State Consumer Disputes Redressal Commission
Gautam Chandni vs Icici Bank on 8 April, 2013
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, U.T., CHANDIGARH Complaint Case No : 54 of 2012 Date of Institution : 06.11.2012 Date of Decision : 08.04.2013 Smt. Gautam Chaandni, Aged 64 years daughter of Dr. S. K. Sharma, 24, Danehurst, Brent Lea, Brentford, Middx, TW8 8HX. UK. Complainant. VERSUS ICICI Bank through the Branch Manager, Phase 7, Mohali. ....Opposite Party. Complaint under Section 17 of the Consumer Protection Act, 1986. BEFORE: JUSTICE SHAM SUNDER (RETD.), PRESIDENT. MRS. NEENA SANDHU, MEMBER.
Argued by:Sh.Gur Rattan Pal, Advocate for the complainant.
Sh. Sandeep Suri, Advocate for the Opposite Party.
PER MRS. NEENA SANDHU, MEMBER.
The facts, in brief, are that the complainant, who is still living abroad, handed over a Karnatka Banks cheque No.325070 dated 21.04.2009 amounting to Rs.50 Lacs (Annexure C-1) to one Rajinder Bhateja, the then Manager of HDFC Bank, Branch Sector -9, Chandigarh, for getting the same deposited in her HDFCs Bank Account bearing No.13061600001300. It was stated that later on, said Rajinder Bhateja came out to be a big fraudster, as he swindled crores of rupees of the Bank depositors, as published in Indian Express dated 17.04.2010, showing he (Rajinder Bhateja) being taken to the Police Station, on the charge of having fraudulently withdrawn lakhs of rupees of the depositors. It was further stated that the said Rajinder Bhateja, in connivance with the officials of the Bank opened a forged account of the complainant, with the OP Bank, on the basis of forged documents, including forged Pan Card and Bank Opening Account Form. It was further stated that said Rajinder Bhateja deposited the said cheque of Rs.50 Lacs in ICICI Account No.00581016825, after getting the same withdrawn from the Karnataka Bank on 27.04.2009 as was clear from Annexure C-3. It was further stated that the Karnatka Bank issued letter (Annexure C-4) and fully supported the above fact that the cheque money of Rs.50 Lacs was paid to the ICICI Bank by it. It was further stated that the Opposite Party Bank also wrote a letter to the Police Station, in this regard, throwing light as to how the complainant was deprived of her hard earned money. It was further stated that a letter (Annexure C-8) was also written by the SHO, Police Station Mataur, Mohali to the Opposite Party-Bank showing that FIR No.85 U/Ss 420, 465, 467, 4687, 471, 120-B IPC was already registered on 29.09.2010. It was further stated that neither any action has been taken so far, by the Police, despite the repeated requests of the complainant, to do the needful, nor the Bank has repudiated her claim. 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 17 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, for directing the Opposite Party, to return Rs.50 Lacs back to the complainant alongwith interest besides compensation, towards mental agony and physical harassment and as costs of litigation.
2. The Opposite Party, in its written version, took up the preliminary objection, with regard to the maintainability of the complaint. It was stated that the complaint was barred by time. It was further stated that the dispute relates to the alleged fraud and forgery, in respect of which, already a police complaint is pending and is under investigation and, as such, the dispute cannot be decided under the summary jurisdiction of the Consumer Fora. It was further stated that neither any part of cause of action had arisen within the territorial jurisdiction of this Commission, nor the office of the OP Bank is situated at Chandigarh. It was further stated that the complainant did not fall within the definition of a consumer, as defined under Section 2(1)(d) of the Act, because as per her own admission, she had not opened the account with the OP Bank, which was fraudulently opened by one Rajinder Bhateja. It was further stated that the said Manager Rajinder Bhateja, of HDFC Bank, has not been impleaded as a necessary party, to the complaint.
3. On merits, it was stated that as per the admission of the complainant herself, the alleged account, in her name was fraudulently opened with the Opposite Party Bank by one Rajinder Bhateja, Manager of HDFC Bank. However, it was further stated that cogent and convincing evidence was required to be led by the complainant, to prove that the account was fraudulently opened and not by her. It was further stated that it was also required to be ascertained as to whether the complainant herself provided the necessary documents for the purposes of opening the said account or had authorized Sh. Rajinder Bhateja, Manager, HDFC Bank to do so. It was further stated that it was also required to be proved by leading evidence, as to what was the role of the said Manager of HDFC Bank to whom the complainant had handed over the cheque, for the purpose of encashment. It was further stated that the evidence was also required to be led as to whether the actions of the HDFC Bank and that of the said Manager were being performed in the capacity of a representative of HDFC Bank, then how the Opposite Party Bank was responsible for the misdeeds of any agent/representative/manager of another Bank.
4. It was further stated that no reliance on any averments, in the complaint, could be placed because the complainant admittedly was not in India, at the time of filing of the complaint, as well as at the time of signing the affidavit. It was further stated that in case the story set up by the complainant is to be accepted as correct, then, the deficiency/negligence/fraud, if any, was committed by the HDFC Bank, through its agent/Branch Manager, for which the OP Bank could not be held liable for any deficiency, in rendering service, or indulgence into unfair trade practice. It was further stated that fraud having been committed prior to 16.04.2010, was very well in the knowledge of the HDFC Bank as a complaint in respect of the same had already been made against the said Bank. It was, however, denied that the alleged documents were prepared under forgery, specially Annexure C-7, which was the e-mail sent by the complainant herself. It was further stated that since, the complainant herself raised allegations of fraud and forgery, the matter should be relegated to the Civil Courts for redressal of her grievances, and the same cannot be decided by the Consumer Fora, under summary procedure. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Party, nor it indulged into unfair trade practice. The remaining averments, were denied, being wrong.
5. The complainant, in support of her case, submitted her affidavit, by way of evidence, alongwith which, a number of documents were attached.
6. Opposite Party, in support of its case, submitted the affidavit of Sh. Himendra Pal Singh, Manager, ICICI Bank Limited, SCO No.127-128, Sector 9, Chandigarh, by way of evidence, alongwith which, number of judgments were attached.
7. Alongwith the complaint, an application for condonation of delay, in filing the same (complaint), has been moved. The grounds, set up, in the application, by the applicants/appellants, as also in Para No.10 to 12 of the complaint, are to the effect, that the F.I.R No.85 was registered on 29.09.2010 and since, then no action had been taken by the Police despite the repeated requests made by the complainant. It was stated that there was continuing cause of action, and, therefore, the question of limitation did not arise. It was further stated that the complaint was very well within the time. It was further stated that the Commission could exercise its discretionary powers under Section 24-A(2) of the Consumer Protection Act, 1986 for relaxing the period of limitation and condone the delay, if any. It was further stated that the delay, in filing the complaint, was neither intentional, nor deliberate. Accordingly, the prayer, referred to above, was made.
8. In reply, to the application for condonation of delay, filed by the Opposite Party, it was stated that no affidavit in support of the grounds taken in the application for condonation of delay, has been filed by the complainant. It was further stated that neither the application for condonation of delay has been signed by the complainant nor the verification clause has been verified, wherein it is mentioned that the complainant left for abroad on 22.11.2012 and her Advocate was fully competent to verify the contents thereof, on her behalf. It was further stated that cause of action accrued to the complainant for filing the present complaint on 27.04.2009, when the cheque, in question, was en-cashed, and she could have filed the complaint up-to April 2011, but she chose to file the complaint on 22.11.2012, which was hopelessly time barred. It was, therefore, prayed that the complaint, being hopelessly time barred, is liable to be dismissed, on the point of limitation alone.
9. We have heard the Counsel for the complainant and the Opposite Party, on the application, for condonation of delay, as also, in the main appeal, and have gone through the evidence, record of the case, and the written arguments of the parties, carefully.
10. It is pertinent to mention here that report of the Registry from the Commission was also called for, in order to ascertain as to what was the exact period of delay, in filing the complaint. As per the report of the Registry, there is a delay of 133 days, in filing the present complaint, if the period is calculated from the date of knowledge/cause of action, which accrued to the complainant as per the letter dated 26.06.2010, annexed with the written statement of the Opposite Party, at running Page No.111/65 of the complaint. It was further reported that if the delay is calculated from the date of lodging of the FIR No.85 dated 29.09.2010, as alleged by the complainant in Para No.10 of her complaint, then the same comes to 38 days.
11. First coming to the application, for condonation of delay, it may be stated here, that the same is liable to be dismissed, for the reasons, to be recorded hereinafter. The question, that arises for consideration, is, as to whether, there is sufficient cause for condonation of delay of 133 days (as reported by the Registry), in filing the complaint, under Section 17 of the Act or not. A perusal of the letter dated 25.06.2010, at running Page No.111/65 annexed with the written statement filed by Opposite Party No.1, was written by the complainant to the Regional Director, Reserve Bank of India, Sector 17-B, Chandigarh. It is established from this letter that the complainant came to know of the fraud, allegedly played upon her, for the first time on 25.06.2010 itself and she immediately informed about the same to the Regional Director, Reserve Bank of India, Sector 17-B, Chandigarh. As the act of fraud came to her knowledge on 25.06.2010, therefore, the cause of action, accrued to her, for filing the present complaint, on that very date and not from the date of lodging of the FIR No.85 dated 29.09.2010. The complainant should have filed the complaint within a period of two years, from 25.06.2010 but she filed the same on 06.11.2012. As such, there is a huge delay of 133 days, in filing the complaint, which the complainant has miserably failed to explain. Since, no sufficient cause is constituted, from the averments, contained in the application, the delay of 133 days, cannot be condoned.
12. In R.B. Ramalingam Vs. R.B. Bhuvaneswari, 2009 (2) Scale 108, the Supreme Court observed as under:-
We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition.
13. In Balwant Singh Vs. Jagdish Singh and Ors, V (2010) SLT 790=III (2010) CLT 201 (SC), it was held as under:-
The party should show that besides acting bona fide, it had taken all possible steps within its power and control and had approached the Court without any unnecessary delay. The test is whether or not a cause is sufficient to see whether it could have been avoided by the party by the exercise of due care and attention. [Advanced Law Lexicon, P. Ramanatha Aiyar, 3rd Edition, 2005]
14. In Ansul Aggarwal Vs. New Okhla Industrial Development Authority, 2012 (2) CPC 3 (SC) it was held as under:-
It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras
15. The principle, of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case. The application is, thus, liable to be dismissed.
16. The Counsel for the complainant submitted that one Rajinder Bhateja, Manager of HDFC Bank fraudulently opened an account in the name of the complainant, with the OP Bank on the basis of the forged copy of Account Opening Forum and PAN Card. He further submitted that the signatures on the Account Opening Forum were not of the complainant and the same were forged by said Rajinder Bhateja. He further submitted that said Rajinder Bhateja, after opening the account, encashed the cheque of Rs.50 Lacs (Annexure C-1), fraudulently, and, in this regard, FIR was also got registered against him. He further submitted that the news of swindling crores of rupees of the Bank depositors, by Rajinder Bhateja, was also published in Indian Express dated 17.04.2010. He further submitted that the OP Bank did not verify the correctness of the Account Opening Forum, or the documents attached therewith, in order to ascertain their genuineness, which was a deficiency, in rendering service, on its part, and indulgence into unfair trade practice. He further submitted that had the OP Bank checked and verified the documents before opening the account, the hard earned money of the complainant, would have been saved.
17. On the other hand, the Counsel for the Opposite Party, has submitted that since the account was opened with the Opposite Party Bank, situated at Mohali (Punjab), the Commission at Chandigarh has no territorial jurisdiction to entertain the complaint and the same is liable to be dismissed solely on this ground. He further submitted that the allegation of the complainant that the account was opened fraudulently is baseless because she has not produced any cogent and convincing evidence to prove the same. He further submitted that if any fault has been alleged on the part of Rajinder Bhateja, Manager of HDFC Bank, it was the responsibility of that Bank to go into the matter and the Opposite Party Bank cannot be held responsible in any manner. He further submitted that no reliance on any averment made in the complaint, can be placed because the complainant was not available in India at the time of filing the complaint as well as at the time of signing the affidavit. He further submitted that since the complainant, in the whole complaint, has made allegations of fraud and forgery, therefore, this Commission is not competent to deal with the matter in a summary manner and the complainant should be relegated to seek her remedy of approaching the Civil Court of competent jurisdiction, for redressal of her grievances. He lastly prayed that the complaint, being meritless, be dismissed.
18. As regards the allegations of fraud and cheating leveled by the complainant against the Rajinder Bhateja, Manager of HDFC Bank, as also against the Opposite Party, the same relate to the opening of account in the Opposite Party Bank, by Rajinder Bhateja fraudulently by forging the signatures of the complainant on Account Opening Forum and the PAN Card and subsequently swindling her of an amount of Rs.50 Lacs by encashing a cheque, given to him by the complainant. Since, serious allegations of fraud and cheating have been made, in the complaint, the same cannot be adjudicated upon, in the proceedings, which are of summary nature, before this Commission. Such allegations of fraud require detailed investigation and analysis of the documents by handwriting experts, examination & cross-examination of witnesses, which is possible only before a Civil Court having competent jurisdiction. The law, in this regard, has already been settled in Oriental Insurance Company Ltd. Vs Munimahesh Patel 2006(2)CPC668(SC), Reliance Industries Ltd. Vs United India Insurance Co. Ltd.I(1998)CPJ13, a case decided by four members Bench of the National Consumer Commission and M/s Singhal Swaroop Ispat Ltd. Vs United Commercial Bank 111(1992)CPJ 50, a case decided by a three member Bench of the National Commission, wherein it was held that when there are allegations of forgery, fraud and cheating, adjudication whereof, requires elaborate evidence, the same cannot be decided by the Consumer Fora, proceedings before which, are summary in nature. In this view of the matter, the present complaint is not maintainable before this Commission, which should have been filed before a Civil Court having competent jurisdiction. As such, the complaint is liable to be dismissed, on this very score.
19. Even otherwise, the complaint is also liable to be dismissed on the point of territorial jurisdiction for the simple reason that the office of Opposite Party Bank is situated in Phase 7, Mohali, Punjab and no other office of the Opposite Party, situated at Chandigarh, has been impleaded, where cause of action of part of it has accrued. Further, nothing has been placed, on record, by the complainant, to show that cause of action or part of it, accrued within the territorial limits of Union Territory, Chandigarh. Even also, the complainant has not impleaded The Karnataka Bank Ltd., Chandigarh, The HDFC Bank, Chandigarh or its Manager Sh. Rajinder Bhateja as a party, to the complaint. Thus, Section 17(2) of Consumer Protection Act, 1986 stands in way of the complainant as no part of cause of action arose at Chandigarh, to the complainant, for filing the present complaint before this Commission and therefore, this Commission has no territorial jurisdiction to entertain and try the same.
20. For the reasons recorded above, the application for condonation of delay is dismissed. Consequently, the complaint is also dismissed being barred by time and on merits, with no order as to costs. However, the complainant is at liberty to approach the Civil Court having competent jurisdiction, for redressal of her grievance.
21. Certified Copies of this order be sent to the parties, free of charge.
22. The file be consigned to Record Room, after completion.
Pronounced.
8th April, 2013.
Sd/-
[JUSTICE SHAM SUNDER (RETD.)] PRESIDENT Sd/-
[NEENA SANDHU] MEMBER Ad STATE COMMISSION (Complaint Case No.54 of 2012) Argued by:Sh.Gur Rattan Pal, Advocate for the complainant.
Sh. Sandeep Suri, Advocate for the Opposite Party.
Dated the 8th day of April, 2013.
ORDER Vide our detailed order of even date, recorded separately, the application for condonation of delay has been dismissed. Consequently, the complaint has also dismissed being barred by time and on merits, with no order as to costs. However, the complainant has been granted liberty to approach the Civil Court having competent jurisdiction, for redressal of her grievance.
(NEENA SANDHU) MEMBER (JUSTICE SHAM SUNDER) PRESIDENT AD