State Consumer Disputes Redressal Commission
Senior Manager, Canara Bank vs Shri Nirmal Laxmandas Jeetwani on 24 July, 2017
RBT/A/16/981
BEFORE THE HON'BLE STATE CONSUMER DISPUTES REDRESSAL
COMMISSION, MAHARASHTRA, MUMBAI
Appeal No. RBT/A/16/981 in A/14/819
(Arisen out of order dated 11/07/2013 passed in complaint No.227/2011 by
District Thane)
1. Senior Manager
Canara Bank (Mr.T.K. Paul)
Ambernath East Branch,
Vijay Shopping Complex,
Ambernath, Thane-421501.
Presently residing P-39 Purba Pally
P.O. Haltu, Kolkata-700078.
2. Manager, Canara Bank
(Mr.S.D. Kadlag) wrongly
Mentioned as (P.S. Kadlag)
Ambernath East Branch,
Vijay Shopping Complex,
Ambernath, Thane-421501.
Presently posted at
Retail Asset Hub
Ishan Arcade 1, 1st floor,
Gokhale Road, Naupada,
Thane (W) - 400 602. ...........Appellant (s)
Versus
1. Mr.Nirmal Laxmandas Jithvani
Plot No.415, Sai Dham, 2nd floor,
Suryodaya C.H.Society
Sai Section, Ambernath (E),
Dist. Thane - 421 501.
2. Officer, Canara Bank
Mr.N.G. Bhosale, wrongly
Mentioned as Smt.G. Bosale
Ambernath East Branch,
Vijay Shopping Complex,
Ambernath, Thane-421501.
............Respondent (s)
BEFORE:
Justice A.P. Bhangale PRESIDENT
A. K. Zade MEMBER
For the Mr.A.V. Patwardhan, Advocate a/w.
Appellant: Mr.Ajay Pawar, Advocate for
appellants.
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RBT/A/16/981
For the Ms.Poonam Makhijani, Advocate for
Respondent: respondent No.1.
ORDER
Per Justice Mr.A.P. Bhangale, Hon'ble President This appeal was substantially heard on 21/07/2017. Last opportunity was granted to Learned Advocate appearing for the appellants to cite some rulings to support the submissions. This appeal was heard today finally. We have heard submission of Advocate Mr.A.V. Patwardhan a/w. Advocate Mr.Ajay Pawar for appellants and Advocate Ms.Poonam Makhijani for respondent No.1/org. complainant.
Firstly our attention is invited to order passed by Hon'ble National Commission in Revision Petition No.2394/2015 dated 11/07/2016 whereby the impugned order was set aside refusing to condone delay which was passed by this State Commission and the appeal No.819/2014 was restored to the file of this State Commission for hearing and decision on merit. Thus, appeal is revived. Appeal is filed against the judgment and award passed in consumer complaint No.227/2011 on 11/07/2013 by the Learned District Forum, Thane, whereby upon complaint made by Mr.Nirmal L. Jithvani against Senior Manager, Canara Bank and Manager of Canara Bank as also Officer of Canara Bank, complaint was partly allowed and opponents i.e. Senior Manager, Manager and Officer of Canara Bank were held individually and collectively liable to pay sum of Rs.2,90,000/- together with interest @ 9% p.a. with effect from 09/08/2010 payable within one month, failing which rate of interest was enhanced to 12% p.a. on the outstanding amount. Litigation costs and compensation in the aggregate sum of Rs.10,000/- was ordered to be paid by the opponents to the complainant.
Main grievance of the appellants is that Senior Manager, Manager and Officer of Canara Bank were not personally liable to pay the amounts Page 2 of 8 RBT/A/16/981 either individually or collectively as grievance of the complainant was against Canara Bank on the ground that certain amounts from saving bank account of the complainant were paid in cash on the basis of cheque bearing Nos.0203012 on 25/06/2010 to one Mr.Ravi Kumar and cash amount was paid in the sum of Rs.50,000/-. On 30/06/2010 on the basis of cheque No.0203013 said Mr.Ravi Kumar was paid cash in the sum of Rs.90,000/- and on 13/07/2010 by cheque No.0203014 said Mr.Ravi Kumar was paid cash in the sum of Rs.90,000/- and on 09/08/2010 on the basis of cheque No.0203020 said Mr.Ravi Kumar was paid cash in the sum of Rs.60,000/-. Thus, cash amount of Rs.2,90,000/- in total was paid to said Mr.Ravi Kumar who approached Canara Bank for payment on the basis of cheques drawn upon Canara Bank. Complainant stated that when he updated his saving bank account passbook on 23/10/2010 he came to know about these entries about cash payment made to one Mr.Ravi Kumar. Complainant immediately objected and lodged written complaint with the opponents on 25/10/2010 on the ground that on all four cheques and the entries made in respect thereof are objectionable and complainant never signed any of those cheques and did not know any person by name Mr.Ravi Kumar. Complainant therefore protested and claimed that entire amount allegedly paid to Mr.Ravi Kumar shall be deposited back in the saving bank account of the complainant and entries taken in respect thereof shall be cancelled or rescinded by the opponents. Opponents did not respond to the notice sent by the complainant through Advocate Shri K.C. Raisinghani demanding sum of Rs.2,90,000/- paid in cash on the basis of cheques and compensation in the sum of Rs.1 Lakh was demanded by the complainant. Notices were sent on 21/03/2011 and 26/03/2011 as well but since opponents did not pay as per demand, consumer complaint was lodged on 13/04/2011.
Opponents filed their written version on 26/08/2011 and claimed Page 3 of 8 RBT/A/16/981 that complaint was made against opponents by their individual names and that complaint suppressed the fact that Ulhasnagar Judicial Magistrate First Class has taken cognizance of offence. Opponents did not produce verification documents in respect of signature of the complainant for his saving bank account or verification of signature appearing on the cheques with that of complainant's signature in respect of saving bank account. It is under these facts and circumstances, the Learned District Forum concluded by passing reasoned order that Mr.Ravi Kumar had withdrew cash sum on the basis of cheques which were for sum of Rs.50,000/- and above aggregating to sum of Rs.2,90,000/-. Learned District Forum appears to have compared signatures appearing on the basis of four cheques with signatures of the complainant on the complaint and Vakalatnama to prima-facie record finding that the complainant's signature on the Vakalatnama and complaint did not match with the signatures of the cheques indicating verification of signatures appearing on the cheques were not made by the officials of the Bank. However, payment in cash to the tune of Rs.2,90,000/- were made on the basis four different cheques. Learned District Forum therefore concluded that payments in cash were made without consent of the complainant and concluded further that the opponents were liable to repay that amount to the complainant individually and collectively including litigation costs and compensation in the sum of Rs.10,000/-.
Learned Advocate Mr.Patwardhan urged today that since delay was not condoned by this State Commission, Revision was filed and now that appeal is to be heard on merit. It would be just and proper if the impugned order is set aside and complainant is given an opportunity to amend the complaint so that complainant can incorporate prayer against Bank as well. According to Mr.Patwardhan, Senior Manager, Manager and Officer for that performance of the Canara Bank could not have been held liable Page 4 of 8 RBT/A/16/981 individually or collectively in the absence of Canara Bank as proper party.
Learned Advocate Mr.Patwardhan placed reliance on ruling of Hon'ble Supreme Court in the case of Maksud Saiyed V/s. State of Gujarat & Ors. Decided on 18/09/2007 and cited Para 11,13&14. With reference to Para 11,13&14 he made reference to provisions of Code of Criminal Procedure under Section 200 & 156 regarding application of mind by the Learned Magistrate concerned as to banker's liability on the part of the Managing Director of company when the accused is the company.
Another ruling pointed out with reference to order in Appeal No.210/2008 in the case of Branch Manager, State Bank of India V/s. Sri Saankarial Agrawal & Ors. by State Consumer Disputes Redressal Commission, Orissa, in Para 6, he submitted that for human error attributed to the failure of the system, appellant/Branch Manager of State Bank of India, was not held personally liable. In that case, State Bank of India had issued demand draft worth Rs.1,20,000/- payable at State Bank of India, Rabindranath Tagore Nagar Branch, Bangalore. Complainant required those drafts for payment of admission fee of son of complainant No.1 at Bangalore. Local guardian of the son of complainant No.1 had presented demand drafts to the State Bank of India Rabindranath Tagore Nagar Branch for collection of Rs.1,20,000/- but drafts were dishonoured by opponent No.2 due to wrong entry of demand draft number and branch code number by opponent No.1. Due to non-encashment of demand drafts, son of complainant No.1 could not take admission in time and sustained mental agony and financial hardship due to defective demand drafts. In said facts and circumstances, Orissa State Consumer Commission held that the appellant could not have been held liable and that too personally.
Third ruling pointed out by Advocate Mr.Patwardhan is of this State Commission in First Appeal No.1070/2016 in the case of Manager, Page 5 of 8 RBT/A/16/981 Yashodhara Co-op. Credit Society Ltd. Sangli & Ors. V/s. Ku.Sanjana Baban Bhosale decided on 03/02/2017. In that case, appellants being Directors of Credit Society were not held personally liable for the amount deposited by the original complainant with Yashodhara Co-op. Credit Society Ltd, Sangli. This submission was accepted with reference to judgment of Hon'ble Supreme Court in Special Leave Petition No.14085/2013 (Deposit Insurance & Credit Gaur.Corpn. V/s. Rajendra Madhukar Deval & Ors.).
We have gone through the submissions in the light of rulings cited. Let us now consider whether rulings are attracted in the facts and circumstances pleaded and argued in the present case.
On behalf of respondent/complainant submission is advanced with reference to Circular of the Reserve Bank of India bearing No.DBOD No.BP.BC.114/C.469(81)-91 dated 19/04/1991 addressed to the Chief Executives of all Scheduled Commercial Banks regarding misuse of Banking Channels for Violation of Fiscal laws and Evasion of Taxes and Manipulation of records of business transactions leading to leakage of revenue to the exchequer and regarding fictitious names used for depositing large sums in cash or withdrawn for payment. Circular was issued to curb misuse of banking channels and direction was issued that demand drafts, mail transfers, telegraphic transfers and travellers cheques for Rs.50,000/- and above should be issued by the banks only by debit to the customer's account or against cheques or other instruments tendered by the purchaser and not against cash payment. Thus, cash payment of Rs.50,000/- and above should be made through banking channels and not in cash. This circular was issued on 19/04/1991.
Our attention is also invited to the execution proceeding No.150/2014 which was filed on 18/12/2014 by the executant/complainant-respondent No.1 herein against the opponents in Page 6 of 8 RBT/A/16/981 the complaint. Precipe was filed before the Learned District Forum, Thane whereby opponents chose to issue demand draft pursuant to order passed by the Learned District Forum and expressed their no objection whatsoever for to disburse said amount to the complainant. This precipe bears signature of opponent and their Advocate Padmaja Satam and accordingly, complainant also issued receipt dated 01/09/2014 in favour of opponent acknowledging payment of the award amount. Copy of the demand draft is also brought to our notice which indicates that sum of Rs.1,46,972/- was payable to the complainant by demand draft dated 01/09/2014. Under these circumstances, it is submitted that the execution proceeding itself ended due to satisfaction of the award before the Learned District Forum, Thane. Learned Advocate for the respondent/complainant, therefore, submitted that now nothing is survived in the appeal as award is satisfied by consent of the parties by joint preceipe filed on record.
In our view question as to liability of the Canara Bank and the officials regarding payment made in cash to one Mr.Ravi Kumar therefore remains an issue between opponents and the Canara Bank and said Mr.Ravi Kumar. Under the circumstances, since complainant has already recorded satisfaction of having received the awarded amount, the appellants are therefore at liberty to recover the amount paid by them, if they are so advised; from the Canara Bank and/or from Mr.Ravi Kumar to whom the amounts were paid in cash as alleged by the appellants. Appellants may exercise their liberty accordingly. We therefore under these circumstances need not enter into the question as to whether the Canara Bank was primarily liable or its officials including Senior Manager, Manager, etc. were vicariously liable for payment made in cash as wisdom demanded such a huge amount ought not to have been paid in cash to unknown person without pre-intimation to the accountholder. Be that as it may. Appellants have already paid off the amount to the Page 7 of 8 RBT/A/16/981 complainant acknowledging their liability for to pay the awarded amount. In our view, when an unknown person approaches official particularly, responsible official like Manager or Cashier concerned for making cash payment in huge sum or at least sum of Rs.50,000/- or more as indicated by the Reserve Bank of India's Circular referred above, care and precaution has to be taken by the officials or cashier concerned before making such payment exceeding sum of Rs.50,000/- to an unknown person claiming cash payment. Payment made in such cases shall violates circular or guidelines issued by the Reserve Bank of India and liability will have to be decided as to whether the officials concerned becomes liable on behalf of Bank whose benefit is taken by third person claiming payment. With these observations since it is brought to our notice that claim of the complainant stood satisfied in execution proceedings before the Learned District Forum, Thane, no further order need to be passed in the matter by us. Appeal is therefore disposed of as dismissed accordingly. No order as to costs. Copies of the order be furnished to the parties. Pronounced Dated 24th July 2017.
[ Justice A.P. Bhangale ] PRESIDENT [ A. K. Zade ] MEMBER dd.
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