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Judgment
THE complainant opened an Savings Bank account on 1.7.1991 with the first respondent Bank and was allotted S.B. A/c. No. 1982. As on 8.7.1991 he as having an outstanding balance of Rs. 1,01,100/- to his credit. While so, he left India for Saudi Arabia on 17.7.1991 from where he left for New York and returned only on 11.9.1991. On his return to India, he fell ill and could not move about. He issued a cheque for Rs. 1,00,000/- which was returned with the endorsement insufficient funds. Immediately he contacted the Branch Manager of the first respondent Bank. He handed over the pass book showing that an amount of Rs. 1,00,000/- was already transferred on 8.7.1991 to the account bearing 1972 belonging to one Mukhesh Khatri. When questioned as to how such a transfer was made without his consent or knowledge he could not get any satisfactory explanation from the opposite party. Hence the complainant issued a notice dated 31.7.1992 for which a reply was issued on 20.8.1992 stating that on oral instructions, an amount Rs. 1,00,000/- was diverted to the account of Mukhesh Khatri. THE complainant never gave such an oral instruction. Hence he approached the District Forum for a direction to credit the said amount of Rs. 1,00,000/- with interest in his account and to pay damages of Rs. 25,000/-.
IN the counter filed by the first respondent, it is stated that the complainant was introduced to the Bank by Mr. Mukhesh Khatri who is also having an account, Current Account No. 886, in the name of M/s. Costa Mark Associates of which Mr. Mukhesh Khatri is the proprietor. The complainant is a resident of Malakpet and admittedly he is having an account with the first opposite party Bank at Malakpet Branch. The opposite party Bank branch is situated at a distance of 12 kms. from the complainant. The purpose of opening account in the first opposite party branch where Mr. Khatri is also having an account is to facilitate inter se transfers for moneys from one another. IN fact all the credits made in the account of the complainant are made by Mr. Khatri only. So also the cheque entries which are made in the account of the complainant only show that money was transferred to the account of Mr. Khatri only. There were nine transactions done between 1.7.1991 and 5.9.1991 and not a single cheque was issued in favour of "self". It is further stated that as the complainant wanted to credit a sum of Rs. 1,00,000/- to Mr. Khatri account on 17.7.1991 and as the balance available in his account fell short of Rs. 7,000/-, he might have asked the said Khatri to deposit the said amount of Rs. 7,000/- to enable him to transfer Rs. 1,00,000/- from his account. This must be with respect to the share or other business transactions between the complainant and the said Khatri for which there is an agreement dated 14.5.1992 and this must be in pursuance of the agreement dated 14.5.1992 between the complainant and Mr. Khatri evidencing share business. It is only when the complainant failed to recover the amount payable by Mr. Khatri the complainant wanted to throw blame on the Bank and in evidence he issued a self cheque in his favour for Rs. 1,00,000/- knowing that there is no balance in his account. As the money was transferred on his oral instructions, the complainant is not entitled to any relief in this complaint. The complainant examined himself as P.W. 1 and marked Exs. A1 to A9. While the opposite party examined its Manager as R.W. 1 and marked Exs. B1 to B10. Both P.W. 1 and R.W. 1 supported their respective stands in their evidence.
The point that arises for consideration is whether the complainant is able to prove any deficiency on the part of the opposite parties-Bank ? If so, to what relief he is entitled to ?
THE whole question revolves upon the power of the Bank to transfer money from one account to another account on oral instructions. It is admitted that the complainant was having a balance of Rs. 1,00,000/- as on 1.7.1991 in his S.B. A/c 1982 with the opposite party-Bank. He issued a cheque for the said sum of Rs. 1,00,000/- on 29.5.1992 which was returned with an endorsement "insufficient funds". THE contention of the opposite parties is that as on 8.7.1991 the complainant was having an amount of Rs. 94,100/- to his credit and Mr. Khatri, friend of the complainant, issued a cheque for Rs. 7,000/- in favour of the complainant and the said amount was accordingly credited to his account. So by 17.7.1991 the complainant was having a balance of Rs. 1,01,100/- in his account. At this stage, the complainant requested the Bank over phone to transfer a sum of Rs. 1 lakh from his account to the account of 972 of M/s. C.M.A. Investments belonging to Mr. Khatri. THE opposite party sought to justify its stand that the transfer was accordingly noted in the passbook which is in possession of the complainant and he never protested the same. Even subsequently the complainant issued a cheque for Rs. 1,000/- in September, 1991 and leaving a balance of Rs. 100/- and the said withdrawal of Rs. 1,000/- through cheque in the name of his daughter, Smt. Asima Kanam was also entered in his passbook. Ex. A1 is the cheque dated 29.5.1992 for Rs. 1,00,000/-. Under this self cheque the complainant wanted to withdraw Rs. 1,00,000/- on 29.5.1992. Ex. A2 is an endorsement from the Bank that there are insufficient funds to clear the cheque for Rs. 1,00,000/- which is dated 29.5.1992. Ex. A3 is the pass book showing the entries in the account of the complainant. Ex. A4 is the notice to the Manager of the opposite party Bank dated 8.7.1992. Ex. A5 is the lawyer''s notice issued on behalf of the complainant for which he received Ex. A6 reply. Exs. A7, A8 and A9 are the medical reports about the health of the complainant which are in the month of November, 1991. THEse are all the documents filed by the complainant. THE opposite party filed certain documents of which Ex. B1 is the account sheet of Current Account No. 933. Ex. B2 is the copy of the account for account number 972. Ex. B3 is also a similar account sheet for account No. 886. Ex. B4 is the account sheet maintained by the opposite party Bank for the account 1982 belonging to the complainant. Ex. B5 is the copy of Ex. A4. Ex. B6 is no other than copy of Ex. A5. Ex. B7 is Account Copy of Ex. A6. Ex. B8 is a xerox copy of the pass book for account No. 1982 belonging to the complainant. So also Ex. B9. Ex. B10 is the undertaking given by Mukhesh Khatri that he is liable to pay some money to the complainant and has given the schedule of payment. It appears to be a final settlement made between the parties on 14.5.1992. THEse are all the evidence produced by the opposite party-Bank. C.A. 886 is the account of M/s. Costa Mark Associates of which Mukhesh Khatri is the proprietor opened with the opposite party-Bank. Mukhesh Khatri was having another account 972 as C.M.A. investments. Exs. B1 to B3 are filed to show that Mukhesh Khatri was having different accounts and the complainant was transferring money to Mukhesh Khatri. These documents in our view does not clinch the issue in question. Merely there were number of transactions between two parties, it cannot be presumed or resumed that the complainant has issued instructions to the Bank to transfer substantial amount of Rs. 1,00,000.00 without even issuing a cheque. The contention of the complainant is that he left for Saudi from Madras on 17.7.1991 and returned to India only on 11.9.1991 is not denied. It is also not denied that the complainant had issued a cheque for Rs. 1,00,000/- on 29.5.1992. When the cheque was bounced with an endorsement "insufficient funds" the complainant contacted the Manager immediately who delivered the pass book showing the transfer of Rs. 1,00,000/- from his account on 8.7.1991 to the account number 972 belonging to Mukhesh Khatri. When he disputed about this unauthorized transfer, the Manager promised that he would look into the matter and advised the complainant to give one month''s time to the staff to verify the records. It is the case of the complainant that on 8.7.1992 he approached the Manager as there was no satisfactory reply, he gave notices to the Manager in Ex. A4 and also Ex. A5 which is dated 31.7.1992. Ex. B5 is the copy of Ex. A4. Hence the issue of this notice is admitted. In this notice it is clearly mentioned about the bouncing of the cheque of Rs. 1,00,000/- and his approaching the Manager to find out for such an action, and the Manager sought time till 1.7.1992 and that he approached the Bank on 8.7.1992 but nothing was done by the opposite party. There is no reply to this notice. The issuance of notice is not denied. As this notice contains almost full picture of all the events that took place till then. It is incumbent upon the opposite party/Bank to issue a reply. The opposite party knows about the bouncing of the cheque even on 29.5.1991 itself. So from 29.5.1991 till 8.7.1991 the opposite party had more than one month''s time to verify and issue a reply to the complainant. Nothing of this sort was done. Therefore, the complainant waited for another three weeks and issued a lawyer''s notice Ex. A5 on 31.7.1992 again reiterating all the above facts. Then for the first time the Bank-opposite party comes out with their theory transferring of Rs. 1,00,000/- from the account of the complainant on telephonic instructions. It is not explained why the Bank took so much time to come out with this theory.
IN Ex. A6 it is stated that the transfer of Rs. 1,00,000/- was reflected in the pass book of the complainant. The sum of Rs. 1,000/- was withdrawn in September, 1991 by his daughter. The relevant entry evidencing transfer of Rs. 1,00,000/- was also entered in the pass book at that time and, therefore, the complainant knows about it. The complainant had returned to INdia only on 11.9.1991 and the drawal of Rs. 1,000/- by his daughter was a few days before he landed in INdia. As seen from Ex. A3 a sum of Rs. 7,000/- was credited to the account of the complainant on 6.7.1991 and the amount of Rs. 1,00,000/- was transferred to the account of 972 on the same day. There is no dispute that a sum of Rs. 7,000/- was transferred by cheque by Mukhesh Khatri, perhaps, with a view to show that the balance in the account of the complainant becomes more than Rs. 1,00,000/- so that one lakh rupees can be withdrawn. Although, the opposite party-Bank strained a lot to impress upon us that the account 1982 opened by the complainant was purely for the purposes of running share business with Mukhesh Khatri who in fact was responsible for introducing the complainant to the opposite party Bank and opening of the second account and as such it is quite probable that the complainant must have given telephonic instructions for transfer of the money from his account to the account of 972. The learned Counsel for the opposite party-Bank, Mr. Muralinarayan Bung also relied on the entries made in the account of the complainant to show that most of the entries show transfer of money from the account of Mukhesh Khatri. It is disputed by Mr. M.V. Ramana, the learned Counsel for the complainant that all the transactions in the account of the complainant have no reference to the account of Mukhesh Khatri but only a few of them and as such it cannot be accepted. Even assuming that some transactions have some reference to Mukhesh Khatri or that there is an agreement for doing share business between them, it does not necessarily follow that the transfer of money from one account to another was authorised. Still the question is whether the said amount was withdrawn with the consent of the complainant or not ? Xerox copy of the account of the complainant maintained by the Bank in respect of the complainant shows that on that day a sum of Rs. 40,000/- was debited which was struck off. It is also pertinent to note that Ex. B2, a statement of account copy No. 972 that C.M.A. Investments also shows similar striking. In the transfer form Annexure-II of Ex. B4 in the transfer voucher dated 17.7.1992 in words as well as in figures first the sum of Rs. 40,000/- was written and later it was corrected to Rs. 1,00,000/-. These corrections in all the relevant entries clearly point out that there is something fishy in the transaction. The Bank also could not come forward with their explanation for return of the cheque immediately. To this there is absolutely no proof that there was any telephonic talk by the complainant to transfer a sum of Rs. 1 lakh on 17.7.1992. The case of the complainant is that he had been to Madras in the morning enroute Saudi Arab as such there is no scope to give such instructions. We are not able to believe the version of the opposite party that there was telephonic instruction in the absence of any proof in that regard. It is very easy for the Bank to transfer amounts on the ground that they received a message from the party or telephonic call from the party. It would be sad day if such claims putforth by the Bank are accepted. Precisely, for this reason the Supreme Court in a decision reported in M/s. Hyderabad Commerce v. Indian Bank & Ors., AIR 1991 SC 247, observed : "We are constrained to observe that such functioning of a nationalised is detrimental to public interest and if it follows the practice of transferring money of its customers to some other persons account on oral authority, people will loose faith in the credibility of the Bank."
On the basis of this authority, we hold that the opposite party has no valid authority to transfer a sum of Rs. 1 lakh from the account of the complainant to the account of Mukhesh Khatri. Hence we find that there is deficiency of service on the part of the opposite party-Bank.
IN the result, we allow the complaint and direct the Bank-opposite party to restore Rs. 1 lakh with interest at 12% to the account of the complainant from the date of the transferring the amount i.e. 8.7.1991 till the date of realisation and credit the sum to S.B. 1982 belonging to the complainant. After awarding of interest, we cannot award any damages. Hence no damages are awarded. Time for compliance six weeks. Complaint allowed.