State Consumer Disputes Redressal Commission
State Bank Of Bikaner And Jaipur vs Vipan Kumar Son Of Des Raj on 12 December, 2012
First Appeal no. 27 of 2009 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH
First Appeal No. 27 of 2009
Date of institution : 07.01.2009
Date of Decision : 12.12.2012
State Bank of Bikaner and Jaipur, Main Branch, Station Road, Madangarh
Kishangarh, Distt. Ajmer, Rajasthan, through its Branch Manager.
....Appellant/OP no.2
Versus
1. Vipan Kumar son of Des Raj, Prop. Of M/s Bansal Marble, Near
Gandhi Arya High School, Near Sekha Phatak, Barnala, Tehsil and
Distt. Barnala.
...respondent no.1/ complainant
2. State Bank of Patiala, ADB Branch, Purana Bazar, Barnala through
its Branch Manager.
3. M/s Radhe Marble and Granites, Makrana Road, Madangarh
Kishangarh, Distt. Ajmer, Rajasthan through its Branch Manager.
...respondents /OP no.1&3
First Appeal against the order dated
06.11.2008 of the District Consumer
Disputes Redressal Forum, Sangrur.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Argued by:-
For the appellant : Sh. Dinesh Kumar, Advocate for
Sh. Sanjeev Goyal, Advocate
For respondent no.1 : Sh. Tribhawan Singla, Advocate
For respondent no.2&3 : Ex-parte
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER:
This is OP's appeal under section 15 of the Consumer Protection Act (hereinafter referred to as the Act) against the order dated 06.11.2008 passed by the Learned District Consumer Disputes Redressal Forum, Sangrur (herein after referred to as the District Forum) vide which the complaint was allowed and the OPs were directed to pay to the complainant a First Appeal no. 27 of 2009 2 sum of Rs.71841/- along with interest @9% per annum and Rs.3,000/- as cost of litigation.
2. The present complaint was filed by Vipan Kumar-
complainant/respondent no.1 alleging that he is running a marble shop to earn his livelihood through self employment and got prepared a bank draft for a sum of Rs.71841/- payable at State Bank of Bikaner and Jaipur which was issued in favour of M/s Radhe Marble and Granites, Madangarh Kishangarh, Distt. Ajmer. The OP no.3 had sent the marble to the complainant believing that the payment would be given through bank draft. The draft was sent to OP no.3. The OP no.3 however, informed the complainant that the draft had not been received, upon which the complainant tried to find out the demand draft but could not succeed. He then requested the State Bank of Patiala-OP no.2/appellant to stop payment and to issue a non payment advice for issuing a duplicate draft. The complainant however, got the information that the said draft has been credited to the account of OP no.3 due to which OP no.2/appellant refused to give the certificate of non payment. The complainant then filed a complaint no. 612 of 2008 but the same was dismissed without touching merits of the case on the ground that the demand draft number was wrongly mentioned by the complainant. It however, came to know that State Bank of Patiala-OP no.1 has changed the name of payee in the said demand draft after cutting the name of OP no.3 and wrote the name of Ashok Kumar upon which the payment was made by OP no.2 to Ashok Kumar. The contention of the complainant is that the act of OP no.1 is not only deficiency in service but amounts to unfair trade practice who issued the same demand draft to two different persons. The complainant therefore, requested the OP no.1 to refund the amount of Rs.71841/- along with interest but they did not. The complainant filed the present complaint to direct OP no.1 to refund the amount of Rs.71841/- along with interest @18% per annum from 14.06.2007 till realization along with Rs.10,000/- as litigation expenses and Rs.15,000/- First Appeal no. 27 of 2009 3 for mental agony and harassment. He also wanted directions to the appellant to issue non payment advice to the effect that the said demand draft has not been credited in the account of OP no.3.
3. The State Bank of Patiala-OP no.1 contested the complaint admitting that a demand draft was issued by them in favour of Radhe Marble and Granites at the request of the complainant and the same was handed over to the complainant. The said demand draft was payable at State Bank of Bikaner and Jaipur- OP no.1. It was dispatched by the complainant to OP no.3. It was also admitted that the complainant informed them on 14.06.2007 that the said demand draft was lost or misplaced and requested to issue duplicate demand draft. It was also admitted that when the complainant informed them they issued a certificate and also requested the appellant to issue non payment advice if the amount of demand draft had not been paid. When enquired the appellant told the complainant that they had received a draft in favour of Ashok Kumar and the cutting thereon was authenticated by the authorized signatory against which payment has been made. It was denied if OP no.1 had written the name of Ashok Kumar on the said draft. They denied if there was any deficiency in service on their part and if they are liable to make any payment.
4. The OP no.2/appellant also contested the complaint alleging that the same is barred by resjudicata because the previous complaint filed by the complainant was dismissed. It was alleged that the District Forum has no territorial jurisdiction to try the complaint and otherwise also complicated question of law and facts are involved which should be tried in a Civil Court. On merits it was admitted that the OP no.3 had not produced a demand draft for payment but it was in the name of Ashok Kumar which was written by striking out the name of OP no.3 and the cutting had been attested by the issuing authority. It is admitted that the payment against the said draft was First Appeal no. 27 of 2009 4 made on 18.05.2007 and therefore, non payment advice could not be issued. They denied if there was any deficiency in service on their part and if they are liable to pay any compensation.
5. The notice sent to OP no.3 for 01.08.2008 was not received back. After a period of 30 days the respondent was proceeded against ex-parte.
6. Both the parties were given opportunity to produce their evidence in support of their contention.
7. After hearing the Ld. Counsel for the parties and perusing the record, the Ld. District Forum allowed the complaint vide impugned order dated 06.11.2008. The appellant has challenged the same through this appeal.
8. We have heard the arguments of the Learned Counsel for the parties and have perused the record.
9. The contention of the learned counsel for the appellant is that the demand draft which was initially issued in the name of OP no.3 was presented to it which was payable to Ashok Kumar whose name had been written after scoring out name of OP no.3. The cutting was attested by the issuing authority and therefore, they made the payment of said amount to Ashok Kumar. However, when we peruse the reply filed by OP no.1 which had issued the draft it becomes clear that the same had been issued in favour of OP no.3 and no cutting was made therein by them nor the cutting was attested. The complainant also had deposed that the draft was got prepared in favour of OP no.3 and it was sent to the said OP for payment but was misplaced. The complainant informed the OP no.1 on 14.06.2007 vide Ex.C-2 upon which a non payment certificate Ex.C-3 was issued. The OP no.1/appellant sent a letter Ex.C-4 to the appellant for issuing non payment advice but about three months later the appellant informed vide Ex.C-5 that First Appeal no. 27 of 2009 5 the said draft was not in favour to OP no.3 but it was in favour of Ashok Kumar and the payment against it had already been made on 18.05.2007. It is not disputed by the learned counsel for the appellant that initially the draft was prepared in favour of OP no.3 and the name of Ashok Kumar was mentioned after scoring out the name of OP no.3 however, they did not seek the advice of the issuing bank i.e. OP no.1 to confirm whether the draft has been issued in favour of Ashok Kumar and the cutting was attested by them or not. Needless to mention, that when there was cutting with respect to the name of payee, the amount should not have been paid by the appellant without confirming the facts relating to cutting and the name of the payee. The deficiency in service on the part of the appellant is clear in this respect.
10. The contention of the learned counsel for the complainant/respondent is that the appellant was hand in glove with Ashok Kumar to whom the payment was made against the draft even though there was cutting in respect of the payee and the name of the Ashok Kumar has been inserted subsequently. Due to this payment the complainant suffered a loss of Rs.71,841/- because he had to make the payment of that amount to OP no.3 to satisfy his claim. The learned District Forum therefore, rightly directed the appellant to pay the aforesaid amount along with interest and litigation expenses. The impugned order is perfectly just and proper and does not call for any interference. We are therefore, of the opinion that there is no merit in this appeal and the same is accordingly, dismissed with cost. Litigation cost are assessed at Rs.5,000/-, which shall be paid by the appellant to the complainant/respondent no.1.
11. Amount of Rs.25,000/- was deposited by the appellant on 07.01.2009 with this Commission. The complainant/respondent no.1 would be entitled to withdraw the said amount with interest accrued thereon, which shall be remitted by the registry to the complainant/respondent no.1 after the expiry First Appeal no. 27 of 2009 6 of the period of revision, if no stay order is received from the Hon'ble National Commission.
Parties are left to bear their own costs. Copies of the order be sent to the parties free of costs.
(Jagroop Singh Mahal) Presiding Judicial Member (Vinod Kumar Gupta) Member 12th December, 2012 Rashmi