DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II U.T. CHANDIGARH Complaint Case No.: 349 of 2009 Date of Inst: 13.03.2009 Date of Decision:26.02.2010 M/s PNS Leathers Private Ltd., # 1149, Phase-V, SAS Nagar, Mohali through its Director Sh.Gurvinder singh Tulsi. ---Complainant V E R S U S HDFC Bank Ltd., SCO 52-53, Sector 9-D, Chandigarh through its Branch Manager. ---Opposite Party QUORUM SHRI LAKSHMAN SHARMA PRESIDENT SHRI ASHOK RAJ BHANDARI MEMBER PRESENT: Sh.B.S.Alagh Adv. for complainant Sh.S.A.Sharma, Adv. for OP. --- PER LAKSHMAN SHARMA, PRESIDENT M/s PNS Leathers Pvt. Ltd. through its Director Sh.Gurvinder Singh Tulsi has filed this complaint under section 12 of the Consumer Protection Act, 1986 praying therein that OP be directed to :- i) Pay a sum of Rs.4,73,000/- towards the cheque amount. ii) Pay a sum of Rs.1,50,000/- as compensation for mental agony and harassment. iii) Pay a sum Rs.20,000/- as costs of litigation. 2. In brief the case of the complainant is that complainant-firm is doing the business of leather. The complainant-firm opened a current account (No.100802000001232) with OP in the year 2004. It had been operating the said account for the last more than 4 years. On 13.09.2008, it was noticed that two blank cheques bearing No.033770 and 033771 were missing. Complainant immediately informed the OP-Bank in writing for stopping the payment of these cheques. The complainant was informed by OP that one of the cheques bearing No.033771 for Rs.4,73,000/- has already been cleared and the amont has been transferred in the account of one Krishan Prabhu maintained with State Bank of India, Sector 10, Panchkula. According to the complainant, OP-Bank did not tally the signatures of the authorised signatory and cleared the same without any proper checking. It has further been pleaded that no cheque of company was ever signed by all the authorized signatories of the company. But the cheque in question bears the alleged signatures of all the authorized signatories which are forged. According to the complainant, the cheque in question has been encashed with the connivance of the bank officials of OP-Bank which amounts to deficiency in service. In these circumstances, the present complaint was filed seeking the reliefs mentioned above. 3. In the reply filed by OP-Bank, it has been denied that cheques in question was missing from the cheque book issued to the complainant. It has been pleaded that account number of the complainant was stamped marked on each of the cheques and the complainant is responsible for its safe custody. According to OP, on 13.09.2008 the complainant informed about the loss of the cheques No.033770 & 03371 and requested for stopping payment. The complainant was immediately informed that one of the cheques bearing No.03771 for Rs.4,73,000/- has already been cleared in favour of Sh.Krishan Prabhu on 11.09.2008 which was presented by the State Bank of India, Sector 10, Panchkula. It has further been pleaded that cheque which was cleared was in order and there was no discrepancy and even the signatures completely matched with the specimen signatures available with the Bank. It has further been pleaded that cheques in questions were seized by the police in F.I.R. No.208 dated 05.11.2008 under section 379, 420, 467, 468, 471, 120-B IPC, Police Station-3, Chandigarh and the police could not trace Krishan Prabhu due to negligence of State Bank of India, Sector 10, Panchkula. According to OP-Bank, all the signatories are authorized to sign singly/severally. A number of preliminary objections have also been taken by OP-bank such as Krishan Prabhu and State Bank of India, Sector 10, Panchkula have been not impleaded as necessary parties. In these circumstances, according to OP-Bank, there is no deficiency in service on its part and the complaint deserves dismissal. 4. We have heard the learned counsel for the parties and have gone through the entire record including documents, annexures, affidavits etc. 5. The deficiency in service on the part of OP-Bank pointed by the learned counsel for the complainant is that the signatures on the cheque (Annexure C-1) do not tally with the standard specimen signatures of the complainant given to OP-Bank. So the cheque was cleared and payment was made without properly verifying the signatures of the complainant. In order to prove this fact, the complainant got the signatures on the disputed cheque compared with his specimen signatures on the account opening form of HDFC Bank, Ltd. by Sh.Devender Parasad, Forensic Documents Expert. Sh.Devender Parasad, Forensic Documents Expert in his report dated 14.12.2008 clearly submitted that the standard signatures marked A-1 to A-9 did not tally with the questioned signatures marked Q-1 to Q-3. The questioned signatures Mark Q-1 to Q-3 are imitated forged signatures and the person who wrote the standard signatures marked B-1 to B-12 did not write the questioned signatures Marked Q-1 to Q-5. The questioned signatures marked Q-4 and Q-5 are also imitated forged signatures. The detailed reasons for the conclusions arrived at by Sh.Devendra Prasad, Forensic Document Expert have been given in his report (Annexure C-1). 6. Sh.Devender Parasad, Forensic Documents Expert has mentioned a number of divergences which are basic in nature and show that the disputed signatures on the cheque in question are not of the person who had signed the standard specimen signatures on the account opening form and elsewhere. 7. So it is proved beyond doubt that the identity of the account holder and authenticity of his signatures on the disputed cheque was not properly and carefully checked and verified by the OP before clearing the cheque of such a heavy amount in question, which according to us, is a clear and gross deficiency in service on the part of the OP as has also been held in the following cases:- i) Karnataka Bank Ltd. Vs. Sachiya Travellers Pvt. Ltd. , IV(2005) CPJ-42. ii) N.Venkanna Vs. Andhra Bank-2006 (1) CPC-463. iii) Abdul Razak and another Vs. South Indian Bank, Ltd., 2003(2) CLT (NC)-159. iv) Vijaya Bank Vs. Arya Central Trnasport Ltd., IV(2005) CPJ-363. v) Federal Bank Ltd. Vs. Arbee Star Maritime Agencies (P) Ltd., 2008(1) CLT (TN)-382. vi) SBI Vs. Amar Kumar Prem, 2005(2) CLT (Delhi)269. 8. It has further been argued by the learned counsel for the OP that complainant is responsible for the safe custody of the cheque book. The cheques in question were misplaced from the custody of the complainant who was responsible for their safe custody. On the other hand, it has been argued by the learned counsel for the complainant that even if the cheque was misplaced from the custody of the complainant still the Bank cannot resist the claim of the complainant with the defence of negligence on part of the complainant of leaving the cheque book carelessly so that third parties would easily get hold of it. In support of this contention, the learned counsel for the complainant has placed reliance upon the judgement in case of Canara bank Vs. Canara Sales Corporation, AIR 1987 SC-1603 in which the Hon’ble Supreme Court has held as under:- “When a cheque duly signed by a customer which is presented for encashment before a Bank, it carries a mandate to the Bank to pay. However, if the signature on the cheque is not genuine, there is no mandate on the Bank to pay. The Bank, when it makes the payment on such a cheque cannot resist the claim of the customer with the defence of negligence on his part such as leaving the cheque book carelessly so that third parties would easily get hold of it. This is because a document in cheque form, on which the customer’s name as drawer is forged, is a nullity. The Bank can succeed only when it establishes adoption or estoppel.” In view of the above said ratio, the defence taken by the learned counsel for the OP stating that cheques were misplaced from the custody of the complainant and that the complainant was responsible for its safe custody holds no water. 9. Faced with this situation, it has been argued by the learned counsel for OP-Bank that this Forum has no jurisdiction to entertain and try the present complaint as complicated questions of facts are involved in this case. It has been argued vehemently by the learned counsel for the OP-Bank that as per the pleadings of the complainant, the cheque is forged and that the OP-Bank in connivance with Mr.Krishna Parbhu has committed the fraud upon the complainant. According to the learned counsel, the facts so pleaded cannot be gone into by this Forum as the proceedings before this Forum are summary in nature. In support of this contention, the learned counsel for the OP-Bank has cited the following cases:- a) Daljit Singh Dogra Vs. Ing Vysya bank Ltd. and Others, 2009(4) CLT-23. b) Satish Chand Gosian and Anther Vs. Canara Bank, II(2009) CPJ-31 c) Ashwani Kumar Kukreja Vs. M/s Puran Chand Jewellers-I(1994) CPJ-16. d) Devashhish Mitra Vs. The M.D., Lakshmi Varsha Co. and Anr-I(1992) CPJ-30 (NC). e) Doneria Iron and Steel Vs. UPSEB Power Corporation and Ors.- I(2008) CPJ-281 (NC) f) Upaasana Finance Ltd. Vs. Bank of Maharashtra and Others-1998(2) CPC-665. There is no dispute with the law laid down in the cases cited above. In all the above cases, in each case, complicated questions of facts were involved which required detailed investigations and enquiry. So it was held that under such circumstances summary proceedings of trial is not sufficient. 10. In the present case, the question which needs determination is whether the said cheque bears the signatures of the complainant or not. There is substantial material on record to decide this fact. No further detailed enquiry is necessary or required for determination of these facts. Therefore, the ratio of the cases cited above is not applicable to the facts and circumstances of the present case. 11. It has further been argued by the learned counsel for the OP that the complaint is bad for non-joinder of necessary parties. According to the OP-Bank, Sh.Krishna Prabhu was a necessary party as the amount of the cheque has been credited in his account after debiting the same from the account of the complainant. This argument of the learned counsel for the OP-Bank too has no force. The complainant has not claimed any relief from Sh.Krishna Prabhu. The entire relief has been claimed by him against OP-Bank only because of the deficiency in service on its part. Therefore, Sh.Krishna Prabhu is not a necessary party in the present complaint and he has rightly not been impleaded as a party in this case. 12. Thus from the evidence discussed above, it has been conclusively proved that there is certainly a gross deficiency in service on the part of OP-Bank as it cleared the cheque for such a huge amount by debiting the amount of Rs.4.73 lacs in the savings bank account of the complainant without properly checking and verifying the signatures of the authorized persons of complainant with their standard specimen signatures as appearing on the bank account opening form. Therefore, the complainant is entitled to the credit of entire amount of Rs.4.73 lakhs to his savings bank account with OP on account of the loss of an equivalent amount suffered by him due to wrongful debit in his account by the OP-Bank. 13. In view of the above findings, this complaint is allowed with a direction to the OP to credit the amount of Rs.4.73 lacs in the savings bank account No.100802000001232 of the complainant on account of making wrongful debit entry dated 11.09.2008 for the like amount in the said account. OP is also directed to pay to the complainant the sum of Rs.1,00,000/- as compensation for causing harassment, mental agony to the complainant besides paying Rs.5000/- as cost of litigation. 14. This order be complied with by OP within one month from the date of receipt of its certified copy, failing which OP shall be liable to pay the said awarded amount of Rs.5,73,000/- to the complainant along with penal interest @ 18% p.a. from the date of filing of the complaint i.e. 13.03.2009 till its realization besides Rs.5000/- as cost of litigation. 15. Certified copy of this order be communicated to the parties, free of charge. After compliance the file be consigned to record room. Announced 26.02.2010 Sd/- (LAKSHMAN SHARMA) PRESIDENT cm sd/- (ASHOK RAJ BHANDARI) MEMBER
| | MR. A.R BHANDARI, MEMBER | HONABLE MR. LAKSHMAN SHARMA, PRESIDENT | , | | 
