FINAL ORDER/JUDGEMENT
SMT. SAHANA AHMED BASU, MEMBER.
This is an application u/s.12 of the C.P. Act, 1986.
The case of the complainant, in short, is that complainant took house building loan of Rs.20,00,000/- from the O.P.-1. On 05/04/2017, complainant sent seven nos. of cheques in favour of LIC, HFL through speed post and as per internet track report those cheques were delivered to O.P.-1. Later on, when complainant checked the bank statement, it was found that out of those seven cheques, two cheques were cancelled due to unknown reason and bank deducted Rs.509/- as fine and another cheue was encashed by one Shahid Warsi though the said cheque was in favour of LIC HFL. Complainant was not informed about such withdrawal as well as the fine by the O.P.-2. Several e-mails were sent but all were in vain. The matter was informed to the RBI and Prime Minister’s office also. Complainant repeatedly requested SBI, Kolkata to send information regarding FIR and the reasons for cancellation of two cheques. On 07/09/2017, complainant came to know that the cheque No.742249 was credited to an unknown person Shahid Warsi having A/C No.0325544528851 and O.P.-2 admitted the fact that they issued the amount the concerned suspect Shahid Warsi believing him as genuine customer but now they could not contacted him. Hence, this case.
O.P.-1 contested the case by filing W.V. contending inter alia that the instant consumer complaint is not maintainable, suppression of facts, mis-joinder & non-joinder of parties and for ulterior gain. The specific case of the O.P.-1 is that they never received the alleged cheque which was drawn by one Shahid Warsi. The complainant lodged FIR with the police authority and the Bank Authority of Islampur Branch, S.B.I. also lodged a police complaint with the local P.S. to investigate the matter and on investigation and final report it would be cleared how the said Shahid Warsi obtained the cheque and as the matter is still pending this consumer complaint cannot be maintainable in this Forum. The O.P.-1 is not responsible for loss of cheque either from the custody of the complainant or at the time of transit by post. As such, there is no deficiency in service on their part.
O.P.-2 has also filed their W.V. to contest the instant consumer complaint contending inter alia that the case is barred by law and limitation and also challenging the maintainability stating that complainant suppressed and misrepresented material facts in the petition of complaint and by practicing fraud the complainant is trying to mislead the Ld. Forum. The case of the O.P.-2 is that main grievance of the complainant is against O.P.-1 and O.P.-2 has no role to play and sending negotiable instruments by post without knowledge of the postal authority is illegal. The cheques were sent by post to O.P.-1, therefore, O.P.-2 has no knowledge in this regard. Further case of the OP.-2 is that if a cheque has been encashed by some unknown person, how the complainant came to know that the cheque was encashed by some unknown person and he lives in a village. As per banking rule, it is the duty of O.P.-2 that if a cheque issued by its customer, they did not have any option but to honor the said cheque. There is no deficiency in service on the part of the O.P.-2.
In the light of above facts following points are occurred for determination :-
- Whether there is any discrepancy or fraudulent activity on the part of the O.Ps.
- Whether the O.Ps. are deficient in rendering service, which tantamount to unfair trade practice.
- Whether the complainant is entitled to get any relief / reliefs as prayed for.
Decision with reasons
Point No.-1.
Complainant and O.Ps.-1 & 2 have advanced their respective cases by adducing evidence and documents. They have replied the questionnaires set forth by their adversaries. Both parties have filed their BNAs. We have travelled over all the evidences and documents on record thoroughly and gave our thoughtful consideration.
No doubt the complainant obtained house building loan from O.P.-1 to the tune of Rs.20,00,000/-. It is also the admitted fact that the complainant paid the EMIs through O.P.-2. Ld. Advocate for the complainant submitted that complainant sent an envelope through Indian Speed Post being receipt No.EH118235741IN containing seven nos. of post dated cheques drawn on SBI bearing Nos.742244, 742245, 742246, 742247, 742248, 742249 and 742250 in favour of the O.P.-1 amounting to Rs.25,808/- each and the Post Office located at Maharshi Markandeswar University, Mullana, Hariyana. The complainant further submitted that it was confirmed by tracking through internet that the said speed post was delivered to the O.P.-1 and it is revealed from the bank statement submitted by the complainant that the cheque Nos.742247 and 742250 are encashed by O.P.-1 but cheque Nos.742246 and 742248 were cancelled. On perusal of the documents furnished by the complainant, we find that said two cheques were dishonored on 18/08/2017 and 11/09/2017 with the fine of Rs.590/- each time and such fact has also been admitted by the O.P.-1 but submitted that cheque No.742246 was not accounted. Neither the complainant nor the O.Ps. have furnished any such document wherefrom the actual reason of dishonor of those cheques can be ascertained.
The complainant alleged that cheque No.742249 amounting to Rs.25,808/- was encashed by one Shahid Warsi with the amount of Rs.98,509/- who lives in a village of Islam, Bihar, although the said cheque was issued by the complainant in favour of O.P.-1. The documents furnished by the complainant goes to show that cheque No.742249 is written in the name of that Shahid Warsi with the amount of Rs.98,509/-.
Ld. Advocate for the O.P.-1 argued that they have received only five cheques being No.742244, 742245, 742246, 742247 and 742250 but we find no such document regarding this submission. On the other hand, it is not clear from the documents on record that how many cheques were sent by the complainant. Ld. Advocate for the O.P.-1 also argued that as per Loan Ledger, a cheque of Oriental bank of Commerce bearing No.011082 for Rs.1150/- was accounted and there is no accounting of SBI cheque. We find that the complainant did not controvert this point and it was not mentioned in the petition of complaint.
It is further revealed from the materials on record that complainant has tried to by pass as well as denied any credit of Rs.98,509/- in his account. But Annexure-A of the W.V. filed by the O.P.-2 goes to show that on 25/07/2018 an amount of Rs.98,905/- has been credited in the account of the complainant. Thus, we cannot but to opine that complainant has not come before this Forum in clean hands and he suppressed such fact.
We observed that the evidence furnished by the complainant shows that O.P.-1 replied to the complaint lodged with them through speed post. Therefore, question of deficiency in service or discrepancy or unfair trade practice does not arise against the O.P.-1.
That apart, at the time of argument, Ld. Advocate for the O.P.-1 vehemently argued that complainant and O.P.-2 both lodged FIR. Therefore, the matter is under investigation and the final report has yet to be come. As such, until and unless the final report is come, the factual position could not ascertained. We think that this submission from the side of the O.P.-1 has leg to stand.
It has been argued by the Ld. Advocate for the O.P.-2 that main grievance of the complainant is against O.P.-1 and complainant has admitted in his petition of complaint that he is a bonafide customer of the O.P.-1. More so, complainant failed to prove that the O.P.-2 is responsible for the acts of complainant and O.P.-1.
It is also argued by the O.P.-2 that it is illegal to send negotiable instrument by post without the knowledge of the postal authorities. The said cheques were sent by post addressed to the O.P.-1. Therefore, O.P.-2 does not have knowledge with regard to the same. In support of their contention, Photocopy of the “List of prohibited articles” of the International Bureau of Universal Postal Union is furnished by the O.P.-2 wherein it is clearly mentioned in the Article-15.6 about items not admitted provisions that “cheques, securities payable to bearer and generally speaking any negotiable instruments which can easily be cashed at a bank shall be considered as securities payable to bearer.” Further submission of the O.P.-2 is that if a cheque issued by its customer it was the duty of the O.P.-2 to honour the same. There is no question to inform the customer about charges being debited from its account. To strengthen their submission, O.P.-2 furnished a document showing that the cheque was issued in favour of Md. Shahid Warsai A/C No.32554528851. Therefore, we do not find any discrepancy or deficiency in service or unfair trade practice on the part of the O.P.-2.
It has further been submitted by the Ld. Advocate appearing for the O.P.-2 that said disputed amount of Rs.98,509/- had already been credited to the complainant’s account on 25/047/2018, which has suppressed by the complainant in the petition of complaint. A photocopy of statement of account has furnished by the O.P.-2. On perusal of such document we found the sanctity of such submission of O.P.-2.
In the backdrop of the above discussions, we are inclined to hold that the instant consumer complaint is vague and frivolous and it is a fit case to exercise Section-26 of the C. P. Act, 1986, wherein it is contemplated that “Where a complaint instituted before the District Forum, State Commission or as the case may be, the National Commission is found to be frivolous or vexatious, it shall, for reasons to be recorded in writing dismiss the complaint and make an order that the complainant shall pay to the opposite party such cost, not exceeding ten thousand rupees, as may be specified in order.” Thus point no-1 answered in the negative and other points need not to be discussed.
In result, the case merit fails.
Hence,
Ordered
That the case be and the same is dismissed on contest against the O.Ps. with cost of Rs.10,000/- (Each O.P. is entitled to get Rs.5,000/- as cost).
