Before the Hon’ble State Consumer
Disputes Redressal Commission, West Bengal, at Premises being no. 11 A, Mirza
Ghalib Street, Kolkata – 700 087.
Complaint
Case no. CC/377/2014
In
the matter of :
Sri
Sujay Bakshi, & another
___Petitioners
- Versus –
State
Bank of India, & Others
______Respondents
BRIEF NOTES OF ARGUMENT
ON BEHALF OF THE PETITIONERS
FACTS
:
1.
That the Petitioner no. 1, is a Driver by
occupation and the Petitioner no.2, is house wife. The petitioner no.1, is only
earning member of his family. The petitioners are living their life in a
mediocre financial condition.
2.
That the Petitioners due to urgent need of money sold their
property being 2 ( Two ) Cottahas Land with two storied building thereon,
laying and situated at Mouza – Jagannathpur, Pargana Balia, Touzi No. 1523,
J.L. no. 27, R.S. no. 76, under R.S. Dag no. 95, in R.S. Khatian No. 62,
L.R.(Kri) Khatian no. 12, old L.R. Khatian no. 175 / 3, present L.R. Khatian
no. 500 & 501, Plaza Housing Society, being Plot no. 199, having holding
no. 3916, Plaza Housing, Jagannathpur, Mahestala, District South 24 Parganas,
to one Sri Pappu Kumar Shaw, Son of Sukhdeo Shaw, residing at premises being
no. 22, Orphan Gang Road, Police Station Watgange, Kolkata – 700 023, on
consineration value of Rs. 30,00,000/- ( Rupees Thirty Lakhs ) only.
3.
That
the said Purchaser Sri Pappu Kumar Shaw, Son of Sukhdeo Shaw,
residing at premises being no. 22, Orphan Gang Road, Police Station Watgange,
Kolkata – 700 023, obtain Housing Loan or Finance from M/s. Dewan Housing Finance Limited,
having it’s office at premises being no. Narendra Chandra Dutta Sarani, Kolkata
– 700 071, and whereas in pursuance thereof the respondent no. 4, issued a
cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty
Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises being
no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, in favour of the
Petitioners, towards the payment of the consideration money or value of the
property.
4. That
the Petitioners jointly maintain one Saving Bank Account with the State Bank of
India, Shibrampur Branch Janavilla, Village & Post Office – Joteshibrampur,
Biren Roy Road West, Kolkata – 700 141, being Saving Bank Account no. 30691667417.
The Petitioners deposited the said cheque being no. 000834, dated 24-09-2014,
for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United Bank of
India, Kolkata Branch, at premises being no. 4, Narendra Chandra Dutta Sarani,
Kolkata – 700 001, for enacashment of the cheque value.
5.
That
on 27th day of September’ 2014, the banker of the Petitioners being
the Respondent no. 2, herein credited Rs. 2,00,000/- ( Rupees Two Lakhs ) only,
instead of Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, on clearing of the
said cheque being no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees
Twenty Lakhs ) only, drawn on United Bank of India, Kolkata Branch, at premises
being no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, and therefore
your petitioners got astonished to know such clearance of lower amount of
money.
6.
That
the petitioners enquired about such purported clearing of the said cheque being
no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only,
drawn on United Bank of India, Kolkata Branch, at premises being no. 4,
Narendra Chandra Dutta Sarani, Kolkata – 700 001, with their banker being State
Bank of India, Shibrampur Branch Janavilla, Village & Post Office –
Joteshibrampur, Biren Roy Road West, Kolkata – 700 141, and whereas the banker
of the petitioners stated as due to mistake of officials who sit for clearing
has been occurred such wrong entry as of Rs. 2,00,000/- instead of Rs.
20,00,000/- and therefore the banker is trying to resolve such anomaly, as soon
as possible, and to credit the balance Rs. 18,00,000/- in the Saving Bank
Account of the petitioners.
7.
That
the petitioners visited the branch of the respondent no.2, herein on several
occasions, with a request to credit the balance amount of Rs. 18,00,000/- ( Rupees
Eighteen Lakhs ) only, in their Saving Bank Account, but all in vain.
8.
That
on 31st day of October‘ 2014, the respondent no.2, herein served one
letter being reference no. BR17/156, dated 31-10-2014, captioned as Fate of
Cheque No. 000834, dated 24-09-2014, stating inter alia as by mistake in CTS
amount was inserted as Rs. 2,00,000/- against Cheque no. 000834, and the same
was credited to the joint account of your petitioners, and given a copy of one
another letter being reference no. BR17/151, dated 28-10-2014, addressed to the
respondent no.4, herein captioned as Less payment Cheque no. 000834, dated
24-09-2014, by Rs. 18,00,000/- ( Rupees Eighteen Lakhs ) only, presented on
26-09-2014, stating inter alia stated about mistake and requesting for balance
payment thereof, with a xerox copy of said cheque and entry of the bank.
9.
That
the Petitioners states and submits that the petitioners are in urgent need of
money, and for such reasons alone they arranged themselves to sold out the
property to the purchaser, and whereas the purchaser made payment of the
consideration money of such property through obtaining housing loan from the
respondent no. 4, herein, and the respondent no. 4, herein in discharge of it’s
obligation and on behalf of the said purchaser issued one cheque being no.
000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only,
drawn on United Bank of India, Kolkata Branch, at premises being no. 4,
Narendra Chandra Dutta Sarani, Kolkata – 700 001, in favour of the petitioners.
The petitioners presented and deposited such cheque to their banker being the
respondent no. 2, herein for clearing and encashment of the value of the said
cheque, but less amount has been credited by the banker in the bank account of
the petitioners, and such act was admitted by the banker as has been occurred
due to mistake but such mistake has not been resolved till date and the
petitioners are suffering in several aspects and manners.
CAUSE OF ACTION :
That the Cause of action
for the present proceeding arose as on 27th day of September’ 2014,
while the respondent Bank credited less amount of the purported Cheque being
no. 000834, dated 24-09-2014, for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only,
drawn on United Bank of India, Kolkata Branch, at premises being no. 4,
Narendra Chandra Dutta Sarani, Kolkata – 700 001, and lastly on 31-10-2014,
while the respondent bank served one Letter being reference no. BR17/156, dated
31-10-2014, intimating and admitting such facts, but did not resolve their own
mistake, and continuing as such balance amount of Rs. 18,00,000/- ( Rupees
Eighteen Lakhs ) only, has not been still credited by the respondent bank in
the saving Bank Account of your Petitioners.
DOCUMENTS RELIED ON :
1. a copy of Pass Book Xerox - Annexure
– “A”
2. a copy of Letter dated 31-10-2014,
and Letter dated 28-10-2014, and copy of Cheque and Bank entry, - Annexure –
“B”
RELIEF SOUGHT FOR :
To direct the respondent / opposite
party no.1 to credit the balance value of the Cheque being no. 000834, dated
24-09-2014, drawn on United Bank of India, Kolkata Branch, at premises being
no. 4, Narendra Chandra Dutta Sarani, Kolkata – 700 001, as of Rs. 18,00,000/-
( Rupees Eighteen Lakhs ) only, together with the prevailing Bank rate of interest
from the date of 27th day of September’ 2014, till realization, to
your petitioner;
To direct the opposite parties /
respondents to pay compensation, as for the harassment, troubles, loss of
business, physical inconvenience and mental agony, suffered by the petitioner
from the purported activities and others by the opposite parties as assessed as
Rs. 10,00,000/- ( Rupees Ten Lakhs ) only to your petitioners;
To direct the opposite parties to
pay Rs. 10,00,000/- ( Rupees Ten Lakhs ) only, towards pecuniary damages,
arising out of breach of duty by the respondents / opposite parties, to the
Petitioners ;
To grant the cost of the proceedings
;
To grant any other relief or
alternate relief to the applicant / petitioner as found out by your Honour, in
the facts and circumstances of the Complaint.
DURING
TRIAL :
1. Written
version of the Opposite Party no. 1 & 2 being State Bank of India –
submitted on 13-10-2015 – relevant paragraph numbers 8, 9, 10, and 11, and
first paragraph at page number 5, which states as “ Be it mentioned here that
the Opposite Party Bank already credited Rs. 18,00,000/- ( Rupees Eighteen Lakhs
) only, on 09-02-2015, in the joint account being No. 30691667417 of the
petitioners”. It is mention that in those relevant paragraph number 8, 9, 10,
and 11, the opposite party being State Bank of India admitted the facts as
assailed by the petitioners in their petition of complaint.
Documents
relied on by the State Bank of India –
a) Letter dated 31-10-2014,
b) Letter dated 28-10-2014,
c) Photocopy of Cheque,
d) Statement showing credit of Rs.
18,00,000/-
2. Written
version of the Opposite Party no. 3, being United Bank of India – submitted on 13-10-2015 –
relevant paragraph number 12 & 17, and Annexure being the statement
thereof, which has relied on by the opposite party in support of the facts that
in terms of clearing Rs. 2,00,000/- ( Rupees Two Lakhs ) has been given through
one instrument being the said purported cheque, so far.
Paragraph
no. 12 – That
with regard to the contents of paragraph 23 of the instant complaint the
opposite party no. 3, states that the contents of letter dated 28-10-2014 are
denied and disputed. It is pertinent to mention here that the opposite party
no.3 had cleared the said cheque of the complainants according to the clearing
instruction of the Reserve Bank of India and debited Rs. 2,00,000/- from the
account of the opposite party no.4. thus the opposite party no. 3 cannot pay
any further amount after debiting from the account of the opposite party no.4
in one instrument. The opposite party party no.3 states that the opposite party
no.3, did not play any delay tactics or nasty game by saying that earlier claim
with SBI which should be settled first then the opposite party no.3 would pay
the difference amount as alleged by the State Bank of India in letter dated
28-10-2014. The copy of statement of A/C of the o.p. no. 4 is annexed hereto as
ANNEXURE A.”
Paragraph
no. 17 – “That
since the complainants have no account with United Bank of India, there exists
no relation of consumer and service provider between the complainants and the
opposite party no.3 and as such the complainants have not hired or availed any
services for a consideration from united bank of india, Kolkata branch.”
3. Written
Version of the Opposite Party no.4 – submitted on 13-10-2015 – relevant paragraph numbers
3(i), 5, and 8.
Contents of paragraph number 3(i) –
I say that the Opposite Party no.4 is a Housing Finance Company which has been
granted certificate of registration under the National Housing Bank Act 1987
and in the course of such business, the respondent no.4 had handed over a
cheque for Rs. 20,00,000/- drawn on United Bank of India, Kolkata in favour of
the complainants, being the entire loan amount obtained by one Pappu Kumar Shaw
who was the purchaser of Complainant’s property. Such facts has been admitted
by the complainants at pargraph 4 & 10 of the complaint.
Contents of paragraph number 5 –
with reference to paragraph number 4 of the complaint, I say that the Opposite
Party is a Housing Finance Company which has been granted certificate of
registration under the National Housing Bank Act 1987 and inb the course of
such business had provided a housing loan to Mr. Pappu Kumar Shaw for an amount
of Rs. 20,00,000/- and therefore handed over a cheque of Rs. 20,00,000/- drawn
on United Bank of India, Kolkata Branch and in the name of the complainants
herein who were selling their property to the said Mr. Pappu Shaw.
Contents of paragraph number 8 –
with reference to paragraph number 10 of the complaint, I say that the
Complaint admits that the opposite party no.4 herein, “in discharge of it’s obligatrion
and on behalf of the said purchaser issued one cheque being no. 000834 dated
24-09-2014 for Rs. 20,00,000/- ( Rupees Twenty Lakhs ) only, drawn on United
Bank of India, Kolkata Branch, at premises no. 4, Narendra Chandra Dutta
Sarani, Kolkata – 700001, in favour of the petitioners.”
4. EVIDENCE
- Evidence submitted by the Complainants and the Opposite Party number
1,2, and 3, herein. The Opposite Party no. 4, did not submit any Evidence in
present consumer proceeding. The evidences submitted by the complainants are
replica of the petition of complaint and the evidence submitted by the opposite
party nos. 1, 2, and 3, are replica of their written version.
5. Questionnaire
and reply has
been occurred in between the Complainants and the Opposite Party nos. 1, 2, and
3, and whereas the Opposite Party no. 4, did not participate in such endavour,
so far.
6. It is pertinent to submit that the
Opposite Party no.3, United Bank of India, placed one petition bearing MA no. 883 of 2015, arising out
of the present Consumer proceeding no. CC/377/2014, praying inter alia
dismissal of the petition of complaint as against the Opposite Party no.3,
herein. And whereas the Complainants filed their objection, and thereafter upon
necessary hearing, the Hon’ble State Commission, passed necessary order on
08-04-2016, as “ It has been stated in the petition that the Complainants
allegedly due to urgent need of money sold their property to one Sri Pappu
Kumar Shaw for a consideration of Rs. 30 lakh. The said purchaser Pappu Kumar
Shaw obtained loan from the OP No. 4 Dewan Housing Finance Ltd. And in
pursuance thereof the OP No. 4 issued a cheque bearing no. 000834 dated
24/09/2014 of Rs. 20 lakh drawn on UBI, Kolkata Branch in favour of the
Complainants towards payment of the consideration money of the property. The
Complainants thereafter deposited the said cheque in their joint saving account
with SBI, Shibrampur Branch.The OP No. 2, that is SBI, Shibrampur Branch
credited only Rs. 2 lakh instead of Rs. 20 lakh in the saving account of the
Complainants. Since the Complainants have no account with the UBI there is no
consumer – service provider relationship and the case against OP No. 3 is not
maintainable.
The Learned Counsel for the OP No.
3, has submitted that there was no privity of contract between the complainants
and the OP No. 3. It is submitted that so far as the clearance of the cheque is
concerned the op no. 3 acted in accordance with the instruction of op no.2 SBI.
It is contended that op no. 3 is not a necessary party in this case.
The Learned Counsel for the SBI OP
No. 2 has submitted that while clearing the cheque the amount war wrongly typed
as Rs. 2 lakh instead of Rs. 20 lakhs and it was a sheer mistake. It is
contended that UBI OP No. 3 could have detected the mistake and there was scope
on the part of OP No.3 to release the remaining amount of Rs. 18 lakh in favour
of the Complainants.
The Learned Counsel for the
Complainants has submitted that the entire facts have been stated in the
petition of complaint and the presence of OP No.3 is required in this case.
We have heard the submission made by
both sides and perused the papers on record. Having regard to the submission
made by both sides and on perusal of the papers on record, we are of the
considered view that for proper and effective adjudication the presence of OP
No.3 is required being a necessary party.”
7. SUBMISSION : in the facts and
circumstances, your petitioners are entitled to get relief in terms of their
prayer as sought for.
Through _______________
Advocate
Date : 03-09-2020
Place : Kolkata.
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