State Consumer Disputes Redressal Commission
Punjab & Sind Bank vs R.K.G., D.A.V. Senior Secondary Public ... on 26 August, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.2196 of 2010.
Date of Institution: 29.12.2010.
Date of Decision: 26.08.2013.
1. Punjab & Sind Bank, Guru Har Sahai, Tehsil Jalalabad, District
Ferozepur.
2. RCC Branch of Punjab & Sind Bank, Sector-22, Chandigarh,
through its Manager.
.....Appellants.
Versus
1. R.K.G., D.A.V. Senior Secondary Public School, Faridkot Road,
Guru Har Sahai, Tehsil Jalalabad, District Ferozepur, through its
Manager.
....Respondent/complainant
2. M/s Blue Star Limited, SCO-1, Madhya Marg, Sector-26,
Chandigarh through its Manager.
3. M/s Tulsi Brothers, Ferozepur, through its Manager/Proprietor.
...Respondents/opposite parties no.2 & 3.
First Appeal against the order
dated 10.11.2010 of the District
Consumer Disputes Redressal
Forum, Ferozepur.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
...................................
Present:- Sh. Ranjit Singh Kakkar, Advocate for the appellants.
Sh. Munish Goel, Advocate for respondent no.1.
Sh. Ravinder Rana, Advocate for respondent no.2. Respondent No.3 Exparte.
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First Appeal No.2196 of 2010 2INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
Punjab & Sind Bank, Guru Har Sahai, Tehsil Jalalabad, District Ferozepur and another, appellants (In short "the appellants") have filed this appeal against the order dated 10.11.2010 passed by the learned District Consumer Disputes Redressal Forum, Ferozepur (in short "the District Forum").
2. Facts in brief are that R.K.G., D.A.V. Senior Secondary Public School, respondent no.1/complainant (hereinafter called as "respondent no.1") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act"), making the narrations that that respondent no.1 has its saving bank account No.9305 with appellant no.1-Punjab & Sind Bank which is being operated through its Principal Sh. Rajan Chhabra. Respondent no.1, for the purchase of water cooler from respondent no.2, sent a demand draft No.471169 dated 03.03.2001 worth Rs.28,725/- payable at appellant no.2 branch through respondent no.3. After a few days, it was informed by respondent no.2 through respondent no.3 that the D.D. has been misplaced and asked to get the duplicate demand draft prepared from the bank and send it.
3. Appellant no.1 bank took approximately two months to issue a duplicate demand draft to respondent no.1. In the meantime, summer season was off and respondent no.1 got postponed the water cooler and cancelled the duplicate demand draft and the bank credited the amount to the account of respondent no.1. Before issuing the duplicate demand draft to respondent no.1, the appellant bank took the certificate from appellant no.2 bank to the effect that no payment of the demand draft, which was lost, has been withdrawn by anybody else. First Appeal No.2196 of 2010 3
4. On April 8, 2010, the appellant bank, without any notice, deducted the amount of Rs.28,725/- from the account of respondent no.1 on the pretext that the original draft dated 03.03.2001 worth Rs.28,725/- has been got encashed by respondent no.2 in the month of August, 2001, without informing respondent no.1. The duplicate demand draft was issued to respondent no.1 by obtaining certificate of appellant no.2 branch.
5. Appellant no.1 returned the cheque no.885896 dated 03.03.2010 as un-cleared which was issued in favour of National Insurance Company for the payment of insurance premium of Rs.13,888/- regarding the school van and respondent no.1 received a letter dated 27.04.2010 from the National Insurance Company. It was the responsibility of the bank to inform or to give notice to respondent no.1 regarding the deduction of any amount from his account, whereas respondent no.1 was informed on 07.05.2010, which caused harassment. The appellants and respondents no.2 & 3 are guilty of adopting unfair trade practice and deficiency in service and they have caused harassment and agony to respondent no.1.
6. It was prayed that the appellants and respondents no.2 & 3 may be directed to return the amount of Rs.28,725/- along with interest and to pay compensation of Rs.50,000/- as Rs.4500/- as litigation expenses.
7. In the written version filed on behalf of the appellants, preliminary objections were taken that the complaint is false and frivolous and vexatious. Respondent no.1 school is a commercial organization, being run to earn profit and a large number of teachers and other employees are engaged to run the school for commercial purpose and respondent no.1 is not a consumer and the complaint First Appeal No.2196 of 2010 4 deserves dismissal. Complicated questions of law and facts are involved and the civil court is competent. Respondent no.1 has not come to the Forum with clean hands and has used the process of law and is estopped by its own act and conduct to file the complaint.
8. On merits, it was admitted that DD No.471169 dated 03.07.2001 for Rs.28,725/- and not dated 03.03.2001, was issued in favour of M/s Blue Star Limited, Chandigarh (respondent no.2). The said draft was got encashed from appellant no.2 branch on 09.08.2001 by respondent no.2. However, on 14.09.2001, on a letter of inquiry sent by appellant no.1 dasti through respondent no.1, it was wrongly and mistakenly informed by appellant no.2 that the said DD in question is still outstanding, whereas the same was got encashed prior to this i.e. on 09.08.2001. Respondent no.1 in connivance with respondents no.2 & 3 got issued a duplicate demand draft against request letter dated 16.10.2001 of respondent no.1, from appellant no.1. The duplicate demand draft No.471878 dated 16.10.2001 was issued and the amount was reverted back in the account of respondent no.1. There is no proof of sending the original demand draft through postal authorities to respondent no.2, nor there is any confirmation from any of the postal authorities that the demand draft was sent which was lost.
9. Respondents no.2 & 3 were having knowledge that the DD in question has already been encashed by respondent no.2 on 09.08.2001. On reconciliation of the record by RCC Branch of the bank at Chandigarh, it was noticed that the payment against the DD in question has been reverted back in the account of respondent no.1 by appellant no.1, whereas the said original draft was got encashed earlier. Respondent no.1 was immediately informed. In the reply to the letter, respondent no.1 informed vide letter dated 24.03.2010 that they First Appeal No.2196 of 2010 5 have not purchased anything from respondents no.2 & 3 and they are taking up the matter with respondents no.2 & 3. On this confirmation, the amount has been rightly deducted from the account of respondent no.1, because respondent no.2 has encashed the DD in question and errors and omission are always to be corrected. All other allegations were denied and it was prayed that the complaint may be dismissed with costs.
10. In the written version filed on behalf of respondents no.2, preliminary objections were taken that the complaint is barred by limitation. Respondent no.1 is seeking remedy for recovery of the amount pertaining to the year 2001 and the same cannot be legally enforced. No action was initiated against respondent no.2 and the complaint is not maintainable. The complaint is maintainable only against the appellants, who have recently made unlawful deduction on 08.04.2010 from the account of respondent no.1 after the expiry of period of limitation, to recover the debt in question. The complaint has not been filed through competent and authorized person and is bad for mis-joinder of party. There is no cause of action. Similar other preliminary objections as taken by the appellants were raised.
11. On merits, it was submitted that respondent no.1 placed an order for supply of specific model of water cooler which was subject to placing or order against advance payment of its price at concessional rates under the scheme of the company. It was direct transaction by respondent no.1 with the answering respondent and the demand draft No.471169 dated 03.07.2001 worth Rs.28,725/- was directly payable in the name of respondent no.2, but respondent no.1 wrongly mentioned the date of issuance of draft as 03.03.2001, whereas the correct date was 03.07.2001. After the receipt of the said draft, the payment of the First Appeal No.2196 of 2010 6 draft was credited into the account of answering company on 09.08.2001 through clearing. The delay in dispatch of delivery of the draft in question is at the instance of respondent no.1 itself, or at the instance of postal authorities, as admitted by respondent no.1 in correspondence with the appellants.
12. After the receipt of order against advance payment from respondent no.1, the execution of order for water cooler was in process of manufacturing as per specifications of respondent no.1. In the meantime, respondent no.2 instructed the answering respondent to postpone the purchase of water cooler and its delivery till further orders on the pretext that the summer season was going off. Respondent no.1 school itself backed out from purchasing the water cooler and the amount in question stood forfeited. For the last 9 years, respondent no.1 remained silent and never claimed any right against respondent no.2, as respondent no.1 procured the refund from the bank after issuance of duplicate bank draft. Respondent no.1 is estopped by its act and conduct to file the complaint. Respondent no.1 has committed fraud with the appellants, by procuring the duplicate draft and encashing it and there is no deficiency in service on the part of respondent no.2. Other allegations were denied and it was prayed that the complaint may be dismissed with costs.
13. In the written version filed on behalf of respondent no.3, similarly preliminary objections were taken. On merits, it was submitted that respondent no.1 approached the answering respondent only to know the procedure of the company, for supply of a specific water cooler which was subject to placing of order to the company against advance payment. It was direct transaction between respondent no.1 and respondent no.2. Even the demand draft in question was directly First Appeal No.2196 of 2010 7 made payable to respondent no.2. There is no privity of contract between respondent no.1 and the answering respondent and the answering respondent has been unnecessarily impleaded, to harass the dealer. The complaint is time barred. Allegations of the complaint were denied and dismissal of the complaint was prayed.
14. Rejoinder was filed, in which assertions of the complaint were reiterated and that of the written replies were controverted. It was further submitted that appellant no.1 has further deducted a sum of Rs.61,413/- from the account of respondent no.1 as interest on the amount of the draft in question.
15. Parties led evidence in support of their respective contentions by way of affidavits and documents.
16. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that on the basis of letter of appellant no.2, appellant no.1 issued a duplicate draft and the proceeds of the draft in question were credited in the account of respondent no.1 in the year 2001 itself. Thereafter, the appellants kept silent for about nine years and now in the year 2010, the appellant bank has not only deducted the amount of draft i.e. Rs.28,725/-, but also the interest on the amount of said draft i.e. Rs.61,413/-. The total amount of Rs.90,138/- has been deducted from the account of respondent no.1. Respondent no.1- school neither cheated appellant no.1-bank nor committed any fault or got issued the duplicate draft and thereafter its cancellation. It was a mistake of appellant no.2 which informed appellant no.1 that the proceeds of the draft are lying in their branch and the duplicate draft was issued. The deduction of any amount after passing of nine years, without any notice, from the account of respondent no.1-school is First Appeal No.2196 of 2010 8 wrong and illegal. The ultimate beneficiary of the mistake is respondent no.2, but any claim against respondent no.2 is time barred. If the officials of the appellants have committed any mistake, they are bound to bear the consequences. Respondent no.1-school cannot be put to any loss for fault of the employees of appellant no.2-bank itself. The deduction of any amount from the account of respondent no.1 amounts not only to deficiency in service, but also unfair trade practice on the part of the appellants and respondents no.2 & 3. The complaint was allowed and appellant no.1 was directed to credit in the account of respondent no.1 the amount deducted by the bank pertaining to the dispute in question, along with interest @ 6% p.a. from the date of deduction till realization. Appellant no.1 was also directed to pay Rs.3,000/- as compensation.
17. Aggrieved by the impugned order dated 10.11.2010, the appellants have come up in appeal.
18. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellants and respondents no.1 & 2.
19. Respondent no.3 has not contested the appeal and was proceeded against exparte.
20. The appeal has been filed on the grounds that the District Forum failed to appreciate that the present complaint is the result of fraud committed by respondent no.1 in connivance with respondents no.2 & 3. The appellant bank cannot be made to use the public money, which respondents no.2 & 3 have received, as respondent no.1 backed out from the order of purchasing the material from respondent no.2 through respondent no.3. The duplicate demand draft was got issued First Appeal No.2196 of 2010 9 from appellant no.1 by mis-conceiving the facts and it was on the ground that respondent no.1 has lost the demand draft, whereas the same has already been encashed by respondent no.2. On knowing that the original demand draft has already been encashed by respondent no.2, the duplicate demand draft was cancelled. Respondent no.1- school is a commercial organization and is not a consumer and the complaint is not maintainable. Respondent no.1 was duly informed about the deduction of the amount vide letters Ex.R-6 and Ex.R-7. The order passed by the District Forum is liable to be set aside and the appeal may be accepted.
21. On the other hand, the counsel for respondent no.1 has contended that the impugned order passed by the District Forum is legal and valid and there is no ground to interfere with the same and the appeal may be dismissed.
22. We have considered the respective submissions advanced on behalf of the parties and have thoroughly scanned the entire record and other material placed on the file.
23. Respondent no.1 got prepared the demand draft bearing No.471169 dated 03.07.2001 worth Rs.28,725/- for purchasing a water cooler. The water cooler was not purchased and respondent no.1 sought for the duplicate draft. Before issuing the duplicate demand draft, appellant no.1 asked appellant no.2 about the original demand draft and appellant no.2 replied vide letter dated 14.09.2001 that the proceeds of the amount of the draft have not been collected by anybody and on the basis of the said letter of appellant no.2, the duplicate demand draft was issued by appellant no.1 and the same was credited in the account of respondent no.1. Later on, it transpired that the original demand draft was also got encashed. Letter Ex.R-9 was First Appeal No.2196 of 2010 10 written by Head Office, Re-conciliation Department of Punjab & Sind Bank and it was mentioned that the demand draft No.471169 for Rs.28,725/- was paid on 09.08.2001. On 16.10.2001, the duplicate demand draft No.471878 in lieu of the above draft was issued and the proceeds were paid to the party's account, by cancelling it. On receipt of this letter, the appellant deducted the amount of the draft along with interest from the account of respondent no.1. For the fault of appellant no.2, which mentioned that the proceeds of the original demand draft were not encashed, the duplicate demand draft was issued and the amount was credited way back in 2001 in the account of respondent no.1 and after the Re-conciliation Department came to know about the mistake, it asked appellant no.1 to deduct the amount, but that could not be done for no fault of respondent no.1. Re-conciliation Department should have initiated the inquiry and fixed the responsibility of the official, who wrote the letter, mentioning that the said draft was not encashed, but that was not done and to save the official, the amount has been illegally deducted from the account of respondent no.1. The order passed by the District Forum is detailed and speaking and there is no ground to interfere with the same.
24. Sequel of above discussion, the appeal filed by the appellant is dismissed and the impugned order under appeal dated 10.11.2010 passed by the District Forum is affirmed and upheld. No order as to costs.
25. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to respondent no.1/complainant by way of a crossed cheque/demand draft First Appeal No.2196 of 2010 11 after the expiry of 45 days under intimation to the learned District Forum and to the appellants.
26. Remaining amount as per the order of the District Forum shall be paid by appellant no.1 to the respondent no.1/complainant within 45 days of the receipt of copy of the order.
27. The arguments in this appeal were heard on 14.08.2013 and the order was reserved. Now the order be communicated to the parties.
28. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member August 26, 2013.
(Gurmeet S)