National Consumer Disputes Redressal
Amitaben Dilipkumar Shah & Ors. vs Varachha Co.Op Bank Ltd. on 30 January, 2013
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI REVISION PETITION NO. 2300 OF 2012 (Against the order dated 07.03.2012 in Appeal No. 905 of 2010 of the State Commission Gujarat) 1. Amitaben Dilipkumar Shah ........ Petitioners L.R. of Late Dilipkumar Rasiklal Shah 2. Apexa Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 3. Smruti Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah 4. Pratik Dilipkumar Shah L.R. of Late Dilipkumar Rasiklal Shah (all residents of 502, Nandishwardeep Apartment Parle Point, Surat) Vs. Varachha Co.op Bank Ltd. ......... Respondent Effil Tower L.H.Road, Surat, Gujarat Through its Chief Manager / Branch Manager BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HONBLE MR.SURESH CHANDRA, MEMBER For the Petitioners : Dr.Bipin K Dwivedi, Advocate For the Respondent : Mr.Sanjay Mehta, Advocate Dated : 30th January, 2013 ORDER
PER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER Petitioners are legal heirs of complainant Late Shri Dilip Kumar Rasiklal Shah. They have preferred this revision petition against the impugned order of Gujarat State Consumer Disputes Redressal Commission ( in short, the State Commission) whereby State Commission allowed the appeal preferred by the respondent bank herein against the order of District Consumer Disputes Redressal Forum ( Additional) of Surat which reads thus:
1. The complaint by the complainant is allowed as under.
2. The opponent in the case has allowed a withdrawl of Rs.1,68,450/- vide cheque no.7780 in the frozen Account No.4226. The said amount shall be credited in the Deceased Complainants Account with interest as per rules and regulations of the bank effective Dt.09.08.2005.
3. The opponents in the matter shall pay to complainants in all sum of Rs.10,000/- (in words Rupees Ten Thousand only) towards cost of the complaint and mental physical torture.
4. The complainants as per relief prayed under complaint para
-5 is not entitled to any additional relief.
5. The opponent shall bear the cost of suit himself.
6. The opponent shall comply the order within 30 days of this order.
2. Briefly put, the facts relevant for disposal of this revision petition are that late complainant filed consumer complaint against the respondent opposite party claiming that he had an account bearing no.4226 with the opposite party, namely, Varachha Co-op Bank Ltd, Varachha Road, Surat. That on 04.12.2004 complainant gave written instructions to the respondent bank stating that he had lost certain cheques, as such no payment be made against those cheques from his aforesaid bank account without his written consent. That the respondent bank recorded the numbers of the lost cheques in their register. Despite that, bank allowed withdrawl of Rs.1,68,450/- from the bank account no. 4226 of the complainant against one of those lost cheques bearing no. 7780 without informing or obtaining consent from the complainant.
3. The respondent bank contested the complaint by filing a written submissions denying the allegations.
4. The District Forum after hearing the parties and on the basis of the evidence produced came to the conclusion that the opposite party bank had encashed the cheque regarding which stop payment instructions were issued from the bank account no. 4226 of the complainant without seeking consent from him. This according to the District Forum amounted to deficiency in service. As such, District Forum allowed the complaint and passed the order reproduced above.
5. Feeling aggrieved by the order of the District Forum, the respondent bank preferred an appeal before the State Commission and the State Commission concluded that the instructions issued by the deceased complainant to the bank vide letter dated 14.02.2004 were unclear and vague and as such there was no deficiency in service on the part of the bank. Accordingly, the State Commission accepted the appeal and set aside the order of the District Forum and also dismissed the complaint.
6. Learned Shri Bipin K Dwivedi, Advocate for the petitioner has contended that order of the State Commission is perverse and against the facts. He argued that State Commission was not justified in setting aside the well reasoned order of the District Forum holding deficiency in service on the part of the respondent bank despite the fact that petitioner had not only given clear instructions not to encash certain cheques without his consent from his account which were claimed to have been lost particularly when numbers of those cheques were got entered in the unused cheques register maintained by the respondent bank. In support of this contention, learned counsel for the petitioner has drawn our attention to the petitioners letter dated 14.02.2004 as also the photocopy of the relevant entry in the unused cheques register maintained by the respondent bank. It is further contended that the State Commission has committed a grave error in holding that in a business city like Surat, the bank is not supposed to seek confirmation from the customer before encashing the cheque irrespective of the customer having requested the bank not to allow operation of the bank account. Learned counsel thus urged us to accept the revision petition and set aside the impugned order of the State Commission accepting the appeal against the order of the District Forum.
7. Shri Sanjay Mehta, Advocate, learned counsel for the respondent bank on the contrary has argued in support of the order of the State Commission.
He has drawn our attention to the letter dated 14.02.2004 addressed by late complainant to the bank and submitted that the letter in question is vague inasmuch as it does not mention a specific account number in the subject and at the bottom of letter, there are five account numbers mentioned under a note asking upto date statement of account. It is contended that from this letter no instructions regarding stop payment of any cheque is perceived and as such bank was not at fault in enashing the cheque which was presented in the year 2005. Learned counsel for the respondent bank further contended that mere entry of the cheque number in the unused cheque register relates to A/c No 0503/4226 by itself does not mean that there were any instructions not to make payment against the cheques detailed therein.
Learned counsel for the respondent further contended that whenever a duly signed cheque is presented for encashment before the bank, the bank is under a legal obligation to encash the cheque failing which the bank would risk legal proceedings by the beneficiary of the cheque issued by the account holder. Thus it is contended that impugned order does not suffer from legal or factual infirmity which may call for interference by this Commission in its revisional jurisdiction, scope of which is limited.
8. In order to appreciate the rival contentions, it would be useful to have a look on the relevant portion of the impugned order of the State Commission which interalia reads thus:
Now, it is also necessary to be decided that whether the responsibility of blame to be poured out on the Bank of any dispute between the Deceased Complainant and with his professional friends. And any refunds cheque number 775629 drawn on State Bank of Saurashtra for Rs. 1,68,476 by the Surat Municipal Corporation and that was collected by the Architeet Parikshitlal Talati and that cheque was to be given to Deceased Complainant instead of that, has given to Mansukhlal Sanghani and that cheque was deposited in the Account No.4226 of Deceased Complainant and thereafter, that amount was withdrawn from the Account Number 4226 and while the aforesaid cheque deposited in the account of Deceased Complainant at the relevant time may have presented that cheque in the Bank to obtain amount with the signature of Deceased Complainant, so obviously information have to Deceased Complainant as to whose name that cheque is wrote and hence, the Deceased Complainant could have stopped payment of that cheque instead of unclear and vague language in the letter dated 14.02.2004. And to be obtained written consent of deceased person for each and every cheque which may submit and arrangement of bank may disturb if every account holder may write letter according to that and it seems that now the responsibility is being poured out on the bank in any dispute in respect of refund amount obtained from the Corporation.
And the learned Forum has recorded in their judgment that the Bank could have demanded more clarity regarding that letter for the aim of better services to be provided to the Deceased Complainant.
But that responsibility is not of the bank and account holder is bound to inform amount of cheque, date, number, account number in which persons favour which has wrote, and hence Learned Forums Judgment is not proper and justified and therei interfere is required, so the appeal is granted and final order is being passed.
9. On perusal of above, we find that the State Commission has accepted the appeal against the order of the District Forum mainly for the reason that the instructions dated 14.02.2004 given by the complainant to the respondent bank was vague and it could not be treated as clear instructions of stop payment. On careful consideration of record, we find that aforesaid conclusion of the State Commission is erroneous as the State Commission while arriving at the conclusion has ignored the fact that the numbers of cheques stated to have been misplaced vide instructions dated 14.02.2004 were recorded by the respondent bank in the unused cheque register officially maintained in this regard.
Photocopy of the unused cheque register maintained by the respondent bank is available on record. On perusal of the aforesaid photocopy, we find that on 14.02.2004, the entry regarding seven unused cheques pertaining to the bank account no.4226 of the complainant including cheque no.7780, which is the bone of contention in this revision, was actually made by the respondent bank in the unused cheque register pursuant to the instructions dated 14.02.2004 of the complainant. From this, it is obvious that the respondent bank actually understood the instructions given by the complainant and it is because of the said reason, the entries pertaining to unused cheques was made in the unused cheque register. That being the case, the respondent bank now cannot take shelter of vagueness in the letter dated 14.02.2004 of the complainant addressed to the respondent bank. From the above referred entry in the unused cheque register, it is clear that on 14.02.2004, the respondent bank was fully aware that as per the instructions of the complainant, the cheques entered in the unused cheque register were not to be encashed without first referring to the complainant.
Admittedly, the respondent bank encashed one of those cheques bearing no.7780 for Rs.1,68,450/- relating to account no.4226 of the complainant without referring to and seeking instructions from the complainant. This in our view obviously amount to deficiency in service. The State Commission has allowed the appeal of the respondent bank against the order of the District Forum without taking into account the entries made in the relevant unused cheque register maintained in the bank. Thus in our view, the order of the State Commission suffers from material irregularity and is unsustainable. Accordingly, we accept the revision petition and set aside the impugned order of the State Commission and restore the order of the District Forum.
No order as to costs.
(AJIT BHARIHOKE,J) PRESIDING MEMBER (SURESH CHANDRA) MEMBER Am/