DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, SAHIBZADA AJIT SINGH NAGAR (MOHALI)

Consumer Complaint No.87 of 2016

                                                Date of institution:  15.02.2016                                              Date of decision   :  15.10.2019

Puran Chand son of Shri Sundar Singh, resident of village Bhoor, Post Office Jhangi, Tehsil and District SAS Nagar, Mohali, now residing at H.No.HL-707, Village Mattaur, Sector 70, SAS Nagar, Mohali.

…….Complainant

Versus

1.     The Chief Manager, Punjab National Bank, Sector 17, Chandigarh.

2.     R.K. Vardhan, Ex. Manager c/o PNB Sandele, District Mandi (H.P.) now posted at Chauntrra, Tehsil Joginder Nagar, District Mandi (H.P.)

3.     The Branch Manager, Punjab National Bank, PNB Sandele, District Mandi (H.P.).

4.     The Branch Manager, Punjab National Bank, Branch, Sector 70, Mohali.

                                                         ……..Opposite Parties

Complaint under Section 12 of

the Consumer Protection Act.

Quorum:   Shri G.K. Dhir, President,

                Mrs. Natasha Chopra, Member.

Present:    Complainant in person with counsel Shri H.S. Kang.

                Shri H.P.S. Kochhar, counsel for the OPs.

Order by :-  Shri G.K. Dhir, President.

Order

                  Complainant claims to have opened account No.2099000300083725 with OP No.3 bank of Punjab National Bank Branch on 15.01.2013. That account is being operated by the complainant. Pension loan from PNB of amount of Rs.3.00 lakhs got by complainant.  Withdrawals from this account have been made through cheques issued by the bank. A blank cheque was got by OP No.2 at the time of advancing loan as security towards loan. Complainant noticed as if amount of Rs.50,000/- has been withdrawn from his account and entry regarding withdrawal by staff has been incorporated. Complainant claims to have not actually withdrawn this amount from OP bank. Photocopy of the account ledger inquiry dated 31.01.2015 in that respect is annexed with the complaint. Complainant has not withdrawn any amount on the basis of withdrawal slip because he had been withdrawing the amounts from loan account through cheques.  It is claimed that officials of OP bank have forged the document and made false record for causing loss of Rs.50,000/- to complainant regarding which ledger entry dated 31.01.2015 is incorporated. Despite service of legal notice, OPs failed to provide sufficient response. It is claimed that OPs adopted unfair trade practice and that is why this complaint for settling the account and paying Rs.50,000/- alongwith interest @ 18% per annum from the date of misappropriation till realisation. Compensation for mental agony and harassment of Rs.30,000/- more claimed.

2.             Initially complaint was ordered to be returned to complainant with liberty to file fresh one vide order dated 08.03.2016 passed by this Forum. However, that order was set aside by Hon’ble State Consumer Disputes Redressal Commission Punjab vide orders dated 26.08.2016 passed in First Appeal No.260 of 2016. Through those orders, Hon’ble State Commission held that complainant has been able to make out a prima facie case regarding deficiency in service on part of OPs and adoption of unfair trade practice and as such complaint should have been admitted. After setting aside order dated 08.03.2016 of this Forum, complaint was remanded back to this Forum for proceeding with the same in accordance with procedure prescribed by Consumer Protection Act.

3.             After receipt of those orders of Hon’ble State Commission, file was ordered to be restored to its original number, vide order dated 23.09.2016. However, neither power of attorney and nor reply filed by OPs within stipulated period of 45 days and as such right of OPs to file reply was struck off vide orders dated 11.11.2016.

4.             Complainant closed evidence after tendering affidavit Ex.CW-1/1 alongwith documents Ex.C-1 to Ex.C-6, whereas counsel for OPs tendered in evidence affidavit Ex.OP-1/1 of Shri Birinder Sharma, Senior Manager alongwith CCTV footage Ex.OP-1 and copy of DDR Ex.OP-2 and thereafter closed evidence. On filing of application for calling upon OPs to produce loan file alongwith withdrawal slip, the same was produced and then the same was tendered in evidence as Ex.P-7 and Ex.P-8 by complainant alongwith counsel and thereafter they closed additional evidence. Counsel for OPs also closed rebuttal evidence on that date itself.

5.             Written arguments in this case submitted by both the parties. Oral arguments heard and records gone through.

6.             Question of territorial jurisdiction has already been decided vide orders dated 22.03.2018 passed by this Forum. Through those orders, it has been held that complainant is operating bank account with OP No.4 in Sector 70, Mohali and that is why cause of action accrued to complainant to file this complaint. No revision against those orders dated 22.03.2018 has been preferred till date and as such said order dated 22.03.2018 virtually has become final. Being so, contention of counsel for OPs has no force that this Forum has no territorial jurisdiction.

7.             In affidavit Ex.OP-1/1 of Shri Birinder Sharma, Senior Manager of OP No.3 branch at Mandi, it is mentioned that no blank cheque was taken by OP No.2 as security at the time of advancing of loan.  Rather it is claimed that disputed amount was withdrawn by complainant himself on the basis of withdrawal slip. CCTV footage Ex.OP-1 is produced for claiming that complainant himself has withdrawn that amount of Rs.50,000/-. However, after browsing clippings of CCTV footage Ex.OP-1 it is not possible to make out as to whether complainant himself remained present in the bank on 31.01.2015 for withdrawal of the amount in question or not. Such complicated questions can be decided by the civil court after record of evidence and examination and cross examination of witnesses.

8.             Though in affidavit Ex.OP-1/1 of Birinder Sharma it is mentioned that amount of Rs.50,000/- withdrawn by complainant on the basis of withdrawal slip, but this admission suffered through affidavit Ex.OP-1/1 sought to be withdrawn subsequently by OPs by filing application under Section 151 CPC dated 25.05.2018 for claiming that in fact amount of Rs.50,000/- was withdrawn on the basis of cheque. In this application dated 25.05.2018 it is mentioned that typographical error occurred for mentioning as if amount was withdrawn on the basis of withdrawal slip.  Rather it is claimed that this amount was withdrawn on the basis of cheque and the same fact even reflected in copy of DDR produced on record as Ex.OP-2. This application was filed after submission of MA No.84 of 08.05.2017 by complainant for seeking direction to OPs to place on record withdrawal slip dated 31.01.2015. Even in response to questionnaire submitted by OPs, it is mentioned that the amount has been withdrawn on the basis of cheque and not on the basis of withdrawal slip and as such OPs intend to shift stand as to whether disputed amount of Rs.50,000/- withdrawn on 31.01.2015 on the basis of withdrawal slip or on the basis of cheque.  Even after this shift of stand, it is found that contents of copy of DDR dated 09.04.2015 got registered with P.P. Sanghol (Ex.OP-2) shows as if amount was withdrawn by complainant on 31.01.2015 on the basis of cheque regarding which CCTV footage available with OP bank. So it is conended that virtually in affidavit Ex.OP-1/1 it is inadvertently mentioned as if amount was withdrawn on the basis of withdrawal slip. Technicalities cannot be allowed to stand in the way of administration of justice in consumer complaints and as such shifting of stand in no way will show that claim of OPs is false regarding withdrawal of amount of Rs.50,000/- by complainant on the basis of cheque as per submission  of counsel for OPs.

9.             In reply to questionnaire, even OPs have claimed that no withdrawal slip exists. However, in this reply it is claimed that no security cheque was lying with the bank and that amount of Rs.50,000/- was withdrawn by complainant himself on the basis of cheque. That cheque on being asked by this Forum is produced as Ex.P-7.

10.           After going through cheque Ex.P-7 it is made out as if amount of Rs.50,000/- withdrawn by self  on 31.01.2015. It may be mentioned here that CCTV footage Ex.OP-1 not enough to show that the amount was withdrawn by complainant on 31.01.2015. In that CCTV footage Ex.OP-1 visit of many persons to the counters installed in the bank is there. No particular timing mentioned by OPs in the submitted affidavit or documents as to when complainant was present in the bank on 31.01.2015 for withdrawal of amount on the basis of cheque. In fact cheque Ex.P-7 is Ex.C-7 tendered by complainant and Ex.P-8 is Ex.C-8. This Ex.C-7 bears cheque No.894382. Copy of passbook of complainant with OP No.3 bank is produced as Ex.C-1 alongwith annexed leaves as Ex.C-2 and Ex.C-3 and copy of account ledger Ex.C-4 is also produced. Perusal of entries of date 20.01.2015 and 05.02.2015 of Ex.C-4 shows as if amount of Rs.80,000/- and Rs.1,25,000/- withdrawn in the name of self by complainant on the basis of  instrument No.674383 and 674384. However, against entry of date 31.01.2015 mentioned in Ex.C-4 or in Ex.C-2 reference of instrument number not at all made, despite the fact that same shows withdrawal of Rs.50,000/- in the name of self by complainant.  If instrument numbers are mentioned with respect to entries of self of 20.01.2015 and 05.02.2015, then why instrument number of Ex.C-7 not mentioned in Ex.C-4 or Ex.C-2, qua that no explanation is offered.  This shows that withdrawal of amount of Rs.50,000/- on 31.01.2015 in the name of self may not be on the basis of any instrument, being presented for and on behalf of complainant. If that be the position, then case of complainant looks correct that amount of Rs.50,000/- was withdrawn from his account on 31.01.2015 on the basis of some forged entries. Non mentioning of timing in hours, minutes and seconds, as to when complainant was present in the bank premises shows that CCTV footage Ex.OP-1 produced just for creating evidence, but without actual proof about presence of complainant in the bank premises on 31.01.2015.

11.           Story put forth by complainant regarding obtaining of security cheque by OP No.2 from him at the time of advancing loan cannot be disbelieved, more so when perusal of loan file Ex.C-8 shows as if balance and security confirmation letter obtained from complainant under his signatures without mentioning as to confirmation of which amount sought from complainant. Except of mentioning name Puran Chand and account number, remaining columns of balance and security confirmation letter are kept blank and as such story put forth by complainant believable that security documents were obtained from him by officials of OP No.3 at time of advancing loan. This conduct of OP No.3 and its officials shows that it obtained signatures of complainant on security documents at the time when they were blank. Being so, possibility of misuse of security cheque Ex.C-7 by officials of OP No.3 cannot be ruled out at all, more so when ledger entry statement Ex.C-4 shows that complainant had been withdrawing amounts on the basis of cheques and not on the basis of withdrawal slips. However, in Ex.OP-1/1 it was erroneously mentioned that amount of Rs.50,000/- withdrawn on the basis of withdrawal slip on 31.01.2015. Non mentioning of cheque number against withdrawal entry of Rs.50,000/- dated 31.01.2015 in Ex.C-4 further lends credence to the view that blank security cheque obtained from complainant might have been misused by officials of OP No.3. As that misuse of security cheque caused loss of Rs.50,000/- to complainant and as such complainant entitled to refund of amount of Rs.50,000/- with interest @ 8% per annum from 31.01.2015 till payment. Complainant stood mentally harassed due to inaction of OP No.3 and its officials in not tracing the culprit who had withdrawn amount of Rs.50,000/- from his account on 31.01.2015 and as such complainant entitled to compensation for mental agony and harassment from OP No.3 and OP No.2 because claim of complainant believable that security cheque handed over to OP No.2 has been misused. Liability of remaining OPs is not there because these branches are not involved in the transaction of illegal withdrawal of Rs.50,000/- on the basis of misused security cheque received from the complainant. Certainly OP No.1 and 4 has no role and as such complaint against them merits dismissal.

12.           As a sequel of above discussion, complaint allowed against OP No.2 and 3 in terms that they will refund amount of Rs.50,000/- with interest @ 8% per annum w.e.f. 31.01.2015 till payment. Liability of OP No.2 and 3 held as joint and several. However, complaint against OP No.1 and 4 dismissed. Compensation for mental agony and harassment of Rs.15,000/- and litigation expenses of Rs.10,000/- more allowed in favour of complainant and against  OP No.2 and 3, whose liability held as joint and several.  Payment of amount of compensation and litigation expenses be made within 30 days by OP No.2 and 3 from the date of receipt of certified copy of the order. Certified copies of the order be supplied to the parties as per rules.  File be indexed and consigned to record room.

Announced

October 15, 2019.

                                                                (G.K. Dhir)

                                                                President

(Mrs. Natasha Chopra)

Member