The case of the complainant in brief is that the complainant maintained a savings bank A/C being A/C No.07800100005402 at Bank of Baroda, Siliguri branch i.e. OP No.1.
The complainant purchased a flat with the financial assistance with the OP No.2 and issued several post dated cheques on the said A/C against installments. Subsequently, on 27.01.09 a letter was received from the OP No.2 that cheque being No.517981 dated 01.01.09 got dishonour by the OP on the reason in-sufficient of funds. The OP No.2 asked the complainant to contact the area office of the OP and to make necessary payment along with additional interest from 01.01.09 till the date of payment by cash together with bank charges. After receiving the said letter the complainant met with the OP No.1 & requested to know as to why the said cheque got dishonour despite having sufficient fund in his account. But the OP No.1 did not pay any heed.
Thereafter as per his request statement of account was given to him from which it has come to his knowledge that on 14.01.09 the OP No.1, Bank credited an amount of Rs.2,000/- by a cheque in favour of but in fact such type of cheque was not issued by him. Thereafter the said cheque bearing No.517981 dated 01.01.09 amounting to Rs.2,669/- was duly honoured and balance amount Rs.286/- stood in his account. It is further case of the complainant on the same day i.e. on 19.01.09 the OP No.1 credited the above amount of Rs.2,669/- after deducting the cheque clearing charges Rs.113/- from the account of the complainant and thereby final credit balance was of Rs.2,069.20 as on 19.01.09. The entire transaction on 14.01.09 to 19.01.09 are whimsical, malafide and it amounts to negligence and deficiency in service upon the consumer, the complainant.
The further case of the complainant is that due to non clearance of the aforesaid cheque the complainant has been considered as defaulter in the eye of the OP No.2 but he is not the wilful defaulter and due to negligence on the part of the OP No.1, the complainant became defaulter and sustained loss and injury.
As the complainant was/is not defaulters the OP No.2 can not impose charge and interest due to the fault on the part of the OP No.1 by which the social prestige of the complainant lowered down and sustained mental agony and loss to get benefit from the OP No.2 against the said house building loan due to such deficiency of service on the part of the OP No.1.
Hence, this case for proper relief.
OP No.1, Bank of Baroda contested the case by filing Written Version and denied the case of the complainant alleging the case is not maintainable.
The specific defence is that the cheque in question issued by the complainant was dishonoured by mistake. The computer system picked up some technical snag very common to electronic system as such the cheque was dishonoured by mistake. The complainant never demanded for Statement of account and refusal thereof as alleged. As soon as such detection on the querry of the complainant was noticed about the amount of cheque was debited to some other account by mistake on account of the technical fault, it was corrected and the amount was credited in his account. It is further stated that the cheque bearing No.517982 amounting to Rs.2,669/- was honoured duly on 14.02.09 after its presentation.
It is further stated that the OP Bank can get protection u/s 131 of the N.I. Act if the payment is made by mistake which was corrected then and there when it was come to there knowledge so there is no negligence or deficiency of service on there part. Such mistake took place due to the non functioning of computer system. The complainant has filed the instant case for illegal gain and as such it is liable to be dismissed with cost.
Points for consideration:-
- Is the case maintainable in law ?
- Is there any deficiency of service on the part of the Opposite Parties ?
- Is the complainant entitled to get any compensation/award as prayed for ?
Decision with reason :
Point No.1
This issue has not been pressed by the ld. Advocates on behalf of the complainant and the OP No.1 the Bank at the time of final hearing. On perusal of the pleading of the respective parties and the materials on record nothing transpires to say against maintainability of instance case.
So, the case is maintainable in law and is thus disposed of in favour of the complainant.
Point No.2 & 3
The complainant in support of his case has filed several documents, viz, Xerox copy of cheque No.517981 dated 01.01.09, return unpaid receipt dated 01.01.09, Xerox copy of notice from LIC Housing Finance Ltd. dated 27.01.09 and Statement of Account from 19.1208 to 31.01.09 for the A/C No.07800100005402.
Be it mentioned here neither party chose to lead their respective evidence supported by affidavit in chief and cross examination thereof. So, this Forum is to consider the respective case and defence on the basis of the pleadings supported by affidavit and material on record. Let us now consider the case of the respective parties and defence thereof.
Annexure 1 : A cheque dated 01.01.09 issued by the complainant in the name of LIC Housing Finance Ltd. amounting to Rs.2,669/- was presented to H.D.F.C. Bank Ltd., Siliguri Branch on 19.01.09 for clearance.
Annexure 2 : is a return Memo issued by Bank of Baroda dated 19.01.09 to the H.D.F.C. Bank Ltd. The cause of return was shown insufficient funds.
Annexure 3 : issued by LIC Housing Finance Ltd. by his letter dated 27.01.09 intimated the complainant about the dishonour of the cheque with regard to his loan installment with a request for necessary payment along with additional interest 1/09 till the date of payment by cash only plus Bank charges.
Annexure 4 : is the Statement of Account for the relevant period.
On the other hand the OP/Bank furnished computerized Statement of A/Cs bearing 07800100005402 for the period from 01.03.07 to 18.05.09 stands in the name of the complainant to show that the complainant was a habitual defaulter and the amount as debited through mistake was reversed in the credit of complainant’s A/C with the charge as deducted from the A/Cs of the complainant.
The Ld. Advcoate on behalf of the complainant argued that it is a clear case of admission on the part of the OP/Bank that despite having sufficient fund the amount covered under the impugned cheque was not honoured. But in support of their such defence no other document was placed to substantiate that due to such mechanical fault mistake took place and how long such fault stood or at all there was such mechanical defect exists has not been proved by cogent evidence. When due to mistake on the part of the Bank concerned he sustained loss for benefit as held by the OP No.2 in connection with building loan and also when the charge was imposed for non payment of installment in time there was/is deficiency of service on the part of the Bank concerned and by their fault the complainant should not suffer a loss. So, according to him the complainant has able to prove his case of deficiency in service by cogent documents.
On the other the Ld. Advocate on behalf of the OP/Bank submitted that amount in question together with charge as imposed has already been credited in the A/C of the holder concerned and there was or is no wilful negligence on the part of the Bank concerned and it is the frequent features of the technical fault of the machineries and the banking authority had or has no control over it for which the Bank authority can not be held liable for such fault or construed as deficiency in service. In this regard a case has been referred with regard to Section 2 (1) (c) - Syp 15 relating to a decision of the case of Basudev Bhai Volji Bhai Patel Vs Manager, Bank of Baroda reported in (1993) 2 CPR 221 at 420 (Gujrat) gist of the said decision has been placed for appraisal.
“In the said decision under the caption dishonour of cheque it has been held where the complainant has issued a cheque of the Bank of Baroda payable to GSFC towards the installment of loan but on account of mistake of the Bank, the cheque was dishonoured and the payment could not be made to GSFC. The complainant has alleged that the non payment of the cheque in spite of fact that there was sufficient balance to cover the amount of the cheque amounts to negligence of the Bank. In any case there was a deficiency in service and therefore the Bank was liable for all the damages occurred to the complainant. The Respondent was directed to pay interest @ 18% on the amount of Rs.8,000/- from the date when the cheque was dishonoured till the date of which the amount was credit in the A/C of the complainant and also to pay Rs.500/- to the complainant for the pain and suffering”.
Here in the instant case though the full judgment was not placed but basic principles of law can be gathered that even if there was mistake in dishonouring the cheque it was held deficiency in service.
In the instant case similarly there is a clear cut admission on the part of the banking authority/OP that due to mechanical fault such mistake was committed.
Impugned cheque bearing No.517981 dated 01.01.09 payable to LIC Housing Finance Ltd. was not honoured on the reason insufficient of funds. The document also reflects as pointed out hereinbefore that additional interest from 01.01.09 till the payment by cash plus charges were imposed by the OP No.2 in their letter dated 27.01.09. The said letter does not reflect the quantum of interest as imposed. Obviously when interest was charged by the OP No.2 there was agreement by and between the parties on the basis of admitted interest to be imposed in terms of the agreement. Even then when the OP has been made a party to the instant case notice was served upon them they should come before the Forum declaring about the exact amount charged due to an effect for non payment of due installment in time or deprivation of the benefit as declared by the OP No.2 in case of House building loan. When the OP No.2 did not come before the Forum and did not challenge the case of the complainant legal position is the fact as stated remains unshaken. So, when the complainant has come before the Forum supported by affidavit and furnished relevant documents there is no reason to disbelieve the unchallenged case of the complainant with regard to the case of the OP No.2 and we are not in agreement with the view as expressed by the Ld. Advocate on behalf of the Bank that non-discloser of the alleged interest together with charge coupled with deprivation of benefit as given by the OP to suffer holders relating to the case of loan facility from the OP No.2 bears no merit.
Let us now consider the case of the complainant and defence thereof.
Admittedly, the impugned cheque dated 01.01.09 (Annexure-1) was dishonoured on 19.01.09 for insufficient fund (Exibit-2). From the Statement of A/Cs (Exibit-4) it reveals that the amount of Rs.2,000/- was debited against ECS UTIMF. By the effect of transfer to the said amount the balance amount then stands Rs.2,182/-. Subsequently, the amount of Rs.2,669/- covered by the impugned cheque can not be honoured on the ground as already reflected hereinbefore and the same cheque was returned to HDFC, the clearing agent and outward charge of Rs.113/- was levied and the said amount was deducted from the A/Cs of the holder on 19.01.09. It is true subsequently it was intimated about the wrong as committed by the OP No.1. The reason assigned by the OP No. 1 Bank is not substantiated by the any documentary evidence. It can be gatherer that such mistake was done due to wrong posting on the part of the employee concerned thereby such mistake took place and as such it is alleged such wrong/defect took place by way of mechanical defect. Until and unless it is posted to the respective A/C such type of mistake can not be done in the form of mechanical defect as alleged. But fact remains due to such commission of mistake on the part of the OP, Bank the complainant suffered and obviously pain and sufferings caused due to such mistake/fault on the part of the OP No.1.
Section 2 (1) (d) defines for Consumer. The nature of dispute comes under the purview of consumer dispute as defined under Section 2 (1) (e) of the Consumer Protection Act, 1986. Further when the OP No.1 did not perform their duty loss sustained for such mistake on the part of the OP No.1 such non-performance of duty comes within the definition of 2 (1) (g) and (o) of the said Act, 1986.
When service has not been provided with the complainant and loss sustained by the effect of such service it amounts to negligence on the part of the Bank. When deficiency of service under the law exists and it has been held hereinbefore the Bank is liable for damage/compensation.
In the instant case it is evident that Rs.2,000/- together with charge of Rs.113/- was already credited in the A/C of the complainant but no interest was paid to the complainant in his A/C despite holding wrong deduction from his A/C resultant with dishonour of cheque. So, obviously, the complainant is entitled to get interest for the said amount. After such deposit by way of reversal the interest is to be accrued automatically. So apart from the impugned period i.e. date of issuance of cheque i.e. 01.01.09 to the date of reversal 02.04.09 this Forum does not take to impose further interest on the said amount and if it will be allowed it means double benefit that can not be entertained. Further we are of the view that whether the complainant was habitual defaulter or not it is not within their scope to urge it when the OP No.2 has not come before the Forum to contest the case or say anything against the complainant such objection as raised by the OP No.1 Bank is not entertainable. But fact remains as already held due to their fault some sort of inconvenience took place due to the negligence on their part.
Under this facts and circumstances, in the light of my reasoning herein made the case of the complainant succeeds.
All the points are thus disposed of in favour of the complainant.
In the result the case succeeds in part.
Hence, it is,
O R D E R E D
that the Consumer Case No.16/S/2009 is allowed on contest in part against the OP No.1/Bank of Baroda with cost of Rs.500/- and the case be dismissed Ex-parte against the OP No.2/L.I.C. Housing Finance Ltd. but without cost.
The complainant is entitled to get an interest @ 9% p.a. on Rs.2,000/- from the date of issuance of cheque i.e. 01.01.09 to 02.04.09 and on Rs.113/- from the date as levied for outward charges i.e. 19.01.09 to 02.04.09.
The complainant is further entitled to get a compensation of Rs.500/- towards pain and suffering to be paid within one month from the date hereof.
The OP No.1/Bank of Baroda is directed to pay the awarded sum together with compensation and cost within one month from the date hereof failing which the complainant is at liberty to put the awarded sum in execution.
Let Xerox copies of this Judgment and Order be supplied to the parties free of cost.
