National Consumer Disputes Redressal
Susheel Thakur vs State Bank Of India & Anr. on 27 December, 2023
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 810 OF 2017 (Against the Order dated 14/03/2017 in Complaint No. 1/2015 of the State Commission Andhra Pradesh) 1. SUSHEEL THAKUR H NO. 6-29/1, PLOT 43 PART, KRISHNA KUNJ, RAGHURAM NAGAR COLONY, HYDERSHAKOTE, HYDERABAD-500091 TELANGANA STATE ...........Appellant(s) Versus 1. STATE BANK OF INDIA & ANR. THROUGH THE BRANCH MANAGER, STATE BANK OF INDIA, HAL CAMPUS BRANCH BALANAGAR, HYDERABAD, TELANGANA 2. STATE BANK OF INDIA THROUGH THE MANAGING DIRECTOR, MADAM CAMA ROAD, MUMBAI-400021 ...........Respondent(s)
BEFORE: HON'BLE AVM J. RAJENDRA, AVSM VSM (Retd.),PRESIDING MEMBER
FOR THE APPELLANT : FOR THE APPELLANT : MR. SUSHEEL THAKUR, IN PERSON
(THROUGH VC) FOR THE RESPONDENT : FOR THE RESPONDENT : MR. BUDDY A. RANGANATHAN,
ADVOCATE (THROUGH VC)
MS. ADITI SHARMA, ADVOCATE
(THROUGH PHYSICAL HEARING)
Dated : 27 December 2023 ORDER
1. The present First Appeal has been filed under Section 19 of the Consumer Protection Act, 1986 ("the Act") against the Order dated 14.03.2017 passed by the learned State Consumer Disputes Redressal Commission, Telangana ("the State Commission"), in Consumer Complaint No. 1of 2015, wherein the Complaint filed by the Complainant (Appellant herein) was Dismissed.
2. For Convenience, the parties in the present matter are referred to as mentioned in the Complaint before the State Commission. "Mr. Susheel Thakur is identified as the Complainant. While "State Bank of India' & Anr are referred as the Opposite Parties (for short OPs).
3. The brief facts of the case, as per the Complainant, are that a cheque, No. 090232 dated 13.09.2005 for Rs. 2,70,000/- was issued by him went missing. Thus, he issued another cheque No. 090233 dated 13.10.2005, for the same amount, with a request to OPs stop payment for the first missing cheque. However, the second cheque was also not received by OPs Bank. Thus, yet another cheque No. 090234 dated 19.10.2005 for Rs. 2,70,000/- was dispatched against both the missing cheques. Astonishingly, the third was encashed by an 'unknown person', indicating negligence of OP in verifying the recipient's identity, despite being informed of the missing cheques.
4. Following these incidents, a formal complaint was lodged with the Police on 07.12.2005. Thereafter, he received a threatening letter with photograph of a dead body, warning him that, if the case is pursued with the police, he would be killed. The Complainant suspected the involvement of staff of HAL campus branch of OP Bank, as an authorization letter sent through FAX, permitting his mother to execute bank transactions on his behalf in his absence and some bank officials might have exploited the same. These acts of the OPs amount to unfair trade practice and deficiency in service. Therefore, being aggrieved, he approached the learned State Commission and sought direction to OPs to pay Rs.2,70,000/- with interest @ 18% p.a. from 25.10.2005; to pay Rs.15,00,000/- as compensation; to pay costs of Rs.50,000/- for travelling expenses; and to pay Rs.4,37,400/- towards interest on Rs.2,70,000/- for a period of 9 years, altogether an amount of Rs.22,57,400/-.
5. OP No.1 filed a reply before the learned State Commission, contending that the complaint lacks merit and should be dismissed due to fraudulent intent. The complaint was filed well beyond the stipulated limitation period under Section 24A of the Act, as the subject cheque (No. 090234, dated 19.10.2005) was honored by the bank over a decade ago, on 08.11.2005, rendering, no cause of action to file the complaint. The OP No.1 contended that the Complainant holds a Savings Bank account (A/c No. 10442403060) with their HAL Campus branch, with cheque book facilities for depositing and withdrawing funds. Referring to the police complaint filed by the Complainant's sister, it was mentioned that the Complainant had dispatched three sealed covers through the postal department, each containing a cheque for Rs. 2,70,000/- (cheque Nos. 090232, 090233, and 090234). These were addressed to OP No.1 but allegedly did not reach the Complainant. The OP No.1 highlighted that upon receiving the third cheque (No. 090234, dated 19.10.2005) for payment in normal course, they honored it after verifying the signature. They contended that any grievance against the individual encashing the amount should be directed at that person, not the bank. They further contended that the Complainant filed a complaint with Banking Ombudsman, which was dismissed, and subsequent initiation of the present complaint, nearly a decade later is an action driven by malafide intentions. OP No.1 maintained that they aren't liable for any payments as claimed in the complaint, asserting there was no deficiency of service. OP No.2, in agreement with OP No.1's stance, adopted the written version filed by OP No.1 and aligned their response with that of OP No.1 supporting the prayer for dismissal of the complaint with exemplary costs.
6. The learned State Commission upon hearing the parties, and considering the facts and the circumstances, of the case dismissed the complaint with the following Order: -
"13. As can be seen from the documents filed, the complainant failed to explain any deficiency of service on the part of the Opposite parties as defined under section 2(1)(g) of the Consumer Protection Act, 1986 which reads as follows:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service;
The only dispute which the complainant alleges is that without verifying the antecedents of the person in possession of the instrument, have paid the amount of Rs.2,70,000/- and thereby caused loss to him which is nothing but cheating and fraud. In this regard, we may state that the payment of amount by the opposite party bank on presentation of cheque does not amount to deficiency in service. Even otherwise, the complainant failed to state the required procedure to be followed by the bank under any law and the violation thereof, to allege deficiency in service. Admittedly, the alleged dispute pertains to the date 08.11.2005. The complainant ought to have agitated his grievance within the period of two years from 08.11.2005 or else from 26.09.2006, the date on which the final report was filed by the police. Viewed from any angle, the present complaint is barred by limitation as provided under section 24A of the Consumer Protection Act, 1986, which reads as follows:
"Limitation period. -
(l) 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 (l), 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 within 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."
Even otherwise, no sufficient cause or reason is placed on record to condone the delay in filing the complaint. Be that as it may, from the perusal of recitals of the complaint and the averments made thereon, it appears to be the complex questions of fact which are involved in the matter which require elaborate enquiry and oral evidence, which the Fora constituted under the Consumer Protection Act, 1986 are not competent to adjudicate the matter. Viewed from any angle, the complaint is devoid of any merits and barred by limitation. For the foregoing reasons, we answer the points No.1 and 2 framed for consideration at paragraph No.9, supra, against the Complainant and in favour of the Opposite parties."
7. Being aggrieved by the impugned order of the State Commission, the Complainant (Appellant herein) has filed this present Appeal no. 810 of 2017 with the following prayer:
" It is prayed that this Hon'ble National Commission may kindly allow the present appeal against the defective Order of the State Consumer Disputes Redressal Commission, Hyderabad, and decide the case on priority as the matter is pending for past many years, and deliver justice to me."
8. In the Appeal the Appellant mainly raised the following:
(a) The State Commission did not consider that the OP knew of the two missing Cheques. 090232 & 090233 of Rs.2,70,000 each stop payments sought. Thus the OP banks should have been careful in clearing the said third cheque.
(b) The State Commission failed to consider that the OP bank should have been more diligent in verifying the credentials of the cheque presenter as Rs. 2,70,000 was paid. Standard banking practices involve contacting the account holder for confirmation. The bank failed to perform necessary checks.
(c) The State Commission did not consider that the OP bank was specifically instructed vide letter dated 22.08.2005, faxed on 21.11.2005, not to clear any cheque or transactions without the physical presence of his mother, as he was overseas. Despite receiving this fax, the payment was made without proper verification of the presenter for the self-cheque.
(d) The 'State Commission did not take into consideration that there is no delay in filing the case because the Banking Ombudsman Order was received on 27.11.2014, which was the date of cause of action for filing the complaint with State Commission and it was filed well within limitation period.
9. Upon notice, the Respondents filed a reply to the present Appeal and acknowledged that the Appellant's status as a Savings Bank Account Holder with the Respondent at the HAL Campus branch, Balanagar, Hyderabad. However, the OP bank strongly refuted the claim as regards sending three cheques to the OP bank. In the Complaint made by Ms. T. Neeru, the Appellant's sister, she clearly stated that the cheques were sent by the Appellant to his sister and not to the Bank. Therefore, the assertion that the Respondent Bank had prior knowledge of the missing cheques is baseless. In the regular course of business, the OP bank honoured the cheque No.090234 dated 19.10.2005, after verifying the signatures on the instrument. As per legal obligations, the Bank fulfilled its duty. The Appellant, by issuing a 'self' cheque payable to 'bearer' for payment had relinquished the right to question its encashment. Any individual possessing the bearer instrument is legally entitled to encash it, and the Bank is bound to honour such instruments based on their apparent terms. As regards the alleged letter dated 22.8.2005, the OP bank asserted that no communication of such nature was received regarding stop payment instructions against the cheque bearing no. 090234 dated 19.10.2005. The OPs highlighted that the Appellant filed the complaint almost a decade after the encashment of the cheque, with purportedly false and baseless allegations, aiming for unlawful gain. In terms of Section 24A of the Act of 1986, the limitation period for filing a consumer complaint is two years from the date the complaint arose. The Respondents argue that the Appellant should have pursued the grievance within two years from 08.11.2005 or, at the latest, from 26.09.2006, the date of the police's final report. Filing the Complaint before the State Commission on or about 04.04.2016, over a decade later, is grossly untimely as per statutory limitations.
10. The Appellant's in person reiterated the Complaint as well as the grounds of Appeal and asserted that the Respondent Bank should have exercised caution due to prior instances of missing cheques and stopped payments issued for these cheques. He highlighted the Bank's failure to verify the credentials of the person encashing the said cheque, which is if substantial amount. He further argued that the Respondents failed to take effective steps, even after he communicated instructions to the Bank to refrain from transactions without the physical presence of a specific individual. He forcefully argued that the filing of the case was within limitation period, as the cause of action arose upon receipt of the Banking Ombudsman Order, contrary to the Respondent's assertion of the case being filed beyond statutory limitations.
11. The learned Counsel for the Respondents reiterated the reply and asserted the validity of the State Commission order dismissing the Complaint. His arguments cantered on the absence of deficiency in the service of the Bank in honouring cheque No. 090234 dated 19.10.2005. He asserted that this cheque, as admitted was a "self" cheque payable to "bearer". Thus, it was paid based on its apparent terms, which cannot constitute any service deficiency. The claim that the Bank had knowledge of previous missing cheques (Nos. 090232 and 090233) is baseless as the said mail was in fact addressed to the Appellant's sister and not the Bank. He argued that, even for the sake of argument, if the Bank had such knowledge, still the Bank fulfilled its obligation by honouring the cheque's apparent terms. Regarding the purported letter dated 22.08.2005 instructing account dealings only with the Appellant's mother, they pointed out that this communication was faxed to the Bank on 21.11.2005, after the subject cheque had already been honoured, and it didn't restrict the Bank from honouring a cheque based on its tenor, as required by law. He also highlighted the substantial delay in filing the Consumer Complaint, about 10 years after the cheque's honour on 08.11.2005, while the complaint was filed around 04.04.2016. He further argued that the Complainant's reliance on the Ombudsman's Order dated 27.11.2014 as the start date for limitation has no support from law.
12. I have examined the pleadings and associated documents placed on record and rendered thoughtful consideration to the arguments advanced by the learned Counsels for both the parties.
13. The primary issue in this case revolves around the alleged deficiency in service by the Bank in honouring Cheque No. 090234 dated 19.10.2005. The key contention is whether the Bank's action in honoring this "self" cheque, payable to "bearer," constituted a service deficiency or negligence. Further, the dispute also involves the claim of Bank's knowledge of the previous missing cheques (Nos. 090232 and 090233), the instructions in a faxed letter dated 22.08.2005, and nearly a decade delay in filing the complaint.
14. In is and admitted position that the Complainant has a Savings Bank account with the OP bank. He had sent cheque for Rs.2,70,000/- to his mother by registered post from United Kingdom but the same was not received by the addressee. Thus, he sent two more cheques and these were also not received by his mother. A complaint was lodged by his mother and sister with the Police Station concerned and a case was registered and later a final report as undetectable was filed. In this course of time, someone who was in possession of the said 'Self Cheque' issued by the Appellant/ Complainant presented the same and withdrew Rs.2,70,000/- payable vide cheque No.090234, dated 19.10.2005 on 08.11.2005, without the knowledge of Complainant and his mother. The grievance of the Appellant is that the Opposite Parties honoured the cheque without verifying the antecedents of the person who presented the cheque and withdrew the amount despite being aware that his previous cheques were missing. The copies of documents filed by the Complainant are unclear. Evidently, the complainant was lodged the complaint with the Police for cheating and fraud vide Cr.No.441/2015 on 07.12.2015 in Police Station, Balanagar, Cyberabad for offences under Sections 420 and 506 of IPC. After due investigation, the final report on 26.09.2006 is stated to have been filed as undetected.
15. The main grievance against the OP is that they paid the amount on the self cheque, without due verification. It is uncontested position that the cheque which was issued by the Complainant was a self-cheque, and when it was presented, it was honoured by the OP bank on 08.11.2005. Thereafter, based on the complaint by the mother and sister of the Complainant, final report was filed by the police on 26.09.2006. As against the same, the Complainant filed a complaint before the Banking Ombudsman, Hyderabad which was disposed of vide orders dated 27.11.2014, giving liberty to the Complainant to approach the civil court of competent jurisdiction or such other authority. The complainant thus approached the learned Telangana State Commission.
16. From the complaint, Appeal and the documents filed and arguments advances, Complainant failed to bring out deficiency even reasonably in the service by the Opposite parties as defined under section 2(1)(g) of the Consumer Protection Act, 1986 that "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
17. Admittedly, the dispute pertains to the date 08.11.2005 on which the cheque in dispute was paid by the OP bank. Thus, the Complainant ought to have agitated his grievance within two years from 08.11.2005. Merely by filing a complaint with the said Ombudsman, the period of limitation prescribed under section 24A of the Consumer Protection Act, 1986 cannot be unduly protracted. In addition, the main dispute which the Complainant is aggrieved about is that without verifying the antecedents of the person in possession of the cheque for Rs.2,70,000/-, it was paid, causing him loss. In this regard, it is uncontested position that the Complainant had issued the said cheque as payable to Self or the Bearer. The OP bank had paid the same to the Bearer and asserted that such payment by honouring the said instrument is in due compliance of law and procedure. On the other hand, the Complainant failed to bring anything on record to establish that there was any violation of law or procedure in such payment and thus prove deficiency in service, if any.
18. In view of the above deliberations, I am in the considered view that the Order of the learned State Commission dated 14.03.2017 in Consumer Complaint No. 1/2015 does not require any interference. The First Appeal No. 810 of 2017 is, therefore, dismissed.
19. There shall be no order as to costs.
20. All pending Applications, if any, stand disposed of accordingly.
................................................................................... AVM J. RAJENDRA, AVSM VSM (Retd.) PRESIDING MEMBER