ORDER

BY SRI.H.R.SRINIVAS, PRESIDENT.

1.     This is the Complaint filed by the Complainant U/S Section 12 of Consumer Protection Act 1986, against the Opposite Parties (herein referred in short as O.Ps) for deficiency in service, negligence and carelessness in clearing the cheque No. 155391 dated 17.08.2015 prematurely on 12.08.2015 and for Rs.5,00,000/- as compensation for mental harassment, agony, humiliation and hardship and Rs.15,000/- towards cost of litigation and other orders or directions as the Hon’ble Forum  deems fit.

2.     The brief facts of the complaint are that: the complainant is a medical doctor specialized in Anesthesia working in ESIC Model Hospital, Rajajinagar, Bengaluru. She is having an S.B. Account bearing No. 20038051055 with OP.No.1 in order to get her salary credited to the said account.    After looking into an advertisement released by the Railway Employees Co-operative Housing Society limited, inviting application from the public for allotment of residential sites to be formed by the society at Jalige Village, Devanahalli Airport, Bengaluru, she made an application for the site to the said society along with a cheque drawn on O.P.No.1 bearing No. 155391 for Rs.2,68,350/- dated 17.08.2015 and sent it to the said society on 09.08.2015 being the part consideration (first installment) of the sital value.  On 11.08.2015 she decided to withdraw her application from the society on the ground that, she is not eligible to become an associated member of the society and requested the society not to process her application for any further and to return the post dated cheque.

3.     It is alleged by the complainant that she was shocked to receive an SMS on 12.08.2015 from OP.No.1 that the cheque dated 17.08.2015 issued infavour of the said Railway Employees Co-operative Housing Society limited has been received for payment and the same has been cleared and the amount paid.  She went to the bank seeking an explanation as to how a post dated cheque dated 17.08.2015 has been cleared prematurely on 12.08.2015. The Manager of the OP.No.1 admitted his lapse and tried to explain that the cheque was cleared  in advertently and the amount from her account has been wrongly paid to the presenting bank i.e. Canara Bank. Great amount of scrutiny and examination is required for clearing a high value cheque. The act of the O.P.No.1 in clearing the said cheque prematurely was only due to gross negligence and carelessness on the part of O.P.No.1 and its staff. She lodged a protest vide  hand written letter dated 12.08.2015 instructing O.P.No.1 bank to stop the payment of the cheque bearing No. 155391 dated 17.08.2015. 

4.      After realizing the mistake and negligence committed by O.PNo.1,  pending taking measure and steps to get refund from the Canara Bank, as an interim measure, O.P.No.1 reversed the debit entry and a sum of Rs.2,68,350/- was credited  to the account of the complainant on 12.08.2015 itself  by maintaining statusquo ante. 

5.     On 20.08.2015 when she got her S.B. pass book updated, she found that there is a mention of set hold Rs.2,68,350/- without any intimation to her. When she sought explanation for the hold created to O.P.No.1, she was informed that the same has been created by Centralized Clearing processing centre (CCPC for short) who is O.P No.2 in the complaint. By writing letter on 20.08.2015 and 26.08.2015 complainant requested O.P.1 to lift the hold imposed on her account and further informing  to stop payment of the cheque No.155391 dated 17.08.2015 . Though received and acknowledged the letter, O.P have not removed the set hold on the account.

6.        It is alleged that On account of the said hold on the account, her insurance premiums which ought to be paid through ECS have been dishonoured. She realized the devastating consequences and effect of set hold on her account. Due to the said hold, though she was having sufficient fund of Rs.1,81,381/- in her account, the ECS mandates to LIC and other have been dishonoured. 

7.     It is alleged that on 31.08.2016, OP No.1 by way of reply informed that “The request for stop payment was received much after the presentation of the cheque at CCPC on 12.08.2015. Hence the same could not be stopped. Further, the hold has been put by the CCPC i.e clearing cell and not by the branch as such they are unable to remove sit at their branch.  In this regard they have already advised CCPC to look into the matter.”

8.     Further when she got the pass book entered it was found that, on 09.09.2015 a sum of Rs.2,68,350/- has been received from Canara Bank, the embargo imposed on the account set hold was deleted and the said amount credited to her account  and again the same was debited from her account.   The marginal note mentioned that cheque No.155391 of 12.08.2015 claim returned.  The effect of the same is that the OP No.1 recovered Rs.2,68,350/- credited to the complainant’s account paid earlier as an interim measure, pending refund of the amount from the Canara Bank. She withdrew a sum of Rs.1,79,500/- on 11.09.2015 from her account. The balance was Rs.1,881.12. Again on 19.09.2015 O.P imposed set hold for Rs.2,68,350/- and on enquiry she was informed that CCPC has put the hold.  She had to issue a legal notice to O.Ps regarding the same and  the same has been answered by O.P.No.1 and 2 through their advocate and further claimed that the amount received from Canara Bank  was wrongly credited to the  Complainant’s account whereas it ought to have been credited to the banks account and further cheque NO.155391 dated 17.08.2015  was again presented for payment on 09.09.2015 and the same was honoured by O.P.No.1 as there was nothing on record for stop payment  inrespect of the said cheque.  The OP.No.1 after recovering amount ought not to have hnoured the cheque and cleared the same on 09.09.2015. 

9.     It is further contended that, her salary used to be credited to the account since September 2015, because of the set hold, she has to make alternative ECS mandates.  She had to file a writ petition before the Hon’ble High Court of Karnataka in W.P. No.23834/2016 and then after the appearance of O.P.No1. and 2, the same was disposed on 17.08.2016 by reserving liberty to her to urge all the contentions in defense of the said suit without expressing any opinion on merits.

10.   It is contended that, the cause of action for the complaint arose on 12.08.2015 the day on which the O.P.No.1 honoured the cheque prematurely and subsequently and hence the complaint.

11.   Upon the issuance of notice, O.P.No.1 and 2 appeared through their advocate and filed their version admitting that  the complainant is having an SB account with O.P.No.1 and that she had filed a Writ Petition and that they have filed an Original Suit to recover a sum of Rs.3,02,557/- against this complainant.

12.   It is stated in the version, that the complaint is not maintainable either in law or on facts and that since they have filed a suit for recovery of the amount, this complaint is not maintainable as this complaint is filed on the same cause of action. 

13.   It has admitted in the written version that the complainant issued a post  dated cheque in favour of Railway Employees Co-operative Housing Society limited through Canara Bank bearing No.155391 dated 17.08.2015 for Rs.2,68,350/-,and the said cheque was presented by the said society for encashment.  Due to inadvertence and oversight of O.P.No.1 staff, the said post dated cheque was honoured prematurely and the account of the complainant was debited the said amount and paid to the collecting bank. After discovering the mistake, the same was reversed and debited from internal system suspense account. The same is reflected in the certified statement of account filed by it. The Form No.C to Canara Bank issued on 31.08.2015 for Rs.2,68,350/- claiming the said amount in order to reverse its outstanding amount in the internal system suspense account.

14.   After much deliberation and persuasion, Canara Bank refunded the said amount through Electronic Transfer and the same was credited to O.P.No.2’s internal account 33435626213 on 05.09.2015.  Instead of adjusting the said amount to its internal accounts, erroneously the said amount was credited to the S.B. Account of the complainant on 09.09.2015. Hence twice the said amount was credited to the account of the complainant.  Inspite of repeated request to refund the excess amount wrongly credited to the account of the complainant, the complainant did not refund the same.  Hence they had to issue letter/notice to the complainant and also to write letter on 16.10.2015 to the medical superintendent ESI Hospital, Rajajinagar, Bengaluru seeking their help to recover the amount from the complainant. “Hold” in terms of banking terminology is non-transactional and actual transaction does not happen whenever hold is marked on the account balance. It serves as caution and restriction to the customer. It does not reduce the actual balance in the account but only restrict to the operation of the account and withdraw below that level.  The same is being done in respect of a defaulter of a loan borrower. 

15.   If the amount due is recovered or debited under the hold it becomes a transaction and reduces the balance.  They have filed the suit for recovery against the complainant and that they have replied the notice issued by the complainant.  The complainant has filed this complaint to make a wind fall and illegal profit due to the human error committed by the staff of the O.P.No.1.  The complainant has repeatedly ignored the advise of the bank to take the matter with the Railway Employees Co-operative Housing Society and till date she has not intimated whether she has received refund of the amount from the said society. The said society has not been made as a party.  It is a necessary party for proper adjudication.  It is further contended that the hold created on the SB account of the complainant is in order to recover the lawful amount due to it who has not returned the amount and hence prayed the Forum to dismiss the complaint.

16.   In order to prove the case, both the parties filed their affidavit evidence and  have produced documents. Heard the arguments. The following points arise for our consideration:-

                   1)   Whether the complainant has proved

                     deficiency in service on the part of the Opposite          

                     Parties?

2)  Whether the complainant is entitled to

                       the relief prayed for in the complaint?

17.   Our answers to the above points are:-

POINT NO.1:            In the Affirmative.

POINT NO.2:            Partly in the Affirmative.

                                For the following.

REASONS

POINT No.1:-

18.   On perusing the entire documents and evidence of respective parties, it becomes clear that the complainant is the S.B. Account holder of O.P.No.1. This fact has not been denied by OP No.1. Further O.p.No.1 has clearly and unequivocally admitted having received cheque bearing No. 155391 dated 17.08.2015 drawn on it favouring the Railway Employees Co-operative Housing Society limited and that they have presented by mistake on 12.08.2015 prematurely for encashment and a sum of Rs.2,68,350/- was deducted and credited to the Canara Bank at the clearance.  The complainant received the SMS regarding clearing of the cheque and got shocked and enquired with OP for premature presentation and honouring of the said cheque for which OP.NO.1 admitted his mistake and credited the amount to her account.

19.   It is the further case of the complainant that, there was a hold in her account for a sum of Rs.2,68,350/-  which caused her immense problem as her ECS to pay the insurance premium were dishonoured.  O.P.No.1 informed that O.P.No.2 has imposed the hold i.e. restriction on the operation of the said account to the extent Rs.2,68,350/- and that it cannot raise the said hold. 

20.   On perusing the entire documents and further the statement of the O.P.No.1 and 2 it becomes clear that they got back Rs.2,68,350/- from Canara bank which was cleared in the clearance house after much correspondence. It is again a mistake made by O.P.No.1 and 2 by remitting the said amount to the S.B. account of the complainant instead of adjusting the said amount to their (bank’s) account or suspense account of the bank as is to be done. Instead they remitted the same to the SB account of the complainant on 09.09.2015. 

21.   As per the letter dated 12.08.2015 by the complainant, complainant stopped payment of the cheque which is mentioned as “the cheque has been presented today i.e. 12.08.2015 by the party by mistake, please stop the payment as it is presented before the date given by me.” Further on 20.08.2015 again complainant wrote a letter to O.P.No.1 to stop the payment of cheque bearing No.155391 and requesting to lift the hold in respect of her account which has been acknowledged by the O.P. Again on 28.08.2015, a similar letter to stop the payment of the cheque has been given to OP which has also been acknowledged. It is to be seen here that inspite of said stop payment, on 31.08.2015 O.P.No.1 has written letter to the complainant that stop payment is not possible as they have received the stop payment request much after the presentation of the cheque at CCPC on 12.08.2015 and the hold has been put by CCPC and they cannot clear the same at the Bank level and have requested CCPC to do the needful.

22.   When on 12.08.2015 itself, and on 20.08.2018 and 28.08.2015 the complainant requested for stop payment of the said cheque, O.P.No.1 and 2 ought to have taken proper steps to stop the payment. As per the account statement, it is only on 09.09.2015 they have cleared  the said cheque in favour of the Railway Employees Co-operative Housing Society limited.  This also clearly shows the careless, negligent attitude and dereliction of duty on the part of O.P No.1 and 2.  It is also in the correspondence made by O.P. that they have requested the complainant to return the said amount. However, the said fact is before the Civil Court as OP.No.1 has filed a suit for recovery. In view of this Forum cannot decide on the said fact. However, on perusing the entire facts and circumstances, it becomes clear that O.P.No.1 and 2 have delt the situation carelessly without applying their mind and without addressing to the cause of the complainant.

23.   Further it is not made clear as to why the O.P.No.1 has to write a letter to the higher authorities of the complainant, when it is a matter of personal banking transaction.  From the way in which O.P.No.1 has written a letter to the higher authorities is taken into consideration,  and that too when O.P.No.1and 2 has filed suit for recovery for the amount from the complainant, there was no reason for O.P.No.1 to write a letter to the higher authority and also have a hold on the account of the complainant. Even without the hold also, O.P.No.1 is at liberty and has a right of general lien over the account of the borrower/account holder who is due any sum to the Bank.  The above fact of writing letter to the higher authorities and keeping a hold on the account clearly shows vindictive attitude against the complainant and also bulling her to see that she come to the terms since she has exposed the negligent, careless act in honouring the cheque prematurely.

24.   Hence we are of the opinion that there is deficiency in service and there is vengeance attitude against the complainant by O.P No.1 and 2 which is to be deprecated in all terms. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2:

25.   In the result, the complainant is entitle for the compensation for the mental and physical sufferance she has undergone due to the hold created on her account and also has to face the ignonimity of her colleagues and superiors and also of persons who work under her. If one comes to the knowledge that the account of a person has been  seized or put on hold by the banker, naturally her credence in the society will be diminished and she will be looked down in the public by the society. Further as stated by her, her other commitments of paying the insurance premiums, the payment of utilities, and all other payments will come to a stands still and would jeopardize her reputation.  It is to be noted here that the complainant is anesthesia Specialist Medical doctor and if her credence in the society for no fault of her suffers, she has to face the humiliation from the society and the same has to be compensated fairly. 

26.   Though there is no financial loss proved by complainant, naturally considering her status in the society, her credence has been eroded and has to suffer the humiliation due to the negligent, careless act, we assess the same considering her status in the society damages at Rs.2,00,000/- and further since O.Ps did not lift the hold on her account, she had to file this Complaint before this Forum by spending all her energy, money and time. Which we assess at Rs.15,000/- and direct the O.P to pay the same within 30 days. Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE.  It is to be mentioned here that both the parties to adhere to the decision of O.S.No.4224/2016 irrespective of this order. Further in the interest of justice and equity to direct O.P to lift the hold imposed on her account immediately. Hence we proceed to pass the following:-

ORDER

1. The Complaint is partly allowed with cost.
2. O.P.No.1 and 2 are jointly and severely directed to pay a sum of Rs.2,00,000/- towards the damages and Rs.15,000/- towards litigation and other expenses to the complainant, failing to pay interest at the rate of 12% per annum from the date of complaint till the date of full payment and direct to lift the Hold order on her account immediately.
3.   The O.P No.1 and 2 are hereby directed to comply the above order at within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.
4.  Send a copy of this order to both parties free of cost.

Note:You are hereby directed to take back the extra copies of the Complaints/version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by him, corrected and then pronounced by us in the Open Forum on this 11^th JANUARY  2019)

MEMBER                        PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Annexure.1: Copy of the advertisement issued by Railway employees co-operative housing society limited.

Annexure.2: Copy of the cheque bearing NO.155391 dated 17.08.2015.

Annexure.3: Copy of the computerized Bank pass book.

Annexure.4: Copy of the letter dated 12.08.2015.

Annexure.5: Copy of the letter dated 26.08.2015.

Annexure.6: copy of the letter dated 28.08.2015.

Annexure.7: copy of the letter dated 29.08.2015.

Annexure.8: Copy of the reply dated 31.8.2015.

Annexure.9: Copy of the legal notice dated 26.10.2015.

Annexure.10: Copy of the SBI reply dated 23.11.2015 to the legal notice.

Annexure.11: Copy of the Writ Petition No.23834/2016.

Annexure.12: Copy of the Demand notice dated 12.4.2016.

Annexure.13: Copy of the postal envelopes on 02.05.2016.

Annexure.14: Copy of the reply dated 27.05.2016.

Annexure.15: Copy of the plaint in O.S.No.4224/2016.

Annexure.16:  Copy of the Written Statement  in O.S.No.4224/2016.

Annexure.17: Copy of the counter filed by SBI of W.P. on 15.07.2016.

Annexure.18: Copy order dated 1708.2015 in W.P. No.23834.2016.

Annexure.19: Copy of the notice dated.27.07.2017.

Annexure.20: copy of the speed post tracking record.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: sir Ramanuja Kulkarni, Assistance General Manager of O.P.No.1

Copies of Documents produced on behalf of Opposite Party/s

Ex R1: Copy of the cheque issued by O.P.No.1.

Ex.R2 to R5:Copy of the Statement of Account issued by O.P No.1.

Ex R6: Copy of the Claim form –C dated 31.08.2015.

Ex R7: Copy of the letter issued by O.P.No.1 to complainant dated: 12.04.2016.

Ex.R8: Copy of the letter issued by O.P.No.1 to complainant dated: 16.10.2015.

Ex R9: Copy of the judgment in W.P. No.23834/2016

Ex R10: Copy of the legal notice dated 27.07.2017.

Ex.R11:Copy of the reply dated 14.08.2017.

Ex R12: Copies of postal acknowledgment and receipt.

Ex R13: Copy of the plaint in O.S.No.4224/2016.

MEMBER                        PRESIDENT

A*