IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN MONDAY, THE 29TH MARCH 2010 / 8TH CHAITHRA 1932 WP(C).No. 28234 of 2007(J) -------------------------- PETITIONER(S): --------------- 1. V.M.MUHAMMED BASHEER, ETTAPURAM HOUSE, FEROKE COLLEGE P.O., FEROKE, KOZHIKODE DISTRICT. 2. V.M.KOIDEEN, ETTAPURAM HOUSE, FEROKE COLLEGE P.O., FEROKE, KOZHIKODE DISTRICT. 3. V.M.ISMAIL SALEEM, ETTAPURAM HOUSE, FEROKE COLLEGE P.O., FEROKE, KOZHIKODE DISTRICT. 4. V.M.MASHOOQ, ETTAPURAM HOUSE, FEROKE COLLEGE P.O., FEROKE, KOZHIKODE DISTRICT. 5. V.M.HASHIM, ETTAPURAM HOUSE, FEROKE COLLEGE P.O., FEROKE, KOZHIKODE DISTRICT. BY ADV. SRI.C.P.MOHAMMED NIAS RESPONDENT(S): --------------- 1. THE MANAGER, KARUR VYSYA BANK LTD., 11/128, PRAMOD BUILDING, CHEROOTTY ROAD, KOZHIKODE-673001. 2. THE BANKING OMBUDSMAN, KERALA AND UNION TERRITORY OF LAKSHADWEEP, C/O RESERVE BANK OF INDIA, RBI BUILDING, BAKERY JUNCTION, THIRUVANANTHAPURAM-695033. R2 BY ADV. SRI.P.JACOB VARGHESE, SC, RBI R1 BY SRI.P.S.GEORGE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 28234 of 2007 EXHIBITS ------------ PETITIONER'S EXHIBITS ------------------------------- P1: TRUE COPY OF THE PARTNERSHIP DEED DT. 1.4.98 IN RESPECT OF THE FIRM ROYAL TRADING COMPANY. P2: TRUE COPY OF THE COMPLAINT FILED BY THE PETTIIONERS BEFORE THE 2ND RESPONDENT P3: TRUE COPY OF THE ORDER DT. 31.7.07 ISSUED BY THE 2ND RESPONDENT ON EXT. P2 COMPLAINT. //TRUE COPY// PA TO JUDGE THOTTATHIL B. RADHAKRISHNAN, J. ....................................................................... WP (C) NO. 28234 of 2007 ............................................... Dated this the 29th day of March, 2010 J U D G M E N T The writ petitioners filed a complaint before the Banking Ombudsman invoking the provisions of the Banking Ombudsman Scheme 2006 issued under the Banking Regulation Act. The Banking Ombudsman does not get power or authority to proceed beyond what is expressly provided under the scheme. - See Parameswaran Pilla Vs. Banking Ombudsman (1999 (3) KLT 831). In the case in hand, the petitioners moved the Banking Ombudsman by filing Exhibit P2 contending that the Bank had committed deficiency of service in as much as it permitted a person, not authorized by the partnership firm, to transact the business and that person, who had no authority, was meddling with the account. The fraudulent WP (C) NO. 28234 of 2007 2 transactions are stated to be entered into with the junction of the Bank. The Ombudsman issued Exhibit P3 stating that fraud is not a ground for interference within the provisions of the Banking Ombudsman Scheme and therefore the Banking Ombudsman recorded that it is not possible to admit the complaint of the petitioners. While the learned counsel for the petitioners may be right in stating that such decision ought to have been taken after hearing the petitioners, a perusal of different grounds on which a complaint could have been made under the 2006 Scheme and the grounds on which the complaint could have been entertained or rejected, would show that fraud is not a ground on which the Banking Ombudsman could enter on an adjudication. In such circumstances I do not find any necessity to interfere with the impugned decision in exercise of the visitorial jurisdiction under Article 226 of the Constitution. Learned counsel for the petitioners states that the first WP (C) NO. 28234 of 2007 3 respondent Bank has since initiated proceedings under the RDB Act and the impugned decision should not stand in the way of the petitioners raising all defence in the DRT proceedings including any plea as to fraud as may be available before that Tribunal. Obviously, Exhibit P3 does not answer the allegations of fraud either way. The said order only states that Ombudsman does not have jurisdiction. Therefore no question, inter se the petitioners and the first respondent, on the merits or demerits of the contract between the parties has been answered by the Ombudsman. Subject to the clarifications stated immediately above, this writ petition is dismissed. No costs. THOTTATHIL B. RADHAKRISHNAN JUDGE. rkc