Naredra Kawde, Member:
[1] Complainant booked a residential flat with Keshavdeo Poddar and Co. for total consideration of Rs.7,99,350/- and relied on the allotment letter dated 01/12/1997 issued by the said builder/developer company. Amount of Rs.50,000/- in cash was paid as earnest money. Further amount of Rs.4,00,000/- was to be paid on 31/01/1998 and on failure to do so allotment was liable to be cancelled with forfeiture of Rs.50,000/- paid as earnest money. Amount of Rs.1,84,000/- was to be credited to the account of the complainant in the Oman International Bank S.A.O.G. located at Nariman Point, Mumbai (hereinafter to be referred as Opponent Bank). Said amount was transferred by Telegraphic Transfer (T.T.) from Oman International Bank S.A.O.G., Muttarah, Muscat. This amount was transferred by Mr.Mohamed Ashfaque from his account at Oman International Bank S.A.O.G., Muttarah, Muscat to the account of the complainant in the same Bank branch located at Mumbai. The amount was transferred from account of Mr.Mohamed Ashfaque located at Muttarah, Muscat on 25/01/1998 by Telegraphic Transfer and was to be credited next day on 26/01/1998. However, said amount was credited in the account of the complainant on 03/02/1998 under reference no. TT 980609.
[2] After constant persuasion, this information was made available about credit facility to the complainant by letter dated 27/05/1998. It is the grievance of the complainant on receipt of the amount by TT further payment was scheduled to be made to the builder/developer prior to 31/01/1998. Since, neither intimation about the credit nor actual credit was available till date; further payment could not be made to the builder as per the allotment letter. In view of this, the builder forfeited the earnest money of Rs.50,000/- and cancelled the allotment letter. Complainant attributed this deficiency in service for delay in crediting her account by the Opponent Bank and filed this consumer complaint claiming Rs.15,00,000/- together with an amount of Rs.50,000/- compensation for mental agony.
[3] Opponent Bank has contested the claim of the complainant by filing written version. Main ground stated in the written version is that the complaint has arisen out of the transaction between the remitting Bank i.e. Oman International Bank S.A.O.G., Muttarah, Muscat and the customer-Mr.Mohamed Ashfaque. Both the parties are situated outside the territorial jurisdiction on this Commission i.e. at Sultanate of Oman and hence on this ground alone, the present complaint is untenable and required to be dismissed with costs. Further it is stated that there is no privity of contract between the complainant and the Opponent Bank located in Mumbai. Amount was transmitted by Telegraphic Transfer from Oman International Bank S.A.O.G., Muttarah, Muscat for crediting the same to the account of the complainant in the Branch at Mumbai of the same bank. Sender, Mr.Mohamed Ashfaque in Muttarah did not made any grievance about the delay in transmitting the amount via Muttarah to the account of the complainant at Mumbai with Opponent Bank. Therefore, complainant has no locus-standi to file this consumer complaint as no deficiency whatsoever can be attributed against them.
[4] We have heard learned advocate Ms.Rashmi Manne for the complainant and Mr.Sanjiv Punalikar-advocate proxy for Mr.Budhanwalla and Co. for the Opponent Bank. We have perused the record placed before us. As contended in the written version, complainant could not establish the privity of contract between Bank located in foreign soil and herself as one Mr.Mohamed Ashfaque, one customer of Oman International Bank S.A.O.G., Muttarah, Muscat was a party to the transaction. Learned advocate tried to submit that credit of amount by way of transfer via Telegraphic Transfer was not received in the account of the complainant on the same day i.e. 25/01/1998 or even thereafter till 03/02/1998. Therefore, though after much persuasion, complainant came to know about the delayed credit. Therefore, arrangement to make further payment of Rs.4,00,000/- on account of purchase of the flat could not be made prior to the date set out by the builder i.e. 31/01/1998. Therefore, the entire transaction of the flat purchase was cancelled as per the stipulations in the allotment letter and even the amount of Rs.50,000/- paid as earnest money has been forfeited. Cost of the flat was Rs.7,99,350/-. Flat was booked in the year 1999. Therefore, it is evident that it is not possible to purchase the said flat at the rate then prevailing. Therefore, quantification of the flat to Rs.15,00,000/- together with interest is justified, as argued by learned advocate of complainant.
[5] Learned advocate of the Opponent Bank judicial notice of remittance by T.T. from bank abroad was taken. The Opponent Bank is not at fault as transfer of the amount from Oman International Bank S.A.O.G., Muttarah, Muscat was delayed and therefore, no timely credit to the account of the complainant in the Opponent Bank could be given. Though, bank abroad is carrying same name and having branch at Mumbai yet the Opponent Bank located in Mumbai is operating its business only after obtaining required permission from the Reserve Bank of India. Therefore, Opponent Bank has nothing to do with day-today working of the bank at Muttarah. Admittedly, deficiency in service has occurred due to delay of transmitting the amount from Muttarah to the Opponent Bank at Mumbai and not due to the Opponent Banks fault. Complainant ought to have impleded Oman International Bank S.A.O.G., Muttarah, Muscat as party for proper adjudication of the claim. Moreover, the customer at Muttarah, Muscat, namely, Mr.Mohamed Ashfaque did not make any grievance whatsoever about the delay in transmitting this amount from Muttarah, Muscat to Mumbai in the account of the complainant.
[6] On perusal of the record and going through the documents and pleadings of the parties, we are of the considered view that no deficiency in service whatsoever is occurred in the office of the Opponent Bank at Mumbai. It was the Oman International Bank S.A.O.G., Muttarah, Muscat at whose fault, delay in crediting the amount has occurred. As provided U/s.2(1)(m) of the Consumer Protection Act, 1986, the Opponent Bank has juristic person having separate entity. Therefore, no liability can be fastened against the Opponent Bank for the fault of Bank overseas. Interestingly, the complainant has not impleded the builder/developer as a party against whom grievance of cancelling the allotment of flat and forfeiture of the earnest money is made. Therefore, we are not in position to appreciate submission of complainant whether the flat was booked by the complainant actually and earnest money was forfeited.
[7] Consumer complaint also suffers on the point of limitation as rightly argued by the advocate of the Opponent Bank. Intimation by the Mumbai branch of the Opponent Bank was issued on 27/05/1998 to the complainant on the address given. In the intimation letter, it is stated that amount via T.T. was received and credited to the complainants account on 03/02/1998. Complainant was also supplied with statement for the month of February, 1998. This is the final communication relied upon by the complainant. Consumer complaint ought to have been filed within two years from the date of this intimation i.e.prior to 26/05/2000. However, complainant has filed the consumer complaint on 24/11/2000 that too without prayer of condonation and delay condonation application.
[8] In view of the aforesaid observations, complainant failed to establish deficiency in service against the Opponent Bank. We do not find any merit in the complaint and, therefore, the complaint has to fail. Accordingly, we pass the following order.
ORDER
Consumer complaint stands dismissed.
Parties to bear their own costs.
Parties be furnished certified copies of this order.