Kerala

Ernakulam

CC/08/416

M/S OASIS TOURS INDIA PVT. LTD. - Complainant(s)

Versus

M/S.HDFC BANK LTD. - Opp.Party(s)

GEORGE CHERIAN KARIPPAPARAMBIL

30 Nov 2011

ORDER

 
Complaint Case No. CC/08/416
 
1. M/S OASIS TOURS INDIA PVT. LTD.
REGD.OFFICE, 17/18, DWARAKA SADAN, C-40, MIDDLE CIRCLE, CONNAUGHT CIRCLE, NEW DELHI-110 011. REP.BY ITS AUTHORISED OFFICER - THOMAS T.T.
...........Complainant(s)
Versus
1. M/S.HDFC BANK LTD.
HDFC BANK HOUSE, SENAPATI BAPAT MARG, LOWER PAREL, MUMBAI - 400 013. REP.BY ITS MANAGING DIRECTOR
MAHARASHTRA
2. M/S.HDFC BANK LIMITED
40/7995(B), PRABHU TOWERS, COCHIN - 682 035. REP.BY ITS BRANCH MANAGER.
Ernakulam
Kerala
............Opp.Party(s)
 
BEFORE: 
 HONORABLE MR. A.RAJESH PRESIDENT
 HONORABLE MR. PROF:PAUL GOMEZ Member
 HONORABLE MRS. C.K.LEKHAMMA Member
 
PRESENT:
 
ORDER

 

BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM, ERNAKULAM.

Date of filing : 01/11/2008

Date of Order : 30/11/2011

Present :-

Shri. A. Rajesh, President.

Shri. Paul Gomez, Member.

Smt. C.K. Lekhamma, Member.

 

    C.C. No. 416/2008

    Between


 

M/s. Oasis Tours India

(Pvt.) Ltd.,

::

Complainant

Regd. Office at 17/18,

Dwaraka Sadan, C-40,

Middle Circle, Connaught

Circle, New Delhi – 110 011,

Rep. by its authorised officer

and Director, Sri. Thomas. T.T.,

S/o. Late Thomas. T.V.


 

(By Adv. George Cherian, Karippaparambil

Associates Advocates,

H.B. 48,

Panampilly Nagar,

Cochin - 36)

And


 

1. M/s. H.D.F.C. Bank Ltd.,

::

Opposite parties

H.D.F.C. Bank House,

Senapati Bapat Marg, Lower

Parel, Mumbai – 400 013,

Rep. by its Managing Director.

2. M/s. H.D.F.C. Bank Ltd.,

40/7995 (B), Prabhu Towers,

Cochin – 682 035, Rep.

by its Branch Manager.


 

(Op.pts. by Adv.

C.N. Sreekumar,

M/s. Peter & Karunakar

Lawyers, Alfa Towers,

I.S. Press Road,

Cochin - 18)

O R D E R

A. Rajesh, President.


 

1. Briefly stated, the facts of the complainant's case are as follows :

The complainant is a private limited company. The complainant is an accredited International Air Transport Association travel agent (IATA) with an immaculate reputation in business. The complainant was maintaining a type silver RET current account with the 2nd opposite party. The complainant issued cheque No. 238112 on 30-06-2008 on the erstwhile Centurion Bank of Punjab (presently HDFC Bank Ltd.) for Rs. 8,94,678/- in favour of M/s. Deutche Bank Account IATA BSP India. There was credit balance of Rs. 10,08,185.29 in the account and also standing instruction was given to the 2nd opposite party to transfer funds from Mrs. Amminikutty Thomas's account to the complainant's account to meet any eventuality of short fall in the account of the complainant. However, in spite of availability of funds, the said cheque was dishonoured by the bank. In consequence of the dishonour of the cheque, the agency being declared defaulter by the IATA and all Airlines withdrawing their ticket stock from the complainant's agency resulting in closure of the business. Due to the dishonour of the cheque, the complainant had to suffer lot of inconveniences, loss of reputation etc. The complainant is entitled to get a compensation of Rs. 20 lakhs from the opposite parties. This complaint hence.


 

2. The version of the opposite parties :

This Forum has no jurisdiction to entertain the complaint and the complainant will not come under the purview of the consumer as the transaction is purely in the course of business. At the time of depositing the cheque, there was no sufficient fund in the account of the complainant. The complainant has deposited 4 cheques on 30-06-2008 for collection. Out of that 3 cheques were drawn on Federal Bank Ltd. For Rs. 1,00,000/-, Rs. 42,038 and Rs. 3,00,000/- each and one cheque was drawn on Bank of Baroda for Rs. 26,125/-. The 2nd opposite party exchanged the above cheques to the concerned banks in the clearing house for clearing the cheque on 30-06-2008 itself. The insurer's bank collected the above cheques for clearance and in the normal circumstances, it would have been cleared the cheques by 3.30 P.M. on 01-07-2008. But the issuer's bank (Federal Bank and Bank of Baroda) were on strike on 01-07-2008 and they had not participate in the clearing process on 01-07-2008 and the funds covered by above cheques were not released by the respective banks to the 2nd opposite party on that day. The funds were subsequently released by the said banks on 02-07-2008 at 3.30 P.M. On that day these opposite parties had not participated in the clearing process because of technical failure due to flood in Mumbai.03-07-2008, being a harthal the clearing was not conducted and finally the cheques were cleared on 04-07-2008. It is contended that the complainant had issued a cheque No. 238112 dated 30-06-2008 drawn on the 2nd opposite party in favour of M/s. Deutche Bank account for an amount of Rs. 8,94,678/-. The above cheque was deposited on 30-06-2008 itself. Since the 4 cheques deposited by the complainant for collection had not been cleared by the insurer's bank, the available balance in the account maintained by the complainant at the time was Rs. 5,40,022.29 only. There is no deficiency in service on the part of the opposite parties.


 

3. The witnesses for the complainant were examined as PW's 1 and 2 and Exts. A1 to A13 were marked on the side of the complainant. Witnesses for the opposite parties were examined as DW's 1 and 2. Exts. B1 and B2 were marked on their side. Ext. C1 also was marked. The counsel for the opposite parties filed argument note. Heard the counsel for the parties.


 

4. The points that arose for consideration are :-

  1. Whether the complaint is maintainable in this Forum?

  2. Whether the opposite parties are liable to pay a compensation of Rs. 20 lakhs to the complainant?


 

5. Point No. i. :- At the outset, the opposite parties filed I.A. 344/2009 challenging the maintainability of this complaint. This Forum vide order dated 19-11-2009 dismissed the I.A. relying on the decision rendered by the Hon'ble Apex Court in Karnataka Power Transmission Corporation and Another. Vs. Ashok Iron Works 2009 CTJ (SC) (CP) ). 233. The said order has not been challenged by the opposite parties. So further discussion in this point is not at all warranted.


 

6. Point No. ii. :- Admittedly, the complainant had issued Ext. A4 cheque No. 238312 dated 30-06-2008 drawn on the erstwhile Centurian Bank of Punjab (Presently the opposite parties) in favour of M/s. Deutche Bank Amount IATA BSP India.


 

7. The 2nd opposite party who was examined as DW2 deposed that the bank had received Ext. A13 letter dated 16-04-2008 from one Mrs. Amminikkutty Thomas who is maintaining account No. 303152265 with them the letter reads as follows :

“I hereby authorize the Bank to transfer the amount to the Current Account No. 13260200000046 of M/s. Oasis Tours India Pvt. Ltd., from my Loan Account No. 303 152 2065, as and when they required the same.”

 

8. The letter goes to show that Amminikkutty Thomas had issued an unconditional authorization to the 2nd opposite party to transfer money from her account to the complainant's account as and when they request for the same. So even if there is no sufficient balance to honour the cheques in the account of the complainant, the 2nd opposite party is duty bound to adjust the balance amount from Amminikkutty's account as per Ext. A13 letter. Ext. B1 account statement of the complainant goes to show that the 2nd opposite party has been availing the above facility on several occasions. It is pertinent to note that as per Ext. A2, the cheque had been dishonoured on 02-07-2008 in spite of the undertaking by the said Amminikkutty as per Ext. A13 and the remaining balance being Rs. 12,65,681.20. There is no explanation forthcoming for the same on the part of the opposite parties. Therefore the contention of the opposite parties that there was no sufficient balance to honour the cheque issued by the complainant to M/s. Deutche Bank Account IATA BSP India is unsustainable in law and if we may observe so imbalanced. Naturally, the other contention regarding the delay in clearing the cheques drawn in favour of the complainant by clearing house as well are not sustainable for the above reasons sustained uncontroverted by the opposite parties.


 

9. In short, there is deficiency in service on the part of the opposite parties in dishonouring the disputed cheque for which they are answerable unpardonably for the aforesaid reasons. The contest that the complainant is not a consumer having been dismissed and not being taken up in Appeal sustains therefore this consumer's grievances be not small in nature calls for considerable compensation. Though the claim for compensation is for Rs. 20 lakhs this Forum is of the considered opinion that considering the intangible loss sustained by the complainant which bears the brunt of loss of reputation is at hand as claimed by them and uncontroverted calls for compensation. This Forum is of the firm view that the service provider for their negligence of lack of knowledge should not be put to undue unnecessary duress. In an identical matter, the Hon'ble National Consumer Disputes Redressal Commission held that before dishonouring the cheque minimum care ought to have been taken not only by the concerned clerk but also by the higher officers for the negligent discharge in service the complainant is entitled to get sufficient and reasonable damages including punitive damages as provided under Section 14 (1)(d) of the Consumer Protection Act. (Bihar State Sugar Corporation Ltd. Vs. State Bank of India and Others (I (2007) CPJ 91 (NC). In view of the above, we are of the opinion that Rs. 2 lakhs be fixed as compensation. The Forum having taken a lenient view in the issue profoundly hopes that such litigation would not be dragged in.

 

10. In the result, the complaint is allowed in part and direct that the opposite parties shall jointly and severally pay Rs. 2 lakhs (Rupees two lakhs) to the complainant for the reasons stated above.

The order shall be complied with, within a period of one month from the date of receipt of a copy of this order, failing which the above amount shall carry interest @ 12% p.a. till realisation.

Pronounced in open Forum on this the 30th day of November 2011.

Forwarded/By Order, Sd/- A. Rajesh, President.

Sd/- Paul Gomez, Member.

Sd/- C.K. Lekhamma, Member.


 

Senior Superintendent.


 

 


 

A P P E N D I X


 

Complainant's Exhibits :-

Exhibit A1

::

Board Resolution dt. 25-08-2008

A2

::

Statement of account issued by the Centurion Bank Ltd.

A3

::

Statement of account issued by the Centurion Bank Ltd.

A4

::

Copy of the cheque dt. 30-06-2008

A5

::

Copy of Annexure D issued HDFC Bank

A6

::

Copy of the letter dt. 04-07-2008

A7

::

Copy of the letter dt. 04-07-2008

A8

::

Lawyer notice dt. 15-07-2008

A9

::

An acknowledgment card

A10

::

An acknowledgment card

A11

::

A letter dt. 26-08-2008

A12

::

Statement of account issued by the Federal Bank Ltd

A13

::

Copy of th letter dt. 16-04-2008

C1

::

Clearing House settlement register

 

Opposite party's Exhibits :-

Exhibit B1

::

Statement of account issued by the Centurion Bank of Punjab Ltd.

B2

::

Copy of the letter dt. 01-07-2008

 

Depositions :-


 


 

PW1

::

Thomas. T.T. - complainant's witness

PW2

::

Gireesh Nair - complainant's witness

DW1

::

Maxwell.V. - witness of op.pts

DW2

::

Tony George – witness of op.pts


 

=========

 
 
[HONORABLE MR. A.RAJESH]
PRESIDENT
 
[HONORABLE MR. PROF:PAUL GOMEZ]
Member
 
[HONORABLE MRS. C.K.LEKHAMMA]
Member

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