Judgment:
Per Mr. P.N. Kashalkar, Honble Presiding Judicial Member
1) Heard Mr. V.X.Dsilva, Adv. for the complainant and Mr.S.B.Prabhavalkar, Adv. for the O.P. The complainant has filed this complaint alleging deficiency in service on the part of Saraswat Bank in respect of DEMAT account he had opened with it. According to the complainant, the O.P. did not verify signatures on delivery instruction slips and released the shares. He had not given instructions to the bank to accept delivery instructions slips singed by anybody and to release the shares. The delivery instruction slips tendered in the bank were forged and fabricated. The telephone number appearing on those slips did not belong to him or to his attorney. So, it is the grievance of the complainant that without any lawful authority from the complainant, the O.P. bank released the shares from the DEMAT account. The bank had not taken reasonable diligence and had not shown ordinary prudence while releasing shares of the complainant. Hence, bank is guilty of deficiency in service. The complainant or his attorney had not signed delivery instruction slips for releasing shares. So, bank had clearly committed deficiency in service and thereby he suffered loss of Rs.28,12,876/- and claimed interest at the rate of 18% per annum besides that amount from 20/4/2004.
2) Before admission notice was issued and we heard Mr.S.B.Prabhavalkar, Adv. for the O.P./Bank. According to Mr.Prabhavalkar, there is delay of 9 months and 29 days in filing the complaint. The delay is not liable to be condoned easily. In the condonation of delay application filed subsequently (M.A.No.2247/2008) Ramchandra Monappa Nayak, C.A. filed affidavit and stated that complainant was Non Resident Indian and he was required to go to U.S.A. in connection with his employment. He could not follow up matter with the O.P. personally hence he had instructed C.A. to file consumer complaint. Because of hectic activities of the complainant, the delay occurred and it should be condoned. However, according to Adv. Prabhavalkar, this ground is a sweeping statement made by complainant when complaint is filed through C.A. Ramchandra Nayak. According to Mr.Prabhavalkar, the excuse put forth by the complainant seeking condonation of delay is lame excuse and on the basis of simple affidavit of Mr.Ramchandra Nayak, delay should not be condoned. Moreover, Shri Prabhavalkar also brought to our notice the fact that complainant Shri Ninad Lokre had opened DEMAT account with the Saraswat Bank in 2001 and since he was N.R.I. he has subsequently given P.A.O to his brother Mr.Sameer Lokre authorizing him to operate his DEMAT account. The power of attorney is registered with the O.P./Bank at registration No.437 and said Sameer Lokre has transferred and sold 4260 shares of I-Flex solutions between July-2003 to April-2004. Copies of all delivery instruction slips were duly signed by Mr.Sameer Lokre on behalf of the complainant. Therefore, the Bank pleaded that there was no substance in the complaint and complaint should be dismissed summarily.
3) We are finding that delay of 9 months and 29 days is not properly explained by the complainant though at our instance he had filed M.A.No.2247/2008 for condonation of delay. Virtually, there is no just and sufficient cause made out by the complainant to induce us to condone the delay. The complaint as well as M.A. for condonation of delay has been filed by C.A. of the complainant by name Ramchandra M.Nayak. When authority was given by the complainant to Mr.Nayak to file consumer complaint, it doesnt stand to reason that he should file consumer complaint so belatedly. Thus, we are not inclined to condone the delay. Consequently, we reject M.A.No.2247/2008 seeking condonation of delay.
4) Even on merits, Mr.Ninad Lokre complainant had given power of attorney to operate his DEMAT account maintained in Saraswat Bank in favour of his brother Mr.Sameer Anil Lokre of Goregaon (West) Mumbai. That power of attorney was registered with the Saraswat Bank and acting upon with this power of attorney Mr.Sameer Lokre was operating the DEMAT account and he ultimately committed fraud and forgery to deceive his brother. It has come in the complaint itself that he found that in the year March-2005 DEMAT showed that there was nil balance of shares. He had already filed prosecution against his brother and criminal cases are pending in the Court of Additional Chief Metropolitan Magistrate against one Mandar Kayande and his wife who were associates of Mr.Sameer Lokre and others. It would mean that the fraud and forgery was committed by Mr.Sameer Lokre and his associates taking the advantage of the fact that complainant was Non Resident Indian and not available in India and he had authorised Mr.Sameer Lokre to operate DEMAT account by giving power of attorney. In the circumstances, even on merit ex facie the complainant had no case against Saraswat Bank. Hence, there is no deficiency in service on the part of Saraswat Bank/O.P. ex facie to admit the complaint. Hence, we are inclined to pass following order.
Order:
1) M.A.No.2247/2008 which for condonation of delay is rejected.
2) Complaint stands summarily dismissed.
3) No order as to costs.
4) Copies of this order be sent to the parties free of cost.