STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

U.T., CHANDIGARH

(Appeal No.141 of 2010)

                                                                   Date of Institution: 31.03.2010

                                                                   Date of Decision  : 16.11.2010

The Axis Bank Ltd., a banking company and body corporate incorporated under The Companies Act, 1956 having its Registered Office at ‘Trishul’, 3^rd Floor, Opposite Samartheshwar Temple, Law Garden, Ellis Bridge, Ahmedabad 380006, Gujarat and amongst others a branch in Sector 8C, Madhya Marg, Chandigarh through its Vice President, principal Officer and General Attorney Sh. M. P. Singh.

……Appellant/OP

V e r s u s

Sh. Bharpur Singh son of S. Rajinder Singh R/o Village Khamanon, Post Office Khamanon, Ward No.10, District Fatehgarh Sahib, Punjab.

              ....Respondent/Complainant

BEFORE:            HON’BLE MR. JUSTICE PRITAM PAL, PRESIDENT.

                        MRS. NEENA SANDHU, MEMBER

                        S. JAGROOP SINGH MAHAL, MEMBER.

Argued by:    Sh. A. P. Jagga, Advocate for the appellant.

                        Sh. J. C. Batra, Advocate for the respondent.

PER JAGROOP SINGH MAHAL, MEMBER.

1.                     Vide this common order, we propose to dispose of following appeals filed by OPs i.e. Axis Bank Ltd. under section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as the C. P. Act) arising out of separate impugned orders all dated 26.2.2010, passed by the learned District Consumer Disputes Redressal Forum-II, U.T., Chandigarh (hereinafter referred to as District Forum) as common questions of law and facts are involved in all these appeals:-

                        The facts are culled out from Appeal No.141 of 2010 arising out of impugned order dated 26.2.2010 passed in Complaint Case No.814 of 2008 filed by Sh. Bharpur Singh, which was allowed by the learned District Forum directing the appellants jointly and severally to credit a sum of Rs.11,83,000/- in the Savings Bank Account of the complainant and pay a compensation of Rs.2 Lacs along with costs of litigation of Rs.5,000/- with penal interest @18% per annum from the date of filing of the complaint till, realization.

2.                     The complainant/respondent opened an account with the appellant Bank at Chandigarh. He deposited Rs.11,93,304/- in the said account and when subsequently, he approached the appellant Bank for withdrawing the amount, he was told that the amount has already been withdrawn. He requested the Bank to issue statement of account and when the same was not issued, he served a legal notice dated 30.6.2008 and came to know that Rs.11.83 Lac was withdrawn from his account through cheque No.063989 dated 12.6.2008 in favour of Gurwinder Singh. According to the complainant/respondent, he never issued the said cheque allowing the said withdrawal and therefore, the payment was made by the appellant Bank without properly verifying his signatures on the cheque.  The complainant then made representation to the appellant Bank and when no action was taken, he filed the present complaint seeking refund of Rs.11,83,000/- and a compensation of Rs.2 Lacs on account of mental harassment and botheration besides costs of litigation.

3.                     The OPs in their reply admitted that the complainant had opened an account with them but their contention is that a cheque book was issued to him out of which, he issued the cheque in favour of Gurwinder Singh and on its basis, Rs.11.83 Lacs was transferred to the account of Gurwinder Singh who is a customer of the Bank. It was contended that the said Gurwinder Singh was a necessary party because he is likely to throw light on several vital issues and circumstances as to how the funds were transferred in his favour. His presence was likely to expose the facts of the case and may falsify the version of the complainant. He, therefore, prayed for dismissal of the complaint on that ground as Gurwinder Singh is a necessary party. It was contended by them that the cheque of Rs.11.83 Lacs was issued by the complainant to Gurwinder Singh, he never reported the loss of the cheque book nor to stop payment, his contention that no cheque was issued by him to Gurwinder Singh is, therefore, incorrect. It was alleged that the OP has reported the matter to the police, the FIR has been recorded and the case was under investigation with Economic Offences Wing; that the case relates to the forgery of the cheque in which evidence would be needed and the parties are to be cross examined having a lengthy process and therefore, the complainant should be relegated to the remedy of a civil suit and the result of criminal proceedings lodged by the OP with the police should be awaited. It was alleged that the signatures of the complainant on the cheque in question were duly compared by the staff of the Bank and appeared to be similar with the standard signature, the cheque itself was issued from the cheque book issued to the complainant and therefore, there could be no doubt in the mind of the Bank officials not to encash the same. The functionary of the OP/appellant exercises possible caution and skill in comparing the signatures on the cheques in hundred of other cases with procedure and therefore, there was no deficiency in service on their part. The OP Bank also averred that non joinder of Gurwinder Singh as a party and the complainant not initiating any proceedings against him conclusively indicates the involvement of the complainant himself in this episode, which on the face of it, is ample proof of amnesia.

4.                     Both the parties produced evidence in support of their contentions.

5.                     After hearing the arguments of learned counsel for the parties and perusing the record, the learned District Forum allowed the complaint and directed the OP Bank vide the impugned order dated 26.2.2010 to credit the amount of Rs.11.83 Lacs in the Savings Bank Account of the complainant and also pay him Rs.2 Lacs as compensation for causing harassment and mental agony besides paying Rs.5,000/- as costs of litigation.

6.                     The OPs/appellants were ordered to comply with the order within one month from the date of receipt of its certified copy failing which they would be liable to pay the awarded amount of Rs.13.83 Lacs along with penal interest @18% per annum from the date of filing of the complaint till its realization.

7.                     The OPs have challenged the same through this appeal.

8.                     We have heard the arguments of learned counsel for the parties and have perused the record including the written arguments.

9.                     The learned counsel for the respondent has at the very outset argued that the appeals has been filed on behalf of the Axis Bank Ltd. but there is no resolution or otherwise from the Axis Bank Ltd. in favour of Sh. Mohinder Pal Singh  who engaged the counsel in this case to file the appeal. It is argued that the appeal is not maintainable as it has not been filed by a person authorized or competent to file the same. On the other hand, the learned counsel for the appellant has argued that initially the Bank under the name and style of U.T.I Bank Ltd. was established under the Reserve Bank of India order dated 28.2.1994. Subsequently, the name of U.T.I. Bank Ltd. was changed to Axis Bank Ltd. w.e.f. 30.7.2007. In support of his contention, he produced a copy of the License No.MUM 76 issued by the General Manager, Reserve Bank of India vide which the License earlier issued to U.T.I Bank Ltd. was cancelled consequent upon the change of its name to Axis Bank Ltd., which proves that U.T.I Bank Ltd. is now known as Axis Bank Ltd. The Power of Attorney issued by the U.T.I. Bank Ltd. to engage a counsel, file the appeal and sign the requisite papers would, therefore, be considered valid if the appeal is to be filed on behalf of Axis Bank Ltd.

10.                   Otherwise also, the Power of Attorney in favour of Sh. Ashok Paul Jagga and Aalok Jagga, Advocates has been executed by Axis Bank Ltd. They were also the Advocates for the Bank before the learned District Forum. They had conducted this case before the learned District Forum where no such objection has been taken by the counsel for the complainant/respondent. The appeal is a continuation of the said complaint and when it had been contested by Sh. Ashok Paul Jagga, Advocate without any objection from the complainant/respondent, such an objection at this stage cannot be admitted.

11.                   The contention of the OP/appellant is that it is a case of alleged cheating and forgery of a cheque worth a huge amount of Rs.11.83 Lacs in which detailed evidence would be needed to see whether Gurwinder Singh is the person of the complainant in whose favour, he issued the cheque and subsequently, became dishonest to claim another amount of Rs.11.83 Lacs from the Bank. This contention is opposed by the learned counsel for the complainant who has cited a number of authorities to the effect that mere forgery or cheating alleged by the complainant would not be sufficient for the Consumer Fora to deny trial of the complaint or to relegate the complainant to seek remedy before the Civil Court.  The learned District Forum has already considered this point but did not find it appropriate to ask the complainant to approach the Civil Court. It is admitted that the proceedings before the Consumer Fora are summary in nature and detailed evidence is neither produced nor proper cross examination is conducted. We, however, do not agree with the OP/appellant that the matter should not be tried by the Consumer Fora or that it should be referred to the Civil Court for decision.

12.                   The learned counsel for the OP has also argued that a criminal case was registered at the instance of the complainant, which is pending investigation and therefore, the findings recorded by the Consumer Fora may adversely affect the investigation. The learned counsel argued that jurisdiction of the Consumer Fora is not ousted where a criminal case is registered but his contention is that trial in this case should commence after the Criminal Court has given its decision or at least till the investigation is completed by the police. This argument is also devoid of merit. The proceedings before the Consumer Fora are provided in addition to any other remedy available to the complainant and the mere registration of a criminal case cannot be a ground to adjourn the complaint sine die.

13.                   It is also argued by the learned counsel for the OP/appellant that the signatures on the cheque were compared by its staff with the standard signatures available in the Bank at the time of opening the Bank Account and the same tallied with each other. It is contended that the Bank officials daily compare the signatures in hundreds and therefore, they are well conversant with this procedure but even then, they cannot be so minute in comparing the signatures as an expert could be. Needless to mention that the Bank staff are not handwriting experts and they compare the signatures on the cheque with naked eye. In the present case, even when the signatures were compared subsequently by an expert namely Ms. Jassi Anand who is a finger prints and handwriting expert, she submitted the report (Annexure R-5) dated 5.11.2008 and found that the signatures on the cheque tallied with the standard signatures. It is true that the complainant has also produced handwriting expert Devendra Prasad who in his report (Annexure C-13) reported that the signatures did not tally with each other. It is, therefore, a case in which the reports from the experts are contradictory to each other. However, one of the experts has supported the contention of the OP Bank and it, therefore, cannot be said that there was any deficiency in service on the part of the Bank staff in conducting the comparison or that the signatures did not tally or the payment was made without comparing the same. Needless to mention that the Bank staff cannot devote as much time in comparing the signatures as an expert does. He also lacks the expertise and equipment for conducting the comparison. It is also a fact that the human hand does not work as a machine to give the same print of handwriting every time he/she signs. There may, therefore, be variation in signatures every time a persons signs and for minor variations, it cannot be held that the signatures are forged. The Bank staff with the experience and ability at their command rightly concluded that the signatures on the cheque were that of the complainant and if they made the payment to Gurwinder Singh on its basis, no fault can be found with it.

14.                   Interestingly, the complainant has a soft corner for Gurwinder Singh who is beneficiary of the said amount as he has not been joined by the complainant as a party to this complaint. It is not a case in which the amount was paid to a third party at the counter whose whereabouts are not known. Gurwinder Singh is an account holder of the OP Bank and the cheque was a crossed cheque meaning thereby that the total amount of Rs.11.83 Lacs was transferred from the appellant Bank to the account of Gurwinder Singh in his Bank Account. The learned counsel argued that the complainant is rather shielding Gurwinder Singh and neither any complaint was lodged against him with the police nor he was made a party to this complaint though, the entire amount was received by him and in case the contention of the complainant is true, the amount is to be recovered from Gurwinder Singh. The complainant has not given any reasons as to why Gurwinder Singh should not have been made a party to the present complaint and why relief should not have been claimed against him. The presence of Gurwinder Singh was most necessary in the case because he could unfold many of the facts regarding the genuineness of the cheque, which have not been disclosed by the complainant. It appears, the complainant first withdrew the amount through a cheque and transferred the same in favour of Gurwinder Singh and now he wants to enrich himself again by claiming the same amount from the Bank alleging that earlier transfer of the money made on his behalf was without any authority.

15.                   The learned counsel for the complainant/respondent has argued on expected lines that Gurwinder Singh was not a necessary party because no relief has been claimed against him and it is for the Bank to get the refund from that person or not. In support of his contention, the learned counsel referred to M/s Malwa Automobiles Pvt. Ltd. Vs. Ram Mehar Singh Kundu & Anr., 2009 (1) CPC 258. The facts of that case are distinguishable from the facts of the present case. In that case, Ram Mehar Singh Kundu had deposited a sum of Rs.1.30 lacs as booking amount for purchase of a vehicle. He lost the envelope containing the said receipt as well as the cover note obtained from the Insurance Company. The complainant informed the OP regarding the loss of his documents by meeting the OP personally and also through a registered letter dated 19.3.2003. When he asked for the refund of the amount, the OP informed him that the amount had already been transferred in the name of Gayatri Devi w/o Rajinder Kumar. In that case, the OPs alleged that they transferred the booking amount in the name of Gayatri Devi on the request of the person who had booked the car but they did not produce any such letter authored by the complainant whereas in the present case, the appellant has produced the cheque purported to be issued by the complainant. In case cited by the complainant, the OPs were informed verbally as well as through a letter about the loss of the receipt of the deposited amount but in the present case, no such intimation was given by the complainant before the amount was transferred to the account of Gurwinder Singh. In the aforesaid case, it was held that even if the person booking the car was unable to purchase the same for want of finance, he would request the OP to refund the amount to himself and there was no reason to ask for its transfer to Gayatri Devi. In the present case, a cheque was issued through which the complainant had requested to transfer the amount to Gurwinder Singh and it was not so in the above mentioned authority. This authority is, therefore, not helpful to the complainant.

16.                   The learned counsel for the complainant has also argued that the OP/appellant is free to recover the amount from Gurwinder Singh after crediting the same to their account. According to the learned counsel, in such a situation, the OP would be required to file a civil suit to recover the amount from Gurwinder Singh aforesaid. In that civil suit, Gurwinder Singh may defend the transfer on the basis of the cheque in question alleging that it was a genuine one and had been actually signed by the complainant. If his version is believed and the civil suit is dismissed, it would create anomalous position because in these proceedings, the same cheque has been held to be a forgery by the learned District Forum but this finding would not be relevant before the Civil Court, which may give a contradictory finding. In that eventuality, the OP even after having transferred the amount to the account of the complainant in pursuance of the impugned orders would not get any amount from Gurwinder Singh. The learned counsel argued that in fact, the complainant and Gurwinder Singh have joined hands with each other to defraud the Bank and that is why Gurwinder Singh has neither been made a party to the present complaint nor has been summoned as a witness by the complainant to prove his contention.

17.                   The learned counsel for the appellant has argued that the complainant has told a lie when he said that the cheque book was not issued to him by the Bank. The learned counsel referred to Annexure R-1 showing that the cheque book was issued to him on 3.6.2008 and was delivered through courier on 5.6.2008. It was received by one Mohinder. The learned counsel for the complainant argued that Mohinder is not known to him nor he has any such acquaintance. However, this argument cannot be accepted. Annexure R-3 is the account opening form filled up by the complainant in which his present address has been given that of GTM Trading Company, SCO No.394, Cabin No.5, Panchkula, Haryana along with his permanent address of Khamano, Ward No.2, The. Khamano, Distt. Fatehpur Sahib, Punjab. It becomes suspicious that if he was residing in Distt. Fatehpur Sahib, why he came to Chandigarh to open this account and why he gave the address of GTM Trading Company. Obviously, the OPs were to send the cheque book at his latest address. The learned counsel for the OPs referred to Rule 11.2 of the Savings Bank Account Rules in view of which a cheque book would be sent by registered post at the cost and responsibility of the account holder concerned, unless he calls in person or sends a messenger with a proper letter of authority and with the requisition slip duly signed, which he did not. The learned counsel also referred to the OP Bank’s terms and conditions in this respect and according to Condition No.11, a customer can request for issue of a cheque book and opt for either collecting the same in person from the concerned branch or have the cheque book mailed to the address given in the registration form. The courier charges will be born by the customer. It is argued by the learned counsel that in view of these provisions, the cheque book was sent by courier to the address of the complainant at his own risk and responsibility. It was his duty to see that the cheque book was received by a proper person. He never complained to the OP Bank if he had not received the cheque book or if Mohinder aforesaid was not his agent/family member. The cheque book was, therefore, presumed to have been delivered to the complainant. The cheque in question was issued from the same cheque book. It was signed by the complainant and if on its basis, as per the direction of the complainant, the amount was transferred to the account of Gurwinder Singh, the OPs cannot be held deficient in rendering service.

18.                   In view of the above discussion, we are of the opinion that there is no deficiency in service on the part of OPs and all the complaints filed by the respective complainants were liable to be dismissed. All the appeals bearing No.141, 142, 146 and 147 all of 2010, therefore, must succeed. The same are allowed. The impugned orders passed by the learned District Forum are set aside and consequently, the complaints are dismissed. The parties are left to bear their own costs of litigation.

19.                   Copies of this order be sent to the parties free of charge.

Pronounced.

16^th November 2010.

Sd/-

[JUSTICE PRITAM PAL]

PRESIDENT

Sd/-

[NEENA SANDHU]

MEMBER

Sd/-

[JAGROOP SINGH MAHAL]

MEMBER

Ad/-

STATE COMMISSION

(Appeal No.141 of 2010)

Argued by:    Sh. A. P. Jagga, Advocate for the appellant.

                        Sh. J. C. Batra, Advocate for the respondent.

Dated the 16^th day of November, 2010.

ORDER

                        Vide our detailed order of even date recorded separately, this appeal along with connected appeals bearing Nos.142, 146 and 147 all of 2010 have been allowed.

(JAGROOP SINGH MAHAL)            (JUSTICE PRITAM PAL)     (NEENA SAHDHU)

                MEMBER                                      PRESIDENT                       MEMBER