05.02.2015.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the judgment and order dated 27.11.2013 passed by the Ld. District Forum, Purba Medinipur in Complaint Case No. 60/2013 allowing the same ex parte against all the O.Ps, directing the O.Ps jointly and severally to credit the said sum of Rs.40,000/- to the S. B. A/c being No. 141100-109119646 of PNB, Contai Branch, Purba Medinipore, of the Complainant within 40 days from the date of communication of the order, further directing the O.Ps jointly and severally to pay compensation of Rs.3,000/- for mental pain and agony and also Rs.1,500/- for litigation cost within 40 days from the date of communication of the order failing which, the Complainant would be at liberty to execute the order in which case the O.Ps would be jointly and severally liable to pay interest @ 9% per annum on entire amount as stated above from the date of the order till compliance in toto. 

Being aggrieved by the impugned order the O.Ps have preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum erred in stating the body of the judgment that the O.Ps did not appear in spite of service of notice, but facts remains that the O.P. Nos. 1 & 2 appeared before the Ld. District Forum on 26.08.2013, 16.09.2013, 01.10.2013, 12.11.2013, 22.11.2013 and 01.10.2013 and the O.P. Nos. 1 & 2 prayed for time for filing W. V. which was rejected and the case was fixed for ex parte hearing and on 08.10.2013 the O.P. Nos. 1 & 2 filed a petition praying for vacating the ex parte order but that too was rejected.  The Appellants have also taken the grounds that the Complainant stated that she had lost four cheques having Nos. TJH 458554, TJH 458555, TJH 458557 and TJH 458558 and instructed the Appellant Bank to stop payment in respect of those cheques but she herself issued a cheque bearing No. TJH 458558 of Rs.40,000/- to the payee, namely, Smt. Khusboo Rustagi against payment for mustered oil purchased from the payee which was subsequently encashed at Kishanngar, Delhi Branch by the payee, but the Ld. District Forum erroneously directed the O.P. – Bank to credit Rs.40,000/- in the S. B. A/c of the Complainant and to pay certain amount towards compensation and cost which should be set aside.

The case of the Complainant, in brief, is that she is a S/B A/c. holder under the O.P. – Bank, Contai Branch.  The Complainant has stated that on 05.01.2009 when she was on way to the said branch she lost four cheques bearing Nos. TJH 458554, TJH 458555, TJH 458557 and TJH 458558 and, therefore, she in order to prevent misappropriation of money by presenting the lost cheques filed an application to the Manager, P.N.B. Contai Branch for ‘stop payment’  in respect of the four lost cheques which was duly received by the bank official fixing seal of the bank and putting initial signature in it on 05.01.2009.  The Complainant further stated that after lapse of about three yers the Complainant found on 03.09.2011 Rs.40,000/- was deducted from the A/c since the said amount was withdrawn by a cheque having No. TJH 458558 though the bank made a note in the statement of accounts in the passbook that the said cheque was paid ‘TO SELF’.  The Complainant, thereafter, lodged a complaint with the Branch Manager to that effect and requested him to recover the said amount but to no avail.  However, on 17.01.2003 the Complainant again made another application for crediting the said amount to her account that too no avail.  Subsequently, the Complainant again made applications to the bank authorities for recovery of the said amount but no fruitful result was yielded.  Hence, the Complainant filed the instant case praying for direction upon the o.Ps to make payment of a sum of Rs.40,000/- plus interest accrued thereof, to pay Rs.20,000/- towards compensation for causing harassment.

The Ld. District Forum recorded that the O.Ps did not turn up and the case was heard ex parte.

In course of hearing of the appeal Ld. District Forum has submitted that the Complainant runs a business and, therefore, has purchased mustered oil and paid through that cheque in dispute.  Therefore, the bank has no deficiency in providing service by encashing the same.

Ld. Advocate for the Respondent has submitted that the Complainant – Respondent instructed the Appellant Bank on 05.01.2009 to stop payment in respect of the lost cheques but inspite of that one of those chequs has been encashed on 03.09.2011.  Ld. Advocate for the Respondent has further submitted that by presenting the cheque the bank was asked by the Complainant to pay the amount ‘to self’ but the Bank paid it to a third party which is highly irregular.

Having heard submission made by the parties and on perusal of the papers on record it appears that the Complainant (Respondent herein) filed a petition of complaint on 24.07.2011 alleging deficiency on the part of the O.P. – Bank (Appellants herein) and the case was admitted on 05.08.2013 fixing 26.08.2013 for S/R and appearance by the O.Ps.  On 26.08.2013 the O.P. NOs. 1 & 2 appeared and prayed for time for filing W. V. but no S/R received in respect of O.P. No. 3 and, therefore, 16.09.2013 was fixed for filing W. V. by the O.P. Nos. 1 & 2 and S/R in respect of O.P. No. 3.  Since that date the O.P. Nos. 1 & 2 had been praying for time for filing W. V.  on 16.09.2013 & 01.10.2013 but on 01.10.2013 their prayer was rejected and the case was fixed for ex parte hearing.  However, on 22.11.2013 the O.P. Nos. 1 & 2 filed petition praying for vacating the order for ex parte hearing but that too was rejected on the ground that the District Forum and State Commission cannot recall or review their own orders. 

The Complainant in the petition of complaint alleged that the O.P. – Bank encashed a cheque for which she instructed to stop payment.  The Complainant field a copy of an application dated 05.01.2009 to the Manager, P.N.B., Contai Branch wherein she clearly mentioned the numbers of the cheques and stated that those were lost on that date and asked the Manager to take step so that none can encash the same.  The said application has been received by the Bank acknowledging with seal and initial signature.

In the instant appeal the Appellants have taken two-fold grounds – i) they were denied the opportunity to contest the complaint case and ii) they have no deficiency in service.

Firstly, it is crystal clear from the record that the O.Ps got ample opportunity for filing W. V. but they failed to file the same.  Further, on 22.11.2013 Ld. District Forum rightly rejected the petition filed by the Appellants/O.Ps on the ground that the Ld. District Forum cannot review its own order and no revisional application has been filed by the aggrieved parties to that effect.

Secondly, it is evident that in spite of ‘STOP PAYMENT’ instruction by the Respondent, the Appellant bank has encashed the cheque which is a glaring example of deficiency in service.

In view of that, we are of opinion that the Ld. District Forum has rightly passed the impugned order.

In the result, the appeal fails.

Hence, ORDERED, that the instant appeal is dismissed on contest without cost.  The impugned judgment is affirmed.