(Passed on 03.09.2013)

Per Mr N Arumugam, Hon’ble Member

          This is an appeal filed by the original Op. against the order dtd. 28.01.2008 passed by District Consumer Forum, Nagpur, partly / allowing the complaint bearing No.CC/07/507 directing the Op. to pay Rs.25,000/- with interest @ 9% from 26.06.2007 till its realization and Rs.3,000/- towards physical & mental harassment and Rs.1,000/- towards cost of proceedings. 

The facts of the case in brief are as under:-

1.                The original complainant is having saving bank account bearing No. 6717 with opponent No.1 (for short the Op. No.1) since 29.09.1988. According to the complainant a cheque bearing No.261060 dtd. 26.06.2007 for amount Rs.25,000/- was cleared by the bank by debiting her account when she was having balance only Rs.24,140/- in her account by allowing overdraft. Hence, she filed a consumer complaint stating that the Op. Bank wrongly debited her account and claimed Rs.25,000/- with 24% interest and Rs.25,000/- towards the compensation for mental & physical harassment and cost of proceedings.

2.                The Op. resisted the complaint by submitting written version and other documents like pass-book entries and also letter from the State Bank of India, Branch at High Court premises, Ahmedabad.  The Op. prayed that the complainant issued three cheques amounting to Rs.28,151/- including the disputed one.  All the three cheques were cleared by the Bank. Rs.859/- was less to clear all the three cheques. Two cheques were issued by the complainant in favour of BSNL and the disputed one was issued in favour of one Shri Balasubramanian.  Since the deficit amount needed to clear all three cheques is very less and also the customer is very old having more than 25 years the Bank allowed temporary overdraft and cleared the cheque. Hence, the Bank not committed any deficiency in service and prayed that the complaint be dismissed.

3.                After hearing both the parties and on perusal of the case papers, the Forum allowed the complaint partly and directed to pay as stated above.

4.                Being dissatisfied with the order, the Op. preferred this appeal.  Adv. Mr V K Kolte appeared for the appellant and argued that the complainant issued three cheques for Rs.1,562/-, Rs.1,499/-, & Rs.25,000/- totalling Rs.28,151/- but to clear all these cheques, the complainant was having short of Rs.859/- in her Saving Bank Account. Since the customer was old one the Bank allowed temporary overdraft for Rs.859/- and cleared all three cheques.  In fact, the Bank helped the customer to avoid dishonour of her cheque.  He further argued that if the intention of the complainant was not to pay Rs.25,000/- to the payee of the cheque, she should have given information to the Bank for “Stop Payment”.  Since, she did not give any information to the Bank for the “Stop Payment”, the bank cleared the disputed cheque.  Further he argued that all three cheques were cleared on 26.06.2007, which cheque cleared first and which one is cleared latter cannot be decided by simply seeing the pass book entry. The Advocate of the appellant further argued that in the entire complaint, the complainant did not rebut that the cheque was not issued by her.  Finally he argued that the Forum without appreciating all these facts, wrongly, allowed the complaint partly and same should be set aside.

5.                Adv. Mr Sawal appearing for the respondent argued that the cheque of Rs.25,000/- was issued to one Mr Balasubramanian at Ahmedabad from her different cheque book long back. However, Mr Balasubramanin deposited the above cheque in his bank i.e. State Bank of India, Branch High Court Building, Ahmedabad without informing her. The complainant issued two cheques to BSNL after clearing these two cheques, there was no sufficient balance to clear the disputed cheque of Rs.25,000/- without informing the complainant Op. - Bank wrongly cleared the said cheque by giving temporary overdraft, which amounts to deficiency in service on their part. The Forum below appreciating all these facts and allowed the complaint, which needs no interference.

6.      After hearing both the parties and on perusal of the case papers, we observe that on just before the clearing of all three cheques, i.e. 26.06.2007, credit balance of complainant’s account was Rs.27,292/- and to clear all three cheques an amount of Rs.28,151/- was needed.  Since the complainant was having account with the bank more than 25 years, cleared all the three cheques by giving temporary overdraft of Rs.859/-.  The bank helped the complainant to avoid legal dispute with regard to dishonour of cheque that too for very meagre amount of Rs.859/-.  We agree with the argument of the advocate for the appellant as a good gesture, the appellant bank done a favour for the complainant instead of appreciating the action of the bank, complainant filed the consumer complaint. As pointed out by the appellant’s advocate, it is very difficult to ascertain which cheque was cleared first and which was cleared latter by mere looking the entries of the pass-book.  The complainant also did not bother to inform the bank to “Stop Payment” and she was careless in issuing cheques.

7.      From the foregoing discussions, it is crystal clear that the appellant bank did not render any deficient service. However, the Forum without appreciating all these facts, allowed the complaint partly, which is not sustainable.

Hence, the following order:-

ORDER

i.                    Appeal is allowed.

ii.                  The impugned order dtd. 28.01.2008 passed by District Consumer Forum, Nagpur is set aside.

iii.                Consequently, the complaint bearing No.CC/07/507  stands dismissed.

iv.               No order as to cost.

v.                 Copy of the order be supplied to the parties.