Delhi

North East

CC/185/2017

Sh. Sanjeev Aggarwal - Complainant(s)

Versus

State Bank Of India - Opp.Party(s)

29 Nov 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 185/17

 

In the matter of:

 

	Shri Sanjeev Aggarwal S/o Shri Late Suraj Prakash Aggarwal R/o 17/13, Block-17, Shakti Nagar Delhi-110007	Complainant
	Versus
1         2	State Bank of India B-4/7 Prince Road Model Town New Delhi NCT of Delhi-110009   Oriental Bank of Commerce Bara Tooti Chowk, Sadar Bazar Delhi-110006	Opposite Parties

 

DATE OF INSTITUTION:      JUDGMENT RESERVED ON:               DATE OF DECISION      :

02.06.2017 29.11.2019 29.11.2019

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Brief facts of the complaint, shorn of unnecessary details are that the complainant was issued a cheque bearing No. 450743 dated 13.02.2017 for Rs. 6,00,000/- by one Dr. Rajesh Gupta from his account No. 10659115838 maintained with OP1 bank. On presentation of the said cheque by the complainant in his account No. 00212010053470 maintained with OP2 bank, the same was returned by OP2 unpaid vide Return Memo dated 02.03.2017 with remark ‘Kindly contact Drawer / Drawee Bank and present again’. Thereafter on assurance given to complainant by the issuer of the cheque Dr. Rajesh Gupta to present the same again for definite clearance, the same cheque was presented by the complainant in his account with OP2 but to this utter shock, OP1 again returned the said cheque vide return memo dated 18.04.2017 with remarks ‘Drawer’s Signature Differ’. The complainant has alleged deficiency of service on the part of OP1 for dishonoring the same cheque vide two different returned memos for different reasons and thereby depriving the complainant of his lawful money and has stated that OP2 is a necessary party to ascertain the deficiency of service whether of OP1 or OP2 or both. Therefore, complainant was constrained to file the present complaint praying for issuance of directions against the OPs to compensate him to the tune of Rs. 1,00,000/- for deficiency of service and Rs. 35,000/- towards litigation cost.

Complainant has attached copy of the cheque in question alongwith returned memos dated 02.03.2017 and 18.04.2017.

2. Notice was issued to the OPs on 06.06.2017. OPs entered appearance. OP1 file its written statement in which it took the preliminary objection of complainant not being its consumer and therefore the present complaint not maintainable against it since the cheque was neither presented to OP1 by complainant nor any memo with respect to thereto was issued by OP1. OP1 took the defence that the subject cheque was presented only once before OP1 and was returned as per its record. in support of this contention OP1 filed copy of Bank Statement of Dr. Rajesh Gupta for the period for 02.03.2017 to 18.04.2017 highlighting the cheque in question presented before it on 18.04.2017 and declined on the said date for the reason ‘Drawer’s signature differ’. OP1 therefore prayed for dismissal of the complaint  

OP2 filed its written statement in which it took the preliminary objection that the complainant had not taken any services from OP2 and his grievance pertains to OP1 and OP2 has no role to play in the proceedings and complainant is not the constituent of the present case. OP2 took the defence that the allegation made by the complainant is against OP1 since the issuer of the said cheque had his account with OP1 and OP2 has no role regarding unpaid returned memo since it was under the instruction of OP1 that the returned memos were issued and therefore urged for dismissal of the complaint on grounds of OP2 not being a proper party and wrongly impleaded therein. OP2 has filed copy of General power of attorney authorizing the signatory/deponent.

3. Rejoinders to the defence taken by OP1 and OP2 were filed by the complainant in rebuttal to the defence taken by both OPs in which the complainant urged that OP1 is a necessary party to the lis since OP2 has taken the plea in its written statement that the said cheque was returned unpaid on the basis of instructions of OP1 and that the cheque in question was dishonored twice by OP2. He further submitted that in support of OP2’s contention of return memo issued by it on instructions of OP1, OP2 has not placed any documentary proof in support thereof and therefore both Banks had a role in the transaction.
4. Evidence by way of affidavit were filed by complainant and OP1 in reassertion of their respective grievance / defence.

OP2 failed to appear of file its evidence and its right to file the same was closed vide order dated 12.12.2017.

5. Written arguments were filed by both parties in reassertion / reiteration of their respective grievance.

Complainant argued that there was deficiency of service on part of both the OPs for dishonor of the cheque vide two different return memos and both parties being necessary for adjudication in view of OP2 having averred that the cheque was returned unpaid on instruction of OP1. Complainant relied upon judgment of Hon'ble National Commission in Canara Bank Vs Sanjoy Mitra in RP No. 2956/2015 decided on 29.04.2016 wherein Hon'ble National Commission had upheld the order of lower Fora for compensation for deficiency of service in dishonor of the cheque by the Bank in favour of the complainant.

• Contra OP1 argued that the complaint was non maintainable on grounds of no relationship of consumer and service provider between complainant and itself and secondly it had declined clearance of cheque only on one occasion i.e. in April 2017 on actual and correct remarks ‘Drawer signature differ’ and that the return memo dated 02.03.2017 was not issued by OP1 but by OP2 and therefore no deficiency of service can be attributed to OP1 which has been unnecessarily impleaded by complainant for extracting money.

We have heard the rival contention of both parties presented by their respective counsel and have bestowed our anxious consideration to the pleadings before us.

Now the complaint subject matter falls for consideration. It is an admitted fact that the cheque in question bearing no. 450743 dated 13.02.2017 for Rs. 6,00,000/- issued by Dr. Rajesh Gupta from his account held with OP1 in favour of the complainant was declined for clearance as per return memo issued by OP2, account holding bank of complainant on its presentation in April 2017 for two different reasons for rejection given in the returned memos.

First and foremost, let us adjudicate whether the complainant is a consumer of OP2 or not.

In order to answer the aforesaid vital question, it would be useful to describe amended definition of a ‘Consumer’ alongwith its ‘Explanation’ as provided under Section 2(1)(d) of the Act.

The word ‘consumer’ is the fulcrum of the Consumer Protection Act (the Act) and is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other that the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

 

Explanation:- for the purposes of this clause, “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.

 

The term ‘consumer’ has, thus, been defined to mean, a person who                 is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or   
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

 

1. paid, or
2. promised, or
3. partly paid or promised, or

covered by any system of deferred payment.

 

The complainant is squarely / clearly a consumer of OP1 within the parlance of Section 2 (1)(d)(ii) which clearly stipulates that consumer shall include any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person. Therefore, the complainant being the beneficiary of the instrument in question issued by Dr. Rajesh Gupta, account holder of OP1 is a consumer of OP1.

The second issue is the adjudication of culpability of the OPs in so far as deficiency of service for dishonor of the cheque is concerned and determination of their respective roles for reason of dishonor of the instrument in question.

In this regard, to succinctly bring the rival contention into focus, OP2 has taken defence of issuing return memos in March and April 2017 on the instructions of OP1 before which the said cheque was presented for clearance. On this aspect , we are in agreement with the stand taken by OP2 that the cheque was returned on the instructions of OP1 since the issuer had his account held with OP1 and OP1 alone was competent to honor or dishonor the cheque depending on the financial behavior and account maintained by the issuer Dr. Rajesh Gupta with OP1. The judgment of Hon'ble National Commission relied upon by complainant also has upheld the order of District Forum and Hon'ble SCDRC West Bengal against the bank which had dishonored the cheque for deficiency of service. In this view, it is OP1 alone which had pivotal role to play in clearance / non clearance of the instruments in question but failed to place on record any documentary evidence in support of its own admission of dishonor of cheque ‘once’ in April 2017 on grounds of signature mismatch since the onus was on OP1 to prove its stand of “actual and correct remarks” “Drawer’s Signature Differ”. Therefore, onus of whether the cheque was dishonored once or twice or once by OP2 and second time by OP1 was squarely on OP1 to prove in view of contention raised by it which it failed to discharge.

After having exhaustively dealt with the respective roles of OP1 and OP2, well defined role/culpability of OP1 is made out in the present case for having been responsible for dishonor of the cheque bearing no. 450743 in question. We therefore allow the present complaint partly only against OP1 i.e. State Bank of India for deficiency of service and direct OP1 to pay compensation ofRs. 5,000/- for deficiency in service and Rs. 3,000/- towards the cost of litigation to the complainant. Let the order be complied with by OP1 within 30 days from the date of receipt of copy of this order.

6.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
7.   File be consigned to record room.
8.   Announced on  29.11.2019

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member