Delhi

West Delhi

CC/10/593

CHANCHAL SETH - Complainant(s)

Versus

AXIS BANK - Opp.Party(s)

17 Jan 2020

ORDER

 

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM (WEST)

         150-151; COMMUNINTY CENTER ; C-BLOCK; JANAK PURI; NEW DELHI

CASE NO.  593/10

SH. CHANCHAL SETH

PLOT NO. 31/1, LANE NO. C-5

RANAJI ENCLAVE, PART –III, MS BLOCK

NAJAFGARH, NEW DELHI-110043

 

VERSUS

THE MANAGER

AXIS BANK LTD,

PASCHIM VIHARBRANCH

NEW DELHI

                                     

O R D E R

PUNEET LAMBA, MEMBER

The complainant has filed the present complaint against the O.P under section 12 of Consumer Protection Act, 1986. The brief facts as stated by the complainant are that the complainant is having saving bank account with OP. It is alleged on 12.03.2019 the complainant received sms on his mobile that a sum of Rs. 19,000/- was debited from his account. Thereafter, the complainant visited OP bank at IMT Manesar on 15.03.2010 and inquired about the disputed amount and was informed by it that the self cheque bearing no. 354060 dated 11.03.2010 was  encashed at OP Bank, Najafgarh Branch from his account.  It is alleged that the encashed cheque had forged signatures. The complainant vide email dated 15.03.2010 informed OP that he had  not issued the disputed cheque and also informed that he had misplaced three cheques and also informed that same are misused but despite that no action was taken by the OP. Again the complainant on 16.3.2010 visited the OP bank Najafgarh branch and told about his grievance but no heed was paid and OP failed to redress his grievance. The complainant thereafter lodged complaint at P.S. Najafgarh on 16.03.2010 and also gave written complaint to G.M. of OP at Mumbai. It is alleged that on 30.03.2010 the complainant requested  OP-2 to provide copy of specimen signatures in account opening form but the same was refused. Despite several requests OP failed to redress the grievance and the complainant was made to run from pillar to post but to no effect. It is alleged that the OP was negligent and deficient in services. Hence the present complaint for directions to OP to refund the sum of Rs. 19,000/- and also prayed for compensation for sum of Rs. 25,000/- and Rs. 15,000/- for litigation expenses.

After notice OP appeared and filed reply to the complaint taking preliminary objection that there is no cause of action against the OP, non joinder of parties and as the matter involves fraudulent transactions it could not be adjudicated in summary procedure hence the Forum has no jurisdiction. It is admitted that the complainant is having a saving bank account and cheque book was issued to the complainant as per the banking rules and the account holders are advised to keep the cheque books in safe custody without affixing the signature. It is averred that once the cheque was issued by the account holder, the OP bank was bound to honour the cheque as per normal banking procedure and the OP bank after tallying  the signatures on the cheque in dispute with the specimen signature recorded with the OP bank cleared the cheque. The disputed cheque was drawn in favour of self i.e. complainant, which was presented on 12.03.2010 across the counter for payment at Najafgarh branch of OP. The cheque was apparently in order in all respects and after satisfying that the signature on the said cheques matched with the signature recorded with OP and funds are sufficient the OP released the payment to the bearer as per provision for Negotiable instruments act and as per banking norms. It is further averred that as per law the bearer cheque could be encashed by the third party across the counter and there was no liability of OP to check whether the account holder was presenting the cheque in person. The complainant was intimated regarding debit of his amount immediately through sms on his mobile. It is further averred that the complainant himself was negligent and he had not taken care of cheque book issued to him and also failed to intimate about the stolen cheques immediately and only informed after the incident. The OP was not liable for the negligence of the complainant. The forgery and fraudulent matters are to be adjudicated by competent civil courts and cannot be tried in the summary procedure hence this Forum has no jurisdiction to adjudicate the matter. It is further averred that there is no negligence or deficiency in services on part of OP. Hence prayed for dismissal of complaint.

Rejoinder to the reply filed by the complainant reiterating the facts of the complaint and controveting the stand taken by the OP. It is alleged that the cheque was presented for encashment and was not properly verified and checked by the OP before releasing  the payments and OP was not diligent enough. It is reiterated  OP failed to discharge its duties as per rules and regulations of banking manual and negotiable  act.

When the parties were asked to lead affidavit of evidence, the complainant filed affidavit of evidence testifying the contents of the complaint on oath.  The OP also filed affidavit of evidence of Shri Rajneesh Chaudhary Senior manager reaffirming the contents of reply.  Written arguments are also filed by parties. During the proceedings cheque was sent for the examination by FSL.

We have heard complainant in person and counsel for OP and have gone through the material on record carefully and thoroughly.

The controversy involved in the present complaint is as to whether the complainant is entitled for the relief he has sought. The first question to be determined is as to whether the complainant had taken steps to report about the stolen cheques immediately after loss of the cheques. The answer is in negative however he wrote emails dated 15.03.2010 to stop the payment after the amount was already debited. There is no iota of evidence to substantiate that any timely action has been taken by the complainant. Hence the allegations of the   complainant are unwarranted and unjustified. Now the second question is as to whether the OP had encashed the bearer cheque after compliance of the operational formalities and as per the banking practice, the answer is in positive therefore, there is no negligence and deficiency of service on part of OP. The OP has relied on judgment passed by the Hon’ble National Commission in case of Mr. Tara Chand Lal Chand V/S Oriental Bank of Commerce(reported in IV (2009) CPJ 220 NC) wherein the Hon’ble commission has observed that where the complainant himself was negligent in safe keeping of cheque book, issued to him, the bank cannot be held liable for the negligence. OP also relied on another judgment passed by Hon’ble Supreme Court in the matter of Bank of Maharastra V/S M/S Automotive Engg. Co. wherein the Hon’ble Supreme Court held “that there is no justification that Bank should take care to scrutiny the cheque under ultraviolet ray lamp and when bank has taken reasonable care by way of scrutiny of the cheque, then the Bank shall not be held for guilty of negligence’’. In view of the judgment passed by Hon’ble St. Commission and Hon’ble Supreme Court we are of considered view that there is no negligence on part of OP whereas in fact complainant failed to act diligently.

Moreover the complainant miserably failed to establish that the OP had failed to discharge its duties as per banking rules. Even the report from forensic science laboratory does not express clear opinion about the forged signatures. Therefore, we are of the view that the complainant failed to take care of the cheques and failed to report the matter in time hence OP cannot be held liable for the negligent act of complainant. Therefore, there is no deficiency in service on part of OP hence complaint is dismissed. File be consigned to record room.   

Announced this ______17th____ Jan. 2020.                

(PUNEET LAMBA)                                                            (K.S. MOHI)                       

   Member                                                                          President