State Consumer Disputes Redressal Commission
Sri Ram Mohan Rao Mullapudi, Srinagar ... vs State Bank Of India, Gunrock Branch, ... on 21 December, 2012
BEFORE THE A.P.STATE CONSUMER DISPUTES REDRESSAL COMMISSION : HYDERABAD. F.A.No . 896/2011 against C.C.No.1011/2006, Dist. Forum-1, Hyderabad. Between: Sri Ram Mohan Rao Mullapudi, S/o. Sri Somabrahmam, Aged : 63 years, Occ:Business, R/o. Plot No.16, Flat No.101, Prashanthi Niketan, Opp to DQ Animation, Srinagar Colony, Hyderabad. Appellant/ Complainant And State Bank of India, Gunrock Branch, Secunderabad, Rep. by its Branch Manger. Respondent/ Opp.party Counsel for the Appellant : M/s.P.Madhusudan Kumar Counsel for the Respondent : M/s. K.B.Ramanna Dora QUORUM: SMT.M.SHREESHA, HONBLE INCHARGE PRESIDENT, And SRI S.BHUJANGA RAO, HONBLE MEMBER.
FRIDAY, THE TWENTY FIRST DAY OF DECEMBER, TWO THOUSAND TWELVE.
Oral Order : (Per Sri S.Bhujanga Rao, Honble Member).
*** The unsuccessful complainant filed the appeal against the order dt.30.9.2010 of the District Forum-1, Hyderabad made in C.C.No.1011/2006, whereunder the complaint filed by the appellant/complainant seeking direction to opp.party to pay Rs.3 lakhs to the complainant, with interest, from the date of illegal clearance till the date of payment, was dismissed.
For the sake of convenience, the parties are described as they arrayed in the complaint.
The case of the complainant as set out in the complaint is that he is having account with the opposite party bank bearing SB account no.30034214830. The complainant has mistakenly issued a cheque bearing no.962680 dt.12.2.2006 for Rs.3 lakhs to one Mr.S.Anand Babu. Immediately, the complainant addressed a letter dt.11.2.2006 to the opposite party instructing to stop payment in respect of the afore said cheque issued to said S.Anand Babu. The opposite party received the said letter and acknowledged the same on 11.2.2006. Inspite of the said written instructions, from the complainant to stop payment in respect of the afore said cheque, the opposite party cleared the said cheque, in the month of May, 2006, causing huge monetary loss to the complainant. After coming to know about the said fact, the complainant addressed a letter dt.27.5.2006 to AGM, SBI, Region II, Zonal Office, Secunderabad requesting to credit the complainants account with Rs.3 lakhs, for wrongfully clearing Rs.3 lakhs cheque, inspite of the clear instructions to stop payment. The opposite party is liable to pay the said amount with interest at 24% p.a. from the date of clearance, till the date of payment, to the complainant. Hence the complaint.
Resisting the complaint, the opposite party filed written version contending that, only to harass and extract money from the opposite party bank, in collusion with Sri Anand Babu, who has withdrawn amount of the subject cheque, the complainant conveniently without making him as necessary party or even without filing any case against him for recovery of the amount, has filed the above complaint with false and baseless allegations.
The opposite party further contended that due to mischief of the complainant, the opposite party bank is not liable or even responsible to forego the amount of Rs.3 lakhs and other costs as claimed by the complainant, as the amount is public money. To this extent, the opposite party has also filed suit O.S.No.793/2006 on the file III Sr. Civil Judge, C.C.C., Secunderabad for declaration and recovery of the money against Sri Anand Babu and the complainant herein and the same was dismissed on 23.7.2008 holding that the payment is authorized and Sri Anand Babu, the first defendant is entitled for the amount under the cheque, the cheque was issued for the amount under the cancelled agreement. Aggrieved by the said judgement dt.23.7.2008, the opposite party herein preferred an appeal vide ASSR No.4185/2009 on the file of !st Addl.Chief Judge, Secunderabad, which is pending adjudication. Therefore, unless the appeal is decided, the complainant is not entitled for the amount. The complaint is therefore liable to be dismissed with costs to this opposite party.
During the course of enquiry, in order to prove his case, the complainant filed evidence affidavit and got marked Exs.A1 to A3. The opposite party filed evidence affidavit and got marked Exs.B1 to B7 .
Upon hearing the counsel for both the parties and on consideration of the material on record, the District Forum came to the conclusion that the subject matter is already pending before the Civil Court, as such, both parties can seek redressal before the Civil Court. Consequently, the District Forum dismissed the complaint.
Aggrieved by the said order, the complainant preferred the above appeal urging that the order of the District Forum in dismissing the very complaint, on the mere ground that the subject matter is already pending before the Civil Court, without referring to the subject context, is highly irregular, illegal and liable to be set aside. That the District Forum ought to have seen that the alleged pending civil proceedings between the parties have no bearing upon the consumer dispute, in so far as the rights against the respondent bank, in relation to the subject cheque, admittedly countermanded by the appellant. That the verdict of the Civil Court in the alleged pending civil proceedings have no bearing at all on the consumer dispute initiated by the appellant as against the respondent, as the said proceedings is instituted by the respondent bank for the restitution of the cheque amount from the payee of the cheque. That the District Forum ought to have seen that despite of existence of any civil recourse, the Consumer Forum has got exclusive jurisdiction to deal with the grievance of the potential consumer and therefore ought to have adjudicate the complaint on merits. The District Forum ought to have well appreciated the fact that the respondent itself filed the suit for recovery of the amount against the payee of the instrument, requiring no further proof of lapses, defaults and negligence for the unauthorized payment for which the respondent itself is directly responsible, accountable for restitution of the amounts to the appellant and so also the eventual recovery from the payee. The impugned order of the District Forum may be set aside.
Heard both sides.
Now the point for consideration is whether order of the District Forum is vitiated for misappreciation of fact or law?
The complainant has opened a NRE S.B.Account No.10001254473 along with his wife and operating the same with the opposite party bank. The complainant issued a cheque bearing no.962680 dt.12.2.2006 for Rs.3 lakhs in favour of one Sri S.Anand Babu in the said account vide Ex.B2 xerox copy of the cheque. Thereafter, the complainant by his letter dt.11.2.2006 vide Ex.A2 issued stop payment instructions to the opposite party bank in respect of the subject cheque. When Sri Anand Babu deposited the subject cheque with his banker SBH , the said bank presented the said cheque for clearing on 3.5.2006 and the opposite party collected the said cheque and credited the amount of Rs.3 lakhs to the account of Sri S.Anand Babu. After coming to know about the said fact, the complainant addressed a letter dt.27.5.2006 to AGM, SBI, Region II, Zonal Office Secunderabad requesting to credit the complainants account with Rs.3 lakhs for wrongfully clearing cheque for Rs.3 lakhs. All these facts are not in dispute.
From the above facts, it is evident that the complainant while giving stop payment instructions to the opposite party on 11.2.2006, deliberately issued the said cheque on 12.2.2006 to the said Sri S.Anand Babu.
It is an admitted fact that subsequently the opposite party filed suit O.S.No.793/2006 on the file of III Sr. Civil Judge, C.C.C., Secunderabad against the said Sri Anand Babu, Mullapudi Ram Mohan Rao, the complainant herein and State Bank of Hyderabad for declaration and recovery of sum of Rs.3 lakhs together with interest.
Along with the suit, the opposite party herein filed petition in I.A.No.2359/2006 in O.S.No.793/2006 under order 39 Rule I of CPC for issuing of temporary injunction restraining the second respondent (complainant herein) from claiming restoration of the same and the said petition was allowed granting interim injunction restraining the respondent from claiming restoration of sum of Rs.3 lakhs pending disposal of the suit.
After full fledged trial, the suit was dismissed on 23.7.2008 holding that the payment is authorised and the 1st defendant (Sri Anandi Babu) is entitled for the amount under the cheque, under the agreement between the complainant herein and Sri Anand Babu, as there was no loss to the complainant. The said facts are proved by Ex.B6 copy of the order made in I.A.No.2359/2006 and Ex.B7 copy of the decree and judgement made in O.S.No.793/2006. Aggrieved by the said judgement and decree, the plaintiff (opposite party herein) preferred an appeal vide ASSR. No.4185/2009 on the file of I Addl.Chif Judge, Secunderabad and the same is pending adjudication. It is also an admitted fact that the complainant herein, who is a defendant no.2 in the above suit, did not contest I.A.No.2359/2006, though the petition is filed seeking injunction restraining him from claiming restoration of sum of Rs.3 lakhs pending disposal of the suit and he did not question the injunction order made in the said petition against him. He did not also contest the suit, though received summons from the Court.
The fact that there are transactions in between the complainant and the said Sri S.Anand Babu is not denied by the complainant. The complainant conveniently did not add Sri S.Anand Babu as party to the complaint. The above facts strengthen the contention of the opposite party that the complainant with malafide intention and in collusion with Sri S.Anand Babu filed the present complaint to extract money from the opposite party, under the guise of stop payment instructions on 11.2.2006, only one day prior to the said cheque dt.12.2.2006. Further, when the complainant himself admitting that he has issued the subject cheque to Sri S.Anand Babu mistakenly, then he would have rectified the same by collecting the cheque back from the said S.Anand Babu. Admittedly, the complainant did not take any steps against the said Anand Babu for recovery of the cheque, though he issued instructions to stop payment. Though the complainant has got opportunity to prove that the said S.Anand Babu is not entitled to get the amount covered by subject cheque, in the suit, he did not contest the suit and he allowed the injunction order passed against him restraining him from claiming of restoration of the sum of Rs.3 lakhs from the opposite party Bank.
Moreover, the opposite party is a nationalized bank and money involved is public money, which it cannot make dual payment, where the cheque has been already cleared which, ought to be recovered, whether it is really unauthorized payment is the subject matter of the appeal, which has to be decided and if the court feels that the payment is authorized, the complainant is not entitled for any amount.
In view of the above facts and circumstances, we do not find any irregularity or illegality in the impugned order of the District Forum, to interfere with it.
In the result, appeal is dismissed confirming the order of the District Forum. But in view of the facts and circumstances of the case, there shall be no order as to costs.
INCHARGE PRESIDENT MEMBER Dt. 21.12.2012 Pm*