Tamil Nadu

StateCommission

A/62/2016

The Branch Manager, Oriental Bank of Commerce - Complainant(s)

Versus

Dr.M.C.Aruna - Opp.Party(s)

K.N.Chinnakrishnan

02 Nov 2021

ORDER

 IN THE STATE CONSUMER DISPUTES REDRESSAL COMMISSION, CHENNAI

 

BEFORE :       Hon’ble Thiru Justice R. SUBBIAH                   PRESIDENT

            Tmt. Dr. S.M.LATHA MAHESWARI                   MEMBER

     

COMMON ORDER IN

F.A.NO.62/2016 AND FA.NO.63/2016

(Against order in CC.NO.176/2014 on the file of the DCDRC, Chennai (North)

 

DATED THIS THE 2^nd DAY OF NOVEMBER 2021  

 

FA.NO.62/2016

 

The Manager

Oriental Bank of Commerce                                                  M/s. K.N.Chinna Krishnan

No.8/8, Mogappaier West                                                            Counsel for

Chennai – 600 037                                                        Appellant / 2^nd Opposite party

 

           Vs.

 

1.       Dr. M.C. Aruna

          Flat No.3,Block C-1

          Aishwaryam Phase II, DABC Avenue                                M/s. S. Velmurugan

          4^th Main Road, Nolambur                                                     Counsel for

          Chennai – 600 095                                               1^st Respondent/ Complainant

 

2.       The Branch Manager

Indian Overseas Bank

Nolambur Branch (2139)

No.4/11, Mogappair  West

Chennai – 600 037

 

3.       Aishwaryam Phase II

Flat Owners Welfare Association

Rep. by its Secretary

DABC Avenue, 4^th Main Road

Nolambur,                                                             R2 & R3 served and called absent

Chennai – 600 095                                     Respondents / 1^st & 3^rd Opposite parties

 

FA.NO.63/2016

 

The Branch Manager

Indian Overseas Bank

Nolambur Branch (2139)                                                     M/s. A. Sermaraj

No.4/11, Mogappair  West                                                       Counsel for

Chennai – 600 037                                                                    Appellant / 1^st Opposite party

 

                        Vs.

 

1.       Dr. M.C. Aruna

          Flat No.3,Block C-1

          Aishwaryam Phase II, DABC Avenue                                  M/s. S. Velmurugan

          4^th Main Road, Nolambur                                                      Counsel for

          Chennai – 600 095                                               1^st Respondent/ Complainant

 

2.       The Manager

Oriental Bank of Commerce                                          M/s. K.N.Chinna Krishnan

No.8/8, Mogappaier West                                                 Counsel for R2

Chennai – 600 037   

 

3.       Aishwaryam Phase II

Flat Owners Welfare Association

Rep. by its Secretary

DABC Avenue, 4^th Main Road, Nolambur                  R3 served and called absent

Chennai – 600 095                                      Respondents /  3^rd Opposite party

 

The complainant had filed a complaint before the District Commission against the opposite parties praying for certain direction. The District Forum allowed the complaint. Against the said order, these appeals have been preferred by the 1^st opposite party in FA.No.63/2016 and by the 2^nd opposite party in FA.No.62/2016 praying to set aside the order of the District Commission dt.18.3.2016 in CC.No.176/2014.

 

          These appeals coming on before us for hearing finally today, upon hearing the arguments of  both parties, perusing the documents, lower court records, and the order passed by the District Commission, this commission made the following common order:

 

 

JUSTICE   R. SUBBIAH,  PRESIDENT    

 

1.       These appeals have been filed by the 1^st and 2^nd opposite parties by separate appeals viz.FA.No.63/2016 and FA.No.62/2016 respectively, against the order in CC.No.176/2014 dt.18.3.2016 praying to set aside the order impugned.

 

2.       Since both the appeals are arising out of the same order, these appeals are disposed of by way of common order. 

 

3.       For the sake of convenience, the parties shall be referred as arrayed in the original complaint filed before the District Commission in CC.No.176/2014.

 

4.       The brief facts which are necessary to decide the issues involved in the appeal are as follows:

          The complainant is working as a Principal in a school, and is residing in the apartments viz. “Aishwaryam Phase II”, and the said apartment owners have maintained the apartments through the “Aishwaryam Phase II owners Welfare Association / 3^rd opposite party herein. 

          The case of the complainant is that she was paying the monthly maintenance fee of Rs.1550/- for her flat to the 3^rd opposite party’s association every month by way of cheque without fail.  The complainant is the customer of 1^st opposite party / Indian Overseas Bank vide SB A/c.No.213901000015104.  The 3^rd opposite party/ Association was maintaining the account with the 2^nd opposite party/ Central Bank of Commerce vide A/c.No.10122011003508.  The complainant was promptly paying the monthly maintenance amount to the 3^rd opposite party by way of cheque.  As usual the complainant had issued a cheque for Rs.1550/- bearing No.834246 dt.11.1.2014 to the 3^rd opposite party’s association towards the maintenance charges.   The 3^rd opposite party had presented the said cheque for collection through their banker’s viz. Oriental Bank of Commerce on 17.1.2014.  The said cheque was sent to the 1^st opposite party/ Indian Overseas Bank for clearance.  The 1^st opposite party had debited the said amount of Rs.1550/- towards the cheque No.834246 on 18.1.2014.  As on that date the account balance of the complainant was Rs.102653.69/- with the 1^st opposite party bank.  While so on 31.1.2014 the complainant had received a letter from the 3^rd opposite party stating that the complainant’s cheque bearing No.83426 dt.11.1.2014 has been returned and thus requested for a fresh cheque for a sum of Rs.1700/- including the late fee of Rs.50/- and cheque return charges of Rs.100/-.  On receipt of the said letter dt.31.1.2014, the complainant was shocked and mentally disturbed.  However the complainant had issued a fresh cheque bearing No.834248 for a sum of Rs.1700/- dt.31.1.2014, and the same was cleared by the 1^st opposite party on 7.2.2014.  Immediately the complainant had verified the account through internet about the return of the cheque.  While so she came to know that the amount of Rs.1550/- was debited from the complainant’s SB account on 18.1.2014 and showing the account balance of Rs.101103.69.  After verifying the statements of accounts she came to know again on 23.1.2014, the said cheque No.834246 dt.11.1.2014 has been re-credited to the complainant’s account without any proper reasons.  Hence she contacted the 1^st opposite party/Indian Overseas Bank Manager and orally informed about the return of the cheque and also showed the cheque. But the 1^st opposite party Bank Manager did not give any proper reply.  Hence she had given a written complaint on 7.2.2014, which was received by the 1^st opposite party.  But again after verifying the 1^st Respondent/ Complainant’s account the 1^st opposite party Manager orally informed that the problem is not at their end.  The complainant again not satisfied with the answer of the Manager of the 1^st opposite party, contacted the 1^st opposite party and wanted to verify the statement of account, and the 1^st opposite party had written an endorsement without date in the front side of the complainant’s letter dt.7.2.2014 as “the instrument was passed by our CCO on 18.1.2014.  As the item was listed twice it was again returned”.  But the 3^rd opposite party had furnished the statement of account and she had verified and found that the said cheque No.834246 for Rs.1550/- was credited to the said account by the 2^nd opposite party on the same day without any prior intimation and without consent of the customer the 2^nd opposite party had jointly rejected the said cheque No.834246 stating that “item listed twice” hence the amount of Rs.1550/- was debited from the 3^rd opposite party account.  Finally the complainant had given a complaint to the 1^st  opposite party, but they did not give any written reply.  However, the said amount of Rs.1550/- was sent by the 2^nd opposite party to the 1^st opposite party and re-credited to the complainant’s account only on 23.1.2014.  Hence she came forward with this present complaint praying for a direction to the opposite parties to pay jointly and severally a sum of Rs.5,00,000/- to the complainant towards compensation for mental agony, and to pay a sum of Rs.1,00,000/- for loss of reputation and to pay a sum of Rs.1700/- alongwith interest @ 12% pa., from 18.1.2014 till realisation. 

 

5.       The 1^st opposite party/ Indian Overseas Bank has filed their version stating that the cheque bearing No.834246 dt.11.1.2014, issued by the complainant for a sum of R.1550/- listed for clearing before the 1^st opposite party.  Since there was sufficient balance available in the account of the complainant, the 1^st opposite party had rightly honoured the cheque and a sum of Rs.1550/- was debited in the account of the complainant.  But the same cheque bearing No.834246 was listed on 14.2.2002 again for clearance.  Since the same cheque listed again, the 1^st opposite party had returned the same as per banking procedure.  There is no deficiency in service on the part of this opposite party.  The present complaint is not maintainable as against this opposite party.  In fact, they have clearly explained to the complainant the reason for which the cheque was returned, thus they sought for the dismissal. 

 

6.       The 2^nd opposite party had also filed their version stating that the 3^rd opposite party is maintaining the account with the 2^nd opposite party.  The 3^rd opposite party/ Association had presented a cheque bearing No.834246 dt.11.1.2014 for Rs.1550/- drawn on Indian Overseas Bank, Nolambur branch, and the same was uploaded on 17.1.2014, and presented in CTS clearing on 18.1.2014. However said instrument was returned by the 1^st opposite party, mentioning the reason as “twice listed”.  On presentation of the said cheque on 18.1.2014, a shadow entry was made in the account maintained by the 3^rd opposite party by the 2^nd opposite party.  As per CTS viz. Cheque Truncation System the presentation of instrument in paper form is replaced with image copy of the cheque transmitted by encrypted files through NPCI which is conducting clearing in Chennai under Grid System on behalf of RBI  and the technical problem of CTS clearing happened in IOB and not with OBC on 18.1.2014.  Hence the 2^nd opposite party is nowhere connected with the dispute that arose between the complainant and the 1^st opposite party.  As per the banks prevailing norms, the shadow entry is made only after the cheque was passed by the drawer branch, after which the actual credit will be made and thereafter only that amount will be permitted for withdrawal.  When the complainant issued legal notice dt. 4.6.2014, the same was duly replied by the 1^st opposite party’s counsel explaining the facts and circumstances of the matter.  The 2^nd opposite party did not reply to the legal notice, since the bank had given proper reasoning to the complainant in person when she called on the bank.  The cheque was duly returned to the 3^rd opposite party on 20.1.2014 with an endorsement informing the reason for the returning of the cheque in dispute and the same was duly acknowledged by the 3^rd opposite party.  After the return of the returned cheque, the 3^rd opposite party informed the complainant by their letter dt.31.1.2014 and in response to the same, the complainant provided a new cheque for Rs1700/- alongwith a covering letter dt.7.2.2014, which was duly honoured by the 1^st opposite party on 3.2.2014 and the same was duly accounted in the 3^rd opposite party’s account.  Therefore there is no deficiency of service on the part of the 2^nd opposite party. 

 

7.       In order to prove the case, the parties have filed their respective proof affidavits   before the District Commission, and the documents filed by the complainant were marked as Ex.A1 to A10.  No documents were filed by the opposite parties before the District Commission.  Before this commission, the 2^nd opposite party / appellant in FA.No.62/2016 had filed four documents, which are marked Ex.B1 to B4.  

8.       The District Commission, after analysing the evidence, has come to the conclusion that the opposite parties have not clearly mentioned about the clearance of the cheque.  Both parties have not come with clean hands.  Therefore, both opposite parties have committed deficiency of service.  By coming to such conclusion, the District Commission had directed the opposite parties to pay a sum of Rs.50000/- towards compensation for mental agony alongwith cost of Rs.5000/-.  Aggrieved over the said order, the opposite parties are before us now by filing separate appeals. 

 

9.       The learned counsel for the 1^st opposite party had submitted that absolutely there is no deficiency in service on the part of the 1^st opposite party.  It is the 2^nd opposite party who had listed the cheque twice for realisation.  Hence the appellant/ 1^st opposite party had rightly returned the cheque stating “twice listed” and the amount was recredited to the complainant’s account.   But the District Commission without considering these facts properly under the wrong impression as if the cheque was physically presented by the 2^nd opposite party to the 1^st opposite party on two occasions, fixed the negligence on the part of the 1^st opposite party also, which is factually not correct.  Therefore, the findings rendered by the District Commission as against the 1^st opposite party has to be set aside, consequently this opposite party has to be exonerated from its liability. 

 

10.     The learned counsel for the 2^nd opposite party/ Oriental Bank of Commerce had submitted that the complainant is having an account with the 1^st opposite party/ Indian Overseas Bank, Nolambur branch.  The 3^rd opposite party/ Association is having an account with the 2^nd opposite party. The 3^rd opposite party had deposited a cheque for a sum of Rs.1550/- issued by the complainant, drawn on 1^st opposite party/ Indian Overseas Bank for clearance on 17.1.2014.  The 3^rd Respondent had sought clearance of the cheque from 1^st Respondent / complainant by way of CTS on 17.1.2014, through the 2^nd Respondent bank’s Cheque Truncation Centre, Teynampet, Chennai. The 1^st opposite party/ Indian Overseas Bank had passed the cheque on 18.1.2014, as there was sufficient balance in the account.  Subsequently, the said amount was debited by the Indian Overseas Bank, which returned the cheque with remarks “twice listed”.  But actually it is a mistake committed by the Indian Overseas Bank, this could be evident from the outward item detailed report of Oriental Bank of Commerce as additional document Ex.B1, before this commission.  The perusal of the said document would clearly show that the cheque was never presented for second time by the 2^nd opposite party.  This mistake was committed only by the Indian Overseas Bank, therefore absolutely there is no deficiency of service on the part of the 2^nd opposite party. 

 

11.     Keeping the submissions made on bothsides, and on perusal of the documents filed by the 1^st Respondent/ complainant, and the documents filed by the Appellant/ 2^nd opposite party before this commission, this commission made the following order.

 

12.     The case of the appellant/1^st opposite party/ Indian Overseas Bank is that the cheque was twice presented by the 2^nd opposite party/ Oriental Bank of Commerce ie., when the cheque was originally presented on 17.1.2014 and cleared on 18.1.2014 and it was again presented by the 2^nd opposite party for the 2^nd time.  That is why the amount was debited from the SB Account of the complainant.  In order to support their contention, the 1^st opposite party had not produced any document, to show that the cheque was listed twice by the 2^nd opposite party for clearance from the 1^st opposite party.

 

13.     On the other hand, the 2^nd opposite party/ Oriental Bank of Commerce had clearly established by producing Outward Register as seen under Ex.B1 that the cheque was never presented for the 2^nd time.  The 2^nd opposite party also would submit that now the presentation of instrument in paper form is replaced with image copy of the cheque transmitted by encrypted files through NPCI.  By producing the authenticated encrypted copy image of cheque No.834246 dt.11.1.2014 vide Ex.B2, which was forwarded to the 1^st opposite party, the 2^nd opposite party/ Oriental Bank of Commerce, had clearly proved that the cheque had forwarded only once for clearance.  In view of the above, no negligence could be attributed as against the 2^nd opposite party.  Accordingly, the appeal filed by the 2^nd opposite party in FA.No.62/2016 is liable to be allowed.

 

14.     Though the 1^st opposite party had contended that the cheque was twice listed for clearance, they have not produced any document to prove their contention.  Therefore, we are of the considered opinion that the 1^st opposite party is liable to be held responsible for the deficiency committed.

          Eventhough, on considering the fact that though the cheque was returned, it was duly re-credited on representation made by the complainant. For the act of the 1^st opposite party in returning the cheque for a sum of Rs.1550/-  inadvertently, the  compensation awarded at Rs.50000/- is on the higher side.  The complainant also would not have suffered to that extent due to the return of the cheque.  We do accept, that there would be some sort of loss of reputation, while the cheque for a meagre amount was returned.  For the said sufferings of the complainant, we are of the considered opinion that awarding a sum of Rs.10000/- towards compensation would be suffice to meet the ends of justice. Consequently, the appeal filed by the 1^st opposite party in FA.No.63/2016 is liable to be allowed in part. 

 

15.     In the result, the appeal filed by the appellant/ 1^st opposite party in FA.No.63/2016 is allowed in part by modifying the order of the District Commission in CC.No.176/2014 dt.18.3.2016, by reducing the compensation to Rs.10000/- instead of Rs.50,000/- alongwith cost of Rs.5000/- which shall paid by the 1^st opposite party alone.  There is no order as to cost in this appeal.

            Appeal filed by the Appellant/ 2^nd opposite party in FA.No.62/2016 is allowed, by setting aside the award passed by the District Commission in CC.No.176/2014 dt.18.3.2016 as against the 2^nd opposite party and the complaint against the 2^nd opposite party is hereby dismissed.  There is no order as to cost throughout.

            Registry is directed to discharge the mandatory deposit made in FA.No.62/2016 alongwith accrued interest in favour of the appellant/2^nd opposite party in FA.No.62/2016. 

         

  

S.M. LATHAMAHESWARI                                                          R. SUBBIAH

           MEMBER                                                                                            PRESIDENT

 

Additional Documents filed by the 2^nd opposite party

Ex.B1  17.01.2014   Outward items detailed report

Ex.B2                       An extract of Image mark web view for cheque inquiry

Ex.B3                                       -do-

Ex.B4  20.4.2016     Inter branch letter of appellant/3^rd opposite party

 

 

 

 

S.M. LATHAMAHESWARI                                                          R. SUBBIAH

           MEMBER                                                                                            PRESIDENT

 

INDEX : YES / NO

Rsh/d/RSJ/ ORDERS