This revision petition has been filed by the petitioner UCO bank against the order dated 11.04.2018 of the State Consumer Disputes Redressal Commission, Rajasthan, (in short ‘the State Commission’) passed in Appeal No.152/2011. 2. Brief facts of the case are that the respondent No.1, who was the original complainant before the District Consumer Disputes Redressal Forum, Jodhpur (in short ‘the District Forum’) sent three drafts totalling Rs.1,40,000/- to Sh. Gopi, Sonar Hotel, Jodhpur through speed post. The post was not delivered to the addressee and later on it was found that three drafts have been encashed and have been credited to the account of one Mr. Ashok Kumar in his account at Syndicate Bank after clearing from the petitioner bank. The complainant filed a consumer complaint bearing No.371/2008 before the District Forum and the District Forum allowed the complaint vide its order dated 05.07.2011 and held the postal authorities being opposite party Nos.1, 2 and 4 to be deficient and liable and complaint against opposite party No.3/ petitioner herein was dismissed. The complainant preferred an appeal before the State Commission being Appeal No.152/2011 and the State Commission held opposite party No.3, bank liable to make the loss suffered by the complainant. The State Commission has directed opposite party No.3 bank to pay Rs.1,40,000/- along with interest at the rate of 9% p.a. 3. Hence the revision petition by the petitioner bank. 4. Heard the learned counsel for the petitioner and perused the record. Learned counsel for the petitioner argued that the complainant has filed an FIR that the fraud has been committed and the name of Gopi, Sonar Hotel, Jodhpur has been changed to Ashok Kumar by rewriting and the payment has been released by the petitioner bank. It has been argued that if the fraud is alleged in the matter, the same cannot be dealt with by the consumer forum. In support of his contention, learned counsel referred to the following judgments of this Commission:- (i) Bright Transport Co. Vs. Sangli Sahakari Bank Ltd., II (2012) CPJ 151 (NC). It has been held that: “Yet another reason why we would discourage the complainant from approaching this Commission is that as per the complainants there are several acts of forgery for which a criminal trial is pending. The said case is yet to be decided and the decision of the criminal cases may have a bearing on the claims made by the complainants in these complaints. This Commission has consistently taken the view in the past that complaints which are based on allegations of fraud, forgery, etc. and trial of which would require voluminous evidence and consideration are not to be entertained by this Commission.” (ii) P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (NC), in this case a cheque of Allahabad Bank was deposited by the complainant in Bank of India. However, the cheque was encashed by some other person having account in SBI and the cheque amount was credited in his SBI account. This Commission has dismissed the revision petition filed by the complainant/petitioner. This Commission relied on its decision in Bright Transport Co. Vs. Sangli Sahakari Bank (supra). 5. Learned counsel further argued that if complicated questions of facts and law are involved, the competent forum will be a civil court to decide such disputes. In the present case also if fraud has been committed by the postal authorities and by the Syndicate bank and by the bank releasing the payment, then it is to be established at what level the fraud has been committed and who is responsible for that fraud. Therefore, from this angle also, the consumer forum does not have jurisdiction for the present dispute raised in the complaint. In support of his argument learned counsel relied upon the judgment of this Commission in Safe Home Developers and Contractors Vs. Samata Sahakari Bank Ltd., IV (2012) CPJ 729 (NC), wherein following has been observed: “10. After going through the pleadings if complicated question of facts and law arise, complaint should be returned to the complainant to approach Civil Court or any other Forum. Perusal of pleadings clearly reveals that forgery/genuineness of 250 cheques is in issue which involves complicated question of facts and law and involves lot of evidence and detailed enquiry, which cannot be decided in a summary way and in such circumstances application filed by the opposite party should be allowed and complaint should be returned to the complainant.” 6. Learned counsel further stated that the petitioner bank has released the payment on the endorsement at the reverse of the bank draft by the Syndicate bank verifying the details of the recipient. In such situation, the drawee bank will not have the liability if the collecting bank has verified the details of the recipient. In support of his argument learned counsel referred to the following judgment of Hon’ble High Court of Delhi in Canara Bank Ltd. Vs. Govind Ram Rajinder Kumar, 1980 SCC OnLine Del 255, wherein it has been observed that: “35. Had there been no confirmation of endorsement by the collecting bank on the revrese of the draft there can be no doubt that the payee bank, Bank of Baroda would also have not been entitled to the protection of S. 85-A. But it appears to me that they are protected in view of the endorsement of the collecting bank. When the collecting bank confirm the endorsement in favour of Universal Traders the payees i.e. Bank of Baroda would be naturally entitled to assume that the collecting bank had performed his duty without negligence. The drawee bank would reply upon the fact that the collecting bank could have discharged his duty of scrutinizing and satisfying about the title to the draft of its customer. In fact the Division Bench in the aforesaid case of Central Bank of India Limited as page 521 observed:- “What we wish to emphasis is that, when a draft is being presented for collection before the drawee bank by the collecting bank on behalf of one of its customers, the drawee bank can rely on and rest assured that the collecting bank would have discharged its duty of scrutinising and satisfying itself about the title to the draft of its own customer. In other words, in such a case, the law does not demand the same care and caution that is expressed of a drawee bank in a case where the draft is produced for encashment at the counter by an unknown person. Otherwise, crossing of a draft and paying in through a collecting bank become pointless.” I am, therefore, of the view that the decision of the learned trial Court regarding the liability of Bank of Baroda Limited, Defendant 2 is erroneous.” 7. I have given a thoughtful consideration to the arguments advanced by the learned counsel for the petitioner and examined the material on record. So far as the arguments of the learned counsel for the petitioner bank in respect of the competency of the consumer fora to decide the present complaint is concerned, it is not the case of the bank that the complainant has committed any forgery and therefore, the complainant is not responsible for the fraud that has taken place. Clearly, the bank is involved in fraudulent payment and therefore, this defence cannot be taken by the bank that consumer forum cannot decide a consumer dispute where a fraud has been committed. Moreover, this Commission has taken a contrary view to the contention raised by the learned counsel for the petitioner bank in the following judgements:- (i) Maharashtra Tourism Development Corporation Vs. Dena Bank, III (2016) CPJ 615 (NC). It has been observed that: “25. In Haryana Gramin Bank (supra), Hon’ble Supreme Court expressly held that the petitioner bank was vicariously liable for the wrong doings of its officials/ employees which resulted in monetary loss to the respondent. In Bihar Cooperative Development (supra), the Apex Court held that if the signature on the cheque is not genuine, there is no mandate on the bank to pay and the question of any negligence on the part of the customer such as leaving the cheque book carelessly would afford no defence to the bank. The bank was found to be negligent in not ascertaining whether the signature on the cheque in question was genuine and the circumstances attending the encashment of the cheque proved that the bank was negligent and some of its officers fraudulent right from the beginning. Upholding the order decreeing the suit against the bank, it was observed that fraud could only be perpetrated because of the complicity of the employees of the bank… In Sheo Kumar Sharma (supra), it was contended on behalf of the bank that the proceedings under the Consumer Protection Act being summary in nature, the subject disputes could not be adjudicated merely on evidence by affidavit. It was submitted that the charge of forging and cheating has to be proved by leading voluminous evidence which would include cross examination of the experts who had examined the relevant documents and that is beyond the scope of the proceedings under the Consumer Protection Act. The contention however was rejected by this Commission, noticing that the factum of issue of cheque book in the case before it was not in dispute and therefore, deficiency in rendering services to the customer was writ large”. (ii) First Appeal No.106 of 2014, The Tax Publisher Vs. Chairman & Managing Director, UCO Bank & Anr. It has been held that:- “10. The issue whether or not complicated questions of facts can be decided in summary proceedings, as visualized under the Act, vis-à-vis Civil Court, came up for consideration before a three Judge Bench of the Hon’ble Supreme Court in Dr. J.J. Merchant (supra). Referring to the statutory provisions, prescribing the procedure for disposal of the Complaint filed under the Act, the Court rejected the contention that complicated questions of fact cannot be decided in summary proceedings, observing thus:- “In our view, this submission also requires to be rejected because under the Act, for summary or speedy trial, exhaustive procedure in conformity with the principles of natural justice is provided. Therefore, merely because it is mentioned that the Commission or Forum is required to have summary trial would hardly be a ground for directing the consumer to approach the civil court. For the trial to be just and reasonable, long-drawn delayed procedure, giving ample opportunity to the litigant to harass the aggrieved other side, is not necessary. It should be kept in mind that the legislature has provided alternative, efficacious, simple, inexpensive and speedy remedy to the consumers and that should not be curtailed on such ground. It would also be a totally wrong assumption that because summary trial is provided, justice cannot be done when some questions of facts are required to be dealt with or decided.” 12. In CCI Chambers Coop. Hsg. Society Ltd. (supra) the Hon’ble Supreme Court highlighted the same principle as enunciated in Dr. J.J. Merchant (supra) to determine the question whether adjudication on the issue arising in the Complaint require a detailed and complicated investigation of facts, incapable of being undertaken in a summary and speedy manner. It was observed that the decisive test is not the complicated nature of the questions of fact and law arising for decision – the anvil on which entertainability of a complaint by a Forum under the Act is to be determined is whether the questions, though complicated they may be, are capable of being determined by summary enquiry i.e. by doing away with the need of detailed and complicated method of recording evidence.
13. It is thus, well settled that the procedure prescribed under the Act for disposal of the Complaint is adequate to decide cases involving complicated questions of the law and fact as well albeit, the issues which, in the opinion of a Consumer Fora, cannot be decided without lengthy evidence, not envisioned under Section 13 of the Act.” | |
8. From the above judgments, it is clear that this Commission has taken a view in recent years that where the case is such that dispute can be resolved on merits within the purview of Consumer Protection Act, 1986, then the matter should be decided by the consumer forum and it should not unnecessarily be remitted to a civil court. It is also seen that the judgments of this Commission in Bright Transport Co. Vs. Sangli Sahakari Bank Ltd. (supra) and Safe Home Developers and Contractors Vs. Samata Sahakari Bank Ltd. (supra) relied upon by the petitioner bank relate to misappropriation of huge sums of money by forging signatures of the complainant in large number of cheques over a long period eg. about 250 cheques in Safe Home Developers and Contractors Vs. Samata Sahakari Bank Ltd. (supra). Clearly this would require voluminous evidence to decide the case, but in the present case there were only three drafts and there was no forgery of signatures. Hence clearly the present case is on a different footing than these two cases of Bright Transport Co. Vs. Sangli Sahakari Bank Ltd. (supra) and Safe Home Developers and Contractors Vs. Samata Sahakari Bank Ltd. (supra). Though only one cheque is involved in the case of P.N. Khanna Vs. Bank of India, II (2015) CPJ 54 (supra), the cheque has been realised at a different bank other than where the cheque was deposited. Clearly a cheque is issued by a customer whereas a draft is issued by the bank itself, hence, the responsibility to pay the draft correctly is of the bank. Hence, these two cases can also not be compared for similar decision. 9. It was asked from the learned counsel for the petitioner whether this bank branch was not required to take the confirmation of the demand draft from the issuing branch. Learned counsel contended that it was not necessary for drawee branch to take any confirmation from the issuing branch. Learned counsel has submitted the guidelines of the UCO bank for payments of demand draft. The following directions under these guidelines are important:- “2. PAYMENT OF DRAFTS 2.1 When a demand draft is received for payment, it should be carefully examined to see that it is in order in all respects. The following points should be particularly examined: a) It should be seen that draft is genuine and that it is written on the bank’s standard format of appropriate series of distinctive colour. b) It does not carry any material alterations and if there are any alterations, they have been properly authenticated. Following procedure should be adopted: 5. Special care should be exercised in paying a draft where the amount is Rs.10,000/- and above as drafts generally would be presented for payment before receipt of any Advice (B-12) from issuing branch.” 10. From the above, it is clear that the issuing branch sends an advice to the drawee branch in respect of demand draft issued by the issuing branch. Though it is not clearly written that the demand draft should be paid only after receiving of the advice, however, it is implied from the above direction that the demand draft should be paid after getting the advice from the issuing branch. However, if the demand draft is presented for payment before the receipt of advice from the issuing branch, special care and precaution needs to be taken for such payment. Moreover in matters of cutting on the draft, it is expected that special care will be taken for ensuring the correctness of the overwriting of the demand draft. In the present case, first of all it has not been disclosed whether the advice was received or not before the payment of the draft. As the drafts were sent by post and then they were received by unauthorised person, who made overwriting on the draft and put the name of another person Mr. Ashok Kumar, it is expected that advice must have reached the bank. When the drafts were presented for payment, the bank should have definitely checked the veracity of the drafts from the advice receipt from the issuing branch. If the advice was not received then the bank was expected to take special care and precaution before making the payment. Thus, clearly the bank has erred in making wrong payment to some other person and therefore, complainant is definitely entitled to get the compensation/refund of the amounts of drafts. 11. Based on the above discussion, I am of the view that the State Commission has rightly decided the Appeal No.152 of 2011 by passing order dated 11.04.2018. Accordingly, I do not find any illegality, material irregularity or jurisdictional error in the order dated 11.04.2018 of the State Commission which calls for any interference from this Commission. Consequently, the revision petition No.3014 of 2018 is dismissed at the admission stage. |
