State Consumer Disputes Redressal Commission
Sbi vs Harbhajan Singh on 20 July, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No. 1303 of 2007
Date of institution: 24.09.2007
Date of decision : 20.07.2012
State Bank of India, Agricultural Development Branch, G.T. Road, Bathinda
through its Senior Branch Manager.
.....Appellants
Versus
1. Harbhajan Singh s/o Sh.Heera Lal Singh, Sole Proprietor of
Harbhajan's Institute of Competitions, 100' Wide Road, Bathinda.
.....Respondent
2. State Bank of India through its General Manager/M.D., Head Office
Central, State Bank of India, Mada Cama Road, Nariman Point,
Bombay.
...Proforma Respondent
First Appeal against the order dated 17.08.2007
passed by the District Consumer Disputes
Redressal Forum, Bathinda.
Before:-
Sardar Jagroop Singh Mahal,
Presiding Judicial Member
Mr.Jasbir Singh Gill, Member Argued by:-
For the appellants : Sh.Vikas Chatrath, Advocate
For respondent No.1 : None
For respondent No.2 : Dispensed with
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This is OP's appeal under Section 15 of the Consumer
Protection Act, 1986 (hereinafter referred to as the Act) against the order dated 17.8.2007 passed by the learned District Consumer Disputes Redressal Forum, Bathinda (in short the District Forum) vide which the complaint was allowed with costs and the OP-appellants were directed to credit an amount First Appeal No.1303 of 2007 2 of Rs.1,71,352/- and to deposit an amount of Rs.28,648/- illegally withdrawn from the account of the complainant. The OP-appellants were also directed not to demand an amount of Rs.1,80,871/- from him on the basis of the notice dated 31.10.2006 and to pay Rs.2,000/- as costs of litigation.
2. The case of the complainant is that he had opened an account with the OP-appellants and had issued a cheque dated 15.4.2006 for Rs.2 lacs in favour of Sunil Singh without there being any liability in respect thereof. Since there was no amount in the account of the complainant to honour the cheque, he had specifically instructed Sunil Singh not to present the same and in lieu thereof, the complainant paid him Rs.150/- on 30.4.2006, Rs.1,60,000/- on 16.5.2006, Rs.50,000/- on 25.5.2006, Rs.10,000/- on 30.5.2006 and Rs.49166/- on 1.6.2006. However, Sunil Singh indulged in unlawful and hostile activities against the complainant, due to which, the complainant had to file a civil suit against them. In July, 2006, he came to know that Sunil Singh had presented the cheque on 17.7.2006 though he had already received sufficient amount in lieu of the said cheque. There was only a sum of Rs.28,648/- in the account of the complainant and the cheque was liable to be dishonoured for want of funds. However, the OP illegally credited the amount of Rs.2 lac in the account of Sunil Singh in gross abuse and misuse of the process and powers and also withdrew the amount of Rs.28,648/- from his account. It was alleged by the complainant that he had never applied for any overdrawal facility nor the same was available or allowed to him and the OP had no right or authority to withdraw the amount of Rs.28,648/- from his account or to debit the amount of Rs.1,71,352/- to his account without any oral or written instructions. These actions on the part of Op No.1 were said to be deficiency in service. The complainant requested the OP to deposit the First Appeal No.1303 of 2007 3 amount of Rs.2 lac in his account but they did not. He, therefore, filed the present complaint to direct the OPs to credit the amount of Rs.1,71,352/- in his account and also deposit the amount of Rs.28,648/- illegally withdrawn by them. He also prayed for interest @ 14.25% per annum and not to demand from him the amount of Rs.1,80,871/-. He also prayed for Rs.50,000/- on account of compensation for mental tension, agony and harassment and Rs.10,000/- as costs of this complaint.
3. The contention of the OP is that they have filed a suit for recovery of Rs.1,85,196/- along with interest and costs against the complainant and, therefore, the complaint should not be decided. The complainant was alleged to have lodged a complaint with SSP, Bathinda against the employees of the OP. The complaint was said to be bad for non- joinder of Sunil Singh. It was alleged that the complainant voluntarily issued the cheque in favour of Sunil Singh and the complainant being their reputed and esteemed customer, the cheque was honoured by withdrawing an amount of Rs.28,648/- from the account of the complainant and by allowing him TOD (Temporary Over Draft) of the remaining amount. A notice was issued to the complainant to deposit the amount availed by him as TOD and when he did not pay the same, the civil suit was filed to recover the aforesaid amount. It was denied if there is any deficiency in service on their part. It is also alleged by the OPs that the current account was opened by the complainant for commercial and business transactions and, he, therefore, does not fall under the definition of a consumer. The other allegations were denied and it was prayed that the complaint be dismissed.
4. Both the parties were given opportunity to produce evidence in support of their contentions.
First Appeal No.1303 of 2007 4
5. After hearing the arguments of the learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint vide impugned order dated 17.8.2007 as mentioned in para 1 above. The OPs have filed the present appeal against the said order.
6. We have heard the arguments of the learned counsel for the complainant and have perused the record.
7. The learned counsel for the appellants has argued that the appellants had filed a civil suit for recovery against the complainant and where a civil suit is pending, the Consumer Fora cease to have any jurisdiction in the matter. It is argued that in view of the pendency of the civil suit, the learned District Forum should not have decided the case and, therefore, the impugned order is liable to be set aside. This question was raised by the OP before the learned District Forum and the same was decided against them vide a detailed order dated 15.5.2007. The learned District Forum cited a number of authorities showing that filing of the civil suit is not a bar to the continuation of the consumer complaint before the learned District Forum. The learned counsel for the appellants has not been able to cite any authority to contradict the view taken by the learned District Forum. Needless to mention that the complainant had already filed the present complaint and the civil suit by the OP was filed later on just to defeat the complaint filed by the complainant. We are, therefore, fully in agreement with the view taken by the learned District Forum that filing of the civil suit by the defendant after the filing of the consumer complaint is no bar to the continuation of the complaint before the learned District Forum. This contention was, therefore, rightly rejected by the learned District Forum.
8. It is also argued by the learned counsel for the appellants that the complainant is running an institute to teach and train the students and, First Appeal No.1303 of 2007 5 therefore, it is a commercial transaction undertaken by him. It is argued that the account opened by the commercial body would be deemed to be for the purpose of commercial activity which would exclude the complainant from the definition of a consumer and, therefore, the present complaint would not be maintainable. This argument also was not accepted by the learned District Forum. Rightly so, because in para 1 of the complaint, the complainant has mentioned that he is employing himself in his institute and was imparting education to the children. The bank account had not been opened by the complainant for earning any profit therefrom. The complainant, therefore, cannot be taken out of the definition of a consumer. The learned District Forum has given detailed reasons, in this respect, with which we are fully in agreement. The complainant definitely falls under the definition of a consumer.
9. The learned counsel for the appellants has argued that the overdraft facility was granted to the complainant on his oral request and, therefore, there is no illegality or irregularity on the part of the bank in honouring the cheque issued by the complainant. His contention is that if the bank honoured the cheque to save the complainant from the prosecution under Section 138 of the Negotiable Instruments Act, the complainant should have been thankful to them instead of dragging them to the Consumer Fora. We do not find any merit in this argument. The complainant has denied if he ever issued any oral instructions to the OP bank to grant him overdraft facility. The learned counsel for the appellants has not been able to produce cogent evidence to prove if any such oral instructions were granted. We are of the opinion that the plea of oral instructions has been taken by the OP bank just to conceal its illegality. Otherwise also, the OP bank has not been able to produce any instructions under which the overdraft facility First Appeal No.1303 of 2007 6 would be granted simply on oral instructions. The learned District Forum has dealt with this question elaborately that granting of overdraft facility on oral instructions is not only against the banking procedure but would erode the confidence of its customers in the working of the bank. The learned District Forum, therefore, rightly declined to accept if there was any such oral instructions to the OP bank.
10. As regards the contention that the bank saved the complainant from the prosecution; that also is hoax. The complainant never wanted that the OP bank should protect him from prosecution. Otherwise also, it was a matter between the complainant and the holder of the cheque to go in for prosecution or not and the OP bank had no concern with the same. Furthermore, for initiating the prosecution, the holder of the cheque was to prove that the cheque was issued for discharge of any debt or other liability and the contention of the complainant is that there was no liability on him towards the holder of the cheque to whom he had already paid more amount than due and, therefore, the question of prosecution did not arise. Under these circumstances, we cannot hold that the granting of over draft facility and paying money to Sunil Singh was in the interest of the complainant.
11. In view of the above discussion, we are of the opinion that the act of the bank in withdrawing the amount of Rs.28,648/- from the account of the complainant and debiting a sum of Rs.1,71,352/- to his account was illegal and unwarranted. When there was not sufficient amount in the account of the complainant, the only remedy available to the OP bank was to return the cheque without honouring the same. It was, therefore, deficiency in service on the part of the OP bank. The learned District Forum has, therefore, rightly appreciated the facts of the case and has rightly allowed the complaint vide impugned order dated 17.8.2007 which is perfectly legal and First Appeal No.1303 of 2007 7 valid. There is no merit in this appeal and the same is, accordingly, dismissed with costs. The costs of litigation of Rs.10,000/- shall be paid by the appellants to the complainant respondent No.1 Harbhajan Singh
12. The appellants had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal on 24.9.2007. This amount of Rs.25,000/- with interest accrued thereon, if any, be remitted by the registry to respondent No.1 Harbhajan Singh by way of a crossed cheque/demand draft after the expiry of 45 days.
13. The OP-appellant bank may recover the amount along with interest and costs from the officer who allowed the overdraft, of course, after giving him an opportunity of being heard as required under the service conditions of the officer concerned.
14. Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER July 20, 2012.
Paritosh