State Consumer Disputes Redressal Commission
M/S. Polmann India Ltd. vs Central Bank Of India on 8 August, 2018
CC/04/95 1
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
MAHARASHTRA, MUMBAI
Consumer Complaint No.CC/04/95
M/s. POLMANN INDIA LTD.
Duly incorporated under the
Companies Act, 1956 and
having its address at -
708, Maker Chambers V,
Nariman Point, Mumbai - 400 021. .....Complainant.
Versus
CENTRAL BANK OF INDIA
A banking corporation
having its branch office at
Chandermukhi building
Nariman Point, Mumbai - 400 021. ......Opponent
BEFORE: Usha Thakare, Presiding Judicial Member
A.K. Zade, Member
PRESENT: Advocate Mr.Anand Patwardhan present for Complainant alongwith
representative of Complainant.
None present for Opponent.
ORDER
Per Hon'ble Mr.A.K. Zade - Member:
1) This complaint is filed by the Complainant against Opponent alleging deficiency in service and praying for direction to Opponent to reimburse the amount of Rs.25,00,000/- alongwith an amount of Rs.30,50,000/- paid thereon towards interest charged by Opponent to Complainant @ 13.5% p.a. and further interest thereon @ 15% from the date of filing of the complaint till payment and/or realization of the said amount. Complainant had also prayed for compensation of Rs.3,00,000/- towards mental agony and for cost of complaint and other relief as this Commission may deem fit and proper.
2) As per Complainant, brief facts of the case are as under -
Complainant is a Company incorporated under the Companies Act, 1956, who on or about 19/05/1999 opened an account bearing No.C/D 3352 with the Opponent branch for their day-to-day banking transactions. Opponent is banking CC/04/95 2 corporation with branch offices all over the country including the Opponent branch and is conducting business of banking. As per Complainant, cause of action arose on account of wrongful and negligent payment of Rs.25,00,000/- by Opponent through 23 cheques which prima-facie appeared to be forged, in favour of the forger from the Complainant's above said account which amounted to gross negligence or connivance amounting to deficiency in service.
3) As per Complainant, on or about 3rd March, 1995, one Mr. Ramavtar A. Soni was appointed as Account Manager of Complainant's Group Companies and was in-charge of finance and accounts of the same. Thereafter, on 16/02/1997, one Mr.Asawa was appointed as Cashier of the Complainant's above Group on reference of said Mr.Soni and all banking operation and cash transaction were handled by Mr.Asawa with Mr.Soni, his senior.
4) Complainant further submitted that on or about April, 2001, Complainant noticed some discrepancy in the bank account to the tune of Rs.25,00,000/- which could not be discovered during audits because the person who was in-charge of finance and accounts was the main culprit behind it. Said discrepancy was found to be a fraud which Mr.Soni and Mr.Asawa perpetuated taking advantage of the functional lacuna of the Opponent Bank. Complainant filed police complaint against its employees Mr.Asawa and Mr.Soni with Cuffe Parade Police Station who were arrested accordingly. Said Mr.Asawa admitted and subsequently confessed that he had forged the signature of Mr.Anoop Bhimrajaka one of the Directors of Complainant and deposited the amounts in his own bank account which he had managed to open in the same branch at Nariman Point and also at Cuffe Parade branch. As per Complainant, Mr.Asawa and Mr.Sony had opened their personal accounts in the same branch of Opponent Bank with the bank staff as introducer. It is submitted by the Complainant that, for opening bank account of its employee, it was necessary for Opponent bank to seek reference of the employer but no such reference was sought from the Complainant nor the Complainant was informed about opening of bank accounts of the said employees with Opponent. As per Complainant, the said account was opened with the connivance of the bank staff who had introduced the account while the bank staff CC/04/95 3 is not supposed to do so. Complainant submitted that the forged signatures on the cheques were quite evident and easily noticeable but the Opponent acted negligently and allowed or facilitated encashment of 23 forged cheques between the period 23/02/1999 to 17/04/2001 and cleared them from the Complainant's Account No.C/D 527 totaling to Rs.25,00,000/-. However, in rejoinder-cum- affidavit of evidence, Complainant submitted that the Account No.C/d 527 mentioned in para 5.5. of complaint was a typographical mistake and was actually relating to other complaint of Complainant and the correct account number which is the subject matter of instant consumer complaint is already mentioned in para (2) of complaint i.e. C/D 3352 already mentioned above. While allowing the cheques which prima facie appear forged, Opponent had charged interest on the Over Draft Account to clear them. Complainant submitted that, Complainant did not complain against the Opponent bank before the police as the Opponent assured to cooperate and take action against their staff.
5) As nothing was heard from Opponent about the steps taken by it in the matter, Complainant by letter dtd.18/09/2001 informed Opponent's Assistant General Manager about the above wrongful payments on forged cheques. Complainant also informed Opponent that said forgery of cheques was referred to a well known handwriting expert Mr.Mahesh Wagh, who examined the said signatures and had given report that signatures did not appear to be those of authorized signatory. By the said letter, Complainant placed on record the apparent involvement of some employees of Opponent and also gross negligence on part of the Opponent and asked to make good the loss. Again by letter dtd.17/10/2001 addressed to Assistant General Manager of Opponent, Complainant pointed out the loss caused to the Complainant because of negligence and inaction on the part of Opponent reminding them that they had neither cared to reply Complainant's earlier letter nor taken any action on the Complainant's complaint. Opponent thereafter by letter dtd.20/10/2001 acknowledged receipt of Complainant's both the above letters assuring Complainant that matter was engaging their attention. As per Complainant, it reminded Opponent again by letter dtd.29/01/2002 about the same and requested for action in the matter and for reimbursement of the amount of Rs.14,18,181/-.
CC/04/95 4However, when this bench referred to the said letter, it was found that an amount of Rs.25,00,000/- was mentioned in it and not Rs.14,18,181/-.
6) Complainant further submitted that as there was no reply from and also no action by Opponent, Complainant through advocate's letter dtd.27/07/2002 called upon Opponent to reimburse the sum of Rs.14,18,181/- with interest thereon @ 13.5% per annum. However, when referred, this bench found that the amount of Rs.25,00,000/- was mentioned in the said letter and not Rs.14,18,181/-. The said notice was replied by Opponent vide letter dtd.28/08/2002, by which Opponent denied any payment due to Complainant alleging that said demand of Complainant was after-thought. By the said reply, Opponent denied any deficiency in service and stated that payments were made as per apparent tenor of the instrument in good faith. Opponent based their denial on the balance-sheet maintained by Complainant in their course of over draft facility. Complainant submitted that it is the settled law that Opponent Bank cannot take such defence to avoid its liability towards disbursement on forged cheques. As per Complainant, there was no mandate by Complainant to allow disbursement of said amounts when signatures on the said cheques were apparently forged. The balance-sheets were filed on the basis of statement of account forwarded by bank, which were deemed to be correct. Also since the amounts were withdrawn during a period of three years, Complainant having huge turnover could not discover misappropriation done by forgery by the person in-charge of finance. Complainant submitted that, it is the responsibility of Opponent to check every instrument for its validity and correctness and tally the signature with specimen card and in case of any doubt or suspicion, Opponent was required to check the same with the authorized signatory and to disburse the amounts only after verification.
7) Again by letter dtd.02/03/2004 addressed to Assistant General Manager of Opponent, Complainant requested him to consider its genuine complaint and reimburse the said amounts. The said letter was replied by Opponent denying their liability to pay and/or reimburse the amount to Complainant. Complainant further submitted that out of the said 23 cheques, there was overwriting at three places on CC/04/95 5 cheque no.642033, dtd.26/09/2000 without any counter signature still payment was made against it. Also on cheque no.642746, dtd.09/09/2001, the endorsement "Crossing and A/C Payee cancelled," was handwritten without counter signatures and references and still the said cheque was enchased and amount was paid in cash. As per Complainant, for any overwriting counter signature is required without which the cheques cannot be honoured by bank. Complainant tried to seek appointment with legal department of bank however, the said meetings were called off by Opponent on excuse of prior engagements without any subsequent communication which showed how Opponent tried to overlook the issue and avoided repayments. Complaint filed before the Ombudsman was rejected on grounds of limitation and thereafter the Complainant had filed the instant consumer complaint praying for reliefs mentioned above.
8) Opponent submitted its written statement and denied the complaint being ex-facie false, frivolous, misconceived, vexatious, not tenable in law and liable to be rejected. As per Opponent, Complainant was not maintaining any overdraft account No.O/D 527 with Opponent as mentioned by Complainant in para 5.5 of complaint and the alleged 23 cheques were not pertaining to the said over draft account. As per Opponent, from the alleged statement of confession written on stamp paper of 30th March 2001, which contained alleged undertaking of said Ramavtar Soni to return certain amounts on or before 30/04/2001, shows that the Complainant had good knowledge and absolute notice of said purported misappropriation and alleged withdrawal of cheques because of which the Complainant vide letters dtd.23/04/2001 and 08/05/2001 requested Opponent Bank to furnish xerox copies of the cheques for the period from 01/04/1999 to 31/03/2000 and 01/04/2000 to 31/03/2001. Opponent admitted that the complaint filed by Complainant before the Bank Ombudsman was rejected by order dtd.16/4/2004, as it was not filed within time limit of one year from the date of cause of action. Opponent also objected on the ground of non-joinder of proper and necessary parties as the said two employees of Complainant who allegedly have encashed said cheques were not joined as parties and without which the complaint cannot be effectively adjudicated and therefore, the complaint was liable to be dismissed. Opponent also raised an objection that as the said CC/04/95 6 complaint was based on allegation of purported forgery of the alleged cheques, it cannot be decided by summery procedure in consumer complaint and the same was required to be referred to the competent Civil Court.
9) Opponent admitted that, Opponent had paid/cleared the amount covered under the said cheques. However, Opponent submitted that the same was done in accordance with the apparent tenor of the said cheques in good faith and without any negligence on their part and that there was no reason to believe that the payee(s) of the said cheques were not entitled to receive those amounts. It is submitted by Opponent that the said cheques were cleared in usual and ordinary course of banking business and there was no occasion to doubt the genuineness of the same. It is also submitted by Opponent that it had taken proper care by way of scrutiny of cheques with specimen signature of the signatory of the said cheques and the line quality, base lines, placing of dots, pen-lifts and pictorial effects of the signatures on the alleged disputed cheques resembled with the specimen signature. The Opponent therefore, submitted that its action in clearing the said cheques was bonafide and in good faith and was duly protected under the law. Opponent denied that it was negligent in dealing with the said cheques. Opponent further submitted that it was the Complainant who committed breach of duty by neglecting usual and proper precaution of keeping the cheque book safe, verifying the unused cheques from the previous cheque-books and reconcile bank's statement of account because of which there was no grievance by Complainant with the Opponent for more than three years and therefore, the Complainant itself was responsible for the loss. Opponent had obtained opinion of handwriting expert of one Mr. Harish Gajjar, in regard to the said 23 cheques according to which there was no significant difference between the letters on the alleged disputed cheques on one hand and undisputed cheques on the other hand.
10) Opponent further submitted that, the Complainant had already filed Criminal Complaint case under Section 438, 468 and 420 of the Indian Penal Code and the said cheques were seized by the Cuffe Parade Police Station who investigated the alleged offence and Cr.No.149 of 2001 was pending before the Criminal Court. As per Opponent, as the criminal complaint filed was pending CC/04/95 7 for the same cause of action, the instant complaint was bound and liable to be dismissed. It is also another objection of Opponent that as the Complainant was aware of the said alleged discrepancy of the account on or around April, 2001 as per admission in complaint by Complainant, the instant complaint is apparently barred by limitation under Section 24(A) of the Consumer Protection Act. Opponent also denied that any of its employees was involved in the forgery and also denied that any of its employees had introduced the account of the said employees of Complainant and also denied that said forgery of signatures on the said cheques was evident or was noticeable. Opponent also submitted that demand of Rs.14,81,181/- mentioned in para 5.9 and 5.10 of complaint was in variance with the alleged case of Complainant. Opponent denied the said demand put in the said letters of Complainant. Opponent also denied the handwriting expert's opinion submitted by the Complainant. It is submitted by Opponent that the opinion of handwriting expert submitted by Complainant was the opinion given on the basis of xerox documents and the said expert had not seen or verified original disputed documents and specimen signature of the Complainant.
11) Regarding cheque no.642033, Opponent denied that there were certain over writings on the cheque which were not initialed. Regarding cheque no.642746 Opponent submitted that the said cheque was endorsed by the Complainant by putting stamp and signature on the reverse of the said cheque indicating intention to pay the cheque in cash. Also the said cheque was made payable to 'self' which indicated the intention and mandate to pay the cheque in cash and therefore, writing on the said cheque regarding cancellation of crossing was insignificant. Opponent therefore, submitted that said cheques were paid in good faith and without negligence. Opponent also denied that the over writing, if any on the alleged cheques were not counter signed or that they had any significance in regard to the payment of the said cheques. Opponent also submitted that the cause of action would arise from the date of the knowledge of the alleged reimbursement and not from the date of refusal and therefore, Opponent denied that the complaint was filed in time. Opponent therefore, denied the reliefs prayed by Complainant and prayed for dismissal of the complaint with costs.
CC/04/95 812) The Complainant filed rejoinder-cum-affidavit of evidence and also filed written notes of arguments. Opponent did not file any affidavit of evidence and also did not file any written arguments and repeatedly remained absent. Arguments on behalf of Complainant were heard and as nobody was present for oral arguments for Opponent, the matter was reserved for order.
13 On perusal of record and hearing arguments on behalf of Complainant, following points arose for our determination and our findings thereon alongwith reasons for the same are as given below -
Sr.No. Points Findings
1 Whether Complainant is a consumer Yes
within the meaning of Consumer
Protection Act, 1986?
2 Whether the complaint is barred by No
limitation ?
3 Whether Complainant proved that there is Yes
deficiency in service on the part of
Opponent ?
4 Whether Complainant is entitled for the As per final order
reliefs as prayed ?
5 What order ? As per final order
REASONS:-
As to Point No.1:-
It is admitted fact that Complainant had the said account with Opponent with over draft facility. Payments made against said 23 cheques are also admitted by Opponent. It is admitted by Opponent that the alleged cheques were cleared in usual and ordinary course of banking business and there was no occasion to doubt the genuineness of the alleged cheques from their apparent tenor. Complainant in written arguments referred to following judgments: i) Judgment in 2004 CTJ 1065(CP) (NCDRC) Union Bearing (India) Ltd. & Ors.V/s. State Bank of India,
ii) Judgment in 2003 CTJ 105 (CP) (NCDRC) Abdul Razaq & Anr. V/s. South Indian Bank Ltd., iii) Judgment in 2005 CTJ 494 (CP) (NCDRC) N. Venkanna V/s. Andhra Bank, iv) Judgment of the Hon'ble Supreme Court in (1987) 2 SCR 1138 AIR 1987 SC 1603 between Canara Bank V/s. Canara Sales Corporation & CC/04/95 9 Anr. and v) Judgment in AIR 1995 SC 1368. Complainant submitted in written arguments that in the above referred judgment of 2004, the Hon'ble National Commission held that the Consumer Fora can entertain complaint of the Company for deficiency in performance by the Bank. Also in the above referred judgment of 2003, the Hon'ble National Commission held that "Respondent Bank failed not once but twice to correctly verify/compare the signatures on these instruments, cheque requisition applications and the cheques and the specimen signatures with them on record, once at the time of issue of cheque books and again at the time of encashing cheques." In the above referred judgment of 2005, the Hon'ble National Commission held that 'if signature on the cheque is not genuine, there is no mandate to the bank to make payment.' Also in the above referred judgment of 1987, the Hon'ble Supreme Court held that, if signature on the cheque is forged and not genuine, there is no mandate to the bank to make payment.' Also in the above referred judgment of 1995 of the Hon'ble Supreme Court, it has been considered and applied that it signature on cheque is forged and not genuine, there is no mandate to the Bank to make payment. During arguments, advocate for Complainant cited above judgment of 1987 and also cited judgment dtd.12/08/2003 in Appeal (Civil) 7975 of 2001 and judgment dtd.29/08/2003 in Civil Appeal No.7228 of 2001 of Hon'ble Supreme Court. We have gone through the judgments cited. However, we find that facts in the above two Civil Appeals were different and therefore are not applicable in the instant case. Advocate for Complainant also cited orders of this Commission - one dtd.21/09/2016 in Consumer Complaint No.CC/12/260 and another dtd.24/07/2017 in Appeal No.RBT/A/16/981 in A/14/819 in which the bank was held liable for the payments made on forged cheques. We have gone through the said orders. Therefore, in light of the above judgments and rulings, and in view of the above discussion, we are of the opinion that the banking transaction so far as it relates to its account holder is a transaction between service provider and consumer and is within the scope of the Consumer Protection Act, 1986. We therefore hold that the instant complaint lies within the jurisdiction of the said Act and the Complainant is a consumer within the meaning of the said Act. Hence we answer point no.1 in the affirmative.
CC/04/95 10As to Point No.2:-
As per Complainant, the Complainant became aware of encashment of allegedly forged cheques on or about April, 2001 on which a police complaint was lodged against its employees Mr.Asawa and Mr.Soni and the said forgery of signatures was admitted by said employees. Confession letter of employee who admitted of having made forged signatures on the said cheques is filed on record by Complainant. Although, Opponent Bank assured Complainant of cooperation in the matter and although communicated to Complainant that matter was engaging their attention, no action was taken by Opponent Bank to redress grievance of Complainant. Complainant reminded Opponent Bank by letter dtd.29/01/2002 asking for reimbursement of the amounts but the same was not replied by the bank. Because of no reply from Opponent and no action by it, Complainant through advocate sent legal notice dtd.27/07/2002 asking for reimbursement of said sum of Rs.25,00,000/- alongwith interest @ 13.5% per annum. Opponent bank replied to it by letter through advocate dtd.28/08/2002 denying deficiency in service and denying its liability to make the said reimbursements. Complainant submitted that it was for the first time that the Opponent communicated to Complainant by said letter dtd.28/08/2002 denying their liability and responsibility towards the said reimbursement and therefore, the cause of action arose on 28/08/2002, for the Complainant for the instant complaint and therefore, the instant complaint was within limitation. It is also an admitted fact that, thereafter, Complainant filed complaint before the Bank Ombudsman but the same was rejected on ground of limitation vide order dtd.16/04/2004 after which the Complainant filed the instant complaint and thus, it is filed within two years of order of Ombudsman. We also find that the cause of action is continuous. We therefore, hold that the instant complaint is not barred by limitation. Hence, we answer this point in the negative.
As to Point No.3:- Employee of Complainant had admitted that he had forged the said signatures and his confession is placed on record by the Complainant. Opponent had submitted the written statement but there is no affidavit of evidence filed by Opponent in support of the pleadings and also there are no written or oral arguments on behalf of Opponent. In the absence of evidence in support of the CC/04/95 11 pleadings, the pleadings or statements made by Opponent in written statement are mere statements and cannot be accepted as proved facts and hence, cannot be relied upon. Pleadings without evidence have no force. On the other hand, Complainant had submitted confession of its employee who admitted that he had forged signatures on the said cheques. Complainant had reported matter to police and the said employee was arrested and criminal case was going on. Hence, the Complainant had taken necessary steps so far as the criminal offence of forgery of signatures is concerned. To prove that said signatures were forged, Complainant had filed opinion of hand writing expert one Mr. Mahesh Wagh. The said opinion is supported by the affidavit of said Mr. Mahesh Wagh. In the said opinion said Mr. Mahesh Wagh had stated that he examined signatures on the said 23 cheques and compared the same with the specimen signatures of the drawee which were deposited with the said branch of the Opponent. The said hand writing expert had given details of all the 23 cheques of the said account C/D 3352. As per his opinion, the signatures of the account holder - drawee on the obverse and reverse of the said cheques were not written by Mr.Anoop Bhmrajaka, the writer of the account holder whose specimen signature was deposited with the branch in question of the Opponent bank.
In affidavit, the said hand-writing expert, Mr. Mahesh Wagh submitted that he was 81 years of age. He stated his academic qualification and his professional background. He had mentioned that he had joined CID, Pune and after necessary training in the science of identification of hand-writings, he had been promoted departmentally upto the level of Additional Chief State Examiner of Documents, CID, Maharashtra. During service, he had worked as handwriting expert. After retirement he started his private practice as hand writing expert and had examined and given evidence as expert in various cases and in various Courts. He had submitted in his affidavit that he had gone through the original documents with the bank and it was not true or correct to say that he had not verified the original documents and specimen signatures of Complainant. In fact, he had visited the Opponent branch of the bank on 2 to 3 occasions during which the bank and officials provided him with not only disputed cheques but also specimen signatures of the account holder and he completed his work of examining the CC/04/95 12 cheques, comparison of the same and also took photographs of the relevant signatures on the cheques. He stated in his affidavit that he was provided with the original documents by the bank authorities which were examined by him and therefore, it was not correct or proper to say that he had not verified the original documents and specimen signatures.
To dispute the opinion of above handwriting expert filed by Complainant, Opponent filed opinion of another hand writing expert Mr. Haresh T. Gajjar on record. However, the said opinion s not supported by affidavit of the said hand writing expert and therefore, cannot be accepted in evidence. Moreover, said hand writing expert of Opponent had mentioned in his opinion that he had compared the signatures on the disputed cheques with the signatures on the undisputed cheques. Nowhere in the said opinion, it is mentioned that the said hand writing expert compared the signatures on the disputed cheques with the specimen signatures of the account holder or authorized signatory. On the other hand, the opinion of handwriting expert filed by Complainant is supported by his own affidavit and was given after verifying and comparing signatures of the authorized signatory of the account holder with specimen signatures deposited in bank. Hence, we do not find any reason to disbelieve the affidavit and the opinion of the handwriting expert filed by Complainant. Objection raised by Opponent in written statement that the above expert did not compare signatures with original specimen signatures cannot be accepted also for the reason that written statement of Opponent is not supported by affidavit of evidence. We also agree with objection raised by Complainant that the said opinion filed by Opponent was obtained by the Opponent without any information to the Complainant and in absence of the Complainant while on the other hand opinion of hand writing expert filed by Complainant was given after verifying the same in presence of the bank officials i.e. Opponent with due notice to them and with their knowledge. For the above reasons, we hold that the opinion of handwriting expert filed by Complainant is reliable and acceptable while the opinion of handwriting expert filed by Opponent bank cannot be relied upon and cannot be accepted.CC/04/95 13
In view of the above discussion, it is established that the signatures on the alleged 23 cheques were forged and still those cheques were honoured and payments were made against them by the Opponent bank which establish the negligence and deficiency in service by the bank in the instant matter. Another objection of the Complainant that Opponent bank honoured cheques although it had overwritings on it without initials. We have gone through the said cheque and found that there are multiple overwritings on the said cheque no.642333 and some of those overwritings were without initials. It is a known practice of banks that cheque is not cleared by the bank, if there are over writings without counter signatures or initials on it. We find force in the contention of Complainant that the said cheque which was for an amount of Rs.2,00,000/- and had multiple over writings and that too without initials or counter signatures, the same should not have been encashed by the bank without cross checking with the account holder. We have also gone through the other cheque number 642746 on which there is an endorsement that 'Crossing and Account Payee is cancelled pls. pay cash.' However, there is no counter sign to this endorsement and even then the said cheque was encashed and the amount was paid in cash by the bank. In our opinion, these are additional instances of negligence and deficiency in service on the part of the Opponent Bank. The contention of Opponent bank that the payments were made in routine course of banking business cannot be accepted. Thus, from the above discussion we hold that the Opponent bank had made payments without taking due care while verifying the signatures and had encashed those cheques although signatures on them were forged. Advocate for Complainant during arguments cited judgment of the Hon'ble Supreme Court in Canara Bank V/s. Canara Sales Corporation and others in Civil Appeal No.1770/1973 decided on 22/04/87 which is already referred above, in which the account holder's claim against bank for recovery of amount fraudulently drawn by 3rd person from his account by forging his signatures on cheques was found sustainable and the decree passed by the Trial Court in the suit filed against the bank which was upheld by the Hon'ble High Court confirming the decree was upheld and the appeal filed by the bank against the said order of High Court and CC/04/95 14 decree of the Trial Court was dismissed. We have gone through the judgment referred above and find that the same is applicable in the instant case. Hence, in light of the above judgment and also other rulings mentioned above and in view of the above discussion we hold that the Opponent bank is guilty of deficiency in service to the Complainant. Hence, we answer point no.3 in the affirmative.
As to Point Nos.4 & 5:- As discussed above, the Opponent Bank is guilty of deficiency in service to Complainant and therefore, it is liable to reimburse to complainant the amounts paid by Opponent Bank against the said forged cheques. However, while examining the said 23 cheques, we have found that cheque no.417676 dated.23/02/1999 for Rs.50,000/- was issued from the account of Greenhorn Finance Ltd. as per company-stamp on the said cheque and not from the account of Complainant. Also Complainant itself had mentioned in complaint that the subject account was opened sometimes in May, 1999 and as such, Complainant in the instant consumer complaint cannot seek any relief against the abovesaid cheque no.417676 in the instant case which was issued prior to it. Excluding the said cheque, in our opinion, Opponent Bank is liable to reimburse to Complainant, the amount of remaining 22 forged cheques totalling to Rs.24,50,000/- which had been paid by it between years 1999 and 2001. We therefore hold accordingly.
Complainant had also prayed for an amount of interest of Rs.30,50,000/- paid on the said amount of Rs.25,00,000/- @ 13.5% p.a.. which had been charged to the Complainant by the Opponent from the date of those payments because of the overdraft facility on said account. However, no details about the same are given by Complainant in his pleadings in the entire complaint and no document or proof is given by the Complainant to prove the same. Simply mentioning and praying for reliefs of an amount of Rs.30,50,000/- in the prayer clause only without any pleading to that effect in main complaint and without any document in support of it and without any details in respect of it cannot be accepted and awarded. There is nothing on record in support of the alleged rate of interest of 13.5%. Complainant had also prayed for interest @ 15% p.a. on the said amount of Rs.25,00,000/- and also on the above-said amount of Rs.30,50,000/- with effect from the date of filing of complaint till realization. As already discussed above, CC/04/95 15 there is no evidence in support of the said amount of Rs.30,50,000/- and therefore, there is no question of granting any further interest on the said amount of Rs.30,50,000/-. At the most, we can hold the Complainant to be entitled to get simple interest at the rate of 12% per annum being reasonable and proper, from the dates of the respective payments by Opponent Bank till realization of the same. We therefore, find it reasonable and proper to direct the Opponent Bank to pay the said amount of Rs.24,50,000/-to the Complainant alongwith simple interest @ 12% per annum from the dates of payments of respective amounts till realization of the same. Complainant had also prayed for compensation of Rs.3,00,000/- towards mental agony. As the Complainant is a Company registered under the Company Act, there is no question of any mental agony to it and no question of granting any compensation for the same. Complainant had also prayed for cost of the complaint. In the circumstances of the case, we find it appropriate to award Rs.50,000/- towards cost of the complaint. Hence, we pass the following order -
ORDER
1) Consumer Complaint No.CC/04/95 is hereby partly allowed.
2) Opponent is held guilty of deficiency in service.
3) Opponent is directed to pay Rs.24,50,000/- (Rupees Twenty Four Lakhs Fifty Thousand Only) to the Complainant towards the amount paid against 22 forged cheques alongwith simple interest @ 12% p.a. from the dates of respective payments by Opponent till realization.
4) Opponent is also directed to pay an amount of Rs.50,000/-(Rupees Fifty Thousand Only) towards cost of this complaint.
5) Opponent is directed to comply the above directions within a period of sixty days from the receipt of this order failing which Opponent will be liable to pay the above amounts alongwith simple interest @ 15% p.a. for the period subsequent to expiry of said period of sixty days.
CC/04/95 166) Copies of this order be furnished to the parties free of cost.
Pronounced on 08th August, 2018.
[Usha Thakare] Presiding Judicial Member [A.K.Zade] Member aj