KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No.352/2015

JUDGEMENT DATED: 09.01.2023

(Against the Order in O.P.No.49/2004 of CDRF, Thiruvananthapuram)

PRESENT:

APPELLANT:

(by Adv. V.S. Bhasurendran Nair)

Vs.

RESPONDENT:

(by Adv. G.K. Sudheer)

JUDGEMENT

SRI. T.S.P. MOOSATH : JUDICIAL MEMBER

          The opposite party in O.P.No.49/2004 of the Consumer Disputes Redressal Forum, Thiruvananthapuram (in short the District Forum) has filed the appeal against the order passed by the District Forum by which the opposite party was directed to pay Rs.5,000/-(Rupees Five Thousand) as compensation and Rs.1,000/-(Rupees Four Thousand) as costs to the complainant within one month from the date of receipt of the order.

          2.       The averments contained in the complaint in brief are as follows:

The complainant is having a savings bank account as SB Account No.5752 in the main branch of the opposite party bank.  The complainant had issued an account payee cheque dated 10.01.2004 for a sum of Rs.1,451/-(Rupees One Thousand Four Hundred and Fifty One) in favour of Bajaj Auto Finance Ltd. and they presented the cheque through their bankers, Syndicate Bank, Main Branch, Thiruvananthapuram for collection.  On presentation of the said cheque when it was sent for collection to the opposite party bank they wrongfully dishonoured and returned the cheque along with the memo dated 15.01.2004 with the endorsement “payment stopped by attachment order/723/03-04/H.O. Circular”.  There was no attachment order and other transaction for the complainant with the opposite party for issuing any circular by Head Office for stopping payment of the cheque amount.  The above said act of the opposite party is clear deficiency in service and it has caused loss and injury to the complainant and hence the complainant is entitled to get compensation from the opposite party.  Hence the prayer of the complainant is to direct the opposite party to pay Rs.50,000/-(Rupees Fifty Thousand) as compensation to the complainant along with costs.

          3.       The opposite party filed version raising the following contentions:  Complaint is not maintainable either by law or on facts.  The complaint is filed only to defame the reputation of the opposite party bank.  The complainant is the son of K. Janardanan Nair, Manager, Valiyasala Branch of the opposite party bank who is under suspension.  Janardanan Nair while working as Manager of Valiyasala Branch of the opposite party, along with six employees defrauded and cheated the opposite party bank by swindling a huge sum of Rs.73,54,400/- by forging and fabricating false documents and gold loan application cum bonds with a view to misappropriate bank funds, that Fort Police had already registered a crime vide crime No.250/03 which is under investigation by the Crime Branch.  It is true that the complainant had opened SB account in the main branch of the opposite party, the amount shown in the above account was not his fund, infact it was  deposited by K. Janardanan Nair, the father of the complainant by swindling the money of the opposite party by forging and fabricating false documents.  There is no wrongful dishonor of the cheque as alleged.  The cheque was stopped as per the attachment order issued by the Head Office.  It was done as a precautionary measure and as per the prohibitory order of the Crime Branch and Local Police.  The cheque presented by the complainant was not honoured.  There is no deficiency in service, breach of trust and unfair trade practice as alleged in the complaint.  Complainant is not entitled to get any of the reliefs as claimed in the complaint.  Hence opposite party prayed for dismissal of the complaint.

          4.       The Power of Attorney Holder of the complainant has filed proof affidavit and the documents produced by him were marked as Exhibits P1 to P3.  The opposite party has not filed proof affidavit, but they have produced the copy of the circular dated 14.01.2004 issued by the General Manager in charge of the Head Office of the opposite party bank. 

          5.       After considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order.  Aggrieved by the order passed by the District Forum the opposite party has filed the present appeal.

          6.       Heard both sides.  Perused the records.

          7.       Parties are referred to according to their status/rank mentioned in the complaint.

          8.       The counsel for the appellant submitted that the District Forum ought to have dismissed the complaint finding that the complaint is not maintainable before the District Forum.  The opposite party has filed a petition to consider the question of maintainability of the complaint before the District Forum alleging that complicated questions of law and facts are involved in the complaint which cannot be considered in a summary proceeding as envisaged in the Consumer Protection Act.  On that petition filed by the opposite party to consider the maintainability of the complaint, the District Forum passed the order stating that the question of maintainability can be considered along with the O.P.  In the final order passed by the District Forum in the O.P., the question of maintainability was considered and it was found that the complaint was filed by the complainant against the opposite party alleging deficiency in service and unfair trade practice committed by the opposite party in connection with the dishonor of cheque issued by the complainant in favour of Bajaj Auto Finance Ltd. even though there was sufficient money in the account to honour the cheque.  The said issue does not involve complicated questions of facts and law and elaborate evidence and reference to voluminous documents are not necessary to consider the matter, as alleged by the opposite party.  The District Forum found that it has to consider whether there is deficiency in service on the part of the opposite party or any unfair trade practice is committed by the opposite party.  For adjudication of the complaint elaborate evidence is not required.  Hence the District Forum found that the complaint is maintainable before the District Forum. We consider that there is no reason/ground to interfere with the said finding of the District Forum.

          9.       It is the case of the complainant that he had an SB account in the opposite party bank and he had issued a cheque dated 10.01.2004 for a sum of Rs.1,451/-(Rupees One Thousand Four Hundred and Fifty One) in favour of Bajaj Auto Finance Ltd. and that they presented the cheque through their bank for collection and on presentation of the said cheque, the opposite party wrongfully dishonoured and returned the cheque along with a memo dated 15.01.2004 with the endorsement “payment stopped by attachment order/723/03-04/H.O. Circular”.  These facts are admitted by the opposite party.  Exhibit P2 is the copy of the cheque and Exhibit P3 is the copy of the dishonoured memo.  Complainant has also produced the copy of the letter issued by Bajaj Auto Finance Ltd. dated 19.01.2004, to him stating that the cheque for Rs.1,451/(Rupees One Thousand Four Hundred and Fifty One) dated 10.01.2004 issued towards the repayment of instalment No.24 has not been honoured by the opposite party bank and the complainant was directed to visit their office and clear the dues along with applicable penal interest and cheque dishonor charges.  According to the opposite party the complainant is the son of K. Janardanan Nair, Manager, Valiyasala Main Branch of the opposite party who is under suspension.  The said Janardanan Nair, while working as the Manager of Valiyasala Branch of the opposite party along with six employees defaulted and cheated the opposite party bank by swindling a huge sum of Rs.73,54,400/-(Rupees Seventy Three Lakhs Fifty Four Thousand Four Hundred) by forging and fabricating false documents and gold loan application cum bonds with a view to misappropriate bank funds.  The Fort Police has registered a crime which is under investigation by the Crime Branch.  The cheque was stopped as per attachment order issued by the Head Office.  It was done as per the prohibitory order of the Crime Branch and Local Police.  There is no deficiency in service or unfair trade practice on the part of the opposite party.  Even though the opposite party had raised these contentions they have not produced any documents in support of their contentions.  They have not produced copy of the F.I.R. regarding the crime alleged to have registered by the Police against the father of the complainant.  They have not produced any prohibitory order of the Crime Branch or Local Police, as contended in the version filed by them.  The counsel for the appellant submitted that the District Forum did not give sufficient opportunity to the opposite party to adduce evidence.  On a perusal of the records of the District Forum it can be seen that the said submission made by the counsel for the appellant is not correct.  Even though sufficient opportunities were given to the opposite party they did not file affidavit and they have not produced documents in support of their contentions.  In Exhibit P3 memo it is stated that the cheque was returned as “payment stopped by attachement order/723/03-04/H.O. Circular”.  The opposite party had produced the copy of the circular dated 02.01.2004 having No.698/2003-2004 and circular dated 14.01.2004 having No.723/03-04/H.O.circular.  By the said circulars the General Manager of the Head Office of the opposite party bank instructed the Branch Managers to withhold the Fixed Deposit, SB account, gold loan account etc. of Janardanan Nair and some other persons whose names are mentioned in the circular and that of their relatives.  In Exhibit A3 the reason for the dishonor of the cheque is stated as ‘payment stopped by attachment order/723/03-04/H.O.circular’.  But from the circulars mentioned above it can be seen that there was no attachment order from the Head Office of the opposite party bank.  Exhibit P3 is a printed form.   In column no.21 of Exhibit P3.  It is printed as ‘payment stopped by the attachment order/court order’.  In Exhibit P3 the portion printed as ‘court order’ in column 21 is seen struck off and instead it is written as 723/03-04/H.O. circular.  In the circulars mentioned above it is not stated that those circulars were issued on the basis of the requests of the Police or Crime Branch or there was any order from any competent authority to freeze the account, as alleged by the opposite party.  Further, in the circular dated 02.01.2004 it is stated that all the Branch Managers are informed that steps have been taken to file arbitration cases against K. Janardanan Nair and others.  As stated above, it is to be noted that, in Exhibit P3 memo, in column no.21 the printed portion as ‘court order’ was struck off.  The opposite party has no case that they have dishonoured the cheque on the basis of any attachment order passed by any court of law or any competent authority.

10.     The account is in the name of the complainant and it is operated by the complainant.  There is no material on record from the side of the opposite party to show that the amount deposited in the said account was given by the father of the complainant.  There is no material to show that the complaint was filed by the complainant as a counter blast to wreck vengeance towards the opposite party or to defame the opposite party.  Admittedly there was sufficient fund in the account of the complainant to honour the cheque at the time of the issuance of the cheque.  It is to be noted that the amount covered by Exhibit P2 cheque is only Rs.1,451/-(Rupees One Thousand Four Hundred and Fifty One) and it was issued in the name of Bajaj Auto Finance Ltd. for the repayment of the instalment towards the loan availed by the complainant from them.  The allegations raised by the opposite party against the father of the complainant cannot be connected with the operation of the savings bank by the complainant with the opposite party bank.  The account of the complainant is a separate one.  As found by the District Forum until and otherwise a competent statutory authority restricted the transaction in the said account the opposite party is bound to act according to the direction of the account holder.  If at the time of issuance of cheque there is sufficient fund in the account, the opposite party is bound to honour the said cheque.

          11.     In these circumstances, it is to be noted that, as observed by the District Forum, as per the Co-operative Arbitration Court Award dated 20.10.2010 in ARC 150/2009, the court found that the charges levelled against K. Janardanan Nair by the opposite party bank are not at all sustainable and the domestic enquiry conducted against him is vitiated and punishment given to him is set aside.  It was also found that Janardanan Nair is entitled to get all service benefits as if he had continued in service including full back wages from the date of suspension.  Against the award of the Co-operative Arbitration Court the opposite party bank preferred appeal no.17/2011 before the Kerala Co-operative Tribunal and the said appeal was dismissed on 18.09.2012.  As stated above, the opposite party has not produced any document to show that the Police has registered crime against Janardanan Nair, the father of the complainant and the same was pending.  Further, it has nothing to do with the dishonor of Exhibit P2 cheque for Rs.1,451/-(Rupees One Thousand Four Hundred and Fifty One) issued by the complainant in favour of Bajaj Auto Finance Ltd.,  since there is no evidence to show that there was any order from any court of law or any competent authority restricting the operation of the account of the complainant and since there is no evidence to show that the amount deposited by the complainant in the said account is given by his father.  As found by the District Forum it was due to the action of the opposite party the Bajaj Auto Finance Ltd. issued notice to the complainant on 19.01.2004 claiming the EMI amount with penal interest and other charges from the complainant.  It is pertinent to note that in the letter issue by the Bajaj Auto Finance Ltd. to the complainant it is stated that, it was the first occasion regarding the dishonor of the cheque issued by the complainant to them.  So it can be seen that the complainant was diligent in remitting the EMI to the Bajaj Auto Finance Ltd. and he was not a defaulter.  But due to the action of the opposite party the complainant was forced to receive notice issued by the Bajaj Auto Finance Ltd.  All these happened due to the action of the opposite party.  Considering all these facts the District Forum found that the action of the opposite party in dishonouring the Exhibit P2 cheque issued by the complainant is without any basis and it amounts to deficiency in service, for which the complainant is entitled to get compensation.  We consider that there is no ground/reason to interfere with the said finding of the District Forum.

          12.     The District Forum directed the opposite party to pay Rs.5,000/-(Rupees Five Thousand) as compensation and Rs.1,000/-(Rupees One Thousand) as costs to the complainant.  The amounts ordered by the District Forum as compensations and costs are just and reasonable and there is nothing to interfere with the order passed by the District Forum.  So the appeal is to be dismissed.

          In the result, the appeal is dismissed.  Parties are directed to suffer their respective costs.

          At the time of filing the appeal the appellant has deposited Rs.3,000/-(Rupees Three Thousand).  The respondent/complainant is permitted to obtain release of the said amount, on filing proper application, to be adjusted/credited towards the amount due to him from the appellant/opposite party.

SL