DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, SANGRUR .
Complaint No. 226
Instituted on: 08.05.2018
Decided on: 29.02.2024
Jasdeep Kaur Gill wife of Gaganjot Singh, resident of H.No.105, Partap Nagar, Sangrur.
…. Complainant.
Versus
1. Vijaya Bank, Gaushala Road, Sangrur through its Branch Manager.
2. State Bank of India, Barra Chowk Branch Sangrur through its Chief Manager.
….Opposite parties.
QUORUM
JOT NARANJAN SINGH GILL: PRESIDENT
SARITA GARG : MEMBER
KANWALJEET SINGH : MEMBER
For the complainant : Shri Vinay Kumar Jindal Adv.
For the OP no.1 : Shri Sat Paul Sharma Adv.
For the OP no.2 : Shri Ashi Goyal, Adv.
ORDER
KANWALJEET SINGH, MEMBER
1. The complainant has alleged in this complaint that Suresh Kumar borrowed the amount from the complainant and thereafter Suresh Kumar in discharge of his legal liability issued the cheque no.003184 dated 18.12.2017 of Rs.1,24,000/- in favour of the complainant. The complainant presented the said cheque on 14.03.2018 in her bank account no. 752501011002126 maintained with the OP no.1 . The amount of cheque was encashed and the complainant received SMS on her mobile phone. Then the complainant withdrawn an amount of Rs.50,000/- for her needs. On 21.02.2018 when the complainant went to withdraw cash amount from ATM machine from her account ( supra) then the complainant got a receipt from the ATM machine in which it has been written that your account has been blocked. The complainant approached to Op no.1 and enquired the matter but the official of OP no.1 put off the matter on one pretext or the other. The complainant issued a legal notice dated 22.03.2018 through her counsel to OP no.1. OP no.1 in his reply to the legal notice stated that OP no.1 has sent the said cheque to OP no.2 for its clearance and OP no.2 inadvertently credited the cheque amount. Thereafter in the evening the OP no.2 stopped the cheque payment as counter return of cheque and mentioned in reply that OP no.2 returned the original cheque alongwith memo of OP no.1 with remarks funds insufficient in the account of Suresh Kumar. The complainant again approached OP no.1 and OP no.1 raised the demand of Rs.50,000/- for the reactivation of her bank account. The complainant has lost her right to file the complaint U/s 138 of Negotiable Instrument Act against Suresh Kumar. The complainant lastly prayed that the OP no.1 may kindly directed to reactivate the bank account of the complainant ( supra) and OP no.1 may kindly be directed to withdraw the demand of Rs.50,000/- from the complainant and to pay Rs.1,50,000/- on account of mental tension, agony and to pay Rs.11000/- as litigation expenses.
2. Upon notice of this complaint, the opposite parties appeared and filed separate written version. The OP no.1 in his reply, taking preliminary objections that the complainant has not come to the Commission with clean hands as she has concealed the material facts. The present complaint is bad for mis-joinder of necessary party. On merits, the OP no.1 pleaded that it is correct that Suresh Kumar issued a cheque ( supra) in favour of complainant. On 15.03.2018 the complainant presented cheque to OP no.1. The OP no.1 sent the cheque ( supra) for its clearance to OP no.2 being clearing head. On 15.03.2018 firstly the OP no.2 credited the cheque amount in bank clearing bank account no.65072848169 of OP no.1. In the evening OP no.2 through mobile call communicated to Op no.1 that cheque payment is stopped as counter return of cheque ( supra) on the ground of no sufficient amount in the account of Suresh Kumar. The OP no.2 return the original cheque alongwith memo dated 15.03.2018 to OP no.1 with remarks “ funds insufficient in the account of Suresh Kumar”. During this process at about 5:50 PM the complainant online transferred an amount of Rs.50,000/- from her account to bank account of her husband. On 15.03.2018 after receiving mobile call from official of OP no.2 at about 6:00 PM the cheque dated 18.12.2017 was stopped with intimation counter return of cheque OP no.1 informed to complainant and requested her not to withdraw the amount from her account and requested to return the amount of Rs.50,000/- which was already transferred by her in the bank account of her husband. The OP no.1 wrote a number of letters by registered post dated 17.03.2018 and 22.03.2018 to the complainant. The complainant was avoiding to receive the letters of OP no.1 and ultimately on 15.03.2018 at about 6:15 PM the OP no.1 put on hold her bank account so that she will not withdraw the remaining amount from her bank account. On 15.03.2018 OP no.2 inadvertently credited the cheque amount thereafter in the evening OP no.2 stopped the cheque payment as counter return of cheque due to insufficient funds in the account of Suresh Kumar. The OP no.2 returned the original cheque alongwith memo to OP no.1. It is correct to the extent that the complainant has right to operate her bank account in any manner but the complainant has no right upon the amount of Rs.1,24,000/- which was credited by OP no.2. Later on, OP no.2 withdrawn the same from the account of OP no.1. As such, there is no deficiency in service or unfair trade practice on the part of Op no.1. The remaining allegations are denied by the Op no.1 and prayed that the complaint of the complainant may kindly be dismissed with special costs of Rs.10,000/-.
3. The OP no.2 in his reply, taking preliminary objections that the complainant has not come to the Commission with clean hands as she has concealed the material facts. The present complaint is not maintainable. On merits, the OP no.2 pleaded that the complaint can be better replied by Suresh Kumar who issued the cheque in discharge of his legal liability in favour of the complainant. It is admitted that the OP no.2 had received the cheque ( supra) from Op no.1 for encashment by way of clearing . It is denied that the cheque was encashed on 15.03.2018 itself as the clearing account of OP no.1 was debited for Rs.1,24,000/- on the same day itself due to bouncing the cheque on the ground of insufficient funds and returning of cheque was advised to the OP no.1 telephonically to the clearing staff and the cheque was returned with memo to OP no.1. The OP no.2 having no knowledge whether the complainant had withdrawn of Rs.50,000/- for her needs. The OP no.2 had received said cheque payable to the complainant which was presented through OP no.1. Due to oversight, the concerned official of OP no.2 failed to return the cheque to oP no. 1 when the official of OP no.2 and OP no.1 met at 3:30 PM at the clearing house. The Op no.1 credited the amount in the account of the complainant and the complainant on the same day on 15.03.2018 withdrawn Rs.50,000/- from her account. The clearing account of OP no.1 was debited for Rs.1,24,000/- on the same day itself due to bouncing of the cheque in question. As such there is no deficiency in service or unfair trade practice on the part of OP no.2. The remaining allegations are denied by the Op no.2 and prayed that the complaint of the complainant may kindly be dismissed qua the OP no.2.
4. In support of her case the complainant tendered into evidence her affidavit Ex.C-1 and some documents which are Ex.C-2 to Ex.C-5 and closed evidence.
5. On the other hand, to rebut the case of the complainant, the opposite party no.1 has produced affidavit Ex. OP1/1 and documents Ex.Op1/2 to Ex.Op1/25 and closed evidence. Similarly, OP no.2 has tendered into evidence Ex.OP2/1 affidavit and some documents Ex.OP2/2 to Ex.OP2/3 and closed evidence.
6. We have heard the learned counsel for parties and gone through the record file carefully with the valuable assistance of the learned counsel for the parties. During arguments the contentions of both the parties are similar to their respective pleadings, so there is no need to reiterate the same to avoid repetition.
7. Now, come to major controversy, whether the complainant is liable for relief as claimed by her in her prayer or not?
8. No doubt, it is not disputed that cheque ( supra) presented on 15.03.2018 by complainant in her saving bank account ( supra) maintained with OP no.1. It is admitted fact that OP no.1 sent the said cheque for its clearing to OP no.2. It is not disputed on 15.03.2018 OP no.2 credited the cheque amount in clearing bank account no.65072848169 of OP no.1. It transpires from the perusal of pleadings of OP no.1 reply in para no.3 (a) pleaded on page no.3 that in the evening OP no.2 through mobile call communicated to OP no.1 that payment of the cheque in question is stopped as counter return of said cheque because Suresh Kumar having no sufficient amount in his account no.55139299389. The OP no.1 further pleaded that OP no.2 returned the original cheque alongwith memo dated 15.03.2018 to OP no.1 with remarks “ funds insufficient”. In the meanwhile, at about 5:50 PM the complainant online transferred Rs.50,000/- from her account to her husband’s bank account. This Commission has framed the following issues:-
ISSUE No.1. Whether Op no.1 has any legal right to retain the cheque ( supra) since 15.03.2018 of the complainant or not ?
ISSUE No.2. Whether Op no.2 on 15.03.2018 credited the cheque amount in clearing bank account no.65072848169 of OP no.1 or not ?
ISSUE No.3. Whether the Op no.1 legally entitled to block the bank account of the complainant or not ?
ISSUE No.4. Whether the complainant has lost her legal right to file complaint under Section 138 of Negotiable Act against Suresh Kumar or not ?
ISSUE No.5. Relief.
ISSUE No.1 to 5. The onus of prove the issue no. 1, 3 and 5 was upon the Op.1 and the Issue no. 2 was upon the Op.2 and Issue no. 4 was upon the complainant.
To trace out the veracity of truth, this Commission has gone through minutely the pleadings and evidence led by both the parties. In reply of OP no.1 and Ex.OP1/1 affidavit of Shri Lokendra Singh, Branch Manager of OP no.1. It is admitted by OP no.1 in reply para no. 3 (a) that the complainant is consumer qua the OP no.1 and she has saving bank account no.752501011002126 of OP no.1. Further, it is admitted by Op no.1 that on 15.03.2018 the complainant presented the said cheque in her saving bank account ( supra) for its encashment. The Op no.1 sent the said cheque for its clearing to OP no.2 being clearing head. On 15.03.2018 the OP no.2 credited the cheque amount in bank clearing bank account number 65072848169 of OP no.1. On same day in the evening OP no.2 through mobile call communicated to OP no.1 that payment cheque ( supra) having no sufficient amount in the account no.55139299389 of Suresh Kumar. It is specifically pleaded Ex.Op1/1 an affidavit in para no.1 that OP no.2 returned the original cheque alongwith memo dated 15.03.2018 with remarks “ insufficient funds in the account of Suresh Kumar”.
In this juncture, Op no.1 admitted this factum that dishonored cheque ( supra) received on 15.03.2018 from OP no.2. It transpires from Ex.OP1/11 reply of legal notice dated 28.03.2018 Op no.1 pleaded in para no. 1 that OP no.1 informed to complainant at about 6:15 PM on 15.03.2018 and requested to the complainant not to withdraw the amount from her account and to return Rs.50,000/- which was already transferred by the complainant through the mobile banking in the bank account of her husband, before 6:00 PM. This factum is also pleaded by OP no.1 in his reply in para no.3 (a) and an affidavit Ex.Op1/1 in para no.1 at page no.2. Further, as per Ex.OP1/17 a letter dated 16.03.2018 issued by OP no.1 to the complainant that your cheque stands rejected due to insufficient funds and requested to complainant to pay the balance amount to the OP no.1. We feel that OP no.1 in the light of Ex.OP1/17 letter dated 16.03.2018 nowhere specifically mentioned to the complainant to collect the dishonored cheque. This Commission has the considered view that the only purpose of issuance of letter dated 16.03.2018 to complainant which is Ex.OP1/17 to repay the balance amount to the complainant. “ A man can lie, but document can’t” .
Further, to prove his innocence to retain the cheque ( supra) OP no.1 issued registered letter to complainant dated 17.03.2018 which is Ex.OP1/18 with report “not received” out of station. Again on the same day dated 17.03.2018 OP no.1 only produced on record photocopy of envelop of registered post which is Ex.OP1/19 alongwith acknowledgement due which is Ex.OP1/23 and postal receipt dated 17.03.2018 which is Ex.OP1/25. Again Op no.1 issued a registered letter dated 19.03.2018 to the complainant, photocopy of envelop only produced on record. which is Ex.OP1/20 with remarks “ refusal” by the postman concerned. Again oP no.1 issued registered post to complainant which is Ex.OP1/21acknowledgement due which is Ex.OP1/22 and postal receipt Ex.OP1/24 dated 22.03.2018. This Commission has the considered view from the perusal of Ex.OP1/18 to Ex.OP1/24, through the lengthy correspondence OP no.1 has miserably failed to establish this scenario that OP no.1 issued correspondence with regard to provide immediately the dishonored cheque ( supra) to the complainant. Moreover, OP no.1 issued legal notice to the complainant which is Ex.OP1/12 dated 23.04.2018 in para no.3 it is specifically mentioned the complainant is not paying the amount of Rs.50,000/- to Op no.1 and not collected the dishonored cheque ( supra) alongwith memo . In last para of the legal notice, the intention behind the OP no.1 addressed to the complainant to make payment of Rs.50,000/- alongwith interest. So, the intention of OP no.1 is conditional one to deliver the cheque to the complainant. “ The person who seeks equity must do equity”. In this context, OP no.1 miserably failed to produce the material, reliable and truth worthy cogent evidence on record regarding to retain the cheque (supra) as a right of lien. In view of our above discussion, the issue no.1 decided against OP no.1 and in favour of the complainant.
The issue no.2 as far as concerned the reply of Op no.2 in para no.3 (a ) it is admitted by OP no.2 that cheque ( supra) had received for encashment by way of clearing through OP no.1. Further, OP no.2 pleaded in para no.3 ( c) that due to oversight the concerned official of OP no.2 failed to return the cheque to oP no. 1 when the official of OP no.2 and OP no.1 met at 3:30 PM at the clearing house. The Op no.1 credited the amount in the account of the complainant and the complainant on the same day on 15.03.2018 withdrawn Rs.50,000/- from her account.
Moreover, reply of OP no.1 on merits in para no.3 ( c) pleaded that Op no.2 inadvertently credited the cheque amount thereafter in the evening OP no.2 stopped the cheque payment as counter return of cheque due to insufficient funds in the account of Suresh Kumar. OP no.2 reply on merit in para no.3 (c) specifically pleaded that due to oversight the concerned official of OP no.2 failed to return the cheque to OP no. 1 when the official of OP no.2 and OP no.1 met at 3:30 PM at the clearing house. The Op no.1 credited the amount in the account of the complainant. In this context, OP no.2 admitted this factum that their official committed mistake/ procedural irregularity. We feel that OP no.2’s official provided green signal then OP no.1 credited the amount into the account of the complainant. Admission is the best evidence, so there is no need to prove it. It is writ large on the file the pleadings of OP no.2 and an affidavit Ex.OP2/1 specifically mentioned that due to oversight the concerned official of OP no.2 failed to return the cheque to OP no.1 when the OPs no.1 and OP no.2 met at 3:30 PM at the clearing house. This Commission has the considered view that if the official of OP no.2 did their official function being an ordinary prudent man with care and caution then this material irregularity could not be occurred. Accordingly, In view of the above said discussion, the issue no.2 decided against the OP no.2 and in favour of the complainant.
As far as concerned the third issue for determination whether the OP no.1 legally entitled to block the account of the complainant or not ? To solve this controversy, this Commission has gone through the content of reply on merits of OP no.1 in para no.3 (d) OP no.1 admitted that the complaint is correct to this extent that the complainant has right to operate her bank account in any manner. On the other hand, as per Ex.C-2 dated 21.03.2018, it is crystal clear on the face of record “account blocked” by Op no.1. This Commission has the considered view that the OP no.1 neither produced any relevant banking law/ rules and regulations/ bylaws with regard to block the account of the complainant nor produced any approval from the higher authority of the OP no.1 on record. Moreover, since 21.03.2018 from the date of block of the account of complainant to till date the account of the complainant Op no.1 has not made efforts to reactivate the account of the complainant. Furthermore, the present complaint has been filed on 08.05.2018 by the complainant but OP no.1 did not try to resolve the issue to reactivate the account of the complainant during the pendency of this complaint. From this angle, OP no.1 is liable for deficiency in service qua the complainant. The issue no.3 decided against the OP no.1 and in favour of the complainant.
Fourth issue with regard to complainant lost her right to file the complaint under Section 138 of the Negotiable Instrument Act against Suresh Kumar or not ? To solve this issue, reply OP no.1 on merits in para no.3 (a) on page no.3 pleaded that OP no.2 returned the original cheque alongwith memo of 15.03.2018 to OP no.1 with remarks “ funds insufficient “ in the account of Suresh Kumar. It transpires from the perusal of Ex.OP1/12 legal notice dt. 23.04.2018 issued by OP no.1 to the complainant in para no.3 it is specifically mentioned that the OP no.1 wrote letters number of times to the complainant to collect the said cheque. We feel that interpretation of legal notice dated 23.04.2018 which is Ex.OP1/12 and Ex.OP1/17 letter dated 16.03.2018 the sole intention of OP no.1 addressed to the complainant to repay the balance amount of Rs.50000/-. The correspondence by OP no.1 to complainant seems to pay the amount of Rs.50,000/- only. To clarify the issue this Commission has gone through minutely the notification as Ref. DBOD.BC.Leg. No.113/09.12.001/2002-03 dated 26.06.2003 issued by the Reserve Bank of India to all scheduled Commercial Banks regarding procedure for dishonor of cheques the relevant portion of the notification ( supra) is reproduced as under:-
As you are aware, in January 1992, banks were advised to implement the recommendation of the Goiporia Committee that dishonored instruments are returned/ dispatched to the customer promptly without delay, in any case within 24 hours ( Ref. No.3.36- our circular DBOD. No.B.C.74/09.07.001/91-92 dated 28th January 1992).
4. I. Procedure for return/ dispatch of dishourned cheques:
(i) The paying bank should return dishourned cheques presented through clearing houses strictly as per the return discipline prescribed for respective clearing House in terms of Uniform Regulations and Rules for Bankers’ clearing houses. The Collecting Bank on receipt of such dishonoured cheques should dispatch it immediately to the payees/ holders”.
In this context, OP no. 1 miserably failed to provide the cheque (supra) to the complainant since 15.03.2018 to till date as per notification ( supra) issued by the Reserve Bank of India. The present complaint in hand has been filed on 08.05.2018 during the lis pendence OP no.1 did not make efforts to hand over the original cheque in question to the complainant. The act and conduct of the OP no.1 to return the said dishonoured cheque to the complainant is not fair as per the law of the land. In this juncture, OP no.1 is liable qua the complainant for lost her right to file the complaint under Section 138 of the Negotiable Instrument Act against Suresh Kumar. Accordingly, In view of the above said discussion, the issue no.4 decided in favour of the complainant against the OP no.1
9. As far as concerned Rs.50,000/- transferred by complainant at about 5:50 PM on 15.03.2018 online from her bank account number 752501011002126 to bank account number 752501231000304 of her husband. In this context, OP no.1 issued legal notice dated 23.04.2018 which is Ex.OP1/12 to the complainant. OP no.1 having well within his knowledge in spite of it has not been initiated recovery proceedings of Rs.50000/- qua the complainant for the reasons best known to OP no.1. We hold that the OPs committed deficiency in service qua the complainant. This is a fit case to redress the grievance of the aggrieved consumer.
10. Resultantly, keeping in view of the facts and peculiar circumstances of the complaint in hand and with careful analysis of the evidence available on record, we partly allow the complaint and direct the Op no.1 to reactivate the bank account of the complainant ( supra) and further direct the OPs no.1 and 2 to pay a consolidated sum of Rs.10,000/- each to the complainant as compensation alongwith litigation expenses. This order be complied with by OPs within 45 days from the receipt of copy of this order.
11. The complaint could not be decided within the statutory time period due to heavy pendency of cases.
13. Copy of this order be supplied to the parties free of cost. File be consigned to the records after its due compliance
Announced.
February 29, 2024
( Kanwaljeet Singh) ( Sarita Garg) (Jot Naranjan Singh Gill)
Member Member President
BBS/-
