State Consumer Disputes Redressal Commission
H.D.F.C. Bank Ltd. vs Sh. Daulat Ram. on 19 April, 2022
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
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First Appeal No. : 327/2019
Date of Presentation: 05.10.2019
Order Reserved on : 28.03.2022
Date of Order : 19.04.2022
......
H.D.F.C Bank Ltd. through its Branch Manager of
Nahan Branch, Tehsil Nahan, District Sirmour, H.P.
...... Appellant/opposite party
Versus
Sh. Daulat Ram Son of Sh. Mangli Ram,
Resident of House No. 69/1 Village Naktari,
Tehsil Shillai, District Sirmour, H.P.
......Respondent/complainant.
Coram
Hon'ble Justice Inder Singh Mehta, President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1
For Appellant : Ms. Pragti, Advocate vice
Mr. Digvijay Singh. Advocate.
For Respondent : Ms. Vandana Misra, Advocate vice
Mr. Baljinder Singh, Advocate.
Justice Inder Singh Mehta
ORDER
Instant appeal is arising from order dated 22.08.2019 passed by learned District Consumer Forum, Sirmaur at Nahan (H.P.), in Complaint No. 01/2015 title Daulat Ram versus H.D.F.C Bank Ltd.
1 Whether reporters of the local papers may be allowed to see the order?
H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019)
2. Brief facts stated are that complainant is having saving bank account with the opposite party which is being operated for the last two years by the complainant. Complainant presented two cheques for clearance in his account i.e cheque bearing No. 720652 amounting to Rs. 50,000/- on 05.09.2014 and another cheque bearing No. 720651 amounting to Rs. 50,000/- on 08.09.2014 in his account. The aforesaid cheques were of the H.P.State Cooperative Bank, Sangrah. The aforesaid cheques once deposited with the opposite party i.e H.D.F.C Bank, Nahan were neither returned to the complainant nor the said amount mentioned in the cheques were credited in his account. Consequently, notice was issued to the opposite party on 12.11.2014, but opposite party did not given any response and also did not bother to return the cheques to the complainant and it seems that opposite party misplaced the cheques or has colluded with the person who has issued the cheques in order to cause loss to the complainant.
3. Per contra, opposite party contested the complaint by filing reply in which preliminary objections were taken regarding maintainability, non-joinder of necessary parties and cause of action. On merits, the opposite party denied the claim of the complainant and submitted that both the cheques were dis- honored on 09.09.2014 on account of "insufficient fund" as per Annexure R-1 dated 09.09.2014. Intimation of the same was sent through M/s Ganesh Enterprises i.e courier providing service 2 H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019) which is Annexure R-2. Intimation of dis-honorment of cheques were intimated to the complainant too. Factum of acknowledgement was in the knowledge of complainant. Moreover, the complainant was in the knowledge of dis- honorment of cheques due to insufficient fund through alert facility of his Mobile No. 9805162002.
4. The cheques alongwith return memo were sent to the complainant through M/s Ganesh Enterprises i.e courier providing service Annexure R-2. This factum has not been disputed by the complainant by choosing non filing of rejoinder.
5. Complainant has not chosen to file rejoinder to the reply of the opposite party.
6. Learned District Forum below allowed the complaint and directed opposite party to pay Rs.1,00,000/- alongwith interest @ 9% per annum from the date of filing complaint till its payment. The opposite party is further directed to pay Rs. 10,000/- as compensation for deficiency in service and unfair trade practice and further sum of Rs. 5000/- as litigation costs.
7. Feeling aggrieved by the order of learned District Forum, Sirmaur at Nahan (H.P), appellant preferred the present appeal with the prayer that present appeal be allowed and impugned order dated 22.08.2019 passed by learned District Consumer Forum Sirmaur at Nahan, H.P. be set aside and complaint of the complainant be dismissed.
8. We have heard learned counsel for the parties and 3 H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019) perused the entire record carefully.
9. During the course of arguments, learned counsel of the appellant has relied upon AIR 1981 Punjab and Haryana 213 Full Bench titled M/s Indo Swiss Time Limited, Dundahera Versus Umrao and others and submitted that appeal of the appellant be allowed and impugned order be set aside.
10. On the other hand, learned counsel of the respondent has submitted that the respondent has opened an account with HDFC Bank Ltd. and complainant Daulat Ram presented two cheques with the HDFC Bank Ltd. The said cheques might have sent for collection and in the said collection with H.P.State Cooperative Bank Ltd. aforesaid cheques lost and intimation of the dishonorment of the cheques or any other information was not given to the complainant Daulat Ram, resulting into losing the right to file the claim against those two entities and complainant has became remediless. Therefore, there is deficiency in service and HDFC Bank Ltd. is liable to compensate the complainant. Learned counsel of the respondent relied upon 2019 SCC OnLine NCDRC 144 titled Manager, Bank of Baroda and Another(s) Versus Chitrodiya Babuji Divanji.
FINDINGS :
11. Bare perusal of the record shows that the complainant has filed the complaint on 15.12.2014. Two cheques bearing No. 720652 amounting to Rs. 50,000/- and another cheque bearing No. 720651 amounting to Rs. 50,000/- 4
H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019) were issued on 05.09.2014 and 08.09.2014. Complainant issued notice on 12.11.2014 Annexure C-3. The opposite party HDFC Bank came up with its first reply in the reply of the claim which is reproduced as under :
"The complainant admitted this fact as mentioned in his legal notice dated 12.11.2014 that the complainant visited the HDFC bank oftenly and was also intimated verbally about the same, as the complainant is an account holder in the HDFC bank bearing No. 17381000015275. It is pertinent to submit that the complainant had also taken instant alert facility on mobile No. 9805162009 on dated 27.03.2013 and the complainant also deposited the quarter charges amounting to Rs. 16.85 paise. In nutshell, each and every transaction of money has been received on the said mobile telephone."
12. The complainant reason best known to him did not prefer to file rejoinder to its reply of the complaint.
13. It is crystal clear on the record that on the date of filing of the complaint dated 15.12.2014, the complainant was in the knowledge of dis-honorment of two cheques and return memo.
14. There is no explanation on record why the complainant has not rebutted this fact by filing the rejoinder in the present complaint.
5
H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019)
15. It is further coming on record in para No.7 of the reply that the said two cheques alongwith return memo were sent to the complainant through M/s Ganesh Enterprises Courier Service before filing the present complaint.
16. Receipt is Annexure R-2 and agreement between HDFC bank and M/s Ganesh Enterprises Courier Service is Annexure R-3.
17. Para-7 of the reply is reproduced as under :
"It is pertinent to mention here that the bank has returned the cheques alongwith return memo to the complainant through Ganesh Courier Service with whom the bank has entered into an agreement which is annexed hereto as Annexure R-3."
18. There is no explanation coming on record why the complainant has not joined Ganesh Courier Service and Bhagat Ram who had issued the cheques as a party for determination of his own cause.
19. The complainant even oppose these two parties i.e. M/s Ganesh Enterprises Courier Service and Bhagat Ram in the complaint proceedings, too, order of learned District Forum below dated 24.02.2018 is reproduced as under :
" In the one application, OP has submitted that M/s 6 H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019) Ganesh Enterprises and Bhagat Ram are necessary parties in this case. Prayer of the opposite party has been opposed by the complainant on the ground that both of these persons are not necessary parties in this complaint."
20. As per the opposite party HDFC bank, the complainant was in the knowledge that two dis-honored cheques and return memo were received by the complainant prior to the filing of the present complaint and moreover, the complainant was in the knowledge through alert mode through his mobile No. 9805162009.
21. Therefore, the plea of the complainant that the complainant left without any fault on his own part is false.
22. Moreover, the complainant was in the knowledge of dis-honorment of aforesaid two cheques prior to filing of complaint i.e 15.12.2014. M/s Ganesh Enterprises Courier Service and Bhagat Ram issuer of two cheques were necessary parties in the proceedings of the complaint. M/s Ganesh Enterprises Courier Service and Bhagat Ram issuer of two cheques were necessary parties to avoid the collusive complaint between the complainant and Bhagat Ram. Moreover, the claim of the claimant on the date of filing of complaint, he was remediless is also false. The complaint 7 H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019) filed on 15.12.2014 and on the said date the complainant was having more than two years to file suit for recovery of the two cheques amount. Consequently, we find no merit in the complaint of the complainant therefore, the appeal of the appellant is allowed as such, the impugned order dated 22.08.2019 of learned District Forum Sirmaur at Nahan H.P. is set aside. Judgement relied upon by the respondent is not applicable in the present facts and circumstances of the case.
23. Certified copy of order be sent to learned District Commission for information. Certified copy of order be sent to parties as per rules. File of State Commission be consigned to record room after due completion forthwith. F.A.No.327/2019 is disposed of. Pending application(s) if any also disposed of.
Justice Inder Singh Mehta President Sunita Sharma Member 19.04.2022 *ss* 8 H.D.F.C Bank Ltd. versus Daulat Ram ( F.A. No. 327/2019) 9