BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.168 of 2018

      Date of Instt. 17.04.2018

      Date of Decision:11.03.2020

M/s Siri Ram Flour Mill, registered office at 220 KV, Substation Road, Jamsher, Jalandhar through its partner/authorized person.

..........Complainant

Versus

1.       Punjab National Bank, Church Road, Jalandhar Cantt, Jalandhar       Punjab, through its Branch Manager.

2.       Punjab National Bank, Plot No.4, Sector-10, Dwarka, New     Delhi-110075, through its Director/Authorized        Persons/Managing Director.

3.       State Bank of Patiala, State Bank of Patiala, Head Office, The Mall, Patiala-147001 through its Director/authorized           persons/Managing Director.

….….. Opposite Parties

Complaint Under the Consumer Protection Act.

Before:        Sh. Karnail Singh           (President)

Smt. Jyotsna                   (Member)

Present:       Sh. Suteekshan Samrol, Adv. Counsel for Complainant.

Smt. Harleen Kaur, Adv. Counsel for OPs No.1 & 2.              Sh. Y. V. Rishi, Adv. Counsel for the OP No.3.

Order

Karnail Singh (President)

1.                The instant complaint has been filed by the complainant firm through its partner/authorized person Balbir Goel, who alleged that the complainant’s flour mill had bank account with the OP No.1 at Jalandhar bearing No.0233008700000193 on the name of M/s Siri Ram Flour Mill. The above said firm is partnership firm and copy of the partner deed is attached with the file. The complainant has availed CC Limit of the above said account with OPs No.1 and 2.

2.                That on 22.06.2017, the complainant had credited balance of Rs.51,767/- in the above said bank account and accordingly, the complainant had issued a cheque bearing No.627182 dated 22.06.2017 for an amount of Rs.28,850/- to PSPCL. The above said cheque was presented in the OP No.3 by PSPCL and the said cheque was dishonoured by the OPs No.1 and 2 on 27.06.2017 with the remarks “Paper not Received”. It is pertinent to mention here that on the above said date, the complainant was having bank balance of Rs.51,767/- in his above said bank account, which was sufficient to made the amount of the cheque in question. The credit balance lying in the above said bank account of the complainant is the asset of the complainant and the complainant has every right to use it in any manner. The OPs No.1 and 2 have no right to put any sort of restriction or conditions upon the usage of credit balance of the complainant. It is the duty of the bank to clear the cheque when presented in the bank in case of credit balance of bank account and in the same way, it was the duty of the OPs No.1 and 2 to clear the cheque of the complainant when presented in their bank as there was sufficient credit balance in the above said bank account of the complainant. A legal notice was issued to the OPs No.1 and 2, who gave a vague reply to the legal notice of the complainant. The said objections raised by OPs in the reply of legal notice are as under:-

                             i. That the cheque issued by your client to PSPCL for payment of electricity bill was sent to State Bank of Patiala for clearance. However when the presenting bank sent the image to my client payee bank a product code along with directions in respect of Paper to Follow (P2F) was added. This code i.e. Paper to Follow (P2F) indicate that original instrument will follows.

                   ii. That in the normal course of business transaction for the business houses as per the RBI memo, in all transaction with P2F code the respective banks exchange original instruments in the karvy house late in the evening of the same working day, for clearance of such transactions.

                   iii. That, however, in the case of your client the presenting bank i.e. State Bank of Patiala (SBOP) never sent the original instrument as per the condition marked by them. So, the clearing payee bank i.e. my client rejected the clearance of the said cheque vide reject code 1 code number 42 with remarks “Paper Not Received”.

3.                That it is not the duty of the complainant to get the original instrument exchanged in the karvy house for clearance of the transaction. It is the duty of the OPs to fulfill the requirements of the RBI and get the requisite exchange of original instruments in the karvy house. The complainant is not liable for the workings of State Bank of Patiala/OP No.3 and it is the duty of the OPs No.1 and 2 being the clearing bank to complete the requisite process between the banks and to collect the original instrument from the presenting bank/OP No.3. The OPs No.1 and 2 have rejected the clearance of the above said cheque illegally and unlawfully beside a sufficient amount was lying in the account of the complainant at that time. Due to the consequences of the above said dishonor of cheque PSPCL has barred the complainant from making payment through cheuqes for one year and has also posed fine to the complainant for the same. Due to the above said restrictions posed by the PSPCL upon the complainant and also due to the above said illegal and unlawful act of the OPs No.1 and 2, whereby they have dishonoured the cheque of the complainant has put a great damage to the reputation of the complainant. That due to illegal conduct of the OPs No.1, 2 and 3 as well as due to deficiency in their services, the complainant has suffered a huge financial loss as well as physical harassment, inconvenience, mental tension, agony and pain and accordingly, a cause of action accrued to the complainant to file the present complaint with the prayer that the complaint of the complainant may be accepted and OPs be directed to pay compensation/damages of Rs.2,00,000/- as assessed for the harassment, inconvenience, mental pain and agony caused to the complainant due to deficiency in service and unfair trade practice on the part of the OPs and further, OPs be directed to pay legal expenses of Rs.25,000/- and also further be ordered for which the complainant is entitled.

4.                Notice of the complaint was given to the OPs and accordingly, OPs No.1 and 2 appeared through its counsel and filed a joint written reply, whereby contested the complaint by taking preliminary objections that the instant complaint of the complainant deserves to be dismissed as the complainant is not a registered partnership firm under Partnership Act and as such, is barred to file any suit or similar nature proceedings against OPs No.1 and 2 under the provisions of the Consumer Protection Act, 1986 as amended upto date and further averred that the complainant is not a consumer as defined under Section 2 (1) (d) of the Act, therefore, complaint of the complainant is liable to be dismissed. It is further submitted that as per statutory guidelines of RBI, the cheque in question is/was not presentable. The RBI has imposed restriction on presentation of any cheuqe where changes or cuttings are interpolation on cheque has been made. The cheque in question was having alterations in figures of amount and said cheque and as such is not presentable as per RBI guidelines. There is not any negligence, deficiency of services or unfair trade practice on the part of the answering OPs No.1 and 2. It is further alleged that the present complaint is not maintainable in as much as there is neither negligence nor any deficiency of service on the part of the OPs No.1 and 2. It is further averred that the complainant has concealed the material facts from the Forum, therefore, the instant complaint is not maintainable and the same is liable to be dismissed. On merits, it is admitted that the complainant having a CC Limit Account in the bank of the answering OP and also admitted that a cheque was presented by the complainant through OP No.3 and the same was dishonored legally because as per RBI guidelines, the cheque in question was not presentable. The other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.            

5.                OP No.3 filed its separate written reply, whereby contested the complaint by taking preliminary objections that the instant complaint deserves to be dismissed as the complainant firm is not registered firm and under the Partnership Act, it required to be registered. It is further alleged that the complainant is not a consumer under the Consumer Protection Act. It is further alleged that as per RBI guidelines, the cheque in question is not presentable. The RBI has imposed restriction on the presentation of cheque where there are changes or cuttings are interpolated on cheque. The cheque in question is having alterations in figures of amount of said cheque and as such, is not presentable as per RBI guidelines and as such, there is no negligence, deficiency in service or unfair trade practice on the part of the answering OP. On merits, the factum in regard to presentation of a cheque in question with the answering OP bank is admitted and it is also admitted that the said cheque was dishonored by the OPs No.1 and 2, but the other allegations as made in the complaint are categorically denied and lastly submitted that the complaint of the complainant is without merits, the same may be dismissed.

6.                In order to prove the case of the complainant, the authorized representative of the complainant tendered into evidence affidavit Ex.CW1/A alongwith some documents Ex.C-1 to Ex.C-9 and closed the evidence.

7.                Similarly, counsel for the OPs No.1 & 2 tendered into evidence affidavit Ex.OP/B alongwith some documents Ex.OP-1 to Ex.OP-6 and also tendered photocopy of General Power of Attorney as Ex.OP/A and closed the evidence.

8.                Similarly, counsel for the OP No.3 tendered into evidence affidavit Ex.OP3/A and closed the evidence.

9.                We have heard the arguments of learned counsel for the respective parties and also gone through the written arguments submitted by learned counsel for the OPs No.1 & 2 and OP No.3 as well as case file very carefully.

10.              It is admitted that the complainant issued a cheque Ex.C-3 in favour of PSPCL for an amount of Rs.28,850/- and the said cheque was presented by PSPCL in its bank i.e. OP No.3/State Bank of Patiala and accordingly, the said cheque was sent to the drawee Bank i.e. OPs No.1 and 2, where the account of the complainant is existed and then the said cheque was dishonored with memo Ex.C-4, with the remarks “42-Paper not received” and accordingly, the said cheque was sent back to the presenting bank, who further transmitted to the PSPCL, who handed over the said cheque to the complainant and then the complainant came to this Forum by challenging the act and conduct of OPs, alleging that the said acts of the OPs is deficient in service, negligent and claimed compensation and litigation expenses.

11.              First of all, we consider the legal aspect raised by the counsel for the OP No.3 that the instant complaint is not maintainable, being reason the complainant himself alleged in the complaint that the complainant is a registered partnership firm, if so, then it required compulsory registration, but the firm of the complainant is not a registered, therefore, the complainant has no right to file a complaint and make a request to dismiss the same and in support of this, the OP No.3 also made reliance a pronouncement of Hon’ble National Commission, cited in 2015 (2) C.P.J. 585, titled as “Union Bank of India Vs. Ramayan Yadav and anr.”. We have considered this legal aspect and find that the counsel for the OP No.3 is not aware that the complainant has placed on the file copy of the registration certificate issued by the Registrar of Firms, Punjab and copy of the same is available on the file Ex.C-2 alongwith Form-A and accordingly, we find that the objection raised by OP No.3 is not sustainable, being reason the complainant has established on the file that the Firm is a registered firm.

12.              Further, the counsel for the OPs No.1 and 2 as well as counsel for the OP No.3 raised a similar question in their respective written statement that the cheque of the complainant is not presentable because it does not made as per the guidelines of the RBI and alleged that whenever any cheque having some alterations or cutting, the said cheque is not presentable. Admittedly, there is some over writing qua amounts of the cheque i.e. Rs.28,850/-, except this there is no over writing and cutting in the cheque, nor both the counsel pointed out any other cutting except the cutting in the amount mentioned in a figure, but if go further the amount of the cheque is very well mentioned in the word i.e. ‘Twenty Eight Thousand Eight Hundred and Fifty only’. So, we do not find any immunity in regard to cutting and over writing in the cheque. So, we find that both the banks had illegally and arbitrarily returned the cheque of the complainant, simply took a plea that the cheque is not presentable, being reason the same is not presented according to RBI instructions and guidelines.

13.              Further, we find if there is any further requirement as per RBI instructions and guidelines i.e. in between presenting bank and drawee bank i.e. OPs No.1 and 2 one side and OP No.3 other side and they have to follow the guidelines of the RBI that is not required to be followed by the complainant. Whatsoever cheque book was issued to the complainant, he will fill the same and presented for encashment and as such, we do not find any solid substances in the argument of both the counsel for the OPs that there is any violation of the RBI instructions and guidelines, rather both the OPs i.e. OPs No.1 and 2 as well as OP No.3 have illegally and arbitrarily rejected the cheque of the complainant, which is tantamount to deficiency in service, negligence and unfair trade practice on the part of all the OPs and whereby a great loss has been caused to the complainant qua physical, mental as well as financial and thus, we are of the opinion that the complainant is entitled for compensation and litigation expenses.

14.              In the light of above detailed discussion, the complaint of the complainant is partly accepted and OPs No.1 and 2 are directed to pay compensation to the complainant for causing mental tension and physical harassment, to the tune of Rs.20,000/- and similarly, OP No.3 also directed to pay the same amount i.e. Rs.20,000/- to the complainant. Similarly, OPs are directed to pay litigation expenses of Rs.10,000/-, out of which 50% will be paid by OPs No.1 and 2 and 50% will be paid by OP No.3. The aforesaid entire amount i.e. compensation and litigation expenses be paid to the complainant within one month from the date of receipt of the copy of order, failing which OPs will further liable to pay interest on the whole amount @ 12% per annum from the date of filing complaint i.e. 17.04.2018, till realization. This complaint could not be decided within stipulated time frame due to rush of work.

15.              Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room.

Dated                                       Jyotsna                           Karnail Singh

11.03.2020                              Member                          President