Heard learned counsel for both sides.
2. Here is an appeal filedu/s 15 of the erstwhile Consumer Protection Act, 1986 (hereinafter called the ‘Act’). Parties to these appeals shall be referred to with reference to their respective status before the learned District Forum.
3. The case of the complainant in nutshell is that the complainant being Savings Bank account holder of OP – Bank on receipt of one cheque of Rs.4,00,000/- from one DebabrataSahu, the Proprietor of “One Stop Highway Service” and close friend of complainant. In course of business transaction DebabrataSahu took a friendly loan of Rs.4,00,000/- from the complainant in the year 2012. In lieu of the debt, DebarataSahuissued apost datedcheque of S.B.I., F.M.College Branch, College Road, Balasore for Rs.4,00,000/- on 27.8.2012 to the complainant. Complainant submitted said cheque in his S.B.account of the OP – Bank. Accordingly, Rs.4,00,000/- was credited to the SB account of the complainant on 27.8.2012 on the same day.
4. It is alleged inter alia that on 29.8.2012 when the complainant wanted to withdraw the sum of Rs.4,00,000/- by submitting withdrawal form, he came to know that Rs.4,00,000/- has been debited from his account and also it has gone to OP No.2 who had intimated that the amount as per the instruction of the drawer of the cheque has been withheld. Complainant requested OP No.2 to return the cheque and to credit the cheque amount to his SB account but OP No.2 wanted undertaking from the complainant that he has no objection for debiting the amount which was debited without any authority and as such the complainant gave undertaking to that effect. After obtaining undertaking neither OP No.2 delivered the cheque to the complainant nor the cheque amount was credited to his account. Thus, there is deficiency in service on the part of OP No.2. The complainant made allegation before the Banking Ombudsman but it was in vain. Thereafter, the complainant filed the complaint.
5. OPs filed written version stating that the complaint is not maintainable. They admitted that the cheque of Rs.4,00,000/- was deposited in the Branch on 27.8.2012 and the amount was credited to the account of the complainant through C.B.S.It is averred that saidDebabrataSahu the drawer of the cheque received SMS about the debit of Rs.4,00,000/- from his account, SBI F.M.College Road Branch and through Fax message he has informed the Branch that he has not given any cheque to anybody for debiting the amount. He also denied to have signed any cheque. After getting the information through Fax message, OP No.2 held up the cheque although it was credited to the account of the complainant. Complainant expressed his no objection to debit the said amount on 1.9.2012. It is further averred that complainant requested to return the cheque but it was not returned because the drawer of the cheque neither issued any cheque to the complainant at any time. After the advice of Banking Ombudsman, OP No.2 issued a cheque to the complainant on 16.10.2012 and requested to receive the same but complainant did not respond the same. Thereafter, issued legal notice. Complainant has not opted to receive the said cheque from the concerned Bank. Therefore, there is no deficiency in service on the part of the OPs.
6. After hearing both the parties, the learned District Forum passed the following order:-
“xxx xxxxxx
The consumer case is allowed on contest against the OPs with cost. The OPs are jointly and severally directed to refund the disputed amount of Rs. 4.00 lakhs to the complainant by depositing in his account followed by interest @9% p.a. from 27.8.2012 till realization and the compensation of Rs.20,000/- and cost of litigation of Rs.1,000/- within 60 days of receipt of this order, failing which the entire amount will carry interest @9% p.a. from the date of order till realization. The complainant is at liberty to realize the same from the OPs as per law. The OP No.2 is at liberty to take back of the disputed cheque from this Forum on any working day with proper endorsement.”
7. Learned counsel for the appellants submitted that the leaned District Forum failed to appreciate the judicial mind to the facts and law in the case. He submitted that when the drawer of the cheque instructed to stop payment, they have immediately debited the amount from the complainants account and again credited same to the account of the drawer of the cheque. He further submitted that learned District Forum committed error in law by directing to pay Rs.4,00,000/- to the account of the complainant. But in the instant case, thecheque amount needs no necessity to be credited to the account of the complainant because in the event of any deficiency at all the compensation is to be payable but not the cheque amount. He submitted that the complainant when got information from OP No.2 that the cheque is to be returned, complainant remained silent. In this regard, he cited the decision of Hon’ble National Consumer Commission, New Delhi in City bank N.A. v.GeekayAgropack Private Ltd. reported in (2008) 15 SCC 102 where They have observed that thecompensation awarded as per the decision not the exact amount which is only to be recovered by filing civil suit. So, he submitted to set aside the impugned order by allowing the appeal.
8. Learned counsel for the respondentsubmitted that the OPs – Bank have committed serious deficiency in servicebecause after the money is being credited to the account of the complainant,same should not be debited to the account of the drawer. He also submitted that even if drawerstopped payment same should be informed to the complainant. He also submitted that the learned District Forum has applied judicial mind and passed the impugned order in detail. Therefore, he supportsthe impugnedorder.
9. Considered the submission of learned counsel for the respective parties and perused the impugned order including the DFR.
10. It is admitted fact that the complainant was issued a cheque by DebrabrataSahu of Rs.4.00 lacs and he has deposited that cheque to his Banker to realize the amount and credit the same to his account. It is also admitted fact that on 29.8.2012 the money which was credited to the account of the complainant has been again debited and it was also refunded to the account of DebabrataSahu. Now question arises whether the complainant has proved the deficiency in service on the part of the OPs. No doubt the complainant has got onus to prove his case but if none of the parties adduced evidence the case of the complainant fails. So the complainant has to prove the document one by one. The complainant has proved Annexure – 1 which is issued by OP on 29.8.2012 where it is disclosed that DebabrataSahustoppedpayment for which it was again credited to the account of DebabrataSahu. Annexure – 2 is the petition filed by the complainant to the OP to take step to realize the amount. Annexure – 3 is the letter which has been sent by the complainant to show that there is no objection to debit the money. So the letter whether it is sent by DebabrataSahu or not, it is only available to the contents of the letter and he has also proved the representation of OP No.1. Annexure – 4 is representation made by the complainant.
11. On the other hand, the OPs have not adduced any evidence except filing written version. He has given in writing to credit the amount to his account. When he has given in writing and there is no objection for debiting the amount it must be observed that the withdrawal of cheque by DebabrataSahu has been admitted by the complainant. In this respect there is hardly any deficiency in service on the part of the OPs.
12. Apart from this, the impugned order shows that learned District Forum has passed order directing the OP to pay the cheque amount but in view of the decision of CitybankN.A. (Supra) thecheque amount is not permissible to be paid and only compensation would be payable. In this regard the judgment of the learned District Forum also requires interference. It is the case of the OPs that they are ready to return the cheque but the complainant did not come forward to receive thecheque. However, the cheque in question is available on record. The question of retention of the same by the OPs does not arise. So in all respect, we are of the view that the learned District Forum has not applied the judicial mind to the facts and circumstances of the case. Therefore, the impugned order is liable to be set aside and is set aside. 13. The appeal stands allowed. No cost.
The statutory amount deposited be refunded to the appellants with interest accrued thereon if any onproper identification.
DFR be sent back forthwith.
Supply free copy of this order to the respective parties or the copy of this order be downloaded from Confonet or Website of this Commission to treat same as copy supplied from this Commission.
