Sri Shyamal Gupta, Member
By filing this complaint case u/s 12 of the Consumer Protection Act, 1986, Complainant, Mr. Tarun Kanti Choudhury, Proprietor of M/s Choudhury Construction has prayed for relief, viz., (a) an amount of Rs. 10,00,000/- for the sufferings endured by him (b) litigation cost amounting to Rs. 6,00,000/-, (c) Rs. 4,50,000/- towards mental agony and ill-treatment meted out to him.
In short, case of the Complainant is that on 03-04-1996, he deposited one Bank draft bearing no. 725017 dated 03-04-1996 for a sum of Rs. 4,76,109/- and another cheque bearing no. 400926 dated 03-04-1996 for a sum of Rs. 1,03,787/- at the OP Bank. However, proceeds thereof since been not credited to his bank account even after a long period of time, he wrote a letter to the OP on 25-10-1997. In reply, he was informed by the OP that the proceeds of the said two instruments were kept in a Fixed Deposit to which he raised strong objection. Subsequently, on 20-06-1998, the Branch Manager of the OP Bank sent a letter to the Complainant stating that he had credited the proceeds of the said two instruments to the account of the Complainant. The Branch Manager concerned also issued a certificate dated 31-03-1998 stating that they paid Rs. 1,16,110/- as interest for the period from 06-04-1996 to 04-11-1997 against the FD Certificate. However, the Complainant was surprised to receive a notice dated 05-06-2000 from the Ld. Advocate of one M/s Kanta International contending inter alia that it had granted accommodation loan in favour of the Complainant on 04-11-1997 for a sum of Rs. 6,96,006/- on the condition that Complainant would return the amount within 3 months from the date of issuance of the cheque or receipt of the money and in default, Complainant would be liable to pay interest @ 18% p.a. over the said amount. The Complainant categorically denied receiving any money from the said firm and shot back by issuing a letter through his Ld. Advocate on 19-06-2000. Subsequently, the Complainant received notice of money suit in this regard. After hearing both sides, the Ld. Civil Judge was pleased to pass a decree against the Complainant. During pendency of the said suit, the Complainant came to know that the then Manager of the OP Bank was involved in defalcation of money and in this regard, Complainant was served a summon of witness by the CBI. Holding the OP wholly responsible for all his sufferings and money loss, the complaint case was filed.
On notice, the OP contested the case by filing WV. The OP contended that the instant complaint case is bad for non-jointer of parties. According to the OP, the present complaint is also barred by limitation. It is further submitted by the OP that an Appeal is pending before the Hon’ble High Court at Calcutta over the self-same cause of action. Accordingly, this Commission cannot adjudicate the present case.
Points for consideration
- Whether the complaint case is maintainable in its present form and prayer?
- Whether there is any deficiency in service or not?
- Whether the Complainant is entitled to any relief, as prayed for?
Decision with reasons
Be it mentioned here that both sides filed their respective Affidavit-in-Chief and were cross-examined by means of questionnaire which was duly replied to by them
Point No. 1:
It is argued by the Ld. Advocate for the OP that since the Hon’ble Court, Calcutta is already seized of the matter, the complaint case is not maintainable here.
Ld. Advocate appearing on behalf of the Complainant, however, brushed aside such contention stating that undisputedly, the then Manager of the OP Bank was involved in fraudulent acts of misappropriation of money. Since on account of such misdeed of the concerned officer of the OP, he had to endure such harassment, the bank cannot avoid its liability.
On thoughtful consideration of the rival contentions of the parties and the materials on record, it appears to us that the pendency of subject Appeal has got no bearing in this case. This is because, in this case, we are to decide whether there was any lacuna on the part of the OP Bank in rendering proper service in the matter of crediting the proceeds of subject Bank draft and Cheque; whereas the bone of contention of the subject Appeal revolves over the fact as to whether or not M/s Kanta International accorded any loan worth Rs. 6,96,006/- in favour of the Complainant or not.
As it appears, if the Hon’ble Court rejects the Complainant’s Appeal, he would have to pay the decretal sum and if the Complainants succeeds in his endeavour, he would not have to pay any amount to M/s Kanta International.
Since in this case, we would only concentrate on the role played by the OP bank in processing the subject Bank draft and Cheque that the Complainant deposited at the OP Bank on 03-04-1996, it has got no bearing on the outcome of the pending Appeal before the Hon’ble Court.
In the same vein, in our considered opinion, the present complaint does not suffer from non-joinder of parties, so alleged by the OP.
On the point of limitation, it is true that the cause of action primarily arose on 03-04-1996, when the subject Bank draft and Cheque was deposited at the OP Bank. However, since the OP Bank subsequently by issuing letter on 20-06-1998 confirmed due credit of the proceeds of said two instruments, the cause of action continued till date. Thereafter, M/s Kanta International filed a money suit before the Ld. Civil Court, Alipore, Kolkata disputing the said credit and claiming the same to be that of their money against which a decree was passed in the year 2012. Thereafter, the Complainant moved an Appeal before the Hon’ble High Court, challenging the decree passed by the Ld. Civil Court which is still pending. It is clear from the above sequence of events that the cause of action regarding the two negotiable instruments that commenced in the year 1996 is still continuing. In view of this, we are of considered opinion that the instant complaint case is not barred by limitation.
Point No. 2:
The OP has admitted the fact that the Complainant indeed deposited one Bank draft for a sum of Rs. 4,76,109/- and another cheque for an amount of Rs. 1,03,787/- and going by the said letter, proceeds of the same were cleared on 06-04-1996. However, we do not come across any documentary proof from the side of the OP that due proceeds of the said two instruments were credited to the account of the Complainant on 06-04-1996. Thus, gross deficiency in service on the part of the OP is palpable beyond all reasonable doubt.
On the other hand, according to Certificate issued by the OP on 31-03-1998, the bank paid interest worth Rs. 1,16,110/- on the fixed deposits of the Complainant for the period from 06-04-1996 to 04-11-1997 over the sum of Rs. 5,79,896/-. However, no cogent documentary proof, viz., application form, is furnished from the side of the OP to show that the Complainant ever applied for making any FD of such amount. Therefore, question survives; on what basis the said FD was issued in the name of Complainant. Making a FD without the consent of the customer is a clear act of gross deficiency in service of the bank.
Failure of the OP to ensure timely credit of the proceeds of two instruments that the Complainant deposited with the OP on 03-04-1996 is a clear instance of gross deficiency in service on the part of the OP.
Point No. 3:
In view of our above findings, we are inclined to hold the OP liable to pay compensation and litigation cost to the Complainant.
Hence,
O R D E R E D
The case stands allowed on contest against the OP in part with cost Rs. 25,000/-. OP shall pay, within 40 days hence, a sum of Rs. 1,00,000/- to the Complainant as compensation, i.d., simple interest @ 9% p.a. over the sum of Rs. 1,00,000/- shall accrue w.e.f. 30-07-2013 till full and final payment is made.
