Punjab

Ludhiana

CC/15/291

M/s Mahavir Polymars - Complainant(s)

Versus

HDFC Bank Ltd - Opp.Party(s)

30 Jun 2015

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

                                                                    C.C. No.614 of 30.08.2011

                                                                   RB No.291 of 30.04.2015

                                                                   Date of decision: 30.06.2015

M/s Mahavir Polymers, through Sh.Rohit Jain S/o Sh.Devi Nandan Jain, Alpha Tower, Shop No.4, Brown Road, Ludhiana and resident of House No.8007, B-34, Durga Puri, Haibowal, Ludhiana.

Complainant

Versus 

1.HDFC Bank Limited, through its Branch Manager, B/o Akal Garh, Ludhiana.

2.HDFC Bank Limited, Regd.Office, HDFC Bank House, Senapati Bapat Marg, Lower Parel(West), Mumbai-400013.

                   Opposite parties

COMPLAINT UNDER SECTION 12 OF THE

CONSUMER PROTECTION ACT, 1986. 

 

Quorum:     Sh.R.L.Ahuja, President                                        

                   Sh.Sat Paul Garg, Member.

 

Present:      Proxy counsel for Sh.A.K.Shori, Advocate for complainant.

                   Proxy counsel for Sh.Rahul Rajput, Advocate for OPs.

 

                          ORDER

 

(R.L.AHUJA, PRESIDENT)  

 

1.                Earlier, a complaint bearing No.614 dated 30.08.2011 was filed by the complainant before this Fora, which was decided vide order dated 19.04.2012 of this District Forum and against the said order, an Appeal No.725 of 2012 was filed by the complainant before the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh, which was accepted by the Hon’ble State Consumer Disputes Redressal Commission, Punjab, Chandigarh vide order dated 31.03.2015 and the impugned order dated 19.04.2012 passed by this District Forum has been set-aside and the complaint has been remanded back to this District Fora for deciding the same on the basis of the evidence already led by the parties and in accordance with law. Pursuant to which, the present complaint has been re-registered.

2.                Brief facts of the complaint are that the complainant is running his business from Shop No.4, Alfa Tower, Brown Road, Ludhiana under the name and style of M/s Mahavir Polymers and is a Sole Proprietor of the Firm and he has been maintaining various deposit accounts like Current Account, O.D.Account and has been having several family Saving Accounts besides FDR’s and his family has been maintaining sizable deposit account in the Ops Bank. The complainant is holding the Saving Bank Account No.111301000075860 in his name. It is further averred that complainant had opened the accounts in the Centurion Bank of Punjab Limited, B/O Akalgarh, Ludhiana, which was subsequently taken over by the HDFC Bank Limited alongwith all its assets and liabilities, past as well as future. On 3.12.2008, Sh.Kapil Dev joined as Manager of OP1 and on the said date, the acquisition of the Centurion Bank of Punjab had already been effected and the customers were allowed to continue to use the cheque books of the Centurion Bank of Punjab to enable them to continue with their transactions without any difficulty. The Branch Manager was known to the complainant and he had been transferred from HDFC Bank Branch Office Jagraon, therefore, he approached the complainant for placing more deposits in the shape of FDR’s. In view of the old acquaintance and considering the good relations with the Bank, the complainant on 8.12.2008 handed over cash amounting to Rs.6 lakhs for the issuance of FDR and the said Manager sent Mr.Amar and Mr.Pankaj both employees of the Bank for the collection of cash and the pay in slip of HDFC bank, of account number of the complainant was dully filled in. The said manager has acknowledged the receipt of the cash on the pay in slip and has also given the noting that “CASH RECEIEVD FOR FDR 6,00,000.” The Branch Manager has duly signed the pay in slip and has put in his specimen signatures No.8788, allotted to him by the bank and the pay in slip also bears the round rubber stamp of OP1. The said receipt was issued in the name of M/s Mahavir Poloymers having an account No.13202320000034 and the details of cash handed over has also been duly mentioned which was 600 notes of the denomination of Rs.1000/-. Further, it is averred that when after the lapse of about one month, no FDR was issued, complainant filed a complaint on 9.1.2009 and then ensued the process where in numerous visit to the bank branch and reminders were sent to the branch as its controlling offices but till date no FDR has been issued by the Bank to the complainant but vide their letter dated 24.9.2009, Ops rejected the claim of the complainant on the frivolous grounds that his claim is not based on the credible documentary evidence without mentioning as to what type of more evidence they required and without mentioning as to why his evidence has been found to be non credible. Complainant had filed a complaint in the office of Banking Ombudsman, Chandigarh, but the same was rejected vide letter No.6109 dated 29.12.2009. Due to rejection of the genuine claim of the complainant by the Ops, complainant has suffered mental pain and agony and such act and conduct of Ops, claimed to be deficiency in service on their part by the complainant. Hence, by filing the present complaint, complainant has prayed that Ops be directed to refund a sum of Rs.6 lakh alongwith interest @15% which comes to Rs.9.15 lakh till 30.8.2011 and also to pay Rs.25,000/- as compensation and Rs.15,000/- as litigation expenses to the complainant.

3.                Upon notice of the complaint, OPs were duly served and appeared through their counsel Sh.Rahul Rajput, Advocate and filed their written statement and took up certain preliminary objections qua complaint being false, frivolous and vexatious in nature; complainant had concealed the material facts from this Hon’ble Forum and has not approached with clean hands; maintainability of the complaint and mis-joinder of necessary parties. It is submitted that complainant is having saving account No.13201000068169 with answering Ops and complainant produced in this complaint forged and fabricated documents to extract money from the answering Ops and complainant never gave any money to employees of the answering Ops Bank. On merits, the facts regarding complainant being old customer of answering Ops Bank, merging of Centurion Bank of Punjab with answering Ops bank, receiving of letters of the complainant and refusing of claim of the complainant are admitted. But it is denied that in the normal practice, branch managers of bank in order to meet their targets approached the customers for deposits. The fact regarding Mr.Kapil Dev knew the complainant is denied for want of knowledge. It is denied that complainant handed over Rs.6 lakh as alleged by him to Mr. Kapil Dev for issuance of FDR. It is denied that pay in slip was issued by the employees of answering Ops bank. It is submitted that round rubber stamp was misused by the complainant and answering Ops have a right to take proper criminal action against the complainant. The documents submitted by the complainant are forged and fabricated. It is denied that complainant is entitled for any claim. At the end, denying any deficiency in service on their part and all other allegations of the complainant, answering OPs prayed for dismissal of the complaint with costs.

4.                Both the parties adduced their evidence in the form of affidavits and documents.

5.                We have heard the learned counsel for both the parties.

6.                 Written arguments on behalf of complainant were filed on 5.6.2015, in which, the contents of the complaint has been reiterated. Further, it has been submitted that the complainant is running business quite peace loving citizen and he has various accounts with the Ops bank and on 3.12.2008, one Kapil Dev had joined Manager on OP1, who met with the complainant and represented that Centurian Bank of Punjab had merged with OP bank and accordingly, cheques of that bank can be got encashed from OP bank. Since Kapil Dev was known to the complainant, therefore, the complainant approached the Manager of the bank for placing deposit in the shape of FDR as an investment. The complainant gave Rs.6 lakh to Kapil Dev Manager, who in turn had handed over the amount to Mr.Amar and Mr.Pankaj employees of the bank to deposit in the shape of FDR and pay in slip of the OP bank was handed over to the complainant showing the receipt of Rs.6 lakh. However, the lapse of about one month, no FDR was issued to him. After a gap of about one month, the complainant started correspondence with the OP bank but they rejected the claim of the complainant on the frivolous grounds and the same claimed to be deficiency in service. Further, it has been submitted that the complainant had filed First Appeal No.725 of 2012 before the Hon’ble State Commission against the order dated 19.4.2012 which was set aside by the Hon’ble State Commission with the direction to this Hon’ble Forum to decide the matter afresh. The Hon’ble State Commission in the remand order had already given concrete findings that the OP had registered FIR No.5 dated 17.1.2009 against Kapil Dev Manager with P.S.Div.No.1 for mis-appropriation of various amounts. In the remand papers dated 16.3.2009, there is clear cut admission that Rs.16 lakh allegedly given by the present complainant including the amount of Rs.10 lakh involved in the present complaint has been mis-appropriated by Kapil Dev, therefore, the allegations of fraud were qua Kapil Dev and other employees. The complainant is required to prove whether he deposited 6 lakh with Ops bank for the purpose of FDR and whether any FDR was issued? Further, it has been submitted that the written statement of Ops clinches the entire issues in as much as it is admitted that the complainant was having Saving account with the bank and pay in slip annexure B clearly indicates that the amount of Rs.6 lakh was handed over on 8.12.2008 for issuance of FDR and the amount was given in cash. There is endorsement of Manager Kapil on the pay in slip that the amount has been received for issuance of FDR.

7.                On the other hand, written arguments on behalf of Ops were filed on 17.6.2015, in which, it has been submitted that the complaint filed by the complainant is false, frivolous and vexatious in nature. The complainant never deposited the impugned cheque with the complainant bank or with its employees. The impugned receipt exhibited by the complainant is not signed by the complainant employee and stamped affixed on the impugned receipt is not of Ops bank. The cheque NO.84062 was encashed by the complainant himself as it bears his name and the passbook of the complainant itself substantiates this very fact. Onus lay on the complainant to prove that cheque in question was given in branch for FDR but complainant miserably failed to discharge its onus. Mere averment in the complaint by itself was not sufficient to prove the factum of deposit of cheque with the Ops. The complainant never appeared in the witness box in FIR No.5 dated 17.1.2009 only. There is allegation of fraud in the remand papers and that too cannot be look into by this Hon’ble Forum as that are not exhibited documents. The impugned cheques were bearer cheques and as per section 85 of the Negotiable Instruments Act, where cheque payable to order purports to be endorsed by or on behalf of the payee. The drawee is discharged by payment in due course and also where cheque is originally expressed to be payable in due course to the bearer itself. In the instant case, the cheques were bearer cheques and there is no deficiency in service on the part of the bank. The entries made in the bank ledger book are the correct one. The Learned State Commission has only remanded the present complaint to look a matter regarding the deposit of slip in question and the complainant miserably failed to prove that fact in its complaint. Further, relied upon judgments titled as Supdt. Of Post Office and others vs. Mahendra Nath Basak-1995(2)CPC-471(N.C.); K.V.Sheeba vs. Canara Bank and others-2013(3)CPC-113(N.C.) and Karnataka Bank Ltd. vs. Sheela Rani(deceased) through LR and others-2014(2)CPC-88(N.C.).

8.                We have gone through the written arguments filed by learned counsel for both the parties alongwith judgments filed by the learned counsel for the OPs and have also gone through the record on the file very carefully.

9.                Perusal of the evidence of the complainant reveals that the complainant has furnished affidavit of Sh.Rohit Jain in evidence as Ex.CW1/A, in which, he has reiterated all the contents of the complaint. Further, the complainant has placed on record documents Annexure-A copies of statement of account, Annexure-B copy of Pay in Slip and Annexure-C copies of reminders.

10.              On the other hand, perusal of the evidence of the Ops reveals that learned counsel for the Ops has furnished affidavit EX.RW1/A of Mrs.Sylvia Chowdhury, Branch Manager of Op1, in which, she has deposed interms of the written statement filed by the Ops. Further, learned counsel for the Ops has relied upon document Ex.R1 copy of pay in slip dated 8.12.2008 amounting to Rs.6 lakh.

11.              Perusal of document Annexure-B(Ex.R1) copy of pay in slip dated 8.12.2008 reveals that a sum of Rs.6 lakh was received by the official of OPs bank alleged to be Manager namely Sh.Kapil Dev in cash from the complainant Sh.Rohit Jain for issuance of FDR on 8.12.2008. Since, it is proved fact on record that the complainant had paid Rs.6 lakh in cash to the official of Ops bank in order to get the Fixed deposit Receipt. Document Annexure-B (Ex.R1) i.e. Pay in slip which was issued by the official of the Ops bank under the signature and seal of the bank. So, once it is proved on record that the payment was made by the complainant to the officials of the Ops bank, it is the legal obligation of the Ops bank to explain that whether the FDR of the aforesaid amount was issued by the bank or not and in case, the FDR was not issued by the bank, then it is a clear cut case of deficiency in service on the part of the Ops bank.

12.              Though, the Ops have taken the plea that the complainant has prepared the forged and fabricated documents in order to extract the money from the bank. But perusal of the evidence of the Ops reveals that the Ops have simply relied upon the affidavit Ex.RW1/A of their Branch Manager of Mrs.Sylvia Chowdhury, who has deposed and admitted the deposit of amount of the complainant with the bank. However, she has further deposed that documents produced by the complainant are forged and fabricated to extract money from the Ops. She has further deposed that the complainant had never given any money to employee of the OP bank. The complainant never handed over Rs.6 lakh to Mr.Kapil Dev Mohan for issuance of FDR. But perusal of document Ex.R1 reveals that Ops themselves have relied upon this document which they have produced from the custody of the bank. Once, it is proved on record that Ops bank is in possession of the aforesaid document and have produced in their evidence, then now it is for the Ops bank for rebut to execution of this document by leading cogent and convincing evidence which the Ops bank failed to do so.

13.              Perusal of the record further reveals that FIR No.5 dated 17.1.2009 u/ss 409, 420, 405, 467,468 and 120-B of IPC against Kapil Dev was got registered at P.S.Divison No.1, Ludhiana City on the written complaint of Sh.Ajay Singhania the then Branch Manager of Ops bank, for mis-appropriation of various amounts. The copy of request for police remand which was made by the then Deputy Superintendent of Police, Crime Branch, Punjab, Patiala of seeking police remand, vide which, it has been categorically mentioned that police was also to recover the amount of Rs.16 lakh which was received for preparing FDR to the accused meaning thereby that it was very well within the knowledge of the Ops bank that a sum of Rs.16 lakh including Rs.6 lakh was received by the aforesaid Kapil Dev, the then Branch Manager of Ops bank on behalf of the bank in order to deposit the same in the fixed deposit amount of the complainant. However, the same was not deposited and the FDR was not issued by the bank to the complainant due to the reason best known to the said Kapil Dev and the bank authorities. It is a well settled principle of law that Principal is liable for the acts of his agents which he has committed during the course of his employment. So, under these circumstances, it can be presumed that Ops bank is liable for the acts of his the then Branch Manager namely Kapil Dev and other officials of the bank. So, non issuance of the FDR to the complainant for such a long time clearly amounts to deficiency in service and unfair trade practice on the part of the Ops.

14.              In the light of our above discussions, we hereby allow this complaint and as a result, we hereby direct the Ops to make refund of Rs.6 lakh to the complainant alongwith interest @9% p.a. from the date of deposit till the payment. Further, Ops are directed to pay Rs.15,000/-(Fifteen thousand only) as compensation to the complainant on account of mental pain agony and harassment suffered by him and Rs.5000/-(Five thousand only) as litigation expenses to the complainant. Compliance of order be made within 30 days from the date of receipt of copy of this order which be made available to the parties free of cost and thereafter the file be consigned to the record room.

 

(Sat Paul Garg)                                         (R.L.Ahuja)  

   Member                                                  President

 Announced in open Forum

on 30.06.2015

Gurpreet Sharma