State Consumer Disputes Redressal Commission
Apple-I Entertainment Pvt Ltd vs Axis Bank Ltd on 27 April, 2022
Details DD MM YY
Date of Judgment 27 04 2022
Date of filing 15 07 2014
Duration 12 09 07
IN THE CONSUMER DISPUTES REDRESSAL COMMISSION,
GUJARAT STATE AT AHMEDABAD.
Consumer Complaint No. 197/2014
Court No.1
1. Apple-i entertainment Pvt. Ltd.
A Company incorporated under
The provisions of the companies act, 1956
Having its office At; 6, Sampan -I Bunglows,
Behind Jalsa Party Plot, Thaltej,
Ahmedabad.
2. Jaspalsinh Ranjitsinh Vala,
6, Sampan -I Bunglows,
Behind Jalsa Party Plot,
Thaltej,
Ahmedabad. ...Complainants
Vs.
Axis Bank Limited,
Law Garden Branch,
"Trishul", opp. Samrtheswar Temple,
Law Garden, Ahmedabad - 380006 ...Opponent
Appearance - Learned Advocate Mr. H. N. Dave for the complainants
Learned Advocate Mr. V. M. Pancholi for the opponent
Coram : Hon'ble Mr. Justice V. P. Patel, President
Mr. I.D. Patel, Judicial Member
Ms. A.C.Raval, Member Order by Mr. I. D. Patel, Judicial Member
1. The present Consumer complaint has been filed under section u/s. 17 (A) (i) of the Consumer Protection Act, 1986 (For short "The Act) by apple
- I Entertainment Pvt. Ltd. And Jalspalsinh Ranjitsinh Vala (herein after Richa CC-14-197 Page 1 of 18 referred as to the complainant)0. against the opponent Axis Bank Ltd. seeking relief of the compensation of Rs. 71,50,000/- for the negligence carelessness and mistake of opponent bank which resulted into deficiency in service.
2. The conspectus part of the materials facts giving birth to the present compliant may shortly be narrated at the outset so as to appreciate the merit of the compliant and challenged against it. That the "1.compliant no. 1 is a private limited company registered under the companies act, 1956 and complainant no. 2 is director of the said company. The complainants (for short, hereinafter referred to as the complainant' opened an account with opponent Bank. It is alleged in the complaint that out of three Directors of the company, any two Directors were authorised signatories and signing authority for and on behalf of the company with the opponent bank. Necessary instructions were given to the opponent bank by the complainant company on15.12.2011.Despite clear mandate given by the complainant with respect to operation of the bank account etc. the bank did not take effective steps and it was done only on 12.7.2012. It has been alleged by the complainant that in the meantime, the bank allowed various withdrawals by self withdrawals by cheques or cheques written in favour of third party by one of the Directors viz. Shaktisinh Vaghela alone and total amount of Rs. 36 lakhs has been withdrawn from the account of the complainant during the period 15.12.2011 and12.07.2012. The complainant also lodged complaint with Vastrapur Police station. Alleging deficiency in service on the part of the opponent bank, the complainant filed complaint before this Commission." Claiming the compensation Rs. 71,50,000/- from the opposite bank on various heads in terms of para 9 of the complaint.
3. That the opponent bank has been dully served with the notice Learned Advocate Mr. V.M Pancholi has appeared on behalf of the opponent Axis Bank and filed reply of the compliant at Exh. 17. The opponent has not admitted facts narrated in the complaint and more particularly the careless negligence and deficiency in service on the part of the opponent same for not making change in mode of the operation in bank account in Richa CC-14-197 Page 2 of 18 the system of bank inspite of clear mandate given by the complainant to the opponent bank. It is furthermore contented by the opponent bank in the written statement that the complainant is not maintainable under the provision of Consumer Protection Act. Since the complainant is not consumer as per the definition of the Consumer Protection Act. Further more opponent bank has also contented that the complainant no. 1 might have pass any resolution however the opponent bank was never informed about such resolution. As a matter of fact complainants have passed the resolution on dated 1.04.2012 for the approval for modification in authority to operate the current with operative bank. However opponent bank was informed about the resolution dated 1.04.2012. Further more opponent bank has also contented that even if it is presumed that bank has allowed to pass the cheque with the signature of one signatory of the company the dispute is only between the directors of the company and not with the opponent bank so complainant have legal remedy to recover the illegal withdrawn if any by their co-direction. Further more opponent bank has also contented in the written statement that Shaktisigh Vagehla Director of the company has committed fraud with the company therefore the complainant ought to have take appropriate civil remedy against the Shaktisigh Vagehla to recover the amount alleged to be misappropriated by the him. Further more the opponent bank has specifically raised defence in the written statement in para 17 that complainant has not filed the compliant within the period of limitation prescribed as per the provision of the Consumer Protection Act from the date of arisen of cause of action. Complaint is filed on 15.07.2014, after two years from the date on which cause of action was arisen. Which is time barred complaint, not only that complainant has not filed any separate application for condonation of delay. Therefore, the complaint filed by the complainant is required to be dismissed on the ground of limitation. According opponent bank has prayed to dismiss the complaint with the cost.
4. That a complainant in support of their complaint produced the following documentary evidence:
Richa CC-14-197 Page 3 of 18 Sr. Annexure Particulars Page
No. No.
1 A A copy of certificate of 11
incorporation dated 21.12.2010
2 B A copy of Board Resolution 12-15
dated 9.2.2011
3 C A copy of letter by Director to 16
company dated 15.12.2011
4 D A copy of Board Resolution 17
dated 5.12.2011
5 E A copy of Form No. 32 for 18-20
Jaspalsinh vala appointment
6 F A copy of Form of Form no. 32 21-23
for Shaktisinh Vaghela for cessation
7 G A copy of letter written by 24
Shaktisinh Vaghela to company
dated 1.4.2012
8 H A copy of Board resolution 25
dated 1.4.2012
9 I A copy of FIR No. 1st C.R. 26-32
566/2012 dated 13.10.2012
10 J A copy of statement dated 13.10.2012 33-34
of Jaspalsinh Vala
11 K A copy of statement dated 13.10.2012 35-36
of Pratipalsinh Jadeja
12 L A copy of statement dated 5.11.2012 37-40
of Jaspalsinh Vala
13 M A copy of statement dated 5.11.2012 41-44
of Pratipalsinh Jadeja
14 N A copy of statement dated 6.5.2012 of 45
Shilpang Kariya
15 O A copy of statement dated 6.5.2012 of 46-47
Vikas Sanghavi
16 P A copy of statement- dated 24.5.2012 48-51
Richa CC-14-197 Page 4 of 18
of Jaspalsinh Vala
17 Q A copy of statement dated 24.5.2013 52-55
of Pratipalsinh Jadeja
18 R A copy of statement dated 3.6.2013 of 56
Vinayak Nayi
19 S A copy of statement dated 7.6.2013 of 57-58
Anuradhaben
20 T A copy of statement from the 59-70
concerned associated with the bank
from 4.7.2013 to 27.6.2013
21 U A copy of charge-sheet dated 5.8.2013 71-73
22 V A copy of statement of account 74-79
23 W A copy of Board Resolution 80
5. That the ld. Advocate for the complainant has submitted written submission/written synopsis stating date wise event and particulars of the compliant in great detail and also submitted written submission in rebuttal of written synopsis filed by the opponent. That the ld. Advocate of the complainant has also submitted following judgments:
Sr No. Reported in Names of parties 1 AIR 2005 SC 1638 N. Balaji Versus Virendra Singh 2 2008 3 CPJ (NC) Dynan Mandir shiksan 189 Santha Versus the receiver, Nagpur, Dist. Central... 3 2010 AIR SCW 4799 Bhagmal & Ors. Versus Kunwar lal & Ors. 4 2012 (2) CPJ (NC) Chambal Fertilisers & Chemicals ltd. 312 Versus IFFO-TOKIO General Insurance Co. Ltd. 5 2016 (3) Apex CJ Loundes Society Snehajali Girls Hostel (SC) 101 Versus H & R Johnson (India) Ltd. 6 2017 (2) SC Apex National Insurance Co. Ltd., Versus CJ (SC) 151 Hindustan safety glass 7 Supreme Court Chairman & Managing Director UCO FA 106/2014 order Bank Versus Tax Publisher Dated 31.08.2017 8 Civil Appeal no. 9198 of Sesh Nath Singh &Anr. v/s Baidyabati 2019 of Supreme court Sheoraphuli Co-Operative Bank Ltd Dated 22.3.2021 & Anr. Richa CC-14-197 Page 5 of 18
6. Per corta ld. Advocate of Axis Bank Mr. V.M. Pancholi has also submitted their written synopsis and he has also submitted following judgments:
Sr. no. Citations Name of parties
1 II (2009) CPJ 29 (SC) SBI v/s B.S. agricultural
Industries
2 FA. 516/2012 by NCDRC dated Babubhai Bhagvanji C. Ltd.
19.8.2020 v/s New India Assurance Co.
Ltd.
3 IV (2009) CPJ 220 (NC) Tara chand lal chand v/s
Oreintal Bank of Commerce
4 II (2018) CPJ 563 (NC) Saju Stephen v/s Punjab
National Bank
5 I (2012) CPJ 253 (NC) Central Bank of India v/s
Madanlal Saran
7. Argument of ld. Advocate of the complainant:
That the ld. Advocate of the complainant Mr. H. N. Dave has submitted that as per para 13 of the complaint the opponent bank was informed to make necessary change in the bank account operating system on 15.12.2011.However the bank has effected the said change in account operating mode of operation only on 12.7.2012 the same came to the knowledge of the complainant no. 2 when the complainant lodged the FIR on 13.10.2012 and charge-sheet was filed on 29.7.2013 and from the documents submitted by the bank it has gathered about the deficiency in service provided by the bank. Hence this cause of action which is otherwise continue one and accordingly the present complaint was filed on 15.7.2014 is well within the period of limitation. Further more ld. Advocate of complainant Mr. H.N.Dave has submitted that the judgment cited by the ld. Advocate of the opponent Mr. V.M. Pancholi of the Hon'ble Apex Court in case of State Bank of India v/s B.S. Agricultural Industries reported in II (2009) CPJ 29 (SC) is concern the same is not applicable absolutely and it is against the opponent as much as the complaint is well within the period of limitation and it is not barred by the time. Further more ld. Advocate Mr. H.N.Dave has submitted that the complainant has produced the latest judgment of the Hon'ble Supreme Court rendered in Civil Appeal no. 9198 of 2019 in case of Sesh Nath Richa CC-14-197 Page 6 of 18 Singh & Anr. v/s Baidyabati Sheoraphuli Co-Operative Bank Ltd &Anr. dated 22.03.2021 of Hon'ble Apex Court and as per para no. 102 of the judgment a Hon'ble Apex Court has categorically held that the delay can be condoned irrespective of whether there is an formal application, if sufficient material on record disclosing sufficient cause of delay. Further more ld. advocate Mr. H.N. Dave has been submitted that as per the decision of Hon'ble Apex Court in N. Balaji v/s Virendra Sinh reported in AIR 2005 SC 1638. There is no requirement of to file separate application for condonation of delay and authority on condon delay if sufficient cause discuss in the petition. So as per the submission of the ld. Advocate Mr. H.N. Dave the compliant is filed within the prescribed time limit and even if there is a delay the complainant shows sufficient cause of delay, hence delay can be condoned and separate application for condonation on delay is not necessary.
8. That on the point of careless negligence and deficiency on the part of the opponent bank for not changing mode of operation of account of the complainant in the computer system of the bank and thereby allowing illegal withdrawal of 36,00,000/- from the bank account of the complainant. Ld. Advocate Mr. H. N. Dave drawn the attention of the Commission towards the various statement recorded by the police during the course of investigation in the criminal compliant lodged by the complainant in Vastrapur Police Station for the offence punishable under section 406 and 420 IPC. Ld. Advocate of the complainant Mr. H. N. Dave has drawn the attention the statement dated 4.7.2012 Shri Vishalbhai Kadiya who happens to be relationship manager in the Axis Bank wherein he has categorically admitted that he has received on 15.12.2011 mandate of change of mode of operation of the bank account of complainant company and he had handed over the same to the one employee of the bank namely Panktiben Parikh for making necessary change in the system of bank the mode of operation of the bank. Further more ld. Advocate Mr. H. N. Dave has also drawn the attention to the statement of Panktiben Parikh on 4.7.2013 wherein she had also admitted that she had received the mandate of the complainant from Vishalbhai Kadiya and she had also stated that Axis Bank mode of Richa CC-14-197 Page 7 of 18 operation system is in the computer. Hence, new specimen signature of the directors was required to be carried out in the computer of the bank but through oversight she has failed to changed the mode of operation in the computer system of the bank. Further more ld. Advocate Mr. H. N Dave has also drawn the attention of the statements of another bank employee namely Gracy o. Anto, Denishaben Hasmukhbai Tanna, Piyush Hasmukhlal Upadhaya and all the bank employee have also categorically admitted that bank has received the mandate regarding the change of mode of operation from the complainant company. So as per the submission of the ld. Advocate Mr. H.N. Dave though the bank had received the mandate regarding change of mode of operation in the bank account of the company the bank had failed to change the same in the system and that amount to be carelessness, negligence and deficiency in the service on the part of the bank and on account of such negligence and carelessness bank had allowed to illegally withdrawn amount of Rs. 36,00,000/- . From the complainant bank account. That ld. Advocate of the complainant has placed reliance on the decision of the 2008(3) CPJ 189 Dynan Mandir Shikan Santha v/s the receiver, Nagpur, Dis. Central Co-operative Bank.
9. Argument of ld. Advocate of the opponent:
Per contra the ld. Advocate Mr. V. M. Pancholi has strenuously submitted that on the perusal of the compliant filed by the Jaspalinh Ranjitsinh Vala i.e. complainant no. 2 before the Vastrapur police station against Shri Shaktisinh Vaghela and on perusal of the statements of another partner Pratipalsinh Jadeja on of bank statement of the complainant. After resignation by Shaktisinh vaghela complainant came to know that about Rs. 33,00,000/- had been withdrawal from bank account by Shaktisinh Vaghela and thereafter Shaktisinh Vaghela made false assurance to complainant for refund of money and also filed kabulatnama on affidavit on 14.9.2012. Hence actual cause of action commence on the last date of transaction of bank account statement. Further more ld. Advocate of the Axis Bank Mr. V. M. Pancholi has also submitted that even on perusal of the bank transaction statement for the period of 1.9.2011 to 16.2.2012 produced by the complainant along with Richa CC-14-197 Page 8 of 18 the complaint the last transaction to be placed on 16.2.2012.So on 16.2.2012 also it was within the knowledge of the complainant that there was illegal withdrawn amount from the complainant bank account by Shaktisinh Vaghela. So actual cause of action for filing compliant commence after 16.2.2012 and therefore, considering the same date as cause of action the complainant has to filed the complaint within the period of 2 years which comes to an end on 16.2.2014 but the present complaint is filed by the complainant on 15.7.2014. So the present complaint filed by the complainant is time barred. Further more ld.
Advocate Mr. V. M Pancholi has submitted that the when complaint is time barred then as per the decision of Hon'ble Apex Court in State Bank of India v/s B.S. Agricultural Industries reported II(2009) CPJ 29 (SC) the complaint is not maintainable in eye of law. Further more he has also submitted that as per the said decision of the Hon'ble Apex Court when no separate application for condaonation of delay is filed by the complainant nor complainant has shown sufficient cause of delay then complaint is not maintainable. Hence he has submitted that in this case the complainant has filed the complaint after period of limitation prescribed in the act. The complainant has not filed any separate application for condonation of delay and complainant has not shown any sufficient cause for delay and filing the compliant and therefore, the compliant filed by the complainant is liable to dismiss on the ground of limitation.
10. Further more ld. Advocate Mr. V. M. Pancholi on behalf of Axis bank has submitted that the statement of the bank employees recorded by the police during the course of investigation has no evidently value and on the basis of their statement it cannot be believed that there was a carelessness, negligence or deficiency in service on the part of the Axis Bank for not making change of mode of operation in the system of bank as per the mandate of the bank. Further more he has also submitted that a complainant has miserably failed to prove by leading independent evidence that bank had received the mandate regarding the change of mode of operation in the account as per the say of the complainant and bank has failed to do so. So the complainant has miserably failed to Richa CC-14-197 Page 9 of 18 prove that there was any carelessness, negligence and deficiency in service on the part of the opponent bank. That the ld. Advocate Mr. V.M Pancholi alternatively submitted that if the Commission comes to the conclusion that there is a deficiency in service or negligence on the part of the bank for not changing the mode of operation of the bank account of the complainant in the system of the bank which is resulted into illegal withdrawn of Rs. 36,00,000/- even then complainant is not entitled total amount of Rs. 36,00,000/- by way of compensation from the opponent bank and complainant is only entitled some reasonable lump-sum amount by way compensation for the deficiency in service on the part of bank and for the said argument he has placed reliance upon the decision of National Consumer Disputes Redressal Commission in Saju Stephen v/s Punjab National Bank reported in II (2018) CPJ 563 and on the decision of the National Consumer Dispute Redressal Commission in Central Bank of India v/s Mandanalal sharan reported in I (2012) CPJ 253. And accordingly Mr. V. M. Pancholi has submitted that in this case also on account of deficiency in service on the part of the opponent bank the complainant can get maximum Rs. 50,000/- by way of compensation including cost.
11. Merit of the case:
We have given thoughtful consideration to submission made by the ld. Advocate of the parties. We have also perused the complaint, written statement, documentary evidence and other material on record including written arguments of ld. Advocate of the parties and their judgment in great details.
12. Limitation period:
That the first and foremost issue or the point which is required to be decided by this commission in this matter is whether the compliant filed by the complainant is within the prescribed time limit as per the relevant provision of the consumer protection act or not and if the complainant filed the compliant within the prescribed time limit then complainant has to filed a separate application for condonation of delay showing sufficient cause of delay and such separate application for condonation of delay is Richa CC-14-197 Page 10 of 18 necessary for condonation of delay. That aspects are required to be decided on the basis of relevant provision of the Consumer Protection Act1986,settled legal position the judgments of Hon'ble Apex Court and Hon'ble National Commission and also on the basis of the available material on record.
13. That section 24(A) of the Consumer Protection Act 1986 provides prescribed the period of limitation for filing compliantunder the act and power of condonation of delay on showing sufficient cause which reads as under:
"24 (A) Limitation period.- (1) The District Forum, the State Commission or the National Commission shall not admit a complaint unless it is filed within two years from the date on which the cause of action has arisen.
(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint as this such period:
Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay."
14. On perusal of the section 24 (A) of the act. Complaint has to be filed within two years from the date on which the cause of action arisen and if the compliant is filed after the period of two years, then complainant has to satisfy the Commission that he had sufficient cause for not filing the complaint within the such period. That here in this case admittedly the complainant has filed the complaint on 15.7.2014.That the ld. Advocate for the complainant Mr. H.N.Dave has placed reliance upon the latest decision of the Hon'ble Supreme Court rendered in Civil Appeal No. 9198 of 2019 in Sesh Nath Singh & Anr. v/s Baidyabati Sheoraphuli Co- Operative Bank Ltd. & Anr. Dated 22.3.2021. And as per the para 102 of the said judgment that delay condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay. But in para 64 of the said judgment the Hon'ble Apex Court has also stated that the however the court can always insist that an application or an affidavit showing cause of delay be filed. No applicant/appellant can claim condonation of delay Richa CC-14-197 Page 11 of 18 under section 5 of the limitation act as of right, without making an application. So as per the said judgment also if the complaint is not filed by the complainant within the prescribed time limit as per the under section 24 (A) of consumer protection act 1986. Then the complainant has to filed a separate application for condonation of delay disclosing sufficient cause of delay.
As per the decision of the Hon'ble Apex Court in case of N. Balaji v/s Virendra Singh reported in AIR 2005 SC 1638 also there is no need to file separate application for condonation of delay and delay can be condone on showing sufficient cause. But the as per the latest judgment cited by the ld. Advocate Mr. V.M. Pancholi for the opponent bank. Hon'ble Apex Court in the case of State Bank of India v/s B.S. Agricultural Industries reported in II (2009) CPJ 29 (SC). Wherein the Hon'ble Apex Court has categorically held that if the complaint not filed is within the prescribed time limit then the compliant is time barred and no separate application for condontion of delay is filed and no sufficient cause for delay shown then the question of condonation of delay does not arise.
15. Here in this case as per the submission of Ld. advocate of the complainant that looking to the facts stated in the para 13 of the complaint cause of action for filing the compliant against the opponent Axis Bank for filing compliant showing carelessness, negligence and defiecncy in service is continued upto filing of charge-sheet i.e, upto 29.07.2013 and compliant was filed on 15.07.2014 that is within the period of two years and therefore, complaint is within the limitation. In this matter the complainant has produced entire papers of the investigation i.e paper of charge-sheet of the criminal complaint against the Shaktisinh Vaghela for the offence punishable under section 406 & 420 of IPC and the complainant has also produced statement of bank account of the complainant for the period of 1.09.2011 to 16.02.2012 hence said documentary evidence are required to be looked in to order to determine or to arrive at the conclusion when actual cause of action for filing of this complaint against the opponent Axis Bank had arisen. That if we perused the complaint filed by the complainant Jaspalsinh Vala on Richa CC-14-197 Page 12 of 18 13.10.12 against the Shaktisinh Vaghela before the Vastrapur police station and perused the statement of Pratipalsinh Jadeja recorded by the police inspector on 13.10.2012.On perusal of the same it appears that the complainant as well as another director of the company Pratipalsinh Jadeja were knowing that Shaktisinh Vaghela had illegally withdrawn the Rs. 33,00,000/- from the account of the complainant on verification of the transaction of the bank accounts which is produced by the complainant in this case. And thereafter, on 14.9.2012 Shaktisinh Vaghela had given undertaking on affidavit that he had withdrawn lakhs of rupees from the bank account of complainant that means on verification of the bank statement for the period of 1.9.2011 to 16.2.2012 the complainant and another director Pratipalsinh Jadeja came to know about the illegal withdrawn by the Shakisinh Vaghela from bank account of complainant and last date of the transaction is on 16.2.2012. So on 16.2.2012 an immediately thereafter, the complainant and another Director of the company Pratipalsinh Jadeja was knowing very well that Shaktisinh Vaghela had illegally withdrawn the Rs. 33,00,000/- from the bank account and opponent bank allowed the said withdrawn against the mandate of the complainant company to the bank. So as per the view of this Commission actual cause of action for filing the present complaint against the opponent bank commenced as on 16.2.2012 last date of transaction of the bank account statement and complainant has to file the compliant within the period of two years from the 16.2.2012 but the is filed as on 15.7.2014 that is after the period of two years.
16. Ld. Advocate for the complainant Mr. H.N. Dave has submitted that as per the averment made in para 13 of the compliant the actual cause of action for filing of the compliant continued up to 29.7.2013 that is the date on which police has filed the charge-sheet and complainant has the filed the compliant on 15.7.2014 within the prescribed time limit. And even if the Commission comes to the conclusion that the complaint is not filed within the prescribed time limit then also the sufficient cause stated by the complainant in para 13 for not filing of the compliant within the such period and accordingly if the commission comes to the conclusion that there is delay in filing of compliant then delay can be condoned, but Richa CC-14-197 Page 13 of 18 we do not agree with the submission of ld. Advocate of the complainant Mr. H.N. Dave because in fact on verification of bank account statement for the period of 1.9.2011 to 16.2.2012 actual cause of action had arisen. On 16.2.2012 the first date of knowledge to the complainant for illegal withdrawn by the Sakhtisnh Vaghela from the bank account but as per the compliant, complainant placed reliance on the false promise or assurance given by Shaktisinh Vaghela for return of money till the filing of complaint under section 406 and 420 of IPC against Shaktisinh Vagehla. Therefore cause of action for filing the compliant against opponent Axis Bank continues up to date of filing of compliant and charge-sheet by police cannot be accepted therefore the present compliant filed by the complainant on 15.7.2014 is beyond the period of two years limitation prescribed under section 24 (A) of the Consumer Protection Act 1986 and complainant has not filed any separate application for condonation of delay and complainant has not shown any sufficient cause for not filing the compliant within such period and therefore compliant filed by the complainant is not within the period of limitation and apparently the compliant is time barred and deserves to be dismissed.
17. Liability-defiecncy in service:
That as per the above referred detail discussion made about the maintainability of the complaint, the same is not maintainable because of the time bared complaint however, it would be worthwhile to discuss and decide the issue whether the complainant successfully proved bank negligence or deficiency in service as alleged in the complaint and as such the complainant is entitled the amount claimed in para 9 of the complaint or not ? hence, the same is required to be discuss and decide on the basis of evidence on record.
That as per the averment made in para 5 to 8 in the complaint, complainant company or being induction of new directors namely Pratipalsinh Jadeja and Jaspalsinh Jadeja necessary instruction was given to the opponent on 15.12.11 that is the mandate to the opponent regarding the change of mode of operation of the bank account of the complainant company in the computer system of the opponent but Richa CC-14-197 Page 14 of 18 admittedly bank did not changed the mandate and bank change the same in the system only on 12.7.12 thus, as per the say of the complainant despite a mandate of the mode of operation by the signatures of two new directors of the complainant company which was given to the bank on 15.12.11, it was not changed and modified in the system till 12.7.12 and between the period form 15.12.11 to 12.7.12 outgoing director Shaktisinh Vaghela had withdrawn about Rs. 36 lacs from the complainant's bank account of the opponent bank by writing self cheque or issuing cheque in favour of the third party and that amounts to the negligence, carelessness and deficiency in service on the part of opponent and therefore complainant company is entitled for Rs. 71,50,000/- as claimed in the complaint. That in support of the complaint, the complainant has produced documentary evidence and more particularly the FIR and statement recorded by the police in criminal complaint filed by the complainant before the Vastrapur Police Station against the director of Shaktisinh Vaghela for the offence punishable under Section 406 and 420 of the IPC and complainant has also produced the bank statement of the complainant's bank account of opponent for the period from 1.9.11 to 16.2.12. That on perusal of the statement recorded by the police of the bank employee namely Vishal Punitkumar Kadiya dated 4.7.13 wherein, he had categorically admitted that the complainant company mandate dated 15.12.11 regarding change of mode of operation in bank account system is received by him and he had handed over the said mandate to one bank employee namely Panktiben D/o Shwetangbhai Parikh for making necessary change in computer system of the bank. That on perusal of the statement of the said Panktiben D/o Shwetangbhai Parikh dated 4.7.13 she has also admitted that she has received the complainant company's mandate regarding change of mode of operation in bank account of the complainant company from Vishal Kadiya dated 15.12.11 but as per the said mandate the specimen signature of the new authorized signatory and their names are required to be change in the bank computer system but through over sight or through mistake she failed to do so. So as per the statement of the Panktiben D/o Shwetangbhai Parikh in spite of receipt of complainant's mandate from Vishal Kadiya she had not Richa CC-14-197 Page 15 of 18 changed the mode of operation of the bank account of the complainant company in the computer system of the bank. Furthermore, on perusal of the other bank employees namely Gracy w/o Kin Anto, Denishaben D/o Hasmukhbhai Tanna, Piyush Hasmukhlal Upadhyay, all these employees supported the statement of Vishal Kadiya and Panktiben D/o Shwetangbhai Parikh to the effect that bank has received the mandate on 15.12.11 of the complainant company regarding the change of mode of operation in the bank account of the complainant company. So on perusal of the said statements of bank employees the complainant has successfully proved that on account of bank negligence, carelessness and deficiency in service outgoing director Shaktisinh Vaghela had withdrawn about Rs. 36 lacs from the bank account of the complainant company by issuing self-cheque and cheque in favour of the third party and the said fact is also supported from the bank account statement of the complainant company produced by the complainant for the period between 1.9.11 to 16.2.12.
18. That the ld. advocate for the opponent has submitted that the police statement recorded by the police inspector, Vastrapur Police Station of the bank employees cannot be relied to prove the carelessness, negligence and deficiency in service on the part of opponent and the complainant has to prove the carelessness, negligence and deficiency in service of the bank by independent, cogent and reliable evidence but in this case, complainant has miserably failed to adduce any cogent evidence to prove bank negligence and deficiency in service but we do not agree with the submission of the ld. advocate of the opponent because the statement recorded by the police inspector during the course of the investigation in criminal complaint as a public officer and the bank employees have not denied the contents of the said statement in this matter by filing affidavit or in other manner and therefore, there is no reason to disbelieve the said statement of the bank employee to arrive at the conclusion about the negligence, carelessness and deficiency in service on the part of opponent. That even as per the decision of Hon'ble National Commission in Dynan Mandir Shikshan Santha Nagpur vs. The receiver, Nagpur, District Central Co-operatives bank ltd. and Ors.
Richa CC-14-197 Page 16 of 18reported in 2008 3 CPJ (NC) 365 the alleged omission on the part of the opponent bank regarding change in the mode of operation of bank account in computer system of bank amounts to the deficiency in service accordingly also here in this case, according to our view the complainant has successfully proved that there is carelessness, negligence and deficiency in service on the part of opponent for not making change of mode of operation in the complainant's account in the bank system.
19. Now, the next question arose when that the complainant successfully proved the deficiency in service on the part of the opponent then how much amount by way of compensation, complainant is entitled from the bank. That as per the decision of the Hon'ble National Commission in Saju Stephen vs. Punjab National Bank reported in II (2018) CPJ 563 (NC) in case of fault or deficiency of service on the part of bank, bank is not responsible or liable to pay the entire amount of deficiency in service but liability can be fasten on the bank by way of awarding some reasonable amount as a compensation and in that matter there was deficiency in service on the part of bank for non-returning of the cheque along with the return memo to the complainant and in that matter the Hon'ble National Commission ordered Rs. 10,000/- by way of compensation to be paid by Punjab National Bank. Likewise if we perused the another decision of the Hon'ble National Commission in Central Bank of India vs. Madanlal Saran reported in I (2012) CPJ 253 (NC) in that matter also on account of the deficiency in service on the part of the bank the Hon'ble National Commission has held that bank is not liable to pay entire cheque amount but can be burden to pay some compensation only and in that matter also the Central Bank is directed to pay Rs. 50,000/- to the complaint. So as per our view as per above referred decisions of the Hon'ble National Commission herein this case also on account of carelessness and negligence as well as deficiency in service on the part of opponent bank the present complainant company cannot be entitled to claim Rs. 71,50,000/- on various head in terms of para 9 of the complaint against the opponent. Furthermore, herein this case as per the case of the complainant company in the complaint the outgoing director Shaktisinh Vaghela has illegally withdrawn huge Richa CC-14-197 Page 17 of 18 amount of the complainant company's bank account so actually the complainant has legal right or remedy to recover the said amount from Shaktisinh Vaghela and not from the opponent bank and as such the Shaktisinh Vaghela is a necessary party in this complaint for recovery of the said amount but the complainant has not joined Shaktisinh Vaghela as party in this case and therefore also as per the our view the complainant company is not entitled to claim Rs. 71,50,000/- as claimed by way of relief in this complaint from the opponent but the complainant company is only entitled for lump-sum amount of compensation of Rs. 50,000/- from the opponent for the negligence and carelessness on the part of opponent and the same would be meet the end of justice.
20. We have considered the contents of the complaint, documentary evidence on record, objection raised in the written statement filed by the opponent, arguments advanced by the ld. Advocate for the parties, ratio laid down in the above referred judgments and facts and circumstances of the case. In view of the above discussion hereinabove the complainant company has proved deficiency of service on the part of bank but the complaint filed by the complainant company is beyond the limitation period prescribed in the Act. Accordingly the complaint filed by the complainant is liable to dismissed. Hence in the interest of justice following final order is passed.
ORDER
(i) The Complaint No. 197 of 2014 filed by the Apple-I Entertainment Pvt. Ltd. and Jaspalsinh Ranjitsinh Vala is hereby dismissed.
(ii) No order as to costs.
(iii) Copy of the judgment and order be provided to the parties free of costs.
Pronounced in the open Court today on 27th April, 2022.
[Ms. A.C Raval] [Mr. I.D.Patel] [Mr. Justice V. P. Patel]
Member Judicial Member President
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