Date of filing       : 29.09.2011.

                                                                                    Date of disposal : 05.07.2017.

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, THIRUVALLUR - 1.

PRESENT:      THIRU. S.  PANDIAN, B.Sc., L.L.M.,       …    PRESIDENT

                     TMT. S.  SUJATHA, B.Sc.,                       …    MEMBER - I

Consumer Complaint No.38/2011

(Dated this Wednesday the 05^th day of July 2017)

Mr. T. S. Srinivasa Chetty,

S/o. Late R.C. Swaminatha Chetty,

No.313, M.P.S. Salai,

Tiruttani Town,

Thiruvallur District.                                                              …. Complainant.

/ Versus /

The Branch Manager,

State Bank of India,

No.357, M.P.S. Salai,

Tiruttani Town,

Thiruvallur District - 631 209.                                         ….  Opposite parties.

This Forum has passed an Exparte order on 25^th October 2013 and then the opposite party has preferred an appeal before the SCDRC, Chennai to set aside the Exparte order and it was ordered by the SCDRC, Chennai to set aside the order of this Forum and the same was remanded back to this Forum and now the complaint has come before us finally on 21.06.2017 in the presence of Thiru. L. Thanigaivel, Counsel for the complainant and Thiru. B. Krishna Kumar, Counsel for the opposite party and upon hearing arguments, and having  perused the documents and evidences and written arguments of both the sides, this Forum delivered the following:

ORDER

PRONOUNCED BY THIRU. S.  PANDIAN, PRESIDENT

This complaint is filed by the complainant U/S 12 of Consumer Protection Act, 1986 against the opposite party for seeking relief to remit the amount of Rs.3,00,000/- towards the cheque no.0010877 dated:16.07.2009 and to rectify the error committed by the opposite party in the complainant’s account and also to redeposit the interest amount which has been deducted by the opposite party and to pay Rs.1,00,000/- each towards compensation towards unfair trade practice, deficiency of service and mental pain & sufferings with cost Rs.10,000/-.

2.       The brief averments of the complaint is as follows:-

          The complainant is an account holder of the opposite party’s bank by having current Account No.11143072346 for the past 40 years without any problem.  The complainant has not availed any loan from the opposite party.  On 16.07.20119, the complainant had deposited an amount of Rs.3,00,000/- by transfer of cheque and hence the complainant’s bank balance increases to the tune of Rs.3,00,000/- as on 16.07.2009.  Further, the complainant had deposited Rs.2,000/- on 19.03.2010, Rs.25,000/- on 15.04.2010 and Rs.25,000/- on 17.04.2010.  As on 17.04.2010, the complainant’s bank balance had increased to the tune of Rs.3,52,000/- in addition to the minimum bank balance of Rs.1,964/-. 

3.       The complainant wanted to withdraw a sum of Rs.3,00,000/- from the opposite party’s bank in his account No.11143072346 on 16.07.2009 and so the complainant has given the self cheque bearing no.0010877 before the opposite party’s bank.  The opposite party had received the same but refused to pay Rs.3,00,000/- although the complainant had in his bank account to the tune of Rs.3,52,000/- along with the initial mount of Rs.1,964/- in the complainant’s account.  Hence the opposite party has not paid the above said amount in time to the complainant, he had undergone heavy loss and hardship and he has also incurred mental agony and pressure and suffered heavy loss, hardship and mental agony and suffered heavy loss in his business transactions.  Though the complainant approached the opposite party, they never cared to response for the same.  After much troubles and monetary loss, the complainant was able to get his bank statement on 21.04.2010 only.  After perusing the bank statement, the complainant was pushed into great shock since the opposite party bank has passed an amount of Rs.7,77,500/- on 19.06.2009 when the bank balance of the complainant is only Rs.1,964/- and the same also has not been intimated till date by the opposite party to the complainant. 

4.       The complainant is having financial transactions with one Indo Asian Finance Limited situated at Chennai.  The complainant used to give blank cheques to Indo Asian Finance Limited for security purpose before taking any loan.  So, the Indo Asian Finance Limited had one such blank cheque and the same has been filled up by the Indo Asian Finance Limited fraudulently to  a sum of Rs.7,77,500/- and the same was forwarded to the opposite party bank on 19.06.2009 against the complainant’s account by the Indo Asian Finance Limited, Chennai.  On 19.06.2009, though his bank balance was only Rs.1,964/- but the opposite party has passed the cheque for realization to the sum of Rs.7,77,500/- which is a very huge amount and the act of passing the cheque by the opposite party without such balance in the complainant’s account itself is deficiency in service of the opposite party and moreover, the opposite party has not chosen to intimate the same either at the time of receiving the cheque or at the time of passing the cheque for realization, to the complainant who is a very old customer of the opposite party.  At the time of passing the cheque, the balance in the complainant’s account is only a meager amount of Rs.1,964/- and infact the complainant cannot have the overdraft facility since he is having ordinary current account only.

5.       On 19.06.2009, the complainant’s bank balance is only Rs.1,964/- and the opposite party cannot pass the cheque for more than Rs.1,964/-.  The opposite party should have returned the cheque with an endorsement as “Funds insufficient”.  Instead of the same, the opposite party has passed the amount of Rs.7,77,500/- to the Indo Asian Finance Limited, Chennai without even intimating the same to the complainant.  Moreover, the opposite party has also started calculating interest is also exorbitant and the opposite party had started to deduct the same from the complainant’s account which is not at all lawful and the same comes under deficiency in service as well as unfair trade practice on the part of the opposite party.  All the above said facts come to the knowledge of the complainant, only after perusing the bank statement dated:21.04.2010.  Hence the complainant had rushed to the opposite party and enquired about the unlawful activity of the opposite party.  Hence the complainant had issued a notice on 21.01.2011.  But the opposite party has not given any reply.  The complainant has also issued another reminder on 31.04.2011 calling upon the opposite party to furnish the sufficient reason for non-payment of amount to the complainant.  The opposite party has not chosen to issue any reply for the same.  Hence this complaint.

6.       The contention of written version of the opposite party is  briefly as follows:-

The opposite party does not admit any of the allegations contained in the complaint except those that are specifically admitted herein.  The allegations that the opposite party has passed the amount of Rs.7,77,500/- on 19.06.2009 when the bank balance is only of Rs.1,964/- and the same was also not intimated to the complainant till now that the act of passing of the cheque by the opposite party without sufficient balance in the account and moreover the bank has not intimated the same with at the time of receiving the cheque or at the time of passing of the cheque for realization that the calculated interest amount is also exorbitant and he has started to deduct the  same from the complainant’s account and the same comes under the deficiency of service as well as unfair trade practice on the part of the opposite party.

7.       The opposite party is not liable to pay the alleged amount of Rs.3,00,000/- to the complainant nor the amount of Rs.1,00,000/- each by way of compensation and mental agony and sufferings because the cause of action does not arise at all for claiming such amounts from the bank.  This complaint suffers from illegality and non-joinder of parties because the inclusion of one Indo Asian Finance Ltd, situated at Chennai in the petition does not found who is the beneficiary of the cheque. The said company is the prime and pivotal party to be added as one of the opposite parties in the complaint for proper and complete adjudication of the matter.   Hence the complainant has not come with clean hands to prove his case.

8.       It is true that the complainant deposited the said amount of Rs.3,52,000/- but by the time the cheque issue by him for Rs.3,00,000/- is presented  the said amount of Rs.7,77,500/- on 19.06.2009 and the said fact was informed to the complainant on 16.07.2009 by exercising Bankers’ General lien and a copy of letter is produced by Annexure – I through the letter from the bank stating that his cheque for Rs.3,00,000/- was credited towards the payment of the said cheque for such overdue amount and advised him to pay the outstanding amount of Rs.4,83,630/-.  There was neither any reply nor its compliance from the end of the complainant.  Hence another letter dated:22.03.2010 was again issued to him stating the Bank Officials personal visits and reminders and outstanding amount in his account demanding him to pay.

9.       The complainant concedes that he had got the statement on 21.04.2010 just one month after which the letter dated:22.03.2010 from the bank was issued to him and therefore, it would certainly go to show that he is aware of all the transactions in the bank regarding his account and failed to take any action against the said finance LTD., till now who was benefited under the huge amount of cheque dated:12.06.2009.  This is clear case of malafide intention and evil designs adhered to by the complainant and destined to make the bank a scape goat for no fault of it.

10.     It is submitted that he is repeatedly kept in alleging that the bank had passed the cheque when the amount is found insufficient in the account.  It is indeed a flagrant violation of contract on the part of the complainant having issued the cheque to his financier without money in his account and so the bank has no other option than to think of filing criminal proceedings against the complainant for having dragged the bank to this Forum for no fault of it alleging the deficiency of service.  What prevented him from initiating any criminal actions against the finance Ltd. till now is a moot question to be probed.

11.     It would also further infer that he has not thought that the finance Ltd. would fill up the blank cheque for such a huge amount and that is why he has awakened restraining himself without depositing the rest of the amount and made the bank a scape goat.  Therefore, there is on deficiency of service by the bank nor any unfair trade practice.  Instead the option chosen by the complainant for payment of the amount of Rs.3,00,000/- from the bank is not at all sustainable in the eyes of law and there is no privity of any oral, tacit or written contract between the bank and the complainant for claiming the amount from the bank when there is a subsisting financial transactions between him and the Indo Asian Finance Ltd. admittedly.  Hence the complaint is liable to be dismissed.  The claim of the petition is also barred by limitation besides other factors stated supra as the cheque for the claim of Rs.3,00,000/- dated:16.07.2009.

12.     In order to prove the case, on the side of the complainant, the proof affidavit submitted for his evidence and Ex.A1 to Ex.A10 were marked.  While so, on the side of the opposite party, the proof affidavit is filed and Ex.B1 to Ex.B5   were marked on their side.

13.     At this juncture, the point for consideration before this Forum is:-

1. Whether it is correct to say that the complaint is barred by limitation?

2. Whether there is any deficiency of service on the part of the     opposite party as alleged in the complaint?

3. To what other reliefs, the complainant is entitled to?

14.     Written arguments filed and oral arguments also adduced by both sides.

15.     Point no.1:-

Regarding this point, the opposite party raised the plea that this complaint is barred by limitation since the factors mentioned in the complaint shows that the cheque for claim of Rs.3,00,000/-was made on 16.07.2009 and thereafter, this complaint has been filed before this Forum only on 29.09.2011 which is beyond the limitation period of 2 years as contemplated under Consumer Protection Act, 1986 and thereby, this complaint is clearly barred by limitation.  While being so, on perusal of the records it clearly shows that the act of transfer of the amount of Rs.7,77,500/- towards the cheque, Ex.B1 which was issued by the complainant herein to the Indo Asian Finance Ltd, Chennai on 12.06.2009 and encashed on 19.06.2009.   The said fact has been brought to the knowledge of the complainant on 16.07.2009 when he try to withdraw a sum of Rs.3,00,000/- in his account No.11143072346 on 16.07.2009. Further, it is pertinent to note that there was a correspondence between the complainant and the opposite party through Ex.B2 to Ex.B4, Ex.A7 and Ex.A8 and thereby, the cause of action continues till 30.04.2011.  Thereafter, the above said continuous cause of action in respect of this complaint, there is no question of barred by limitation.  Furthermore, this Forum wants to state that after delivering the final order to this complaint by this Forum on 25.10.2013 as Ex-parte, though the opposite party has preferred an appeal against such order but the opposite party has not taken such plea of barred by limitation before the SCDRC, Chennai. 

16.     From the foregoing among other facts and circumstances, the plea placed by the opposite party that this complaint is barred by limitation is not sustainable and thereby, the same is rejected.  Thus, the point no.1 is answered accordingly.

17.     Point No.2:-

          As per the case, when the complainant presented a cheque for a sum of Rs.3,00,000/- on 16.07.2009 but it was refused by the opposite party to pay the cheque amount even the complainant has deposited for a sum of Rs.3,52,000/- in his account which caused mental agony which amounts for deficiency of service.  On the other hand, it is contended by the opposite party that, the complainant is running a current account in their bank and on 19.06.2009, a cheque was issued by the complainant to the Indo Asian Finance Ltd, Chennai then was presented and the same has been passed as overdraft and therefore, the deposit amount of Rs.3,00,000/- and odd was adjusted towards the overdue amount of Rs.7,77,500/-  and the said facts was informed to the complainant on 16.07.2009 and for that only, the cheque presented by the complainant on 16.07.2009 was refused for payment and hence there is no deficiency of service on their part. 

18.     At this juncture, on careful perusal of the rival submissions put forth on either side, it goes without saying that the initial burden of proof is on the shoulders of the complainant.  First of all, on perusal of the averments made in the complaint as well as the evidence adduced on his side, it is seen that on 16.07.2009, the complainant had deposited an amount of Rs.3,00,000/- Ex.A1.  The complainant further deposited Rs.2,000/- on 19.03.2010, Rs.25,000/- on 15.04.2010 and Rs.25,000/- on 17.04.2010 through counter foil receipts, Ex.A3  to Ex.A5 and including the minimum bank balance of Rs.1,964/- and thereby, the total bank balance had increased to the tune of Rs.3,52,000/-.  At the outset, it is pertinent to note that the amount of deposited through counter foil receipts, Ex.A3 to Ex.A4 are all happened only after subsequent to the date of Ex.A2, cheque.  At this point of time, it is further seen that on 16.07.2009 when the complainant had presented the cheque, Ex.A2 for encashment of Rs.3,00,000/- but the opposite party  refused to pay  although there was sufficient balance in his account as per the  averments of the complainant.  Though the bank statement, Ex.A6 shows about the deposit of Rs.3,00,000/- on 16.07.2009 and therefore, the complainant had issued legal notice, Ex.A7 and reminder notice, Ex.A8 had been issued to the opposite party for the refusal of Ex.A2 the postal receipt and the delivery intimation by the said post Master, Tirutani  is marked as Ex.A10.

19.     0n such circumstances, on going through the evidence of the opposite party, it is stated that on 19.06.2009,  Ex.B1, cheque was presented in the opposite party bank for a sum of Rs.7,77,500/- which was issued by the complainant in favour of the Indo Asian Finance Ltd, Chennai dated:12.06.2009 was passed by the opposite party by exercising the Bankers’ General Lien and the said fact was informed to the complainant on 16.07.2009 through Ex.B2  and on subsequent dates Ex.B3 & Ex.B4, letters have been sent to the complainant and the bank statement is marked as Ex.B5.  It is further stated that when the amount of Rs.3,00,000/- was deposited on 16.07.2009 by the complainant and the same was adjusted towards the payment of the above said cheque amount which was already passed to the tune of Rs.7,77,500/- was adjusted towards the payment of the cheque amount and advised him to pay the balance of Rs.4,83,630/- and therefore, as per the bankers’ general Lien between the complainant and the opposite party when the current account was opened by the complainant the cheque amount of Rs.7,77,500/- towards Ex.B1, cheque on the good intention.  Therefore, there is no deficiency of service or any unfair trade practice on the part of the opposite party.

20.     At this juncture, from the foregoing facts and evidences, it is an admitted fact that the Ex.B1, cheque was issued by the complainant to the Indo Asian Finance Ltd, Chennai on 12.06.2009.  It is not at all disputed by the complainant.  Similarly, Ex.B1, Cheque was passed by the opposite party on 19.06.2009 without the consent of the complainant while the cheque amount of Rs.7,77,500/- which was a huge one is not disputed.   Furthermore, it is pertinent to note from the written version as well as the proof affidavit of the opposite party, it is clearly admitted that the said cheque was passed by over sight.  Further, the opposite party has taken the plea that the subsequent deposited amount of Rs.3,00,000/- on 16.07.2009 was deducted by exercising by bankers’ general lien.  But the complainant has completely denied such bankers’ general lien and providing of overdraft facilities in his alleged current account.  If it is so, it is the duty of the opposite party to place necessary proof of documents to show about the providing of overdraft to any specific amount limit and the facts of exercising the power of general lien with the complainant.  In fact, no piece of document produced by the opposite party in this aspect before this Forum. 

21.     At this point of time, when the opposite party himself clearly admitted that Ex.B1, cheque was passed by oversight.   If it is so, it would have been informed to the complainant immediately on the day itself or on the immediate subsequent dates.  But the opposite party failed to do so.  Though the complainant is a customer of the opposite party’s bank for the past 40 years and the same is admitted by the opposite party himself.  It is further seen that on 16.07.2009, when the complainant questioned about the refusal of Ex.A2, cheque and only thereafter, the opposite party has sent a letter dated:16.07.2009 (Ex.B2) to the complainant which clearly reveals the lethargic attitude of the opposite party.  At the outset, the opposite party raised some allegations against the complainant in receipt of the presentation of Ex.A2, cheque on 16.07.2009, on which date of deposit Rs.3,00,000/- by the complainant and thereby, it clearly shows the malafide intention of the complainant becomes futile.    Furthermore, this Forum wants to elucidate that the opposite party cannot try to escape from the clutches of law for the lapses committed by them by mentioning the above allegation against the complainant.

22.     Further, it is clearly seen that though the complainant has sent legal notices, Ex.A7 and Ex.A8 and the same had been received by the opposite party, they have not come forward to send any reply to the averments made in the notices till the date of filing of the complaint.  But per contra, they have sent Ex.A3 & Ex.A4 which also reveals the fact of outstanding loan amount. 

23.     In furtherance, other plea taken by the complainant in respect of the non join of necessary parties, this Forum concludes that it is not sustainable because the fact of issue of Ex.B1, cheque to the Indo Asian Finance Limited  has  not been disputed by the complainant and the dispute is only in respect of passing the  said amount towards the Ex.B1, cheque without his consent and thereby, refused the Ex.A2, cheque.  Therefore, the plea for non joinder of necessary parties is no way affected this complaint.

24.     In the light of above facts and circumstances and the documents adduced on both sides, it is crystal clear that the lethargic and negligent attitude of the opposite party in passing the cheque, Ex.B1 for a huge sum of Rs.7,77,500/- on 19.073.2009 and on which date the balance in the alleged account of the complainant is only of Rs.1,954/- without the consent and knowledge of the complainant and thereafter, the refusal of Ex.A2, cheque for encashment clearly amounts for deficiency of service on the part of the opposite party and certainly had caused mental agony and hardship to the complainant.  Thus, the point no.2 is answered accordingly.

25.     Point no.3:-

As per the conclusion arrived in point no.2, the complainant is entitled for reasonable compensation from the opposite party for causing mental agony and hardship due to the deficiency of service on their part with reasonable cost.  But at the same time, regarding the relief seeking by the complainant for payment of Rs.3,00,000/- for the cheque, Ex.A2 dated:16.07.2009 and redeposit the interest amount which has been deducted by the opposite party in the complainant’s account, it is pertinent to note that as rightly pointed out by the opposite party though by over sight, Ex.B1, cheque was passed by the opposite party, somehow or otherwise, the beneficiary is only the complainant.  If the complainant is somewhat really affected, he had an option to seek relief if any before the proper Forum of law.  Therefore, the complainant is not entitled for the above said relief as prayed in the complaint.  Thus, the point No.3 is answered accordingly.

In the result, this complaint is allowed in part.  Accordingly, the opposite party is directed to pay a sum of Rs.25,000/- (Rupees twenty five thousand only) towards compensation for causing mental agony and hardship due to deficiency of service on the part of the opposite party to the complainant with cost Rs.10,000/- (Rupees ten thousand only) totally of Rs.35,000/- (Rupees thirty five thousand only).  Regarding other reliefs, this complaint is dismissed.

The above amount shall be payable within one month from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9.5% till the date of payment.

Dictated by the President to the Steno-Typist, transcribed and computerized by him, corrected by the President and pronounced by us in the open Forum on this 05^th  July  2017.

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MEMBER - I                                                                             PRESIDENT

List of documents filed by the complainant:-

List of documents filed by the opposite party:-

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MEMBER - I                                                                             PRESIDENT