Delhi

North

CC/142/2017

RAJ RANI KATHURIA - Complainant(s)

Versus

BRANCH MANAGER - Opp.Party(s)

06 Dec 2022

ORDER

Consumer Complaint No. CC/142/2017

 

In the matter of

Ms. Raj Rani Kathuria

W/o Late Sh. R. L. Kathuria

R/o D-35, Malka Ganj

Delhi-110007                                                                            ..........Complainant

vs

Branch Manager

Central Bank of India

B/o Kidar Building

Subzi Mandi

Delhi- 110007.

                                                                                                ....Opposite party

ORDER
06/12/2022

Ms.Harpreet Kaur Charya, Member

          Jurisdiction of this Commission has been invoked by Smt.Raj Rani Kathuria, the complainant against the Branch Manager, Central Bank of India, the Opposite Party (OP) with the allegation of deficiency in services and unfair trade practice. 

          Facts necessary for the disposal of the present complaint are that, the complainant , a senior citizen has been maintaining account No.1138153409 with OP.  On 29/06/2015, a cheque for Rs.5,00,000/- was issued by the complainant to her grand-daughter namely,    Ms. Bagisha Kathuria, for meeting expenses and preparation of higher education.  The said cheque got dishonoured on account of “funds insufficient”, despite the fact that there were sufficient fund in the account of the complainant on 25/06/2015.

          It has been stated by the complainant that Letter dated 09/09/2015 was sent to OP on behalf of the complainant, which was not properly attended.  The complainant has further stated that dishonour of cheque has not only resulted in loss of honour and reputation of the complainant, causing mental agony and harassment but also resulted in waste of one year of post graduate examination of her grand-daughter for which the OP is liable to pay compensation and damages. The prayer clause from the complaint is being reproduced as under:-

1. Condone the delay, if any
2. Register the present complaint
3. Exercise the power conferred under Section 13(4) of the Act, to call for and examine the records to ascertain the facts on record.
4. Hold the opponent guilty of negligence, deficiency in services, professional misconduct, adoption of unfair trade practices, dilatory tactics and malpractices making false promises, giving false and misleading information, furnishing incorrect, misleading, untrue and false statements, etc. and also for adopting dilly delaying tactics in resolving the issues and punish, penalize and fine them severely in accordance with the law for committing such misconducts and pass any other necessary strictures against the opponents.
5. Direct the opponent to pay Rs.4,00,000/- with interest @24%.
6. Direct the opponent to pay compensation of Rs.2,00,000/- for deficiency of services.
7. Direct the opponent to pay sum of Rs.2,00,000/- towards litigation cost of this petition.
8. Direct the opponent to pay a sum of Rs.2,00,000/- towards the physical strain financial harassment and mental agony suffered by the complainant and her family members.
9. Damages/exemplary damages/punitive damages of Rs.8,00,000/- may please be granted to my granddaughter.
10. Pass such further or other orders as this Hon’ble court deems fit and proper in the facts and circumstances of the case.

          An application under Section 5, of the Limitation Act, seeking condonation of 01 (one) day delay in filing of the complaint has also been moved by the complainant. 

          The copy of the passbook and the mail dated 10/09/2015 written on behalf of complainant to Branch Manager to Central Bank of India, Mumbai main office have been annexed as Annexure-I and Annexure-II respectively.

          Initially, vide order dated 19/12/2017, OP was proceeded Ex-parte as none appeared on behalf of OP despite service.  However, as per order dated 07/06/2018:-

“Present :Complainant in person a/w her son Sh.S.N.Kathuria and Sh.Arun Kumar, counsel for complainant.

OP (Ex parte)

During the course of argument, it was found that certain clarification are needed with regard to the operation of the Bank account involved in the present case.  Therefore, issue notice to Branch Manager of the concerned Bank for 12/07/2018. Put up for FP on the date fixed.”

 

Upon service, written statement on behalf of OP was filed, where they have taken preliminary objection that the complaint was barred by limitation; no sufficient cause has been explained by the complainant for the delay in filing the complaint.

They have submitted that Mr. S.N.Kathuria, the son of the complainant, an ex-staff of the Central Bank of India, was terminated from his job when he was found guilty of a financial offence.  On 23/06/2017, a settlement in respect of job fund etc was made by Central Bank of India against Mr. S. N. Kathuria, for which an amount of Rs. 13,37,207/- was credited to his O.D account No.1131106046 on account of PF settlement  without bank holding rights due to the bank staff’s mistake. There was an outstanding loan of Rs.4,36,162/- on 23/06/2015 in the name of Mr.S.N.Kathuria.

It has been further submitted that on 24/06/2015, Mr.S.N.Kathuria transferred Rs.5,00,000/- and Rs.2,00,000/- to the account of the complainant with malafide intention.  On 26/06/2015 account of the complainant was debited to set off the loan account of her son, Mr.S.N.Kathuria  in the following manner :-

a.   Rs.1,42,054/- were debited on 26/06/2015 through debit voucher dated 26/06/2015 from the account of the complainant to the credit of PF loan account of Sh.S.N.Kathuria.

2. Rs.2,94,108/- were  debited on 26/06/2015 through debit voucher from the account of the complainant to the credit of vehicle loan account of Sh.S.N.Kathuria.

It has been stated that subsequently on receipt of arrears of payment to the credit of Sh.S.N.Kathuria’s account, an amount of Rs.1,42,054/- was reversed and credited to the account of the complainant on 11/09/2015.

The complainant issued a cheque bearing No.170357 for Rs.5,00,000/- with the knowledge that there was insufficient amount in her account and the cheque was dishonoured on 29/06/2015 vide bank returning memo with remarks “fund insufficient”.They have stated that on 27/06/2015 the total amount in the account of the complainant was Rs.1,01,189/- which was much less than the amount of cheque issued by the complainant. Rest of the contents of the complaint have been denied.

They have annexed the copy of bank account statement of Mr.S.N.Kathuria as Annexure P-1, copy of bank account statement of Mrs.Raj Rani, the complainant as Annexure P-2.  Copy of the Debit vouchers dated 26/06/2015 are Annexure P-3 & Annexure P-4.

Rejoinder to the written statement was filed by the complainant where the contents of the written statement have been denied and those of the complaint have been reiterated.  It was denied that Rs.1,42,054/- were credited to the account of the complainant  on 11/09/2015.

It was submitted that OP could not claim the amount from complainant which was due against Sh. S. N. Kathuria, as OP was the custodian of the account of the complainant and could not act without the consent of the complainant.  Rest of the contents of the written statement have been denied and those of the complaint have been reiterated and reaffirmed.

Evidence by way of affidavit was filed by the complainant, Smt. Raj Rani Kathuria who has deposed on oath the contents of the complaint. She has relied on the copy of the account statement/passbook and has got the same exhibited as Ex.CW1/1 to show that there were sufficient fund in the account. Copy of Aadhar card and voter I-card have been exhibited as Ex.CW1/2 and Ex.CW1/3 respectively.

OP have got examined Sh. Ajay Kumar Goel, Senior Manager posted at Subzi Mandi Branch and also the Authorised Representative of the OP. It has been deposed that Mr. S. N. Kathuria was an ex-staff of the Central Bank of India and was terminated from his job when he was found guilty in financial offence.  Copy of Administrative Order dated 06/04/2015 is exhibited as Ex.OPW1/1.  They have stated that an amount of 13,37,207/- was credited on 23/06/2015 to the O.D. account No.1131106046 as PF settlement of        Sh. S.N.Kathuria, copy of the bank account statement of Mr. S. N. Kathuria has been exhibited as Ex.OPW1/2. They have further deposed on oath the contents of their written statement and have got exhibited copy of bank account statement of Ms. Raj Rani as Ex. OPW-1/3.  Debit voucher for Rs.1,42,054/- and Rs.2,94,108/- for the date 26/06/2015 have been exhibited as exhibit Ex.OPW1/4 & Ex.OPW1/5 respectively. 

We have heard the arguments on behalf of Ld. Counsel for the complainant and Ld. Counsel for OP and have also gone through the written arguments filed on behalf of the parties.  

Firstly, deciding on the preliminary issue with respect to limitation.It is to be seen whether the present complaint has been filed within two years from the date on which the cause of action has arisen as prescribed under Section 24A, of the Consumer Protection Act, 1986.The complainant has filed an application for condonation of delay of 1(One) day in filing of the complaint with the cause of delay, that the complainant was sick and bedridden.

In the reply filed on behalf of OP to the said application, it has been stated that Section 5 of the Limitation Act is applicable only on “Appeal and Application” and there was specific provision with respect to limitation period under Section 24A, of the Consumer Protection Act, 1986, where the prescribed period of limitation is two years from the date on which the cause of action has arisen.  It was also stated that the complainant had not filed any documentary evidence to show the sufficient cause for delay in filing the complaint.

We have gone through the contents of the application and reply thereof. The cause of action had arisen on 29/06/2015, when the cheque issued by the complainant got dishonoured and charges of Rs.450/- (Rs.395/- for cheque dishonour + Rs. 55/- as service tax) were debited from the account of the complainant and cheque returning memo is also of even date. As per record, the date of institution of the present complaint is 30/06/2017.  As per section 24A, of the Consumer Protection Act, 1986, the present complaint should have been filed on or before 28/06/2017.

 It is well settled principle of law that hyper technical approach should not be adopted while following the principles of natural justice. Hon’ble Supreme Court in “Hemlata Verma vs. M/s ICICI Prudential Life Insurance Co. Ltd. &Anr.” CA No.5131 of 2019 (arising out of SLP(C) No.14278 of 2019, observed that:-

9. We may consider it apposite to observe that the commission while declining to condone the delay placed reliance on the decision of this court in Ramlal vs. Rewa Coalfields Ltd., AIR1962SC361. However, the later decision of this court in Collector, Land Acquisition, Anantnag & Anr. Vs. Mst. Katiji & Ors, (1987) SCC 107 has held that in matter of condonation of delay, the court should take liberal view. In our view, the commission should have, therefore, taken note of subsequent decisions of this court on the issue of condonation of delay”

Similarly, in “ Santosh Goyal v/s Union of India & Ors” SLP(C)12199/2013 it was held by Hon’ble Supreme Court that :-

“Taking into consideration the nature of the case, we are of the view that the impugned order be set aside and the matter should be remanded back to the District Forum for suo motu exercising power under proviso to Section 24A (2) of the Consumer Protection, 1986 and condone delay of 9 days”

Thus, relying on the above mentioned judgement we suo motu condone one day delay in filing the present complaint and the issue of limitation is decided in the favour of the complainant and against the OP. 

Now, coming to the merits of the present complaint.  The dispute pertains to the debit entries dated 26/06/2015 for Rs.1,42,054/- and Rs.2,94,108/- in the account No.1138153409 maintained by the complainant. The entries as per Ex.-OP-W1/3 are as under:-

Value date	Post date	Details	​ Chq. No.	Debit	Credit	Balance
24/06/2015	24/06/2015	BY TRF TRF FROM 01131106046			2,00,000.00	7,37,745.85 Cr
26/06/2015	26/06/2015	INWD CLG  170358 BAGISHA KATHURI	​	2,00,000.00		5,37,745.85 Cr
26/06/2015	26/06/2015	TO TRF. Closure TRF TO 03240486458		1,42,054.00		3,95,691.85 Cr.
26/06/2015	26/06/2015	TO TRF. Closure TRF TO 03238973149		2,94,108.00		1,01,583.85 Cr.
29/06/2015	29/06/2015	Funds  insufficient	170357
29/06/2015	29/06/2015	CHQDISHONOUR		395.00		1,01,188.85 Cr.
29/06/2015	29/06/2015	Service Tax		55.00		1,01,133.85 Cr.

          If we look at entry dated 24/06/2015, the balance in the account of the complainant is Rs.7,37,745.85 and on 26/06/2015 the balance is Rs. 5,37,745.85.It has been admitted by OP that the two debit entries dated 26/06/2015 of Rs.1,42,054/- and Rs.2,94,108/- were done to settle the dues of Mr.S.N.Kathuria, the son of the complainant.  The OP has placed nothing on record to show that either they had the authority or any rules/regulations which authorised them to debit the account of the complainant and settle the same against the account of Mr.S.N.Kathuria without the consent of the complainant. 

          Since, OP had no authority to recover the dues against the account of Mr.S.N.Kathuria from the account maintained by the complainant; OP has definitely exceeded their authority. Even, if assuming there were certain dues against Mr.S.N.Kathuria, same could be recovered by OP by following due process of law.

 Therefore, in the fact and circumstance of the present complaint we hold that the arbitrary act of the OP of illegally debiting the account of the complainant, which resulted in dishonour of the cheque, definitely amounts to deficiency in services.

          As, OP has contended that amount of Rs.1,42,054/- had been credited to the account of the complainant on 11/09/2015 which is supported by the entry in the statement of account of the complainant. The complainant was deprived from the utilisation of the said amount from 26/06/2015 to 11/09/2015; therefore, we direct OP to pay interest @7% p.a for that period.

          Though, the complainant has prayed for a compensation of Rs.2,00,000/- each for deficiency in services and financial harassment and physical strain alongwith Rs.8,00,000/- as damages/punitive damages for her grand-daughter, however, no document has been placed on record to substantiate their claim.  Therefore, we deem fit that a lump sum compensation of Rs.50,000/- on account of mental harassment and deficiency in services is just and equitable in the interest of justice. 

This order be complied within 30 days from the receipt of this order else Rs.50,000/- shall carry interest @9% p.a. from the date of order till realisation.

          Office is directed to supply the copy of this order to the parties as per rules.  Order be uploaded on the website also.  Thereafter, file be consigned to the record room.