State Consumer Disputes Redressal Commission
Axis Bank Limited vs Dinesh Aggarwal on 3 December, 2014
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.1385 of 2011.
Date of Institution: 12.09.2011.
Date of Decision: 03.12.2014.
Axis Bank Limited, The Mall, Ferozepur City, through its Branch Manager.
.....Appellant/Opposite Party.
Versus
Dinesh Aggarwal, aged 38 years, S/o Nirmal Kumar, R/o Dal Chand
Building, Tahli Mohalla, Ferozepur City, Proprietor M/s Aggarwal
Decorators.
....Respondent/Complainant.
First Appeal against order dated
20.07.2011 passed by the District
Consumer Disputes Redressal Forum,
Ferozepur.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member.
Shri Jasbir Singh Gill, Member.
Present:-
For the appellant : Sh. Vinod Khunger, Advocate.
For the respondent: None.
.............................................. J. S. KLAR, PRESIDING JUDICIAL MEMBER:-
The appellant (opposite party in the complaint) has filed this appeal against order dated 20.07.2011 passed by the District Consumer Disputes Redressal Forum, Ferozepur (in short, "the District Forum"), First Appeal No.1385 of 2011 2 accepting the complaint of the respondent of this appeal (complainant in the complaint) and awarding compensation, as detailed therein.
2. The brief facts of the complaint are that Sh. Dinesh Aggarwal, complainant filed the complaint u/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the opposite party, on the averments that the complainant was induced by the officials of the opposite party bank , whereupon, he opened an account of his firm, vide No.313010200000453. The complainant has been operating the said account by way of depositing the amounts and, as such, he is consumer of the opposite party. The complainant issued the account payee cheque to one Gulshan Lal S/o Roor Chand, R/o Ferozepur City, bearing No.0055919 dated 15.12.2010, in as much as, the complainant was having sufficient amount in his above said account, when he issued the above cheque. The cheque was dishonoured and the complainant came to know about it, when he received legal notice u/s 138 of Negotiable Instruments Act from said Gulshan Lal. The memo was prepared regarding remarks 'account closed/blocked'. The said blocking of the account is beyond the understanding of the complainant and the same was done by the opposite party, without properly informing the complainant about it. The complainant issued legal notice to the opposite party, but to no effect. The opposite party is deficient in providing service to the complainant on this score. The complainant has, thus, filed this complaint, praying that the opposite party be directed to release the above mentioned account of the complainant immediately from the blocking, besides payment of compensation of Rs.50,000/- and litigation expenses of Rs.11,000/-.
3. Upon notice, opposite party appeared and filed written reply, taking preliminary objections that the complainant has concealed the material facts from the Consumer Forum. The complaint merits dismissal First Appeal No.1385 of 2011 3 with heavy costs. Brief facts of the case are that Rajesh Dhawan S/o Om Parkash, r/o H.No.24/17, Chatti Gali, Ferozepur City, was holding account with Axis Bank and he sent notice to the Axis Bank, Ferozepur City on 16.12.2010, stating that his cheque bearing No.8871 of account no.313490 of Rs.40,000/- has been lost anywhere. He further stated that he has not given any such cheque of Rs.40,000/- to anybody for getting it encashed from the bank. He further stated that there was only balance of the amount of Rs.38,635.68 in his account, hence Rs.40,000/- cannot be withdrawn on the basis of short money in his account. He further stated not to make the payment, if the said cheque is presented to the bank. Danesh Aggarwal, complainant, who was holding the cheque presented it for encashment of Rs.40,000/-, but he himself deposited Rs.2500/- from his own pocket through the bank voucher in the account No.313010200004374 relating to Rajesh Aggarwal and he got the amount of Rs.40,000/- from the bank. When this fact came to the notice of the bank manager, he sent message to the complainant, requesting for settlement of the dispute, but the complainant had not agreed to it. Copy of the notice received from Rajesh Dhawan was also attached with the notice sent to the complainant. The bank officials asked to the complainant to deposit the amount of Rs.40,000/-, but he did not agree to settle the amount. Hence, the bank marked lien and blocked the account of complainant. The complaint was resisted even on merits on the above- referred points by the opposite party. It was further pleaded that the dispute is pending regarding the payment of Rs.40,000/-. The complainant has concealed material facts from the Consumer Forum. The complainant got the amount of Rs.40,000/- form the account of Rajesh Dhawan relating to the said lost cheque. The opposite party controverted the other First Appeal No.1385 of 2011 4 averments of the complainant and, thus, prayed for dismissal of the complaint.
4. The complainant tendered in evidence his affidavit Ex.C1 along with documents Ex.C-2 to Ex.C-14. To rebut it, the opposite party tendered affidavit of Kuldarsh Thapar, its Branch Manager Ex.R-1, notice Ex.R-2, intimation sent by M/s Dhawan Construction Co. Ex.R-3, copy of cheque dated 01.09.2010 Ex.R-4, statement of account No.313010200004374 for the period 01.11.2010 to 31.12.2010 Ex.R-5. Ex>R-6 is the reply to the legal notice. Ex.R-7 is the statement of account for the period 01.11.2010 to 31.12.2010. Ex.R-8 is the regd. notice sent to the complainant. Ex.R-10 is the voucher, vide which the amount of Rs.2500/- was deposited on 11.11.2010 in account No.313010200004374. Ex.R-11 is the cheque return register record. On conclusion of evidence and arguments, the District Forum accepted the complaint of the complainant and directed the opposite party to promptly release/unblock the account of the complainant and to pay Rs.5,000/- as compensation and Rs.2,000/- as litigation expenses to the complainant. Aggrieved by the impugned order of the District Forum, the opposite party has come up in this appeal.
5. We have heard learned counsel for the appellant, as none appeared for the respondent and have also examined the record of the case.
6. The submission of the appellant before us is that the District Forum has not appreciated the controversy in the proper perspective in this case. It was argued that the complainant has withdrawn an amount of Rs.40,000/- by way of cheque from the account of Rajesh Dhawan, by himself depositing the less amount of Rs.2500/- in the account before withdrawal of the cheque. The deposit receipt is Ex.R-10 on the record. It First Appeal No.1385 of 2011 5 was contended that Rajesh Dhawan gave letter Ex.R-3 to the appellant bank on 11.11.2010 and thereafter sent a complaint dated 15.12.2010 Ex.R-2 to the bank. On that basis, notice was issued to the complainant, but he has replied, vide Ex.R-6, Ex.R-8 and Ex.R-9, but the District Forum ignored them. The account of the complainant being an ATM account, a minimum balance of Rs.5,000/- has to be maintained and the cheque issued by the complainant was rightly dishonoured by the bank. On the other hand, the pleading of the complainant is that the cheque was issued by Rajesh Dhawan to the complainant on account of his due payment for the building material and other goods purchased by him from the complainant. Rajesh Dhawan issued the cheque bearing no.8871 dated 29.07.2010 to the complainant, as payment of the amount for Rs.50,000/-. It indicates that there were business dealings between the complainant and Rajesh Dhawan. The complainant was also holding account with the opposite party bank. Earlier cheque was got encashed by the complainant in normal course and the officials of the opposite party duly encashed it. The opposite party after receipt of this letter from the drawer of the cheque Rajesh Dhawan, blocked the account of the complainant, as he managed to encash the cheque of Rs.40,000/-.
7. The submission of the appellant is that if there was any dispute of settlement between the complainant and Rajesh Dhawan, the opposite party was not required to intervene in it. The District Forum recorded this observation that by intervening in this matter, the bank/appellant became a party to the dispute between the complainant and Rajesh Dhawan. The District Forum recorded this finding that the complainant neither presented forged cheque nor committed any fraud with the bank and, as such, there was no justification in blocking the account of the complainant. Rajesh Dhawan could have filed the suit for First Appeal No.1385 of 2011 6 recovery against the complainant and the bank officials had no locus standi in this matter.
8. The opposite party based its case on Ex.R-2, the letter addressed to the manager by Rajesh Dhawan for depositing Rs.2500/- by some person in his account and thereafter withdrawing the amount of Rs.40,000/- from his account, wherein Rs.38,635/- was lying. Ex.R-3 is letter addressed by M/s Dhawan Construction Co. to the manager of the opposite party bank regarding debiting the amount of Rs.40,000/- from his account No.313010200004374, vide cheque no.8871 dated 11.11.2010, which was not issued by him. It is, thus, evident that Rajesh Dhawan brought this fact to the notice of the opposite party bank on 11.11.2010 that he had not issued cheque no.8871 drawn on his account No.313010200004374. The cheque Ex.R-4 was issued on 01.09.2010, which is self cheque. The amount was withdrawn on 11.11.2010 by means of cheque no.8871, which is self. The amount was withdrawn on 11.11.2010 by Rajesh Dhawan, who sent letter dated 11.11.2010, intimating the opposite party that he has not issued the above cheque. We find that once this fact has been brought to the notice of the opposite party by Rajesh Dhawan by means of letter Ex.R-3 dated 11.11.2010 that he has not issued the cheque in question, which has been encashed by the complainant, vide cheque no.8871 dated 11.11.2010, therefore, the opposite party was fully justified in our view in blocking the account of the complainant. When the drawer of the cheque specifically brought this fact to the notice of the opposite party that he has not issued cheque no.8871, therefore, the opposite party by exercising the bank lien has a right to debit the amount of Rs.40,000/- from the account of the complainant, where this amount was encashed in an unjustified manner. Consequently, we find that the District Forum has taken an erroneous view of the matter. First Appeal No.1385 of 2011 7 The opposite party/appellant is not deficient in rendering services to the complainant, when this fact was specifically brought to its notice by Rajesh Dhawan, by means of letter Ex.R-3, that this cheque was not issued by him, which was got encashed by the complainant. The opposite party is certainly entitled to exercise the bank lien over the amount, which has been unauthorizedly withdrawn by the complainant in the presence of letter Ex.R-3 by the drawer of the cheque, Rajesh Dhawan to the opposite party. Resultantly, we do not agree with the findings of the District Forum on this point. The order passed by the District Forum is not sustainable in this appeal and deserves to be set aside.
9. There is no question of the opposite party to become a party in this case, when the drawer of the cheque has specifically brought this fact to the notice of the bank that the cheque in question has not been issued by him and hence, it be not encashed. The opposite party has to abide by the orders of the drawer of the cheque, where he specifically stated that the cheque in question has not been issued by him.
10. As a result of our above discussion, we accept the appeal of the appellant and by setting aside the order of the District Forum under appeal in this case, the complaint of the complainant is hereby dismissed, leaving the complainant at liberty to seek the settlement of his dispute with the drawer of the cheque Rajesh Dhawan in the regular Forum under law.
11. The appellant had deposited the amount of Rs.3500/- with this Commission at the time of filing the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to appellant by way of a crossed cheque/demand draft after the expiry of 45 days.
12. Arguments in this appeal were heard on 28.11.2014 and the order was reserved. Now the order be communicated to the parties. The First Appeal No.1385 of 2011 8 appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER December 03, 2014.
(Gurmeet S)