BANK OF AMERICA N.A. vs Rajesh Kumar Mittal

-THIS appeal is directed against order dated 3.10.2001 passed by District Forum, Kasturba Gandhi Marg, New Delhi, in Complaint Case No. OC/82/99- entitled Rajesh Kumar Mittal v. Bank of America & Ors.

BRIEFLY stated, the relevant facts are that the respondent No. 1 (complainant before the District Forum) had filed a complaint alleging deficiency in service on the part of the appellant on the ground that the respondent No. 1 had a non-resident external account bearing No. 6226 with respondent No. 2 UCO Bank. The respondent No. 1 had remitted US D 7800 for crediting in his above said account, through the appellant/Bank of America. Accordingly the appellant had sent a cheque No. 009667 dated 4.12.1997 for amount Rs. 2,91,096/- to respondent No. 2. However, the same was not accompanied by any covering letter or memo giving details of the remittance or the rate of conversion. The grievance of the respondent No. 1 before the District Forum, therefore, was that the rate of conversion of US D 7800 was higher on the date of remittance of the amount and as such lesser amount had been credited to his account. Accordingly, the respondent No. 1 had sought clarifications from the appellant directly, as well as, through respondent No. 2. But since his entreaties in this regard were ignored, the respondent No. 1 was constrained to file a complaint before the District Forum praying for directions to the appellant to pay the difference between the authorised banking conversion rate for 7800 $ together with interest @ 18% p.a. from the date of remittance i.e. 4.12.1997 till payment together with damages and cost. The stand of the appellant in its reply/written version filed before the District Forum was that there was no record with the appellant regarding the transaction in question and despite its letter dated 7.7.1999 seeking better particulars of the transaction, the respondent No. 1 and respondent No. 2 had failed to do the needful so as to enable the appellant to trace out the relevant record. The appellant had also raised preliminary objection that the respondent No. 1 was not a consumer qua the appellant and as such the complaint filed by respondent No. 1 was pre-mature and devoid of merit.

The respondent No. 2 however had in his reply/written version substantiated the claim of the respondent No. 1 that the amount of 7800 $ had been remitted through appellant for crediting in his NRE account held with respondent No. 2 and that a Bankers Cheque amounting to Rs. 2,91,096/- had been received on 4.12.1997 from the appellant without any covering letter or memo advice or any other document. It was further stated on behalf of the respondent No. 2 that at the request of respondent No. 1, the respondent No. 2 had sought clarification from the appellant regarding the conversion rate of US D and had also written to the appellant vide letter dated 21.5.1998, but the appellant had failed to respond to the same.

THE learned District Forum on the basis of material on record held that there was deficiency in service on the part of the appellant and directed the appellant to pay a sum of Rs. 9,360/- (being the difference in conversion rate of US D as on 4.12.1996) together with interest @ 12% w.e.f. 4.12.1996 till payment, as well as, directed the appellant to pay Rs. 2,000/- as compensation, for the harassment caused to respondent No. 1 and further a sum of Rs. 2,000/- towards the cost of litigation. The appellant aggrieved by the aforesaid orders preferred the above mentioned appeal before this Commission.

WE have carefully perused the documents/material on record, as well as, have heard the learned Counsel for the parties. WE have also carefully gone through the written submissions filed on behalf of the appellant. The appellant has challenged the impugned order mainly on the ground that the appellant has no records of the transaction in question and despite letter dated 7.7.1999 addressed to respondent No. 2 the details of the same had not been furnished nor has a copy of the cheque in question been forwarded to the appellant so as to enable the appellant to trace out the relevant records of the transaction. Furthermore despite the specific order of the learned District Forum dated 15.11.1999 directing the respondent No. 2 to supply a copy of the alleged cheque No. 009667 to the appellant, the same has not been furnished by the respondent No. 2. It is, therefore, contended that the finding of the learned District Forum that there is deficiency in service on the part of the appellant is erroneous and unjustified in the circumstances. So far as the said contention of the appellant is concerned we have gone through the affidavit filed by way of evidence on behalf of respondent No. 2 UCO Bank. In the affidavit of Sh. Alok Chatterjee, Sr. Manager of respondent No. 2 UCO Bank it has been specifically stated that the cheque bearing No. 009667 for Rs. 2,91,096/- was received from the appellant without any covering letter or memo advice and that the said cheque was sent for local clearing on 6.12.1997. The non-availability of the photocopy of the cheque in question with the respondent No. 2 has been adequately explained on the ground that since the cheque was sent for clearing and due payment had been received in respect thereof from the appellant no photocopy of the same was retained by the respondent No. 2 UCO Bank. Respondent No. 2 had also annexed a copy of the credit voucher and the clearing register whereby the receipt of the cheque from the appellant, as well as, the despatch of the same for clearance to the appellant has been recorded. The version of the facts as stated by respondent No. 1 has, therefore, been duly authenticated by the stand of the respondent No. 2 UCO Bank whereas the appellant has failed to justify the contention raised by it. On the contrary it is unimaginable that a transaction worth several lacs of rupees is not traceable with the appellant. Furthermore, it cannot be imagined that the respondent No. 2 UCO Bank had credited such a huge amount in the account of respondent No. 1 without having received the said amount, in clearance, from the appellant. It has also been contended by the appellant that it has not been clarified by respondent No. 1 in his complaint as to whether the remittance of 7800 US D had come from some overseas Bank or had been received by way of deposit of cheque in the account of respondent No. 1. As regards the said contention it is admitted by the parties that prior to the filing of the complaint there were personal and telephonic communications between the appellant and respondent Nos. 1 and 2 and despite that the appellant had never deemed it necessary to find out the basic information from the respondent No. 1. As such the above said contention of the appellant also being devoid of merit cannot be sustained. The appellant has also contended that there was no relationship of consumer and service provider between the appellant and respondent No. 1, we are however, unable to sustain the same in view of the fact that the appellant is dealing in "Foreign Exchange" and if the transaction has been carried out through the appellant i.e. the remitted amount of 7800 US D has been routed for crediting into the account of respondent No. 1 through the appellant, the appellant has thus provided services to respondent No. 1. Therefore, in view of the discussion we do not find any merit in the present appeal filed by the appellant and as such the same is dismissed with no order as to costs. The above mentioned appeal stands disposed of in above terms. Appeal dismissed.