Before the District Consumer Dispute Redressal Commission [Central District] - VIII,      5th Floor Maharana Pratap ISBT Building, Kashmere Gate, Delhi

                                      Complaint Case No. 106/15.03.2016

Sh. Sahabram Singh s/o Late Ramchander

R/o H. No. F-23/66, Sector-3, Rohini,  Delhi-110085                            … Complainant

                                                Versus

Manager , State Bank of India,  Branch - E.S.I. Corporation,

CIG Marg, Near Bal Bhawan, Kotla Road, New Delhi-110002            ...Opposite Party

                                                                                    Senior Citizen Case

                                                                                    Date of filing:            15.03.2016

Coram:                                                                       Date of Order:            06.03.2024

Shri Inder Jeet Singh, President

Ms. Shahina, Member -Female

                                                       ORDER

Inder Jeet Singh , President

1.1. (Introduction to dispute of parties) – The complainant has grievances of deficiency of services against his banker/OP that a cheque of Rs.32,000/-was issued in favour of his son, who has to get prepared a bank draft of this amount from his account, for the purposes of part payment of consideration amount of purchase of property by the complainant, as balance consideration amount of Rs. 28,80,000/- was payable to the seller Roop Singh. However, the cheque was not honoured by OP Branch, consequently for want of bank draft prepared, the seller forfeited earnest amount of Rs. 3,20,000/-.

1.2. The OP opposed the complaint on all counts that neither there is any deficiency of services nor any other negligence but the cheque was presented by Axis Bank Ltd. in the clearance, and one of the digit of the cheque number was not reflecting in image of cheque in the system, that is why the cheque amount was not cleared, the complainant is trying to make gain out of technical omission by/in the system. The complaint is liable to be dismissed.

2.1. (Case of complainant) –The complaint gives profile of complainant that he retired from Department of ESI, Kotla Road, Delhi in July 2011. He is maintaining his pension account with the OP. On 06.05.2013 the complainant has entered into a transaction with Sh. Roop Singh to purchase three story built-up house bearing no. E-579, Mangolpuri, Delhi-83, measuring 22.5 sq. yd. for total consideration amount of Rs. 32 lakh,  out of  which an advance amount of Rs. 3,20,000/- was paid to the seller and balance amount of Rs. 28,80,000/- was payable by 05.08.2013.  

2.2. On 02.08.2013 the complainant issued a cheque no. 893233 of  Rs. 32,000/- from his saving bank account to his son Sushil Kumar to get prepared a draft for payment to the seller. Complainant’s son deposited the cheque into his account with Axis Bank but it was dishonoured by OP for 04-other reason. The complainant was informed firstly by the OP by SMS that the cheque has been cleared but after two hours another SMS was received of dishonoured of the cheque, which shocked the complainant, since demand draft was required urgently to pay to the seller. The complainant contacted the branch Manager on telephone and enquired about the reasons of dishonor but complainant was advised to visit the branch, thus on next day complainant visited the branch and it was told that only Axis Bank would be able to reply as that bank was at fault. Thus, complainant wrote his grievances to the OP and to the Axis Bank to disclose the reason, since the complainant was to pay balance amount of Rs. 28,80,000/- for purchase of the property. The OP failed to disclose the reason and for want of draft, the complainant could not pay balance of Rs. 28,80,000/- to the seller, consequently the seller forfeited the earnest/advance amount of Rs. 3,20,000/-.

2.3  The complainant approached office of  Banking Ombudsman on 20.09.2013 seeking compensation of loss of Rs. 3,20,000/- and in that proceedings the OP disclosed on 03.10.2013 that the cheque was erroneously lodged as cheque no. 393233 instead of actual cheque no. 893233. Moreover, the OP in its letters dated 21.04.2014 also admitted that cheque number was mistakenly changed in the computer system and it was returned on technical ground. The complainant also perused the matter to the Axis Bank, the OP branch and Banking Ombudsman for justice since his position has been defamed in the society but the office of Ombudsman closed the matter on the ground that matter is not in their jurisdiction. The complainant also wrote letter dated 20.05.2014 to OP that the cheque was processed by their systems but OP issued letter dated 09.06.2014 for its deep regret and negligence for dishonor of the cheque. However, the complainant suffered because of their acts, negligence and omissions. That is why the complaint for decree of Rs. 3,20,000/- alongwith interest at the rate of 24%pa from 02.08.2013 till realization of the amount in lieu of defamation in the society besides cost and expenses incurred in prosecuting the complaint & other relief.

2.4.  The complaint is accompanied with photocopies of - pass book of account maintained with OP branch, earnest money receipt dated 06.05.2013, cheque return advise, photocopy of cheque, complaint/letter dated 20.09.2013 to office of Banking Ombudsman, letter dated 03.10.2013 to the OP, OP’s reply dated 21.04.2014,  Order 06.05.2014 of Banking Ombudsman, other correspondence dated 20/21.05.2014, 09.06.2014.  

3.1 (Case of OP)- The complaint is opposed vehemently on legal points as well as on facts. The is not maintainable since it is barred by law of limitation as the date of cheque is 02.08.2013 and date of transaction is 03.08.2013 but the complaint was filed in March 2016, it is beyond statutory period. The complainant failed to implead Axis Bank as a party to the complaint since the cheque was received in clearance from Axis Bank, being banker of son of the complainant.  

3.2.   On facts, the cheuqe of Rs.32,000/- was issued in favour of Sh. Sushil Kumar,  who had deposited in his account with  Axis Bank Ltd. The image of the cheque was received in clearance by OP on 03.08.2013 from Axis Bank, which was processed through service branch and during uploading, one digit of the cheque was changed by the computer system and while processing the payment, the cheque number was read as 393233 instead of 893233. That is why the cheque was returned with reason “cheque not in Range/other reason”. It was a technical flaw in the system and complainant is trying to take advantage of this single mistake, occurred due to failure in the system and generally it happens rarely. Had the cheque been represented by Sh. Sushil Kumar, it would have been honoured but it was not represented for the best reason known to Sushil Kumar.

3.3  As per complainant’s own bayana receipt, the amount could be forfeited in case the complainant refuses to complete the transaction but there is no fact of such refusal to envisage forfeiture of amount nor there is any payment receipt of Rs. 28,48,000/- that the complainant had paid the  such balance amount vis-à-vis there is no proof of loss of Rs. 3,20,000/-; otherwise it was also considered by Banking Ombudsman that complainant failed to prove such losses. Moreover, there is overwriting on the date of earnest money which creates doubt regarding the case of complainant. There is also no direct evidence or otherwise that the complainant suffered losses of Rs. 3,20,000/- or it germane to the said bank draft or the dealing was not materialized because of shortage of Rs. 32,000/-.

            Although, there was technical fault in the system and for the inconvenience caused to the complainant was regretted by the OP by letters dated 21.04.2014 and 09.06.2014. The complaint is without substance and merits and for want of any deficiency, the complaint is liable to be dismissed.

3.4 The reply is accompanied with  statement of account number 32753476175 of complainant  (from period 01.05.2013 to 03.05.2016), copy of uploading report of cheque, copy of letters dated 21.04.2014 & 09.06.2014, copy of order dated 06.05.2014 by Ld. Banking Ombudsman Delhi.

4. (Replication of complainant) – The complainant filed detailed rejoinder to counter the plea of OP that the allegations in the reply are wrong but in fact OP admits its flaw in the system and its negligence vis-à-vis OP is trying to shift it on the Axis Bank. The Axis Bank has no role in the entire transaction as the cheque was dishonoured by the OP branch. There was sale transaction between the complainant and seller of the property, for want of materializing the transaction because of dishonor of cheque, the complainant had suffered the losses as the earnest money was forfeited. The complaint is within limitation since the complainant was constraint to approach the different authorities to seek his grievances and ultimately the complaint was filed after exhausting remedies, even from Office of  Banking Ombudsman Delhi. The complainant suffered losses, reputation and complaint was filed properly.

5.1. (Evidence)-In order to prove the complaint, the complainant Sahab Ram Singh led his evidence by filing his detailed affidavit on the pattern of the complaint and also affidavit of evidence of Sh. Roop Singh, to prove that they entered into agreement/bayana transaction for buying the property and he had forfeited the amount.

5.2. The OP/State Bank of India led evidence by filing affidavit of evidence of Sh. S. K. Bajaj, Branch Manager of OP/ESI Branch, Kotla Road, New Delhi, which is also on the lines of written statement.

6.1 (Final hearing)- The parties were given opportunity to file written arguments and make oral submissions, both the sides have filed their detailed written arguments followed by oral submissions by the complainant himself and Sh. Karan Kumar, Advocate for OP.

6.2. The complainant was prosecuting the complaint himself, except a few dates when counsel had appeared for him. The contentions advanced by the parties are not repeated here, the same will be dealt and analyzed appropriately.

7. (Findings)-The contentions of both the sides are considered, keeping in view the material on record and provisions of law. Although, the parties have filed their written arguments and also argued orally, the written arguments of complainant are split under many headings but there is repetition of substance. But by considering all of them, the issues are being taken one by one. 

8.1. The first issue is on the point of limitation. According to complainant, he was making efforts by approaching competent authorities for redressal of his grievances and the time has exhausted. Then present complaint was filed. Whereas, according to OP,  the cheque was of 02.08.2013 and transaction was of 03.08.2013, therefore, the complaint filed on 15.03.2016 is barred by period of limitation of two years prescribed under the law.

8.2  In order to answer this issue, it needs to refer record and law. This complaint was filed under the provisions of Section 12 of the Consumer Protection Act 1986 and Section 24A of the Act 1986 prescribes period of two years from the date of arising of the cause of action. It is a fact that the business transaction had happened on 02.08.2016 and 03.08.2016 but there are subsequent events in continuation of the same.  Ld. Banking Ombudsman rendered his decision on 06.05.2014 and opined that the compensation sought by the complainant was beyond the pecuniary jurisdiction of the Banking Ombudsman under the Banking Ombudsman Scheme 2006, that is why the complaint was closed. The complainant was prosecuting his grievances under bona fide before Ld. Banking Ombudsman and for want of findings on his grievance, the present complaint was filed. The cause of action was in continuation, therefore, the cause of action has also arisen on 06.05.2014, when the proceedings were closed by Ld. Banking Ombudsman. Therefore, the complaint is within the prescribed period  of two years from the date of cause of action. Accordingly, this issue stand determined against OP.

8.3  It is appropriate to mention herein, at this stage,  that the OP is relying upon the Order of Banking Ombudsman that it has observed that the claim of complainant is not proved, however, such cursory observation cannot be treated as a finding by Ombudsman since Ld. Banking Ombudsman opined that it lacks pecuniary jurisdiction to determine the issue, therefore,  no finding or opinion on merits can be  rendered, otherwise it would amount to assuming the jurisdiction without having jurisdiction. That is why, in this final Order,  the issues will be dealt as per material on record.

9.1  The next issues is whether or not Axis Bank is a necessary party to the complaint? The OP affirms it on the ground that the cheque was received in clearance from the Axis Bank, where complainant’s son Sushil Kumar deposited in his account. Thence, it came in clearance and there was technical glitch/omission about the uploading of one digit number of that cheque. Whereas, according to complainant the cheque was returned unpaid by the OP branch, therefore, Axis Bank is not a necessary party.

9.2  To answer this objection, the record is to be seen. The complainant has proved the cheque bearing number 893233 for Rs. 32,000/-, correspondingly OP has also proved the copy of that cheque in clearance. It is an account payee cheque. However, the cheque number was not matching during the processing of cheque in clearance. Since the drawer of the cheque is complainant and amount was to be cleared by the OP branch vis-à-vis the Axis Bank was just recipient Bank, therefore, the final decision not to honour the cheque was of OP branch. Axis Bank is not a necessary party to the complaint. Therefore, the complaint was properly filed by the complainant against OP branch.

            Had the Axis Bank to be a necessary party for decision on the complaint, there was no bar for OP branch to make  appropriate application for impleadment of Axis Bank but this was not done  by OP. With this observation this contention is also disposed off against OP.

10. So far, other points and issues are concerned, the complaint is dismissed for the following reasons:-

(i) The complainant’s issued subject cheque to his son Sushil Kumar, it was deposited by him in his account but it was returned because of technical glitch in the system for want of processing the correct/complete cheque number. There is no material that it was intentional or with human intervention on the part of OP. The material information by way of SMSs was for necessary information and alter to the complainant. 

(ii) There is no evidence by the complainant that the OP branch was made aware about the transaction of purchase of property and for that reason the subject cheque was issued in favour of complainant’s son for getting prepared bank draft. To say, the OP branch is alien to the purpose of issuing the cheque in favour of Sushil Kumar/payee.

(iii) When the cheque is returned unpaid, the payee is informed by its Banker of reason for return of the cheque and the payee is son of the complainant. That return memo is placed on record by the complainant.

(iv)  The bayana/earnest receipt mentions date 06.05.2013 at right side top of it as well as in the middle of its contents with further date to complete the transaction on 05.08.2013. The plea of OP to the extent of over-writing at top does not sustain, since same date is also mentioned in the body of that receipt.

            However, the mode of payment of Rs. 3,20,000/- by the complainant has not been mentioned in the earnest money receipt, but it appears to be by way of cash for want of detail of cheque/demand draft/pay-order or else.

The OP has proved complainant’s statement of account of three years from 01.05.2013 to 03.05.2016, which is not disputed by the complainant. This statement of account does not decipher any figure of Rs. 3,20,000/- if the earnest money was paid by way of cheque nor withdrawal of cash of Rs. 3,20,000/- if payment mode was of cash.             The complainant’s witness Roop Singh filed his affidavit to prove that there was sale transaction and for want of payment of balance amount,  the advance amount was forfeited as per terms and conditions of agreement to sell and purchase. However he has not deposed in evidence whether the amount was received by way of cheque or cash. There is could not be received of amount by way of cheque by looking into the statement of account of complainant vis a vis in view of affidavit of Roop Singh.

(v) According to the case of complainant and his witness the balance amount payable was Rs. 28,80,000/-, how the amount of cheque of Rs. 32,000/- would have been impact/ bearing with the huge amount of Rs. 28,80,000/- vis-à-vis it is not the case of complainant throughout that he had arranged remaining amount of Rs. 28,48,000/- payable to the seller by other modes other than from his bank account or the cheque was of just balance amount of Rs. 32,000/- to secure demand draft from the account of his own son.

(vi) The events are neither appearing natural nor the same are convincing nor they are corroborating the case of complainant as to what prevented him to get the demand draft from his own account or in case there was situation of return of the cheque, why he did not issue new cheque or his son represented the cheque nor it is the case of complainant that seller/CW Roop Singh would not accept the cheque.  

(vii) As per proved facts, in case huge amount of Rs.3,20,000/- could be paid in cash to OP, then how  it was material amount of Rs.32,000/- would be only by demand draft,  it is not convincing to circumstances to be accepted.  

(viii) In order to make claim of compensation, the complainant is required to establish and prove deficiency of services, short-coming or want of services against the service provider. But the circumstances of this case are not proving it with regard to the transaction being projected on behalf of complainant that he suffered losses of Rs. 3,20,000/-. Moreover, the complainant is seeking the amount as decree with interest in lieu of loss of reputation, but it is not covered under the Consumer Protection Act, 1986 to return finding thereon.

Accordingly, complaint fails and it is dismissed. No order as to cost.

11.  Announced on this 6th day of March,  2024 [फाल्गुन 16, साका 1945].  Copy of this Order be sent/provided forthwith to the parties free of cost as per rules for  compliances, besides to upload on the website of this Commission.         

                                                                                                                                                                                                                                                                            [Inder Jeet Singh]

                                                                                                                                         President

                                                                                                                                        [Shahina]                                        

                                                                                                                         Member (Female)                                                   

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