Punjab

StateCommission

FA/12/1422

Bank of India - Complainant(s)

Versus

Saurabh Sachdeva - Opp.Party(s)

K.S.Rekhi

18 Aug 2015

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION, PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH

                                     

                   First Appeal No.1422 of 2012

 

 

                                                          Date of Institution: 18.10.2012  

                                                          Date of Decision :  18.08.2015

 

Bank of India its Chairman/Managing Director/Principal Officer having one of its Branch at The Mall, Amritsar through its Branch Manager, as constituted attorney.       

                                                                                                                                                                                                                                                                                                                      Appellants /Opposite Party                                             

                                      Versus

 

Mr. Saurabh Sachdeva S/o Sh. Baldev Sachdeva r/o 96-C, Green Avenue Amritsar

 

                                                                                                                            … Respondent/Complainant

 

First Appeal against order dated 16.08.2012 passed by the District Consumer Disputes Redressal Forum, Amritsar

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

          Shri. Harcharan Singh Guram, Member

 

 

Present:-

 

          For the appellant                      :           Sh. S.K. Mahajan, Advocate

          For the respondent                    :          Sh. Updip Singh, Advocate

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          The appellant of this appeal (the opposite party in the complaint) has directed this appeal against the respondent of this appeal (the complainant in the complaint), challenging order dated 16.08.2012 of District Consumer Disputes Redressal Forum Amritsar, accepting the complaint of the complainant and directing the OP  to pay Rs.2459/- as late payment charges and further to pay Rs.75,000/- as amount of bonus @ 1.5% on cumulative payment and further to pay Rs.1920/- as charges paid by the complainant to OP Bank in lieu of returned cheque, besides Rs.50,000/- as compensation and Rs.2000/- as costs of litigation. The instant appeal has been preferred against the same by the OP now appellant in this appeal.

2.      The complainant has filed  the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the OP, on the averments that complainant has saving bank account jointly with his father with OP bearing no.630410110002368 and as such complainant is consumer of the OP. The complainant got allotment of one apartment at Noida from Jaypee Greens a group of Jai Parkash Association Ltd. The complainant has to make payment of the installments towards allotment of the said flat as and when demanded by them and as per the requirement of the said company for entitlement of bonus scheme all the payments should be made without any default, which would entail discount @ 1.5% on cumulative payment. The cumulative payment comes to 50 lac and the intended bonus @ 1.5% comes around Rs.75,000/-. The complainant issued a cheque from his account to OP, vide cheque no.291009 dated 20.05.2011 for the amount of Rs.6,39,350/- with sufficient funds in his account. The said company Jai Parkash Associates Limited intimated the complainant that the said cheque has been dishonoured and has been returned, as unencashed by OP. The complainant was shocked to know about it, despite the fact that he was having sufficient amount in his fund. It was revealed that said cheque has been returned by the OP with remarks "Signature Differ". The complainant did his signatures with the OP on the record for the operation of the said account. The complainant approached OP with the said matter and asked about the matter of dishonouring of the cheque. There was no valid reason with the OP for dishonouring of the cheque in dispute. The complainant approached Jai Parkash Associates Limited and intimated them about negligent act of the OP. They insisted upon the complainant to pay the amount with late payment charges and interest which came to Rs. 2459/-. The complainant has to pay further and thus stood disentitled from bonus scheme of 1.5% of cumulative payment due to dishonouring of the cheque. The payment was not credited within due date. The complainant incurred loss of Rs.75,000/- on account of his disentitlement from bonus scheme of 1.5% of cumulative payment. The act of the OP in returning the cheque is, thus, deficient act. The complainant has, thus, filed the present complaint against the OP directing it to pay the amount of Rs.75,000/- , as amount of bonus @ 1.5% on cumulative payment for which he become disentitle due to wrong act of OP and to pay compensation and Rs.1920/- as charged paid by the complainant to OP to make demand draft in lieu of returned cheque of Rs.6,39,350/- .

3.      Upon notice, OP filed written reply raising preliminary objections that the complaint is not maintainable. The complex question of facts and law are involved in this case, which cannot adjudicated in summary proceedings by the Consumer Fora and it can be decided by civil court only. On merits, the OP denied the averment of the complainant that he stood disentitled for any bonus from the allotment  authority i.e. Jaypee Greens, as pleaded in the complaint. It was further pleaded in the written reply that the cheque was returned, as dishonoured due to difference in the signature of the complainant. There was material difference in the signatures put on the cheque and specimen signatures available in the record of the bank. The officer on duty rightly returned the cheque of the complainant with remarks "Signature Differ". Any deficiency in service or unfair trade practice was stoutly denied in the written reply by the OP on its part. It was denied by the OP that cheque has been dishonoured without any valid reason, as alleged by the complainant. It was also denied by the OP in the written reply that any official of the bank admitted the signatures on the cheque of the complainant. The OP vehemently averred in the written reply that on account of different signatures on the cheque, the cheque was rightly dishonoured and OP prayed for dismissal of the complaint.

4.      The complainant tendered in evidence, the affidavit of the complainant Ex.C-1 along with copies of the documents Ex.C-2 to Ex.C-10. As against it, OP tendered in evidence the affidavit of Chief Manager Service Branch, New Delhi Ex.R-1 along with copies of documents Ex.R-2 to Ex.R-4. On conclusion of evidence and arguments, the District Forum, Amrtisar, accepted the complaint of the complainant directing OP to pay Rs.2459/- as late payment charges and further to pay Rs.75,000/- as amount of bonus @ 1.5% on cumulative payment and further to pay Rs.1920/- as charges paid by the complainant to OP Bank in lieu of returned cheque, besides Rs.50,000/- as compensation and Rs.2000/- as costs of litigation. Dissatisfied with the order of the District Forum dated 16.08.2012 of Amritsar, the OP now appellant has carried this appeal against the same.

5.      We have heard learned counsel for the parties and have also examined the record of the case with able assistance of counsel for the parties.

6.      The complainant has tendered in evidence affidavit Ex.C-1, copy of passbook Ex.C-2. Ex.C-3 is copy of cheque no.291009 dated 20.5.2011. Ex.C-4 is copy of demand drat no.045943 dated 6.6.2011. Ex.C-5 is copy of cheque no.308803 dated 08.06.2011. Copy of letter sent by Japee Greens to complainant is Ex.C-6. Certificate issued by Chief Manager of OP/Bank is Ex. C-7 dated 6.6.2011 to the effect that signature appearing on cheque no. 291009 dated 20.5.2011 for Rs.6,39,350/- are exactly, as per bank's record on the cheque in favour of M/s Jaypee Infratech Limited. This letter was issued on the request of the account holder, who is complainant in this case by Chief Manager of OP/Bank on 6.6.2011. The provisional allotment letter is Ex.C-8 sent to the complainant by Jai Parkash Associates Limited regarding terms and conditions. Ex.C-9 and Ex.C-10 are copies of e-mail communications.

7.      To refute the evidence of the complainant, the OP tendered in evidence certificate issued by Chief Manager Service Branch New Delhi dated 21.4.2012 Ex.R-1. Copy of cheque in question is Ex.R-2. Copy of signature of the complainant, as appeared in the bank record maintained through computer Ex.R-3.

8.      Vide Ex.C-3, the complainant issued cheque bearing no.291009 of Rs.6,39,350/- in favour of Jaypee Infratech Limited. Ex.C-4 is another cheque dated 6.6.2011 for a sum of Rs.6,39,350/-. Ex.C-5 is another cheque dated 08.06.2011 for a sum of Rs.2459/-. The bonus scheme propounded by J.P Greens to complainant is Ex.C-6 on the record. It has recorded that it is effective from 1.05.2011 and if the allottee makes all payment within the due date, a total discount of 1.5% of the cumulative payment (excluding security, maintenance and club charges) made from 01.05.2011 till offer of possession, shall be passed on to the customer and adjusted at 'offer of possession' stage. This discount shall be over and above any other discount like Early Payment Discount etc. However, no discount will be applicable, if even a single payment is not received within the due date for any reason, whatsoever. Ex.C-8 is provisional allotment letter issued to complainant by Jai Parkash Associates Limited and plan is attached with it. Ex.C-9 is demand draft received by Jai Parkash from the complainant. Ex.C-10 is document to complainant sent by Jai Parkash Infractech to the effect that payment has been delayed and complainant cannot avail the Bonus Scheme. The OP relied upon the certificate issued by Vinod Thakur Chief Manager Bank of India to the effect that signature in bank recorded maintained in computer did not match exactly with the signatures on the cheque of complainant. Ex.R-2 is copy of cheque for Rs.6,39,350/- dated 20.05.2011. Affidavit of both the parties have also been examined on the record by us.

9.      We find that it is established on the record that cheque was issued by the complainant Ex.C-3 dated 20.5.2011 payable to Jai Parkash. It was dishonoured by the OP on the ground that 'signature of the drawer differ'. The complainant relied upon Ex.C-7 the certificate issued by Chief Manager of OP Bank on 06.06.2011 to the effect that the signatures on the cheque dated 20.5.2011 for Rs.6,39,350/- payable in favour of Jaypee Infratech Ltd are exactly the same. The OP failed to falsify this certificate issued by OP/Bank dated 6.6.2011, vide Ex.C-7 on the record. This certificate was issued at the request of the account holder by Chief Manager of the OP/Bank. On the basis certificate Ex.C-7 issued by OP, we find that Chief Manager of the OP/Bank has certified that signature appearing on cheque in question were exactly the same, as per bank record on the cheque in favour of M/s Jaypee Infratech Ltd. OP mainly relied upon another certificate of the Chief Manager of Bank that signatures varied.

10.    From appraisal of above-referred evidence on the record, we are of this opinion that OP/Bank has issued two certificates in this case, one in favour of complainant, which is Ex.C-7 on the record to the effect that the signatures of the complainant on the cheque in question are exactly the same, as per bank record. OP thereafter relied upon another certificate Ex.R-1 on the record to the effect that the cheque was returned unpaid by Processing Officer of New Delhi on account of 'signature differ'. We find that OP has relied upon Ex.R-1, just to wriggle out of their liability in this case, when the OP issued certificate Ex.C-7 on the record that signatures of the complainant are exactly the same, as existing on the computer record maintained in the bank. The OP could have called the original cheque for physical verification, if they doubted the signatures. Hence, we do not find any justification in issuing of another certificate Ex.R-1, which has been issued by OP just to get out of the situation to avoid any liability in this case. Even New Delhi Branch could have called the cheque for physical verification, which has not been done in this case for the reason best known to them. As a consequence of dishonouring of the cheque, the complainant has to suffer loss of Rs.75,000/- for loss of bonus scheme, as he became defaulter for not making payment in time, which otherwise, the complainant was entitled to, had this cheque been encashed in time. The District Forum has, thus, rightly found act of OP, as deficiency in service and rightly awarded the amount of compensation, as detailed in the order. The counsel for the appellant referred to law laid down in Babu Singh versus Life Insurance Corporation of India Ltd, reported in 2008(3) CLT (National Commission) Page 133 to the effect that in case of disputed signatures, matter should not be decided in summary procedure. This judgment has arisen out of the policy taken in insurance claim from the Insurance Company and is on different pedestal. The appellant then referred to law laid down in Jai Singh versus LIC of India, reported in 2008(2) CLT Page 94 another judgment of National Commission. This judgment is also pertaining to Life Insurance Policy taken by the complainant, which is on different factual matrix. The appellant referred to judgment of Bank of Maharashtra versus M/s Automotive Engineering Company, reported in 1993(2) Supreme Court Cases 97 to the effect that forgery was detected later on. The Bank was not liable on the ground of negligence merely because of its failure to scrutinize the cheque in ultra violet ray lamp. This judgment would not be helpful to the appellant, as there is no question of any forgery in this case. The OP is bound by document Ex.C-7 issued by them, whereby they have admitted the fact that signature of the complainant, as maintained in the record of the Bank, are similar to the signatures, as existing on the disputed cheque on the basis of which the certificate was issued by the OP Ex.C-7 to the complainant. We do not attach any significance to the subsequent certificate relied upon by the OP Ex.R-1, issued subsequently to certificate Ex.C-7, which is only an attempt  to wriggle out of the responsibility/ liability to pay the compensation by the OP to the complainant. The order of the District Forum under challenge in this case, thus, does not suffer from any illegality or material infirmity in our opinion and is ordered to be affirmed in this case.

11.    As a result of our above discussion, we affirm the order of the District Forum Amritsar dated 16.08.2012, under challenge in this case and resultantly the appeal filed by the appellant is ordered to be dismissed.

12.    The appellant has deposited an amount of Rs.25,000/- with this Commission at the time of filing the appeal. This amount with interest, if any, accrued thereon, be refunded by the registry to the respondent/complainant by way of crossed cheque/demand draft after 45 days from receipt of copy of this order. Remaining amount be paid within 45 days time from the date of receipt of this order by the appellant/OP to the respondent/complainant, as per order of the District Forum.

13.    Arguments in this appeal were heard on 14.08.2015 and the order was reserved. Copies of the order be communicated to the parties as per rules.

14.    The appeal could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

                       

                                                         

                                                          (HARCHARAN SINGH GURAM)

                                                                             MEMBER

 

August 18,   2015.                                                         

(ravi)