PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the consumer dispute between a Co-operative Housing Society and a Co-operative Bank for deficiency in service on the part of Opposite Party Bank as it honoured the forged cheques issued by the Complainant as alleged by the Complainant.
2) The facts of the case as stated by the Complainant are that the Complainant Society has the saving account with the Opposite Party. The Complainant issued 3 cheques drawn on Opposite Party Bank in favour of New India Co-op. Bank Ltd.
i) Cheque No.753863, dtd.24/11/98 for Rs.15 Lacs
ii) Cheque No.753864, dtd.25/11/98 for Rs.5 Lacs.
iii) Cheque No. 779748, dtd.03/04/99 for Rs.10 Lacs.
These cheques were crossed cheques. They were issued in favour of New India Co-op. Bank Ltd. for the purpose of making fixed deposits on interest @ 12 % p.a. on amount of Rs.20 Lacs for 3 years and @ 11 % p.a. on amount of Rs.10 Lacs for one year.
3) The Complainant has further submitted that the above cheques were given to New India Co-operative Bank. But some of the employees of New India Co-op. bank forged these cheques and added the words “C.A. 1512 after the name of payee – New India Co-op. Bank, when the said three cheques were sent to Opposite Party Bank for clearance, the Opposite Party Bank cleared the said cheques and made payment against the said forged account number coated by the forgerer.
4) It is further submitted by the Complainant that the Crime Branch, Mumbai Police took cognizance of the above said forgery and it is also stated by the Complainant that New India Co-op. Bank returned the whole amount of Rs.30 Lacs to the Complainant. (No date of repayment is mentioned in the complaint).
5) The New India Co-op. bank also issued the 2 FDRs receipts to the Complainant in this behalf. The particulars of these FDRs one as follows -
a) FDR No. not mentioned for Rs.20 Lacs @ 12 % p.a. from 03/12/1998 to 02/12/2001.
b) FDR No. not mentioned for Rs.10 Lacs @ 11% p.a. from 12/04/1999 to 12/04/2000.
6) The Complainant has mentioned that the Complainant society also received interest of Rs.79,562/- till 22/04/99 from New India Co-op. Bank.
7) When the forgery came to the notice of the Complainant, it served notice on the Opposite Party for reimbursement of interest the society lost due to the negligence of the Opposite Party.
8) Finally the Complainant has prayed that Opposite Party be directed to pay Rs.5 Lacs towards the interest amount, the Complainant was entitled to Rs.1 Lac as cost of the complaint, Rs.25,000/- incidental expenses, etc.
9) The Complainant has attached the xerox copies of the following documents in support of the complaint, counter foils of receipts issued by New India Co-op. Bank Ltd. collectively for Rs.30 Lacs. Cheques issued by the Complainant for Rs.30 Lacs. (3 cheques) Fixed Deposit Receipts 2 in number for 30 Lacs Receipt of interest of Rs.79,562/- to the credit of the Complainant, notice dtd.06/05/2000 – Reply dtd.20/05/2000 by the Advocate of Opposite Party. Letter dtd.26/08/2002 from the Complainant to Opposite Party. Paper cutting, Circular of Reserve Bank of India dtd.004/2002, Ld.Advocate’s notice dtd.25/11/03 addressed to Opposite Party.
The complaint was admitted and notice was served on the Opposite Party. Opposite Party submitted its written statement wherein it denied all the allegations mentioned in the complaint and specifically submitted that there is no cause of action to file this complaint.
10) It is also submitted by the Opposite Party that the complaint is barred by limitation. It is clarified by the Opposite Party that the fraud was allegedly committed in respect of the three cheques of the Complainant issued in favour of New India Co-op. Bank Ltd. in Nov., 98 and April, 99, when the alleged cause of action had arisen. While this complaint has been filed in February, 2004. Therefore the complaint is barred by limitation.
11) The Opposite Party has also further submitted that the complaint is barred by principles of Resjudicata.
12) Opposite Party has submitted that the complaint is bad for non joinder of party viz; New India Co-op. Bank Ltd.
13) The Opposite Party has further submitted that the Complainant has falsely alleged in letter dtd.05/12/99 that the Opposite Party had wrongly paid the amount of Rs.30,00,000/- so the Opposite Party should reimburse to the Complainant the said amount. (The Complainant has not mentioned as to whom the amount was paid).
14) To this above said letter dtd.05/12/99 of the Complainant the Opposite Party has replied vide its letter dtd.21/12/99 and categorically denied the above allegation of the Complainant and clarified to the Complainant that the amounts of the three cheques in question (Rs.30 Lacs) were paid to the New India Co-operative Bank i.e. collecting banker.
15) Thereafter the Complainant again sent a letter to the Opposite Party stating that the cheques were tampered with, after they were deposited with the New India Co-op. Bank Ltd. and the Complainant further requested the Opposite Party to credit its account with the amount of the above said cheques. The Opposite Party again repeated the same reply to the Complainant vide its letter dtd.28/01/2000.
16) By letter dd.20/05/2000, the Opposite Party called upon the Complainant to furnish some documents in respect of the transaction done in connection with the 3 cheques in question but the Complainant did not furnish the same to the Opposite Party.
17) Thereafter there is correspondence between the Complainant and Opposite Party reiterating their contentions as mentioned above. Further the Opposite Party has submitted that the cheques were tendered to New India Co-op Bank Ltd. for making FDR in the name of the Complainant. It was the duty of the New India Co-op Bank to verify the existence of New India Co-op. Bank Ltd. C.A.1512 in whose favour the said cheques were drawn before forwarding the said cheques to the Opposite Party for clearance. It was also the duty of the collecting Bank to have credited the amount of said 3 cheques to the account of New India Co-operative Bank Ltd. C.A.1512. The collecting Bank could not have credited the amounts to the Current Account No.1512 which is in the name of one Mr. Kantilal A. Shah. But it has been done by New India Co-op. Bank Ltd. Because of this act only the New India Co-op. Bank Ltd. had no option but to pay the amount of three cheques to the Complainant. The Complainant has not disclosed any reason as to why it has not demanded payment of interest from the collecting Bank and why the Complainant has not any action against the collecting bank.
18) It is also further alleged by the Opposite Party that, the New India Co-op. Bank has paid Rs.79,562/- by way of interest to the Complainant on 30 Lacs Rupees till 22/04/99. This clearly proves that the amounts of the cheques were paid by the Opposite Party to New India Co-Operative Bank Ltd. and said amounts were received by New India Co-op. Bank. This bank also issued FDRs in favour of the Complainant. Thereafter the claim of the Complainant for interest from Opposite Party is false & baseless. Finally the Opposite Party has prayed to dismiss the complaint with exemplary cost.
19) The Opposite Party has attached the xerox copies of the correspondence between the Complainant, New India Co-op. Bank Ltd., Ombudsman, etc. Thereafter the Complainant has filed written argument wherein the fact mentioned in the complaint are reiterated. The Opposite Party also filed written argument wherein it reiterated the facts mentioned in its written statement.
20) We heard the Ld.Advocate for the Complainant and perused the papers submitted by both the parties and our findings are as follows.
21) This is the dispute between the Co-op. Housing Society and the Co-operative Bank. The Complainant has handed over the 3 crossed cheques collectively valued at Rs.30 Lacs to one Deepsheekha Dheer to invest the amount in FDRs of New India Co-operative Bank Ltd. The payee mentioned in these cheques was New India Co-operative Bank. The Complainant has suppressed this fact that the cheques were handed over to Deepsheekha. It is averred in the complaint that these cheques were given to New India Co-op. Bank.
22) The cheques were dtd.24/11/98, 25/11/98 and 03/04/99. It is the contention of the Complainant that some of the employees of the New India Co-operative Bank Ltd. tampered and forged these cheques before presenting these cheques to Opposite Party by adding the words and figures as C.A. 1512 and Opposite Party cleared these cheques to the payee New India Co-op. Bank Ltd. C.A.1512. It is the contention of the Complainant that the Opposite Party has wrongly cleared the amount to the forged account C.A.1512 and thus it is the deficiency in the part of the Opposite Party. By clearing this amount in the account of C.A.1512 which was not of New India Co-op. Bank and the amount of cheques were transferred to the account of one Kantilal A. Shah.
23) In the letter dd.04/09/99, the New India Co-op. Bank Ltd. has informed the Complainant that the 3 cheques in questions were tendered for collection and credit of Current A/c. No.1512. But this Bank has also suppressed the fact as to who tendered these cheques. Certainly the cheques were tendered to the New India Co-op. Bank Ltd. When this New India Co-op. Bank Ltd. received these cheques (NICB Ltd. for brevity), it was within the knowledge of this Bank that the cheques were in favour of New India Co-op. Bank Ltd. and not in favour of Kantilal Anraj Shah. The account No.C.A.1512 was added before presenting the cheque to the Opposite Party. From the above said letter of the NICB Ltd. bank it is revealed that the Complainant had a visit with the Chairman of NICB Ltd. Bank on 18/08/99. In that visit it has been disclosed that the Complainant had deposited Rs.30 Lacs with Chembur Branch of NICB Ltd. Bank but after 1st quarterly payment of the interest the Complainant did not receive the further quarterly payment from NICB Ltd. Bank, Chembur Branch. At this time the Chairman of the NICB Ltd explained to the Complainant that there was no deposit of 30 Lacs with NICB Ltd. Bank. He also showed the account of Mr. Kantilal A. Shah, C.A. No.1512 in which the amount of Rs.30 Lacs was credited. The 1st payment of quarterly interest was made by Kantilal Shah and not by NICB Ltd. Bank. Mr. Kantilal purchased the pay order in the name of Complainant. It is also further disclosed by the NICB Ltd. that the cheques were deposited by Mr. Kantilal Shah in his account no.C.A.1512. But it is not cleared that, how these three cheques came in possession of Kantilal A. Shah ? Thereafter Kantilal A. Shah withdrew this amount from his C.A. account No.1512 and closed the account on 29/04/99. This clearly shows that Mr. Kantilal A. Shah is the beneficiary of the amount of 3 cheques. He has deposited the cheques with NICB Ltd. Bank. At this point of time the NICB Ltd. Bank officials should have the knowledge that the cheques were in their bank’s name. The payee is NICB Ltd. Bank. Then they should have identified that the number CA 1512 is an added current account number as the cheques were crossed account payee cheques. Then presenting such cheques with addition CA 1512 is not only negligent act but it is criminal act of the concerned officials of the NICB Ltd. Bank.
24) From the above fact there can be only two conclusion/ possibilities. The words and figures C.A. 1512 were added by Mr. Kantilal, the A/c. holder of account C.A.1512 or the concerned officials of NICB Ltd. Bank and they have committed the forgery at the behest of Mr. Kantilal Shah.
25) From the letter dtd.05/12/99, from the Complainant itself addressed to the Opposite Party, it is clear that the Complainant had made allegations that the Opposite Party had wrongly paid the amount of the cheques in question and therefore, Opposite Party is liable to reimburse the sum of Rs.30 Lacs together with interest. Therefore, the deficiency of the Opposite Party as alleged by the Complainant itself is a wrong payment of Rs.30 Lacs and the Complainant has demanded reimbursement of this amount from Opposite Party as per letter dtd.05/12/99. This clearly shows that the alleged deficiency of making wrong payment of Rs.30 Lacs was committed by the Opposite Party certainly before 05/12/99. The record and averment of the Complainant also shows that the cheques were issued on 24/11/98, 25/11/98 and 03/04/99. They were enchased on 02/12/98, 28/11/98 and 07/04/99 respectively. They were cleared by the Opposite Party on the above said dates i.e. 02/12/98, 28/11/98 and 07/04/99. The Complainant came to know about the alleged deficiency of the Opposite Party before 05/12/99 and therefore, the Complainant wrote a letter dtd.05/12/99 to the Opposite Party calling upon to reimburse Rs.30 Lacs to the Complainant and the Opposite Party has given his reply dtd.21/12/99 and denied all the allegations mentioned in letter dtd.05/12/99. In letter dtd.28/01/2000 the Opposite Party has totally denied its liability towards payment of interest as demanded by the Complainant. Therefore, in our candid view the cause of action arises when there is an alleged deficiency or when the right to sue or right to file a complaint arises to the Complainant or victim. In this case the cause of action has arisen when the Opposite Party denied its liability. Therefore, the Complainant must have filed this complaint in January, 2002. However, this complaint has been filed by the Complainant on 20/02/2004. Thus, there is a tremendous delay of more than two years and there is no application filed by the Complainant to condone the delay. There is no reason to condone the delay. Therefore, the complaint is barred by limitation U/s. 24(A) of the Consumer Protection Act, 1986. Therefore, we pass the following order -
O R D E R
i)Complaint No.36/2004 is hereby dismissed as barred by law of limitation
ii) No order as to cost.
ii)Copy of this order be furnished to both the parties.
