Sri Ranjan Ray, Ld. Member

FINAL ORDER/ JUDGEMENT

This complaint under the provisions of C.P. Act, 1986 was filed against the Opposite Parties (O.P.s)- 1) The Chief Manager, Bank of India, Siliguri Branch, Kuber Furnishing Building, Sevoke Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling, PIN-734001, West Bengal. 2) The Zonal Manager, Bank of India, Siliguri Zonal Office, Pranami Mandir Roard, P.O. & P.S.- Siliguri, Dist.- Darjeeling, PIN-734001, West Bengal, 3) The Chief Manager, Bank of India, Mission Row Branch, 15 Ganesh Chandra Avenue, Mission Row, Kolkata- 700013, 4) The Zonal Manager, Bank of India, Kolkata Zonal Office, [Eastern Zone], 5, BTM Sarani, Barbourne Road, Kolkata- 700001, 5) The Branch Manager, IndusInd Bank Ltd., Burdwan Road,  P.O. & P.S.- Siliguri, Dist.- Darjeeling, West Bengal, 6) The Regional Manager, IndusInd Bank Ltd., Saket Building, 6^th Floor, Park Street, Kolkata- 700044 who contested the case by filing Written Version (W.V.). The Proforma Opposite Party, Bonanza Infrabuildcon (P) Ltd., 404/ Building No.5, Wing C, Alica Nagar CHS Ltd., Akurli Road, Lokhandwala Township, Kandivali East Mumbai, Mumbai City MH, PIN- 400101did not appear in this case and according to that vide Order No. 26, dated 17.09.2018 the Proforma Opposite Party declared ex- parte.

                    The case of the complainants as per their complaint is as follows-

          The complainant was a consumer of the O.P. No.5, (IndusInd Bank Ltd.) having her new Savings Account bearing No. 100005152602, corresponding to her old account No. 0059G07304001. The complainant intended to invest her hard earned money by purchasing some shares from Proforma O.P. (Bonanza Infrabuildcon (P) Ltd.) and issued an account payee cheque of O.P. No.5 being cheque No. 847846, dated 17.09.2014 of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only in favour of the Proforma O.P. As per direction of the Proforma O.P. complainant deposited the said cheque in the bank of O.P. No.1 (Bank of India) on 17.09.2014 for clearing and credit the said amount in the account of Proforma O.P. but when the complainant enquired about the shares she purchased from the Proforma O.P., she came to know that the Proforma O.P. did not receive the amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only from the complainant and the allotment of the shares in her name were cancelled, owing to which she had suffered a huge loss. On enquiry with the O.P. No.5 regarding her Savings Account bearing No. 100005152602 the complainant came to know that the account payee cheque of the O.P. no.5 being cheque No. 847846, dated 17.09.2014 of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only was honoured on 24.09.2014 and an amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only debited from the account of the complainant.

The complainant informed the matter to the Manager O.P. No.1 through letter, dated 27.10.2014 that the Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only had not been credited in the account No.401420110000900 of Proforma O.P. and thereafter on the same date, i.e. , on 27.10. 2014 she made a complaint against non- transfer of fund and in response the said complaint, the O.P. No.5 informed the complainant through its letter being Ref: SLG/AB/2014-15/122, dated 27.10.2014 that the said amount had been inadvertently credited to some other wrong account and provided the copy of the pay-in-slip for reference. After receiving the said letter the complainant enquired the matter and came to know that the cheque deposit slip dated 17.09.2014 of O.P. No.1 in the name of Proforma O.P., i.e., Bonanza Infrabuildcon (P) Ltd., and the complainant found that due to inadvertence, the account no. was mentioned as 401410110000900 instead of account no.401420110000900 in the name of the Proforma O.P.. However, the correct cheque no. of the Proforma O.P. was also mentioned in the back side of the said cheque. The complainant thereafter by its letter dated 20.02.2015 requested the O.P. No.1 for early settlement and refund of money and on 07.04.2015 she sent a legal notice to the O.P. No.1 to 4 with a request to make the payment of the said amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only with  interest of 9% per annum on the amount from 25.09.2014 up to date of actual payment within 15 days time from the date of issue of the notice and in reply the O.P. No.1 informed the complainant that they had informed the matter to the O.P. No.3, i.e., their Mission Row Branch, Kolkata, to initiate the process for recovery of the amount as wrongly credited in the account of some other person. After that, on 20.01.2016 the complainant once again sent another letter to the O.P. No.1 regarding this issue but did not get any result. Finally having no other alternative the complainant lodged this case.            

The prayers of complainant are as follows: -

1. To pass an order directing the O.P.s to pay a sum of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only with interest which they transferred wrongfully in the third party account.
2. To pass an order directing the O.P.s to pay a sum of Rs. 2,00,000/- (Rupees Two Lac) only for negligence, deficiency in services, harassment and other losses for which the complainant suffered .
3. To pass an order directing the O.P.s to pay a sum of Rs. 25,000/- (Rupees Twenty Five Thousand) only for the damages and losses as suffered by the complainant including on account of mental pain and agony.
4. Interest and pendent-lite interest @18% per annum on the aforesaid cheque amount, till the date of realization.
5. Any other relives to which your honour may deem just and proper for the ends of justice.

List of Documents filed by the complainant:

1. Photocopy of front side of the cheque bearing no. 847846, dated 10.09.2014 as issued by the complainant to the Bonanza Infrabuildcon (P) Ltd.
2. Photocopy of back side of the cheque being no. 847846, dated 10.09.2014 as issued by the complainant to the Bonanza Infrabuildcon (P) Ltd.   
3. Photocopy of the Counter Part of the Pay-in-Slip, dated 17.09.2014.
4. Photocopy of Bank Statement of the IndusInd Bank Ltd., Burdwan Road Branch, Siliguri, showing the amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only being debited infavour of Bonanza Infrabuildcon (P) Ltd, vide cheque no. 847846.
5. Photocopy of letter, dated 27.10.2014 as sent by the complainant to the O.P. No.1.
6. Photocopy of letter, dated 27.10.2014 as received by the complainant from the O.P. No.1 along with the copy of Pay-in-Slip.
7. Photocopy of letter, dated 20.02.2015 as addressed by the complainant to the O.P. No.1.
8. Photocopy of legal notice, dated 07.04.2015 sent to the O.P. No.1 to 4 by the complainant along with the copy of postal receipts.
9. Photocopy of letter, dated 09.04.2015 as received by the complainant from the O.P. No.1.
10. Photocopy of letter, dated 20.01.2016 sent by the complainant to the O.P. No.1 along with postal receipt and copy of letter dated 20.01.2016 as sent by thye complainant to the O.P. No.5 and 6 along with postal receipts.

Regarding this instant case, The Proforma Opposite Party, Bonanza Infrabuildcon (P) Ltd., 404/ Building No.5, Wing C, Alica Nagar CHS Ltd., Akurli Road, Lokhandwala Township, Kandivali East Mumbai, Mumbai City MH, PIN- 400101did not appear in this case and according to that vide Order No. 26, dated 17.09.2018 the Proforma Opposite Party declared ex- parte. The Opposite Parties (O.P.s)- 1) The Chief Manager, Bank of India, Siliguri Branch, Kuber Furnishing Building, Sevoke Road, P.O. & P.S.- Siliguri, Dist.- Darjeeling, PIN-734001, West Bengal. 2) The Zonal Manager, Bank of India, Siliguri Zonal Office, Pranami Mandir Roard, P.O. & P.S.- Siliguri, Dist.- Darjeeling, PIN-734001, West Bengal, 3) The Chief Manager, Bank of India, Mission Row Branch, 15 Ganesh Chandra Avenue, Mission Row, Kolkata- 700013, 4) The Zonal Manager, Bank of India, Kolkata Zonal Office, [Eastern Zone], 5, BTM Sarani, Barbourne Road, Kolkata- 700001, 5) The Branch Manager, IndusInd Bank Ltd., Burdwan Road,  P.O. & P.S.- Siliguri, Dist.- Darjeeling, West Bengal, 6) The Regional Manager, IndusInd Bank Ltd., Saket Building, 6^th Floor, Park Street, Kolkata- 700044 who contested the case by filing Written Versions (W.V.s). who contested the case by filing Written Versions (W.V.s) and as per the W.V. the case is as follows.

The O.P. No.1 to 4 argued in their W.V. that one cheque being no. 847846, dated 17.09.2014 with an amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only of IndusInd Banl Ltd., Siliguri Branch was deposited on 17.09.2014 at the account no. 401410110000900 for clearing the cheque and the O.P. No.1 sent the said cheque being no. 847846, dated 17.09.2014 to the O.P. No.5 for clearing. The O.P. No.5 cleared the cheque and deducted the amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only from the account of the complainant and deposited the amount in the account of 401410110000900 as written in the voucher slip/ deposit slip. The amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only was duly credited in the account no. 401410110000900  as written in the voucher/ deposit slip on 24.09.2014 and the account holder of the said account withdraw the amount of Rs. 2,00,000/- (Rupees Two Lac) only 26.09.2014 and thereafter Rs. 50,000/- |(Rupees Fifty Thousand) only on 08.10.2014 and Rs. 15,000/- (Rupees Fifteen Thousand) only on 10.10.2014. On 20.02.2015 the complainant informed the O.P. No.1 that account no. of the said deposit slip was wrongly written as 401410110000900 instead of account no.401420110000900 but the O.P. No.1 not debited the amount from the account of the complainant, it was debited by the O.P. No.5, i.e., IndusInd Bank Ltd., Siliguri Branch. Then, after receiving the letter dated 07.04.2015 from the complainant, the O.P. No.1 informed the matted to the O.P. No.3 on 09.04.2015. The O.P. No.1 to 4 stated in their W.V. that there was no deficiency in service occurred from the part of them because the complainant/ O.P. No.5 was totally responsible for this. The O.P. No.1 was acted as a clearing house and it was the duty of the O.P. No.5 to check thoroughly the account no. before deduction/ debit the account of the complainant.

The prayers of the O.P. No.1 to 4 are as follows: -

1. Directing the complainant to pay the sum of Rs. 20,000/- (Rupees Twenty Thousand) only to the O.P.s for litigation cost.
2. Dismiss the case.
3. Any other relief/ reliefs to which the O.P. is found entitled.

The O.P. No.5 and 6 argued in their W.V. that on 24.09.2014 one cheque bearing no. 847846 amounting to Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only was forwarded to the bank of these O.P.s through the clearing house of the Bank of India and as the cheque was in order and there was sufficient balance in the complainant, so these O.P.s were bound to honour/ clear the said amount to the said clearing house by debiting the said sum of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only from the account of the complainant, standing with the bank of these O.P.s, as since the date of the issue of the cheque to till its clearance, there was no instruction from the side of the complainant to stop making payment of said cheque sum. The O.P. No.5 and 6 have no right and/ or authority to put their hands to the internal affairs of the O.P. No.1 Bank and so, these O.P.s were helpless to credit the said amount which was debited by these O.P.s on the basis of legal instrument issued by the complainant. The complainant never issued any letter as complaint, on 27.10.2014 to these O.P.s, nor these O.P.s received any such complaint, dated 27.10.2014, as alleged by the complainant and hence, the question of issuing any letter being Ref. No. SLG/AB/2014-15/122, dated 27.10.2014 by these O.P.s did not arise.

The prayers of the O.P. No.5 and 6 are as follows: -

1. To dismiss the instant complaint against the O.P. No.5 and 6.
2. To impose cost of Rs. 25,000/- (Rupees Twenty Five Thousand) only as per Section 26 of C.P. Act, 1986 against the complainant.
3. To pass such order/ orders as your honour may deem fit and proper.

Having heard, the Ld. Advocate of the parties and on perusal of the Complaint and documents filed by the parties the following points are taken to be decided by this Commission.

Points for consideration

1) Whether the complainant is a consumer?

2) Whether the case is maintainable under the CP act 2019?

3) Whether this Commission has its jurisdiction to decide this case? 

4) Whether there is any deficiency in service in the part of the O.P. as alleged by the complainant?

5) Is the complainant is entitled to get any award and relief as prayed for? If so, what extent?

Decision with reason:-

          All the points are taken up together for consideration and decision.

Seen and perused the complaint petition which is supported by the affidavit, documents filed by the parties. We are also heard arguments of both the parties in full length.

The complainant resides in P.O. and P.S.- Siliguri, District- Darjeeling and the O.P. No.1 and 2 and also O.P. No.5 is carrying their business in P.O. and P.S.- Siliguri, District- Darjeeling and thus, the Commission has no doubt that the complainant is a very much consumer as per the Consumer Protection Act, 1986 as well as 2019 and also there is no doubt that this Commission has its territorial jurisdiction to decide this case.

In this instant case, the complainant was a consumer of the O.P. No.5, (IndusInd Bank Ltd.) having her new Savings Account bearing No. 100005152602, corresponding to her old account No. 0059G07304001. To purchase some shares from Proforma O.P. (Bonanza Infrabuildcon (P) Ltd.) the complainant issued an account payee cheque of O.P. No.5 being cheque No. 847846, dated 17.09.2014 of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only in favour of the Proforma O.P. As per direction of the Proforma O.P., complainant deposited the said cheque in the bank of O.P. No.1 (Bank of India) on 17.09.2014 for clearing and credit the said amount in the account of Proforma O.P. but when the complainant enquired about the shares she purchased from the Proforma O.P., she came to know that the Proforma O.P. did not receive the amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only from the complainant and the allotment of the shares in her name were cancelled, owing to which she had suffered a huge loss. On enquiry with the O.P. No.5 regarding her Savings Account bearing No. 100005152602 the complainant came to know that the account payee cheque of the O.P. no.5 being cheque No. 847846, dated 17.09.2014 of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only was honoured on 24.09.2014 and an amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only debited from the account of the complainant.

The complainant informed the matter to the Manager O.P. No.1 through letter, dated 27.10.2014 that the Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only had not been credited in the account No.401420110000900 of Proforma O.P. and thereafter on the same date, i.e. , on 27.10. 2014 she made a complaint against non- transfer of fund and in response the said complaint, the O.P. No.5 informed the complainant through its letter being Ref: SLG/AB/2014-15/122, dated 27.10.2014 that the said amount had been inadvertently credited to some other wrong account and provided the copy of the pay-in-slip for reference. After receiving the said letter the complainant enquired the matter and came to know that the cheque deposit slip dated 17.09.2014 of O.P. No.1 in the name of Proforma O.P., i.e., Bonanza Infrabuildcon (P) Ltd., and the complainant found that due to inadvertence, the account no. was mentioned as 401410110000900 instead of account no.401420110000900 in the name of the Proforma O.P.. However, the correct cheque no. of the Proforma O.P. was also mentioned in the back side of the said cheque. The complainant thereafter by its letter dated 20.02.2015 requested the O.P. No.1 for early settlement and refund of money and on 07.04.2015 she sent a legal notice to the O.P. No.1 to 4 with a request to make the payment of the said amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only with  interest of 9% per annum on the amount from 25.09.2014 up to date of actual payment within 15 days time from the date of issue of the notice and in reply the O.P. No.1 informed the complainant that they had informed the matter to the O.P. No.3, i.e., their Mission Row Branch, Kolkata, to initiate the process for recovery of the amount as wrongly credited in the account of some other person. After that, on 20.01.2016 the complainant once again sent another letter to the O.P. No.1 regarding this issue but did not get any result. Finally having no other alternative the complainant lodged this case.

The O.P. No.1 to 4 argued in their W.V. that one cheque being no. 847846, dated 17.09.2014 with an amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only of IndusInd Banl Ltd., Siliguri Branch was deposited on 17.09.2014 at the account no. 401410110000900 for clearing the cheque and the O.P. No.1 sent the said cheque being no. 847846, dated 17.09.2014 to the O.P. No.5 for clearing. The O.P. No.5 cleared the cheque and deducted the amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only from the account of the complainant and deposited the amount in the account of 401410110000900 as written in the voucher slip/ deposit slip. The amount of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only was duly credited in the account no. 401410110000900  as written in the voucher/ deposit slip on 24.09.2014 and the account holder of the said account withdraw the amount of Rs. 2,00,000/- (Rupees Two Lac) only 26.09.2014 and thereafter Rs. 50,000/- |(Rupees Fifty Thousand) only on 08.10.2014 and Rs. 15,000/- (Rupees Fifteen Thousand) only on 10.10.2014. On 20.02.2015 the complainant informed the O.P. No.1 that account no. of the said deposit slip was wrongly written as 401410110000900 instead of account no.401420110000900 but the O.P. No.1 not debited the amount from the account of the complainant, it was debited by the O.P. No.5, i.e., IndusInd Bank Ltd., Siliguri Branch. Then, after receiving the letter dated 07.04.2015 from the complainant, the O.P. No.1 informed the matted to the O.P. No.3 on 09.04.2015. The O.P. No.1 to 4 stated in their W.V. that there was no deficiency in service occurred from the part of them because the complainant/ O.P. No.5 was totally responsible for this. The O.P. No.1 was acted as a clearing house and it was the duty of the O.P. No.5 to check thoroughly the account no. before deduction/ debit the account of the complainant.

The O.P. No.5 and 6 argued in their W.V. that on 24.09.2014 one cheque bearing no. 847846 amounting to Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only was forwarded to the bank of these O.P.s through the clearing house of the Bank of India and as the cheque was in order and there was sufficient balance in the complainant, so these O.P.s were bound to honour/ clear the said amount to the said clearing house by debiting the said sum of Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only from the account of the complainant, standing with the bank of these O.P.s, as since the date of the issue of the cheque to till its clearance, there was no instruction from the side of the complainant to stop making payment of said cheque sum. The O.P. No.5 and 6 have no right and/ or authority to put their hands to the internal affairs of the O.P. No.1 Bank and so, these O.P.s were helpless to credit the said amount which was debited by these O.P.s on the basis of legal instrument issued by the complainant. The complainant never issued any letter as complaint, on 27.10.2014 to these O.P.s, nor these O.P.s received any such complaint, dated 27.10.2014, as alleged by the complainant and hence, the question of issuing any letter being Ref. No. SLG/AB/2014-15/122, dated 27.10.2014 by these O.P.s did not arise.

The notice was issued to the Proforma O.P., i.e., The Proforma Opposite Party, Bonanza Infrabuildcon (P) Ltd which was delivered to him on 25.06.2018 but after receiving the notice the Proforma O.P. did not did not turn out before this Commission and for this reason vide Order No. 26, dated 17.09.2018 the Proforma Opposite Party declared ex- parte.

In order to prove the case the Complainant has filed its evidence in the form of an Affidavit and has stated that on 27.10.2014 the O.P. No.1, Bank of India, Siliguri Branch, sent a letter vide Ref No.- SLG/AB/2014-15/122 that on coming to their notice, they had already taken up the matter of the complainant with the concerned account holder to their Mission Row branch, Kolkata (O.P. No.3) and the branch for early settlement/ refund of the amount but till now the complainant did not get her said refund amount from the O.P. No.1. So, this Commission has no doubt to hold that there is a clear deficiency in service from the part of the O.P. No.1 to 4 and the O.P. No.1 to 4 are jointly and severally liable in this case. The O.P. No.1 to 4 (Bank of India) is directed to pay Rs. Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only along with 6% of simple interest to the complainant by an account payee cheque from the date of filing of this case, i.e., from 27/06/2016 till the realization of entire amount within 45 days from the date of this order.

Hence it is,

O R D E R E D

That the Consumer Case No. 68/2016 be and same is allowed on contest  against the O.P. No.1 to 4 (Bank of India). The O.P. No.1 to 4 are jointly and severally liable in this case.

The O.P. No.1 to 4 (Bank of India) The O.P. No.1 to 4 (Bank of India) is directed to pay Rs. Rs. 2,71,080/- (Rupees Two Lac Seventy One Thousand and Eighty) only along with 6% of simple interest to the complainant by an account payee cheque from the date of filing of this case, i.e., from 27/06/2016 till the realization of entire amount within 45 days from the date of this order. The O.P. No.1 to 4 (Bank of India) is also directed to pay Rs. 10,000/- (Ten Thousand) only for mental pain, agony, harassment and Rs. 10,000/- (Ten Thousand) only for litigation cost to the complainant. The O.P. No.1 to 4 is also directed to deposit Rs. 10,000/- (Ten Thousand) only to Consumer Legal Aid Account of this Commission by an account payee cheque within 45 days from the date of this order. No award passed against the O.P. No.5 and 6 (IndusInd Bank Ltd.)   

Let a copy of this judgment be given to the parties directly or through their representative Ld. Advocate for compliance free of cost.