DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II
Udyog Sadan, C-22 & 23, Qutub Institutional Area
(Behind Qutub Hotel), New Delhi-110016.
Case No. 724/09
M/s Bhalla & Company Pvt. Ltd.
95-96-97, Wazir Nagar, Kotla Mubarakpur
Opposite Defence Colony, New Delhi - 110003 -Complainant
Vs
Axis Bank Limited
B-81, Defence Colony,
New Delhi – 110024 -Opposite Party
Date of Institution: 22.09.2009 Date of Order: 01.09.2016
Coram:
N.K. Goel, President
Naina Bakshi, Member
S.S. Fonia, Member
O R D E R
The case of the complainant, in nutshell, is that in order to get an effective and prompt service, the complainant maintained a current bank account and a cash credit account bearing number 357010300000125 in the OP Bank and the OP being banker of the complainant was supposed to provide best/diligent service which was adapted by the OP wherein in case of any cash payment of more than twenty five thousands OP used to duly verify the authorized signature on the cheque of the complainant from its own records and thereafter confirm the same from the complainant telephonically. However, on 30.1.2009, Mr. Parag Bhalla, Director of the Complainant asked for the cheque book from his staff and he found that two cheques bearing no. 009841 and 009842 were missing from the cheque book and immediately he went to the OP Bank to enquire about the status of the same; that he met the Manager (Branch Head) and requested him to stop payment of the above stated two cheques; that, however, he was told by the Bank Manager after checking the record that an amount of Rs. 4,25,000/- had already been withdrawn vide cheque bearing no. 009841 dated 19.1.09 from the above stated account bearing No. 357010300000125 of the complainant and the other cheque bearing no. 009842 had not been presented for payment so far. As per the averments made in the complaint, cheque bearing no. 009841 of Rs. 4,25,000/- was found to be for “Self Payment”; that the impugned signature on the cheque of Mr. Prag Bhalla was forged one for the reasons stated in the complaint; that the complainant on enquiry came to know that one of its employees Sh. Rajhans Pandey was not coming to work for sometime and only then it became clear that the said employee of the complainant with the assistance, negligence of the employee of OP had cleared the cheque of Rs. 4,25,000/-. Accordingly, the complainant lodged a complaint in police on 30.1.2009. It is stated that cheque bearing No. 007758 dated 25.10.2008 amounting to Rs. 95,000/- had been cleared by the OP on 29.10.08 without proper verification of the specimen signature of the complainant company in which regard the complainant lodged a complaint with the OP. Hence, pleading deficiency in service for not verifying the signature of the complainant and deliberate/negligent acts on the part of the OP, the present complaint has been filed for issuing directions to the OP to refund Rs. 4,25,000/- in lieu of cheque No. 009841 and Rs. 95,000/- in lieu of cheque No. 007758 along with interest @ 13.5% from the date of encashment till the date of actual payment, to pay Rs. 5 Lacs towards damages, harassment and mental agony and deliberate/negligent acts of the OP and to pay Rs. 25,000/- towards cost of litigation to the complainant.
In the reply, OP has inter-alia pleaded that the complainant is not a consumer because the complainant had opened the current account with the OP for business purpose. It is further submitted that once a cheque is presented to the OP Bank for clearance the OP is bound to honour it provided there is sufficient balance in the account; that the cheque belongs to the account holder, cheque was apparently in order in all respects after tallying the signatures with the specimen signature recorded with the bank as there was no instructions otherwise like stop payment etc., the cheque was honoured. It is denied that any telephonic conversation is taken from the complainant before passing any cheque of an amount of more than Rs. 25,000/-. It is submitted that it was the complainant who had to keep the chequebook in its safe custody and the account holders are advised to keep the cheque books and pass books in safe custody. Involvement of any Bank employee as alleged has been denied. Encashment of the cheque is not denied. However, it is pleaded that Sh. Rajhans Pandey, the employee of the complainant is a necessary party for the adjudication of the matter. Denying any deficiency in service on its part, the OP has prayed for dismissal of the complaint.
The complainant has filed a rejoinder reiterating the averments made in the complaint.
Affidavit of Sh. Prag Bhalla, AR has been filed in evidence on behalf of the complainant. On the other hand, affidavit of Sh. V Mahesh Kumar, Assistant Vice President and Branch Head has been filed in evidence on behalf of the OP.
From the perusal of the order-sheet dated 10.1.14, it transpires that cheque dated 18.1.2009 for an amount of Rs. 4,25,000/- had been produced on behalf of the complainant before this forum and the same was directed to be sent to the Handwriting/Signature Expert for comparison of the disputed signatures.
The Expert Handwriting report given by Kashyap International Forgery Detection Bureau, Kashmere Gate, Delhi has been filed on the record.
Written arguments have been filed on behalf of the parties.
We have heard the oral arguments of the counsel for the complainant who has also filed copy of the Final Form Report under Section 173 Cr. P.C. on the record.
From a bare perusal of the Final Form Report which we mark as Mark AA for the purposes of identification, it becomes crystal clear that the complainant has lodged FIR No. 30/09 dated 31.1.09 under Sections 381/420/467/468/471 IPC at PS Defence Colony against Sh. Rajhans Pandey and in that case accused Rajhans Pandey was declared PO and all the material public witnesses were examined under Section 299 Cr. P.C. and the file was consigned to record room. It means that in the police complaint, complainant had not made any type of allegations against the OP or any of its employees regarding encashment of cheque No. 009841 bearing forged signatures and the police investigation had been conducted against the complainant’s employee Rajhans Pandey only.
Secondly, the complainant had a current account and the cash credit account bearing No. 357010300000125 with the OP. It is a matter of common knowledge that the current account and cash credit account are opened for carrying out business/commercial activities and not for individual banking. Therefore, transactions in question were of commercial nature and, that being so, this forum does not have the jurisdiction to entertain the complaint.
As per the handwriting expert report, which we mark as mark BB for the purposes of identification, the questioned signatures on the above stated cheque were found forged. Who had forged the said signatures has not been proved by the complainant? No role whatsoever on the part of the OP or any of its employees has been proved by the complainant.
In the judgment reported as Ravneet Singh Bagga Vs M/s KLM Royal Dutch Airlines & Anr., MANU/SC/0707/1999 in Para 6, it has been held as under:
“6. The deficiency in service cannot be alleged without attributing fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be performed by a person in pursuance of a contract or otherwise in relation to any service. The burden of proving the deficiency in service is upon the person who alleges it. The complainant has, on facts, been found to have not established any wilful fault, imperfection, shortcoming or inadequacy in the service of the respondent. The deficiency in service has to be distinguished from the tortuous acts of the respondent. In the absence of deficiency in service the aggrieved person may have a remedy under the common law to file a suit for damages but cannot insist for grant of relief under the Act for the alleged acts of commission and omission attributable to the respondent which otherwise do not amount to deficiency in service. In case of bonafide disputes no wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in the service can be informed. If on facts it is found that the person or authority rendering service had taken all precautions and considered all relevant facts and circumstances in the course of the transaction and that their action or the final decision was in good faith, it cannot be said that there had been any deficiency in service. If the action of the respondent is found to be in good faith, there is no deficiency of service entitling the aggrieved person to claim relief under the Act. The rendering of deficient service has to be considered and decided in each case according to the facts of that case for which no hard and fast rule can be laid down. Inefficiency, lack of due care, absence of bonafide, rashness, haste or omission and the like may be the factors to ascertain the deficiency in rendering the service.”
From a reading of the judgement in oriental Insurance Company Ltd Vs Munimahesh Patel, Appeal (Civil) 4091/2006 decided on 12.9.2006, it is clear that the proceedings before the Consumer Forum are essentially in summary in nature and where the decision is required to be established by documents, the Consumer Forum is required to examine whether in view of the disputed facts it would exercise the jurisdiction. If there is complex factual position, it is required to be examined by an appropriate Court of Law and not by the Consumer Forum.
Judgments in N. Venkanna Vs Andhra Bank, 1(2006) CPJ 132 NC cited on behalf of the complainant deals with saving bank account and the judgment in Canara Bank Vs. Canara Sales Corpn., 1987 AIR SC 1603 arose out of a civil suit. Therefore, these judgments are not applicable to the facts of the present case. Therefore, in our considered opinion, the complaint is without any merit and is liable to be dismissed.
In view of the above discussion, we do not find any merit in the complaint and dismiss it with no order as to costs.
Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
Announced on 01.09.2016
Case No. 724/09
01.09.2016
Present – None
Vide our separate order of even date pronounced, the complaint is dismissed. Let the file be consigned to record room.
(S.S. FONIA) (NAINA BAKSHI) (N. K. GOEL) MEMBER MEMBER PRESIDENT
