PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is a Company incorporated under the Indian Companies Act, 1956. On or about 02/06/1990, the Complainant had opened a Current Account bearing No.CD110956 with Opposite Party Bank at their Cuff Parade Branch.
2) It is case of the Complainant that on 03/03/1995, the Complainant appointed one Mr. Ramavtar A. Soni as the Accounts Manager and was in-charge of finance and account of the Complainant Company till his termination in the year 2001. On 16/02/1997 on reference of said Sony – Mr. Manoj Asawa was appointed as a Cashier of the Complainant Company and all the banking operations and cash transactions were handled by him with Mr. Soni, as his senior.
3) About in the month of April, 2001, the Complainant noticed some discrepancy in the bank account to the tune of Rs.4,50,000/-. The said discrepancy could not be discovered during the audits because main culprits were in-charge of the finance and accounts. It was only later that discrepancy in the account was found which Mr. Soni & Mr. Asawa could perpetuate taking advantage of the functional lacuna of the Opposite Party Bank. The Complainant filed a policy complaint against its employees Mr. Asawa and Mr. Soni with Cuff Parade Police Station and both were arrested by the police. The Opposite Party Bank had assured to cooperate with the investigation. Mr. Manjoj Asawa admitted that he had forged signature of Mr. Anoop Bhimrajaka one of the Directors of the Complainant on the cheques and deposited amount in his own accounts which he had managed to open in the same branch as that of the Company i.e. both at Nariman Point as well as Cuff Parade. The Complainant has produced confession statement of Mr. Ramavtar Soni alongwith its English translation at Exh. ‘A1’ & ‘A2’. During the course of investigation, it was revealed that Mr. Asawa and Mr. Soni had opened their personal accounts in the same Opposite Party Bank and then they withdrawn the amounts fraudulently using the Company cheques and transferred money into their respective accounts. According to the Complainant, their aforesaid two employees have done the aforesaid fraudulent act by taking into confidence the Bank staff, as signatures on the cheques appears on the face of it forged. It is alleged that Opposite Party acted negligently and allowed and/or facilitated the encashment of this 6 forged cheques between the periods of 22/04/2000 to 20/03/01 from the Complainant’s aforesaid account. Total amounts of Rs.4,50,000/- was withdrawn from Complainant’s account on the basis of forged 6 cheques. The Complainants have produced xerox copies of forged cheques at Exh. ‘B1’ to ‘B6’ .
4) The Complainant by its letter dtd.18/09/2001 informed Assistant General Manager of Opposite Party about the wrongful payment of 6 forged cheques amounting to Rs.4,50,000/-. The Complainant also informed Opposite Party that forgery of the cheques was referred to a well known Handwriting Expert- Mr. Mahesh Wagh, who examined the said signature and given his opinion dtd.08/09/2001 that the signatures on the cheque in question clearly do not appear to be that of authorized signatory. Copy of the report of Handwriting Expert is produced at Exh.‘C’. the Complainant has called upon Opposite Party to make goods the loss by their letter dtd.18/09/01. There was no reply from the Opposite Party. So the Complainant on 17/10/01 wrote a letter to Assistant General Manager of Opposite Party. Opposite Party by their letter dtd.24/10/2001 acknowledged receipt of Complainants letter dtd.17/10/01 and assured that they are ready to cooperate with the policy authority in their investigation but failed and neglected to reply to Complainant’s query of reimbursement of the amount.
5) By letter dtd.29/01/02, the Complainant again reminded the Opposite Party and requested them to reimburse an amount of Rs.4,50,000/- but there was no reply or any action on the part of Opposite Party. Opposite Party has not replied to a single letter sent to them from dtd.24/10/01 and 24/11/04. On 11/10/04, again the Complainant wrote a letter to the Assistant General Manager, Cuff Parade Branch and brought to the notice of the Opposite Party all the facts and their grievances. Copies of the said letters were sent to 1) Vice-President Operations (Indian Banks’ Association), 2) The Chairman (Central Bank of India) and 3) The Banking Ombudsman, etc. The Opposite Party vide their letter dtd.24/11/04 acknowledged receipt of aforesaid letter but kept quite on the issue of whether any action was taken on the employees of the bank or not.
6) It is averred in the complaint para no.9 that Opposite Party have not till date denied their liability towards the Complainant Company but have not paid amount of Rs.4,50,000/-. Therefore, the Complainant has filed this compliant. According to the Complainant, as the Opposite Party has not denied their liability till date, the cause of action for the reimbursement of the amount is still continuing and complaint is not barred by limitation as given in Sec.24(A) of the Consumer Protection Act.
7) The Complainant has requested to direct Opposite Parties to reimburse the amount of Rs.4,50,000/- alongwith interest of Rs.2,43,000/-, calculated @ 13.5% p.a. for 4 years to the Complainant. The Complainant has prayed further interest on aforesaid amount @ 15% p.a.. The Complainant has requested to direct Opposite Party to pay to the Complainant Rs.1 Lac as compensation towards mental agony and harassment. The Complainant has also prayed for cost of this complaint from the Opposite Party. Alongwith complaint the Complainant has produced documents at Exh.‘A1’ to ‘K’ as per list of documents. Mr.Anoop Bhimrajka, has filed his affidavit in support of the complaint.
8) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending that complaint is false, frivolous and misconceived and therefore, it is liable to be rejected. According to the Opposite Party, the complaint is barred by provisions of Sec.24(A) of the Consumer Protection Act, 1986. The Complainant has filed this complaint on the false allegations that Opposite Party acted negligently and permitted encashment of 6 cheques between the period from 22/04/2000 to 20/03/2001 from Complainant’s account. Even according to the Complainant, cause of action took place during the period from 22/04/2000 to 20/03/2001. Present complaint is filed before this Forum on 07/05/2006 which is barred by law of limitation. The averments made in the complaint clearly disclose that in a confession written on stamp paper of 30/03/2001 one Mr. Ramavatar Soni, undertaken to return certain amount on or before 30/04/01 and therefore, the Complainant has full knowledge and absolute notice of alleged withdrawal & purported misappropriation. Even in the prayer clause, the Complainant has claimed interest on the aforesaid amount for period of more than 4 years. The cause of action for this complaint accrued in the month of March, 2001 and the Complainant has filed this complaint after lapse of 5 years. So the complaint is hopelessly barred by limitation.
9) According to the Opposite Party, the transaction mentioned in the complaint is a commercial transaction which is beyond the scope of enquiry under the provisions of Consumer Protection Act, 1986. Therefore, this Forum has no jurisdiction to entertain and try this complaint. It is further submitted that the complaint is bad for non joinder of necessary parties.
10) According to the Opposite Party, complaint involves complicated questions and alleged forgery of cheques which cannot be decided in summary proceeding by the Consumer Forum. The complaint has already filed criminal complaint under Sec.408, 465, 467, 468 & 420 of IPC in respect of the said cheques. The Cuff Parade Police Station has seized the said cheques in question and investigated the offence registered at C.R.No.149/2001 and trial is pending before Ld. Magistrate Court. In regard to alleged cheques criminal case has already been filed.
11) It is submitted by the Opposite Party that Opposite Party Bank cleared the amount covered under the alleged cheques in good faith by following proper procedure. There was no negligence or deficiency in service on the part of Opposite Party. There was no occasion to doubt the genuineness of the said cheques from its apparent tenor. No defect can be detected on usual scrutiny. Signatures appearing on the said cheques resembles with specimen signatures. Opposite Party has denied allegations of negligence and or deficiency in service. As registered Company, it was mandatory on the part of Complainant to monthly reconcile bank’s statement which are admittedly furnished to them in the ordinary course of business. The Complainant is bound exercise reasonable care in operating the said account. The Complainant has not taken usual precautions but now the Complainant is blaming Opposite Party without any basis. Opposite Party has denied each and every allegation made in the complaint and submitted that complaint deserves to be dismissed with cost.
12) The Complainant has filed rejoinder-cum-affidavit-in-evidence and thereby denied allegations made in the written statement of the Opposite Party. Opposite Party has produced original 3 cheques alongwith list of document dtd.03/03/2008. The Opposite Party has filed application to refer the 3 cheques in question to an Independent Handwriting Expert for opinion. However, subsequently, Opposite Party has not pressed this application, so the application was filed.
13) Heard oral submissions of Complainant’s Ld.Advocate Mr. Anand Gawand h/f Ld.Advocate Mr. Anand Patwardhan, and Ld.Advocate Mr. Sunil Kadam for the Opposite Party. Ld.Advocate for the Opposite Party has submitted that present complaint is hopelessly time barred and therefore, it is liable to be rejected. On the contrary, as per Ld.Advocate for the Complainant, the complaint is filed within limitation as prescribed under Sec.24(A) of the Consumer Protection Act, 1986.
14) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the complaint is barred by law of limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant is entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- It is admitted fact that the Complainant is a Limited Company registered under the Companies Act, 1956 and it is carrying on business. The Complainant had opened a Current Account bearing No.CD110956 with Opposite Party Bank at their Cuff Parade Branch. According to the Complainant on 03/03/1995, the Complainant appointed one Mr. Ramavtar A. Soni as the Accounts Manager of the Company who was in-charge of the finance and account of the Complainant Company till his termination in the year 2001. It is averred in the complaint that on reference of Mr. Sony, the Complainant appointed Mr. Manoj Asawa, as a Cashier of the Complainant Company and all the banking operations and cash transactions were handled by him along with Mr. Soni. In the complaint para no.5, it is specifically averred by the Complainant that during the period from 22/04/2000 to 20/03/2001 total amount of Rs.4,50,000/- was withdrawn on the basis of forged signatures by their employees Mr. Asawa and Mr. Soni. It is contended that for the first time in the month of April, 2001, the Complainant came to know about discrepancy in the Bank account. According to the Complainant as culprits were in-charge of finance and accounts, aforesaid discrepancy of the account was not discovered during the audit. It is alleged by the Complainant that there employees Mr. Soni & Mr. Asawa could perpetuate taking advantage of the functional disconcern of the Opposite Party Bank and withdraw total amount of Rs.4,50,000/- on the basis of forged cheques. It is alternatively contended that officer and staff of the Opposite Party acted negligently and/or facilitated the encashment of this 4 cheques during the periods of 22/04/2000 to 20/03/2001. The Complainant’s employee Mr. Asawa has confessed that he had forged signatures of Mr. Anoop Bhimkaraja, one of the Directors of the Complainant Company and withdrawn amount on the basis of forged cheques and therefore, Complainant had filed complaint against Mr. Asawa & Mr. Soni to Cuff Parade Police Station. The Complainants by letter dtd.18/09/2001 addressed to the Assistant General Manager of Opposite Party informed him wrongful withdrawal total amount of Rs.4,50,000/- from its account on the basis of forged cheques. The Complainant had obtained opinion of Handwriting Expert- Mr. Mahesh Wagh, who clearly opined that signatures on the disputed cheques do not appear to be that of authorize signatory. There was no response from the Opposite Party, so the Complainant wrote letters dtd.13/10/01, 24/10/01 and 29/01/2002 to the Opposite Party and called upon to reimburse the amount which was fraudulently withdrawn form its account due to the negligence and deficiency in service of the Opposite Party. However, according to the Complainant, there was no reply to any of the letters written during the period from 24/10/01 and 24/10/04. Subsequently, the Opposite Party shown willingness to cooperate to the police in the matter but have not accepted liability to reimburse the amount and so the Complainant has filed this complaint. Ld.Advocate for the Complainant has submitted that cause of action for this compliant is continuing as Opposite Party have not denied their liability towards Complainant Company and therefore, complaint is within prescribed period of limitation under Sec.24(A) of the Consumer Protection Act.
Ld.Advocate fort the Opposite Party has submitted that for the sake of argument the averment made in the complaint is either to be correct then the averment made in the complaint clearly disclosed that complaint is hopelessly time barred. It is submitted that as per provisions of Sec.24(A) of the Consumer Protection Act, Complainant was supposed to file complaint within period of 2 years from the date of cause of action. In the instant case, as per the Complainant, during the period from 22/04/2000 to 20/03/2001 on the basis of this forged cheques total amount of Rs.4,50,000/- was withdrawn from the Complainant’s account therefore, cause of action for this complaint took place during aforesaid period and the Complainant ought to have file this complaint before this Forum on/or before 20/03/2003. However, the Complainant has filed this complaint before this Forum on 07/05/2006 i.e. after lapse of period of 5 years. It is further pointed out that even according to the Complainant the Complainant came to know about the fraudulent of withdrawn in the month of April, 2001. The Complainant had written letter and informed about the fraudulent to Assistant General Manager of the Opposite Party on 18/09/01. From the date of knowledge in 2001 the Complainant wrote number of letters to the Opposite Party and requested for reimbursement of the said amount of Rs.4,50,000/-. It is grievance of the Complainant that Opposite Party did not reply to the letters. It is vehemently submitted on behalf of Opposite Party that Opposite Party has never accepted liability to pay disputed amount of Rs.4,50,000/- or any amount to the Complainant. It is submitted that submissions made by the Complainant’s Advocate and averment made in complaint para no.4 that the Opposite Party have not denied his liability and so complaint is within limitation are not only misconceived & erroneous but made with deliberate intention to mislead this Forum.
As discussed above, it is clear form the averment made in the complaint that cause of action for this complaint took place during the period form 22/04/2000 to 20/03/2001. Even according to the Complainant, in the month of April, 2001, the Complainant came to know about the fraudulent withdrawal. The Complainant wrote letter to the Opposite Party on 18/09/2001 and informed about the fraudulent withdrawal on the basis of alleged 6 forged cheques. The Complainant repeatedly wrote letters and asked Opposite Party for reimbursement of the amount of Rs.4,50,000/- but at any time the Opposite Party has not accepted their liability to pay disputed amount of Rs.4,50,000/- to the Complainant. Submissions made by the Complainant that cause of action for this complaint is continuing, is erroneous and false. Further, merely because Opposite Party has not denied their liability to pay the disputed amount, it cannot be said that it extended period of limitation. It is clear that the Complainant has not filed this complaint within prescribed period of limitation. There is no application for condonation of delay. Complaint is hopelessly barred by Law of Limitation. Therefore, we answer point no. 1 in the negative.
Point No.2 :- As the complaint is barred by law of limitation, the Complainant is not entitled to claim any reliefs against the Opposite Party. Therefore, we answer point no.2 in the negative.
For the reasons discussed above, we hold that complaint deserves to be dismissed. In the result we pass following order -
O R D E R
i.Complaint No.223/2006 is hereby dismissed with no order as to cost
ii. Certified copies of this order be furnished to the parties.
