, the said pay order cannot be transferred even on assuming that there are oral instructions given by opp.party no.2. Therefore, affidavit that on instruction of opponent no.2 amount of Rs.10 Lakhs was transferred to sundry account is not correct and reliable. Let the fact as it is. What is interesting to note is that then there is debit voucher to transfer the amount of Rs.14,55,461.75/- ( 13,00,000 + 1,55,661.75) transferring the said amount to the sundry account of bank. This voucher is of the debit voucher. From whose account these amount were debited was/is not clear from the said voucher, but it appears thereafter, all these transfer entries from the sundry account were clubbed together and a pay order is issued in the name of Mr.Vipul Chhunubhai and Maulaviz. The pay order is of Rs.14,55,461.75 and thus, it is a case of opp.party no.1 that amount of Rs.10 Lakhs which were given by way of loan to the opp.party no.2 were ultimately transferred to said Vipul Chunnubhai and Maulaviz. When and where the said Chhunubhai and Maulaviz have presented the said pay order for encashment and where they were having account to transfer the amount has not been disclosed by opp.party no.1. It is tried to be submitted that the amount of cheque of the complainant has been transferred to opp.partyno.2 and on instructions of opp.party no.2 the amount has been further transferred as stated in the affidavit and document referred above and therefore, opp.party submitted that there is no deficiency in service and the complaint be dismissed.
Opposite party no.1 is a nationalized bank. They are supposed to act according to the rules, regulations and according to law. They are not grocery shops where on oral instructions of somebody the huge amount like this can be transferred. There is no evidence on record to show that oral instructions were given at any point of time by opp.party no.2. The opp.party no.2 even though is the main party to this proceeding has preferred to remain absent and has not filed any reply version. Therefore in the absence of reply of opp.party no.2, it is not possible to know whether the opp.party no.2 has given such oral instructions to opp.party no.1. If opp.party no.1 acted upon oral instructions of opp.party no.2 the opp.party no.1 at least should have filed an affidavit of opp.party no.2 to state that opp.party no.2 has given said instruction to opp.party no.1 but the opp.party no.1 has also failed to produce such evidence by way of an affidavit even though ample opportunities were given to them to explain the transactions. What we find that when actually the amount is/was not transferred in the name of opp.party no.2 even as per the document which are placed on record, the opp.partyon.2 selected not to appear in the matter and to make any statement because he is aware that on the basis this material neither the complainant nor the bank can fastened the responsibility of the amount which alleged to be transferred on the instruction of opp.party no.2 by opp.party no.1 Therefore, it was for opp.party no.1 to obtain appropriate evidence in this respect and produce on record that the amount has been actually transferred from the account of the complainant to the account of opp.party no.2 so as to complete the transaction as desired by the complainant. In fact, it was the cheque of the complainant and the opp.party no.1 was under obligation to encash the said cheque and transfer the amount as per the instructions in the cheque. Opp.party no.1/bank is supposed to provide the service as per the instructions of the complainant, who is drawer of the cheque and not as per the instruction of the drawee unless there are further endorsements made by the opponent no.2 as per the provisions of Negotiable Instrument Act. We also record our findings that the documents being and vouchers which are produced on record and which we have scrutinized in above para of order do show that the affidavit filed by opponent no.1 that and instruction of opponent no.1 said amounts were transferred is equally not reliable and we do not accept the said incidence to exonerate opponent from deficiency in service.
Therefore, what we find that opp.party no.1 has miserably failed to bring on record that the cheque issued by the complainant in favour of opp.party no.2 was transferred in the account of opp.partyno.2. It was the duty of opp.partyno.1 to prove that amount has been transferred in the account of opp.party no.2 as per the instructions of the complainant. Having failed to render such service opp.party no.2 is liable to pay the amount of Rs.10 Lakhs, which is principal amount of cheque.
Since the amount was not transferred and it has been mis-utilized by Opp. Party no.1, Opp.Party no.1 is under obligation to pay interest to opp.party no.1. Opp.party no.1 has claimed a interest @21% p.a. but we find such interest is a exorbitant one as claimed by the complainant. Under these facts and circumstances, we find that the interest @ 6% p.a. should be the rate of interest and the complainant were entitled to get said amount of interest from the date of debit entry in the account of complainant till the actual realization of the said amount.
At the time of parting with this order, we find that in this matter very serious view is required to be taken. The transactions which are reflected and brought before this Commission in this respect have serious complications. The transaction as disclosed is that the complainant has given a cheque of Rs.10 Lakhs to the opp.party no.2 and the bank states that on oral instruction of opp.partyno.2 the amount was transferred to the sundry account instead of transferring in the account of opp.partyno.2 and further the bank has made an affidavit that on oral instructions of opp.party no.2 pay order was issued in favour of Shri Vipul Chunnubhai and Maulaviz on 20/10/1995 itself. What happened to that pay order is not known. Taking affidavit of the bank as it is we find following problems with the transactions:
The amount of Rs.10Lakhs ought to have been transferred by opp.party no.1/bank in the account of opp.party no.2. Had the opp.party no.1 transferred the said amount in the account of opp.party no.2, it would have been obligatory for opp.party no.2 to disclose the said transactions of a loan to the income tax department. However, it appears that, assuming that story given by the bank is true that opp.party no.2 in order to avoid explanation to the income tax department and to suppress his income has not allowed to make a entry of said amount in his account and in his such illegal efforts the bank officers have co-operated by transferring the said amount to the sundry account.
The second serious complication this case is in the backdrop of the affairs going on in this country and hawala transactions which are going through out world, which is a part and parcel of the terrorist activity. Therefore it appears that amount which was required to be transferred in the account of opp.partyno.2 was transferred to the sundry account and thereafter, the said amount has been siphoned by opp.party no.2 by way of a pay order in the name of Shri Vipul Chunnubhai and Shri Maulaviz. Who is Chhunubhai, who is Maulaviz is not known. Whether this pay order has been presented with opp.prty no.1 or any bank or elsewhere in the foreign countries and thereby the amount has been misultilized is equally not known. It is equally possible that this amount may be misutilized in anti civil activity or terrorist activity and thus in this manner the said amount has been siphoned with the help of the bank officers. These are our apprehensions on the nature of transaction and on the basis of the documents placed on record. But since these are serious doubts, we take judicial note of it and also states that this transaction is prima facie not as simple as shown by the bank/opp.party no.1. There may be multiple transaction made by the bank of this kind and in different branches of the bank and therefore, we find it appropriate and necessary to verify the sundry account of each branch and each bank by appropriate agency of Central Govt. equally by the income tax department. Therefore we pass the following order:-
:-ORDER-:
1.
Complaint is allowed.
2. So far as the complaint is concerned the opp.party no.1 is directed to pay Rs.10 Lakhs to the complainant within period of one month with interest @ 6% p.a. from 20/10/1995 till actual payment of the amount.
3. It will be open for the opp.party no.1/Bank to fix the liability of this transaction on officers of the Bank by carrying out the departmental enquiry and recover the amount from the concerned officer of the Bank.
2. Registrar(Legal) of this Commission is directed to send the copy of this order to the followings:
a) Copy of this order shall be given to the Director General of Police & Commissioner of Police, Mumbai for further inquiry into the matter.
b) Copy of the order shall be given to Central Bureau of Investigation of India to look into the matter whether this is related to Hawala transactions or Anti Terrorist Activity in the country.
c) Copy of the said order shall be sent to the Economic Offence wing of State Govt.
for further inquiry/investigation into the matter.
d) Copy of the said order shall be sent to income tax department so as to verity the transactions involved in the present case or similar transaction which have been entertained into to avoid income tax liabilities
e) Copies of the order herein be furnished to the parties as per rules.
(S.R.Khanzode) (S.B.Mhase) Judicial Member President Nbh