State Consumer Disputes Redressal Commission
The Branch Manager vs Ekbal Singh on 24 September, 2008
STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK STATE CONSUMER DISPUTES REDRESSAL COMMISSION:ORISSA:CUTTACK C.D. APPEAL NO.351 OF 1998 From an order dated 12.03.1998 passed by the District Consumer Disputes Redressal Forum, Sambalpur in C.D. Case No.281 of 1997 The Branch Manager, (designated as Chief Manager), State Bank of India, Service Branch, Post Box No.536 A Block, 11, Sansad Marg, New Delhi-110 001. Appellant -Versus- 1. Ekbal Singh, S/o. Late Sarb Singh, Proprietor of Chhabra Agencies, Mariwaripara, resident of Modipara, P.O/P.S/Dist- Sambalpur. Respondent 2. Post Master, Head Post Office, At/P.O/Dist- Sambalpur. 3. Branch Manager, State Bank of India, Sambalpur Bazar Evening Branch, Nayapara, Sambalpur. Proforma Respondents For the Appellant : M/s. S.P. Das & Assoc. For the Respondents : M/s. P.N. Mishra & Assoc. PRESENT : THE HONBLE SMT. BASANTI DEVI, MEMBER A N D SHRI SUBASH MAHTAB, MEMBER. O R D E R
DATE:-
24TH SEPTEMEBER, 2008.
The Branch Manager, State Bank of India, Service Branch, Post Box No.536 A Block, 11 Sansad Marg, New Delhi, who is opposite party No.3 in C.D. Case No.281 of 1997, has filed this appeal challenging the order dated 12.03.1998 of the District Forum, Sambalpur directing him to refund the draft amount viz. rupees 19,960/- with 18% interest per annum from 10.10.1997 till final payment and cost of proceeding rupees 1000/- to the complainant / respondent No.1.
2. The facts of the case in brief is that the complainant purchased hosiery products from M/s. Manoj Hosiery Factory, Delhi worth rupees 19,960/-. Complainant obtained two Bank Draft each for rupees 9,980/- in favour of partners of the firm Hari Kumar and Darsan Kumar from Branch Manager, State Bank of India, in short, S.B.I., Sambalpur Bazar Evening Branch, Nayapara, Sambalpur, opposite party No.1 / respondent No.3 in favour of opposite party No.3 / appellant on 10.10.1997. Complainant sent both the Bank drafts by registered post through Postmaster, Head Post Office, Sambalpur, opposite party No.1 / respondent No.2 on 13.10.1997 to M/s. Manoj Hosiery Factory, F-46, Shastrinagar, Delhi-110052. After a reasonable period of parting of both drafts when complainant learnt from M/s. Manoj Hosiery Factory that said firm has not received the registered post containing the Bank Drafts, complainant protested before the opposite party No.1 on 07.11.1997. Complainant also requested opposite party No.2 to send message to opposite party No.3 to stop payment as per the aforesaid lost Bank Drafts and as per the advice of opposite party No.2, complainant paid telegram charges and opposite party No.2 sent telegram to opposite party No.3 for this purpose. Opposite party No.2 had also written a letter dated 21.11.1997 to opposite party No.3 to stop payment. But opposite party No.3 as per a letter intimated opposite party No.2 that proceeds of Bank drafts have been paid on 28.11.1997 which fact opposite party No.2 intimated the complainant vide letter dated 16.12.1997.
3. In the C.D. Case, opposite party Nos.1 and 2 have only filed written versions and had contested the claim whereas opposite party No.3 has been set ex-parte.
4. Opposite party No.2 had taken the plea that once the Bank drafts are produced before the Drawer Bank, the Drawer Bank cannot stop payment to the payee. Moreover, opposite party No.3 is only a service Branch and it does not make cash payment on drafts directly to the payee or the holder of drafts and payments as per Bank Drafts are to be made through a collecting Branch. Service Branch / opposite party No.3 had also no scope to identify the proper recipient. Therefore, opposite party No.3 has not acted negligently.
5. The case of the opposite party No.1 is that complainant had sent the registered letter through Head Post Office, Sambalpur which has not been delivered to the addressee which he has ascertained from the delivering post office viz. the Chief Post Master, Ashok Vihar Head Post Office, Delhi. Still enquiry is going on to find out the missing link. At the same time, opposite party No.1 has stated that complainant has been requested to prefer claim for payment of compensation on receipt of which it is to be settled. Opposite party No.1 has challenged the maintainability of the C.D. Case against him since he has been protected in view of provision under Section 6 of the Indian Post Offices Act. Thus, opposite party Nos.1 and 2 had claimed for dismissal of the C.D. Case they having committed no deficiency in service to the complainant.
6. After going through the case of the complainant and opposite party Nos.1 and 2, the District Forum vide order dated 12.03.1998 did not held opposite party No.1 liable for missing of the registered post in view of the provision under Section 6 of the Indian Post Office Act. However, advised complainant to claim for compensation as per the postal rules. District Forum also did not held responsible or negligent opposite party No.2 in this respect in view of the fact that by sending telegram and letter as aforesaid to opposite party No.3 to stop payment under the aforesaid bank drafts, opposite party No.2 did the best to stop payment on said two Bank drafts to the unauthorized persons. But, the District Forum has taken a strong adverse view on opposite party No.3 in becoming highly negligent and deficient in service to complainant in allowing unauthorized persons to get money through the said Bank drafts in spite of intimations received to stop payment as aforesaid from opposite party No.2.
7. Being aggrieved against the aforesaid orders of the District Forum, opposite party No.3 has filed this appeal.
8. We have heard the learned counsels appearing from both sides and perused the xerox copies of letters and correspondence between the parites made in respect to the subject matter in dispute.
9. In the C.D. Case, opposite party No.3 / appellant in spite of service of notice of the C.D. Case did not appear and contest the allegations lebelled against him. He has not denied about receipt of telegram and letter dated 21.11.1997 to stop payment sent by opposite party No.2. In spite of best effort taken by opposite party No.2 in respect to stop payment, opposite party No.3 has made payment as per said Bank drafts to unreal payees who have practiced fraud. With such observation, the District Forum found fault with opposite party No.3 in entertaining these two Bank drafts in negligent manner produced by unauthorized persons and passed the aforesaid impugned order against him for causing deficiency in service to the complainant. We are to examine how far this order of the District Forum is justified.
10. We find that the opposite party No.3 for the first time has came up with his case and plea as per the appeal memorandum. As per said appeal memorandum, opposite party No.3 has denied to be negligent and deficient in service to the complainant relating to encashment of aforesaid amount of the Bank drafts. He has stated that said two drafts were encashed by the payees in favour of M/s. G.M. Styles Pvt. Ltd. which were deposited by this firm in its account at Bank of Baroda, Pusa Road, New Delhi, which sent the Bank drafts for clearance to the Branch of appellant Bank. As the appellant Bank had no other alternative but so clear the same, cleared the same on 29.10.1997. After clearance, when he received request of opposite party No.2 as per telegram dated 07.11.1997 and letter dated 21.11.1997, appellant Bank had informed the Bank of Baroda and requested to return the money under said two drafts. But, Bank of Baroda vide advice dated 27.11.1997, informed him that refund of money is not possible as transferee of the drafts viz. M/s. G.M. Styles Pvt. Ltd. has already received the amount. According to the appellant in the process of reversing the entry by crediting the suspense account and defeating its draft account on 28.11.1997 a computerized intimation has been sent to opposite party No.2 that 28.11.1997 is the date of payments as per two drafts. The appellant Bank did not send the drafts for collection. The Bank of Baroda was to be satisfied about genuineness of the payees. Immediate after receipt of aforesaid intimation from opposite party No.2, he had taken all attempt to get refund of the amount under two drafts which was already credited to the account of Bank of Baroda on 29.10.1997. Thus, he is not at fault or negligent. His further case is that after receipt of notice in the C.D. Case, he had sent reply dated 02.03.1998 to opposite party No.2 to file the same before the District Forum which he received on 13.03.1998. But, by that date, judgment in the C.D. Case was pronounced on 12.03.1998. After that though he had moved District Forum through advocate to set-aside the ex-parte orders passed against him, the same was disallowed by the District Forum vide order dated 06.04.1998. However, the District Forum has taken a view that opposite party No.2 had defended the appellant as per his written version.
11. It is not disputed by any of the opposite parties that the complainant by registered post through opposite party No.1 had sent to M/s. Manoj Hosiery Factor, Delhi aforesaid two Bank drafts drawn in favour of opposite party No.3 and the registered postal cover containing said two Bank drafts have not reached the addressee and are lost during transit. According to the complainant in spite of intimation to stop paying through opposite party No.2 vide aforesaid Telegram and letter dated 21.11.1997, opposite party No.3 (appellant) made payment to the unauthorized payees on 28.11.1997. Therefore, alleging deficiency in postal and Banking service, complainant had filed the C.D. Case. The District Forum observed that since opposite party No.3 has not contested the allegation lebelled against him and did not come forward to deny that the telegram and letter were not received by him, he has committed wrong by making payment on those two Bank drafts. But it is clear from the case of opposite party No.3 as has been stated in the appeal memorandum that he is a Service Branch and on presentation of the said drafts for clearance by the Bank of Baroda except allowing clearance, he cannot stop payment being a drawer of the draft. Besides this, the proceeds of the drafts were already credited to the account of the Bank of Baroda on 29.10.1997 before he could receive message to stop payment as per the telegram and the letter dated 21.11.1997. However, attempts were made by him thereafter to get refund of the amount under two drafts which was refused by the Bank of Baroda. The opposite party No.2 as per his written version has also tried to defend opposite party No.3 in this respect to the extent that opposite party No.3 being only a Service Branch, it does not make payment of draft directly to the payees or the holders of drafts and it pays the amount of drafts through collecting Branch who can only be satisfied about the bonafides and identity of the holder of the draft. Besides this, payment of a draft issued by one Branch of a Bank against another Branch of same Bank cannot be refused by the Branch of same Bank. The District Forum has also dealt as per its impugned order that opposite party No.2 has partly contested the allegation brought against opposite party No.3. Thus, we find from these materials that opposite party No.3 from the beginning had attempted to defend himself having no scope to refuse clearance when the Bank of Baroda had produced the bank drafts before he received intimation through telegram and letter dated 21.11.1997. In all probability, opposite party No.3/ appellant in the circumstance had no scope to stop payment when the bank drafts were produced for clearance by the Bank of Baroda. Therefore, opposite party No.3 / appellant cannot be found with fault in respect to stop payment as per said two drafts. The District Forum has erred in law and facts holding opposite party No.3 / appellant responsible for causing loss and damage to complainant by deficiency in service. Therefore, the impugned order of the District Forum is not sustainable.
12. In the result, the appeal is allowed on contest without cost. The impugned order dated 12.03.1998 passed against the opposite party No.3 / appellant in C.D. Case No.281 of 1997 is hereby set-aside.
Records received from the District Forum may be sent back forthwith.