State Consumer Disputes Redressal Commission
Punjab & Sind Bank vs M/S. Ayush Enterprises on 30 October, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH First Appeal No. : 295 of 2014 Date of Institution : 29.08.2014 Date of Decision 30.10.2014 Punjab & Sind Bank a body corporate constituted under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (Act No.40 of 1980) with its Head Office at 21 Rajindra Place, New Delhi and Branches amongst other places one at SCO No.1076, Sector 22-B, Chandigarh through Sh. Harcharan Singh Gandhi, Branch Manager, Punjab & Sind Bank, Sector 22-B, Chandigarh. Appellant/Opposite Party. Versus M/s. Ayush Enterprises through Anu Dogra, SCO No.218-219, Sector 34-A, Chandigarh. ....Respondent/Complainant. Appeal under Section 15 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. SH. DEV RAJ, MEMBER.
Argued by: Sh.
Dipinder Singh, Advocate for the appellant.
Sh. Aman Priye Jain, Advocate for the respondent.
PER DEV RAJ, MEMBER This appeal is directed against the order dated 24.7.2014 rendered by the District Consumer Disputes Redressal Forum-II, UT, Chandigarh (hereinafter to be called as the District Forum only) vide which, it allowed the complaint filed by the complainant and directed the Opposite Party (now appellant) as under:-
10. In the light of above observations, we are of the concerted view that the Opposite Party is found deficient in giving proper service to the complainant and having indulged in unfair trade practice. Hence, the present complaint of the Complainant deserves to succeed against the Opposite Party, and the same is allowed, qua it. The Opposite Party is directed, to:-
[a] To pay savings interest on the amount of Rs.4,28,334/-, from the date it was presented to it for clearance i.e. 4.9.2013, till this amount is recovered by the Investigating Agencies;
[b] To pay Rs.20,000/- to the Complainant on account of deficiency in service, unfair trade practice;
[c] To pay Rs.10,000/- as cost of litigation;
11. The above said order shall be complied within 45 days of its receipt by the Opposite Party; thereafter, Opposite Party shall be liable for an interest @18% per annum on the amount mentioned in sub-para [b] of Para 10 above from the date of institution of this complaint, till it is paid, apart from payment of interest as mentioned in sub-para [a] of para 10 above and cost of litigation of Rs.10,000/-.
2. The facts, in brief, are that the complainant, who was maintaining a CAOD A/c No.04151300002388 in Punjab & Sind Bank, deposited Cheque bearing No.743065 dated 2.9.2013 of Rs.4,28,334/- issued by M/s Anmol Watches & Electronic Pvt. Ltd., on 04.09.2013, for clearance. It was stated that when after 04 days, the aforesaid amount was not credited to the account of the complainant, it verified from the Opposite Party, upon which, it was intimated that one of its representatives took back the cheque. It was further stated that an authorized representative of the complainant immediately met the Manager of the Opposite Party, who showed his inability to provide any document, vide which the complainant had authorized any person to take back the cheque. It was further stated that the complainant, however, managed to take copy of the clearing slip, as registered in the register of the Opposite Party, wherein the daily record of cheques submitted for clearance was maintained (Annexure C-1). It was further stated that the complainant contacted the drawer of the cheque M/s Anmol Watches & Electronic Pvt. Ltd., to verify the status of the same (cheque) and it was learnt that the said cheque was received from Canara Bank, Ludhiana (the presenting Bank) and the amount was credited on 06.09.2013 to the account of Mr. Chander Mohan Arora, who according to the complainant, had opened the said account on the basis of forged documents.
3. It was further stated that the matter was, accordingly, reported to the Police vide DDR No.11 dated 12.09.2013. It was further stated that the drawer of the cheque vide letter dated 17.09.2013 also certified that the cheque was issued to the complainant. It was further stated that thereafter, a complaint was also sent to the Head Office of the Opposite Party at Delhi on 17.09.2013 for refund of the amount (Annexure C-4), but no action was taken, under the guise of non-receipt of copy of the cheque. It was further stated that the Opposite Party, instead of rectifying its mistake, further continued to harass the complainant by charging interest on the amount of over credit taken by it, without deducting the amount of cheque, which was required to be credited to its account, thereby penalizing it for no fault of it. It was further stated that eventually, a legal notice dated 06.11.2013 was sent to the Opposite Party, which was replied to by it vide letter dated 18.11.2013 just to escape its liability.
4. It was further stated that the aforesaid acts of the Opposite Party amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking directions to the Opposite Party, to pay the amount of cheque of Rs.4,28,334/- alongwith interest @18% per annum; Rs.10,00,000/- as compensation for mental agony and physical harassment; Rs.2,00,000/- on account of loss of business and Rs.55,000/- as cost of litigation.
5. The Opposite Party, in its written version, while admitting the factual matrix of the case, stated that a representative of the complainant visited the Bank to deposit the cheque on 04.09.2013. It was further stated that the said representative of the complainant, at its instance, immediately requested the official to return the cheque as the balance was not available in the account. It was further stated that being the regular customer of the Branch, the official of the Bank returned the cheque, in question. It was further stated that there were a number of such instances when a representative of the complainant used to take back the cheque immediately after presentation, at the instance of the complainant. It was further stated that even the factum of receipt of the said cheque by its representative, was also intimated to the complainant by the Opposite Party. It was admitted that the complainant vide its letter dated 17.9.2013 approached the Head Office of the Opposite Party, and the response was also given on 20.09.2013 as no copy of the cheque was annexed with the complaint. It was further stated that in the clearing slip, only the account number of the complainant and the amount of the cheque were mentioned, but there was nowhere mention of the cheque number in the clearing slip. It was further stated that the allegation of the complainant that the account of Sh. Chander Mohan Arora was opened on the basis of forged documents, was a matter of investigation, which was to be investigated by the Police. It was, however, denied that the Opposite Party committed any mistake, which was to be rectified. The receipt of legal notice was admitted by the Opposite Party. It was further stated that the same was duly replied to and the complainant by way of present complaint tried to shift his mistake on to the shoulders of the Opposite Party to save its skin from the fraud committed. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor did it indulge into unfair trade practice. The remaining averments, were denied, being wrong.
6. The Parties led evidence, in support of their case.
7. After hearing the Counsel for the parties, and, on going through the evidence, and record of the case, the District Forum, allowed the complaint, as stated above, in the opening para of the instant order.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant/Opposite Party.
9. We have heard the Counsel for the parties, and have gone through the evidence, and record of the case, carefully.
10. The Counsel for the appellant/Opposite Party submitted that the respondent/complainant deposited the cheque bearing No.743065 dated 2.9.2013 in the sum of Rs.4,28,334/- in favour of Ayush Enterprises, issued by M/s Anmol Watches & Electronics Pvt. Ltd. with the appellant Bank on 4.9.2013, for clearance. It was further submitted that the said cheque was credited to the account of Sh. Chander Mohan Arora who deposited the same in Ludhiana Branch of Canara Bank on 06.09.2013. It was further submitted that the aforesaid cheque handed over for clearance on 04.09.2013 was taken back by the representative of the respondent/complainant on the same day itself on the ground that there were not sufficient funds in the account of the person who had issued the same in favour of the respondent/complainant. It was further submitted that as per details recorded in the clearance slip (Annexure P-1), the amount of the aforesaid cheque viz. Rs.4,28,334/- finds mention but since the cheque was returned to the representative of the respondent/complainant, the same was struck off from the list. It was further submitted that when the cheque was handed over, the counterfoil receipt was torn. It was further submitted that the cheque was drawn in favour of Sh. Chander Mohan Arora, who had no account in the appellant/Opposite Party Bank. It was further submitted that the original cheque was never produced before the District Forum. It was further submitted that M/s Anmol Watches & Electronics Pvt. Ltd. was never made a party. It was further submitted that direction contained in Para 10[a] of the impugned order was vague.
11. Counsel for the respondent/complainant submitted that the cheque, in question, was handed over by the Bank to some unauthorized person, who forged the same in favour of Sh. Chander Mohan Arora. It was further submitted that the appellant/Opposite Party could move an application under Section 13(4) of the Act for production of the original cheque. It was further submitted that as per the certificate (Annexure P-3) issued by M/s Anmol Watches & Electronics Pvt. Ltd., Cheque No.743065 dated 02.09.2013 for Rs.4,28,334/- was issued in favour of the complainant (Ayush Enterprises, Chandigarh). It was further submitted that once the account number of the respondent/complainant and the amount of the cheque were admitted to be mentioned in the clearance slip by the appellant/Opposite Party, then in the absence of any cogent evidence, that the same was returned to the representative of the respondent/complainant, liability lay with the appellant/Opposite Party. It was further submitted that insofar as forgery part was concerned, the Police complaint was lodged but the Bank has been definitely deficient in rendering service and the order passed by the District Forum was just and correct.
12. Admittedly, as is evident from Annexure P-1, the cheque, in question, was deposited in the appellant/Opposite Party Bank. Once the cheque was received in the appellant/Opposite Party Bank regarding which, there is no dispute, the same could not be returned to any person, without recording reasons, for the same and acknowledgement ought to have been obtained. Had the appellant/Opposite Party obtained acknowledgement in token of return of the cheque, the position would have been different. The contention of the appellant/Opposite Party that the cheque was returned at the instance of the representative of the respondent/complainant, on its request, as the balance was not available in the account, is not logical. The cheque was in favour of the respondent/complainant, and, in case, there were no sufficient funds, in the account of the person, who issued the same (cheque), there was no plausible reason on its (complainants) part to get back the same (cheque). We are also not impressed with the argument of the appellant that the counter-foil, vide which the cheque was deposited, was torn out (though this plea was not taken by the Opposite Party in its written statement). Such a course was not, as per the banking procedure and norms. The same is only an afterthought plea. The Bank was the trustee of the respondent/complainant and it was obligatory on its part to ensure that the cheque/instrument, so deposited, was not handed over to some unauthorized person, leading to misuse, which has taken place in the instant case. The appellant/Opposite Party has failed to produce any cogent and convincing evidence, that the cheque was returned to the representative of the respondent/complainant. It means that the cheque, aforesaid was returned to some unauthorized person by an official of the Bank. There was, thus, clear cut deficiency attributable to the appellant/Opposite Party.
13. The District Forum also rightly rejected the application dated 19.02.2014 for relegating the complaint to the Civil Court on the ground that the appellant/Opposite Party itself admitted to have given back the cheque, in question, to an unidentified person, as per its disclosure, in its written statement. The District Forum was further right in holding that this admission, on the part of the Opposite Party, about the receipt of the cheque saddled the entire responsibility on its shoulders, with regard to the cheque presented to it. It (District Forum) further rightly held that such an act on the part of the Opposite Party certainly amounted to deficiency in service as it was on account of such a lackadaisical attitude on the part of the appellant/Opposite Party, that the respondent/complainant lost the track of its money. The District Forum has rightly held so and directions contained in the order of the District Forum in Para 10[b] to pay Rs.20,000/- to the respondent/complainant on account of deficiency in service and unfair trade practice and cost of litigation in the sum of Rs.10,000/- in terms of Para 19[c], are just and correct.
14. Insofar as direction, contained in Para 10[a] of the impugned order is concerned, the matter is under investigation. The cheque, which is the subject matter of dispute, has not been produced in original. Copy of the cheque, produced by the respondent/complainant, is in favour of Sh. Chander Mohan Arora, whereas, the claim of the respondent/complainant, is that the same very cheque was drawn in its (complainants) favour. Until and unless, the liability for the same qua the appellant/Opposite Party, is established, the aforesaid part of the order is not maintainable. Even otherwise, direction given in Para 10[a] of the impugned order is vague. This part of the order being illegal needs to be set aside.
15. No other point, was urged, by the Counsel for the parties.
16. For the reasons recorded above, the appeal is partly accepted, with no order as to costs. The order of the District Forum is modified, in the following manner:
i.
The appellant/Opposite Party is directed to pay Rs.20,000/- to the respondent/complainant on account of deficiency in service and unfair trade practice, as awarded by the District Forum.
ii.
The appellant/Opposite Party is directed to pay Rs.10,000/- as cost of litigation to the respondent/complainant, as awarded by the District Forum.
iii.
The order be complied with by the appellant/Opposite Party, within a period of 45 days from the date of receipt of a certified copy thereof, failing which, the amount mentioned in Clause (i), above, shall be payable by the appellant/Opposite Party alongwith interest @18% per annum, from the date of institution of the complaint i.e.24.12.2013, till actual payment.
iv.
All other directions, given and reliefs granted by the District Forum, in the impugned order, subject to the modification, aforesaid, which are contrary to and, in variance of this order, shall stand set aside.
17. Certified copies of this order, be sent to the parties, free of charge.
18. The file be consigned to Record Room, after completion.
Pronounced.
October 30, 2014.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[DEV RAJ] MEMBER Ad STATE COMMISSION (First Appeal No.295 of 2014) Argued by: Sh.
Dipinder Singh, Advocate for the appellant.
Sh. Aman Priye Jain, Advocate for the respondent.
Dated the 30th day of October, 2014 ORDER Vide our detailed order of the even date, recorded separately, the appeal has been partly accepted, with no order as to costs. The order of the District Forum has been modified.
DEV RAJ MEMBER (JUSTICE SHAM SUNDER (RETD.)) PRESIDENT Ad