The complainant Nand Kumar Singh has filed this case against the Bank of Baroda Paharpur, Branch and one another (o.p) for payment of Rs. 2 lacs /- with interest, Rs. 2 lacs as compensation for mental agony , pecuniary loss and harassment and Rs.10,000/- with interest as litigation cost.
The, brief, facts of the case is that complainant had a Saving account in Branch, of Bank of Baroada, Paharpur Branch bearing account no.19050100005628. The further case is that on 27-12-2014, the complainant went in the branch of o.p no.1 to update his passbook and after updating the same, he became surprise regarding transaction dated 20-08-2014, through which a sum of Rs. 2 lacs was debited from his account and the pass book particular columns showed “Central Bank of India, Maripur.” The further case is that the complainant never approached/instructed o.p no.1 regarding transaction, dated 20-08-2014 nor any negotiable instrument was used by the complainant for above mentioned transaction. The further case is that when the complainant approached the o.p no.1 regarding the above mentioned transaction o.p no.1 verbally ensured the complainant and gave assurance of recovery of money debited through above mentioned transaction within a month but there is no result till filing of the complaint . Further case is that the complainant served legal notice to the o.p no.1 through registered post dated 12-03-2015 and he received rejoinder, of the same through lawyer on 02-05-2015. Further case is that from the rejoinder, it is clear that o.p no.1 is incollusion with o.p no.2 and under conspiracy he debited money on 20-08-2014.
The complainant has filed the following documents with the complaint petition - photocopy of legal notice annexure-1-, photocopy of reply of legal notice annexure-2-, photocopy of statement of account annexure-3.
On issuance of summon, o.p. no. 1 appeared and filed his w.s. on 01-07-2015 and filed his ws. On 11-09-2015 with prayer to settle the case sympathetically in the interest of justice. It has been mentioned in the w.s. that the complainant issued a cheque bearning no.- 034340 dated 03-05-2012 for Rs. 2 lacs drawn by CBI Maripur Branch, district Muzaffarpur (o.p No.-2) in Saving account No.- 19050100005628 of bank of Baroda District Muzaffarpur. It has been further mentioned that the instrument no.-034340 dated 03-05-2012 was deposited for clearance to the clearing house under the CBI Main Branch and amount of Rs. 2 lacs were credited on 11-05-2012. The o.p has annexed the photocopy and transaction enquiry as annexure-I. It has been further mentioned that o.p no.2 allowed and credited the amount in the account of complainant and kept relating cheque. It has been further mentioned that the o.p no.2 informed the o.p no.2 to hold (lien mark on amount) for the above account of the complainant. It has further mentioned that on 19-12-2015 o.p no.2 issued official letter no. MARIP-2013-2014/297 requesting to the o.p no.1 that inadvertently credit was given and there were some irregularities in the cheque. He asked to hold Rs. 2 lacs in the account of the complainant and refund the amount to o.p no.2. The o.p no.2 has annexed the photocopy of letter dated 19-10-2013 as annexure-II. It has been further mentioned that o.p no.1 requested to o.p no.2 to send at least Xerox copy of the cheque. O.p no.2 again confirmed the same through letter No.-MARIP-2013-2014 to 300 dated 21-10-2013. The aforesaid letter has been annexed and marked annexure-III. It has been further mentioned that the o.p no.2 vide letter no. BR/31/2014-15/449 dated 19-08-2014 requested to refund of lien markhold amount of Rs. 2 lacs in the account of complainant. This letter has been marked as annexure-IV. It has been further mentioned that being banker and banking relationship, o.p no.1 sent the amount to the o.p no.2 through D.D. No.176402 favouring Central Bank of India by account on 20-08-2014. It has been further mentioned that o.p no.2 has retained the cheque original no.-034340 dated 03-05-2012 Rs. 2 lacs account of the complainant. It has been further mentioned that o.p no.1 contacted to the o.p no.2 and requested him to either return original cheque on refund the amount of Rs. 2 lacs. He has annexed photocopy of letter dated 23-06-2015 as annexure-V. It has been further mentioned that he orally and in writing through his advocate informed all the factual substance to the complainant. He has annexed the photocopy of letter dated 18-04-2015 as annexure-VI. It has been further mentioned that o.p no.2 returned the long awaited retained cheque of Rs. 2 lacs but no any memo of return. The same has been marked as annexure-VII. It has been further mentioned that o.p no.1 again requested to the o.p no.2 to send the cheque return memo, so that he may be unable say about that to say about that. He has annexed photocopy of letter dated 09-08-2015 as annexure-VIII. It has been further mentioned that there is no deficiency on his part.
O.p no.2 also appeared and filed his w.s. on 11-09-2015 with prayer to dismiss the complaint petition of the complainant. It has been mentioned in the w.s. that complainant has not produced the real facts, so the complaint petition is not maintainable in the eye of law and he has no cause of action to file the complaint. It has been further mentioned that the commercial friend of complainant Sri Ramvilash Sharma had a Saving account no.-1636076888 new, old account no.-22 in the Central Bank of India branch Maripur. It has been further mentioned that he issued cheque bearing no.-034340 of Rs. 2 lacs on 03-05-2012 to the complainant to deposite the same in his saving account no.-19050100005628 in the Bank of Baroda Branch Paharpur Muzaffarpur. The cheque was sent to Central Bank of India main Branch for clearance and the same was defective, so it was cleared with objection and the amount was credited in the account of complainant. It has been further mentioned that Ramvilash Sharma informed to the Bank that cheque is defective, so he requested to return the cheque by stopping its withdrawal. After enquiry, o.p found the same defective and he issued a letter to bank of Baroda Branch Paharpur to return Rs. 2 lacs to him because the cheque is defective. It has been further mentioned that after sending many letters, Bank of Baroda send the amount through D.D. No.-176402 dated 29-08-2014 which was credited in the account of person who issued the cheque and he withdrawn the amount. It has been further mentioned that the aforesaid cheque was returned to the bank of Baroda vide letter dated 23-06-2015.
Admitted fact - From the w.s. of both the parties these facts are admitted 1 issuance of cheque no.-034340 for Rs. 2 lacs in the name of complainant.
- Deposition of cheque in the account of complainant in bank of Bank of Baroda. 3 sending of cheque for clearance in the main branch of CBI (4) holding of Rs. 2 lacs in the account of complainant on the request of the o.p no.2 fact (5). It is also admitted fact that the amount was credited in the account of complainant in bank of Baroda return of amount through draft by the o.p no.1 to o.p no.2 .
The main question for determination is as to whetherthere is any deficiency on the part of o.ps.
It is an admitted fact that a cheque of Rs. 2 lcs was issued in the name of complainant and he deposited the same in BOB (o.p no.1). It is also an admitted fact that after clearance of amount of credited in the account of complainant by the o.p no.1.
O.P no.2 has raised in his w.s. that the cheque was defective and accordingly CBI Maripur requested to Bank of Baroda to the return the cheque amount of Rs.2 Lacs. O.p no.2 has also admitted this fact that on the request letter of BOB dated 23-06-2015, the cheque in question bearing no-034340 dated 03-05-2012 was sent to the Bank of Baroda. It is an also admitted fact that the cheque amount was sent to the CBI Maripur (o.p no.2) on his request by bank of Baroda ( o.p no.1). It was duty of the o.p no.2 to prove this fact that the cheque was defective and he has to inform to complainant but neither o.p no.1 nor o.p no.2 did so. No evidence has been adduced on behalf of o.p no.2 on the point that Ram Vilash Sharma, who issued the cheque, informed him about defective of the cheque. No evidence has also been adduced on behalf of o.p no.2 that the cheque was defective. The question arises as to when the cheque was defective, how it was cleared and credited in the account of complainant. From the above facts and circumstances, it is a clear that there is deficiency in service on part of o.p. no.2 in respect of issuing direction to o.p no.1 to hold cheque amount and to transmit to o.p no.2 and as such he is liable to pay the amount of cheque Rs.2 lacs to the complainant.
As regards physical and mental harassment, it is clear that the cheque was returned to o.p no.1 but o.p no.1 has not transmitted or handedover the same to the complainant and both o.p no.1 and 2 didn’t returned the cheuqe or credited the cheque amount in the account of complainant after holding the cheque amount and as such they forced the complainant to go in physical, and mental harassment to file the complainant.
In the circumstances, the complaint petition is allowed with direction to o.p no.2 to pay Rs. 2 lacs in the account of complainant with simple interest from the date of credition of amount in account of the complainant. O.P. no.1 and 2 are directed to pay Rs.20,000/- as mental and physical harassment and Rs. 10,000/- as litigation cost in the equal proportion within 2 month from the receipt of the copy of the order, on failure they shall be responsible for payment of aforesaid amount with 9 % interest p.a. till realization. Let a copy of this order be furnished to both the parties free of cost.
