MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

Instant Appeal under section 15 of the C P Act,1986 has been filed by the Appellants/OPS challenging the judgment and order dated 25/02/2013 passed by the Ld. District Forum, Howrah in C C Case No.131 of 2012 allowing the complaint ex-parte with costs against the Appellants/OPs with the direction as under:-

          “That the C.C. Case No. 131 of 2012 (HDF 131 of 2012) be allowed ex parte with costs against the O.Ps.

          That the O.Ps are jointly and severally directed to refund the amount of Rs.1,50,000/- to the complainant’s account being no. 07390100005810 within 15 days from this order, i.d., the amount shall carry an interest @ 12% p.a. till the actual refund.

          That the complainant do get an award of Rs.25,000/- as compensation and Rs.5,000/- as litigation costs.  The o.ps. are directed jointly and severally to credit the entire amount of Rs.30,000/- within one month i.d., this amount shall carry an interest @ 10% p.a. till actual credit.

          The complainant is at liberty to put the decree into execution after expiry of the appeal period”.

               The facts of the case, in a nutshell, are that the Respondent/Complainant, the holder of the Savings Bank Account bearing No. 07390100005810 in U.Co. Bank, Bankura Branch, with a deposit of Rs.1,00,000/-he made on 17/02/2010 to his said Account in addition to the existing closing balance of Rs.51,549/-, was having a total balance of Rs. 1,51,549/-on the said date.

                On 23/02/2010, he was surprised to know that an amount of Rs.1,50,000/-was withdrawn from his said Savings Bank Account reducing the closing balance to Rs. 1,549/- only when, actually, he never withdrew any amount from his said Account.

                 Repeated request of the Respondent/Complainant to the Appellants/OPs for taking corrective steps through refund of the amount of Rs. 1,50,000/-, unauthorizedly withdrawn from his Account, yielded the Respondent/Complainant no fruitful result. The Bank Authorities were showing dilly-dally in taking the deserving step for refund on false promises from time to time. Later, on 13/01/2012, the Bank Authorities took some specimen signatures of the Respondent/Complainant for tallying his signature with the signatures appearing in other documents including that in the alleged cheque bearing No. 382921 through which the, allegedly, unauthorized withdrawal was made.

                There being no information as to what did the Appellants/OPs find after verification of signatures, nor being there any positive step taken by the Appellants/OPs towards refund of the amount withdrawn beyond the knowledge of the Respondent/Complainant, the Respondent/Complainant sent one legal notice to the Appellants/OPs asking them to refund the amount withdrawn with interest @18% per annum since 23/02/2010. The Appellants/OPs, however, did not refund the money despite the said legal notice being served upon them. The Respondent/Complainant, then, being aggrieved, filed the complaint case before the Ld. District Forum which the impugned judgment and order relates to.

                Heard Ld. Advocates appearing on behalf of the Appellants/OPs who submitted that the complaint case before the Ld. District Forum was decided ex-parte without allowing the opportunity to the Appellants/OPs of being heard. The put up petition, admittedly placed before the Ld. District Forum after hearing is concluded, was rejected by the Ld. District Forum.

               The Ld. Advocate submitted further that the Ld. District Forum, by its order No. 8 dated 22/02/2013, prevented the Appellants/OPs from filing the WV. Admittedly, no revision petition was preferred against the said order before this commission.

           The Ld. Advocate continued that the amount was actually drawn by the Respondent/Complainant himself. The complaint that he filed after the alleged withdrawal of the amount, was under the process of investigation. The Respondent/Complainant filed the complaint case without allowing the investigation to be concluded. The Ld. Advocate continued further that affirming the decision of the Ld. District Forum shall create a very bad precedence.

           With the above submission, the Ld. Advocate prayed for sending the case on remand to the Ld. District Forum in order to enable the Appellants/O.Ps to prove its case.

          The Ld. Advocate of the Respondent/Complainant submitted that the Appellant/OP-2 Bank delivered him a Cheque Book consisting of the cheques bearing numbers from 321701 to 321720.

          It is submitted that the amount was withdrawn by cheque No.382921 which was not any of the cheques that the Cheque Book contained.

          The Ld. Advocate submitted further that the amount was withdrawn way back on 23/02/2010 and the specimen signature of the Respondent/Complainant was obtained in the month of January, 2012. The Appellants/OPs, as the Ld. Advocate continued, could not take any positive step towards refund of the amount after a long lapse of more than six years since the date the amount was withdrawn.

          The Ld. Advocate contended that the alleged activities done by the Appellants/OPs indicate the height of deficiency in rendering due services to the Respondent/Complainant.

          The Ld. Advocate, with his above submission, prayed for the Appeal to be dismissed affirming the impugned judgment and order.

          Perused the papers on record. It appears that the Cheque Book issued to the Respondent/Complainant did not contain the number of the disputed cheque. Allowing encashment of a cheque, not issued against the Holder’s Account by the Appellant/OP- 2 is indicative enough about the carelessness in the process of transaction that the said Appellant/OP-2 had indulged in while passing the disputed cheque.

          It is astonishing that the Respondent/Complainant, being the hirer of service of the Appellants/OPs, did not get any relief from the Appellants/OPs who did not refund the money that the Respondent/Complainant lost due to the deficiency done upon him by the Appellants/OPs even after a lapse of more than six years since the date on which the aforesaid deficiency was done.

         That the Respondent/Complainant filed the complaint case without allowing the Appellants/OPs, the time needed to conclude the investigation, as submitted by the Ld. Advocate for the Appellants/OPs, seems to be lacking in reasoning as there was a long gap between the date on which the incident took place and the date on which the complaint case was filed.

        Further, it is not understandable as to why the justice, if delivered on merit and if the same goes against the interest of the Appellants/OPs, should be a creation of bad precedence, as argued by the Ld. Advocate for the Appellants/OPs.

        Taking into consideration the facts and circumstances narrated above, we are of the considered view that there was clear deficiency done by the Appellants/OPs upon the Respondent/Complainant which the Ld. District Forum has justifiably appreciated and passed the impugned order.

        Hence, ordered that the Appeal is dismissed with cost of Rs. 10,000/- to be paid by the Appellants/OPs jointly and severally to the Respondent/Complainant. The impugned order passed by the Ld. District Forum is also affirmed.