DISTRICT CONSUMER DISPUTES REDRESSAL FORUM,<br /> BATHINDA(PUNJAB)<br /> <br /> C.C. No. 88 of 17.3.2008 Decided on : 30.7.2008 <br /> <br /> Ashok Kumar Jain S/o Sh. Charandass Sole Proprietor of M/s. Surendra Department Store, 4550-A, Dhobi Bazar, Bathinda.<br /> ... Complainant<br /> Versus<br /> <br /> 1.Indusind Bank Ltd., 2679/C,1/A, Guru Kashi Marg, Bathinda through its Branch Manager.<br /> 2.Indusind Bank Ltd., 28, Gopaldas Bhawan, Barakhamba Road, New Delhi-110001 through its Branch Manager.<br /> 3.Indusind Bank Ltd., Regd. Office : 2401, Gen. Thimmayya Road (Cotonment),Pune-411 001 through its C.E.O.<br /> 4.Indusind Investment Banking, Ist Floor, Hinduja House, 171 Dr. Annie Besant Road, Worli, Mumbai-400 018 through its Manager.<br /> 5.Indusind Bank Ltd., Head Office : 701/801, Solitaire Corporate Park, 167, Guru Hargovindji Marg, Andheri (E), Mumbai through its Managing Director.<br /> ..... Opposite parties<br /> <br /> Complaint Under Section 12 of the Consumer Protection Act, 1986<br /> <br /> QUORUM:-<br /> Sh. Lakhbir Singh, President<br /> Dr. Phulinder Preet, Member<br /> <br /> For the complainant : Sh. Naresh Garg, Advocate<br /> For the opposite parties : Sh. Jai Gopal, Advocate <br /> <br /> O R D E R. <br /> <br /> LAKHBIR SINGH, PRESIDENT:- <br /> 1. Complainant is having Current Account No. 0125-K50546-050 with the opposite parties at Guru Kashi Marg, Bathinda under the name and style of M/s. Surendra Departmental Store, Bathinda of which he is the Sole Proprietor. He is doing the business for his livelihood and is a reputed business man, man of personality and wields good reputation among his relations, friends, colleagues and public in general. His account is with opposite party No. 1 which is CBS Branch. This account is with the facility of anywhere banking in India. Opposite party No. 1 has issued cheque book to him payable at par anywhere in India. On 20.2.2008, a sum of Rs. 50,000/- was deposited by him in his this account at their Bathinda Branch. Payees account Cheque No. 803663 dated 21.2.2008 was issued by him to M/s. Mehta Education Store for a sum of Rs. 23,300/- from this account. It was presented by M/s. Mehta Education Store to the opposite parties with their branch at New Delhi i.e opposite party No. 2 for encashment. He alleges that opposite parties illegally and wrongly dishonoured the cheque on 22.2.2008 and returned it to M/s. Mehta Education Store with the remarks that funds are insufficient. This Education Store stopped the delivery of the books to the complainant as cheque was returned without payment. This fact was conveyed by M/s. Mehta Education Store to the complainant. Officials of opposite parties were contacted by him (complainant) at their Bathinda Branch on 25.2.2008. Statement of account was demanded. Opposite party No. 1 refused to supply the same. Officials of opposite party No. 1 orally told that there is balance of Rs.40,144.14 in his account and further that on 20.2.2008, account balance was 73,251.36 with them in his account. He filled in the bank form with the request that account statement w.e.f. 1.2.2008 till date be supplied to him. It was supplied to him by the opposite parties through post in which on 20.2.2008 balance was Rs. 73,251.36. Books were not supplied to him by M/s. Mehta Education Store despite the fact that it was necessary and time bound order. M/s. Mehta Education Store was again contacted by him not to take any action under section 138 of the Negotiable Instruments Act against him and cheque be again presented. Accordingly, it was presented by M/s. Mehta Education Store and it was encashed by the opposite parties on 27.2.2008. He alleges that his reputation has been lowered in the eyes of public, relations, friends, M/s. Mehta Education Store as well as business community. It is further added by him that opposite parties willfully returned the cheque and further illegally charged Rs. 224.72 (Rs.200/- + Rs.24.72) on account of cheque return charges. When M/s. Mehta Education Store told him that cheque was bounced, Mr. Sanjeev Kumar of M/s. Sanjeev Stationary Mart, Bathinda (Wholesaler of Stationery items) was present for supplying new stationery and he refused to supply the order of stationery items as he came to know that the cheque issued by him was dishonoured. Request was made by him to the Branch Manager of opposite party No. 1 to refund the illegal charges, but to no effect. In these circumstances, instant complaint under section 12 of the Consumer Protection Act, 1986 (Here-in-after referred to as the Act) has been preferred by him seeking direction from this Forum to the opposite parties to pay Rs. 224.72 to him jointly and severally alongwith interest @ 18% P.A from the date of debit till payment; pay Rs. 4,50,000/- as compensation on account of mental agony, pains, sufferings and loss to his reputation and Rs. 10,000/- as costs of the complaint.<br /> 2. Opposite parties filed their version admitting that complainant has Current Account with opposite party No. 1 and he is the Sole Proprietor of M/s. Surendra Departmental Store. He is doing business of stationery at large scale to earn more and more profit. Hence, he is not consumer. Cheque book was issued to him. A sum of Rs. 50,000/- was deposited by him on 20.2.2008 in his account. Complainant was not having sufficient clear balance when cheque No. 803663 dated 21.2.2008 amounting to Rs. 23,300/- issued in favour of M/s. Mehta Education Store had come to opposite party No. 2 in clearing for passing on 22.2.2008. Person issuing cheque must ensure that sufficient balance at the time of issuance of the cheque as well as at the time of passing of the cheque by the bank to honour the cheque was there. In this case, complainant was having a balance of an amount of Rs. 23,251/- as clear available balance on 21.2.2008 at the time of issuance of the cheque and on 22.2.2008 at the time of passing of the cheque in clearing by opposite party No.2. As per complainant, he had deposited cheque No. 016573 drawn on Bank of India, Branch Bathinda from his own account with Bank of India for crediting that amount to his Current Account with them on 20.2.2008. Cheque was sent to Bank of India through Clearing House on 22.2.2008 for payment (As 21.2.2008 was holiday in the State of Punjab) and the same was duly credited in his account on 23.2.2008( as per Clearing House system of T+2 i.e. Funds available to the party on the 3rd working day from the deposit of cheque for clearing). Complainant is estopped from filing the complaint by his act and conduct. He has no cause of action and locus-standi to file it. This Forum has got no jurisdiction to entertain and decide the complaint. Facts involved in the complaint require lot of oral and documentary evidence and as such, only Civil Court has got the jurisdiction to decide it. No charges are recoverable by them for maintaining zero balance account. Complaint is false and frivolous. Cheque was rightly and legally returned due to insufficient funds. Amount shown in the account statement was shadow balance which was to become available to the complainant after clearing of cheque no. 016573 of Rs. 50,000/-. Cheque deposited by him was credited to his account on 20.2.2008 itself by giving value credit as on 22.2.2008. As per banking rules and practice, account holder is allowed to withdraw the funds only after third day i.e. after expiry of the return of cheque time by the drawee bank. Accordingly, the same was cleared and made effective in his account on 23.2.2008 at 11 A.M in view of the banking clearing norms of T+2 days prevalent at Bathinda. Till 11 A.M on 23.2.2008, balance in the account was un-clear to the extent of Rs. 50,000/-. They assert that a sum of Rs. 224.72 was rightly charged for return of cheque. They do not admit the remaining averments in the complaint.<br /> 3. In support of his allegations and averments in the complaint, Ashok Kumar Jain complainant tendered into evidence his own affidavits (Ex.C.1 & Ex.C.5), affidavit (Ex.C.4) of Sh. Sanjeev Kumar Jindal, photocopy of account statement (Ex.C.2, Cheque return memo dated 22.2.2008 (Ex.C.3), photocopy of Form 'A' (Ex.C.6), photocopy of letter dated 9.5.2008 (Ex.C.7), photocopy of Indian Postal Order of Rs.10/- (Ex.C.8) and photocopy of Deposit slip (Ex.C.9).<br /> 4. On behalf of the opposite parties, reliance is placed on affidavits (Ex.R.1 & Ex.R.11) of S/Sh. Sanjay Mittal, Its Branch Manager and Sachin Singla, Head Operations respectively, photocopies of pages No. 13 & 14 of Rules (Ex.R.2), photocopy of cheque dated 21.2.2008 (Ex.R.3), photocopy of Account Opening Form (Ex.R.4), photocopy of application dated 1.6.2005 (Ex.R.5), photocopy of Schedule of Service Charges (Ex.R.6), photocopy of statement of account (Ex.R.7), photocopies of Outward clearing cheque reports (Ex.R.8 & Ex.R.10) and photocopy of I.B.L 12202 (Ex.R.9). <br /> 5. We have heard the learned counsel for the parties. Apart from this, we have gone through the record.<br /> 6. Some facts are not in dispute in this case. They are that complainant has Current Account with the opposite parties at Guru Kashi Marg, Bathinda which was opened on the basis of the application moved by the complainant, copy of which is Ex.R.5. He had also filled in Account Opening Form for that purpose and copy of the same is Ex.R.4. Cheque for Rs.50,000/- was deposited by him with the opposite parties at their Bathinda branch. On 21.2.2008, cheque No. 803663 (Infact 803664), copy of which is Ex.R.3, was issued by him in favour of M/s. Mehta Education Store for Rs. 23,300/-. This cheque was presented by M/s. Mehta Education Store with the branch of the opposite parties at New Delhi i.e. opposite party No. 2 for encashment. It was dishonoured on 22.2.2008 and was returned to M/s. Mehta Education Store with the remarks insufficient funds through cheque return memo dated 22.2.2008, copy of which is Ex.C.3.<br /> 7. Arguments pressed into service by Mr. Garg learned counsel for the complainant are that as per statement of account, copies of which are Ex.C.2 and Ex.R.7, balance to the credit of the complainant on 20.2.2008 was Rs.73,251.36 after he deposited cheque No. 016573 of Rs. 50,000/-. Cheque issued in favour of M/s. Mehta Education Store by the complainant was only for a sum of Rs. 23,300/- which was presented by M/s. Mehta Education Store and was dishonoured on 22.2.2008 with the remarks insufficient funds. Cheque was illegally dishonoured by the opposite parties although balance in the account of the complainant on 22.2.2008 was Rs. 73,251.36.<br /> 8. Mr. Goyal learned counsel for the opposite parties countered the arguments of the learned counsel for the complainant by submitting that on 22.2.2008 clear available balance in the account of the complainant was Rs. 23,251.36 on account of which cheque presented by M/s. Mehta Education Store for Rs. 23,300/- was rightly dishonoured. So far as the amount i.e. Rs. 50,000/- of cheque No. 016573 is concerned, it was not a clear amount as cheque was to be got cleared in clearance and clearance was given on 23.2.2008 as 21.2.2008 was holiday and cheque was sent for clearance on 22.2.2008. He further argued that complainant has not come with clean hands.<br /> 9. We have considered respective arguments. In para no. 4 of the complainant, there is specific averment of the complainant that cheque for Rs. 50,000/- was deposited by him with the opposite parties at their Bathinda Branch on 20.2.2008. While leading evidence, complainant has changed his stance by way of producing copy of the deposit slip for Rs. 50,000/- which is dated 19.2.2008 without proving by whom it has been issued. He has also attempted to prove by way of producing his affidavit Ex.C.5 that cheque for Rs. 50,000/- was deposited on 19.2.2008. His this affidavit on this aspect of the matter is contradictory to his averment in the complainant. Moreover, it stands amply rebutted with the affidavit Ex.R.11 of Sh. Sachin Singla Head Operations of the opposite parties-Bank. He has explained that there is practice for convenience of the banks customers with the opposite parties-Bank to get deposited the cheques for clearing for collection of payment of the cheques amount by way of dropping the cheque in the drop box provided in the branch premises with the instructions “Customers can also tender the cheques at the counter and obtain acknowledgement on pay in slip”. Opposite parties do not admit the issuance of the deposit slip. Sachin Singla states that acknowledgement on the pay in slip is given under his full signatures with seal of the bank and that deposit slip, copy of which is Ex.C.9, does not bear his signatures or any of the officer of the bank. He used to receive the cheques for clearing and was issuing receipts, if any, required by the customers. In these circumstances, it is difficult to hold that deposit slip dated 19.2.2008 is genuine. Hence, we find that complainant has not approached this Forum with clean hands.<br /> 10. Material question for determination is as to what was the clear balance in the account of the complainant from 20.2.2008 till 22.2.2008 on which day the cheque No. 803664 for Rs. 23,300/- issued by the complainant in favour of M/s. Mehta Education Store and presented by it (M/s. Mehta Education Store) for encashment was dishonoured. There is no dispute about the fact that complainant had deposited cheque No. 016573 for Rs. 50,000/- drawn on Bank of India, Branch Bathinda from his own account for crediting that amount to his Current Account with the opposite parties on 20.2.2008. Such amount of the cheque becomes available after cheque is cleared. No-doubt, in the statement of account, copy of which is Ex.C.2, previous balance is Rs.23,251.36 and after deposit of cheque No. 016573 on 20.2.2008 for Rs. 50,000/-, balance has been shown as Rs. 73,251.36. By no stretch of imagination, cheque amount i.e. Rs. 50,000/- was cleared amount. Balance shown by adding Rs. 50,000/- after deposit of the cheque on 20.2.2008 appears to have been shown as shadow balance. That amount of Rs. 50,000/- was not available to the complainant as cheque was to be got cleared and the clearance was not available on that day. Ex.R.2 is the copy of the rules according to which cheque presented through first clearing is returnable in the next day's first clearing. Learned counsel for the complainant could not show us that second clearance is available at Bathinda. There is no evidence that cheque was presented on 20.2.2008 before first clearing. 21.2.2008 was a holiday. Accordingly, it was sent for clearance alongwith other cheques on 22.2.2008 to Bank of India through Clearing House for payment and this amount was duly credited in his account on 23.2.2008. This fact is further supported with the copies of the Outward Clearing Cheque Reports, copies of which are Ex.R.8 & Ex.R.10. In this manner, the amount of the cheque i.e. Rs.50,000/- became available in the account of the complainant on 23.2.2008 as cheque was cleared and made effective on that day. On 21.2.2008 and 22.2.2008, complainant was having a balance of an amount of Rs. 23,251.36 as clear available balance. Accordingly, cheque for Rs. 23,300/- in favour of M/s. Mehta Education Store could not be honoured by the opposite parties-bank. It was rightly dishonoured with the remarks insufficient funds on 22.2.2008. Till then, the balance in the account was unclear balance to the extent of Rs. 50,000/-. In these circumstances, there is no deficiency in service on the part of the opposite parties in dishonouring the cheque in question on 22.2.2008.<br /> 11. Complainant submitted Account Opening Form for getting the Current Account opened with opposite party No. 1 and copy of the same is Ex.R.4. It has been duly signed by him. He confirmed at that time that he has read the rules of the bank regarding the conduct of the account and the rules and regulations pertaining to phone Banking, ATM/Debit Card, Doorstep Banking, Anywhere Banking, Net Banking, Mobile Banking and Utilities Pay Facilities. He undertook that he agrees to comply with the terms and conditions or any rules of the Bank that may be in force from time to time. As discussed above, opposite parties-Bank was justified in dishonouring cheque No. 803664. Ex.R.6 is the copy of Schedule of Service charges by the opposite parties-Bank. On bouncing of cheques-local, in case of Local Inward Clearing, it can charge Rs. 200/- per instrument upto Rs.5,00,000/-. Accordingly, opposite parties-Bank has correctly charged Rs. 200/- as cheque return charges. Learned counsel for the opposite parties argued that in case cheque is bounced and returned, opposite parties-Bank charge 12.36% as service tax. It is also clear from Ex.R.6 that service tax is applicable on all services as advised by Income Tax Authorities from time to time. Even otherwise, Banking and other financial services have been brought under the Service Tax net by the Finance Act. Taxable service means any service to be provided, to a customer, by a banking company or a financial institution including a non-banking financial company, or any other body corporate or commercial concern, in relation to banking and other financial services under the Banking and other financial services. Opposite parties-Bank is entitled to charge service tax for the service rendered to the complainant concerning the cheque which was dishonoured.<br /> 12. In the light of the discussion made above, crux of the matter is that no deficiency in service is proved on the part of the opposite parties. Hence, complaint being devoid of merits is dismissed. Parties are left to bear their own costs. Copy of this order be sent to the parties free of cost. File be also consigned.<br /> <br /> Pronounced (Lakhbir Singh)<br /> 30.7.2008 President<br /> <br /> <br /> (Dr.Phulinder Preet) Member <br /> 'bsg' <br /> <br /> <br />