Delhi

New Delhi

CC/1037/2011

Village Vision Society - Complainant(s)

Versus

M/S. Punjab National Bank & Ors. - Opp.Party(s)

03 Nov 2022

ORDER

 

 

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION-VI

(NEW DELHI), ‘M’ BLOCK, 1STFLOOR, VIKAS BHAWAN,

I.P.ESTATE, NEW DELHI-110002.

Case No.CC.1037/2011                             

IN THE MATTER OF:

 

 

Village Vision Society

Through its President

E-8, Jawahar Park, Laxmi Nagar, Delhi-110092                    ....Complainant

 

VERSUS

 

1. Punjab National Bank

         Through its Manager

            Madhuban, Delhi-110092

2. Oriental Bank of Commerce

           Through its Manager

           Vikas Marg, Laxmi Nagar,

            DELHI-110092

 

 

Quorum:

 

Ms.PoonamChaudhry, President

Shri Bariq Ahmad, Member

Ms. Adarsh Nain, Member

 

                                                                                                                        Date of Institution:- 19.10.2011                                                                                                                                                                          Date of Order   : - 03.11.2022

O R D E R

Poonam Chaudhry, President

1. The present complaint has been filed under Consumer Protection Act, 1986 (in brief referred as CP Act) alleging deficiency of service. Briefly stated that facts of the case are that on 24.06.2008 the complainant had issued a cheque bearing No.089092 for a sum of Rs.6600/- ( Rupees Six Thousand  Six Hundred) drawn on Opposite Party No.1 in favour of M/s Shri Process.  The above cheque had been cleared from the account of the complainant.
2. It is further alleged that on 12.07.2008 complainant was shocked when he learnt that the Opposite Party No.2 had dishonoured the cheque with remarks "Contact Drawer" and returned the original cheque to M/s Shri Process.
3. It is also alleged that the Opposite Party No.1 has deducted the said amount from the account of the complainant but Shri Process did not receive it, the deducted amount is either in possession of the Opposite Party No.1 or the Opposite Party No.2.
4. It is further alleged that as the cheque had been dishonoured with remarks "Contact Drawer it means the payment had been stopped by the account holder which was gross negligence of Opposite Parties. That due to negligence of the Opposite Parties the image and reputation of the complainant has been lowered.
5. It is also alleged that after dishonoring the cheque M/s Shri Process issued a legal notice U/s 138 of N. I. Act to the complainant through his lawyer. The complainant thereafter immediately contacted M/s Shri Process and made the payment i.e. Rs.6600/- (Rupees Six Thousand Six Hundred) alongwith Professional Charges of legal notice i.e. Rs.3300/- (Rupees Three Thousand Three Hundred). The complainant thus paid a total amount of Rs.9900/- to M/s Shri Process.
6. It is also stated that on 02.06.2009, the complainant made a written request to the Opposite Party No.1 for reversal/credit the amount in the account of the complainant but in vain. Thereafter again on 05.08.2009 the complainant made a second written request to the Opposite Party No.1 but in vain.
7. It is prayed that Opposite Parties be jointly or severally directed to pay Rs. 6600/- (Rupees Six Thousand Six Hundred) and to pay Rs.3300/- (Rupees Three Thousand Three Hundred) i.e. Rs. 9,900/- (Rupees Nine Thousand Nine Hundred) to the complainant with interest @18 per annum from 26.07.2008 till actual realization.
8. The Opposite Parties be also jointly or severally be directed to pay Rs.50,000/- (Rupees Fifty Thousand) as compensation for harassment, mental agony and Rs. 11,000/- (Rupees Eleven Thousand) as cost of litigation.
9. Notice of complaint was issued to opposite parties who entered appearance. OP No.-1 filed written statement stating that this Forum does not have territorial jurisdiction. It was also alleged complaint is bad for mis-joinder of parties. It was further stated that the opposite party no.1 has cleared the cheque bearing No.089092 of Rs.6600/- (Rupees Six Thousand Six Hundred) issued by the complainant and the amount of the same was debited but there may be error on the part of the opposite party no.2 (Oriental Bank of Commerce) in dealing with the clearance of the said cheque, for that the answering opposite party cannot be held responsible or liable. It was also stated that there was no deficiency of service answering opposite party No.1. It was prayed that complaint was liable to be dismissed.
10.  OP No. -2 also filed written statement alleging inter alia that the Complaint was liable to be dismissed being barred by limitation since the complainant had earlier filed a complaint before District Forum - Saini Enclave as "Complaint No.264/2010" and the same was dismissed in default in the "year 2010-2011". Thereafter Complainant moved an application for restoration and that was also dismissed, however, no such Order has been filed by the Complainant. The present Complaint being hopelessly barred by limitation was liable to be dismissed. It was further stated that this Forum did not have territorial jurisdiction as neither complainant nor OPs reside or work for gain within the jurisdiction of this Forum nor any cause of action had arisen within the territorial jurisdiction of this Forum.
11.  It was also stated that no cause of action had arisen against the answering O.P. No.2, since the Complainant is neither the customer of the Oriental Bank of Commerce nor did he availed any services of the O.P. No.2 Bank (OBC). It was also stated that the cheque no. 089092 dated 24.06.2008 deposited by Shri Process in their account no. 0488101003640 on 25.06.2008 was retuned back with the remarks “contact Drawer” insufficient fund on 26.06.2008 by OP NO.-1. The transaction was between complainant and OP NO.-1. It is prayed that complaint be dismissed against OP No.-2. It was prayed that the complaint is mis-joinder of parties as to be dismissed.
12.  Complainant thereafter filed rejoinder reiterating therein the contents of the complaint and denying all the allegations made in the written statements of OP No.-1 and 2. The parties thereafter filed their evidence by way of affidavit.
13. We have heard the Ld. counsel for parties and perused the record.
14.  We have first decide the preliminary objections raised by OP No.-1 and OP No.-2. The contention of OP No.1 was that this Forum did not have territorial jurisdiction as neither complainant nor OP No.1 and 2 reside or work for gain within its jurisdiction. It is to be noted that Section 11 of the Consumer Protection Act, 1986 which relates to jurisdiction of District Forum is as follows:  Subject to the other provisions of this Act, the District Forum shall have jurisdiction to entertain complaints where the value of the goods or services and the compensation, if any, claimed (does not exceed rupees twenty lakhs). A complaint shall be instituted in a District Forum within the local limits of whose jurisdiction-

1. The opposite party or each of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides or (carries on business or has a branch office or) personally works for gain, or
2. Any of the opposite parties, where there are more than one, at the time of the institution of the complaint, actually and voluntarily resides, or carries on business or has a branch office, or personally works for gain, provided that in such case either the permission of the District Forum is given, or the opposite parties who do not reside, or (carry on business or have a branch office) or personally work for gain, as the case may be, acquiesce in such institution; or
3. The cause of action, wholly or in part, arises.

15.  Thus as both OP -1 and 2 have branch offices within the territorial jurisdiction of the Forum, the said objection is rejected.
16.  As regard the contention of OP No. 2 that the present complaint is not maintainable as earlier a complaint no. 264/2010 filed by the complainant  in the Ld. Forum “Saini Enclave was dismissed in default in the year 2010-2011, Thereafter an application moved for restoration of complaint which was also dismissed as such complaint being barred by limitation was liable to be dismissed.
17. As regards the said contention it is to be noted that it has been held by Hon’ble Supreme Court in case  titled Indian Machinery Company Vs. M/s Ansal Housing and Construction Ltd. that Civil Appeal No. 557/2016. That “the only question that has arisen in this appeal is whether a second complaint to the District Forum under the Consumer Protection Act, 1986 is maintainable when the first complaint was dismissed for default or non-prosecution.  Held There is no provision parallel to the provision contained in Order 9 Rule 9(1) CPC which contains a prohibition that if a suit is dismissed in default of the plaintiff under Order 9 Rule n8, a second suit on the same cause of action would not lie. That being so, the rule of prohibition contained in Order 9 Rule 9(1) CPC cannot be extended to the proceedings before the District Forum or the State Commission. The fact that the case was not decided on merits and was dismissed in default of non-appearance of the complainant cannot be overlooked and, therefore, it would be permissible to file a second complaint explaining why the earlier complaint could not be pursued and was dismissed in default.
18. Thus we reject the said contention of OP No.-2. From the evidence and documents on record it has been proved that a sum of Rs. 6,600/- (Rupees Six Thousand Six Hundred) was deducted from the account of complainant by OP NO.-1 as per the statement of account of complainant issued by OP NO.-1 Annexure C-2 yet OP No.-2 returned the cheque as dishonoured with the remarks “contact drawer” to Shri Process. The copy of statement of account issued by OP No.-2 to Shri Process is  Annexure 3. It was submitted on behalf of complainant that despite written request of complainant OP No.-1 did not credit the amount of Rs. 6,600/- (Rupees Six Thousand Six Hundred) in the account of complainant. It is the case of complainant that after the dishonour of cheque Shri Process issued notice to complainant under section 138 N.I. Act. The complainant was constrained to make payment of Rs. 6,600/- (Rupees Six Thousand Six Hundred) to shri Process alongwith charges of legal notice of Rs. 3,300/- (Rupees Three Thousand Three Hundred).  In the above facts and circumstances, we hold OP No.-1 and 2 guilty of deficiency of services. OP NO.-1 and 2 are directed to refund Rs. 9,900/- (Rupees Nine Thousand Nine Hundred) with interest @ 9% p.a. from the date of dishonoured of cheque till realization, within 4 weeks of the date of receipt of the order failing which they will be liable to pay interest @ 12% p.a till realization. We also award compensation of Rs. 25,000/- (Rupees Twenty Five Thousand) and 10,000/- (Rupees Ten Thousand) cost of litigation.

A copy of the order be provided to all parties free of cost.

The order be uploaded on the website of the Commission.

File be consigned to record room with a copy of the order.

 

 

 

POONAM CHAUDHARY

(PRSIDENT)

 

 

 

 

BARIQ AHMED

(MEMBER)