Punjab

StateCommission

FA/474/2014

Darshan Kumar Sohar - Complainant(s)

Versus

Indian Overseas Bank & another - Opp.Party(s)

D.K. Singal & Ammish Goel

11 Mar 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB    DAKSHIN MARG, SECTOR 37-A, CHANDIGARH.

 

  First Appeal No.474 of 2014                                                    

            Date of institution  :    23.04.2014  

Date of decision     :    11.03.2015

 

Darshan Kumar Sohar S/o Chajju Ram, R/o House No.70, Vishal Nagar, Pakhowal Road, Ludhiana.

…….Appellant/Complainant

Versus

1.      Indian Overseas Bank, Pakhowal Road, Ludhiana, through its          Branch Head.

2.      The Indian Overseas Bank, 763, Anna Salai, Chennai-600002,        through Chairman-cum-Managing Director.

                                                          …Respondents/Opposite Parties 

First Appeal against the order dated 21.03.2014 of the District Consumer Disputes Redressal Forum, Ludhiana.

Quorum:- 

 

          Hon’ble Mr. Justice Gurdev Singh, President

                        Mr. Baldev Singh Sekhon, Member

                        Mrs. Surinder Pal Kaur, Member

 

Present:-

 

   For the appellant         : Shri D.K. Singal, Advocate

   For the respondents   : Shri Ritesh Kumar Bansal, Advocate.

 

 

JUSTICE GURDEV SINGH,  PRESIDENT :

 

                    This appeal has been preferred by the appellant/ complainant against the order dated 21.03.2014 passed by District Consumer Disputes Redressal Forum, Ludhiana (in short, “District Forum”), vide which the complaint filed by him, under Section 12 of the Consumer Protection Act, 1986, for directing the respondents/ opposite parties to pay a compensation of Rs.1,00,000/- for the mental torture and physical harassment suffered by him on account of deficiency in service on their part, was dismissed.  

2.  The complainant alleged, in his complaint, that in respect of his account No.112302000000533, he had drawn a cheque on the opposite parties-Bank in favour of Care Public Offer Escrow Account R. That cheque was bearing No.751438 dated 11.12.2012 for Rs.15,000/-. The same was sent to the opposite parties for encashment by Kotak Mahindra Bank, but the same was dishonoured, vide memo dated 13.12.2012 with the remarks “title of account required”. The cheque was not defective in any manner and was given for payment. The same was dishonoured by the opposite parties with mala fide intention, as he used to issue the cheques in the same manner and on all the previous occasions, those were cleared by them. There were sufficient funds in his account and the cheque should have been encashed. As a result of the dishonouring of the cheque; he suffered loss of reputation, mental tension and harassment and for the same, he is entitled to a compensation of Rs.50,000/-. As a result of the dishonour of the cheque, he was not allowed to purchase shares, which were having good market value and there was every chance of the increase in the price thereof in future. Thus, he suffered financial loss also; for which he is entitled to a compensation of Rs.50,000/-.
3. The complaint was contested by the opposite parties, who filed joint written reply before the District Forum. In the written reply, they admitted that the cheque was so drawn by the complainant in respect of his account in favour of the party, mentioned therein and that the same was dishonoured. While denying the other allegations made in the complaint, they pleaded that the cheque was never presented in its Branch at Pakhowal Road. The same was issued from the current account of the firm and seal of the firm was not affixed thereon. It was correctly returned by the Central Clearing Office with the remarks “title of account required”. There was no deficiency in service on their part and, as such, they are not liable to pay any such compensation, as claimed in the complaint. The complaint has been filed, just to harass them in order to achieve ulterior motive. They prayed for the dismissal thereof with costs.
4. Both the sides produced evidence in support of their respective averments before the District Forum, which after going through the same and hearing learned counsel on their behalf, dismissed the complaint, vide aforesaid order.
5. We have heard the learned counsel for both the sides and have also carefully gone through the records of the case.
6. It was submitted by the learned counsel for the complainant that it was wrongly concluded by the District Forum that the cheque was never presented before the opposite parties for encashment and that the same was presented before Central Back Office, CBO- Ludhiana and, as such, there was no deficiency in service on the part of the opposite parties. From the evidence, it stands proved that the cheque was drawn by the complainant on opposite party No.1, as is clear from the cheque Ex.C-2 and it was that branch which returned the cheque with memo of dishonour; though the same might have been issued by the Central Office. It is very much clear from the statement of account Ex.C-7 that this account was being held by the complainant as individual and not by any firm. Thus, there is no merit in the contention of the opposite parties that the cheque was dishonoured for want of seal of the firm on the cheque. The dishonouring of the cheque in spite of sufficient funds in the account of the complainant amounts to deficiency in service on the part of the opposite parties; as a result of which, he suffered harassment, mental agony and financial loss and, as such, the amount claimed in the complaint, as compensation, is liable to be awarded to the complainant.
7. On the other hand, it was submitted by the learned counsel for the opposite parties that after considering the evidence on the record, it was correctly concluded by the District Forum that there was no deficiency in service on the part of the opposite parties. The cheque was not dishonoured by the opposite parties and, as such, they are not liable to pay any such compensation.
8. The District Forum, before recording the findings against the complainant, did not properly appreciate the averments of the parties and the evidence produced on the record. It tried to make out a new case for the opposite parties, which was never pleaded by them. The opposite parties have admitted that the cheque, in question, was issued by the complainant and the same was dishonoured, on the ground that the title of account was required. They took up the plea that the account was in the name of the firm and the seal of the firm was not affixed on the cheque. Thus, the first question to be determined by the District Forum was, whether the cheque was drawn in respect of the account of the firm and the same required the affixing of the seal of that firm on the cheque? It is very much clear from that cheque Ex.C-2 that it was drawn in respect of account No.1123020000 00533. The statement of account in respect of that account number was proved on the record as Ex.C-7. A perusal thereof shows that this account was in the individual name of the complainant and was not in the name of any firm. Thus, the opposite parties took up false plea that the cheque was required to be sealed with the seal of the firm. Therefore, it could not have been dishonoured on the ground mentioned in the memo of dishonour Ex.C-3.
9. The District Forum mis-interpreted document Ex.C-3, by observing in its order that the cheque was presented for encashment before Central Back Office, CBO-Ludhiana. The endorsement on the back of the cheque Ex.C-2 makes it clear that this cheque was presented by the payee before Kotak Mahindra Bank. For clearance, the same was sent to the opposite parties-Bank and that bank returned the cheque to Kotak Mahindra Bank Limited, vide memo of dishonour Ex.C-3 and the ground of dishonour was mentioned therein as “title of account required”. The Kotak Mahindra Bank has further written letter Ex.C-5 to the complainant, vide which it forwarded the said memo of dishonour and also mentioned therein that cheque had been returned due to “title of account required”. In view of this evidence, the findings recorded by the District Forum, which are not based on any evidence and are the result of the mis-interpretation of the evidence, are set aside. The cheque might have been dishonoured by the Central Back Office of the opposite parties-Bank, but it was that bank itself; which had dishonoured the cheque.
10. It has already been held above that the cheque could not have been dishonoured, on the ground mentioned therein, as the same was drawn in respect of the account held by the complainant as individual and not as firm. This clearly amounts to deficiency in service on the part of the opposite parties.
11. The complainant, in support of the allegations made in the complaint, proved on record his affidavit Ex.C-A. He deposed therein that this cheque was issued by him for purchasing the shares, which were having good market value and there was every chance of the increase in the price thereof in future. No evidence has been produced by the opposite parties to rebut the same. Had the cheque been honoured, the complainant might have been allotted the shares by the company; in whose favour the cheque had been drawn. On account of the non-allotment of shares, he suffered loss and injury. However, keeping in view the amount of the cheque, it cannot be said that the complainant suffered loss of Rs.1,00,000/-. Keeping in view all the facts and circumstances of the case, we assess that compensation at Rs.10,000/-.
12. Accordingly, the appeal is allowed, the order passed by the District Forum is set aside and while allowing the complaint, the opposite parties are directed to pay Rs.10,000/- to the complainant, as compensation and Rs.5,500/- as cost of litigation, within 30 days of the receipt of the certified copy of this order. In case of failure of the opposite parties to pay the compensation of Rs.10,000/- during the said period, they shall be liable to pay interest on that amount @ 9% per annum from the date of filing of the complaint till the realization of that amount.
13. The arguments in this case were heard on 05.03.2015 and the order was reserved.Now, the order be communicated to the parties.
14.           The appeal could not be decided within the statutory period due to heavy pendency of court cases.

15.                                                         (JUSTICE GURDEV SINGH)

                                                                           PRESIDENT  

                                                             

     

     

                                                            (BALDEV SINGH SEKHON)

                                                                             MEMBER

                                                             

     

     

                                                              (SURINDER PAL KAUR)

    March 11, 2015                                            MEMBER

    (Gurmeet S)