The brief facts of the complainant case, is that, he is a businessman and permanent resident within the jurisdiction of this Commission. He is the customer of Bank of India and maintaining the O.D. Account in the said bank at Alipurduar Branch being Account No. 507729010000001 (Customer ID No. 176858476). Complainant deposited an account payee cheque to his said O.D. Account being cheque No. 437450 dated – 28/08/2020 amounting to Rs. 2,00,000/- which was drawn on SBI, Ballyguang Railway Station Branch from the account of Mr. Sachin Mitra. On 29/08/2020 the said amount of Rs. 2,00,000/- was credited in the said O.D. Account of the complainant against cheque being No. 437450 dated – 28/08/2020. Thereafter, the complainant as usual had been maintaining his O.D. Account on regular basis but on 02/01/2021 the O.P. No. 1 informed the complainant verbally that the said cheque was returned unpaid by the drawee bank but did not disclose the reason. Then the complainant requested the O.P. No. 1 to return the said cheque along with return memo so that the complainant could take recourse of law under the Negotiable Instrument Act against the drawee, but the O.P. No. 1 refused to return the said cheque and return memo without any reason. Suddenly on and from 02/01/2021 O.P No. 1 made the said O.D. Account of the complainant as dormant without assigning any reason. As a result of which the complainant has been debarred from getting the benefit and privileges of his said account. Although the O.P. Bank has been charging interest day by day from the complainant. The complainant served the notice to the O.P. No. 1 and requesting to return the said cheque and return memo and also request to regularize the O.D. Account, but after receiving the said notice O.P. No 1 neither return the said memo and said cheque nor make the account as operative. Rather he, after lapse of so many days sent a vague and ridiculous reply through his advocate wherein he was stated that the amount has been wrongly credited in the account of the complainant and made it clear that the O.P. No. 1 would not returned the cheque and return memo until the said amount along with interest be deposited by the complainant.
The O.P. Bank will fully and deliberately restrain the complainant to take recourse of law under the Negotiable Instrument Act against the drawer of the cheque, which is very much technical in nature. The amount might be wrongly credited in the account of the complainant, the complainant had no contribution in the said fault and he is not such a person of that said amount of the bank, but due to the above activities of the O.P. No. 1, the complainant inspite of having and good option to take recourse of law under the Negotiable Instrument Act but he could not avail the same. The unpaid amount of Rs. 2,00,000/- could have been recovered by the drawer of the said cheque after the return of the said cheque and return memo to the complainant in due time. In the bank, the complainant has been gone to the branch of the O.P No. 1 in several occasions to resolve the matter, but he did not get any response from the side of the O.P. No. 1. The complainant has suffered huge financial loss for not taking action the drawer of the said cheque and also for not operating the account. The O.P. Bank cannot deny gross negligence and deficiency in service on their part. The O.P. Bank is liable to pay the compensation to the complainant for their said illegal acts. The O.P Bank is liable to pay compensation of Rs. 4,00,000/- to the complainant for causing financial losses and Rs. 30,000/- for causing harassment and Rs. 25,000/- as litigation cost.
The O.Ps have contested the case by filing written version and denying all the allegations made by the complainant.
According to the O.Ps complainant is a existing customer of the bank who is maintaining his O.D. limit with the branch of Bank of India, Alipurduar and he deposited a cheque of Rs. 2,00,000/- being cheque no. 437450 dated – 28/08/2020. After depositing the said cheque it was presented in CTS clearing and subsequently the cheque amount is credited to the O.D Account of the complainant. On 29/08/2020 although it was subjected to realization for normal clearing process as it was presented to payee bank through CTS clearing system, Chennai Service Branch. The payee bank of the cheque, SBI returned the cheque specifying the reason (drawer signature differs). In such a case Chennai Service Branch had to return the marked cheque amount specifying the reason but due to the pandemic situation of Covid-19 the technical support system was collapsed and several technical problems arose and due to that reason Chennai Service Branch failed to debit the amount from the O.D. Account of the complainant on 29/08/2020. But on the same day Chennai Service Branch debited the O.D. Account being number 50770SUNCR161 of O.P. Bank. O.P. No. 1 amounting to Rs. 2,00,000/- for further recovery of O.D. Account of the complainant. But the respective service branch did not convey the matter to the O.P. No. 1. At the time of Audit compliance the matter became knowledgeable to the O.P. No. 1 and as soon as it came to the knowledge of the authority of O.P. No.1. They confirm the matter to the Chennai Service Branch. After getting the knowledge about the miscredit of Rs. 2,00,000/- in the O.D. Account of the complainant, the O.P. No. 1 inform the matter over telephone on 02/01/2021 and requested the complainant to deposit the amount to the O.P. No. 1 as it was wrongly credited to his account and also requested him to visit the branch of the O.P. No. 1. On receiving the information the complainant was totally reluctant to co-operate with the O.P. No. 1. As a result the bank authority i.e., the O.P. No. 1 marked the O.D. Account as lien on 12/01/2021 and also informed the matter to the complainant that once the amount is recovered from him, the lien would be removed. The O.P. No. 1 never debited any amount from the O.D. Account of the complainant as a matter the complainant used the said account and withdrew the said amount of Rs. 2,00,000/- from his said account and got benefitted the interest which was credited to the account in respect of Rs. 2,00,000/-. On repeated the complainant visited the branch of O.P. No. 1 on 03/01/2021 where the respective bank authority has shown him the system generated return memo and also told him that bank would return the original cheque along with return memo after receiving the written application with acknowledgement to return amount of Rs. 2,00,000/- subsequently whenever O.P. Nos. 1 and 2 contacted with Sri Sachin Mitra, who issued the cheque of Rs. 2,00,000/- in favor of the complainant over telephone. He clearly stated that cheque has not been passed and the complainant was fully aware it as Sri Mitra informed the matter to the complainant. Being aware about the facts and circumstances that the cheque has not been passed and was returned to the cheque insurer, the complainant use the banks fund amounting to Rs. 2,00,000/- which is wrongly credited to his account for more than five months and got that the benefit of that fund. On receiving the information the complainant never made any step to return the amount which was inadvertently credited to his account. Being a responsible person it was duty of the complainant to return the amount to the bank. Bank deals with public money. So the bank cannot indulge an illegal transaction. Here in this case the allegation made by the complainant against the O.Ps. are totally false. O.Ps. are prayed for dismissed the case against them.
In this context, the following issues are necessarily come up for the proper adjudication of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(7)(ii) of Consumer Protection Act, 2019 ?
- Has this Commission jurisdiction to try the instant case?
- Is there any deficiency in service on the part of the O.Ps?
- Is the complainant entitled to get any relief/reliefs as prayed for?
Both the parties file their evidence-on-affidavit and written argument.
DECISION WITH REASONS
Considering the nature and character of the case all these points are interlinked to each other as such all the points are taken up together for consideration for the sake of brevity and convenience. The case has been filed u/s. 35 of the Consumer Protection Act, 2019 by the complainant.
Point No. 1 :- Admittedly the complainant is the customer of the O.P bank and he has a O.D. Account in that bank. So, as per C.P. Act, 2019 the complainant is the consumer and if it proves the case in regarding deficiency in service of the bank then he will get protection of this Act.
Point No. 2:- It is seen from this case record as well as the evidence of the complainant that the complainant resides and the office of the O.Ps situated within the territorial jurisdiction of this Commission. Therefore, this Commission has territorial jurisdiction to try this case as per section 34(d) of the C.P. Act, 2019.
Point Nos. 3 & 4:- It is an admitted position that the complainant being an O.D. Account Holder with the O.P bank deposited one cheque bearing No. 437450 dated -28/08/2020 amounting to Rs. 2,00,000/- drawn on Ballyguang Railway Station branch issued by one Sachin Mitra and the said cheque was sent for clearance by the O.P bank to their Chennai Service Branch but before clearance the said cheque amount of Rs. 2,00,000/- has been credited in the O.D. Account of the complainant on 29/08/2020 and the complainant utilized the said Rs. 2,00,000/- by withdrawing the same from his account. The complainant stated that on 02/01/2021 the O.P No. 1 informed the complainant verbally that the said cheque bearing No. 437450 was returned unpaid by the drawee bank but did not disclose the reason. Then complainant requested the O.P No. 1 to issue the return memo show that the complainant should be taken legal action according to Negotiable Instrument Act against the said Sachin Mitra but the O.Ps did not hand over the dishonor cheque and return memo and the O.P No. 1 suddenly dormant the said O.D. Account. As a result the complainant debarred from getting the benefit and privileges of the said account. According to the complaint there is deficiency in service from the side of the O.Ps. The O.Ps have stated that the said cheque in question which was deposited by the complainant was sent in CTS clearing and subsequently the cheque amount was credited to the O.D Account of the complainant subject to realization for normal clearing process. The payee bank of the cheque S.B.I. return the cheque specifying the reason ‘drawer signature defers’. In such case Chennai Service Branch had to return the cheque amount specifying the reason due to the pandemic situation of the Covid – 19, the technical support situation of Chennai Service Branch became collapsed and several technical problems arose and for the reason the Chennai Service Branch failed to debit the said amount on 29/08/2020. But the Chennai Service Branch debited the said amount from the office account of the O.P No. 1. O.P No. 1 requested the complainant to deposit the said amount of Rs. 2,00,000/- which was withdrawn by the complainant before the realization of the cheque but the complainant did not deposit the said amount and the O.Ps finding no other alternative and lien the O.D. Account of the complainant on 12/01/2021.
After considering the facts of the case as well as evidence by both the parties we find that the one cheque was deposited for clearance in the O.D. Account of the complainant and the cheque amount was credited in the account of the complainant before clearance of the same from payee bank. In the meantime payee bank dishonor the cheque as the signature of the drawer defers. It is pertinently to mention here that the Covid - 19 situations was started from first part of 2020 by way of lock down declared by the Central Govt. It also appears that due to the said Covid - 19 situation the Chennai Service Branch did not debit the said cheque amount form the O.D. Account of the complainant due to the technical problem but the Chennai Service Branch debited the said cheque amount from the office account of the O.P No. 1. From the face of the complaint as well as the evidence and argument we also find that the complainant did not state anything why he has not yet deposited the said cheque amount of Rs. 2,00,000/- which he has withdrawn from this account as it was credited before clearance of the cheque. It also appears from the correspondence between the parties that the O.P bank informed the complainant to deposit the said dishonor cheque amount to his account but the complainant did not pay heed to the request. It also appears from the correspondence between the parties that the drawer of the cheque Mr. Sachin Mitra admitted that the cheque amount was not debited form his account which is lying in State Bank of India, Ballyguang Railway Station Branch. The complainant pressed on the point that the bank did not hand over the dishonor cheque and return memo to him as a result he did not take legal action under Negotiable Instrument Act against drawer of the cheque. But we find that the complainant has already withdrawn the said cheque amount from this O.D. Account which has been credited in-advertently before realization of the cheque and the complainant did not deposit the said amount till date to the bank inspite of repeated request by the bank. So at this stage complainant has no right to raise the point that the dishonor cheque and return memo was not handed over to him by the bank as a result the complainant has debarred form using legal process against the drawer of the cheque. This matter will be considered when the complainant deposited the said cheque amount to his O.D. Account which he has withdrawn the same. So at this stage he can not say that the dishonor cheque and return memo was not handed over to him for which he suffer irreparable loss of money as because the complainant has withdrawn the said amount from his O.D Account which has been credited before realization of the cheque. So we find that there is no deficiency in service from the side of the O.P bank on this point and it is a premature allegation of the complainant as he did not deposit the said cheque amount to this O.D. Account which he has withdrawn before realization of the cheque.
It is admitted that the O.Ps have lien the said O.D. Account from 12/01/2021 and complainant has stated that due to the said reason he could not run his business and getting his facility from O.D. Account. But we find from the several correspondence as well as the evidence that bank on several occasion requested the complainant to return the said cheque amount to his O.D. Account and it is within the knowledge of the complainant that the cheque amount which has been withdrawn from his O.D. Account was credited to his account before realization of the cheque. Regarding return of the said cheque amount to his O.D. Account the complainant is totally silent on this point. O.Ps have stated that the Chennai Service Branch has debited the said cheque amount form the account of O.P No. 1 and which is the public money debited in the account of O.P No. 1. So there is no other alternative of the bank to get return the said amount form the complainant except to lien the O.D. Account. The bank was compelled to lien the account of the complainant and we find that there is no deficiency in service from the side of the O.Ps rather the complainant has taken the advantage of miscredit the amount in his account before realization of the cheque and withdraw the same and till date he has not deposited the same without any reason and filing this case stating that there is deficiency in service from the side of the O.Ps. We can not accept the case of the complainant. There is laches from the part of the complainant and without querying the same he has filed the case for getting some advantage against the O.Ps. The complainant has claimed Rs. 4,00,000/- as compensation for his financial loss. We find that there was a financial loss of O.P No. 1 as the complainant withdraw the miscredit amount of Rs. 2,00,000/- from his account before realization of the cheque. So considering all these facts we find that there is no deficiency in service from the part of the O.Ps. On the other hand there is direct negligence and intentionally laches form the part of the complainant for not depositing the cheque amount of Rs. 2,00,000/- in his O.D. Account which was miscredited to his account before realization of the cheque and the said cheque was dishonored and the complainant is well aware regarding the said matter. The complainant has not filed in this case in clean hand there is suppression of facts and without any explanation why he did not deposit the said cheque amount of Rs. 2,00,000/- which he has withdrawn the same before his account before realization of the cheque.
Thus all the points are disposed of accordingly against the complainant.
Hence, for ends of justice; it is;-
ORDERED
that the instant case be and the same is dismissed on contest without costs.
