Haryana

Fatehabad

CC/154/2020

M/S Balaji Roadline - Complainant(s)

Versus

Kotak Mahindra Bank - Opp.Party(s)

Karan Munjal

30 Mar 2022

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION FATEHABAD.

                                          Dr. Shahabuddin, President.                                                                          Sh.Jasvinder Singh and Smt.Saroj Bala, Members

                                                                                   Complaint Case No.154 of 2020.                                                                                 Date of Instt.:  10.08.2020.                                                                                          Date of Decision:  30.03.2022.

M/s Balaji Roadline, thorugh its partner Pawan Kumar s/o Mange Ram resident of Badopal Tehsil & District Fatehabad, Haryana, 125050.

                                                                                               ...Complainant

                                      Versus

1.       Kotak Mahindra Bank having its branch at G.T.Road, Opposite HDFC Bank Fatehabad Haryana 125050 through its Branch Manager.

2.       Kotak Mahindra bank Registered office 27, BKC C 27 G Block, Bandra Kurla Complex Bandra (E) Mumbai-400051 through its CEO Uday Kotak.

3.       Vikas Kumar s/o Om Parkash, Branch Manager, Kotak Mahindra Bank G.T.Road, Opposite HDFC Bank Fatehabad Haryana 125050.

4.       Ishant Bansal son of Anil Bansal,  Operation Manager,  Kotak Mahindra Bank G.T.Road, Opposite HDFC Bank Fatehabad Haryana 125050.

5.       Ajay Kumar son of Rameshwar Dass, Kotak Mahindra Bank. G.T.Road, Opposite HDFC Bank Fatehabad, Haryana 125050.

                                                                                                ...Opposite parties (Ops)

Complaint under Consumer Protection Act, 2019

Present:                  Sh.Karan Munjal, Advocate for complainant.                                                                       Sh.Neeraj Asija, Advocate for Ops.                            

ORDER

 

1.                                The main facts pertaining to this complaint are to the effect that complainant has a current account bearing No.3611907478 with Op no.1; that a cheque No.000684 dated 01.06.2020 drawn on HDFC Bank of  the branch concerned and in favour of M/s Bala Ji Road Lines in sum of                   Rs. 42,64,227/-  (Annexure C1 on record) was deposited on behalf of complainant for realisation of the above amount. It was deposited in the current account of the complainant with the respondent bank on 02.0.6.2020; that on 04.06.2020 the respondent bank revealed that aforesaid cheque had been returned unpaid due to funds insufficient; that  on 05.06.2020, when complainant visited at Kotak Mahindra Bank Branch, Fatehabad for collection of original cheque alongwith cheque returning memo, then the Branch Manager (Mr.Vikas Kumar, Op No.3 herein) informed that the original cheque was in the custody of Mr.Ishant Bansal, Operation Manager (Op No.4, herein) and that he was not present in the branch  and further that he would be instructed to come tomorrow personally for handing over original cheque and returning memo to the complainant; that when the complainant again visited the bank concerned on 06.06.2020 for the aforesaid purpose, the Branch Manager concerned informed that the original cheque alongwith returning memo had been given to two persons, who claimed to be authorised representatives of complainant; that complainant requested to disclose names and addresses of those two persons but no satisfactory reply was given; that thereafter the complainant got lodged a complaint No.1251-P dated 08.06.2020 with City Police Station, Fatehabad against OPs No.3 to 5 with request to preserve the CC TV Camera Footage of relevant period but despite that, the grievance of the complainant was not redressed;  that on 29.06.2020, through a letter written to the complainant, the Ops admitted that  the original cheque alongwith its returning memo were given to some other persons without verifying their identities (ID’s)  and authorisation letter;  that after that,  an FIR No.325 under Section 406 of Indian Penal Code (IPC) was registered against Ops No.3 to 5 on 03.07.2020; that  the complainant requested the Ops to pay the cheque amount of Rs.42,64,227/- alongwith other benefits with interest but the Ops did not pay any heed and therefore, the complainant had no other alternative other than to file the present complaint; that the act and conduct of the Ops clearly makes them liable for deficiency in service, on their part,  as defined under Section 2 (11) of Consumer Protection Act. 2019 (in short CP Act, 2019). In the end, a prayer has been made that complainant is entitled for refund of Rs.42,64,227/-, alongwith other benefits and further alongwith interest @ 18 % per annum. Rs.6 lakh also claimed towards physical strain and mental agony suffered by the complainant and Rs.80,000/- also claimed towards litigation expenses.

2.                                The averments of this complaint have been strongly opposed in the reply/written statement (in short reply) filed on behalf of Ops.

3.                                In the reply filed on behalf of Ops, it has been averred, inter-alia, that complainant has no cause of action to file the present complaint; that complainant has not approached this Commission with clean hands; that the complainant has already filed a complaint under Section 138 of Negotiable Instruments Act, 1881 (in short NI Act) against the drawer of the cheque and therefore, he cannot file more than one case for similar cause of action; that the present complaint is not maintainable; that the original cheque No.3611907478, alongith returning memo, were given to two persons on 06.06.2020 as they represented themselves to be the authorised representatives of the complainant and also affixed their signatures on the cheque returning register; that on the next day, Mr.Pawan Kumar, partner of the complainant firm, came to the bank to collect the original cheque and returning memo; that present complaint has been filed just to harass the Ops with ulterior motive; that the complainant has no locus standi to file the present complaint; that the cheque in question was dishonoured for insufficient funds due to which Ops are not liable in this matter. In the end, prayer has been made for dismissal of the complaint with special costs.

4.                    On behalf of complainant, Mr.Pawan Kumar, as partner of complainant, has filed his evidence by way of his own affidavit Ex.CW1/A, in which he has almost repeated averments of the complaint. He has also relied upon documents Annexure C1 to Annexure C5 in support of his contentions. Annexure C1 is a photocopy of the cheque in question. Annexure C2  is a photo copy of return memo. Annexure C3 is a photocopy of application written to SHO P.S.City Fatehabad. Annexure C4 is a photocopy of letter written on behalf of Kotak Mahindra Bank GT Road, Fatehabad to the complainant side. Annexure C5 is a photo copy of FIR No.325 dated 03.07.2020 P.S. City Fatehabad registered against Ops No.3 to 5.

5.                                On behalf of Ops, evidence affidavit of Mr.Amit Kumar, Branch  Head, Kotak Mahindra Bank, Branch Office, Fatehabad,  has been filed  as Ex.RW1/A in which there is almost repetition of averments of reply of Ops in brief. In support of evidence of Ops, documents Annexure R1 to Annexure R11 respectively have been filed on record. Annexure R1 is a copy of letter written to Branch Manager, HDFC Bank, Fatehabad. Annexure R2  and Annexure R3 are the letters written on behalf of Kotam Mahindra Bank to SHO, PS City, Fatehabad and to SP District Fatehabad respectively. Annexure R4 to R5 are the copies of letters written on behalf of Kotak Mahindra Bank to Mr.Mukesh Kumar and Pawan Kumar respectively. Annexure R6 is a photo copy of the cheque in question. Annexure R7 is photo copy of cheque return memo. Annexure R8 is a photo copy of postal receipt. Annexure R10 is a copy of order of learned CJM, Fatehabad dated 22.01.2021 in which, to our considered view, cognizance of offence under Section 138 of NI Act has been taken  against the Ops concerned. Annexure R11 is the order sheet dated 04.10.2021 written by learned CJM, Fatehabad.

6.                                We have heard oral final arguments from both sides, in which, there were almost repetitions of averments of pleadings of both sides on record.

7.                                An authority of Hon’ble National Consumer Disputes Redressal Commission (in short NCDRC) has also been relied upon by complainant side in support of its contentions. It has been reported as Manager, Bank of Baroda and Anr.  Vs. Chitrodiya Babuji Divanji, decided on 19.07.2019 pertaining to revision petition No.2028 of 2016. With due respect, this authority does not support the complainant because in our considered opinion, there was no separate case pending under N.I.Act for recovery of cheque amount of the dishonoured cheque in the cited case, whereas there is, admittedly, a separate case pending under Section 138 NI Act in the instant case before learned court concerned at Fatehabad for recovery of cheque amount alongwith other relief.

8.                                In view of the above submissions and final arguments, we have perused the judicial record minutely.

9.                                In our considered opinion, the main point to be decided in this matter is as to whether there was deficiency in service, if any, on the part of Ops, qua not returning the original cheque, alongwith cheque returning memo, to the authorised person (s), on behalf of complainant.

10.                              Before proceeding further, we refer to definition of deficiency in service as defined in Section 2 (11) of CP Act. It is mainly to the effect that deficiency, interalia, means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force.

11.                               As per pleadings of the Ops on record, admittedly, the cheque in question, alongwith cheque returning memo, was handed over, on behalf of Ops, to the two persons, who were not at all authorised in writing, by the complainant, to receive the same, on behalf of complainant. In our considered opinion, it clearly amounts to deficiency in service on the part of Ops, concerned and particularly on part of Ops No.3 to 5, the officers/officials of the bank concerned.

12.                              As regards recovery of cheque amount of Rs.42,64,227/- is concerned, admittedly a criminal complaint/case is pending before learned Judge concerned at Fatehabad under Section 138 of N.I.Act. Hence, we are not dealing with this issue in this complaint. We are only dealing with the issue regarding harassment, mental agony etc. caused to the complainant side in this matter.

13.                              In the given facts and circumstances of this case, the deficiency on the part of OPs No.3 to 5, in particular, has been clearly established as the original cheque alongwith original cheque returned memo has not been returned to the complainant even till date.

14.                              Hence, there is clearly deficiency in service on the part of Ops and particularly on the part of Ops No.3 to 5, who happened to be the office bearers of Op No.1. The complainant has been regularly suffering harassment and mental agony for the deficiency on the part of Ops as mentioned above, therefore, we consider it appropriate to compensate the complainant for such mental harassment, suffering as well as for litigation charges.

15.                              In the totality of the given facts and circumstances of this case, we consider it appropriate to allow lump sum amount of Rs.02 lakhs (Two lakh) in favour of the complainant and against the Ops, particularly against Ops No.3 to 5, representing Op No.1 as its office bearers, to compensate the complainant towards harassment, mental agony and sufferings suffered by the complainant and also towards litigation charges, incurred by the complainant in perusing this matter against the Ops for a long period.  Hence, we order and decide this complaint to the above effect. 

16.                              It is made clear that findings of this Commission given above should not be taken to affect the merits of separate case pertaining to this matter pending under N.I.Act. It is also made clear that the compensation mentioned above, has been given to the complainant in this matter for deficiency in service, on the part of Ops. We also consider it appropriate that this amount/compensation would be paid by the Ops No.3 to 5 jointly and severally. They are directed to pay the same within 30 days from today, failing which the amount would carry simple interest @ 9 % per annum from date of this order till realization.  A copy of this order be supplied to the parties free of costs. File be consigned to record room after due compliance.