SRI NILAKANTHA PANDA, PRESIDENT

             The Complainant has filed this complaint petition, U/s – 12 of erstwhile Consumer Protection Act, 1986, read as U/s-35 of C.P.A.-2019 of the new Act (here-in-after called as the “C.P. Act - 2019”), on dated 29/06/2010, alleging a “deficiency-in-service” by the OP No - 1, where OP No.1 is the Branch Manager, SBI, Fakir Mohan Branch, located at F.M. Collage Road, Balasore. That the OP – 2, is added by the complainant for an endorsement of the deficiency, as outlined by it for the above cause. 

             The detail matrix of the case of the complainant, in short, is that the complainant after completion of his education as mentioned in his complaint petition, has applied for the post of Purser in Cruise Liner in view of the advertisement of Indonautics, a consultation agency. That for the same purpose the complainant had deposited a sum of Rs 75, 000/- (25000+50000), on dated 25/02/2009, in said Company’s Bank Account maintained with DCB Bank. That for some reason or otherwise, the said Company returned the same amount of Rs 75, 000/-, for onward credit to the complainant’s account, vide Cheque No – 130334, dated 11/07/2009, drawn on Development Credit Bank Ltd., Vashi Branch, Navi Mumbai.

             That upon receipt of the said cheque the complainant appropriately deposited the same cheque with OP No – 1, on dated 25/11/2009. Thereafter, the complainant verified his account time and again and found that the cheque amount was not credited to his account after clearing. Lastly, being disappointed, the complainant lodged a complainant before OP No.2 on 03/02/2010. Thereafter on 13/04/2010, OP No.1 returned the above said cheque with a “cheque return memo” to the complainant with a remark of “Stale Cheque”. That it is quite evident that, there has been lapse and inordinate delay on the part of OP No.1-Bank in presenting the cheque to the drawee bank. Thereafter, the complainant received a letter dated 29/04/2010 from the office of the OP No.2 wherein it was opined that due to delay on the part of OP No.1-Bank in presenting the cheque to drawee bank and returned the unpaid cheque to the complainant causing inconvenience to him. Further, OP No.2 directed OP No.1-Bank to pay only interest for the aforesaid period. On 15/05/2010, the complainant served legal notice on OP No.1-Bank to pay the cheque amount with interest within 15 days, but the OP No.1 did not pay any heed to it. It is further stated that the complainant is an unemployed educated boy and is unable to apply for other services due to negligence of OP No.1-Bank for which he sustained a lot of mental stress and financial loss. Therefore, deficiency in service is clearly attributed against the OP No.1-Bank.

             The cause of action arose for filing the case just after 15 days of receipt of legal notice by the OP No.1-Bank, i.e. 17/05/2010. Hence, this case.

             That to substantiate his case, the complainant relied upon the following documents, which are placed in the record-

1. Photocopy of two deposit slips dated 25/02/2009.
2. Photocopy of Cheque bearing No.130334 dated 11.7.09 of Rs.75, 000/-.
3. Photocopy of cheque deposited slip dated 25/11/2009.
4. Photocopy of letter given to OP No.1 dated 21/01/2010.
5. Photocopy of complaint form with postal receipt sent to OP No.2.
6. Photocopy of Cheque and cheque return memo.  
7. Photocopy of letter from OP No.2.
8. Photocopy of legal notice with postal receipt & AD.

             In the present case, notices were issued against the Ops, but the OP No.2 neither appeared nor choose to file written version, for which he was set ex parte. OP No.1 appeared on 10/08/2010 and file written version on dated 12/01/2011, as reflected vide order dated 25/06/2018 and participated in the hearing.      

             In his written version, OP No.1 has stated, inter alia, that admittedly the complainant is an Account holder of their Bank, bearing S.B. A/c No - 20015300248. That on 25/11/2009, the complainant deposited one cheque for necessary clearing into his aforesaid S.B. Account, but the said cheque could not be collected due to some “system error” and therefore the said cheque was detained and finally returned to the complainant on 13/04/2010. Being dissatisfied with this OP, the complainant made a complaint before OP No.2 alleging deficiency in service which was disposed of on 27/04/2010 with a direction to pay “interest only” by this OP No.1, on the cheque amount as per S.B. rate for the period between deposit of the cheque and its return, by way of compensation for cheque holding period only and accordingly this OP has credited Rs.01, 007/- in the account of the complainant and intimated the complainant vide letter dated 19/05/2010. It is further stated that once the complainant received the complainant for the self-same matter, he cannot file this case once again claiming deficiency in service against this OP. Hence, it is prayed to dismiss the case with cost.

             That to substantiate its case, OP No.1 has relied on the following documents, which are placed in the case record.

1. Photocopy of letter dated 27.4.2010 issued by OP No.2 in favour of complainant.
2. Photocopy of letter dated 19.5.2010 issued by OP No.1 in favour of complainant.

             In view of the above averments of parties, the points for determination in this case are as follows:-

(i)         Whether the Complainant is a Consumer or not?

(ii)         Whether the complainant has cause of action to file this case?

(iii)        Whether this consumer case is maintainable?

(iv)        Whether there is any deficiency in service on the part of the OPs?

(v)        Whether the complainant is entitled to get the relief, as sought for?

(vi)        To what other relief(s), the Complainant is entitled to?

F  I  N  D  I  N  G  S

             First of all it is to be ascertained as to whether the complainants are “Consumers” or not. From the averments of the pleadings of both the parties and upon careful scrutiny of the document produced on behalf of the complainant vide above mentioned Annexures, it is clearly admitted and established that the complainant is a bonafied account holder with OP No.1-Bank bearing A/c No.20015300248. The OP No.1 has not also disputed the fact that the complainant is not an account holder under their Bank. Thus, it is held that the complainant is a bonafide customer. Therefore, the complainants are well covered under the previews of definition of “Consumer” as defined under the provisions of the Consumer Protection Act, 2019.        

             To arrive at a definite conclusion, it is to be decided as to whether the complainant has a “cause of action” to file the present case & whether the case is maintainable or not. In this connection, Annexure-1, the deposit slips dated 25/02/2009, shows that the complainant had appropriately deposited cheque value of Rs.75, 000/- in favour of Indonautics. Annexure-2, the cheque bearing No.130334, shows that DCB Limited, Vashi Branch, Navi Mumbai had issued the same in favour of the complainant amounting to Rs.75, 000/- for encashment. Annexure-3 shows that the complainant had deposited the cheque on 25/11/2009 amounting to Rs.75, 000/- to be credited in his account. Annexure-4 shows that the complainant had issued the same to OP No.1-Bank for clearing the cheque amount. Annexure-5 shows that the complainant had lodged complaint before the OP No.2 seeking redress against the OP No.1-Bank. Annexure-6 shows that the OP No.1-Bank returned the cheque in question in favour of the complainant. Annexure-7 shows that OP No.2 dispose of the complaint made by the complainant with a direction that the OP No.1-Bank is to pay the complainant interest on the cheque amount at Savings Bank rate for the period between deposit of the cheque and its return by way of interest-compensation. Annexure-8 is the legal notice dated 15/05/2010. On the other hand, the documents relied upon by the OP No.1-Bank, vide Annexure-B shows that the OP-Bank has complied the order of the OP No.2 in crediting a sum of Rs.1007/- in the account of the complainant towards compensation. Annexure-A is the same to that of Annexure-7. Hence allegedly there from the cause of action considered to be aroused.

             From the above documentary evidence, it is crystal clear that the complainant had deposited one cheque bearing No.130334 amounting to Rs.75, 000/-issued by the Development Credit Bank to be credited in his account bearing No.20015300248 on 25/11/2009 which was not cleared due to some system error, as mentioned by the OP – 1 Bank, for which OP no.1-Bank returned the said cheque long after on 13/04/2010 to the complainant. Being aggrieved, the complainant lodged a complaint before the OP No.2 which was disposed of by the OP No.2 with a direction to the OP No.1-Bank to pay interest on the cheque amount at Savings Bank rate for the period between deposit of the cheque and its return by way of interest-compensation and accordingly, OP No.1-Bank credited the compensation interest of Rs.1007/- in the account of the complainant. On perusal of Annexure-1, it is found that the Hon’ble OMBUDSMAN while disposing the complaint of the complainant have been pleased to observe that though the bank was “deficient” while rendering service to the complainant, he cannot be said to have suffered loss to the extent of amount of cheque which was returned unpaid by the drawee bank being stale. However, considering that there has been lapse and inordinate delay on the part of the bank in presenting the cheque to the drawee bank and returned the unpaid cheque to the complainant, long after its validity period, and causing inconvenience to the complainant. That apart, in his written version, the OP No.1 has admitted that the cheque in question could not be collected due to some “system error” and therefore the said cheque was detained and finally it was returned on 13/04/2010 to the complainant, but the OP No.1 could not made satisfied this Commission about the nature / reason of error that has been faced by the bank and whether it was any technical or manual. For the sake of argument, it is to be agreed that some error has been occurred for clearing the cheque in question, but it is not the reason to retain the cheque with them for an indefinite period i.e. from 25/11/2009 to 13/04/2010. The Bank should have taken note of the fact that the cheque in question was issued on 11/07/2009 and it was produced before them on 25/11/2009. The Bank had sufficient knowledge about the period of validity of the cheque. The OP No.1-Bank has not taken any coercive measures in returning the cheque in question to the complainant before “expiry of its validity period”, but choose to retain the same with them and intentionally waited till the validity period of cheque is over, for the reason best known to them. Further, in case of any error faced by the OP No.1-Bank in clearing the cheque amount, then it should have been intimated to the complainant forthwith either to wait or to return the cheque. But without any opinion or consent of the complainant, OP No. 1-Bank retained the cheque with them is otherwise held to be deficient. For the above overt act of the OP No.1-Bank, suffering of financial loss and mental agony by the complainant cannot be ruled out. Hence it is determined that the present case filled is within the permitted scope of the CP Act, hence it is maintainable under this Act, for non-clearing of the submitted cheque.

             The OP No.1-Bank has claimed that the order passed by the Hon’ble OMBUDSMAN has already been complied by them in crediting the interest of Rs.01, 007/- in the account of the complainant. Hence thereafter the OP No 1, cannot be held “deficient” any more. That for the same cause of action, this case does not have any locus standee for claiming further compensation before this Commission on the basis of deficiency, as alleged by the complainant and the same be rejected with cost.

             That, carrying out the order of the Hon’ble OMBUDSMAN cannot by itself oust the jurisdiction of this Commission. That considering the Pronouncements in the cases of; “Trans Mediterranean Airways VS Universal Exports (2011) 10SSC 316”, “Secretary Thirumurugan Coop Agricultural Society VS M. Lalitha 2003 AIR SCW 6873 = (2004) 2 SCC 305 = AIR”, “Sat pal Mohindra VS Surinder Timber Store (1999) 5 SCC 696” and last but not least, “DCCM, Eastern Railways VS Dr. K. K. Sharma III (2000) CPJ 1 (NCDRC); Hon’ble Supreme Court & Hon’ble NCDRC, have held that, even if there is a remedy available in other statute Commission can grant relief as the claim is different and this commission can grant additional remedy to a consumer, as because this commission can supplement to any remedy given under any other statutes. That as per Sec-100 of CP Act, the provisions of this Act are in addition and not derogation of any Law.

             That to arrive at conclusion, weather, there is any deficiency on the part of the OP & relief as may be entitled to the complainant, the following points, as stated by both the complainants, are to be addressed collectively in pursuance to the documentary evidence as submitted. They are as under:-

             That the Section 2 (42) C.P.A.-19, deals with the definition of “Service” which means “Service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, telecom, boarding or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service”. That in this context the Op is a Banking Concern as a service provider and the Complainant is a service recipient of it.

             Similarly, Section 2 (11) C.P.A.-19 deals with definition of “deficiency” which means “any fault, imperfection or shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to performed by a person in pursuance of a contract or otherwise in relation to any service”.

             In the present case, it is to examine, along with above parameter, as to whether any fault, imperfection, shortcoming or inadequacy in the performance of service by the OP-Bank which otherwise tantamount to deficiency of service within the meaning of Rule 2(g) of The Consumer Protection (CDRC) Rules, 2020. Hence this case is comfortable maintainable under provisions of C.P.Act.

             Having regards to our finding reflected above, the Complaint petition is allowed and the appearing & “ex-parte” O.Ps are hereby set liable.

             So, now upon careful consideration of all the materials available in the case record vis-a-vis submission made by complainant, this Commission is of the unanimous opinion that the O.Ps have not adjudicated the dispute properly before the Commission. That from the above analysis made in the foregoing paragraphs and the ratio decided by the Hon’ble Supreme Court & NCDRC, it is held that the Ops are guilty in “deficiency in service”. There is no solution arrived by the appearing & ex-parte O.P for the loss sustained / suffered by the Complainant incurring out of deficiency on the part of O.Ps, which legally termed as deficiency-in-service by the O.Ps. Therefore, the complainant reserves the right to be entitled to get the relief as sought for.

             Further, it is seen from the complaint that the complainant has not prayed any compensation as against the OP No.2 and thus, the case against OP No.2 is liable to be dismissed. Therefore, the OP No.1-Bank is liable for the compensation as claimed by the complainant. Therefore, it is held that the complainant has cause of action to file the present case and the case is maintainable. Consequently, the complainant is entitled to the compensation, as claimed for.

             Hence, it is ordered –

O   R   D   E   R

             Having regard to the judgement reflected above, the complaint petition of the instant Complainant bears merit and hence allowed on contest against the OP No.1 and dismissed against the OP No.2. That this Commission is of the unanimous opinion that there is a gross deficiency on the part of the O.P-1. Hence, the O.P-1 is hereby set liable, for its gross deficiency of services. Hence, the O.P-1, is hereby directed to:-

1. To pay the cheque sum of Rs 75, 000/- (Rupees Seventy Five Thousand) only to the complainant.
2. To pay interest @ 9% p.a. upon Rs 75, 000/-, from 25/11/2009 till its payment, minus the interest already paid by them, by caring out the order of OP No -2 .
3. To pay to the complainant a sum of Rs. 20, 000/- (Rupees Twenty thousand) only, for mental agony & litigation expenses.
4. That, delay in compliance of this order, for both the O.P-1, shall carry fine of Rs.500/- (Rupees Five hundred) only, per day, payable by the defaulter O.P-1 to the complainant.

             All the aforesaid amounts will be paid by the O.P-1 to the complainant within 45 days from the date of receipt of this order.

             That deferment in any manner / mode / reason / step for compliance of this order, the O.P -1, shall carry an additional fine of Rs.250/- (Rupees Two hundred Fifty) only, per day and an additional interest of @ 12.00% P.M., upon Order No. 1, payable by the defaulter O.P to the complainant.

             In case of failure by the O.P-1 to comply any of the orders as above mentioned, within the aforesaid stipulated time frame, the Complainant is at liberty to realize the same in the shape of cash, kind and / or in any other mode as afore mentioned, from the O.P-1 as per the prevailing law.

             Pronounced in the open Court of this Commission on this day i.e. the 14th day of May, 2024 given under my signature & seal of the Commission.