Tamil Nadu

South Chennai

CC/66/2019

Hari Sampath - Complainant(s)

Versus

M/s ICICI Bank Ltd & Another - Opp.Party(s)

Party in person

09 May 2022

ORDER

      Date of Complaint Filed:26.02.2019

                                                    Date of Reservation     :21.04.2022

                                                    Date of Order              :09.05.2022

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH), CHENNAI-3.

 

PRESENT:    TMT. B JIJAA, M.L.,                                            : PRESIDENT

                       THIRU. T.R. SIVAKUMHAR, B.A., B.L.,           :  MEMBER  I 

                      THIRU. S. NANDAGOPALAN., B.Sc., MBA.,      : MEMBER II

 

CONSUMER COMPLAINT No.66 /2019

MONDAY,THE 9^th DAY OF MAY 2022

 

Hari Sampath,

S/o Late V. Sampath Kumar,

Residing at M-44/2, 7^th Cross Street,

Besant Nagar,

Chennai – 600 090.                                                                                                                                      .. Complainant                  

..Versus..

 

1.Branch Manager,

   ICICI Bank,

   Besant Nagar Branch,

   Chennai – 600 090.

 

2.ICICI Bank Ltd,

   Registered Office,

   Vadodara, Gujarat.                                     

   Represented by its Chairman                                                                                     ..  Opposite Parties

Counsel for the Complainant          :  Mr.Hari Sampath, Party in Person

Counsel for the Opposite Parties    :   Exparte

        On perusal of records and after having heard the oral arguments of the Complainant / Party in Person we delivered the following:

                                                                                                   ORDER

Pronounced by the President Tmt. B. Jijaa, M.L.,

1.       The Complainant has filed this complaint as against the Opposite Parties 1 & 2 under sections 2(c)(ii), 2(f) and 12 of the Consumer Protection Act, 1986 and prays to hold that the Opposite Parties have jointly and severally committed acts of neglect and gross deficiency in service in the matter of failure to honour the self cheque No.000031 dated 03.04.2017 presented by the Complainant for a sum of Rs.80,000/- and direct the Opposite Parties to jointly and severally pay a sum of Rs.12,81,698.28/-.

2.      The averments of the complaint in brief are as follows:-

                The Complainant stated that he had opened a 3 in 1 Demat cum Savings Bank Account bearing No.603301111803 with the ICICI Bank, Besant Nagar Branch, Chennai on April 3^rd 2017, by depositing a sum of Rs.1,00,000/- by way of a cheque for the said sum, drawn on SBI Besant Nagar Branch, Chennai. The 3 in 1 Demat cum Savings Bank Account is a service that is being offered by the 2^nd Opposite Party, that links any Savings Bank Account opened in any of their branches with an equity trading account that is operated through ICICI Securities, which is also a subsidiary of the 2^nd Opposite Party. The Complainant had done certain trading from the said account and as on 21-04-2017 he was having a balance of Rs.89,989.03/- in his account as is evident from the details of the accounts provided to him online by the Opposite Party Bank. On the afternoon of 21-04-2017 (Friday) at about 12.30-1PM, owing to an emergency medical necessity caused by the health condition of his mother who is aged more than 80 years, the Complainant had approached the 1^st Opposite Party to withdraw money from his above referred savings bank account. The Complainant had presented a Self-drawn cheque vide Cheque No.000031 for an amount of Rs.80,000/- at the Teller counter for honouring the cheque. But as the cashier has not responded properly, he approached the Manager to know the reason, who again had not given any satisfactory reply. Hence he sent a notice on 22.04.2017. The Complainant states that when he was handed back the self addressed cheque for Rs.80,000/-, the cheque showed a stamp as “Cash Paid” and also with a transaction ID M3185595 signed by the cashier. The Opposite Parties received the said notice on 24.04.2017 but have failed to comply with the terms thereof.

3.     Even after receipt of the notice of this complaint the Opposite Parties did not appear before this Commission. Hence the Opposite Parties were set exparte on 22.04.2019.

4.     The Complainant had filed his Proof Affidavit and Written Arguments. On the side of Complainant Exs.A-1 to Ex.A-18 were marked.

5.     Points for Consideration:-

1. Whether there is any deficiency in service on the part of the Opposite Parties?

2. Whether the Complainant is entitled for the reliefs sought for?

3.To what other relief the Complainant is entitled to?

 

 

6.        Point No.1

        The Complainant is maintaining Account bearing No.603301111803 with the 1^st Opposite Party as evident from Ex.A-2. On 21.04.2017 the Complainant had presented a self-drawn cheque vide Cheque No.00031 for an amount of Rs.80,000/- at the Teller Counter of the 1^st Opposite Party as evident from Ex.A-4, whereas the date of cheque has been mentioned as 03.04.2017 in the prayer. However, the cheque could not be encashed and the cashier of the 1^st Opposite Party without proper reasoning handed back the self drawn cheque lethargically with a stamp as ‘cash paid’ even though cash has not been paid which is evident from Ex.A-4. Exs.A-5,6,7 would reveal that the Complainant has made a representation to the Opposite Parties that though he had more than Rs.89,000/- balance in his Saving Bank Account No.603301111803. the cheque was not honoured by the Bank. Statement of account of the Complainant Ex.A-3, Ex.A-8 would reveal that sufficient balance was being maintained in the Complainant’s Account. On 25.04.2017, 2^nd Opposite Party had sent a notice Ex.A-9, informing that they had exercised Banker’s Lien by debiting Rs.71,698.28/- on 25.04.2017 and have credited the monies towards the outstanding dues on ICICI Bank Credit Card. The Opposite Party had admitted vide Ex.A10, the email dated 03.05.2017 sent by  the Opposite Party to the Complainant that on 21.04.2017, the available balance in the Complainant’s account was Rs.89989.03 as on 21.04.2017 Ex.A-1 is the legal notice issued on behalf of the Complainant, for which the Opposite Party had issued reply notice dated 21.09.2017 stating that for the credit card issued to the Complainant in July 2006 with Credit Limit of Rs.49,000/-, the Complainant was liable to pay pending dues and hence ICICI Bank had exercised lien on complainant’s Account.

        The Complainant had placed reliance on the Judgement dated 26.04.2000 of the Hon’ble Apex Court in the case of Vimal Chandra Grover Vs. Bank ofIndia reported in 2000(3) SCR 587, wherein it was observed that when the bank failed to honour its commitment resulting in loss to the Appellant, the default on the part of the bank could be termed as deficiency in service.

        In this case, there was sufficient balance in the Complainant’s account at the time of presenting the cheque on 21.04.2017. However the cheque was found to be lethargically returned back as “cash paid” without making any payment to the Complainant.

        The Opposite Parties has exercised their lien in debiting the amount of Rs.71,698.28/- from the complainant Account on 25.04.2017, for the alleged credit card due, as no correspondence or communications as well as no statement  found to be sent to the Complainant claiming credit card dues by the Opposite Parties and the Complainant claims that no outstanding due is payable to the Opposite Party, further the alleged lien is not reflected even the day before the presentation of cheque for encashment of the subject cheque as per Ex.A8.

        The complainant has placed reliance on the Judgement of the National

commission in the case of ING Vysya Bank Vs YG SreereheSetty in R.P.No.2458/2003 and the Judgement of the Apex Court in the case of R.D Sarena Vs Balram Prasad Sharma, wherein an analysis was made on banker’s lien over Customers fund. It was observed that a Banker in exercise of its lien under Sec.171 of the Contract Act, cannot straightaway appropriate the money deposited in FDR without any bailment and without informing the query for. In this case the Opposite Parties for the alleged credit card due availed in the year 2006 had exercised its lien in the year 2017 without any prior notice to the Complainant.

        Moreover it is seen from Ex.A-13 to A-18, the suffering and hardship meted out by the complainant.

        The act of the Opposite Parties in not honouring the cheque of the complainant when sufficient fund was available on the date of presentation of cheque and debiting the amount of Rs.71,698.28/- under the guise of banker’s lien without prior notice or information clearly amounts to deficiency in service. Hence we are the considered view that the act of the Opposite Parties is gross negligence and thereby had committed deficiency in service. 

Accordingly, Point No.1 is answered in favour of the Complainant

7.      Point No.2 and 3:-

Though in the Reply Notice dated 21.09.2017(Ex.A-12) the Opposite  Parties had stated that they had a statutory right of lien under the Indian Contract Act in respect of the unpaid outstanding dues, but had failed to show that there is contract  to contrary in creating lien by the Opposite Party, the Opposite Party failed to appear before this Commission and had not filed written version and documents regarding the outstanding dues and their right to exercise lien. Thus the Opposite Parties are liable to pay the Cheque amount of Rs.80,000/- with 9% interest from the date of cheque i.e 21.04.2017. Accordingly Point Nos.2 and 3 are answered.

In the result this complaint is allowed in part. The Opposite Parties are jointly and severally directed to pay a sum of Rs.80,000/- (Rupees Eighty Thousand only) towards the failure to honour the cheque No.000031 dated 21.4.2017 presented by the Complainant and to pay a sum of Rs.50,000/- (Rupees Fifty Thousand only) towards compensation for the mental agony caused to the Complainant due to the deficiency of service and also to pay a sum of Rs.5000/- (Rupees Five Thousand only) towards litigation expenses, within 8 weeks from the date of this order, failing which the complainant is entitled to recover the same along with interest @ 9% per annum from the date of this order to till the date of realisation.

Dictated  to Steno-Typist, transcribed and typed by her, corrected and pronounced by us in the Open Commission, on 9^th day of May 2022.

 

 

S. NANDAGOPALAN                    T.R. SIVAKUMHAR               B.JIJAA

      MEMBER II                              MEMBER I                         PRESIDENT

 

 

 

List of documents filed on the side of the Complainant:

 

Ex.A1	03.04.2017	Application for 3 in 1 DEMAT ACCOUNT AND POWER OF Attorney to ICICI securities
Ex.A2	06.04.2017	ICICI SB account 603301111803 activation letter from 2nd Opposite Party
Ex.A3	21.04.2017	ICICI SB account statement of complainant
Ex.A4	21.04.2017	Self cheque No.000031 for Rs.80,000/- presented by Complainant
Ex.A5	22.04.2017	Complaint to 1st Opposite Party for Non Payment of cheque
Ex.A6	22-04-2017	Speed post record for complaint sent to 1st Opposite Party
Ex.A7	24.04.2017	Email reply of 2nd Opposite Party to copy of complaint forwarded by Complainant showing complaint received and recorded by 2nd Opposite Party
Ex.A8	25.04.2017	ICICI SB account statement of Complainant
Ex.A9	25.04.2017	Letter to Complainant from 2nd Opposite Party, informing about debit of Complainant SB account, through lien exercised
Ex.A10	03.05.2017	Email from 2nd Opposite Party to Complainant
Ex.A11	01.09.2017	Legal notice issued on behalf
Ex.A12	21.08.2019	ICICI Bank Statement
Ex.A13	25.09.2019	Certificate from the Cardiologist
Ex.A14	30.04.2017	Bill for cardiac package taken for the Complainant and his mother
Ex.A15	03.05.2017	ECG report of Complainant’s mother
Ex.A16	03.05.2017	Prescription of the Doctor
Ex.A17	09.08.2017	Prescription of the Doctor
Ex.A18	04.12.2017	Prescription of the Doctor

 

List of documents filed on the side of the Opposite Parties:

 

NIL

 

 

S. NANDAGOPALAN                 T.R. SIVAKUMHAR                  B.JIJAA

       MEMBER II                           MEMBER I                            PRESIDENT