State Consumer Disputes Redressal Commission
Lakkavajjula Srinivasa Siva Shankara ... vs Oriental Bank Of Commerce,Rep. By Its ... on 7 December, 2009
BEFORE THE A
BEFORE
THE A.P.STATE CONSUMER DISPUTES REDRESSAL
COMMISSION: HYDERABAD.
F.A.No.666/2007
against C.D.No.346/2004,
Dist.Forum, Guntur.
Between:
Lakkavajjula Srinivasa Siva
Shankara Prasad,
S/o.Kasi Visweswara Rao,
Vijayawada. Appellant/
Complainant
And
Oriental Bank of Commerce,
Rep. by its Branch
Manager,
H.No.5/1, Brodi Pet, Guntur. Respondent /
Opp.party
Counsel for the appellant :
M/s.Srinivas Karra
Counsel for the respondent : Mrs. Kalpana Ekbote
CORAM:
SMT M.SHREESHA, HONBLE MEMBER
AND SRI K.SATYANAND, HONBLE MEMBER.
MONDAY, THE SEVENTH DAY OF DECEMBER TWO THOUSAND NINE.
Oral Order : (Per Smt. M.Shreesha, Honble Member ) *** Aggrieved by order in C.D.No.346/2004 on the file of District Forum, Guntur, the complainant preferred this appeal.
The brief facts as set out in the case are that the complainant opened Savings Bank Account bearing no.1446 with the opposite party in October,2000. The complainant had also other accounts with the opposite party branches at Vijayawada and also Hyderabad and from his Hyderabad Branch an amount of Rs.9 lakhs was sent to the opposite party Branch and the same was received by transfer by the opposite party on 21.10.2000 and was credited to his account. Complainant withdrew an amount of Rs.1,50,000/- from his account no.1446 and submits that the balance amount should have been credited to his account.
Opposite party branch did not issue a copy of his account because of certain differences and the complainant submits that he sent a legal notice on 13.12.2001 demanding copy of his account and the opposite party branch informed through their reply notice dt.24.12.2001 that they cannot furnish the fresh account copy. Complainant filed C.D.No.15/2000 before the Forum, Guntur which was allowed by the Forum and only after filing PP.39/2003 on 13.12.2003 the complainant could get the copy of his account. After he got the copy the complainant submits that he noticed transaction dt.20.10.2000 transferring a sum of Rs.8.95 lakhs to FDR without noting the number and that the account was closed on 23.10.2000. Complainant submits that he never gave any instructions to the opposite party for depositing the amount in FDR or to close his account.
On 2.3.2004 he got issued another legal notice demanding payment of Rs.8.95 lakhs under the FDR with interest and also furnish information regarding closure of his account. Opposite party in their reply dt.27.3.2004 pleaded that CBI investigation is pending and hence the information cannot be furnished. Complainant submits that on the plea of this on going CBI investigation the opposite party paralised his bank transactions for a period of 3 years . Complainant states that he has nothing to do with the fraudulent transactions made by the bank staff and hence submits that there is deficiency in service on behalf of the opposite party and seeks direction to the opposite party to pay the amount due under the FDR to a tune of Rs.8,95,000/- and also to direct the opposite party to pay interest @ 24% for the delayed period and to pay Rs.5000/- towards mental agony and also to pay costs .
Opposite party filed counter stating that the complainant with the aid and assistance of the opposite party bank employees opened some fictitious accounts and raised demand loans on the said deposits. Due to the acquaintance with the complainant the officials of the opposite party bank used to cooperate with the complainant and do the banking work on oral instructions on the assurance by the complainant that he would get signatures and documentation done at a later point of time. Opposite party admits that they received an amount of Rs.9 lakhs by way of transfer and only as per the oral instructions, an amount of Rs.75,000/- was deposited in the name of Y.Sunil, Rs.75,000/- in the name of N.Narasimha Reddy, and Rs.75,000/- in the name of N.Sujatha and Rs.25,000/- in his name. A loan of Rs.1 lakh was sanctioned against the above FDR and the same was sent to the account of the complainant maintained by him in Oriental Bank of Commerce, Hyderabad, Old City Branch. It is learnt that the complainant encashed this amount also and the opposite party submits that the complainant induced the employees of the opposite party bank and availed loans on the said FDR and having received the amount by way of transfer is estopped to contend contra. Complainants conduct shows that he has no amount as on the date of alleged FDR and that the complainant was involved in cases amounting to 1.61 crores and he stood as guarantor to one B.Srihari Rao who committed default in payment of the instalments and opposite party even filed O.S.No.605.2003 on the file of Principal Senior Civil Judge Court, Guntur for recovery of the amount due to it and the complainant filed O.S.No.319/2001 and O.S.No.403/2001 in Guntur and they are still pending and submits that in view of the pendency of the matters before the Debts Recovery Tribunal and the Civil Court and also before the CBI the present complaint has to be adjudicated before the Civil Court and this Forum has no jurisdiction.
The District Forum based on the evidence adduced i.e. Exs.A1 to A13 and B1 to B17 dismissed the complaint with an advise to sort out in an appropriate Civil/Criminal Courts .
Aggrieved by this order , the complainant preferred this appeal.
The facts not in dispute are that the opposite party has admitted receiving an amount of Rs.9 lakhs by way of transfer to the complainants account, but contend that as per the oral instructions of the complainant, an amount of an amount of Rs.75,000/- was deposited in the name of Y.Sunil, Rs.75,000/- in the name of N.Narasimha Reddy, and Rs.75,000/- in the name of N.Sujatha and Rs.25,000/-
in his name. At the out set we are of the considered view that the defence of the opposite party that it deposited the afore mentioned amounts in the respective names based only on oral instructions is unsustainable. The learned counsel for the appellant/complainant drew our attention to Ex.A13 which is the judgement copy of O.S.No.552/2002 in which Addl. Senior Civil Judge Vijayawada decreed in favour of the complainant. We also observe from the record that the complainant filed C.D.No.15/2002 on the file of District Forum, Guntur which was allowed by the District Forum with a direction to the opposite party to furnish statement of account to the complainant. The learned counsel for the complainant submits that it is only after filing PP orders the Bank had furnished the account copy. It is the complainants case that an amount of Rs.8.95 lakhs was placed in FDR without his consent and also that his account was closed on 23.10.2000 without his consent. It is opposite partys case that the complainant in connivance with the opposite party bank officials had opened several accounts and on his oral instructions this amount was transferred to FDR and that the complainant had taken loan against this FDR and that he induced the employees of the opposite party bank to avail loans on the said FDRs and also to receive the amounts by way of transfer.
It is also the opposite partys case that they filed O.S.No.605/2003 on the file of Principal Senior Civil Judge , Guntur for recovery of the amount due to it and it is only because he is not able to defend several cases filed by the opposite party against him, the complainant to escape his liability filed OS.no.319/2001 and O.S.No.403/2001 on the file of Principal Senior Civil Judge, Guntur and they are pending before the Court. The learned counsel for the respondent/opposite party also submitted that the bank has filed Recovery Suit against the complainant before Debt Recovery Tribunal, Visakhapatnam vide O.A.No.46/2004 and another O.A.No. 138/2003 and in view of the pendency of matters before the DRT and Civil Court and also before CBI, the District Forum has rightly advised the complainant to file before the proper Forum. As against this argument of the learned counsel for the respondent/opposite party we rely on the judgement of the Apex Court in AIR 2002 SC P-2931 in DR.J.J.MERCHANT & OTHERS v. SHRINATH CHATURVEDI in which it has clearly laid down that the redressal agencies constituted under the Consumer Protection Act, 1986 cannot relegate function assigned to them to a civil court on the ground that complicated questions are involved in a given case and even if there are complicated question of law since the District Forum is headed by a District Judge and State Commission is head by High Court Judge they can be adjudicated . Hence the contention of the respondent/opposite party that this matter cannot be adjudicated before the Consumer Forum is unsustainable and we also set aside the finding of the District Forum that this matter is to be adjudicated before the Civil Court.
Now we address ourselves to the aspect that whether the complainant is entitled to the amount prayed for in the complaint?
The very admission of the opposite parties that they have received an amount of Rs.9 lakhs but the same was credited to the account of the complainant but that they have deposited an amount of Rs.75,000/- each in the names of Y.Sunil, N.Narasimha Reddy, N.Sujatha based on the oral instructions and also sanctioned loan of Rs.1 lakh on the FDR once again based on the oral instructions of the complainant is unacceptable and in itself amounts to deficiency in service .
There is no documentary evidence placed by the Bank to establish such transfer is based on the oral instructions of the complainant, when the complainant himself denies that he has given any such oral instructions. We also observe that the opposite party in the counter contended that they have filed O.S.No.605/2003 and contended that the complainant not able to defend the several cases filed by the opposite party, and only in order to escape his liability filed O.A.No.319/2001 and O.S.No.403/2001. It is also apparent on the face of it that these two cases were filed prior to the opposite party having filed their recovery suit and hence the contention of the opposite party that the complainant did so only to escape his liability and that he filed them after the opposite party has done so makes an absurd reading as the events are narrated upside down chronologically. The opposite party did not place any documentary evidence in support of their contention that the complainant availed several loans from one branch of the opposite party and transferred the same to the other branches and got the same deposited in several names and raised loans on the said FDR and transferred loan amounts availed by him to another branch.
The above contentions of the opposite party are awefully obfuscatory. In order to justify their unilateral handling of the monies that admittedly belonged to the complainant, the opposite parties resorted to several untenable pleas of which two essential circumstances have already been dealt with. Counsel for the opposite party lastly relied upon the pendency of some proceedings before the CBI without articulating as to how those proceedings have got in bearing upon the merits of this case. As a matter of fact today the parties filed one document each. In the first instance the counsel for the respondent filed a letter purported to have been addressed by them to the CBI as recently as on November,14,2009 which is hereby marked as Ex.B18 for the sake of convenience by which for the first time they sought to incorporate the name of the complainant herein in the charge sheet as accused saying that his name was omitted in the charge sheet.
This revelation by no other than the opposite parties themselves demonstrates that their reliance upon the pendency of some matters before the Civil Court is simply untenable and can hardly be taken as having any nexus with the subject matter of the complaint.
Counsel for the appellant/complainant also filed a copy of the charge sheet which again is marked as Ex.A15 for convenience to clearly show that the name of the complainant did not find a place in the said charge sheet. Thus the opposite parties totally fault in depriving the relief that the complainant is otherwise entitled as afterall his monies came to be handled by the bank as it pleased without any sort of authorization from the complainant even according to them which would had once render all their acts as unauthorized and illegally. Thus there is absolutely no impediment to grant the relief that the complainant sought in this complaint.
However, the opposite parties tried to rely upon three suits filed by them against the complainant one before the Civil Court and other two suits before the Debt Recovery Tribunal, Visakhapatnam to contend that on that basis that they nevertheless entitled to invoke bankers lien even in respect of these amounts for which the complainant is laying the claim. But this is equally absurd for the reason at the moment the matters are taken to the Civil Court or the DRT as the case may be the bankers lien if otherwise valid will have to be exercised only through the said Court that was moved for recovery. It is not for this Commission to offer them for advise but once the judicial process is initiated all the concomitants must be pursued within the four corners of such judicial remedy. Even otherwise it is very clear from the scope of those suits that they pertains to some different transactions as loans for purchasing house hold articles. In the case of OAs they did not even disclose the minimum details and in fact they kept the subject matter of those OAs guarded secrets. Thus keeping reliance upon those litigations which are act to take their own course in law have got nothing to do with the claim in this complaint.
Even though the complainants case is very clear the District Forum rather uncomprehensively turned him away saying that the complicated questions of facts have come up in this matter and therefore the matter should go to Civil Court. This approach suffers from obvious infirmities abdication of functions and refusal to exercise jurisdiction where the District Forum is very much possesses it. It is not open to relegate every matter to Civil Court routinely when it is capable of being resolved in the Fora constituted under the Consumer Protection Act. The consignment of a matter to a Civil Court after protracted litigation taking years in the Consumer Court would naturally entailed the questions of litigation. Whether the pursuit of remedy in a Consumer Forum would answer the description of pursuing the remedy in a wrong court is still a question open for debate . This casts heavy burden upon the complainant to vindicate his resort to the Consumer Fora before the Civil Court and infact it is also unwarranted because the Consumer Fora is very much having jurisdiction as articulated in the foregoing discussion. It is only in the rarest and rare cases that the Consumer fora can take to such recourse and even then there is absolutely no warrant in the provisions of the Consumer Protection Act like in Rent Control Act to refer the matters to the Civil Court . So the practice of dismissing the matters with an observation to the effect advising the parties to go to Civil Court is not proper and if such things have to be done they can be done only at the stage of admission. If really the Forum under the Consumer Protection Act finds that it did not possess jurisdiction in a given matter it can as well unequivocally give a finding rather than relegate the matter to the District Forum. For the reasons stated above, order of the District Forum cannot be sustained and deserves to be over turned.
To reiterate, in the absence of any instructions given by the complainant the act of the opposite party in transferring Rs.8,95,000/- into FDR and not even issuing FDR receipts to the complainant and without his consent closing the account on 23.10.2000 and once again not informing the complainant by its enquiry is an act of deficiency in service for which the Bank is liable to pay the complainant, amount in FDR i.e. Rs.8,95,00/- to the complainant In the result appeal is allowed in part directing the opposite party to pay Rs.8,95,000/- with interest at 9% from the date on which it was deposited in the FDR till the date of realization together with costs of Rs.5,000/- . Time for compliance four weeks.
Sd./MEMBER Sd./MEMBER Dt.07.12.2009