Order by:
Smt.Priti Malhotra, President
1. The complainant has filed the instant complaint under section 35 of the Consumer Protection Act, 2019 stating that complainant is having saving account no.55073943248 with Opposite Party No.1. On 05.04.2023, the complainant deposited a cheque bearing no.048969 dated 05.04.2023 issued by one Jaswant Singh s/o Dalip Singh, r/o Village Tare Wala District, Moga for Rs.3,10,000/- duly signed by him in favour of the complainant payable at The Moga Central Co-operative Bank Limited. The Opposite Party No.1 sent the said cheque for clearance and encashment to Opposite Party No.2, through Opposite Party No.3 and the said cheque was cleared by them on 06.04.2023, entry of the same was also made in the Pass Book of the complainant. On 12.06.2023, the complainant went to Opposite Party No.1 bank to get his pass book completed regarding the entries in his account and came to know that Opposite Party No.1 has made a entry of (set hold) Rs.3,10,000/- dated 05.06.2023, entry of (delete hold) Rs.3,10,000/- on 09.06.2023 and entry regarding deduction of the amount of Rs.3,10,000/- on 09.06.2023 from account of the complainant. All this has been done by the Opposite Party No.1 bank at the back of complainant and without giving any notice or information to him and without calling him and without giving any clarification in this regard. After seeking the said entry in the Pass Book, the complainant surprised to know and asked the Opposite Party No.1 about the same, but they gave vague reply. Further alleged that the person namely Jaswant Singh, who issued the cheque has now expired. Due to the illegal, unwarranted and wrongful act of the Opposite Parties, the complainant has suffered a great loss. Hence, this complaint. Vide instant complaint, the complainant has sought the following reliefs:-
a) Opposite parties may be directed to pay Rs.3,10,000/- i.e. amount of the cheque alongwith interest @ 12% p.a.
b) To pay an amount of Rs.1,50,000/- as compensation on account of damages, mental tension and harassment.
c) To pay an amount of Rs.25,000/- as cost of the complaint.
2. Opposite Party No.1 appeared through counsel and contested the complaint by filing written reply taking preliminary objections therein inter alia that this Commission has got no jurisdiction to try and entertain the present complaint. The complex question of law and facts are involved in the matter in dispute and these require recording of voluminous evidence which in a summary jurisdiction may not be possible for this Commission to adjudicate upon and thus the complainant may be relegated to Civil Court for the proper adjudication of the matter in dispute. Further averred that the complaint is not maintainable against Opposite Party No.1 bank as Opposite Party No.1 is mere a collecting bank and as a prudent banker, as per general practice of banking and as per banking norms and regulations, had credited the payment in the savings account of its customer as an agent of its customer after the clearance of the cheque from the Centralized Clearing Processing Centre, Chandigarh Circle, at Mohali and had acted with due diligence under good faith and there is no negligence on the part of answering Opposite Party in crediting the account of its customer. The bank is not required to subject the cheque to minute and microscopic examination. Moreover the cheque in question was drawn on Opposite Party No.2 Bank i.e. The Moga Central Cooperative Bank, Moga and only after its clearing the same was credited in the account of complainant, which was subsequently dishonored due to "Funds Insufficient" and the savings account of the complainant was freezed first and debited afterwards on the basis of information received from the Opposite Party No.3 i.e. IDBI Bank, Moga on behalf of Opposite Party No.2 Bank, through the Centralized Clearing Processing Centre, Chandigarh Circle, at Mohali. Averred further that there is no negligence on the part of answering Opposite Party bank and there is no violation of any banking rules and regulations in freezing and debiting the savings account of the complainant in order to return the amount of Rs.310000/- which was wrongly credited in his account inadvertently by the paying bank i.e. Opposite Party No.2 Bank. The Statutory protection is also available to the collecting bank under Section 131 of The Negotiable Instrument Act, 1881. Opposite Party No.1 also put reliance on citations (1) Adya Global Export Inc. v/s Canara Bank ( Delhi, DB) vide Law Finder Doc ID no #1269436 and (2) Indian Overseas Bank v/s Industrial Chain Concern ( S.C.) vide Law Finder Doc ID No #119674. Further averred that from the facts involved in the complaint it has been established that the cheque in question was wrongly credited in the savings account of the complainant and the complainant was not entitled for the amount of Rs 310000/- as the cheque was ultimately found to be dishonored by the payee bank i.e. Opposite Party No.2 and upon having intimation from Opposite Party No.3 bank on behalf of Opposite Party No.2, through the Centralized Clearing Processing Centre, Chandigarh Circle, at Mohali the account of the complainant was freezed and subsequently debited for the amount of Rs 310000/- i.e. the amount for which the complainant was not entitled for as per law and the said inadvertent mistake was rectified and the amount was withdrawn from the account of the complainant to be paid back to the payee bank i.e. Opposite Party No.2 Bank. It is submitted that as per prescribed law no notice whatsoever is required to be given to the customer in the said eventuality, but in the present case however, Bank’s internal auto system based SMS were sent and delivered to the complainant on his registered mobile no.9781929007 about every activity happened in his account. All such exercise of correction was made under the provisions of Section 72 of Indian Contract Act, 1872 which provides that it is the Liability of the person to whom money is paid or thing delivered by mistake or under coercion must repay or return it. Thus, the complainant himself is duty bound to return the money which has been wrongly credited into his account. As per prescribed law the concerned banks were entitled to recover the amount in question from the account of the complainant. Opposite Party No.1 also put reliance on citations: (a) Punjab National Bank vs United Clinic Eye Centre vide Law Finder ID no # 783159, (b) Shri Rajiv Khanpuri vs Canara Bank vide Law Finder ID no # 410252 (c) Ganesh Cotton Traders vs The General Manager UCO Bank vide Law Finder ID no # 414667, (d) S.Kotrabasappa vs The Indian Bank vide Law Finder ID no # 166596; the complaint is bad for the purposes of non joinder and mis joinder of necessary parties. The complainant has arrayed the respective managers of the concerned banks and has not made parties to the Banks itself as a corporate entity; The complainant is not consumer of the managers of the concerned banks and they are not personally liable for any action done as a duty on behalf of their respective banks; the complainant is estopped to file the present complaint due to his own act and conduct. The complainant should have filed recovery proceedings qua the amount in question against the payee of the cheque namely Jaswant Singh or against his legal heirs instead of filing this false and frivolous complaint against the answering Opposite Party Bank. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
3. Opposite Party No.2 filed written reply taking certain preliminary objections therein inter alia that the present complaint is not maintainable against the opposite party No.2, as the opposite party No.2 is the Branch Manager of the Moga Central Cooperative Bank and the complainant is not the consumer of Opposite party No.2. Moreover, the cheque in question was dishonoured vide return memo dated 06.04.2023 and the intimation of the same was sent through mail on 06.04.2023 to the IDBI Bank through its various offices. The complainant has concealed the most material facts from this Commission. The complainant fully knew about the fact that Jaswant Singh who issued the Cheque to the complainant did not have sufficient funds in his account as he had already cheated some other persons. In fact, the cheque in question was dishonoured and it was the IDBI Bank who by adopting the appropriate procedure stopped the payment in question, as said Jaswant Singh did not have sufficient funds in his account. The instant complaint is based on very vague grounds which are not sustainable. The complainant very cleverly drafted the present complaint by impleading the opposite party No.2 as party to the present case. In fact, the complainant never presented the cheque in question before the opposite party No. 2 nor the complainant has availed any services of the pposite party No 2. Hence, the present complaint is liable to be dismissed; the present complaint is bad for mis-joinder of necessary parties; the complainant have filed the present complaint against the opposite party No. 2 without any cause of action; the complaint has no locus standi to file the instant complaint against the opposite party No. 2. In fact, no right to sue has ever accrued in favout of the complainant against Opposite Party; the complainant has filed the most false, frivolous, vague and meritless complaint against the Opposite Party No.2, which should be checked at the threshold to save the precious time of the Commission. On merits, all other allegations made in the complaint are denied and a prayer for dismissal of the complaint is made.
4. Opposite Party No.3 filed written reply taking certain preliminary objections therein inter alia that the Commission has no jurisdiction to try and entertain the present complaint. The complex question of law and facts are involved in the matter in dispute and these require recording of voluminous evidence which in a summary jurisdiction may not be possible for this Commission to adjudicate upon and thus the complainant may be relegated to Civil Court for the proper adjudication of the matter in dispute; the complainant is not consumer of answering Opposite Party. In fact, the answering Opposite Party is only a facilitator under sub-clearing Membership Arrangement with Opposite Party No.2 without charging any commission. The cheuqe in question was presented by the complainant with Opposite Party No.1 to Centralized Clearing Processing Centre for collection from Opposite Party No.2 with whom account of the issuer of cheque, namely Sh.Jaswant Singh is maintained. As no information/intimation was received by the answering Opposite Party regarding insufficiency of funds in the account of the issuer, the answering Opposite Party has processed and honoured the cheque from the clearing account of Opposite Party No.2. Lateron the answering Opposite Party has received an email on 05.06.2023 from Opposite Party No.2 regarding the dishonor of the cheque in question (bearing no.048969) on account of insufficient funds and requested the answering Opposite Party for counter return of the said cheque and refund of the amount wrongly credited to the account of the complainant maintained with Opposite Party No.1. Subsequent to the request received from Opposite Party No.2, the answering Opposite Party requested Opposite Party No.1 to mark hold and refund the amount wrongly credited to the account of the complainant maintained with Opposite Party No.1. Accordingly, Opposite Party No.1 had refunded the amount wrongly credited by debiting the account of the complainant and the said amount was further remitted to Opposite Party No.2 by the answering Opposite Party. As such answering Opposite Party has only performed the role of a facilitator and has never been deficient in any kind of service. On merits, all other allegations made in the complaint are made and a prayer for dismissal of the complaint is made.
5. Complainant has also filed replication to the written reply of Opposite Parties No.1 to 3 denying the objections so raised by Opposite Parties No.1 to 3, in its written reply.
6. In order to prove his case, the complainant has placed on record his affidavit Ex.C1 alongwith copies of documents Ex.C2 to Ex.C8 and his additional affidavit Ex.C9.
7. On the other hand, ld. counsel for the Opposite Party No.1 has placed on record affidavit of Sh.Sujit Monga, Chief Manager, State Bank of India Ex.OP1/A alongwith copies of documents Ex.OP1/1 to Ex.OP1/4. Opposite Party No.2 has placed on record affidavit of Sh.Satish Kumar, Branch Manager, The Moga Central Cooperative Bank Ex.OP2/A alongwith copies of documents Ex.OP2/I and Ex.OP2/II. Opposite Party No.3 has placed on record affidavit of Sh.Rajeev Anand, Branch Head, IDBI Bank Ex.OP3/1 alongwith copies of documents Ex.OP3/2 & Ex.OP3/3.
8. We have heard the ld. counsel for both the parties and also gone through the record.
9. It is admitted case of the parties that complainant is having saving bank account no.55073943248 with Opposite Party No.1 and he was issued a cheque bearing no.048969 dated 05.04.2023 amounting to Rs.3,10,000/- payable at The Moga Central Co-operative Bank Ltd. by one Jaswant Singh. The complainant presented the said cheque with Opposite Party No.1 bank for clearance and the said cheque was duly cleared on 06.04.2023 and the amount was credited into his account, but strangely the said amount was debited from his account by the bank on 09.06.2023 i.e. after two months from the date of credit. Now, the complainant has disputed that transaction vide this complaint and prayed for the refund of the said amount.
10. It is the stand of the Opposite Party No.1 that complainant duly presented the cheque bearing no.048969 dated 05.04.2023 amounting to Rs.3,10,000/- and the said cheque was drawn on ‘The Moga Central Cooperative Bank, Moga’ i.e. Opposite Party No.2 and only after its clearing the amount of the cheque in question was credited in the account of complainant, which was lateron declared as dishonored due to insufficient funds and account of the complainant was debited on the basis of information received from Opposite Party No.3 on behalf of Opposite Party No.2. As such, there is no fault on their part.
11. Further it is the stand taken by Opposite Party No.2 that Opposite Parties no.2 & 3 have internal agreement qua the clearance of the cheques pertaining to The Moga Central Cooperative Bank i.e. Opposite Party No.2 . Ld. counsel for Opposite Party No.2 further submitted that the cheque amount in quesion was not sufficient in the account of the person i.e. Jaswant Singh who issued the cheque in question in favour of the complainant. So, an email dated 06.04.2023 was sent to Opposite Party No.3-IDBI Bank intimating about the insufficiency of funds in the account of Jaswant Singh who issued the cheque. As they timely intimated the same to Opposite Party No.3, so there is no deficiency in service on their part.
12. The stand of the Opposite Party No.3-IDBI Bank is that on dated 05.06.2023, they had received an email from Opposite Party No.2-The Moga Central Cooperative Bank regarding the dishonor of the cheque in question on account of insufficient funds and requested Opposite Party No.3 for counter return of the said cheque and refund of the amount wrongly credited to the account of the complainant maintained with Opposite Party No.1. Further stated by its counsel that on the instructions of the Opposite Party No.2, they reversed the entry and gave instructions to Opposite Party No.1 to debit the entry being credited into the account of the complainant and further they remitted the same to Opposite Party No.2. So, there is no deficiency in service on their part as Opposite Party No.3 has only performed the role of facilitator.
13. The record available is evident of the fact that there is wrongful omission on the part of Opposite Party No.3, who failed to perform duty with due diligence, which resulted in credit of the amount in question i.e. Rs.3,10,000/- in the account of the complainant for which due intimation was already sent qua the insufficiency of funds in the account of the drawee even prior to clearance of the cheque. Evidently, despite having duly been informed about the insufficiency of the funds in the account of the person, who issued cheque in question, they get disbursed the amount in question in the account of the complainant. It has been observed that there is no clarity on record that how and when the wrong credit of the amount in question has been noticed by Opposite Party No.3-IDBI Bank and instructed Opposite Party No.1 to debit the amount after two months of the credit of the amount in question, whereas they have already been duly intimated by Opposite Party No.2, through email dated 06.04.2023 with following details:-
Email dated: 06.04.2023
Respected Sir/Madam
Kindly mark below 1 instrument as return:
Sr. Cheque Amount Cheque Date Reason.
1. 048969 3,10,000 05.04.2023 Insufficient Funds
From the contents and date of the above email, it is quite evident that Opposite Party No.3 was timely been intimated about the insufficiency of the funds and were duly intimated to return the instrument in question. Record reveals that in order to over shadow the mistake committed by Opposite Party No.3, again an email dated 5th August, 2023 Ex.OP3/3 has been sent reiterating the contents of the earlier email sent on 06.04.2023 (Ex.OP2/I) qua return of the instrument in question on account of insufficiency of funds; whereas the amount in question already stand debited on 09.06.2023 from the account of the complainant. It transpires that Opposite Party No.3-IDBI Bank after realizing on its own qua the mistake committed on their part asked the Opposite Party No.1-State Bank of India to revert the entry of credited amount of Rs.3,10,000/- from the account of the complainant without intimating the complainant. Thus, the deficiency in service/negligence on the part of the Opposite Party No.3-IDBI Bank is writ large, which failed to act as per the email timely been sent by Opposite Party No.2-The Moga Central Cooperative Bank. For the reasons best know to Opposite Party No.3-IDBI Bank, the amount in question got credited in the account of the complainant. Due to this negligent and deficient act of the Opposite Party No.3, wrongful loss has been occurred to the complainant. Had IDBI-Opposite Party No.3 has considered the email dated 06.04.2023 timely been sent by The Moga Central Cooperative Bank apprising the insufficiency of funds in the account of the drawee/issuer of the cheque, the complainant would have been saved from the wrongful loss occurred to him. The complainant would have timely approached the person concerned for getting his money back or would have opted to pursue his legal remedy under the Negotiable Instrument Act against the drawee of the cheque. Complainant has submitted his duly sworn affidavit stating that the person who issued the cheque in question has expired and family members of the same are not cooperating. From this, it is gathered that deficiency in service as rendered by Opposite Party No.3-IDBI Bank proved fatal to the complainant who has been left in lurch, as the person who issued the cheque in question in his favour has now expired and become cumbersome for him to recover the amount.
14. From the above discussion, we are of the view that all the wrongful loss has been occurred only due to deficiency in service and negligence on the part of Opposite Party No.3-IDBI Bank. This act of Opposite Party No.3 not only caused mental tension and harassment to the complainant, but has also put burden on the complainant to indulge in avoidable litigation. The deficiency in service rendered by Opposite Party No.3-IDBI Bank is writ large, for which, they are liable to make good loss to the complainant.
15. Sequel to the above discussion, we partly allow the complaint of the complainant against Opposite Party No.3-IDBI Bank and Opposite Party No.3-IDBI Bank is directed to refund the amount Rs.3,10,000/-(Rupees Three Lakh Ten Thousand only) to the complainant. However, Opposite Party No.3 is at liberty to recover that amount, through Opposite Party No.2-The Moga Central Cooperative Bank following the due process of law. Further Opposite Party No.3 is directed to pay Rs.3,000/-(Rupees Three Thousand only) for thrusting avoidable litigation upon complainant. The pending application (s), if any also stands disposed of. The compliance of this order be made by the Opposite Party No.3 within 30 days from the date of receipt of copy of this order, failing which, the Opposite Party No.3 is further burdened with additional cost of Rs.20,000/-(Rupees Twenty Thousand only) to be paid to the complainant for non compliance of the order. Copies of the order be furnished to the parties free of costs. File is ordered to be consigned to the record room.
Announced on Open Commission
