Delhi

StateCommission

A/11/99

MADHU GOEL & J.P. GOEL - Complainant(s)

Versus

CANARA BANK - Opp.Party(s)

08 Sep 2017

ORDER

IN THE DELHI STATE CONSUMER DISPUTES REDRESSAL, COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

Date of Argument :08.09.2017

Date of Decision :11.09.2017

First Appeal No.99/2011

IN THE MATTER OF:

 

Smt. Madhu Goel,

and Shri  J.P. Goel,

  B-43/F-1, Dilshad Garden,

Delhi-110095.                                                                                   ……Complainant

                                                                        Versus

 

Senior Manager,

Canara Bank, Sikka Chambers,

Dilshad Garden, Delhi-95.                                                            ….Opposite Party

 

 

HON’BLE SH. O.P.GUPTA, MEMBER(JUDICIAL)

HON’BLE SH. ANIL SRIVASTAVA, MEMBER

1.     Whether reporters of local newspaper be allowed to see the judgment?                    Yes/No

2.      To be referred to the reporter or not?                                                                     Yes/No

Present:        Shri Prem Chand, Counsel for the LR’s of the complainant no.1

                        and Complainant no.2.

                        Shri Manoj Kumar Arora, Counsel for the respondent.

 

PER  : SHRI ANIL SRIVASTAVA, MEMBER

          The whole controversy in the matter centers around the question whether the bank was negligent and found wanting in the discharge of their duty in not rendering service required of them, in issuing to its account holder, a cheque book containing one leave short or the account holder was not  sufficiently careful  and vigilant, keeping the said cheque book proper and secured, leading to its misuse, causing financial loss. The Distt, Fora where the complaint was originally filed found no faults or  inaction on the part of the Bank. Assailing the decision of the Distt. Fora the appeal has been preferred in this Commission under Section 15 of the Consumer Protection Act, 1986.

          Facts of the case, necessary for the disposal of the appeal, are these.

          Smt. Madhu Goel and Shri J.P. Goel, resident of Delhi, for short appellants, are unsuccessful complainants. This appeal is directed against judgement dated 04.02.2011 passed by the District For a, North, East, Delhi in the complaint number 14712010, against the Senior Manager, Canara Bank, hereinafter referred to as respondents, whereby the complaint was dismissed.

          The complainant/ appellant filed the complaint before  the Distt. For a, claiming Rs.25,000/- with 24% interest from the date of alleged illegal and fraudulent withdrawal thereof and heavy compensation for harassment , mental agony and such  other relief as deemed fit.

          The case of the appellant is that they opened  a joint saving ank account in Canara Bank, bearing no.1937 with the option of either or survivor operation. An amount of Rs.,25,000/- was deposited, which amount was withdrawn allegedly by fake person by forged cheque with the forged signature. The said amount was illegally withdrawn through cheque no.353831. The  allegation is that the said amount was neither withdrawn by them nor anyone was authorized to do so in this behalf. It is their further case that they had applied for a cheque book which was issued containing ten leaves bearing numbers 353831 to 40 on 15.10.2007. On that day itself the amount so deposited was withdrawn by some one with the name as Amit Gupta by putting the signatures on the face of the cheque of Madhu Goel, twice and on the back of the cheque as Madhu Goel and Amit Gupta whereas all the transactions were made by the appellant/ complainant through the signatures of Jagat Prakash Goel only. Besides the signasture put on the cheque in question bearing number 353831 dated 15.10.2007 did not tally the signatures of either Madhu Goel or Jagat Prakash Goel.

          The appellants/ complainants had thereafter filed a complaint before the Distt. Fora praying fora direction to the bank to credit the amount withdrawn by someone unauthorizedly forging the cheque. The bank in their written statement has averred that the complaint so filed is not maintainable as there is no cause of action against the bank. The bank has alleged that the complainants have not been  able to  explain how the leave of cheque  book bearing number 353831 could reach in the hands of the third person. The bank had cleared the cheque on its presentation by the employee of the complainants. The bank with regard to the averment that the cheque in question was missing when issued has strongly averred that the cheque  book was issued to the employee of the complainants on the authorization issued by them and the said authorized person was under an obligation to check before taking that away from the bank. Moreover the complainants also never complained receiving the cheque book one short of a leave. The bank has pointed out that the money was withdrawn using the cheque issued to them through their  duly authorized employee  and allegation regarding withdrawl of the amount using forged cheque is an after thought Bank has done its duty as per the practice and as  per norms.

          The Distt. For a,  observing that the complainants are at fault not reporting to the bank about the issuance of the cheque book with one short leave, dismissed he the complaint vide their order dated 4^th February 2011, the order which has been impugned herein, in  this appeal.

          The specific  gravaman  of the appellant is that the ld. Distt. For a has disposed of the complaint without seeking from the Bank, expert report in respect of the forged signatures on the cheque no.353831, nor  the report of the Govt. Examiner of Questioned Documents, Shimla, vital for arriving at the conclusion regarding the  forged documents, was considered while passing orders in the complaint.

          Their next ground is that the instrument carried the signature of Madhu Goel while in all other cases the transaction was done by Jagat Prakash Goel and this aspect the Bank ignored to consider.

          The bank was initially noticed and in response thereto they have filed their reply reiterating what they had stated in their reply to the complaint before the Distt. Fora.

          During the pendency of the appeal in this Commission one of the  complainant, namely, Smt. Madhu Goel, passed away on 02.10.2013 and on an application being moved, LR was allowed to step in, recording no  of the other side.

          The matter was listed before us the final hearing on 08.09.2017 when counsel for both sides appeared and advanced their arguments. We have perused the records of the case. Both the counsel had taken us to the pleadings, the appellant/ complainant alleging that they have been cheated, one, because  the bank has been found to be negligent in issuing a cheque book with one short of a leave and, second, using that missing cheque for withdrawal of an amount of Rs.25,000/- with  the connivance of the bank official. The respondent on their part have strongly contended   that the cheque book issued to the complainants contained ten leaves. The cheque book was issued to a person authorized  by the account holder. It is incumbent on the person taking the cheque book to ensure that the instrument so issued is in  order and complete in all respect. No complaint was made by the person taking the cheque book on the authorization of the account holder and thus presumption is that the instrument issued to the authorized person was in order.

          Secondly the alleged misuse of the leave bearing number 353831 was done by the person taking the cheque as he presented the cheque  of an amount of Rs.25,000/- duly signed by one of the two persons holding the account, and they having found no encumbrance, passed the cheque for payment. The averment that Ms. Madhu Goel had put her signature while in all other transactions signature of Jagat Prakash Goel was done, does not carry conviction because the saving bank account was in the joint name with the option of either / or.

          We have given our careful consideration to the arguments presented from both sides. We have read and re-read the impugned order. Apparently we do not find any infirmity in the orders passed by the Distt. For a since the action of the Bank suffered from no illegality or irregularity.

          The Hon’ble  NCDRC in the matter of United Commercial Bank vs. Mahendra Popatlal Vora – II (1995) 1 CPR 242 held as under:-

“The cheques, in that case, were sent to the Chief State Examiner of documents, CID, for his export opinion who reported that that signatures revealed intense pictorial identity and on comparison with the admitted signatures they revealed resemblance. The conclusion was that the signature were forged. It was held that the Bank could not be held guilty of negligence simply because an ultraviolet ray had not been kept for examining cheques and that the bank was liable to honour the cheque and make payment in due course in accordance with the apparent tenor of the instrument in goods faith and without  negligence. While, allowing the bank appeal and dismissing the complaint, the National Commission summed up  that the law imposes the duty on the bank only to exercise in good faith, such case and diligence as is reasonably possible under the ordinary circumstances when a chqeue is presented for payment that having regard to practical realities and the facilities available in the bank in our country,  the official of the bank who did not employ high-tech methods such as comparison of the signature under ultraviolet ray lamp or did not send he instruments for opinion of an hand writing expert, would not constitute negligence in the eyes of law.”

          There is another aspect in the matter. The complainants never reported the matter to the police. The complainant could not  establish as to how the cheque no.353831  could be used by a third person. The AP State Commission in the matter of M/s. Sreekara Textile Pvt. Ltd. Vs. HDFC Bank in FA 337/10 has hold that

“When the complainant could not establish that the cheque was forged nor explained the circumstances’ under which he parted the cheque,  which allowed a third party to receive the amount, it cannot  be said that the bank was guilty of any negligence. It cannot be  termed as deficiency in service. The complainant intended to collect the amount from the bank, which he could not have otherwise collected from their accountant. We do not see any merit in the appeal.

          In yet another matter the National Commission in the matter of “Prempreet Textile Industries Ltd. Vs. Bank of Baroda & Ors. III (2006) CPJ 218 (NC) – it was held that :

“When there was no occasion to doubt the genuineness of the cheque, the fact being the representative accompanied  the account holder, passing of the cheque cannot be termed as negligence or deficiency”.

          Keeping in view  the facts an d circumstances of the case, we are of the considered view that the complainant were not sufficiency vigilant, as is required of them, in keeping the cheque book proper and secured. Bank was never found guilty of any negligence, nor found wanting in rendering proper service to its account holder. Having regard to this, finding no infirmity in the orders passed by the Distt. For a, we dismiss the appeal, leaving parties to bear the cost.

          Before parting from the case, there is another aspect to look into the case. The Hon’ble Apex Court had an occasion to consider, what kind of dispute could be decided by the Consumer Fora,  and under what circumstances the Consumer For a should restrain itself from deciding the case and issuing directions to the parties to approach the Civil Court. In the matter of Synco Industries vs. State Bank of Bikaner and Jailpur & ors- AIR 2002 SC 568 – their  Lordships Observed

“Given the nature of the claim in the complaint and the prayer for damages in the sum of Rs.15 crore and for an additional sum of Rs.60 lakhs for covering the cost of travelling and other expenses incurred by the appellant, it is  obvious that very detailed evidence would have to be led, both to prove the claim and thereafter  to  prove the damage & expenses.  It is therefore in any event not an appropriate case to be heard and disposed of in a summary fashion. The National Commission was right in giving to the appellant liberty to move the civil court. This is an appropriate claim for the Civil Court to decide and obviously was not filed before a civil court to start with because before the Consumer For a, any figure in damage can be claimed without having to pay court fee. This, in that sense, is an abuse of the procees of the Consumer Forum”.

          Having regard to this, matter, requiring testimony of evidence, should have been filed before the civil court. This is yet another ground for the dismissal of the complaint.

          We order accordingly.

Copy of the order be sent to the parties to the case free of cost as required statutorily and to the Distt. For a for information and record.

          File be consigned to records.

 

(ANIL SRIVASTAVA)                                                 (O.P.GUPTA)

MEMBER                                                            MEMBER (JUDICIAL)