The complainants’ case in brief is that complainant no.2 is a registered society, and
Contd……P/2
-:2:-
complainant no.1 has a current account with OP No.1 for a long time. The complainants claim that the OP No.1 has been designated as CBS Branch since 02.03.2008, and it had received new cheque books for S/B and Current account mentioning “AT Par” cheques on 24.11.2009. The OP No.1 started distributing the new cheque books to its customers from 28.03.2010, but earlier all the CBS branches used to mark “Payable At Par” in all SB, CA & CD cheque books by affixing rubber stamp. In the months of March, and August, 2009, the complainant/s approached OP No.1 for obtaining “At Par” cheque book, but the Branch Manager held out that such “At Par” cheque books for current account had not yet reached Alipurduar, and he informed the complainant/s that old cheque leaves would work if new 10 digit account no. was mentioned therein, instead of the old one. The Branch Manager informed the complainant/s that there was no system for affixing rubber stamp indicating that Alipurduar branch is one of the CBS branches, and the cheque is equivalent to “At Par”. The complainants claim that CBS branch is obliged to affix “Payable At Par” rubber stamp, and thus the Branch Manager of OP No.1 misguided the complainants. The complainants issued a cheque dated 19.03.2009 in favour of Manik Chand Motilal for a sum of Rs.3,25,000/- mentioning the 10 digit new account no. The drawee deposited the cheque at Kolkata with OP No.3. The complainants claim that the cheque had apparently reached the United Bank of India, Alipurduar Branch, for collection of the cheque amount from the OP No.1, i.e., Central Bank of India, Alipurduar Branch. The complainants were totally in the dark about the fate of the cheque, as they were under the impression that the cheque might have been honoured by the Central Bank of India, in Kolkata, as assured by the OP No.1, in Alipurduar, and the said bank did not affix rubber stamp “AT Par” despite instructions from the management of Central Bank of India, and the request by the complainant no.1. On the date of processing at Alipurduar Branch, the cheque was dishonoured due to shortage of fund. The complainants claim that OP No.1 should have informed them about the matter, so that they could have deposited sufficient amount in the account. The complainants claim that due to such negligence of OP No.1, the prestige of complainant no.1 has been tarnished. Mr. Pradip Baid, Proprietor of the complainant through letter dated 04.08.2009 requested OP No.1 to issue CBS “AT Par” cheque book against his current account, but to no avail. The complainants claim that the cheque should have been cleared between 22.03.2009 and 26.03.2009 if there was “Payable at Par” rubber stamp affixed on the cheque. The complainants claim that due to non encashment of the cheque, the prestige of complainant no.1 has been lowered, and
Contd……P/3
-:3:-
deficiency of service on the part of the OPs has caused the mishap. Accordingly, the complainants filed this case praying for compensation of Rs.99,000/- from the OPs, along with some other reliefs.
The OP Nos.1, 2, 4 & Proforma OP No.5 contest the case by filing separate written versions, and the case proceeds exparte against OP No.3, who failed to contest the case despite proper service of notice, as reflected in orders dated 26.11.2012 & 12.12.2012.
In the written version dated 14.05.2013, the OP No.1 submits inter-alia that the complainants are not consumers under the provisions of The Consumer Protection Act, 1986, and it questions the territorial jurisdiction of this Forum.
OP No.1 admits that the complainant no.1 has Current Account No.1660130010 with it (i.e., the OP No.1), and it claims that there is no provision for affixing rubber stamp for marking “Payable at Par” on any cheque. OP No.1 claims that it was not in a position to issue ‘At par’ CBS cheques to its customers in March, 2009, or 05.08.2009, since it received the “At Par” cheques from the higher authorities on 24.11.2009, and it acknowledges that the Manager had correctly contended that the old cheque leaf would be valid if the new 10 digit account number was mentioned therein, instead of the old account number, and the Branch Manager did not misguide the complainant on this score.
It claims that the payee of the cheque for Rs.3,25,000/- deposited the said cheque to OP No.3 (United Bank of India, Kolkata), but OP No.3 did not send it for clearing, which was the easiest way for collection, rather they sent the cheque to United Bank of India, Alipurduar, for collection of the cheque from OP No.1, which was not the proper procedure. OP No.1 claims that OP No.3 could have collected the cheque from Kolkata. It claims that the complainant deposited Rs.3,25,000/- in his CD Account on 19.03.2009 itself, and issued the said cheque. Eight (8) days later i.e., on 27.03.2009, an amount of Rs.3,00,028/- was debited from the complainants’ account against cheque transfer. The OP No.1 wonders how the complainant issued another cheque for such amount, when the earlier cheque for Rs.3,25,000/- was still not presented for collection, and it asserts that the entire responsibility is on the complainant for insufficiency of fund in the account, which resulted in dishonour of the cheque. It further claims that cheque leaf no.091800 was issued much earlier to the migration of the Branch to the CBS system, and the said cheque leaf was in the custody of the complainant, and thus there was no question of affixing rubber stamp indicating “Payable At Par” on the cheque. OP No.1 emphasises that the complainant suffered due to his own ignorance, and there was no negligence or deficiency of service on its (i.e., OP No.1’s) part.
On such grounds, it prays for dismissal of the case.
Contd……P/4
-:4:-
In the written version dated 22.04.2013, OP No.2 claims that it is not connected in any way with the proceedings, and the case is bad for defect of parties.
It claims that the complainants are not customers of OP No.2, and the complainants have not made any allegation against OP No.2 in the petition of complaint. The alleged transaction took place between the complainants, and the OP No.1, and there is no cause of action against it (i.e., the OP No.2), and there is no question of any deficiency in service, or negligence on its part.
On such ground, it prays for dismissal of the case.
In the written version dated 14.05.2013, the OP No.4 claims that there is no cause of action against it, and the Forum has no jurisdiction to entertain the case, and further in the petition of complaint, there is no allegation against it, (i.e., the OP No.4).
OP No.4 asserts that there is no whisper in the petition of complaint about any business relationship between it, and the complainant.
It rues that it has been impleaded only to invoke the jurisdiction of this Forum, and all the allegations are against OP No.1, and not against OP No.4.
On such ground, it prays for dismissal of the case.
In the written version dated 21.01.2013, the Proforma OP No.5 claims that the complainants have no cause of action against it, and the main grievance of the complainants relates to deficiency in service by the concerned bank, which allegedly did not render proper service.
Proforma OP No.5 further claims that there is no contractual obligation, or any privity of contract between it and the complainants, and it did not provide any service to the complainants, and thus the question of deficiency of service does not arise.
Proforma OP No.5 also claims that it made enquiries with the concerned banks regarding the problem faced by the complainant, and the complainant was informed about the response received from the other OPs, and it also emphasises that the dishonour of the cheque on the ground of insufficient fund has been admitted by the complainant in paragraph 4 of the complaint.
On such grounds, it prays for dismissal of the case.
Based on the respective submissions of the parties, the following issues are framed:-
- Is the case maintainable in its present form ?
- Are the complainants consumer under the provisions of The C.P. Act, 1986 ?
- Was there any deficiency of service and unfair trade practice on the part of the
OP ?
Contd……P/5
-:5:-
- Are the complainants entitled to the award prayed for ?
- To what other relief, if any, is the complainant entitled ?
DECISION
Issue nos.1 & 2
At the very outset of the discussion, it is essential to note that the OP No.1 had challenged the territorial jurisdiction of this Forum through a petition dated 07.01.2013, and by order dated 08.03.2013 the said petition was rejected, and though OP No.1 had submitted, as noted in order dated 22.04.2013, that it would file a revision before the Hon’ble State Commission, against the said order dated 08.03.2013, yet ultimately it did not file any such revision.
Quite clearly then, this Forum has territorial jurisdiction to proceed with this case, as noted in order dated 08.03.2013.
Further, the claim of the complainants in this case is well below Rs.20,00,000/-, and thus the case is also within the pecuniary jurisdiction of this Forum.
As the complainant no.1 has a current account with OP No.1, clearly the complainants are consumers as per provisions of The Consumer Protection Act, 1986.
Hence, these two issues are answered in the affirmative in favour of the complainants.
Issue Nos. 3, 4 & 5
These three issues, being closely interlinked, are taken up together for discussion for the sake of convenience & brevity.
The complainants have claimed that complainant no.1 has current account No.1660130010 with the OP No.1 for a long time, and the it was designated as CBS branch since 02.03.2008, and it had received new cheque books for savings bank, and current account mentioning “At Par” cheques on 24.11.2009. The OP No.1 started distributing the new cheque books to its customers from 28.03.2010, but earlier all the CBS branches used to mark “Payable at Par” in all SB, CA & CD cheque books by affixing rubber stamp. In the months of March, 2009, and August, 2009, the complainants approached OP No.1 for obtaining “At Par” cheque books, but the Branch Manager held out that such “At Par” cheque books for current account had not reached Alipurduar, and he informed the complainants that old cheque leaves would be valid if new ten digit account number was mentioned therein, and the complainants were informed that there was no system for affixing rubber stamp indicating that Alipurduar Branch is one of the CBS branches, and the cheque is equivalent to “At Par”. Pursuant to such information,
Contd……P/6
-:6:-
the complainant issued cheque no.091800 dated 19.03.2009 for a sum of Rs.3,25,000/- in favour of Manikchand Motilal, mentioning the new ten digit account number 1660130010, and the drawee deposited the cheque at Kolkata, with OP No.3, and the cheque had apparently reached United Bank of India, Alipurduar Branch, for collection of the cheque amount from the OP No.1 i.e., the Central Bank of India, Alipurduar Branch. The complainant was totally in the dark about the fate of the cheque, as it was under the impression that it might have been honoured by the Central Bank of India, in Kolkata, as assured by the OP No.1 in Alipurduar, and the said bank did not affix rubber stamp of “At Par” despite instructions from the management of the Central Bank of India, and requests by the complainant no.1. On the date of processing of the cheque at Alipurduar Branch, it was dishonoured due to shortage of fund. The complainant claims that the OP No.1 should have informed him about the matter, so that he could have deposited sufficient amount in the account, and due to such negligence of OP No.1, the prestige of the complainant has been lowered. The complainant claims that the cheque should have been cleared between 22.03.2009, and 26.03.2009 if there was “Payable At Par” rubber stamp affixed on it, and accordingly he filed this case praying for compensation, and some other reliefs from the OP No.1.
The complainants have filed Xerox copy of cheque no.091800 dated 19.03.2009 for Rs.3,25,000/- issued by the complainant no.1 in favour of Manikchand Motilal, and the said cheque was drawn on Central Bank of India, Alipurduar Branch i.e., OP No.1. The cheque bears the seal of the United Bank of India, Strand Road Branch, Kolkata, and the seal bearing the date 24.03.2009, which shows that the drawee i.e., Manikchand Motilal submitted the cheque at United Bank of India, Strand Road Branch, Kolkata on 24.03.2009.
(At this stage, it is relevant to note that the complainants filed this case on 03.10.2012, and mentioned OP No.3 as The Branch Manager, United Bank of India, Strand Road Branch, Strand Road, Kolkata – 700 027, and on 11.10.2012 they filed a petition stating that the Strand Road Branch had been merged with Dalhousie Square Branch, and they prayed for rectification/amendment of the address of OP No.3.
As reflected in order dated 11.10.2012, the prayer for amendment was allowed, and the address of OP No.3 was amended accordingly in the cause title of the petition of complaint.)
On the reverse of the cheque it is seen that it bears the seal
Contd……P/7
-:7:-
“Collecting Bank’s endorsement Confirmed
For United Bank of India,
ALIPURDURAR Br,
Manager”
and it bears the signature of the Branch Manager of Alipurduar Branch.
It also bears another seal “Payee’s A/c, will be Credited on realization.
For United Bank of India,
BRANCH MANAGER”
and it bears the signature of the Branch Manager.
Hence, it is clear that the cheque was sent by OP No.3 to the Alipurduar Branch of the United Bank of India.
It is the complainant’s specific case that he was under the impression that the cheque might have been honoured by the Central Bank of India, in Kolkata, as assured by the OP No.1 in Alipurduar, and the OP No.1 did not affix rubber stamp of “At Par” despite instructions from the management of the Central Bank of India, and requests by the complainant no.1.
The OP No.1 has claimed that it was not in a position to issue “At Par” CBS cheques to its customers in the months of March, 2009, and August, 2009, since it received “At Par” cheques from the higher authorities on 24.11.2009, and it has acknowledged that the Manager had quite correctly contended that the old cheque leaf would work if new ten digit account number was mentioned therein instead of the old account number, and the then Branch Manager did not in any way misguide the complainant.
The OP No.1 has also claimed that the payee of the cheque for Rs.3,25,000/- deposited it with United Bank of India, Kolkata, i.e., OP No.3, who did not send the cheque in clearing which was the easiest way for collection, rather it sent the cheque to the United Bank of India, Alipurduar Branch, for collection of the cheque from the OP No.1.
The OP No.1 has further contended that on 19.03.2009 itself, the complainant deposited Rs.3,25,000/- in his CD account, and issued the said cheque for Rs.3,25,000/-, and on 27.03.2009 an amount of Rs.3,00,028/- was debited from the said account against cheque transfer, and OP No.1 wonders how the complainant could issue another cheque for such amount, when the earlier cheque for Rs.3,25,000/- was still not presented for collection, and it reasons that the complainant is entirely responsible for insufficiency of fund in his account resulting in the dishonour of the cheque.
Contd……P/8
-:8:-
It is the further case of the OP No.1 that the cheque leaf no.091800 was issued much earlier to the migration of the OP No.1 Branch to the CBS system, and the cheque leaf was in the custody of the complainant, and thus there was no question of affixing rubber stamp indicating “Payable At Par” on the cheque.
However, it cannot be missed that along with the petition of complaint, the complainant has filed copy of an application/request for obtaining information, dated 29.05.2012 addressed to the Central Assistant Public Information Officer–cum-Branch Manager, Central Bank of India, Alipurduar Branch, wherein in Point No.c the question was asked “From which date, month and year C. B. I. Alipurduar Branch started issuing new cheque books printed with “payable at Par” to its customers – Saving Bank and Current Account holders ?”
The complainant has filed copy of the reply dated 20.06.2012 of the Central Public Information Officer/Assistant General Manager of the Central Bank of India, Merchant Road, Jalpaiguri – 735 101, wherein the answer to the said Point No.c is mentioned as “26.03.2010. Prior to this date, after receipt of our Central Office Circular, branch used to mark “Payable at Par” in all SB & CD cheque books by affixing rubber stamp.”
Hence, it is clear that although OP No.1 has claimed that there was no prevailing practice of the bank to affix “Payable At Par” rubber stamp in the cheques which had been issued before the cheques bearing the said endorsement in print had been received at the office of OP No.1 on 24.11.2009 from the higher authorities, yet, it is clear from the said reply dated 20.06.2012 of the Central Public Information Officer/Assistant General Manager, that before the Central Bank of India, Alipurduar Branch, started issuing the cheque books printed with “Payable at Par” to its customers from 26.03.2010, the OP No.1 Branch used to mark “Payable At Par” in all SB & CD cheque books by affixing rubber stamp as per circular received from their Central Office.
The record shows that on 03.01.2014, the complainants have filed a specimen cheque no.0800451 issued by the Central Bank of India, Siliguri Branch, which bears the rubber stamp, “SILIGURI
PAYABLE AT PAR AT ALL CBS BRANCHES”.
Hence, quite clearly the complainants have a valid case when they submit that due to refusal of the OP No.1 to affix rubber stamp “Payable At Par” on the cheque no.091800 dated 19.03.2009, it could not be cleared locally when the drawee Manikchand Motilal presented it before the OP No.3 on 24.03.2009.
The complainant has filed a statement of account furnished by OP No.1 showing
Contd……P/9
-:9:-
that it had a balance of Rs.3,48,190.82/- as on 26.03.2009, and it is thus quite clear that if the cheque no.091800 dated 19.03.2009 had been marked with the rubber stamp “Payable At Par at all CBS branches”, then it could have been cleared by OP No.3 when Manikchand Motilal submitted it to OP No.3 on 24.03.2009.
As already noted the reply dated 20.06.2012 of the Central Public Information Officer/Assistant General Manager of the Central Bank of India, Merchant Road, Jalpaiguri – 735 101, clearly shows that there was provision for marking “Payable at Par” in all SB and CD cheques by affixing rubber stamp, before the new cheque books with such endorsement in print, were issued to customers from 26.03.2010.
Again, it has already been mentioned that the complainant has filed a cheque showing rubber stamp, “SILIGURI
PAYABLE AT PAR AT ALL CBS BRANCHES”
marked on it, and the said cheque was issued by the Central Bank of India, Siliguri Branch.
Quite clearly then there was some deficiency of service on the part of the OP No.1 in not affixing “Payable At Par at all CBS branches” rubber stamp in the cheque no.091800 dated 19.03.2009.
The complainant has a further convincing case when it claims that the Branch Manager, or any officer of the OP No.1 should have telephoned him, and informed him about insufficient fund in his account, so that he could have got an opportunity to deposit the required amount in his account, which would ensure that the cheque would not be dishonoured.
From the foregoing discussion, it is clear, as already mentioned that there was some deficiency of service on the part of the OP No.1, and issue no.3 is answered accordingly.
It is equally clear that the other OPs have practically no role in this case, except for the fact that they are necessary parties to the case, and thus the question of deficiency of service on their part does not arise.
Now, though the complainant has prayed for compensation of Rs.99,000/- for the deficiency of service, and for the mental agony that he sustained, and though he has also prayed for adequate cost, and pendentelite interest on the sum of Rs.99,000/-, yet it appears to us that awarding a sum of Rs.10,000/- as compensation for the deficiency of service on the part of the OP No.1, and for the mental agony undergone by the complainant will serve the ends of justice, and further the complainant should be awarded litigation expenses of Rs.2,000/- from the OP No.1.
Issue Nos.4 & 5 are answered accordingly.
Contd……P/10
-:10:-
All the issues are so disposed of.
In the result, the case succeeds on contest in part.
Hence, it is,
O R D E R E D
that the Consumer Case No.112/S/2012 be, and the same is, hereby allowed on contest in part, against the OP No.1, and it is dismissed on contest as against OP Nos.2, 4 & 5, and it is dismissed exparte against OP No.3, since no negligence, or deficiency of service on their part has been made out.
The OP No.1 do pay to the complainants a sum of Rs.10,000/- as compensation for the deficiency of service on its part, and for the mental agony they underwent, together with a further sum of Rs.2,000/- towards litigation expenses, within 45 days of this order, failing which the sum of Rs.10,000/- will carry interest @ 9 % per annum from the date of this order, till realization, and the complainants will be entitled to put the award into execution.
A copy of the judgment be given to the parties free of cost.
