THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, BHADRAK.
Present- Sri Raghunath Kar, President
Sri Basanta Kumar Mallick ,Member
Afsara Begum, Member
Dated the 11th day of October , 2017
C.D case No.104 of 2015
Sabita Panda
W/O- Harmohan Panda
At- Samaraipur
P.O- Gelpur samil Prachinagar
P.S- Bhadrak (R)
Dist- Bhadrak
……….Complainant
VERSUS:-
Chief Manager,
State Bank Of India
Bhadrak Main Branch
At- Apartibindha
P.O- Bhadrak(T)
Dist- Bhadrak ………….Opposite Parties
Advocate for complainant – Sri Nirakar Jena & Associates
Advocate for OP - Sri Jaminikanta Nayak & Another
Date of hearing – 31.01.2017
Date of order – 11.10.2017
SRI BASANTA KUMAR MALLICK, MEMBER
This dispute arises out of a complaint filed by the complainant alleging deficiency of service and unfair trade practice.
The facts disclosed in the complaint are to the effect that the complainant is a customer (Depositor) of State Bank of India, Main Branch, Bhadrak and has been operating a savings Bank account vide No-11403487529 Corresponds to old account No-01190014216 and used to transact in the account as and when necessary. As the said SB account was a cheque operating account, the Bank (OP) had issued a cheque book to the to transact in the account for withdrawal purpose. Unfortunately the complainant lost four leaves (cheques) from the cheque Book bearing No-967811, 967814,967815 and 967817 and as soon as the fact of missing/ Lost cheques came the knowledge, complainant intimated the OP in writing not to honour those cheques if presented by any person or persons and also requested to inform the complainant about presentation of cheque . The OP Bank failed to execute the standing instruction issued by the customer and did not inform the customer (complainant) about presentation of cheques, rather dishonored the cheque on presentation and returned the cheque along with dishonor memo to the person who presented the cheque. While submitting stop payment application to the OP Bank, the complainant has paid Rs220/- towards service charges of such instruction to the Bank . Despite all preventive measures taken by the complainant for the stolen/Lost cheques, due to irresponsibility of the OP Bank , the person could be able to present the cheque in the OP Bank and could be able to get the dishonor memo from the Bank and subsequently filed a case in the court of Honorable SDJM Bhadrak under the provisions of section 138 of Negotiable Instruments Act which created huge problem for the complainant causing mental agony and harassment. Such negligence the OP Bank amounts to deficiency of service and willfully entertaining the earmarked cheques attributes to unfair trade practice. Because of negligence of op to act upon according to the instruction of the customer, complainant faced the legal proceeding, filed by the person who presented the cheque in the Bank, raising a claim of Rs 5, 00,000/- and accoroling to the penal provisions of the said section of N.I. Act , complainant may be liable to pay Rs 10,00,000/-and up to 2years imprisonment . Finding no other way, complainant filed this case in this Forum praying for a direction to OP for payment of Rs 10, 00000/-as compensation including litigation cost.
Opposite party resisted the claim of the complainant and contested the case. In the written statement filed by the OP through advocate it is stated that the complaint is not maintainable in this court and the claim is barred by limitation. OP has also raised a technical point to the effect that the complainant has impleaded the Chief Manager of the Bank as a party but not the Bank and hence this case is devoid of merit and liable to be dismissed. It is also stated by the OP that the fact of cheques lost during the year, 2006 was not within it’s knowledge and also admitted the fact that the stop payment intimation was given by the complainant to the OP and the OP did not agree to have taken service charges of Rs 220/-for “stop payment” of cheques and to intimate the complainant about presentation of cheques instantly. It is also stated by the OP that the Branch is managed by a number of officers and it is not practically possible on the part of chief manager to get report of everything and the complainant has not made specific about the name of the staff or officer who has grossly neglected in discharging his duty with due deligence and sincerity. As the present chief manager of the OP Bank has joined much after stop payment intimation/instruction was issued by the complainant, it is not practically possible to know as to what has happened prior to his joining . It is also denied by the OP Bank that the complainant has suffered mental agony and incurred loss because of negligence of the OP bank and hence there is no deficiency of service to the complainant. Thus the complaint filed by the complainant is devoid of merit and liable to be dismissed with cost.
Perused the complaint of the complainant and written version of OP and heard both the parties in course of hearing of the case and observed the following issues are involved which are to be critically analyzed to reach at a conclusion.
- Whether this case is coming under barred by limitation and maintainable in this Forum.
- Whether the complainant issued any instruction to the OP bank for stop payment of cheques.
- Whether the bank (OP) has carried out the instruction of the customer/depositor (complaint) with regards to stop payment of cheques instruction.
- Is the bank found negligent in acting upon according to the instruction of the customer (complainant).
- Is it true to say that the complainant is liable for payment of Rs10, 00,000/- and imprisonment because of irresponsibility and negligence of OP Bank.
- The counsel of the OP resisted the allegation of the complainant in stating that the OP has issued ‘stop payment’ instruction of the cheques bearing NO-967811, 967814, 967815 and 967817 on 06.09.2006 and this case has been filed during 2015, that is after lapse of about nine years. On the other hand the complainant has submitted during hearing that although the “ Stop payment” instruction was issued in the year 2006, the cheque was presented by a person in the Bank and return memo was issued on 16.07.2013 by the Bank which enabled the holder of the cheque to file 1 CC case in the court of SDJM Bhadrak vide case no-1456/2013 under the provision of sec.138 of N.I. Act and the said court issued notice to the complainant during 1st week of June 2014 fixing the date for appearance on 27.06.2014. Hence the facts of presentation and dishonor of cheque came to the knowledge of the complainant when she received the notice from the court. As per settled provisions of law the date on which the fact came to the knowledge of the complainant shall be treated as the date of cause of action arose. Hence the dispute so filed does not come under bared by limitation and therefore maintainable. On perusal of materials on record it is observed that the pleading of OP is not supported by any material evidence, rather the complainant has proved his pleadings with evidence. Hence the objection raised by OP Bank in the matter of maintainability is rejected.
- The complainant claims to have issued ‘stop payment instruction to the OP Bank in writing on 06.09.2006 stating that four numbers of signed cheques have been lost/stolen which should not be entertained by the OP Bank if in case those cheques are presented by anybody else and intimation should be given to the complainant to recover the lost signed cheques. The counsel for OP on the contrary , submitted during hearing that no such “ stop payment” instruction was issued by the complainant nor the OP Bank has received any amount for the said purpose. On perusal of materials on record it is observed that the OP Bank issued a letter on dated 30.05.2014 addressing to the complainant under the seal and signature of OP wherein it is mentioned as “ We confirm that the cheque No-967811, 967814, 967815 and 967817 of your account NO-11403487529 (old a/c No-01190014216) was stopped on or before 06/09/2006 on year request” . This letter issued by the OP Bank addressing to it’s customer (Complainant) is enough to prove that the complainant has issued ‘stop payment’ instruction to the Bank much before the cheque was entertained for transaction and dishonor memo was issued to an unknown and unauthorized person. Hence the allegation regarding issue of intimation well proved.
- The complainant submitted during hearing that inspite of “Stop payment” intimation, OP Bank did not adher to the instruction and entertained the lost signed cheque for transaction in the said S.B account which is an act of breach of trust and contractual obligation on the part of OP Bank. On the other hand OP Bank submitted that none of the actions of OP bank contributes to breach of trust as the OP Bank has not paid any amount to the holder of the cheque in obedience to the “Stop payment” instruction. Complainant vehemently protested the pleadings of OP as above in stating that the complainant had issued “stop payment” instruction and when the cheque was dishonored, the OP Bank could have mentioned in the return memo as “dishonored due to stop payment instruction of account” but the OP Bank has mentioned in the return memo as “insufficient balance in the account” such act of OP Bank proves it’s negligence in the matter disregarding the standing instruction of a customer.
Heard both the parties and perused materials on record. It proved that the OP Bank has not acted upon according to the “Stop payment” instruction letter which amounts to deficiency of service.
- From the above discussion it is crystal clear that the Bank has not acted upon according to the “stop Payment” instruction issued/submitted by the complainant to the OP Bank . Such inaction or wrong doing of the OP seems to be willful negligence that amounts to deficiency of service and doing differently ignoring the instruction or written submission of the complainant exposes it’s ill intimation and ulterior motive which amounts to unfair trade practice.
- The complainant, in the complaint and during hearing stated that because of the violation of instruction by the OP Bank, the holder of the cheque could be able to file a case in the court of SDJM, Bhadrak under the provisions of section 138 of Negotiable Instruments Act and according to the penal provisions of the said act, if the order will be Passed in favour of the complainant of said 1CC Case, the complainant is liable to pay double the amount of cheque along with imprisonment for any term, not executing two years. Since the cheque amount is Rs 5,00,000/- the complaint would be liable to pay Rs 10,00,000/- with imprisonment. On the other hand OP stated/submitted that it has not paid any amount to the holder of the cheque, hence is not deficient in providing proper service. As the OP Bank has not acted against the interest of the complainant to cause any loss to him should not be held indulged in unfair trade practice.
As observed from the material evidence on record, knowingly or unknowingly OP Bank has made a mistake in entertaining the cheque and issuing return memo mentioning as “ insufficient Balance” instead of mentioning as “The account stopped payment” or like this while issuing return memo on dishonor of cheque for Rs5,00,000/-, the officials of OP Bank handling/managing cheque collection task should have verified if any standing instruction regarding such cheque was there or not which amounts to deficiency of service. If the order of 1 CC case pending in the court of SDJM Bhadrak will go against the accused of the said case, the complainant of this dispute will be liable to pay the amont as would be ordered or as an alternative to go for appeal in the appellate court which will incur expenditure more than the cheque amount. Hence the OP Bank cannot be set free from the liability which would be divided/determined by the order of SDJM Bhadrak in 1CC case NO-1456/2013.
In view of the facts of above paragraphs and considering the pleadings of both the parties from all angles and relying on the evidences on record, it is held that he OP Bank is negligent and liable to pay compensation to the complainant.
ORDER
The complaint be and the same is allowed against OP on contest. O.P. is directed to pay a compensation of Rs 15,000/- and Rs5000/- as cost of litigation to the complainant within 30 days from the date of receipt of this order failing which interest will be charged @7% P.A on the compensation amount from the date of order till the date of payment . In addition to that the OP would also be liable for payment of the amount as would be imposed in the 1cc case no-1456/2013.
This order is pronounced in the open Forum on the 11th day of October 2017 under my hand and seal of the Forum.
(Raghunath Kar) (Basanta Kumar Mallick)
President Member
Dictated & corrected by me
(Afsara Begum)
Member Basanta Kumar Mallick)
Member
