For the Complainant:- Sri N.R.Mishra and associates, Advocate, Bhawanipatna
For the O.Ps : - Sri S.K.Agrawal, Advocate, Bhawanipatna.
ORDER.
The complainant filed petition U/S-12 of the C.P. Act along with Interim petition U/S-13-3-B of the C.P.Act before the forum alleging deficiency in service against the afore said O.P for non regularization of the current account 35193513422. In both the petition the complainant prayed relief of the petition are same. Hence notice was issued to the O.P. before passing the any interim order exparte. The O.P. appeared and filed Written version. The case was heard on merit.
. The brief facts of the case is briefly summarised hereunder.
1. That the complainant is one of the account holder of the O.P. since Dt.31.8.2015 who has opened one current account in the name of Shastriji Mahila Vidya Niketan, Kalayan Trust, Bhawanipatna vide account No. 35193613422 and the account was opened as the chairperson of the institution on the strength of the resolution passed by their trustee vide Resolution No.17 Dt. 12.8.2015 who have authorized to open the current account. During the time opening of the account the O.P. had verified all the documents submitted by the petitioner along with the opening form duly signed by the Namita Sahu, Chairperson of the institution along with Kalyani Trust deed. After through verifying all the documents submitted by the complainant and had allowed to open the account in the name of the Shatriji Mahila Vidya Niketan (Kalyani trust). The complainant had deposited an amount of Rs.50,000/- and the O.P. has also issued the cheque book in the name of Shastriji Mahila Vidya Niketan (Kalyani Trust) and the account has been opened as single signatory of the account who can only person to operate the account, so after opening the account the complainant has issued the cheques from to time in the name of the different persons in different occasions and all the cheques had been honoured and in all the cheques being the chairperson of the institution had put her signature by that time no body had raised any objection to that effect. Prior to started the Kalyani Trust the Shastriji Mahila Vidya niketan was functioning under the management of the Ma Gayatri Educational trust Chakradhar Nagar for the period from Dt.13.7.2012 to 17.9.2013. During that period for the management of institution two Nos. of accounts has been opened i.e. one current account bearing No. 32435759137 was operated by its President and Secretary of the institution jointly and the saving account vide No. 32785194629 in the name of Shastriji Mahila Vidya Niketan which was operated by its chairperson and Principal of the said institution jointly. But for the smooth running of the institution the trustee of the Maa Gayatri Educational Trust has voluntarily handed over the management of the Shastriji Mahila Vidya Niketan to Kalayani Trust as per the resolution No.5, proposal No.8 Dt. 16.9.2013. k More over the complainant was also one of the Trustee member of that Maa Gayatri educational trust as Vice Chairman. During the running of the joint account vide NO 32435759137 of Shastriji Mahila Vidya Niketan the account was operated by the complainant and the Secretary Niharika Purohit till the year 2013, but after resolution the complainant has informed to the Bank by submitting the resolution copy for changing the mode of operation which has been decided as per resolution vide No. 17 Dt.12.8.2015 by forwarding letter No. 337 Dt. 31.8.2015 that the complainant will operate the account in single hand and also correspondence regarding account in favour of Shastriji Mahila Vidya Niketan will be carried out by Kalyani Trust, and subsequently on the strength of that resolution of the Kalyani Trust through the complainant has opened a new current account vide No. 35193513422 instead of previous current account No. 32435759137. On Dt. 1.9.2016 the complainant had issued two Nos. of cheques bearing No. 879157 in favour of Maa General store, Junagarh for an amount of Rs.1,00,000/- and another cheque vide No. 879143 in favour of one Manoj Kumar Panda for an amount of Rs.50,000/- from the current account No.35193513422 but surprisingly both the cheques were dishonoured by the O.P. with a reason shown there that “Due to drawer signatures in complete by violating the bank guidelines and with a malafide intention for which the complainant was shocked. More over when the complainant came to know this fact immediately rushed to the branch on Dt. 3.9.2016 and given one written application to the O.P. and the O.P. in reply to the application has given reply on Dt.7.9.2016 by showing unsatisfactory reason, and subsequently did not taking any action for which the complainant is sustaining mental agony. Due to stop payment the complainant had given written complaint to the O.P. with copy submitted to the Regional Manager, Bhawanipatna as well as Banking Ombudsman for Odisha vide Lr. No. 577 Dt.12.9.2016 bearing Memo No. 578 & 579 Dt. 12.9.2016 for quick justice about the illegality of O.P. for blocking encashment of cheques without any rhymes and reasons and the complain has been lodged before the Banking Ombudsman for Odisha vide acknowledgement No. 1339 Dt. 23.9.2016. The complainant has received one letter from the Banking Ombudsman Odisha, Bhubaneswar vide letter No. 2019 Dt. 7.11.2016 where the Banking Ombudsman has replied in the same wording like that of to Branch Manager, S.B.I. College Square Branch, Bhawanipatna vide letter No. 8 Dt. 4.11.2016 which is no way connected to this seized account rather the account which was opened during the course of management by Maa Gayatri Educational Trust and this seized account has been opened after the resolution made on Dt. 12.8.2015 vide resolution No. 17 where the Trust has authorized to the complainant Smt. Namita Sahu the chairperson of the Shastriji Mahila Vidya Niketan (Kalyani trust) so both of them are completely different to each other. But without verifying the documents haphazardly the banking ombudsman had believed the reply of the O.P. (Bank) and given liberty to approach any other grievance redressal forum in accordance with law . So the complainant approached this hon’ble forum for proper justice. The complainant also filed interim petition U/S- 13-3-B of the C.P. act for early regularization the current account of the complainant. The complainant prays the forum to direct the O.P. to regularize the account and also pay the compensation amount a sum of Rs. 2,50,000/- and such other relief as the hon’ble forum deems fit and proper for the best interest of justice.
On being noticed the O.P. filed written version through their learned counsel and submitted that on Dt.23.1.2013 the complainant presented a letter in the capacity of chairperson of Shastriji Mahila Vidya Niketan addressed to O.P. stating there in that they want to open a joint Saving bank account and a current account under the name and style Shastriji Mahila Vidya Niketan and Principal Shastriji Mahila Vidya Niketan, Chakrdhanagar,Bhawanipatna and submitted all the relevant documents such as Resolution, copy of the Maa Gayatri Educational Trust, permission letter of Educatin Deptt. and all KYC documents to which the O.P. agreed and opened a joint saving bank account bearing No.32758194629 and a current account bearing No. 32435759137 and both the account to be operated on the joint signature of both the parties i.e. the Chairperson and the Principal of the institution. Subsequently vide letter No.133 Dt. 2.11.2013 Chairperson Namita Sahu requested the bank to change the mode of operation of both the account such as the current account will be operated only the Chairperson and the Saving bank account will be operated on either or basis meaning thereby any one of the signatory can operate the saving bank account to which the bank accepted the same as the said letter is accompanied by the resolution of Maa Gayatri Educational Trust. Again vide letter No.250 Dt. 21.1.2015 requested the O.P. to carry out the instruction as regard the mode of operation of both account as per the resolution letter No.133 Dt. 2.11.2013 and till this everything goes smoothy. The complainant vide letter No.373 Dt.31.8.2015 requested the O.P. to open a Current account with cheque facility in the name of Shastriji Mahila Vidya Niaketan, Bhawanipatna and enclosed there with the application form, resolution copy and documents of authorized person and as the complainant is bonafied customer of the bank since 2013 having a customer ID No.86386203252 opened a account bearing No.35193513422 with cheque book facility and the account was operated only by the chairperson. On receipt of letter No. 8 Dt. 23.8.2016 of Secretary Maa Gayatri Educational Trust, addressed to the O.P. requesting him to change the mode of operation of current account No. 35193513422 from single operation to joint operation. On receipt of the letter the O.P. enquire in to the matter and came to know that by misrepresenting the facts and document she managed to got the account opened on the resolution passed by the Kalyani Trust to whom the bank does not known as the chairperson has not submitted any document of Kalyani Trust in the branch and for this in order to safe guard the interest of the parties bank stop all the payment from the account. When the O.P. stop the payment from the account the complainant vide Letter No.575 Dt.3.9.2016 requested the bank to let her know about the reason for which the payments were stopped. On receipt of the letter immediately on Dt.7.9.2016 the O.P. has sent reply to the Chairperson, Shastriji Mahila Vidyaniketan. The complainant was not satisfied with the reason assigned by the bank she again wrote a letter on Dt.12.9.2016 vide Letter No. 577 addressing the same to the O.P. and copies of the same has also communicated to the Banking Ombudsman, Bhubaneswar. Banking Ombudsman issued notice to the O.P.(Bank) and after receipt of the notice the O.P. put forth his case before the Banking Ombudsman and after hearing the matter turned down the complaint. After being unsuccessful in the ombudsman the complainant has approached this hon’ble forum and hence this case. The O.P. submits that the account was not opened in the name of Shastriji Mahila Vidyaniketan (Kalyani trust) as there was no request to that effect to the bank letter head in which request for opening the account was made was of Shastriji Mahila Vidyaniketan and in the said letter no where it is mentioned that they have enclosed the copy of the Trust deed of the Kalyani Trust. The complainant has also not discussed with bank as regard the new entity. Only as because the complainant is well known to the bank being the Vice-Chairman of Maa Gayatri Educational Trust and Chairperson of Shastriji Mahila Vidyaniketan and one of the signatory in the resolution made by the Maa Gayatri Educational Trust to open the account in the year 2013. Since from 2013 to till 31.8.2015 she has not informed the bank that she has formed a new Trust under the name and style Kalyani Trust wherein she was the Chairperson. The bank keeping the good relationship and believing her opened the account. Further more it is well within here knowledge that she being the Chairperson of Shastriji Mahila Vidyaniketan has a Current account in the bank and she being the only signatory operating the same and in that case when she wants to open a new account in the name of the same institution being managed by another Trustee in that case she should have come up with a clean hand and should have produced the copy of resolution of Maa Gayatri Educational Trust handing over the the management to Kalyani Trust and the letter of permission of taking over the management of the institution by the Kalyani Trust granted by the Regional Directo4r of Education, Sambalpur. The complainant knowing very well she concealed everything and with malafied intention managed to open a account. It will not be out of place to mention about an example which goes like this “if a wrong admitted once to be right and subsequently it was noticed that the same was wrong then in that case the same will be treated as wrong” as because a wrong is always wrong and it can not take the place of right. The complainant has not filed any documents either before the bank or before this forum as regard handing over the management of the Shastriji Mahila Vidyaniketan by the Maa Gayatri Educational Trust to Kalyani Trust as alleged in para-4 of the petition. The complainant has not intimated to the bank as regard the communication of Shastriji Mahila Vidyaniketan will be taken up by Kalayani trust. For argument shake if at all there was handing over the management by Maa Gayatri to Kayani Trust and all correspondences of old trust to be made in the name of the new trust in that case there will be need of opening of any new account. All this thing goes to show that the complainant has not come up with a clean hand and just to put the bank in to trouble she has surreptitiously opened this account. It is well established that he who seeks equity must come up with a clean hand but in this case all this thing goes to show that the complainant by concealing the facts has opened the account as such she is not entitled any relief as prayed for. If the dispute between Maa Gayatri Educational trust and Kalyani trust is resolved the bank is ready to make the payment. The O.P. prays the forum to dismiss the complaint petition against O.P. for the best interest of justice.
The O.Ps appeared and filed their written version. Arguments from the learned counsel for the complainant and O.Ps heard. Perused the record, documents, filed by the parties.
Both parties vehemently advanced arguments touching the points both on the facts as well as on law.
FINDINGS.
From hearing both the parties and going to the documents the material points for consideration is whether the O.P. is entitled to stop payment of the cheque issued by the complainant without giving any earlier notice for the reason of the same. It is admitted from both the parties and as per the account opening form this disputed account was opened in the name Shastriji Mahila Vidyaniketan (Kalyani Trust) and to be operated single handed by the complainant having cheque facility. This account was opened by the O.P. after going through the document and cheque was issued mentioning as Kalyani Trust. The account holder had operated this account for about one year without any objection by the bank. The bank is no way connected what ever disputed exist between Gayatri Trust and Kalyani Trust on whose name previous account opened and still existence. It is wrong on the part of the to suo motto mentioning I.D. No. of previous current account in the present dispute alleged account.
From the record it is cleared that the account has been closed with out giving any prior notice to the complainant and if any genuine complaint made by the 3rd. party the complainant should gave an opportunity to explain the correctness of the complain.
We find that this account opened under auspicious of Kalyani Trust is separate from the previous account and the complainant has every right to operate the same through cheques. The bank is not the authority to resolve any dispute if exists between the 2 (two) trust. So stoping the payment of cheque issued by the complainant without giving any previous notice is illegal and violation of natural justice.
In the above facts, circumstances & on perusal of the record, the complaint petition, documents, there exists a strong “prima-facie” case in favor of the complainant.
Hence to meet the ends of justice, the following order is passed. ORDER.
4. In the result with these observations, findings, discussion the complaint petition is allowed in part on contest against the O.P..
The O.P is ordered to allow complainant operation of the Current Account No. 35193513422 . The O.P is further directed to pay cost Rs.2,000/- to the complainant.
The O.P is ordered to comply the above direction within one month from the date of receipt of this order failing which the complainant is at liberty to take further proceedings U/S- 25 & 27 of the C.P. Act. Service the copies of the order to the parties.
Dictated and corrected by me
Pronounced on this 30th. Day of December, 2016.
Member. Member.
Documents relied upon:-
By the Complainant:-
1.Original cheque No.879143 Dt, 1.9.2016 and No.879157 Dt.31.8.2016. along with return memo of the bank.
2.Xerox copies of the resolution Dt. 16.9.2013 Maa Gayatri Educational institute.
3.Original Letter No. 1339 Dt. 23.92016 of Banking Ombudsman addressed to the complainant.
4.Original Letter Dt.7.9.016 of the bank addressed to the complainant.
5.Original Letter Dt.3.9.2016 of the complainant addressed to the O.P.
6.Original Letter Dt 12.9.2016 of the complainant addressed to the O.P.
7.Letter Dt.19.10.2016 of the complainant addressed to the Banking Ombudsman,BBSR.
8.Letter Dt.7.11.2016 of the Banking Ombudsman addressed to the complainant.
By the O.Ps:-
- Photo copies of Letter dt.23.1.12013 of the complainant addressed to the O.P.
- Xerox copies of the Lr. No.3698 Dt.13.7.2012 of Regional Director of Education,Sambalpur.
- Resolution No. 19 dt. 22.8.2016 of Chairman, Maa Gayatri Educational trust,B.Patna
- Letter Dt. 2.11.2013 of the complainant addressed to the O.P. bank.
- Resolution No.15 Dt. 16.9.2013 of Maa Gayatri Educational trust.
- Letter Dt.31.8.2015 of the complainant addressed to the O.P. bank.
- Resolution No. 12 Dt. 12,8.2015 of Klayani trust.
- Resolution No.14 Dt. 10.4.2013 of Kalyani trust.
- Letter No. 3699 Dt.13.7.2012 of the Regional director of education, Sambalpur.
- Pan card, Voter I.D. of the complainant.
- Electrical bill in the name of the complainant.
- Letter No. 4612 dt 23.12.2014 of the Regional Director of education, Sambalpur.
- Bank opening form in favour of the complainant.Dt..31.8.2015
- Letter No. 8 Dt.23.8.2016 of Maa Gayatri Educational trust addressed to the O.P.
- Resolution No. 19 Dt.22.8.2016 Maa Gayatri Educational trust.
- Letter No. 575 Dt.3.9.2016 of the complainant addressed to the O.P.
- Letter dt 7.9.2016 of the O.P. addressed to the complainant.
.
Member.
