PER SHRI. S.M. RATNAKAR – HON’BLE PRESIDENT
1) By this complaint the Complainant has prayed that the Opposite Parties be directed to pay Rs.4,35,000/- alongwith interest @ 18% p.a. as deemed fit by this Forum till the realization of the said amount.
2) It is alleged that the Complainant is free lance trader in imitation jewellery business in the name and style of M/s. Mehta Associates having its office at B-8, Mayur Kunj, Liberty Garden Cross Road No.4, Malad (W), Mumbai – 400 064. The Opposite Party No.1 is Government of India undertaking Bank having its Head Office at Kolkatta. The Opposite Party No.2 is the Asst. Manager, Posted at UCO Bank, Colaba Branch. The Opposite Party No.3 is added vide order dtd.24/08/2012 on amendment application filed by the Complainant in view of the contentions raised by the Opposite Party No.1 in its written statement.
3) According to the Complainant, he wanted to expand his aforesaid business in view of the orders from Foreign buyers. The Complainant therefore, wanted the loan of Rs.11 Lacs for the said purpose. It is submitted that the Complainant was knowing the Opposite Parties No.3 and he had discussed his plan of obtaining loan from the bank. The Complainant states that the Opposite Party No.3 introduced to the Complainant to Opposite Party No.2 and placed before him the proposal of Complainant’s loan and showed his willingness to mortgage the flat owned by him, C-103, situated at Nirman Vihar CHS Ltd., Andheri (E), Mumbai – 400 093 for the said loan. The Opposite Party No.2 assured to provide such loan to the Complainant. The Complainant and his wife Mrs.Geeta, signed the loan application based on their joint income. Opposite Party No.1 sanctioned the mortgage loan of Rs.11 Lacs against the ownership flat of the Complainant. The copy of the terms and conditions of mortgage loan are at Exh.‘A’. The Opposite Party No.1 & 2 sanctioned loan on 18/09/2009 and credited it to the loan account an amount of Rs.11 Lacs to Current Account No.02140210000458 standing in the name of M/s. Mehta Associates. According to the Complainant, the loan agreement was signed jointly by the Complainant himself and by his wife. The original loan agreement is with Opposite Party No.1.
4) It is alleged that as per the terms and conditions of the loan agreement the Complainant issued 12 post dated cheques each of Rs.20,800/- and payable on 22nd of every month towards the EMI. The first cheque was due on 22/10/2009. The Complainant issued 12 cheques bearing Nos.458754 to 458765 in favour of Opposite Party No.1 Account No.02140610002063. According to the Complainant, at the same time the Opposite Party No.2 obtained three blank cheques duly signed by the Complainant forcibly under fake ground, but he promised that those cheques would remain in the custody of the bank until mortgage loan would be fully paid. The said cheques were bearing No.458768 to 458770. It is submitted that the aforesaid three cheques without mentioning any name or account number and signed by the Complainant were only handed over to the Opposite Party No.2 in the presence of Complainant’s wife.
5) It is the case of the Complainant that however, the Opposite Party No.1 & 2 failed and neglected to deposit the cheques issued by the Complainant towards the EMI with malafide intension and ulterior motive. It is further alleged that the Opposite Party No.2 recovered the EMI of Rs.20,800/- through and by way of voucher. The said fact was not noticed by the Complainant for about 7-8 months. According to the Complainant he opened the Current Account No.02140210000458 with Rs.240/-. The Xerox copy of the bank statement for the period 01/09/2009 to 31/01/2010 is at Exh.‘B’. It is the case of the Complainant that from the bank statement at Exh.‘B’ the Complainant found that the Opposite Parties No.1 & 2 used cheque Nos.458766, 458767 and 458771 and withdrew Rs.2,00,000/-, Rs.6,000/- and Rs.3,00,000/- respectively. It is submitted that the Complainant withdrew the amount on 22/09/2009 and 25/09/2009 under the aforesaid cheques which were in his custody at the relevant time. The Complainant has come out with the case that the 3 cheques bearing No.458768 to 458770 which were forcibly obtained by the Opposite Party No.2 were used by the Opposite Party No.2 personally & withdrew a sum of Rs.2,50,000/-, Rs.35,000/- & Rs.1,50,000/-. On 29/09/09, 01/10/09 and 05/10/09 respectively under his own fake signature the copies of it are marked at Exh.‘C’, C/1 and C/2 on which on which it is mentioned as “Self”. It is submitted that the aforesaid three cheques were issued by the Complainant under the duress and influence of Opposite Party No.2 as the Complainant was interested in the business loan and on believing on Opposite Party No.2 in good faith. The aforesaid cheques were obtained by him from the Complainant as security and the Complainant was having belief that the Opposite Party No.2 would not use the said cheques for whatsoever nature except in connection with loan obtained by the Complainant. It is alleged that upon going through the statement at Exh.‘B’ the Complainant realized that the alleged 3 cheques obtained by the Opposite Party No.2 put into use for the purpose of withdrawal of the aforesaid huge amount and thereby the Complainant has been deceived and put into loss of Rs.4,35,000/- by the Opposite Party No.2. It is alleged that the aforesaid 3 cheques were in the custody of bank therefore, the Opposite Party No.1 & 2 are responsible for the same and it amounts to criminal breach of trust and failuring the service under Banking Rules. The Complainant therefore submitted that in view of the aforesaid circumstances he is entitle for compensation of Rs.4,35,000/- plus the expenditure of this proceeding from the Opposite Parties No.1 & 2 under the Consumer Protection Act, 1986.
6) The Opposite Party No.1 contested the claim made by the Complainant by filing written statement. It is contended that the complaint is false, frivolous, malafide, mischievous, suppresses material facts and deserves to be dismissed. It is contended that as the complicated questions are involved in this complaint the Complainant be directed to approach the Civil Court. It is contended that the Complainant has made all the allegations only against Opposite Party No.2 personally and there are no allegations against the Opposite Party No.1, hence, the complaint is not maintainable and deserves to be dismissed against Opposite Party No.1.
7) It is the case of the Opposite Party No.1 that the Complainant had filed his complaint with Banking Ombudsman on 07/09/2010 for the same cause of action therefore, the present complaint is heat by principles of Res-judicata and Estoppel. It is contended that the Complainant has not annexed entire correspondence between the Complainant and the Opposite Party No.1 as well as the statements recorded by the police in connection with the complaint of the Complainant. The copies of which are marked as Exh.‘A’ colly.
8) It is contended that the Complainant had availed loan of Rs.11 Lacs from the Opposite Party No.1 and he is a willful defaulter in repayment of the same. The Opposite Party No.1 had issued various notices and notice under the Securitization Act and therefore, the present complaint is filed as a counter blast to harass the Opposite Party No.1 and to avoid legal liability of repayment of loan of Opposite Party No.1. The copies of which are annexed at Exh.‘B’ (colly.).
9) According to the Opposite Party No.1, the Complainant had already filed the criminal complaint with police authority against the Opposite Party No.2 & 3 and the statements of the Opposite Party No.2 & 3 were recorded on 18/08/2010 and 30/06/2010 respectively. In the statement of Opposite Party No.3 he had clearly stated before the police authorities that the Complainant and Opposite Party No.3 had some business transactions and the Opposite Party No.3 used to provide finance to the Complainant for the purpose of the business and the cheque Nos.458768 – 458770 were issued by the Complainant to him at Borivali in discharge of his liability towards the said transactions. The Opposite Party No.3 had further stated that the amounts were mentioned in the cheques in presence of the Complainant and thereafter the Complainant put his signatures on the aforesaid 3 cheques in exchange of all documents and thereafter, the same were accordingly encashed by the Opposite Party No.3. The Opposite Party No.3 also stated before the police that the case of the Complainant about issuance of 3 cheques to the Opposite Party No.2 is false and malafide. The copies of the statements recorded by the police authorities are marked at Exh.‘C’ colly. The other allegations made by the Complainant against the Opposite Party No.1 have been specifically denied. It is contended that the Complainant be dismissed the Complainant may be directed to pay cost of this complaint to the Opposite Party No.1 for filing false complaint.
10) The Opposite Party No.2 contested the complaint by filing written statement. It is contended that the Opposite Party No.2 was working as Asst. Manager with the Opposite Party No.1 and he has retired prior to filing of the present complaint and therefore, he is no way concerned in this complaint. It is submitted that the Complainant has not come with clean hands before this Forum and therefore, he is not entitled for any reliefs. It is submitted that in the criminal complaint filed by the Complainant the statements of the Opposite Party No.2& 3 were already recorded. From the said statements, the case put forth by the Complainant can be considered as false and made with alterative motive of harassing the Opposite Parties and to avoid liability under the securitization Act and to extract money from the Opposite Parties. No deficiency is pleaded against the Opposite Party No.2 in the capacity of Branch Manager. The Opposite Party No.2 submitted that the Complainant is not the consumer of him against whom deficiency is alleged. It is thus, submitted that the complaint be dismissed with compensatory cost.
11) The Opposite Party No.3 also contested the complaint by filing written statement. It is contended that the Complainant had borrowed an amount of Rs.4, 35,000/- from the Opposite Party No.3 in the month of August, 2009. The Complainant had assured the Opposite Party No.3 to refund the said friendly loan after getting his loan sanctioned from the Opposite Party No.1. It is contended that the Opposite Party No.3 had assisted the Complainant to approach Opposite Party No.1 as he was having bank account in Colaba Branch of Opposite Party No.1 and also introduced the Complainant to the said branch. It is contended that after sanctioning the loan of Rs.11 Lacs to the Complainant by the Opposite Party No.1 he approached to the Complainant for refund of his friendly loan and on 29/09/2009 as agreed by them, they met at Indraprast Shopping Centre, Borivali (E) and went to nearby hotel. It is alleged that after collecting the relevant documents from the Opposite Party No.3 the Complainant had handed over 3 cheques bearing No.458768 to 458770 duly signed by him. It is contended that the Complainant had suggested that the Opposite Party No.3 put word ‘Self’ on the said cheques while withdrawing the amount on the strength of the said cheques. It is the case of Opposite Party No.3 that as per requirement he withdrew an amount of Rs.2,50,000/- on 29/09/2009, Rs.35,000/- on 01/10/2009 and Rs.1,50,000/- on 05/10/2009. It is submitted that the particulars of the said cheques except the signatures of the Complainant and rubber stamp of the proprietary concern are in the handwriting of the Opposite Party No.3. It is contended that the Complainant was aware on 05/10/2009 that the Opposite Party No.3 had withdrawn the said amount on the strength of said bearer cheques. It is contended that the Complainant has filed false complaint thereby making allegations against Opposite Party No.2 and the Opposite Party No.3 to pressurize to settle the alleged dispute. It is contended that prior to filing of the present complaint the Complainant had approached Colaba Police Station and the statement of the Opposite Party No.3 was recorded by the policy on 30/06/2010. It is contended that there is no relationship of consumer and service provider between the Opposite Party No.3 and the Complainant there is no averment which remotely suggests the Opposite Party No.3 is guilty of deficiency in service or unfair trade practices therefore, the complaint be dismissed with compensatory cost.
12) The Complainant has filed rejoinder of complaint and also affidavit of his wife Mrs. Geeta. The Opposite Party No.1 has filed affidavit of Sureshkumar, Manager of Opposite Party No.1 at Colaba Branch. The Opposite Party No.2 has filed his affidavit. The Opposite Party No.3 has also filed his affidavit. All the parties had filed their written arguments. We heard oral arguments of Shri. S.K. Pathare, Ld.Advocate for the Complainant, Ld.Advocate Shri. D.S. Joshi, for the Opposite Party No.1, Ld.Advocate Shir. Alok Maduskar, for the Opposite Party No.2 and Ld.Adv.Shri. S.N. Parte on behalf of the Ld.Advocate Shri. S.B. Prabhavalkar for Opposite Party No.3. We have perused the documents placed on record by all the parties.
13) The case made out by the Opposite Parties that the Complainant is required to be directed to approached Civil Court as the complicated questions are involved in this case in our view and cannot be accepted. The Complainant is consumer of Opposite Party No.1 and he has raised some grievances arose on account of the loan obtained by him from the Opposite Party Opposite Party No.1 in this complaint. We therefore, hold that as controversy raised in this complaint is regarding the cheques of his loan account maintained by the Opposite Party No.1 and amount debited by the Opposite Party No.1 from that loan account, the same can be tried by this Forum. Hence, the said contention raised by the Opposite Parties in our is devoid of merits. The applicability of principles of res-judicata and Estopple as contended by the Opposite Parties is also devoid of merits in view of the observations of National Commission in the case of Kamleshwari Prasad Sing V/s. National Insurance Co. Ltd., I (2005) CPJ 107 (NC) wherein it is held that the decision of Ombudsman is not binding on the Complainant of the claim is subject to adjudication by the Fora. Thus, giving of decision by Banking Ombudsman cannot be accepted as contended by the Opposite Parties.
14) While considering the rival contentions of the parties, as regards 3 cheques in question and payment thereof, it is necessary to be taken into consideration that it is undisputed that the Complainant had obtained loan of Rs.11 Lacs from the Opposite Party No.1 by executing required documents in favour of the Opposite Party No.1. It also appears from the averments in the complaint that the Complainant was knowing the Opposite Party No.3 prior to obtaining loan from the Opposite Party No.1. It is also undisputed that the Opposite Party No.3 has introduced the Complainant for obtaining the loan from Opposite Party No.1 and helped him. It thus, appears that the Complainant was having friendly relation with Opposite Party No.3 at the time of obtaining loan from the Opposite Party No.1. In this context therefore, the contention raised by the Opposite Party No.3 that the Complainant had suppressed the material facts that he had borrowed an amount of Rs.4,35,000/- from the Opposite Party No.3 in the month of August, 2009 and he had assured the Opposite Party No.3 to refund the said friendly loan after getting his loan sanctioned from the Opposite Party No.1 Bank and the Opposite Party No.3 had helped the Complainant and introduced him to the Opposite Party No.1 is required to be taken into consideration. The Opposite Party No.3 has specifically come out with the case that on 29/09/2009 the Complainant had met him at Indraprastha Shopping Centre, Borivali, and thereafter, they went nearby hotel. The Complainant after collecting documents from Opposite Party No.3 had handed over 3 cheques bearing Nos.458768 to 458770 duly signed by him in view of the transaction between him and the Complainant was cash transaction and the Complainant had suggested that the Opposite Party No.3 should put word ‘Self’ on the cheques while withdrawing the amount on the strength of the said cheque and the Opposite Party No.3 had withdrawn the amount of Rs.4,35,000/-in between 29/09/09 to 05/10/09 can be relied upon. It is undisputed that the on the aforesaid 3 cheques there are signatures as well as rubber stamp of the Complainant’s proprietary concern M/s. Mehta Associates. It is not the case of the Complainant that the aforesaid cheques do not bear his signatures or his signatures were forged for obtaining the amount from the account of the Complainant. The Complainant has come out with rather imaginary case that besides 12 EMI cheques against his loan he had issued 3 cheques in question to the Opposite Party No.2 and the Opposite Party No.2& 3 in collusion with each other encashed the same and obtained an amount of Rs.4,35,000/- from his current account. We are of the view that to prove such contention raised by the Complainant the burden lies on the Complainant to prove the same by independent cogent and corroborative evidence. In this case the Complainant has not placed on record any such evidence but he has relied the evidence of his own wife Mrs. Geeta. Upon going through her evidence also we do not find that the same can be relied upon as it appears that prior to filing of this complaint on 01/12/2010 before this Forum the Complainant had lodged the complaint before the Inspector of Police, Colaba Police Station and MIDC Police Station, Andheri on 17/03/2010. The copy of which is placed on record by the Complainant himself at Exh.‘D’ to his rejoinder filed in this complaint on 08/06/2011, wherein there is no mention that at the time of singing of loan documents by the Complainant& his wife Mrs. Geeta was present in the Bank with him. Furthermore, in the said complaint the Complainant had made out a different story alleging that the Opposite Party No.3 is a guarantor of his aforesaid loan account and he had managed to get the said loan for the Complainant from the Opposite Party No.1 and at the time of signing the loan documents the Opposite Party No.2 had confirmed on phone with Opposite Party No.3 that the Complainant should give the cheques in question signed by himself and the Opposite Party No.2 had further assured the Complainant to return the said cheque book (not only 3 cheques in question) to his friend i.e. Opposite Party No.3 when he will be back to Mumbai. In the said complaint it is mentioned that as the Opposite Party No.3 is guarantor in the loan of the Complainant he had given 3 blank signed cheques dated Nil and he was constrained to sign on it by the Opposite Party No.2 and the same was taken by the Opposite Party No.2 in his custody. It is pertinent to note that the said cheques were not encashed by Opposite Party No.2, but by the Opposite Party No.3. The Complainant in our view has also failed to establish as to how the said 3 cheques were enchased by Opposite Party No.3 which were according to the Complainant were given to the Opposite Party No.2. It is also a fact that prior to filing of this complaint by the Complainant before this Forum the statement of Opposite Party No.3 was recorded by the police on 30/06/2010. In the said statement the Opposite Party No.3 had clearly stated as to how there were monetary transactions between the Complainant and Opposite Party No.3 and the Complainant had issued the cheques in question in favour of the Opposite Party No.3. In the said statement the Opposite Party No.3 had specifically denied that the Complainant had given those 3 cheques to the Opposite Party No.2. It appears that the statement of Opposite Party No.2 was thereafter recorded on 18/08/2010 by the police authority. In the statement of Opposite Party No.2 he had specifically denied that the Complainant had given 3 additional cheques on insisting by the Opposite Party No.2 to the Complainant to that effect. In view of these facts and the complaint is filed thereafter in the month of December, 2010 necessarily shows that the Complainant had come out with afterthought false case against the Opposite Parties. As per the bank procedure the bearer cheque can be paid to the person who brings the cheque to the bank. In the present case from perusal of cheque in question it also appears that the Complainant did not cut the words “or bearer” and the Opposite Party No.3 has specifically contended that he had presented the said cheques as per the instructions of the Complainant. It is also required to be considered that the Bank is under no obligation to ascertain that the payment has been made of bearer cheque to the right person or not. The Hon’ble Supreme Court in the case reported in 1993 Supreme Court cases 1997, Bank of Maharashtra V/s. M/s. Automotive Engineering Co. held that “under Sec.31 of the Negotiable Instruments Act, the Appellant Bank had a liability to honour the cheque and make payment, if the cheque was otherwise in order. “Payment in due course” under Sec.10 of the Act means payment in accordance with the apparent tenor of the instrument in good faith and without negligence. In the facts of the case, there was no occasion to doubt about the genuineness of the cheques from the apparent tenor of the instrument. Nor is there any evidence showing that the payment of the said cheque had not been made in good faith.” Considering the aforesaid observations and the Opposite Party No.2 has specifically stated before the police authority that out of 3 cheques as per the bank procedure he had passed two cheques and one cheque was passed by one Shri. Sonawane. So from the contention raised by the Complainant in the present complaint, it appears that the Complainant has suppressed material facts and the transactions occurred between himself and Opposite Party No.3. It also appears that the present complaint is filed by the Complainant as the Opposite Party No.1 had issued legal notice under the Securitization Act and to avoid the legal liability of the loan towards the Opposite Party No.1. The submissions therefore, made by the Ld.Advocate for the Complainant cannot be accepted in any manner to allow the claim made in the complaint.
15) In view of the aforesaid facts and discussions, we hold that the Complainant has made out a false case against the Opposite Parties for payment of Rs.4,35,000/- and other reliefs. In our view as the Complainant has filed false and vexatious claim against the Opposite Parties, the Complainant is liable to pay compensatory cost as provided under Sec.26 of the Consumer Protection Act, 1986 to each Opposite Party No.1 to 3. In our view the complaint is liable to be dismissed by passing the following order –
O R D E R
i. Complaint No.321/2010 is dismissed with a direction that the Complainant should pay Rs.3,000/- (Rs. Three Thousand Only) to each Opposite Party No.1 to 3.
ii. The Complainant is directed to comply the aforesaid order within one month from the date of receipt of this order.
iii. Certified copies of this order be furnished to the parties.
