DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)
Consumer Complaint No.345 of 2017
Date of institution: 10.05.2017 Date of decision : 21.11.2018
M/s. N.B. Healthcare, Plot No.966, Industrial Park, JLPL, Airport Road, Sector 82, Mohali through its Prop. Shri Charan Kishore Singla.
…….Complainant
Versus
1. Axis Bank Ltd. Corporate Office Bombay Dying Mills, Compound Pandurang Bhudkar Marg, Worli, Mumbai Pin 400025.
2. Axis Bank Ltd. SCF 113-114, Phase-7, Mohali through its Branch Manager.
3. Branch Manager of Axis Bank Ltd., SCF 113-114, Phase-7, Mohali.
……..Opposite Parties
Complaint under Section 12 of
the Consumer Protection Act.
Quorum: Shri G.K. Dhir, President,
Shri Amrinder Singh Sidhu, Member
Present: None for the complainant.
Shri Rajeev Bhardwaj, counsel for the OPs.
Order by :- Shri G.K. Dhir, President.
Order
Complainant is maintaining account No.085010200011149 with OP Bank for the last few years and is dealing with OP No.2 for quite long time. Complainant presented two cheques bearing No.085370 and 085377 with OP No.2, issued to him by L.M. Medical Store as part payment of sold medicines. These cheques were dishonoured vide memos dated 03.05.2016. Complainant after receipt of memo of cheques was shocked to see that there are no original cheques tagged with the memos. Upon visit to office of OP No.2 for making enquiries, false assurance was given. Legal notice dated 04.06.2016 was served on OPs through registered post, but reply thereto not received. Due to non return of cheques, right of complainant to file complaint under Negotiable Instruments Act stood defeated. This complaint filed for seeking direction to OPs to give back cheques alongwith interest @ 24% per annum on the amount of cheques from the date of issue of memos. Compensation for mental harassment and agony of Rs.1,50,000/- and litigation expenses of Rs.21,000/- with interest @ 18% per annum till realisation also claimed.
2. In joint reply submitted by OPs, it is pleaded inter alia as if contrary and inconsistent allegations leveled in the complaint by way of suppressing material facts and that complaint filed without cause of action for abusing process of law just for harassing OPs. It is claimed that original cheques have already been returned by OPs with memos to complainant. Admittedly cheques were dishonoured due to lack of funds. Complainant could have filed complaint under section 138 of Negotiable Instruments Act in competent court of law, where on summoning of bank officials, their statements in proof of dishonour of cheques could have been got recorded. Admittedly legal notice dated 04.06.2016 was served on OPs. There was delay on part of complainant in filing complaint under Negotiable Instruments Act and as such this complaint alleged to be filed just for harassing OPs. It is claimed that OPs would have extended all the necessary cooperation as is expected from a prudent banker, if complaint under Negotiable Instruments Act would have been filed.
3. Complainant to prove his case tendered in evidence his affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-7 and Mark-A and thereafter his counsel closed evidence. On the other hand, counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Tripathi, Operation Head and thereafter closed evidence.
4. Written arguments not submitted by any of the parties. Oral arguments of counsel for OPs heard. As none has appeared for complainant and as such after perusing the record and hearing arguments of counsel for the OPs, present complaint is decided through this order.
5. Contents of affidavit Ex.CW-1/1 of Shri Charan Kishore Singla, Prop. of complainant concern establishes that he is doing business of sale of medicines for earning livelihood by way of self employment and as such complainant is consumer of OPs due to holding of bank account with OPs. It is the case of complainant that two cheques received by him from L.M. Medical Store as part payment stood dishonoured due to lack of funds regarding which memos dated 03.05.2016 were issued by OP No.2 and copies of those memos are Ex.C-1 and Ex.C-2. Certainly after perusal of those memos Ex.C-1 and Ex.C-2, it is made out that two cheques bearing No.085376 and 085377 of amounts of Rs.54,902/- and Rs.61,892/- were dishonoured due to insufficiency of funds in the account, number whereof mentioned on these memos. It is the case of complainant that two cheques have not been returned, but case of OPs is that these cheques have already been returned to the complainant. Earlier complaint filed by complainant was withdrawn on 27.01.2017 as revealed by copy of orders placed on record as Mark-A of this Forum. It was after withdrawal of that complaint that this new complaint was filed. Though complainant sent legal notice Ex.C-3 dated 04.06.2016 to OPs through postal receipts Ex.C-4 to C-6, but reply thereof sent to counsel for complainant on 17.06.2016 by OPs, is a fact borne from copy of reply placed on record as Ex.C-7. Through this reply Ex.C-7 it is disclosed that though matter is under examination and detailed reply will be sent within 15 days, but contents of notice not deemed to be admitted by OPs. So it is not a case in which reply to legal notice was not sent by OPs to complainant.
6. Complainant has not disclosed anywhere in the complaint or in the submitted affidavit or in any other document as to on which date cheques were presented. Though amount of the cheques not mentioned in the complaint, but the same is mentioned in memos Ex.C-1 and Ex.C-2 each, as referred above. Non disclosure of date of presentation of cheques itself is a circumstance showing as if complainant is suppressing material facts in that respect. Date of issue of cheques even not mentioned in any of the memos Ex.C-1 and Ex.C-2 and as such complainant withheld available evidence for proving date of issue of cheques or the date of presentation of cheques. A person who withholds best available evidence, definitely cannot be said to be disclosing truth and as such due to suppression of material facts qua date of presentation of cheques or the date of issue of cheques, it has to be held that complainant failed to establish that the cheques actually were presented within the validity period. Complainant on the basis of received memos of dishonour Ex.C-1 and Ex.C-2 could have served notice on the person who issued the cheques for expressing intention to file complaint under Section 138 of Negotiable Instruments Act, but no such notice shown to be sent by complainant to L.M. Medical Store who issued the cheques. So submission advanced by counsel for OPs has force that actually complainant himself has not taken any steps for filing the complaint under Negotiable Instruments Act and had he filed so, then assistance of OPs would have been got by complainant by way of record of statements of officials of OPs. Reasons for non filing of complaint under Negotiable Instruments Act in such circumstances as disclosed by complainant are not appealable and rather non disclosure of those reasons or improper reasons enough to draw conclusion that complainant himself never contemplated to file complaint under Negotiable Instruments Act. Being so, fault to OPs in this regard cannot be attributed. In the absence of non disclosure of date of presentation of cheque, it has to be held that complainant unable to prove that intimation regarding dishonour of cheques not received at earliest. On receipt of dishonoured cheques, it was duty of OPs to convey about the same to complainant by issue of memos and the same has been done by OPs as disclosed by complaint and as such no deficiency in service on part of OPs is there. So virtually complainant has no cause of action available against OPs.
7. As a sequel of above discussion, complaint dismissed. Certified copies of the order be supplied to the parties as per rules. File be indexed and consigned to record room.
Announced
November 21, 2018.
(G.K. Dhir)
President
(Amrinder Singh Sidhu)
Member
