Punjab

StateCommission

FA/12/1302

SBI - Complainant(s)

Versus

G.B.Enterprises - Opp.Party(s)

Kapil Kakkar

24 Apr 2015

ORDER

First ADDITIONAL BENCH

 

 

PUNJAB STATE CONSUMER DISPUTES REDRESSAL

COMMISSION,

DAKSHIN MARG, SECTOR 37-A, CHANDIGARH

 

First Appeal No. 1302 of 2012

 

                                                                                                                             Date of institution: 01.10.2012

                                                                                                                             Date of Decision:   24.04.2015   

 

1. State Bank of India, Dalhousie Road, Pathankot through Chief Branch Manager.
2. The Chief General Manager, State Bank of India, Local Head Office Sector 17-B, Chandigarh.

                                                                                                              …..Appellants/Opposite Parties

 

Versus

 

G.B. Enterprises, Indira Colony, Gall No. 6 Pathankot, Tehsil &District Pathankot, through its Proprietor Gulshan Kumar son of Bansi Lal.

                                                 ....Respondent/Complainant

 

First Appeal against order dated 19.07.2012 passed by the District Consumer Disputes Redressal Forum, Gurdaspur.

Before:-

Sh. J.S. Klar, Presiding Judicial Member

Sh. Vinod Kumar Gupta, Member

Sh. Harcharan Singh Guram, Member

Present:-

For the appellant                   :          Sh. Kapil Kakkar, Advocate

For the respondent                :         Sh. R.D. Sharma, Advocate

                                                 

Sh. Harcharan Singh Guram, Member

 

 

                                                          ORDER

 

                  This appeal has been preferred by appellants (hereinafter referred as the OPs being arrayed as such in the complaint, against the respondents of this appeal, being the complainant in the complaint, challenging the order dated 19.07.2012 passed by the District Consumer Disputes Redressal Forum, Gurdaspur (hereinafter referred as the District Forum) in consumer complaint No. 36 of 01.02.2012, vide which, the complaint filed by the respondent/complainant(hereinafter referred as the complainant) was allowed with a direction to the OPs to credit the amount of Rs. 69,680/- along with interest charged on the said amount from the date of its debit and also gave the the liberty to OPs to recover the amount wrongly paid to M/s.Sify Technologies Ltd by following due procedure as per law.

2.               Brief facts of the case are that Gulshan Kumar complainant was the proprietor of firm Ms. G.B. Enterprises and he was having his Current Account No. 30329589089, which was having CC Limit of Rs. 5 Lac since 2008. The complainant issued a cheque No.603653 dated 16.02.2008 for a sum of Rs. 69,680/- drawn on State Bank of India Pathankot in favour of M/s Sify Technologies Ltd. It was stated that after issuance of cheque, there arose some dispute between the complainant and M/s Sify Technologies Ltd. He approached his banker and made written request dated 27.02.2008 for stopping the payment of the above referred cheque, however, OP No.1, received the stop payment instructions, however it did not incorporate the same and cleared the cheque on 29.02.2008. The amount of Rs. 69,680/-, was debited in his current account/CC account. Due to this fact, the complainant suffered the business loss and also had to pay interest on the said amount, as duly charged by the bank. As per account statement, there was debit balance of Rs. 94,508/- as on 29.07.2010. It was further stated that the OP bank was threatening the complainant through their agents and employees and recovering agents to get the said over due amount recovered from the Pension account of Bansi Lal i.e. the father of the complainant. It was stated that due to coercive methods adopted by OP No. 1 he was forced to file the civil suit No. 313 of 15.09.2010, which was dismissed vide judgment and decree dated 12.10.2010 passed by Civil Judge Junior Division Pathankot on the ground of having no jurisdiction due to securitization Act and the same was not decided on merit. He filed his consumer complaint in the District Forum and prayed for issuance of directions to Ops to refund the amount of cheque wrongly paid by the OPs and also to reverse the interest charged on the said amount. He further sought a direction to be issued to the OPs to pay him a sum of Rs. 2,00,000/- along with interest @ 18% p.a. till realization of the amount on account of harassment suffered by him from OPs.

3.               Upon notice, OP No. 1 & 2 jointly filed written reply taking the plea that the complaint is related to the commercial purpose, as such complainant is not a consumer under the Consumer Protection Act. It was further stated that as per section 34 of the Securitisation and Reconstruction Financial Assets and Enforcement of Security Interest Act, 2002 provide that “No Civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under the said Act to determine and no injunction shall be granted by any court under this Act or under the Recovery Debts Due to Banks and Financial Institutions Act as such District Forum was not having any jurisdiction to entertain the complaint. Further they took the plea that the complaint was time barred under section 24-A of the Consumer Protection Act. It was submitted by them that the matter of complaint had already been decided by the Civil Court by Civil Judge Junior Division Pathankot, vide its order dated 12.10.2011. On merits, they admitted the contents to the efffect of receiving stop payment instruction and also passing of the cheque by them. They admitted that as per bank statement, the debit balance in the complainants account was Rs. 94,508/- as on 29.07.2010. They denied the allegation to the effect that no amount from the account of Bansi Lal i.e. father of the complainant was ever debited by them. They also denied the fact that complainant had suffered any loss due to passing of the cheque, as alleged by him. They submitted that the complaint filed by him against them was misconceived. He was not entitled to get the amount of Rs. 2,00,000/- as compensation from them along with 18% interest as claimed by him because no deficiency for negligence on their part in clearing the cheque of Rs. 69,680/- and they prayed that the complaint filed by the complainant be dismissed with costs.

4.          The complainant tendered in evidence affidavit of the complainant Ex-C1, statement of Account Ex-C2, letter written by Bansi Lal to Chief Manager State Bank of India dated 02.12.2010 Ex.C3, representation dated 10.12.2010 given by the complainant to the OP bank Ex.C4, copy of the complaint filed by the complainant in civil court of Additional Civil Judge Junior Division Pathankot Ex.C5, copy of the cheque Ex.C6 and closed his evidence. OPs tendered into evidence copy of the order of Civil Judge Junior Division Pathankot dated 12.10.2011 Ex-R1, copy of letter posted under UPC addressed to the complainant Ex-R2, copy of the legal notice dated 14.10.11 to the complainants address along with notice issued to Bansi Lal father of the complainant as being guarantor of the complainant along with copy of the registered notice dated 04.05.2010 under Securitization Act. Copy of the equitable mortgage in favour of the bank executed by complainant, all the above documents included under Ex.R-2, statement of account of the complainant Ex.R/3 and affidavit of M.K. Bhatti, Chief Manager State Bank of India, Dalhousie Road Branch Pathankot Ex-Rw1 and closed their evidence. The District Forum heard the arguments of the counsel of the parties and perused the record on file and allowed the complaint of the complainant as per aforesaid order.    Aggrieved by the order, the Ops have filed the present appeal in this Commission on the ground that the order passed by the District Forum was passed against the settled proposition of law and also against the factual matrix.

8.          We have heard the arguments of the counsel of the parties, and have perused the record of the District Forum which was called at the stage of admission. The complainant in his complaint had only claimed an amount of Rs. 2,00,000/- along with interest on account of harassment, mental agony etc but District Forum had directed the OPs to refund the amount of Rs. 69,680/- along with interest charged on the said amount from the date of its debit in the account of the complainant. Though there was no claim or ground taken by the complainant to this effect. They made an attempt to recover the over due amount from him, even then the said complaint was time barred as per section 24-A of the Consumer Protection Act. It has been stated that the District Forum failed to notice the fact that as per version given by the complainant in his complaint, it was mentioned that he visited the branch office, and gave a  written request to the Ops to stop the payment of the cheque dated 27.02.2008, but no copy of the letter was given to them by the complainant nor brought on record. Thus, District Forum had wrongly come to the conclusion that the complainant had given written request to the bank. However, it has been submitted that the complainant approached OP and made an oral request to them on 28.02.2009 to clear the said payment of the cheque and that the said cheque was cleared by them. They made a prayer in view of the above facts that no deficiency in service or unfair trade practice was proved on there on their part. Thus made a prayer to allow the appeal and to set aside the order passed by the District Forum on the ground that the relief which was granted by the District Forum was not even claimed by the complainant, as such the order of District Forum was not sustainable in the eyes of law.

9.          During the course of arguments, the counsel of the OPs stated that when there is no prayer made by the complainant for refund of Rs. 69,680/- then the District Forum had gone beyond the prayer clause and allowed the complaint and directed them to pay back the amount, though the complainant had only prayed for a sum of Rs.2 lac along with 18% interest in his complaint. But the District Forum had gone beyond the pleadings and allowed the complaint and directed them to pay back the amount debited by them along with interests charged to his account from the date of debit.

10.        However, counsel for the complainant argued that the order passed by the District Forum is just and well reasoned order and needs to be affirmed.

11.        We have gone through the record and also perused the order of the civil court suit No. 313 filed by the complainant against the OPs. In the said order, it was stated that civil court had no jurisdiction to entertain the suit when the litigation is pending under the Securitization and Reconstruction Financial Assets and Enforcement of Security Act, 2002.  As such no prime facie case was made out in favour of the complainant and disposed of the application vide its order dated 08.11.2010. We have perused the contentions of the complaint, and the grounds of the appeal and the admitted case of the OPs is that though the complainant visited the Branch Office on 27.02.2008 and requested them to stop the payment of the cheque amount, and  as per their admission made in the Civil Court, it was admitted that stop payment of the cheque instructions were duly received by them on 27.02.2008, however, the cheque was passed by the OPs when they received verbal instructions from the complainant. As per manual laid down by the IBA for customer services to be followed by all commercial banks, the banks had to act on the instructions received from customers. It was their prime duty to take a written request from the complainant in order to pass the disputed cheque. In the grounds of the appeal, they had taken the plea that no written request was given by the complainant on 27.02.2008 and the same was not produced by the complainant. When the point of written request is being stressed upon by the OPs, we fail to understand how the OPs have not taken written instructions of the complainant, for passing of the cheque and how they have passed the cheque on the oral/ verbal instructions of the complainant. From the perusal of the account statement, it is seen by us that the amount was debited in the current account of the complainant and it was being charged continuous interest rate on the overdrawn amount in the said current account. The balance by way of cheque, the interest on said account showed a debit balance of Rs. 95,000/- as on 12.02.2008. We have gone through the written reply filed by the OP bank where in they have denied that they have not debited any amount from the account of the Bansi Lal. However as per Ex.C-3, it clearly states that his account had been freezed on the ground that he was standing as a guarantor to the loan awarded by the firm of his son and the recovery case against the said firm was duly filed by the bank against his son and the said advance was duly secured by way of EMTD of property in favour of the bank which was in their possession as such there was no need of question to freeze his account. He had further stated and the said letter that no notice was issued to him by OPs regarding freezing of his account. As per Section 13 A part 4 of the Securitization Act when any notice under Securitization is issued to any party, the bank is to provide reply after a representation is made by the borrow to them and only providing that reply on the representation received from the borrower, they can proceed under Securitization Act. From the perusal of the record, we do not find any letter written by the OPs to the complainant after 10.12.2010 in view of his representation as per provisions in the SRFAESI Act. There was a breach of rules framed for recovery of assets under SRFAESI Act by the OPs.

13.        We have gone through the order of the District Forum, and looked into the directions issued to the OPs bank are as under:-

(i)          To reverse the entry of the wrongly passed cheque by them on 29.02.2008 in the current account.

(ii)         To reverse the interest charged upon the said entry.

(iii)        To recover the amount wrongly passed to M/s Sify Technologies Ltd. To initiate a recovery proceeding against the complainant under the Securitization and Reconstruction Financial Assets and Enforcement of Security Interest Act (SRFAESI).

14.        As such we find that the OP bank is trying to justify their act of passing disputed cheque on 29.02.2008 and stressed the point that no written instructions was given by the complainant to them on 27.02.2008 to mark the stop payment of the cheque in their record. But at the same time they had taken a contrary stand for not having taken written request from the complainant and had acted on the verbal instructions of the complainant to pass the disputed cheque on 29.02.2008. Once the plea is raised by the OP that  no written instructions was ever given by the complainant  to them to stop the payment of the cheque, rather the fact of written request gets fully corroborated from the judgment of the Civil Court, and at the same time no written instructions were taken by them from complainant to justify their act of passing the cheque of their own. In view of the above observations we are of the opinion that the bank had acted wrongly while passing the cheque on 29.02.2009. The stop payment instructions were duly given to them by the complainant finds mention in civil court order. In view of the above, we are of the opinion that the order passed by the District Forum is sustainable in the eye of law. In view of the above, we do not find any merit in the appeal and the same is hereby dismissed.

13.        The OPs have deposited a sum of Rs. 25,000/- at the time of filing the appeal in the Commission, registry is hereby directed to remit the said amount along with interest if any accrued there on, by way of demand draft to the complainant/respondent after 45 days from the date of this order. The Ops are further directed to comply with the remaining instructions of the District Forum order.

14.              The arguments in this appeal were heard on 20.04.2015 and order was reserved. Now the order be communicated to the parties as per rules.

15.              This appeal could not be decided within the statutory period due to heavy pendency of court cases.

(J.S. Klar)

           Presiding Judicial Member

                                                                 

 

                                                           (V.K. Gupta)

                                                            Member

 

   

                                                  (H.S. Guram)

April 24, 2015                                                                                      Member              

Surinder