State Consumer Disputes Redressal Commission
Mr. Runendu Kumar Roy vs Indian Overseas Bank & Others on 6 October, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : SC/299/A/06 DATE OF FILING : 21.08.2010 DATE OF FINAL ORDER: 06.10.2010 APPELLANT Mr. Runendu Kumar Roy S/o Late Monmohan Saha (Roy) Fulbari, Police Station English Bazar, P.O. & Dist. Malda. RESPONDENTS 1. Indian Overseas Bank Rabindra Avenue P.O. Malda, P.S. English Bazar, Dist. Malda. 2. Chief Regional Manager Indian Overseas Bank 119, White House, Park Street, Kolkata-700 016. 3. Branch Manager Indian Overseas Bank Rabindra Avenue P.O. Malda, P.S. English Bazar, Dist. Malda. 4. Mr. Jagabandhu Ghosh S/o Late Nemai Chandra Ghosh Sasthitala, P.O. Krishnagar, P.S. Kotwali, Dist. Nadia. BEFORE : HONBLE JUSTICE MR. P.K.SAMANTA, PRESIDENT MEMBER : MRS. S.MAJUMDER MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. S.Nayak, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. A.Roy Mukherjee, Ld. Advocate (Res.1-3) Mr. P.K.Basu, Ld. Advocate (Res. 4) : O R D E R :
MR. S.COARI, LD. MEMBER The present Appeal has been directed against the judgement and order dt. 7.2.06 passed by Ld. District Forum, Malda, in Malda D.F. Original Case No. 60/2005 wherein the Ld. District Forum allowed the petition of complaint on contest against the Ops/Bank with a direction upon the Ops to pay a sum of Rs. 3,65,000/- to the complainant with 10% interest upon the aforesaid sum from the date of withdrawal till payment together with a direction upon the Ops to pay Rs. 1,000/- to the complainant towards mental agony.
The case of the complainant/Respondent (Jagabandhu Ghosh), in brief, was that the complainant being a bonafide customer and account holder with the Ops/Bank at Malda Branch, received three cheque books from the Ops/Bank. It was the specific case of the complainant that 10 numbers of signed cheques were lost from the custody of the complainant being numbered 061366 to 061375. The fact of missing of the aforesaid cheques was duly informed to the Ops/Bank and besides that the complainant also lodged a General Diary with the English Bazar P.S. at Malda on 14.6.03.
While informing the Ops/Bank about the missing of the cheques the complainant requested the Ops/Bank to stop payment against those lost cheques. It was the further case of the complainant that upon receiving the said information the Ops/Bank issued new cheque book in favour of the complainant. On 1.9.04 it came to the knowledge of the complainant that by utilizing one of the aforesaid lost cheque books a sum of Rs. 3,65,000/- has been withdrawn from the account of the complainant by one Sajal Das.
Immediately thereafter the complainant had been to the Ops/Bank and enquired about the aforesaid withdrawal of amount and asked the Ops/Bank to compensate the complainant by depositing the aforesaid encashed amount of Rs. 3,65,000/-. The request of the complainant was not complied with by the Ops/Bank and hence, the petition of complaint was filed.
The Ops/Bank contested the complaint case by filing written version thereby denying all the material averments contained in the petition of complaint contending inter alia that the complainant applied for issuance of the cheque book on the ground of missing of some cheques and in pursuance to that application new cheque book bearing numbers 518126 to 518150 was issued in favour of the complainant. But as the Bank is under obligation to honour a cheque issued in favour of the complainant, which was issued after observing all the formalities as per banking rules, there was no deficiency in service or any wrongful act on the part of the Ops/Bank to honour the cheque for a sum of Rs. 3,65,000/- alleged to be one of the missing cheques of the complainant.
According to the Ops, the petition of complaint was not maintainable being full of concocted stories and accordingly the same was liable to be dismissed.
Ld. District Forum while disposing of the petition of complaint has observed that the complainant was a consumer in its true sense of the term. There was positive instruction upon the Ops/Bank at the instance of the complainant to stop payment in respect of the missing cheques and by honouring one of those missing cheques for a sum of Rs. 3,65,000/- the Ops/Bank is guilty of deficiency in service and that the complainant was entitled to the reliefs and accordingly disposed of the petition of complaint in favour of the complainant in the manner as mentioned above.
Before the Ld. District Forum the Appellant was not impleaded as a party to the proceeding.
However, at the Appeal stage the Appellant upon filing a petition for the purpose of impleading himself to be a party to the proceeding sought for permission to file an Appeal against the impugned judgement and being successful in getting a favourable decision from this State Commission, which has also been ratified by the Honble National Commission, the Appellant, Mr. Runendu Kurmar Roy, is pursuing the present Appeal in the capacity of the Appellant.
The only moot question that revolves round the present Appeal is as to whether the Ld. District Forum was justified in disposing of the petition of complaint in the manner as discussed above.
The following case laws have been cited by the Appellant :-
1. 2010 CTJ 928 - Sanjay D.Ghodawat Vs. R.R.B.Energy Ltd.
2. 2010 CTJ 886 - Md. Haseeb Ahmed Vs. Maharashtra State Electricity Board & Others.
3. 2010 CTJ 361 - Economic Trasport Organisation Vs. Charan Spinning Mills (P) Ltd. & another
4. 2000 C.W.N. - Satya Narayan Bari & Others Vs. Page-215 Pratibha Banerjee & others DECISION WITH REASONS At the time of hearing it has been submitted on behalf of the Appellant that in this case the complainant/Respondent No. 4 has practically misled the Ld. District Forum in the matter of actual state of affairs and has obtained a decision in his favour, which is not at all sustainable under the law. According to the Ld. Advocate, though there was specific mention of existence of two separate criminal proceedings involving the alleged lost cheque books in the written version submitted by the OPs, which has clearly made the petition of complaint not maintainable under the Consumer Protection Act. But for reasons best known to the Ld. District Forum the said admitted position has been overlooked to the detriment of interest of the present Appellant and the impugned judgement has been passed, which is against the established legal position. According to the Ld. Advocate for the Appellant, there were business transactions prevailing between the Appellant and the complainant and a false and fictitious criminal case has been instituted against the Appellant at the instance of the complainant involving the aforesaid alleged lost cheques. Until and unless those aspersions are properly adjudicated and the criminal controversy is set at rest, there is no scope of entertaining the consumer complaint before the Ld. District Forum.
According to the Ld. Advocate, on this score alone the impugned judgement is liable to be set aside and the petition of complaint should be dismissed. While criticizing the impugned judgement the Ld. Advocate for the Appellant has urged before us that the complainant cannot be attributed to be a Consumer in its true sense considering the fact that from the materials on record it has become quite clear and evident that the complainant has indulged himself into business involving huge amount of money, for which the banking transaction was availed of by the complainant. According to the Ld. Advocate for the Appellant, from the materials on record it has also become quite clear that the complainant/Respondent has intentionally suppressed the actual state of affairs and was successful in obtaining a favourable order though he has alleged fraud in connection with his lost cheque, adjudication of which is not at all permissible under the Consumer Protection Act. While concluding his submissions the Ld. Advocate for the Appellant has urged before us that Ld. District Forum has failed to appreciate the cases of respective parties and also the actual state of affairs and as such, has arrived at a wrong and improper decision which is not sustainable under the law and is liable to be set aside. While criticizing the impugned judgement the Ld. Advocate for the Respondents/Bank has submitted before us that the complainant before the Ld. District Forum being a Current Account holder of the Respondents/Bank, under no circumstances the complainant can be designated as a Consumer in the true sense of the term.
According to the Ld. Advocate, the Ld. District Forum has ignored this proposition of the legal position and on this score alone the impugned judgement is liable to be set aside. It has further been argued on behalf of the Respondents/Bank that the impugned judgement suffers from defect of parties inasmuch as Mr. Runendu Kumar Roy was not impleaded in the complaint case thereby rendering the same as a defective one and no effective adjudication was possible under the said circumstances. According to the Ld. Advocate, besides that existence of two separate criminal cases involving the banking transaction of the complainant also renders the complaint case not maintainable, which has been surprisingly overlooked by the Ld. District Forum and under the circumstances, this is a fit case for remand so as to enable the parties to thrash out their respective cases for proper adjudication of the real controversy between the parties.
On the point of stop-payment, it has been argued on behalf of the Respondents/Bank that in the absence of clear and unambiguous instruction there was no alternative left before the Respondents/Bank but to honour the cheque alleged to have been missing from the custody of the complainant. While elaborating on this point the Ld. Advocate for the Respondents/Bank has urged before us that when the complainant has utterly failed to substantiate the allegation to the effect that there was instruction of stop-payment in an unambiguous manner, question of allowing the petition of complaint does not arise at all.
According to the Ld. Advocate, there is also contradiction in the pleadings and attempt of proof on this point at the instance of the complainant inasmuch as at one point of time the complainant has urged blank cheque books while in the petition of complaint it has been specifically mentioned signed cheque books which were lost from the custody of the complainant. While concluding his submissions the Ld. Advocate for the Respondents/Bank has submitted that the impugned judgement suffers from material irregularity and wrong appreciation of fact and evidence on record and considering all these aspects the impugned judgement is liable to be set aside.
We have duly considered the submissions so put forward on behalf of the Appellant and have gone through the materials on record including the decisions cited on behalf of the Appellant and the impugned judgement and find that in this case the complainant/Respondent has put up a case to the effect that while he was enjoying banking facilities with the OP/Bank, he lost some signed cheques and immediately thereafter he applied for issuance of new cheque book with a request to stop payment in respect of the lost cheques. The Ops/Bank in pursuance to that issued new cheque book in favour of the complainant, but subsequently did honour one of the lost cheques amounting to Rs. 3,65,000/- in favour of a third party though there was a clear direction at the instance of the complainant upon the Ops/Bank to stop payment in respect of the said lost cheque. The Ops/Bank was requested for payment of Rs. 3,65,000/- from the Ops/Bank, but the Ops/Bank did not comply with the same and hence, the petition of complaint.
The Ops/Bank, on the other hand, has tried to put up a case to the effect that though on the request of the complainant the Ops issued new cheque book in favour of the complainant, but in order to honour the banking rules and procedures did honour a cheque issued by the complainant in favour of a third party and prayed for rejection of the petition of complaint.
We have carefully gone through the impugned judgement and find that it is a very well-discussed and well-reasoned judgement. When a bank account holder with a nationalized bank as that of the Ops had clearly instructed to stop payment in respect of specific cheque numbers and more so, when upon such intimation of the said person the Bank had issued three cheque books in favour of such person, we find no point in favour of the Bank under which the Bank could honour one of the cheques, against which there was a clear instruction for stop-payment. Thus, so far as it relates to the pleas and points raised on behalf of the Bank we find that the pleas taken by the Bank are extremely weak and the same do not hold any water at all.
So far as it relates to the case of the present Appellant, we are also unable to accept the proposition put forward on behalf of the Appellant. The mere fact of existence of a criminal proceeding will certainly not debar a consumer court to dispose of a dispute which is clearly under the purview of the Consumer Protection Act. Much has been agitated on behalf of the complainant on the point of Consumer.
In this connection, we are of unanimous opinion that the complainant is a Consumer in true sense of the term. Whatever may be the magnitude of the complainants business there is no dispute that the complainant availed of banking service from the Ops/Bank in the capacity of a consumer. Hence, the point raised on behalf of the Appellant is not accepted. We have also gone through the decisions cited on behalf of the Appellant and find that in 2010 CTJ 928 the Honble Court has held that Complainant hired service for furthering and advancing Business activities, which does not contemplate the complainant as a Consumer. In 2010 CTJ 886 the Honble Court has held that buying goods and hiring service for commercial activities stand excluded from the COPRA. Similarly, in 2010 CTJ 361 the Honble Court has made similar observation and in 2000 CWN Page 215 the Honble Court has held that the allegation of fraud does not constitute a cause of action for instituting the consumer complaint. From the facts and circumstances of the present case it has already become evident that the transaction entered into between the complainant and the Bank does not constitute a commercial transaction and that the complainant is very much a Consumer in its true sense. The point of fraud is also not applicable in the framework of the present Appeal. If that be the position, we find that the facts and circumstances of the decisions cited on behalf of the Appellant are not similar to that of the instant one and as such, the principles laid down in those decisions are not applicable in the present Appeal. Thus, considering the facts and circumstances of the case we find no merit in the present Appeal.
On a careful perusal of the impugned judgement we find that the same is a very well-written and well-reasoned judgement in which there is no adverse finding against the present Appellant. Thus, considering the facts and circumstances of the case we find no merit in the present Appeal and the same is liable to be dismissed. In the result, the Appeal fails.
Hence, it is ORDERED that the Appeal stands dismissed on contest without any order as to cost.
The impugned judgement stands affirmed.
MEMBER(L) MEMBER PRESIDENT