IN THE COURT OF THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SAMBALPUR
CONSUMER COMPLAINT NO. 38/2020
Present-Sri Dipak Kumar Mahapatra, President, Smt. Arati Das, Member (W).
1. Sri Bijay Kumar Behera, S/O Sri Sukdev Behera
Aged about 46 year
2. Smt. Anjali Behera, W/O Bijaya Kumar Behera
Aged about 42 years
Both are Residents of Village : Mathpali, Bhatara,
PO:-Dhanuapli, Sambalpur,Odisha-768005 ...………..Complainant
Versus
1. The Branch Manager,
State Bank Of India, Dhanupali Branch,
At/Po:- Dhanupali, Sambalpur
Sambalpur, Odisha-768005 …………Opp.Party 1
2. The Regional Manager,
State Bank of India, R.B.O.-II, Main Branch,
State Bank of India, Sambalpur, Odisha-768001 ….…..Opp.Party 2
3. The D.G.M, State Bank Of India
Zonal Office, Ainthapali, Sambalpur,
Odisha-768004 ……..Opp.Party 3
4. The General Manager-1, State Bank of India,
6th Floor, Local Head Office, III/1, Pt. Jawaharlal Neheru Marg,
Bhubaneswar, Khurdha, Odisha-751001 ………….Opp.Party-4
5. The Chief General Manager, State Bank of India,
Local Head Office, Pt. Jawaharlal Neheru Marg,
Bhubaneswar, Khurdha, Odisha-751001 …………Opp.Party-5
Counsel:- For the Complainants:- Sri. S.Dash, Advocate
For the O.P No.1 :-Sri. S.A. Guru, Advocate & associates
For the O.P No.2 to 5:- None
DATE OF HEARING : 07.12.2021, DATE OF ORDER : 13.12.2021
SRI DIPAK KUMAR MAHAPATRA,PRESIDENT- Brief facts of the case is that, the Complainant -1 is running a Betel Shop for his livelihood. The Complainant No-2 is the married wife of the Complainant No-1. They are both belongs to Schedule Caste Community. On dtd.29.08.2018 the Complainants opted to open a joint saving bank account passbook in the bank of the O.P-1 and availed a joint passbook vide account no- 3790517788.The Complainants were not provided with cheque book or ATM Card in spite of applied for the same and several visits to the O.P-1. A letter was sent to the O.P-1 with a request to issue the cheque book and ATM Card on dtd.12.09.2019 but no results obtained. On dtd. 25.09.2019 the Complainants sent a letter to the Banking Ombudsman regarding this matter and drawn attention towards the negligence of the O.P-1 and after the interference of the Banking Ombudsman cheque book and ATM card was issued to the Complainants on payment of Rs. 590/- as charges for the above. On dtd 04.11.2020 the Complainants presented a self cheque bearing no- 197621 in the bank to withdraw an amount of Rs. 30,000/- from their account as the Complainant No-1 was in urgent need of money for treatment of his old and ailing father. But the O.P-1 did not entertain the cheque but made an endorsement on the backside of the cheque that “Payment Stopped”. On asking about the reason of stop payment the Bank authorities did not bother to answer rather answered that the account holders have stopped the payment themselves. But when the Complainant No-1 enquires about this the O.P-1 remained silent over this matter and misbehaved the Complainants and asked them to leave the bank and denied making payment. The Complainants returned empty handed in spite of having sufficient funds in their account. They borrowed money from their family friends for the treatment of their ailing father. The cause of action arose on dtd.05.11.2020 when the denied to honour the cheque bearing no- 197622 for Rs. 10,000/-in favour of their cousin. This cheque was also retuned with an endorsement “Payment Stopped by Drawer” for which the Complainants faced severe financial hardship. During the time of CORONA Pandemic the Complainants again on dtd.09.11.2020 issued another cheque bearing no- 197624 amounting to Rs.90,000/- in favour of his cousin brother and this time also the cheque returned dishonored with the same endorsement in spite of a balance of Rs.1,05,879.50 paisa in their account. The Complainants could not understand the matter as they have never asked the bank to stop payment and they are having sufficient amount in the saving bank pass book still the bank is not honoring the cheques. The Complainant states that as the Complainants have complained against the O.P-1 for non issuance of Cheque Book and ATM for this reason the O.P-1 is taking revenge to the Complainant. The O.P-1 has intentionally stopped the payment just to satisfy his false ego and every time he ill-treated the Complainant NO-1. Again on dtd.23.12.2021 on date of Admission Hearing the Advocate for the Complainants filed a petition where he has stated on behalf of the Complainants that- The O.P-1 had arbitrarily stopped the payment and blocked the account of the Complainants from dtd. 04.11.2020 to till 17.12.2020 i.e from the date when the self cheque was denied and payment had not been made to the Complainants to till the date when the Complainants withdrew Rs. 500/- from ATM Counter. For the arbitrary act of the O.P-1 the Complainants are going through severe financial setback with metal harassment and agony for which they decided to seek relief from this Commission
The Advocate for the O.P-1 stated that the case is bad for non-joinder and mis-joinder of parties as the cousin brother needs to be added as a party in this case. There is no cause of action against the O.Ps. The O.P-1 has issued three ATM cards and two set of cheque books and sent them to the address of the Complainants. The Complainants have withdrawn money on dtd. 02.11.2020 through ATM Card still they came to the bank and applied for ATM 03.12.2020. The Bank issued ATM card and they withdraw money on dtd.17.12.2020 through ATM Card. The Complainants was having the authority to withdraw money through ATM Card since dtd. 30.11.2019. As the Complainant being quarrelsome person without any fault of the O.P-1 filed a Complaint before the Bank Ombudsman against the O.P-1. The allegation of deducting Rs. 590/- from the account towards issue of Cheque book and ATM Card is not true at all rather the charges was deducted towards the Cheque Stop Payment Charges on dtd. 13.11.2019. The O.P-1 denied the allegation of writing Stop payment in pencil on the back side of the cheque as the O.P-1 has to return the cheque with an endorsement as STOP PAYMENT. There was a transfer of money on dtd. 01.07.2019, 03.08.2019 and 06.09.2019 from the ATM card of the father of the Complainant No-1 to his SB account. If the cheque no- 197622 for Rs.10,000/-and no- 197624 for Rs. 90,000/- which were issued in the name of his cousin brother and the cheque were
returned with an endorsement as Payment Stop by the Drawer, why the said cousin brother has not issued a notice U/S-138 NI Act to initiate a criminal proceeding against the Complainants. The matter of Stop Payment was well known to the Complainant which is reflected in their statement of account. The O.P-1 has written a letter to the Complainants for the security reasons of the unserved cheques series from 197621 to 197 630 are set stop and requested to inform the O.P-1 as soon as the complainants receive the cheques. Again it is submitted that on dtd.26.09.2020, 02.11.2020 and 17.12.2020 the Complainant has withdrawn money through ATM which are reflected in the account statements. The Complainant has issued all the cheques time to time having knowledge that the cheques have been stopped. Hence the O.P-1 has not committed any deficiency in services to the Complainants so he may not be penalized.
The O.P-2, 3 & 4 despite of service of notice did not bother to appear and file written statements to their defense before this Commission thus challenging the allegations made by the Complainant. So taking it in to consideration as “IT IS A YEAR OLD CASE”, this Commission has rightly decided to dispose off the case on merit basis considering the Complaint petition filed by the Complainant.
POINTS OF DETERMINATION:-
- Whether the Complainant is comes under the purview of Consumer Protection Act-2019?
- Whether the O.Ps has committed any Deficiency in Service to the Complainant?
From the above discussion and materials available on records we inferred that the Complainant comes under the purview of Consumers as he had availed a saving bank passbook in the O.P-1 bank jointly with his wife and availing services. After going through the case records there are several latches from the sides of the the O.Ps. The Advocate for the O.P-1 stated that the Complainants had instructed the O.P-1 Bank for stop payment from their accounts, but he has not filed any evidence in support of it. Also the O.P-1 has filed no evidence in support of his claim that the O.P-1 has issued three ATM cards and two set of cheque books and sent them to the address of the Complainants. They have not specially mentioned the dates on which they have issued the said ATM Cards and the serial no of cheque books in this case. The Advocate for the O.P-1 has mentioned that he has made some annexure to support the contents of some Paragraphs but there is no such annexure found in the case record attached with the written statements of the O.P-1., hence is quite impossible to make any consideration. The claim of the O.P-1 that, on dishonor of cheques issued in favour of the cousin of the Complainants the said cousin should have file a criminal case is not mandatory and it totally depends upon the will of the person in whose favour the said cheque was issued. On the other side the Advocate for the Complainants stated in the petition filed on dtd. 23.12.2020 that,”The O.P-1 had arbitrarily stopped the payment and blocked the account of the Complainants from dtd. 04.11.2020 to till 17.12.2020 i.e from the date when the self cheque was denied and payment had not been made to the Complainants to till the date when the Complainants withdrew Rs. 500/- from ATM Counter”. But it is observed from the account statements of the Complainants that there were two withdrawal made by the Complainants through ATM Card on dtd.26.09.2020 and 02.11.2020. But the O.P-1 did not honored the bearer cheques is confusing. Again if the Complainants have withdrawn money from their account between dtd. 04.11.2020 and dtd.17.12.2020 through ATM Card then the O.P-1 should not have returned the cheques unpaid with an endorsement of “Payment Stopped” which is confusing. If the Complainants shows that in his account there were sufficient funds to clear the amount of the cheque at the time of presentation of the cheque for encashment at the drawer bank and that the stop-payment notice had been issued because of other valid causes including that there was no existing debt or liability at the time of presentation of cheque for encashment, then offence under Section 138 would not be made out. In the matter of Goa Plast (P) Ltd vs Chico Ursula D'Souza on 20 November, 2003,also Hon;ble Supreme Court of India had held that ordinarily the stop payment instruction is issued to the bank by the account holder when there is no sufficient amount in the account. But, it was also observed therein that the reasons for stopping the payment can be manifold which cannot be overlooked. Hence, in view of Section 139, it has to be presumed that a cheque is issued in discharge of any debt or other liability. But the presumption can be rebutted by adducing evidence and the burden of proof is on the person who wants to rebut the presumption. Therefore, in order to hold that the stop payment instruction to the bank would not constitute an offence, it is essential that there must have been sufficient funds in the accounts in the first place on the date of signing of the cheque, the date of presentation of the cheque, the date on which stop payment instructions were issued to the bank. By not honoring the cheque issued by the Complainants on a false plea of “payment stopped by the drawer” amounts to deficiency in services. The O.P-1 is thus liable for not providing necessary services to its customers and we order as under:-
ORDER.
The Complaint petition is allowed. The O.P-1 is directed to make payments against the cheques issued by the Complainants and also allow any other modes of withdrawal process if presented for payment. Further the O.P-1 is directed to pay Rs. 1,00,000/-(Rupees One Lakh) only as compensation for loss of income, harassment and mental agony of the petitioner and Rs.10,000/- (Rupees Ten Thousand ) as the Cost of Litigation within 30 (Thirty ) days of receipt of this order failing which the O.P is liable to pay penal interest of 9% per annum on the above amounts.
Office is directed to supply the free copies of the order to the parties receiving acknowledgement of the delivery of thereof.
Order pronounced in the open court today i.e. 14th day of December, 2021 under my hand and seal of this Commission.
I agree,
-sd/- -sd/-
MEMBER(W) PRESIDENT
Dictated and Corrected
by me.
-sd/-
PRESIDENT
