Haryana

Panchkula

CC/322/2020

DINESH KAUMR. - Complainant(s)

Versus

THE BRANCH MANAGER,STATE BANK OF INDIA. - Opp.Party(s)

LAVISH ARORA & NEHA SAINI

29 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	322 of 2020
Date of Institution	:	23.10.2020
Date of Decision	:	29.02.2024

 

 

Dinesh Kumar aged 35 years son of Shri Satpal Saini, resident of House No.1279-P, Sector-25, Panchkula, Haryana.

 

                                                                           ….Complainant

 

Versus

1.     State Bank of India, Mini Secretariat, Sector-1, Panchkula through its Branch Manager.

2.     State Bank of India, Zonal office near HAFED Building Sector-5, Panchkula the Zonal Manager.

3.     The State Bank of India, State Bank Bhawan, Madame Cama Marg, Mumabi-400021 through its Chiarman/Authroised Signatory.

4.     The Branch Manager, Axis Bank Ltd. Tibbi Majra, Raipur Rani, District Panchkula-134204.

5.     Axis Bank Limited Axis House, C-2, Wadia International Centre, Pandurang Budhkar Marg, Worli, Mumbai-400025 through authorized signatory.        

                                                                                                                                                                                                ….Opposite Parties

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person   

                        Sh. J.K.Chauhan, Advocate for OPs No.1 to 3.

                        Sh. Anish Gupta, Advocate for Ops No.4 & 5.

 

ORDER

(Satpal, President)

1.The brief facts, as alleged, in the present complaint are, that the complainant was having a Saving Bank account bearing No. 38293417960 with OPs No. 1 to 3. One person, namely, Shri Deepak had issued a Cheque bearing no. 017159 dated 30.03.2020 amounting to Rs. 1,50,000/-, drawn at Axis Bank Ltd. i.e. OP No. 4, in favour of the Complainant. The said cheque was presented for its encashment with OP No.1 on 25.06.2020, but the same was returned to the Complainant vide return memo dated 30.06.2020 with the endorsement as “Instrument outdated/stale”. A sum of Rs. 295/- was charged by OPs No. 1 to 3 qua encashment of the cheque in question on 30.06.2020. It is averred that the said cheque was presented for its encashment on 25.06.2020 i.e. within the period of 3 months from the date of its issue i.e. 30.03.2020 and thus, there was no delay on the part of the Complainant. A legal notice was sent to the OPs on 02.09.2020, but to no avail. Due to the act and conduct of the OPs, the Complainant has suffered a great deal of financial loss and mental agony, harassment, torture for which the OPs are liable to compensate him.  Due to the act and conduct of the OPs, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.Upon notice, the OPs No. 1 and 2 have appeared and filed the written statement, wherein, several preliminary objections have been raised such as the Complainant has no locus standi to file the present complaint; he is estopped from filing the present complaint by his own act and conduct; he has not come with clean hands as he has suppressed true and material facts; no cause of action has arisen in favour of the Complainant against the OPs No.1 and 2; that complicated question of law and facts are involved in the present complaint. On merits, it is submitted that the Complainant is having his saving bank account with the OP No. 1 and he had presented the cheque on 25.06.2020 with OP No.1. It is submitted that as per procedure of the bank, the cheques received by the bank are sent on the next day for clearing. The Cheque Truncation System was not working on 26.06.2020. The 27^th and 28^th June were not working days in the bank being holiday on account of Fourth Saturday and Sunday respectively, so the cheque was sent for its clearance on 29.06.2020 and the same had reached on 30.06.2020 to the Axis Bank Ltd. i.e. OP No. 4; thus, there was no fault on the part of OP No.1. It is further submitted that in this digital era, the technical error in the software are bound to occur, which were beyond the control of any body. Moreover, the OP No.4 wrongly did not make the payment of said cheque to the complainant. The cheque in question had reached for encashment with the OP No.4 within the validity period of three months. The cheque dated 30.03.2020 and three month period would expire on 30.06.2020. The cheque was wrongly returned by the OP No.4 with the reason “Instrument” out dated/stale” on 30.6.2020. The cheque was presented to the OP No.4 within the period of three month. In computation of the period of limitation, the date of on which the cause of action arose or day on which cheque had been drawn is to be excluded. Thus, after excluding 30.03.2020, three months period has to be reckoned. The cheque in question was presented before the OP No.4 within the stipulated period of three months; as such, there is no fault on the part of State Bank of India. The fault, if any, lies with the OP No.4. Rest of the averments made by the Complainant in the complaint has been denied being frivolous, baseless and meritless and thus, prayer has been made for dismissal of the complaint.

                Upon notice, the OP No. 3 has appeared through its Counsel and power of attorney was filed on its behalf, on 01.10.2021 and the Ld. Counsel made the statement that the written statement filed by the OPs No. 1 and 2 be read in defence on behalf of OP No.3 and accordingly, the written statement already filed on behalf of OPs No. 1 and 2 was treated as the written statement of OP No. 3 also.

                Upon notice, the OPs No. 4 and 5 have appeared and filed the written statement, wherein, several preliminary objections have been raised such as the Commission has no jurisdiction because there is no relationship of consumer and service provider between the parties; he has not come with clean hands as he has suppressed the true and material facts and no cause of action has arisen in favour of the Complainant & against the OPs No. 4 and 5. It is submitted that the cheque of the Complainant for encashment was not received within the stipulated period and thus, the same was rightly dishonored by the OP No.5 with the remarks mentioned in the return memo dated 30.06.2020. It is submitted that the cheque issued on 30.03.2020 could be encashed upto 29.06.2020. On merits, the submissions made in the preliminary objections have been reiterated and the assertions made in the complaint have been denied and thus, prayer has been made for dismissal of the complaint.

3.To prove the case, the complainant has tendered the affidavit as Annexure C-A along with documents Annexure C-1 to C-10 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for OPs No.1 & 2 has tendered the affidavit as Annexure R-A along with documents Annexure R-1 & R-2 in evidence and closed the evidence. The learned counsel for OP No.3 has made a separate statement on 01.10.2021 that written statement already filed by the OPs No.1 & 2 may kindly be read on behalf of OP No.3. The learned counsel for the OPs No.4 & 5 has tendered affidavit as Annexure R-4/A along with documents Annexure R-4/1 to R-4/3 in evidence and closed the evidence.

                During the course of arguments, the complainant has tendered the account statement pertaining to his account no. 00000038293417960 w.e.f 28.03.2020 to 26.02.2024, his duly sworn affidavit before the Notary Public, Panchkula and Compromise Deed dated 06.02.2020, which are taken on record as Mark ‘A’, ‘B’ & ‘C’  respectively for the adjudication of the complaint in a proper and fair manner. 

4.We have heard the complainant, learned counsels for OPs No.1 to 3 and OPs No.4 & 5 and gone through the record available on file including the written arguments filed by OP No.3, OPs No.4 & 5 and minutely and carefully.

5.During arguments, the Complainant reiterating the averments as made in the complaint as also in his affidavit(Annexure C-A) contended that the cheque(Annexure C-2) issued by one person, namely, Deepak  on 30.03.2020 was valid for 3 months and the same was presented for encashment before OP No. 1 on 25.06.2020 and thus, the cheque was presented by him for its encashment within the valid period. The Complainant contended that the said cheque (Annexure C-2) was wrongly returned vide return memo dated 30.06.2020 (Annexure C-3) on invalid grounds, and thus, the complaint is liable to be accepted by granting the relief as claimed for in the complaint.

Reliance has been placed on the following case laws:-

1. State Bank of India Vs. Shri Anand Prakash and another reported in 2007 (3) C.P.J. 95(NC).
2. ICICI Bank Ltd. SCO No.146-147, Sector-21-C Faridabad-121001 Haryana Vs. Ravi Kant (Through Lrs) & Anr. through his Lr Smt. Raj Kumari(mother) 221r New Colony Palwal, Tehsil Palwal, Haryana reported in 2016(4) C.P.R.381(NC).
3. Amitaben Dilip kumar Shah and Ors. Vs. Varachha Vo-op Bank Ltd. reported in 2013(1)C.P.J.580(NC).
4. Punjab National Bank Vs. Prof.Krishan Deo Gaur & Ors. reported in First Appeal No.267 of 2008 decided on 12.10.2018 (NC).
5. Vijaya Bank Vs. Gurnam Singh reported in 2010(13) SCC 775.

 

6.On the other hand, the Ld. Counsel for the OPs No. 1 to 3, during arguments, reiterated the averments as made in the written statement as also in the affidavit (Annexure R-A) and contended that there had occurred technical defect in the Cheque Truncation System on 26.06.2020 and thereafter, the cheque in question could not be sent for its encashment on 27^th and 28^th June beingnon-working days in the bank being holidays on account of Fourth Saturday and Sunday respectively, so, the cheque was sent for its clearance on 29.06.2020 and the same had reached on 30.06.2020 to the Axis Bank Ltd. i.e. OP No. 4; thus, it is contended that there was no fault on the part of OPs No.1 to 3. It was argued that the cheque had reached the OP No. 4 within the valid period i.e. within a period of 3 months from the date of issue of chequei.e. 30.03.2020 and thus, the OP No.4 & 5 had wrongly returned the cheque in question vide return memo dated 30.06.2020 (Annexure C-3) on invalid grounds. Reliance has been placed on the following case laws:-

1. Kaleemulla Vs. Rajashekar Murthy in criminal petition no.1979 of 2016 dated 17.03.2017 (Karnataka High Court).
2. M/s Sidh Vinayak Trading Company Vs. M/s New Delhi Agro Foods Products & Ors. in criminal Revision No.59/2016 decidedon 16.08.2016(Central District, Tis Hazari, Delhi).

7.The Ld. Counsel for the OPs No. 4 and 5, during arguments, reiterated the averments as made in the written statement as also in the affidavit(Annexure R-4/A) & contended that the cheque in question was received by OPs No. 4 and 5 for its encashment on 30.06.2020, which was beyond the validity period of 3 months. The Ld. Counsel argued that the last date for encashment of the cheque in question was 29.06.2020 and thus, no illegality was committed while returning the cheque (Annexure C-2) vide return memo dated 30.06.2020 (Annexure C-3) and thus, prayed for dismissal of the Complaint qua OPs No. 4 and 5 being frivolous, baseless and meritless.

8.After hearing the Complainant as well as the Ld. Counsel for the OPs, the question that arises before the commission for adjudication is whether the return of the cheque(Annexure C-2) by the OPs No. 4 & 5, without its encashment, vide return memo dated 30.06.2020 (Annexure C-3) was valid, legal and justified.

9.The factual position qua issue of the cheque, and its presentation and thereafter its receipt by the OPs No. 4 and 5 is not in dispute. The cheque (Annexure C-2) amounting to Rs.1,50,000/- was issued on 30.03.2020 and the same was valid for three months from the date of issue. The OPs No. 4 and 5 have returned the said cheque vide return memo dated 30.06.2020 (Annexure C-3) on the ground that the same had become outdated/stale being received beyond the validity period. Now, the question arises whether the said cheque was received by the OPs No. 4 and 5 beyond the period of three months from the date of issue. Similar controversy had arisen in a case, which has been decided by the Hon’ble Karnataka High Court in Case law Supra(as relied upon by the Ld. Counsel for the OPs No.1 to 3), wherein, it was held that the period of validity was to be reckoned by excluding the date on which cause of action arose. In the said case, the cheque was issued on 13.05.2015 and the same was presented for encashment on 13.08.2015. The said cheque was not encashed and returned being dishonored. The return memo was held invalid by the Ld. Magistrate by placing reliance on the basis of decision of the Hon’ble Apex Court in Econ Antri Ltd. Vs. Rom Industries Ltd., reported in 2013(3) DCR 417. The matter came up for adjudication before the Hon’ble Karnataka High Court in Case law Supra, wherein, no error or infirmity was found in the order of the Ld. Magistrate. The Hon’ble Karnataka High Court in Case law Supra placing reliance upon the ratio of law laid down by the Hon’ble Apex Court in case supra held as under:-

          Negotiable Instruments Act, 1881 Sections 138 and 142 Dishonor of cheque with endorsement ‘account closed’- Cognizance of offence and Issuance of summons –Rejection of memo on ground that cheque presented  was within period of three months-Sustainability- Section 138(a) of N.I.Act requires complainant to present said cheque for encashment within period of three months  from date on which it is drawn or within period of its validity,  whichever is earlier- Regarding computation of time for presentation of cheque, Hon’ble  Supreme Court held that for purpose of calculating period of one month prescribed under Section 142(b) of N.I.Act, period has to be reckoned by excluding date on which cause of action arose-Trial Court properly applied this principle and rightly held that presentation of cheque is within three months as prescribed in Section 142(b) of N.I. Act- Therefore, impugned order proper- Hence, petition disposed. 

10.The controversy involved in the present case is squarely covered by the ratio of law laid down by the Hon’ble Apex Court in Econ Antri Ltd. Vs. Rom Industries Ltd., reported in 2013(3) DCR 417.  In the present case, the cheque was received by the OPs No. 4 and 5 on 30.06.2020, and as per law laid down by the Hon’ble Apex Court Econ Antri Ltd. Vs. Rom Industries Ltd., reported in 2013(3) DCR 417 in case Supra, the cheque was received by OPs No. 4 and 5 within the validity period; thus, return memo dated 30.06.2020 (Annexure C-3) was not legal and valid. As such, the Ops No. 4 and 5 were deficient, while rendering services to the Complainant, for which, they are liable to compensate the complainant.

11.Now, adverting to the liability of OPs No. 1 to 3, it is found that the cheque was received by OP No. 1 on 25.06.2020, but the same was not sent for its encashment on 26.06.2020 and the reason for the same is given as Cheque Truncation System was not working on 26.06.2020 due to technical defects. However, no such evidence has been placed on behalf of OPs No. 1 to 3 to show that Cheque Truncation System was not working on 26.06.2020. Even otherwise, no consumer can be made to suffer on account of defects in the system of OP No.1 Bank. Accordingly, the OP No.1 is also liable to compensate the Complainant on account of deficiency on their part.

12.In relief, the Complainant has claimed the payment of Rs. 1,50,000/- on account of non-encashment of the cheque dated 30.03.2020(Annexure C-2). A sum of Rs. 295/- has also been claimed, which had been charged from the Complainant as bouncing charges. Further, the compensation of Rs.2,00,000/- and Rs.22,000/- has been claimed on account of mental agony and harassment and litigation charges respectively.

13.As per compromise entered between the complainant and Sh. Deepak vide compromise deed dated 06.02.2020(Mark ‘C’), a postdated cheque bearing no.017159 amounting to Rs.1,50,000/-(Annexure C-2) was given by said Sh. Deepak to the complainant. Further, vide affidavit Mark ‘B’, the complainant has deposed that he had not received any payment/amount in respect of the cheque no. 017159 of Rs.1,50,000/- dated 30.03.2020 from Deepak son of Lal Chand, which was issued by him in lieu of compromise deed dated 06.02.2020. Further, as per account statement of complainant pertaining to his  account no.00000038293417960 as Mark ‘A’, no such payment of Rs.1,50,000/- is found to have been made to the complainant by said Deepak, who had issued the said cheque no. 017159 (Annexure C-2).

14.As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The Ops No.4 & 5 are directed to make the payment of sum of Rs.1,50,000/- i.e. the amount of cheque no.017159 dated 30.03.2020 (Annexure C-2), which was wrongly returned without encashment vide return memo dated 30.06.2020 (Annexure C-3), to the complainant along with interest @ 9% per annum(simple interest) w.e.f. 30.06.2020 till its realization. Further, the Ops No.4 & 5 are directed to pay the amount of Rs. 295/-, which was deducted from the account of the complainant as bouncing charges, alongwith simple interest @9%per annum w.e.f. 30.06.2020 till its realization.
2. The Ops No.4 & 5 are also directed to pay an amount of Rs.10,000/- to the complainant on account of mental agony and harassment.
3. The OPs No.4 & 5 are further directed to pay an amount of Rs.5,500/- as litigation charges.
4. The OP No.1 is directed to pay Rs.5,000/- as compensation to the complainant.

 

15.The OPs No. 1, 4 & 5 shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OPs No.1, 4 & 5. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:29.02.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal               

                Member                          Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                                 Satpal                               

                                                President
       

 

 

C.C. No.322 of 2020

 

Present:             Complainant in person.   

                        Sh.J.K.Chauhan, Advocate for OPs No.1 to 3.

                        Sh.Anish Gupta, Advocate for OPs No.4 & 5.

 

 

                       During the course of arguments, the complainant has tendered the account statement pertaining to his account no. 00000038293417960 w.e.f 28.03.2020 to 26.02.2024, his duly sworn affidavit before the Notary Public, Panchkula and Compromise Deed dated 06.02.2020, which are taken on record as Mark ‘A’, ‘B’ & ‘C’  Arguments heard. Now, to come upon 29.02.2024 for orders.

Dated: 26.02.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal

                Member                                Member                    President

 

 

 

Present:             Complainant in person.   

                        Sh.J.K.Chauhan, Advocate for OPs No.1 to 3.

                        Sh.Anish Gupta, Advocate for OPs No.4 & 5.

 

 

                                Vide a separate order of even date, the present complaint is hereby partly allowed against OPs No. 1, 4 & 5 with costs.

         A copy of the order be sent to the parties free of costs and the file be consigned to the record room after due compliance.

Dt.29.02.2024

 

 

 

      Dr.Barhm Parkash Yadav                Dr.Sushma Garg           Satpal

              Member                        Member                    President