State Consumer Disputes Redressal Commission
Sh. Nitin Pandit. vs T.I. Communications Pvt. Ltd. & Ors. on 19 June, 2020
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 210/2017
Date of Presentation: 18.07.2017
Order Reserved on : 26.11.2019
Date of Order : 19.06.2020
......
Nitin Pandit son of late Shri Gopal Krishna Pandit resident of
Hotel Panchsheel Opposite to Directorate of Education May Villa
Cart Road Shimla-171001.
...... Appellant/Complainant
Versus
1. T.I. Communications Private Limited Tasheena Cottage
Khallini Shimla (H.P).
2. Manager Central Bank of India The Mall Shimla H.P.
3. Manager Punjab National Bank Lift Branch The Mall Shimla
H.P.
4. Manager State Bank of India Railway Station Amritsar
Punjab-143 001.
5. Manager Central Bank of India P.B No.11 Katra Ahluwalia
Amritsar Punjab-143001.
......Respondents/Opposite parties No.1 to 5
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant : Mr. Ravi Tanta & Sh. Sahil Chankrola & Sh.
Nitin Thakur Advocate.
For RespondentNo.1 : Mr. Jagat Paul Advocate.
For Respondents No.2&5 : Mr. Ravinder Kumar vice Mr.
Abhishek Sood Advocate.
For Respondent No.3 : Mr. Sunil Kumar vice Mr. Vivek Negi
Advocate.
For Respondent No.4 : None despite service.
1
Whether reporters of the local papers may be allowed to see the order? Yes.
Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors.
F.A. No.210/2017
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed against order dated 09.06.2017 passed by learned DCF/DCC in consumer complaint No.107/2013 titled Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors.
Brief facts of consumer complaint:
2. Complainant Shri Nitin Pandit filed consumer complaint under Consumer Protection Act pleaded therein that complainant is owner of Gopaljees 93 Lower Market Shimla (HP) and is running business of selling mobile phones and mobile accessories. It is pleaded that opposite party No.1 i.e. T.I Communications Pvt. Ltd. is running business of distributorship of Nokia mobiles. It is further pleaded that opposite parties No.2, 3, 4 & 5 are bank authorities. It is pleaded that complainant issued cheque No.046715 from his CC account No.1254045864 of Central Bank of India Shimla (HP) in favour of T.I. Communications Pvt. Ltd. for amount of Rs.21447/-(Twenty one thousand four hundred forty seven) on dated 09.03.2012. It is pleaded that cheque in question was issued by complainant to opposite party No.1 in lieu of some business transaction inter se complainant and opposite party No.1.
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Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017
3. It is further pleaded that on dated 17.03.2012 Shri Prakash Chand Manager of T.I. Communications Pvt. Ltd. informed complainant that cheque No.046715 issued by complainant on dated 09.03.2012 was misplaced by employee of PNB Shimla (HP). It is pleaded that Manager of PNB Shimla (HP) asked complainant to stop payment of cheque in question. It is pleaded that complainant after coming to know about the fact asked Manager Central Bank of India The Mall Shimla to stop payment of cheque in question. It is pleaded that thereafter Central Bank of India The Mall Shimla informed complainant that cheque in question already stood encashed for an amount of Rs.220672/-(Two lac twenty thousand six hundred seventy two) by Sh. Sunil Randhawa. It is further pleaded that complainant was further informed that cheque in question was cleared in the name of one Sh. Sunil Randhawa who was having account with SBI Amritsar Punjab. It is pleaded that Sh. Sunil Randhawa is third person and complainant was not acquainted with Sh. Sunil Randhawa at any point of time. It is pleaded that cheque in question was scribed by complainant by way of using his computer. It is pleaded that amount and date of issuing was scribed in printed alphabetical letters.
4. It is further pleaded that thereafter tampering was committed in cheque in question. It is pleaded that 3 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 alphabetical part was manually changed by way of using different pen. It is pleaded that date of cheque was also changed to 07.03.2012. It is pleaded that cheque in question was stolen from the possession of PNB Shimla in broad day light. It is pleaded that PNB Shimla kept cheque in question in careless condition. It is pleaded that opposite party No.5 Central Bank of India cleared cheque in question to the tune of Rs.220672/-(Two lac twenty thousand six hundred seventy two) in illegal manner. It is further pleaded that FIR No.108/2012 was also lodged in police station Sadar Shimla (HP) on dated 20.07.2012. It is pleaded that opposite parties have committed deficiency in service.
5. Complainant sought relief of payment of Rs.220672/-(Two lac twenty thousand six hundred seventy two) alongwith interest @ 9% per annum. In addition complainant sought relief of payment of Rs.500000/-(Five lac) on account of loss suffered by complainant on account of act and conduct of opposite parties. In addition complainant sought relief of payment of Rs.100000/-(One lac) for mental harassment. In addition complainant sought relief of payment of Rs.55000/-(Fifty five thousand) for litigation costs. Prayer for acceptance of consumer complaint sought.
6. Per contra version filed on behalf of opposite party No.1 i.e. T.I. Communications Pvt. Ltd. pleaded therein that 4 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 consumer complaint is not maintainable against T.I. Communications Pvt. Ltd. It is pleaded that complainant does not fall within definition of consumer as defined under Consumer Protection Act. It is pleaded that present consumer complaint has been filed with the intention to cause injury to T.I. Communications Pvt. Ltd. It is admitted that employee of PNB Shimla (HP) informed about missing of cheque in question from the possession of PNB Shimla (HP). It is pleaded that cheque in question was presented before PNB Shimla (HP). It is further pleaded that thereafter immediately the fact of loss of cheque in question was informed to complainant. It is pleaded that encashment of cheque No.46715 for Rs.220672/-(Two lac twenty thousand six hundred seventy two) is denied for want of knowledge. It is pleaded that cheque in question was presented before PNB Shimla (HP) for payment of Rs.21447/-(Twenty one thousand four hundred forty seven) only. Prayer for dismissal of consumer complaint sought.
7. Per contra separate version filed on behalf of opposite parties No.2 & 5 i.e. Central Bank of India pleaded therein that present consumer complaint is not maintainable. It is pleaded that complainant has no cause of action against Central Bank of India. It is pleaded that cheque in question was cleared after adopting due procedure. It is pleaded that 5 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 no lapse on part of Central Bank of India was committed. It is further pleaded that when fraud came to the knowledge of Central Bank of India then FIR was lodged in Amritsar and Shimla vide Annexure-R2/A and R2/B. It is pleaded that complicated questions of facts and laws are involved in present consumer complaint. Prayer for dismissal of consumer complaint against Central Bank of India sought.
8. Per contra separate version filed on behalf of opposite party No.3 i.e. Punjab National Bank The Mall Shimla pleaded therein that present matter could not be adjudicated in summary proceedings and complainant be relegated to civil court for adjudication of dispute. It is pleaded that when PNB came to know about the fact then PNB immediately lodged the complaint with police station Sadar Shimla (HP) and also informed complainant for stopping the payment of cheque in question. It is pleaded that PNB did not commit any negligence. It is pleaded that six cheques in question were stolen from the counter of branch when there was rush in branch and FIR was also lodged. It is further pleaded that PNB did not commit any deficiency in service. Prayer for dismissal of consumer complaint against PNB sought.
9. Per contra separate version filed on behalf of opposite party N.4 i.e. State Bank of India Amritsar pleaded 6 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 therein that present consumer complaint is bad for non- joinder of necessary party. It is pleaded that Sh. Sunil Randhawa who encashed the cheque in question is necessary party. It is pleaded that cheque in question does not pertain to State Bank of India and it pertain to Central Bank of India The Mall Shimla (HP). It is pleaded that cheque was deposited by account holder for encashment and same was sent for clearance to Central Bank of India The Mall Shimla (HP). It is pleaded that Central Bank of India The Mall Shimla cleared cheque in question after verification and thereafter amount was credited in account of Sh. Sunil Randhawa. It is further pleaded that when information was received by Central Bank of India The Mall Shimla for non-payment of cheque in question at that time Sh. Sunil Randhawa was having balance amount of Rs.25/-(Twenty five) only. It is pleaded that negligence is on the part of Central Bank of India The Mall Shimla as it was duty of Central Bank of India The Mall Shimla to follow instruction issued by RBI relating to signature of their customers, tampering and erasing in instrument. It is pleaded that Central Bank of India The Mall Shimla is negligent and State Bank of India is not liable. Prayer for dismissal of consumer complaint against State Bank of India sought.
10. Learned DCF/DCC dismissed consumer complaint. Feeling aggrieved against order passed by learned 7 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 DCF/DCC complainant filed present appeal before State Commission.
11. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
12. Following points arise for determination in present appeal.
1. Whether appeal filed by complainant is liable to be accepted as mentioned in memorandum of grounds of appeal.
2. Final order.
Findings upon point No.1 with reasons:
13. Complainant filed affidavit in evidence and reiterated all allegation levelled in consumer complaint. There is recital in affidavit that deponent issued cheque bearing No.046715 from CC account No.1254045864 of Central Bank of India Shimla in favour of T.I communications Pvt. Ltd. for a sum of Rs.21447/-(Twenty one thousand four hundred forty seven) on dated 09.03.2012. There is recital in affidavit that cheque in question was issued by deponent to T.I Communication in lieu of some business transaction inter se deponent and opposite party No.1. There is recital in affidavit that on dated 17.03.2012 Sh. Prakash Chand Manager of T.I Communication Pvt. Ltd. informed deponent that cheque 8 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017
No.046715 issued by deponent on dated 09.03.2012 was stolen from the office of PNB The Mall Shimla. There is recital in affidavit that Manager of PNB Mall Shimla requested complainant to stop the payment of cheque in question. There is recital in affidavit that thereafter deponent asked Manager Central Bank of India Shimla to stop payment of cheque in question but Central Bank of India Shimla informed complainant that cheque in question was already stood encashed for an amount of Rs.220672/-(Two lac twenty thousand six hundred seventy two) in favour of Sh. Sunil Randhawa who was having account with opposite party No.4 i.e. State Bank of India Amritsar.
14. There is further recital in affidavit that amount of cheque to the tune of Rs.21447/-(Twenty one thousand four hundred forty seven) was interpolated to Rs.220672/-(Two lac twenty thousand six hundred seventy two) and name of payee was also interpolated from T.I. Communications Pvt. Ltd. to Sh. Sunil Randhawa. There is recital in affidavit that tampering was committed with cheque in question. There is recital in affidavit that opposite parties have committed deficiency in service. State Commission has carefully perused all annexures filed by complainant.
15. T.I. Communications Pvt. Ltd. did not adduce any evidence by way of affidavit. Learned Advocate appearing on 9 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 behalf of T.I. Communications Pvt. Ltd. namely Sh. Swaran Sharma has given written statement before learned DCF/DCC on dated 04.06.2014 that he has no instruction on behalf of T.I. Communications Pvt. Ltd. Learned Advocate appearing on behalf of opposite parties No.2 & 5 i.e. Central Bank of India also did not file any affidavit in evidence and learned Advocate has given written statement before learned DCF/DCC on dated 24.08.2016 that version filed by Central Bank of India alongwith documents be read in evidence and close the evidence on behalf of Central Bank of India.
16. PNB Opposite party No.3 filed affidavit of Sh. Mansa Ram Chief Manager PNB The Mall Shimla in evidence. There is recital in affidavit that thief stolen the cheque in question alongwith other six cheques from counter of branch during banking business hours when there was rush in the branch. There is recital in affidavit that when PNB The Mall Shimla came to know about theft then immediately FIR was lodged in police station Sadar Shimla (HP). There is recital in affidavit that collecting bank and paying bank are also under legal obligation to follow instruction of RBI.
17. State Bank of India Amritsar opposite party No.4 did not file any personal affidavit in evidence. Learned Advocate appearing on behalf of SBI Amritsar has given written statement before learned DCF/DCC on dated 10 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 02.05.2016 that version alongwith affidavit filed by State Bank of India Amritsar be read in evidence and close the evidence.
18. Submission of learned Advocate appearing on behalf of complainant that interpolation was committed in cheque in question by way of altering amount of Rs.21447/- (Twenty one thousand four hundred forty seven) to Rs.220672/-(Two lac twenty thousand six hundred seventy two) and interpolation was also committed in cheque in question by way of altering name of payee and interpolation was committed in cheque in question by way of alteration of date of cheque and on this ground appeal filed by complainant be allowed is decided accordingly. State Commission is of the opinion that factum of interpolation of cheque in question could not be decided by State Commission in a summary manner. It is well settled law that proceeding under Consumer Protection Act are summary in nature. Allegations of complainant are that interpolation in cheque in question was committed in order to give undue benefit to Sh. Sunil Randhawa. Complainant has not impleaded Sh. Sunil Randhawa as co-party in consumer complaint. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for adjudication of interpolation 11 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 matter in cheque in question. It is well settled law that no one should be condemned unheard in quasi judicial proceedings on concept of "AUDI ALTERAM PARTEM". See 2019(1) CLT 364 NC titled Devraj Kishore Das Versus Chief Manager Reliance LIC Ltd. & Ors. See 2019(III) CPJ 42 SCDRC Punjab titled Harpreet Kaur Versus Kotak Mahindra Bank Ltd. & Ors. See 1995(1) CPR 103 Delhi titled Samur Bahadur Versus Bank of Baroda. See 2001(1) CPJ page-I NC titled Bombay Dying and manufacturing Co. Ltd. Versus Union Bank of India.
19. Submission of learned Advocate appearing on behalf of complainant that cheque in question was presented before PNB The Mall Shimla and same was stolen from office of PNB Shimla and PNB Shimla has committed administrative lapse and on this ground appeal filed by complaint against PNB Shimla (HP) be allowed for administrative lapse and deficiency in service is decided accordingly. It is proved on record that cheque in question was presented by T.I. Communication Pvt. Ltd. i.e. Opposite party No.1 before PNB Shimla (HP) for encashment. PNB Shimla (HP) has admitted in version that cheque in question alongwith six other cheques were stolen from office of PNB Shimla during working hours. State Commission is of the opinion that administrative lapse on the part of PNB Shimla is writ large in 12 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 present matter. State Commission is of the opinion that PNB Shimla was under legal obligation to ensure that all cheques presented for encashment should not be stolen from office of Shimla during working hours. Factum of non security in the premises is writ large in the present matter. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to exonerate PNB The Mall Shimla from liability.
20. It is well settled law that cheques are presented before single window operator of concerned bank alongwith pay slip. It is well settled law that in alternative cheques are dropped in metal cheque drop box with pay slip. It is held that PNB The Mall Shimla has not satisfactorily explained reasons for stolen of cheque in question from PNB during day working hours. Plea of PNB that cheque in question was stolen due to rush of work is not acceptable to State Commission in the interest of consumers. If such plea is allowed then anarchy will prevail in Banks and faith of general public in Banks Authorities will be eroded.
21. Submission of learned Advocate appearing on behalf of PNB The Mall Shimla that PNB The Mall Shimla has not committed any administrative lapse and deficiency in service and on this ground appeal filed against PNB Shimla be dismissed is decided accordingly. State Commission is of the 13 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 opinion that administrative lapse and deficiency in service on part of PNB is writ large in present matter. It is proved on record that cheque in question was presented for encashment before PNB Shimla (HP). PNB Shimla (HP) has admitted in version that cheque in question alongwith other six cheques were stolen from premises of Punjab National Bank The Mall Shimla during day time in working hours time due to rush of work. State Commission is of the opinion that it is not expedient in the ends of justice and on the principles of natural justice to exonerate PNB The Mall Shimla from liability in the interest of consumer. It is held that cause of action relating to interpolation of cheque in question and cause of action relating to stolen of cheque in question from office of PNB during day time working hours of PNB are severable in nature in present matter.
22. Submission of learned Advocate appearing on behalf of PNB The Mall Shimla that cheque in question was issued for commercial transaction and matter relating to commercial transaction does not fall within jurisdiction of Consumer Authority is decided accordingly. Service has been defined under section 2(1)(o) of Consumer Protection Act 1986. See corresponding section 2(42) of Consumer Protection Act 2019. State Commission is of the opinion that service of any description rendered by banks falls within jurisdiction of Consumer Authority. State Commission is of the opinion that word service of any description means service of 14 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 any kind commercial or non commercial rendered by Banks falls within domain of Consumer Protection Act. See 2005(1) CPJ 27 NC titled Horsila Motors Versus National Insurance Company. See 1995(3) SCC 583 Apex Court titled Laxmi Engineering Works Versus PSG Industrial Institute. Even as per section 77 of Negotiable Instrument Act 1881 bank is liable for negligently dealing with cheque. See 2006(II) CPJ 345 NC titled State Bank of Mysore & other Versus K. Vasant Kumar and other. See 2006(IV) CPJ 274 NC titled P.S. Sawney Versus Canara Bank & others.
23. Submission of learned Advocates appearing on behalf of opposite parties No.1,2,4 & 5 that complicated facts and laws are involved in present matter and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that it is expedient in the ends of justice and on the principles of natural justice to relegate complainant to civil court for settlement of dispute relating to interpolation of cheque in question. Point No.1 is decided accordingly.
Point No.2: Final Order
24. In view of findings upon point No.1 above appeal filed by complainant is partly allowed against PNB The Mall Shimla (HP) only qua stolen of cheque in question only from office of PNB Shimla (HP) during day working hours. Complainant is relegated to civil court for adjudication of dispute relating to interpolation in cheque in question.
25. It is ordered that PNB The Mall Shimla on account of vicarious liability shall pay an amount of Rs.50000/- (Fifty thousand ) to complainant for mental agony and harassment 15 Nitin Pandit Versus T.I. Communications Pvt. Ltd. & Ors. F.A. No.210/2017 on account of stolen of cheque in question from office of PNB during day time working hours. It is further ordered that Punjab National Bank The Mall Shimla shall pay litigation costs to complainant to the tune of Rs.20000/-(Twenty thousand). PNB The Mall Shimla will comply order within one month after receipt of certified copy of order. Cheque No.046715 Annexure-A-1 shall form part and parcel of order. Order of learned DCF/DCC is modified accordingly.
26. File of learned DCF/DCC alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Due to winter vacation of State Commission w.e.f. 11.01.2020 to 23.02.2020 and due to country wide lockdown on account of Corona virus w.e.f. 24.03.2020 to 14.04.2020 appeal is decided today. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Sunita Sharma Member 19.06.2020 K.D 16