Tamil Nadu

South Chennai

CC/58/2013

Sathish Kumar - Complainant(s)

Versus

Canara Bank, - Opp.Party(s)

C.S.Vasan

13 Oct 2016

ORDER

   Date of Filing :   19.11.2012

                                                                      Date of Order :   13.10.2016

 

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM,CHENNAI(SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C.Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. B. RAMALINGAM M.A.M.L.,                     : PRESIDENT

                 TMT. K.AMALA, M.A. L.L.B.,                                 : MEMBER I

            DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

            

C.C.NO. 58 / 2013

THURSDAY THIS  13^TH DAY OF OCTOBER 2016

 

Mr. S.Satish Kumar,

14A Varadharaja Swamy Nagar,

Maduravoyal,

Chennai – 600 095.                                          ..Complainant

 

                                              ..Vs..

1.  The Manager,

Canara Bank,

Valasaravakkam Branch,

Arcot Road, Sri Sai Square,

Chennai 600 087.

 

2. The Manager,

HDFC Bank Ltd.,

115, 2^nd Floor,

Radha Krishnan Salai,

(opp) (S.I. Kalyani Hospital),

Mylapore, Chennai 600 004.

 

3. The Manager,

IFCI Financial Services Ltd.,

Continental Chambers,

3^rd Floor, 142,

Mahatma Gandhi Road,

Nungambakkam,

Chennai 600 034.                                             ..Opposite parties.    

 

 

For the Complainant               :    M/s. C.S.Vasan

For the opposite parties          :    M/s. V.V.Giridhar & P.Suresh.

 

 

Complaint under section 12 of the Consumer Protection Act 1986.  The complaint is filed seeking direction against the opposite parties  to pay a sum of Rs.50,000/- as compensation with interest and also to pay a sum of Rs.10,000/- as cost of the complaint to the complainant.

ORDER

THIRU. B. RAMALINGAM PRESIDENT

1.The case of the complainant is briefly as follows:-  

 

The complainant submit that he is having joint savings bank  account  in SB Account No. 2504101011345  in the name of himself along with  his sister namely S.Charulatha  in the 1^st opposite party bank.  On 21.08.2010 complainant deposited a cheque  bearing No.393902, for Rs.10,000/- drawn on the same branch  of 1^st opposite party and another cheque bearing No.608631 for Rs.25,000/- drawn on HDFC Bank,  Ashok Nagar Branch.  Among the said cheques the HDFC Bank cheques for Rs.25,000/- was alone credited in the account on 24.08.2010 after clearance, whereas the another cheque drawn on 1^st opposite party bank for Rs.10,000/- was credited only on 03.09.2010 in the account of the complainant.  Whereas in the mean time the cheque given by the complainant dated 01.09.2010 for Rs.21000/- in favour of IFCI Finance sales service Ltd., (3^rd Opposite party) which was presented  through the 2^nd opposite party HDFC Bank was returned by the 1^st opposite party as “insufficient fund” on 03.09.2010 to the 2^nd opposite party.  After representation made by the complainant, 1^st opposite party agreeing that the return of the said cheque was due to mistake on their part, had instructed the complainant to give another fresh cheque to the IFCI Finance sales service Ltd and accordingly the complainant also  given fresh cheque dated 06.09.2010 for Rs.21,000/- with letter given by the 2^nd opposite party and the said cheque was cleared by the 1^st opposite party on 09.09.2010.  The return of the cheque dated 01.09.2010 for Rs.21000/- issued by the complainant to the IFCI Finance Service Ltd., the 3^rd opposite party towards the purchase of share, on 03.09.2010 is due to the negligence and mistake on the part of the 1^st opposite party bank, though the same has been agreed by them the same amounts to deficiency of service on the part of the 1^st opposite party which has caused  the tarnishing  of reputation of the complainant  and made the complainant to suffer mental agony. As such the complainant sought for a sum of Rs.50,000/- as compensation with interest and also to pay a sum of Rs.10,000/- as cost of the complaint to the complainant.

Written Version of 1^st  opposite party is  in briefly as follows:

2.     The opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.   The 1^st opposite party submit that the complaint is barred by limitation as per Sec.24A of the Act.   On 21.8.2010 the complainant put into the collection drop box for Rs.35,000/- in  single challan for two cheques, one cheque of Rs.25,000/- bearing No.608631 drawn on HDFC bank and another cheque No.10,000/- bearing No.393902 drawn on Canara Bank, in which on the face of the challan, it was written clearly in two languages i.e. in Hindi and English that Separate slip should be made out of depositing cash and for each category of cheques viz. cheques drawn on the same branch / other local bank branches / each National Clearing Center (Mumbai, Calcutta, Chennai, New Delhi) and other outstation cheques”.    On receipt of the above cheque collected Rs.28,000/- through clearing and credited the amount on 23.8.2010 and returned the other cheque of Rs.10,000/- to the opposite party, as followed by the procedural rules at LPC.  The returned cheque was received by the opposite party on 3.9.2010 and immediately on receipt of the said amount of Rs.10,000/- credited to their account on the same day.    In the meantime complainant issued cheque to IFCI Financial Servies Ltd. Without verifying the balance in their account the same was presented on 3.9.2010, there was no sufficient balance in the account to clear the cheque issued to IFCI, hence returned unpaid on the same date forenoon and the above said proceeds of transfer cheque for Rs.10,000/- was credited much later on the same date i.e. 3.9.2010.   On 4.9.2010 the complainant came in person and had discussion with the opposite party, and informed that he may be losing the credit limit offered by the IFCI Financial Services and they will charge some penality also.  To avoid the above as well as to help the complainant the opposite party on 4.9.2010 immediately took up the matter with their service branch as well as with the service branch of HDFC to get back returned cheque therefore the said returned cheque was sent back to the presenting branch.   On 8.9.2010 complainant called opposite party and requested to issue a letter to prima-facie to convince IFCI Financial Services and to avoid charges being levied on him making it appear as though, opposite party had wrongly dishonoured the cheque.   Only at the request of complainant in order to help complainant to avoid any penalty being levied by IFCI opposite party was persuaded to issue the said letter.    Hence there is no deficiency in service on the part of the 1^st opposite party and the complaint is liable to be dismissed.

3. Written Version of  2^nd  opposite party is  in briefly as follows:

The 2^nd opposite party denies all the averments and allegation contained in the complaint except those that are specifically admitted herein.    The 2^nd opposite party is HDFC bank Limited, a banking company incorporated and registered  under the provisions of the Companies Act 1956, having its registered office at HDFC Bank House, Corporate office, Senapet Bapat Marg, Lower Parel, Mumbai and having its branch office at Mylapore, Chennai.    The 3^rd opposite party  IFCI Financial Services Ltd., had deposited a cheque No.397014 for Rs.21,000/- issued by  the complainant in their account No.00040340004737 with HDFC bank Ltd on 2.9.2010.   The cheque was presented for clearing on 2.9.2010 and was dishonoured by Canara bank on 3.9.2010 for the reason “Insufficient Funds”.    We had adhered to the process in line with our cheque collection policy and guideline of Reserve Bank of India and the complainant has no grievance or claim against HDFC Bank Ltd., the second opposite party and the complaint is liable to be dismissed.

4.     Even after receipt of the notice from this forum in this proceeding, the 3^rd  opposite party did not appear before this Forum and did not file any written version.  Hence the 3^rd opposite party was set exparte on 27.8.2013.    

5.   Complainant has filed his Proof affidavit and Ex.A1 to Ex.A7 were marked on the side of the complainant.   Proof affidavit of  opposite parties 1 & 2  filed and Ex.B1 to Ex.B6 were marked on the side of the opposite parties 1 & 2. 

 

6.      The points that arise for consideration are as follows:-

1.   Whether the opposite parties had committed  deficiency of

 service as alleged in the complaint?

 

2.   Whether the complainant is  entitled for the relief sought for

in the complaint?  If so to what extent ?

 

 

 

7.    POINTS 1 and 2 :

          Perused the complaint filed by the complainant, written version filed by the opposite parties 1 and 2 and the proof affidavits filed by complainant and opposite parties 1 and 2, the documents Ex.A1 to Ex.A7 filed on the side of the complainant and Ex.B1 to Ex.B6 filed on the side of 1^st opposite party and considered the arguments of the learned counsel appearing for the complainant and for the opposite parties 1 and 2.

8.     The 3^rd opposite party was remained exparte in this proceedings.

9.     There is no dispute that the complainant is having joint savings bank  account  in SB Account No.2504101011345  in the name of himself along with  his sister namely S. Charulatha  in the 1^st opposite party bank.  On 21.08.2010 complainant deposited a cheque  bearing No.393902, for Rs.10,000/- drawn on the same branch  of 1^st opposite party and another cheque bearing No.608631 for Rs.25,000/- drawn on HDFC Bank,  Ashok Nagar Branch through a single remittance form, as per Ex.A1.  Among the said cheques the HDFC Bank cheques for Rs.25,000/- was alone credited in the account on 24.08.2010 after clearance, whereas the another cheque drawn on 1^st opposite party bank for Rs.10,000/- was credited only on 03.09.2010 in the account of the complainant.  whereas in the mean time the cheque given by the complainant dated 01.09.2010 for Rs.21000/- in favour of IFCI Finance sales service Ltd., (3^rd Opposite party) which was presented  through the 2^nd opposite party HDFC Bank was returned by the 1^st opposite party as Insufficient Fund on 03.09.2010 to the 2^nd opposite party.  After representation made by the complainant, 1^st opposite party agreeing that the return of the said cheque was due to mistake on their part, and instructed the complainant to give another fresh cheque to the IFCI Finance sales service Ltd and accordingly the complainant also  given fresh cheque dated 06.09.2010 for Rs.21,000/- with letter given by the 2^nd opposite party (as per  Ex.A3 and Ex.A4,)  and the said cheque was cleared by the 1^st opposite party on 09.09.2010, as per the entry found in the accounts slip Ex.A2.   The set of documents filed on the side of 1^st opposite party Ex.B3 to Ex.B5 are also proves the same. 

10.    Whereas the complainant has raised grievance against the 1^st opposite party that the return of the cheque dated 01.09.2010 for Rs.21000/- issued by the complainant to the IFCI Finance service Ltd., the 3^rd  opposite party towards the purchase of share, on 03.09.2010 is due to the negligence and mistake on the part of the 1^st opposite party bank, though the same has been agreed by them the same amounts to deficiency of service on the part of the 1^st opposite party which has caused  the tarnishing  of reputation of the complainant  and made the complainant to suffer mental agony, as such the 1^st opposite party is liable to pay compensation to the complainant, accordingly claiming compensation also issued legal notice  to the 1^st opposite party Ex.A5, on receipt of the same the opposite party has given a reply denying the same under Ex.A6  and complainant has filed this complaint claiming compensation of Rs.50,000/- against the 1^st opposite party alone. 

11.    The 1^st opposite party has resisted the complaint, that the complainant has made  remittance of two different cheques, one was  drawn in the name  of 1^st opposite party bank and another in the name of different bank which is the 2^nd opposite party, which is not proper, since one has to be sent for collection and another was in the nature of transfer.  Complainant has  wantonly deposited said two different cheque in one remittance against the prevailing  practice of the bank  which was known to the complainant.   Due to the same the transferring amount in respect of the cheque remitted for Rs.10,000/- was delayed in crediting the same in the account of the complainant on 03.09.2010,   due to the said circumstances the cheque for Rs.21,000/- dated 01.09.2010 said to have been issued by the complainant in favour of 3^rd opposite party  and was presented for clearance through the 2^nd opposite party was returned on 03-09-2010 as at the time of attending clearance of the said cheque, on the basis of available balance as insufficient funds since the Rs.10,000/-  was credited  in the said account, later on the same date.  However on the representation made by the complainant on 04.09.2010, in order to help the complainant as their customer and to help the complainant not to lose the credit limit offered by the 3^rd opposite party and to avoid penalty if any   for the amount pertaining to  the  return cheque, immediately on the same day, took up the matter with their service branch as well as with the service branch of HDFC to get back the returned cheque therefore the said returned cheque was  sent back to the presenting branch.  The opposite party further stated  that on 08-09-2010  complainant called opposite party and requested to issue a letter to prima-facie to convince IFCI Financial Services and to avoid charges being levied on him making it appear as though, opposite party had wrongly dishonoured the cheque.  Only at the request of complainant, in order to help complainant to avoid any penalty being levied by IFCI, opposite party was persuaded to issue the said letter.  Accordingly the fresh cheque No.397017, dated 09.09.2010 issued by the complainant for Rs.21,000/- was cleared on the same date and debited in the account of the complainant as per Ex.A2 = Ex.B5,  Contrary to this the complainant has issued legal notice after 2months of the said event and the same was suitably replied to the complainant, which is not proper on the part of the complainant.  Further contended that  the said events i.e. the actual cause of actions are relating to the month of  September 2010  whereas the complainant has filed this complaint on  19.11.2012  onthe basis of the date of reply given by the 1^st opposite party  is not proper and  not within the 2years of limitation under Sec 24A of the  Consumer Protection Act 1986, as such, the complaint is  barred by limitation also and  to be dismissed as not maintainable. 

12.    The 2^nd opposite party in this proceedings as contested the proceeding by engaging counsel and filing written version and filing proof affidavit, as per the complaint, no allegation made and no relief has been sought for against the 2nd opposite party, we are of the considered view that the case of the 2^nd opposite party put forth in this proceeding is need not be considered. 

13.    As far as 1^st opposite party’s  contentions as mentioned above  are concerned, the 1^st opposite party  has fairly admitted and acted upon immediately on the representation made by the complainant with regard to the returned  cheque for Rs.21,000/- issued by the complainant in favour of 3^rd opposite party on  03.09.2010, whereas the said contention are not specifically denied by the complainant in this proceeding.  Therefore we are of the considered view though the 1^st opposite party bank as committed mistake by returning the said cheque for Rs.21,000/- issued by the complainant in favour of 3^rd opposite party dated 01.09.2010,  on 03.09.2010,  immediately on the representation made by the complainant and in presence of the complainant all necessary steps required to be taken by the 1^st opposite party were taken sincerely in an abrupt manner and have even went to the extent of giving suitable letter to the 3^rd opposite party in order to preserve the interest of the complainant and the things were set right.  Therefore what the service provider is expected under Consumer protection act was done by the 1^st  opposite party to the complainant who is the consumer when the mistake done by them were brought to their knowledge.  Therefore we are of the considered view  that the 1^st opposite party not have committed any deficiency of service as alleged by the complainant in the complaint. 

14.    Further in support of the opposite parties contention in this regard the learned counsel appearing for the 1^st opposite party relied upon the decision of the  Hon’ble National Consumer Disputes Redressal Commission, New Delhi, rendered in 

Appala Venkata Nag Durga Srinivas

– Vs –

The Manager, payment Assistance Unit, SBI Cards & Payment Services Private Ltd., & Anr  -

reported in 2014 (2)  CPR 347 (NC) 

in which it is held that

“Complainant should not be allowed to take undue benefit of inadvertent small mistakes”.

 

The said decision is squarely applicable in this case in support of the contention made by the 1^st opposite party. 

15.    Further it is also pertinent to mention that as contended by the 1^st opposite party the alleged fact of the case and the events thereon were taken place in the month of September 2010, which are considered to be a actual cause of action for this complaint.  If so, this complaint would have been filed within 2 years i.e. in the month of September 2012.  But this complaint was filed only on 19.11.2012, which is after expiry of 2 months.  No petition to condone delay and necessary order was obtained by the complainant under sec 24A.  The citation relied upon by the opposite party in support of their contention,  which is reported in IV 2014 CPJ 509 (NC) the decision of Hon’ble National Consumer Disputes Redressal Commission, New Delhi in the case

Richard Raja Singh (DR) & Ors

-Vs-

Ford Motor Company Ltd., & Anr

in which it is held that

“…..  neither service of notice nor opposite parties response to notice gave rise to any fresh cause of action- Provision of Sec 24A of the Act being mandatory and rather pre emptor in nature – This commission has no jurisdiction to entertain complaint after expiry of prescribed period of limitation – Complaint barred by time”

as such this complaint filed on the basis of exchange of notices between the parties is not considered to be in time is acceptable. 

16.    Therefore, this complaint filed by the  complainant  is  barred by limitation of under sec 24A of the Consumer Protection Act 1986 and liable to be dismissed on this ground also is acceptable. 

 

17.    Therefore as discussed above we are of the considered view that the deficiency of service attributed by the complainant against the 1^st opposite party is not proved and the complaint also not filed in time and barred by limitation as such, the complainant is not entitled for any relief sought for and the complaint is liable to be dismissed against the 1^st opposite party. No order in respect of the 2^nd and 3^rd opposite parties.  Considering the facts and circumstances of this case, the parties must bear their own cost.

        In the result, this complaint is dismissed.  No costs.

Dictated to the Assistant transcribed and typed by her corrected and pronounced by us on this the  13^th    day  of  October   2016.

 

MEMBER-I                    MEMBER-II                             PRESIDENT.

Complainant’s Side documents :

Ex.A1- 1.9.2010  - Copy of Cheque No.397014.

Ex.A2-                    -  - Copy of Canara Bank’s Memorandum to HDFC,

Ex.A3-                    -  - Copy of letter from the complainant to the opposite party.

Ex.A4- 8.9.2010  - Copy of Canara Bank to IFCI.

Ex.A5- 4.11.2010  - Copy of legal notice from the complainant to the opposite party.

Ex.A6- 19.11.2010 – Copy of reply notice from the opposite party.

Ex.A7- 13.12.2010 – Copy of IFCI Financial Statement.   

                    

Opposite parties’ side documents: -    

 

Ex.B1-  4.11.2010    - Copy of legal notice from the complainant to the opposite party.

Ex.B2- 19.11.2010   - Copy of reply notice from the opposite party to the complainant.

Ex.B3- 19.8.2010     - Copy of cheque bearing No.393902 deposited along with HDFC

                                bank cheque.

 

Ex.B4- 21.8.2010    - Copy of challan where filed up with two cheques of different

                               category.

 

Ex.B5-                    -        - Copy of Bank Statement of accounts for the period from

                                  1.1.2010 to 16.7.2013.

 

Ex.B6-                    -        - Copy of General power of attorney.

 

 

MEMBER-I                    MEMBER-II                             PRESIDENT.