Per Justice Mr.S.B. Mhase, Hon’ble President
Complainant is a private limited company incorporated under Companies Act, 1956. Opponent is a banking company while opponent no.2 is a branch office of opponent no.1. Complainant is carrying on business of life insurance. Complainant is having account no.000905007066 with opponent no.2. The dispute is in respect of two cheques bearing no.691654 and 749512. The cheque no.691654 was issued on 19/11/2008 to Bhagyshri Financial Services. It is the cheque of `3,70,213/-. The another cheque bearing no.749512 was issued on 25/11/2008 in the name of Nasimbanu and it is a cheque for `11,35,000/-. The first cheque was presented to the opponent no.2 and it was honored by opponent no.2 on 04/12/2008 and accordingly, said transaction is reflected in the account of complainant. The second cheque was presented to opponent no.2 on 10/12/2008 and accordingly, said transaction reflected in the account of the complainant. The grievance of the complainant is that both the cheques are forged and therefore, opponent ought not to have honored these cheques unless and until opponents informed to the complainant and have obtained acquiesce from the complainant in respect of said cheques. Complainant submits that these cheques were not issued by the complainant in favour of respective parties and therefore, since these cheques were honored without any acquiesce by the complainant, there is deficiency in service on the part of opponent no.2 and therefore, complaint has been filed for the prayers made in the complaint.
Opponents filed a written version and have denied the contention raised in the complaint. There appears to be a twofold defence taken by the opponent 1 and 2. Firstly, there is nothing in both the cheques which warned officers of opponent no.1 and 2 to say that cheque was forged one and that it should not be honored. According to opponents, in both cheques the name of payee and amount to be paid to the payee in words, figures are typed one and there was no any sort of overwriting and/or any sort of tampering. So far as the signatures of the complainant’s officers are concerned, they are the signatures of their authorized officers and there is no dispute over these signatures. Thus, it is the case of the opponent no.1 that signatures of the drawer are admitted and so far as the name of drawee or payee is concerned and the figures or the words on the cheques are concerned, there is no tampering. So looking to the cheques by the bare eye, it was not possible to identify that those cheques were fraudulent in any way. It is further their contention and submission that by way of abundant precaution they have verified the cheques under ultra violet rays and accordingly endorsement is made on both the cheques. In short, according to opponent nos.1 and 2 every possible precaution before honoring the said cheques has been taken by them and therefore, having satisfied that the cheque is genuine one, the transaction as reflected in the cheque had been completed and shown in the account book and therefore, they contended that there is no deficiency in service on the part of opponent nos. 1 and 2 and prayed for dismissal of the complaint.
Second ground raised by the opponents is that the complainant is a insurance company carrying on business of life insurance and these cheques were issued by them in their business in favour of concerned payee and since transaction is a commercial transaction, the complaint is not tenable because according to them, the complainant is not a consumer as defined under Section 2(1)(d) of Consumer Protection Act, 1986.
In order to demonstrate that the cheques are fraudulent, Ld.Counsel for the complainant submitted that complainant has already lodged a complaint with the police station and FIR has been registered against unknown person. He further submitted that cheque no.749512 was not issued by the complainant. It is his case that complainant has issued the cheque of same number in favour of one Ms.A.Priyanka for an amount of `276.60 on 08/10/2008 and he submitted that there cannot be two cheques of same number and therefore, according to him, the opponent ought not have sanctioned the cheque of `11,35,000/- in favour of Narsimbanu.
We have pursed both these cheques and account statement. It is interesting to note that from the numbers of said cheques it appears that both the cheques are having same number but however, cheque which was issued in favour of Priyanka for an amount of `276.60 was never presented to the opponent no.2 by the said Priyanka. It is only the cheque which was issued in name of Narsimbanu on 21/11/2008 which was presented to the opponents on 08/12/2008 and the said cheque has been cleared. Since the cheque in the name of Priyanka was never presented, it was not possible for the opponent no.2 to know that there are two cheques of the same numbers and therefore, opponent was put to the guard. Since the, other cheque was never presented before opponent no.2, there is nothing before opponent no.2 to make enquiry in respect of genuineness of the cheque.
What we find also that the cheque in the name of Priyanka appears to be issued on 08/10/2008 though appears of the same number, but original of same is not available and produced before this Commission. What we find is that unless and until the bankers-opponent no.2 gets both the cheques simultaneously the opponent no.2 cannot doubt the genuineness of the cheque. Apart from that cheque in the name of Nasimbanu was honored by the opponent after verification of the signatures and verification under ultra sound rays and therefore, submission made by the Ld.Counsel for the complainant is without any merit. So far as the other cheque is concerned, nothing has been produced on record that alleged cheque was fraudulent one except an allegation. Not only that but we find that complaint has been lodged as against the Bhagyashri Financial Services. So far as the present record is concerned, no such copy of First Information Report is placed on record. Assuring that such complaint exists in police record however, nothing has been produced to bring to our notice to show that as to how cheque has been issued in favour of Bhagyashri Financial Services is a fraudulent one. Therefore, looking to the status of the banker, what we find that banker has taken precaution while honoring the cheuqes and completed the transaction.
One of the ground raised by the Ld.Counsel for the complainant is that before honoring such high value cheque, the opponent ought to have contacted the complainant and after verification and acquiescence from the complainant about said cheque, the cheque should have been honored. We wanted to know from the Ld. Counsel for the complainant that as per which provision or Section of the Negotiable Instrument Act it is provided that unless and until the negotiable instrument is acquiesced by the drawer, it should not be honored. Ld. Counsel was not in position to point any provision from the Act. Thereafter, we wanted to know from the Counsel whether there are any terms of contract between the complainant and opponent which specify that before honoring the cheque of the complainant opponent is under duty to get confirmation from the complainant about genuineness of cheques. No such contract has been brought to our notice and/or has been placed on record. Thirdly, we wanted to know that is there any otherwise material which creates legal obligation on opponent no.2 to get confirmation from the complainant. Ld. Counsel had no answer. These questions were asked by us in view of the definition of the deficiency as reflected in Section 2(1)(g) of Consumer Protection Act, 1986. Here “deficiency” means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or
1. under any law for the time being in force or
2. has been undertaken to be performed by a person in pursuance of a contract or
3. otherwise in relation to any service”.
Thus, we do not find that there is a legal or statutory duty or contractual duty and/or a duty arising otherwise, namely, guidelines issued by the RBI or any trade banking practice existing in the filed. In the absence of such duty, such obligation cannot be expected to be discharged by opponent while giving such banking service. In the result, we find there is no deficiency in service on the part of opponent nos.1 and 2.
Secondly, so far as the claim in respect commercial transaction is concerned, we are not accepting submission of Ld.Counsel for the opponents. The complainant has opened account with the opponents. Under that account the opponent is supposed to render banking service to them and in that account the complainant may carry various transactions which may be commercial or may not be commercial one also. Therefore, we find that this is not a banking account wherein exclusively commercial transactions were dealt with. Apart from that commercial transactions contemplates the transactions carried out for profit. The account has been opened for the business purposes or making payment to the parties to whom the complainant desires to make payment. But by opening an account with the opponents no profit is generated in favour of the complainant and therefore, simplicitor opening of an account by a company like complainant cannot be said to be a commercial transaction unless and until it is shown that by operating or opening such account itself, the profit is generated in favour of the complainant. No such material is placed on record. In the result, we do not find any substance in the contention raised that bank account was opened for commercial purpose and therefore, complainant is not a consumer. In the present facts and circumstances there is relationship of consumer and service provider between the complainant and opponent.
For the prepositions which we have considered, we relied upon the judgement of Hon’ble National Commission passed in the matter of State Bank of India V/s. Jain Irrigation System Ltd., 1-1995(1) CPJ, 204.
Under these circumstances, we find that complainant is miserably failed to make out a case for deficiency in service against the opponent. There appears to be no merit in the complaint filed by the complainant. Hence, we pass the following order :-
:-ORDER-:
1. Compliant stands rejected.
2. Parties are left to bear their own costs.
3. Dictated on dais in presence of parties,.
4. Copies of the order herein be furnished to the parties as per rule.
Pronounced
Dated 3rd February 2011
