Consumer Complaint No 107 of 2015
Date of filing: 29.4.2015 Date of disposal: 18.12.2015
Complainant: Mr. Kishore Kumar Bhagat, S/o. Late Sagar Bhagat, Resident of Ushagram, PO: Ushagram (Bhagat Para), PS: Asansol (South), District: Burdwan, PIN – 713 303.
-V E R S U S-
Opposite Party: 1. Oriental Bank of Commerce, having its Branch Office at 122/130, G.T.Road (East), Asansol, PS: Asansol, PS: Asansol (South), District: Burdwan, PIN – 713 303, West Bengal, represented by its Branch Manager.
2. Asansol Municipal Corporation, having its office at Asansol, PO: Asansol, PS: Asansol (South), District: Burdwan, represented by its Chairman.
Present: Hon’ble President: Sri Asoke Kumar Mandal.
Hon’ble Member: Smt. Silpi Majumder.
Hon’ble Member: Sri Pankaj Kumar Sinha.
Appeared for the Complainant: Ld. Advocate, Debdas Rudra.
Appeared for the Opposite Party No. 1: Ld. Advocate, Saurabh Dey.
Appeared for the Opposite Party No. 2: Ld. Advocate, Madhab Banerjee.
J U D G E M E N T
This complaint is filed by the complainant u/S 12 of the C.P. Act, 1986 alleging deficiency in service as well as unfair trade practice on the part of the OPs as the OPs did not refund the amount of the questioned draft till filing of this complaint.
The brief fact of the case of the complainant is that being a customer of the OP-1 he has one Savings Bank account in the said Bank. The OP-2 invited a tender on 25.11.2000 and the complainant being a building contractor expressed his desire to participate in the said tender for earning his livelihood. For this reason he requested the OP-1 to issue a demand draft of Rs. 1, 29,500=00 in favour of the OP-2. As per request the OP-1 issued a pay order on 27.12.2000 in favour of the Asansol Municipality Corporation by deducting the amount from his Savings Bank account. But the complainant did not submit the said tender before the OP-2 and went to the office of the OP-1 to deposit the said pay order in his savings account along with an application. But the Branch Manager of the OP-1 did not receive the said pay order and told him to bring the discharge/release certificate of the said pay order from the OP-2. Then the complainant went to the office of the OP-2 and requested to issue discharge/release certificate of the said pay order. As per requirement of the OP-1 and the OP-2 discharged/released the said pay order with necessary endorsement. Then the complainant went to the office of the OP-1 and deposited the pay order with the endorsement of discharged/released by the OP-2. The OP-1 received the said pay order and told the complainant that the said Draft would be encashed and deposited in his SB account as early as possible. After a long gap when the said amount was not deposited in his SB account, he again went to the OP-1 and came to know that the OP-1 had sent the said pay order to the OP-2 for verification to know as to whether the cashier of the OP-2 had authority to release/discharge the said pay order. Being surprised the complainant requested the OP-1 to return the pay order as early as possible. The complainant was told by the OP-1 that until and unless the OP-2 will give a reply to its request in that regard, the OP-1 cannot return the said pay order to him. In the meantime the OP-2 lodged a written complaint before the police authority against Ujjal Samanta and the complainant u/S. 468,471,420 & 120B of IPC regarding submission of the Bank draft of one Samanta Enterprise along with a tender and the said complaint was registered as G.R. Case no 232/2001, pending before the Judicial Magistrate, 3rd Court, Asansol. The concerned police submitted the chargesheet before the ld. Court and in the said chargesheet the complainant was shown as an accused and absconder though the complainant was totally unaware about the said criminal case. Upon receipt of such information the complainant without any delay surrendered before the Ld. Court of Judicial Magistrate, 3rd Court, Asansol and was released on bail. Finally, the Ld. Court acquitted the complainant u/S. 248 (1) of Cr.P.C. from the charges brought against him u/S. 468,471,420 & 120B of IPC on 26.4.2010. The said G.R. case being no. 232/2001 is still pending before the Ld. Court of Judicial Magistrate, 3rd Court, Asansol. It is pertinent to mention herein that during pendency of this criminal case the complainant filed a Writ Petition before the Hon’ble High Court, Kolkata against the illegal, arbitrary action on the part of the OPs and the Writ Petition was registered as W.P. No 11299 (W)/2002. Thereafter the Hon’ble Justice Soumitra Pal was pleased to pass a judgment on 14.5.2004 stating therein that since a criminal case has been initiated and proceedings are continuing, so the Hon’ble High Court is not inclined to grant reliefs as prayed for in the Writ Petition. So the Writ Petition was dismissed without any cost. Thereafter the complainant sent a legal notice to the OP-1 on 19.5.2011 through his ld. Advocate requesting to deposit the said pay order amount together with interest @18% per annum in the SB account of him immediately. The OP-1 sent a reply through the Ld. Advocate on 20.6.2011 denying the facts and requested the complainant to submit the Xerox copy of the FIR, chargesheet and seizure list in connection in G.R. case for further proceeding. The complainant sent a reply dated 01.02.2012 against the said legal notice through his Ld Advocate stating that the complainant is submitting all the documents as per requirement of the OP-1 and also requested the OP-1 to deposit the said pay order amount together with interest @18 % p.a. in his SB account within 15 days from the date of receipt of the said notice. Thereafter upon receipt of the notice on 17.02.12 the OP-1 requested the complainant to visit the office of the OP-1 and accordingly the complainant visited and after meeting the complainant was told by the OP-1 that until and unless the original pay order is deposited in the bank, the OP-1 cannot process for depositing the pay order amount in his SB account. On 16.3.13 the Ld. judicial Magistrate, 3rd Court, Asansol passed an order directing the in-charge of Malkhana, Asansol to do the needful for returning the pay order to the complainant and also directed to file a compliance report to that effect and fixed on 18.5.2013 for report. As per the order of the Ld. Court of Judicial Magistrate, 3rd court, Asansol the complainant received the original pay order from the Malkhana in-charge, Asansol Court on 17.7.2013. After receipt of the said original pay order the complainant went to the office of the OP-1 to deposit the same for further proceeding for depositing the pay order amount. But the OP-1 did not receive the original pay order rather told the complainant to deposit the original pay order along with case related papers. Accordingly the complainant submitted the entire documents as prayed for along with an Advocate’s letter on 19.8.2013 and the OP-1 accordingly received the same. Thereafter the OP-1 sent a letter to the OP-2 on 04.09.2013 requesting to confirm them that the OP-2 did not bear any claim on the demand draft and then only the OP-1 can release the fund to the complainant. One copy of the said letter dated 04.09.2013 was also forwarded to the complainant. Being aggrieved and dissatisfied with the service of the OPs the complainant again sent a legal notice on 06.08.2014 to the OP-1 requesting to release to pay order amount along with interest within 30 days from the date of receipt of said notice, failing which the complainant shall take legal step before the Court of Law for realizing the entire amount, cost etc. Inspite of receipt of the said notice the OP-1 did not make any single reply to the complainant which also indicates deficiency in service as well as unfair trade practice on the part of the OP-1. Due to such deficiency in service the complainant having no alternative has filed this complaint before the Ld. Forum praying for direction upon the OP-1 to refund Rs. 1, 29,500=00 by way of depositing in his SB account along with interest @18% p.a. from the date of issuance of said pay order i.e. 27.12.2000, directing the Ops for making payment of Rs. 4, 00,000=00 as compensation due to mental pain agony and harassment and litigation cost of Rs. 50,000=00.
The complaint has been contested by the OP-1 by filing written version wherein it is stated that one pay order dated 27.12.2000 for Rs. 1, 29,500=00 was purchased by the complainant from the OP-1 to participate in a tender of Asnasol Municipality Corporation (AMC) for submission as earnest money for bidding of tender for the construction of dormitory cum commercial complex floated by the OP-2. The said pay order was in favour of the AMC. The complainant did not participate in the said tender of AMC. The AMC lodged a criminal case against one Sri Ujjal Samanta and the complainant in the Court of Judidical Magistrate, 3rd Court, Asansol being G.R. no 232/2001, but the said case was subsequently dismissed on 26.4.2010 and both the accused persons were acquitted from the charge and they were also released on bail bond. Sureties concerned stand discharged and the seized documents were returned to the accused person on proper verification as per the order of the Ld. Court. Thereafter the complainant requested the OP-1 to release the questioned pay order amount in his SB account on 19.5.2011, but without existence of the pay order physically the same could not be done and as such the complainant was advised to submit the said pay order in original after releasing the same from the AMC–OP-2. The complainant thereafter deposited the pay order on 19.8.2013 but as the said pay order was not released properly because it was signed by the cashier and not from the authorized officer, the OP-1 wrote a letter to the Chairman of the OP-2 on 04.09.2013 for confirming the OP-1 that the AMC–OP-2 did not bear any claim on the said pay order amount and then only the OP-1 can release the fund to the complainant. The OP-1 also followed up with the AMC over telephone but there was no reply from the AMC and for this reason the pay order could not be encashed in the SB account of the complainant. It is contended by the OP-1 that it has not been received as yet the NOC from the OP-2 regarding release of the said pay order in favour of the complainant. The OP-2 had also not issued any discharge certificate regarding release of the said pay order to confirm that they do not have any charge over the said pay order. The OP-1 is always willing and ready to release the said pay order in favour of the complainant but as the OP-1 has not received any release order/clearance certificate/NOC from the OP-2 till date, the same could not be done as per demand of the complainant. Payer has been made by the OP-1 to direct the OP-2 for issuance of the release order/NOC to the effect that the OP-2 does not have any charge over the pay order. It is further submitted by the OP-1 that the alleged claim of the complainant against the OP-1 is untenable misconceived and vexatious. There was no deficiency in service as well as unfair trade practice on behalf of the OP-1 and for this reason this complaint is also misconceived and false regarding to the facts and circumstances of the matter under reference. The prayers as sought for by the complainant are not at all genuine one. According to the OP-1 the complainant is not entitled to get any relief from it. Prayer has been made by the OP-1 for dismissal of the complaint with cost of Rs. 10,000=00.
The petition of complaint has been contested by the OP-2 by filing written version stating that this OP had discharged/released the pay order in question with necessary endorsement. So there was no occasion on the part of the OP-1 to request it by issuing letter dated 04.09.2013 to confirm any alleged claim on the demand draft. According to the OP-2 as there was no cause of action arose against it in respect of deficiency in service as well as unfair trade practice the complaint should be dismissed.
The complainant and the OP-2 have filed their respective evidences on affidavit along with several papers and documents in support of their contentions. The OP-1 has filed written notes of argument.
We have carefully perused the record, several papers and documents on which the contesting parties have relied on and heard argument at length advanced by the Ld. Counsel for the parties. It is seen by us that admittedly the complainant being a customer of the OP-1 had approached it to issue a demand draft of Rs.1, 29,500=00 in favour of the OP-2 as being a building contractor he expressed his desire to participate in a tender called by the OP-2. As per request the OP-1 issued a pay order on 27.12.2000 in favour of the Asansol Municipality Corporation by deducting the amount from his Savings Bank account. But the complainant did not submit the said tender before the OP-2 and went to the office of the OP-1 to deposit the said pay order in his savings account along with an application. But the Branch Manager of the OP-1 without receiving the pay order told him to bring the discharge/release certificate of the said pay order from the OP-2. Then the complainant went to the office of the OP-2 and requested to issue discharge/release certificate of the said pay order as per requirement of the OP-1 and the OP-2 discharged/released the said pay order with necessary endorsement. Then the complainant went to the office of the OP-1 and deposited the pay order with the endorsement of discharged/ released by the OP-2. The OP-1 received the said pay order and told the complainant that the said draft would be encashed and deposited in his SB account as early as possible. Further case of the complainant is that as after a long gap when the said amount was not deposited in his SB account, he again went to the OP-1 and came to know that the OP-1 had sent the said pay order to the OP-2 for verification to know as to whether the cashier of the OP-2 had authority to release/discharge the said pay order. Being surprised the complainant requested the OP-1 to return the pay order as early as possible. The complainant was told by the OP-1 that until and unless the OP-2 will give a reply to its request in that regard, the OP-1 cannot return the said pay order to him. Thereafter the OP-2 lodged a written complaint before the police authority against one Ujjal Samanta and the complainant u/S. 468,471,420 & 120B of IPC regarding submission of the Bank draft of one Samanta Enterprise along with a tender and the said complaint was registered as G.R. Case no 232/2001, which was pending before the Judicial Magistrate, 3rd Court, Asansol. The concerned police submitted the charge sheet before the ld. Court and in the said charge sheet the complainant was shown as an accused and absconder though the complainant was totally unaware about the said criminal case. Upon receipt of such information the complainant without any delay surrendered before the Ld. Court of Judicial Magistrate, 3rd Court, Asansol and was released on bail. Finally, the Ld. Court acquitted the complainant u/S. 248 (1) of Cr.P.C. from the charges brought against him u/S. 468,471,420 & 120B of IPC on 26.4.2010. The said G.R. case being no 232/2001 is still pending before the Ld. Court of Judicial Magistrate of 3rd Court, Asansol. Furthermore during pendency of the criminal case the complainant filed a Writ Petition before the Hon’ble High Court, Kolkata against the illegal, arbitrary action on the part of the OPs. The Hon’ble Justice Pal was pleased to hold that since a criminal case has been initiated and proceedings are continuing, so the Hon’ble High Court was not inclined to grant reliefs as prayed for in the Writ Petition. So the Writ Petition was dismissed without any cost. Thereafter the complainant sent a legal notice to the OP-1 on 19.5.2011 requesting to deposit the said pay order amount together with interest @18% per annum in the SB account of him. The OP-1 replied on 20.6.2011 denying the facts and requested the complainant to submit the Xerox copy of the FIR, chargesheet and seizure list in connection in G.R. case for further proceeding. The complainant submitted all the documents as per requirement of the OP-1 and also requested the OP-1 to deposit the said pay order amount together with interest within 15 days from the date of receipt of the said notice. Thereafter as per request of the OP-1 the complainant visited the office of the OP-1 and during that time the complainant was told by the OP-1 that until and unless the original pay order is deposited in the bank, the OP-1 cannot process for depositing the pay order amount in his SB account. On 16.3.2013 the Ld. Judicial Magistrate, 3rd Court, Asansol directed the in-charge of Malkhana, Asansol to return the pay order to the complainant and accordingly the complainant received the original pay order from the Malkhana in-charge on 17.7.2013. After receipt of the said original pay order the complainant went to the office of the OP-1 to deposit the same for further proceeding for depositing the pay order amount. Then he was told by the OP to deposit the original pay order along with case related papers. Accordingly same was submitted by the complainant on 19.8.2013 and the OP-1 received the same. Thereafter the OP-1 sent a letter to the OP-2 on 04.09.2013 requesting to confirm them that the OP-2 did not bear any claim on the demand draft and then only the OP-1 can release the fund to the complainant and a copy of the said letter dated 04.09.2013 was also forwarded to the complainant. Lastly the complainant sent another legal notice to the OP-1 for releasing the pay order amount, but to no effect. The allegation of the Complainant is that in connivance with the OP-2 the OP-1 did not take any fruitful step for encashment of the pay order amount in his SB account till filing of this complaint. According to the complainant such action of the OPs specially the OP-1 can easily be termed as deficiency in service as well as unfair trade practice and for this reason this complaint has been initiated by him praying for certain reliefs. During hearing the Ld. Counsel for the OP-1 has submitted that it is always ready to encash the pay order amount in the savings bank account of the Complainant, but as the OP-2 did not issue NOC in respect of the said pay order till date, the OP-1 is not in a position to credit the pay order amount in the SB account. According to the OP-1 it had acted diligently in respect of the dispute of the complainant, but as the OP-2 did not extend any co-operation in this respect, no fruitful result has been yielded as yet and in this respect there is no deficiency in service as well as unfair trade practice on its behalf. The Ld. Counsel for the OP-2 has submitted that necessary NOC/release/discharge was given in respect of the pay order within due time to the OP-1 as sought for, but the OP-1 did not take any proper step. According to the OP-2 there was no deficiency in service on its part and moreover within the four corners of the complaint no such allegation has been made out by the Complainant against it and in the prayer portion no amount has been sought for from it. Hence prayer has been made by the OP-2 for dismissal of the complaint against it.
Upon considering the submission we have noticed that inspite of mentioning some averment in the pleading of the complaint, no cogent evidence has been filed by the complainant for coming to a conclusive conclusion that the OP-2 had initially sent discharge/release certificate of the said pay order as per requirement of the OP-1. Admittedly the Complainant received the original pay order from the in-charge of Malkhana as per the direction of the Ld. Court, but the complainant has miserably failed to produce the copy of the pay order in this record to substantiate his contention. Furthermore though the OP-2 has stated that it had issued released certificate or NOC in respect of the questioned pay order, but the OP-2 did not adduce any documentary evidence in support of its contention. It is true that the pay order was issued by the OP-1 in favour of the OP-2 as the Complainant intended to participate in a tender called by the OP-2, but ultimately as the complainant did not participate, the question for submitting the said pay order did not arise and requested the OP-1 to encash the amount of the pay order in his savings bank account, lying with the OP-1. It is settled law that as the pay order was issued in favour of the OP-2, so until and unless the NOC is provided by the OP-2 to the OP-1, the OP-1 cannot credit the pay order amount to the complainant. The Op-2 has failed to show us any scarp of document that NOC was given by it to the OP-1. Therefore we are constrained to hold that there was deficiency in service and unfair trade practice on behalf of the OP-1. It is also true that no allegation has been made by the complainant against the OP-2 in respect of deficiency in service and therefore as we have no authority to go beyond the pleading of the complainant, we are also of the view that there was also no deficiency in service as well as unfair trade practice on behalf of the OP-2. In the complaint it is mentioned by the complainant that the OP-2 had issued NOC/released certificate/discharge etc. in respect of the pay order in question, but no documentary evidence has ever been adduced by him in support of such pleading. In the petition of complaint entire allegation has been made by the complainant against the OP-1, but it is the settled law that mere allegation does not prove the deficiency in service and/or unfair trade practice of the service provider, the allegation should be proved by cogent documentary evidence, but in the case in hand the complainant has miserably failed to prove his own case by adducing cogent document.
It is mentioned earlier that the complainant has made allegation only against the OP-1, not the OP-2 and relief sought for against the OP-1 not the OP-2. But upon considering the entire complaint as well as the written version it is seen by us that the pleading of the complainant does not show the real picture as it is a consumer court and this complaint has been filed under the C.P. Act, 1986 which was enacted to protect the interest of the consumers at first hence, consumers’ grievance should be redressed at first before the consumer court. Undoubtedly the complainant purchased the said pay order to the tune of Rs. 1, 29,500=00 from the OP-1 and the amount was deducted from his SB account lying with the OP-1. It will not be proper if we dismiss the complaint because the complainant is very much entitled to get the said amount in his account as the amount had not been utilized either by the complainant or the OP-2 as the complainant did not participate in the tender. It is revealed form the record that until and unless NOC is given by the OP-2, the OP-1 is not in a position to credit the said amount in the SB account of the complainant. Therefore, it is the bounden duty of the OP-2 to issue NOC in respect of the said pay order and remit the same to the OP-1 immediately. If this order be given then only the interest of the consumer will be protected.
Going by the foregoing discussion hence, it is
O r d e r e d
that the complaint is allowed in part on contest without any cost. The OP-2 is hereby directed to issue the NOC in respect of the questioned pay order within a period of 30 (thirty) days from the date of passing of this judgment and sent the same to the OP-1 and the OP-1 is directed to encash the pay order and to credit the same in the Savings Bank Account of the complainant within 15 (fifteen) days from the date of receipt of NOC from the OP-2, failing which, the above-mentioned amount shall carry penal interest @9% p.a. for the default period which will be payable by the OP for whom delay will be caused to the complainant.
Let plain copies of this final order/judgment be supplied to the parties free of cost as per provisions of Consumer Protection Regulations, 2005.
(Asoke Kumar Mandal)
Dictated and corrected by me. President
DCDRF, Burdwan
(Silpi Majumder)
Member
DCDRF, Burdwan
(Pankaj Kumar Sinha) (Silpi Majumder)
Member Member
DCDRF, Burdwan DCDRF, Burdwan
