Date of filing : 02-02-2011
Date of order : 30 -11-2011
IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD
CC. 28/2010
Dated this, the 30th day of November 2011
PRESENT
SRI.K.T.SIDHIQ : PRESIDENT
SMT.P.RAMADEVI : MEMBER
SMT.K.G.BEENA : MEMBER
Mehboob Theaters, } Complainant
Kasaragod represented by
It’s Managing Partner S.A. Wahab
(Adv.K.M.Ballakuraya, Kasaragod)
1. H.D.F.C, Bank } Opposite parties
Kasaragod Branch.
2. HDFC Bank Ltd,
HDFC Bank House, Senapathi Bapat Marg,
Lower Parel (West) Mumbai.
(Adv. A.Radhakrishnan, Hosdurg)
O R D E R
SMT.P.RAMADEVI, MEMBER
The facts of the complaint in brief are as follows:
That the complainant is a business firm and enjoying CC facility of `30,000,00/- with the opposite parties the HDFC Bank for more than twenty years. The cheque issued by the complainant in the month of June, 2009 were duly honoured by the opposite parties. But the cheque issued in 11-09-2009 to one Shiva was dishonoured eventhough the closing balance of the amount was `27,99,170.50. Though the closing balance is well within the OD limit the opposite parties deliberately did not honour the cheque issued by complainant. Hence the complainant is alleging deficiency in service against opposite parties.
2. On receipt of notice of this forum the opposite parties appeared through counsel and filed their version. The opposite parties denied all the allegations made against them by the complainant. According to opposite parties the complaint is not maintainable, the case will not come under the purview of consumer dispute, the complainant ought to file this complaint before Banking Ombudsman’s scheme, 2006. So also the complaint is not maintainable before this forum since the dispute is with regard to the settlement of account. The opposite parties further submits that the overdraft facility sanctioned to the complainant is for a period of twelve months commencing from 03-01-2008 to03-01-2009. The said facility is enjoyed by every customer according to the terms and conditions stipulated in the sanction memo. As per the conditions the complainant ought to have renewed the overdraft facility before the expiry date of 03-01-2009 by submitting necessary renewal documents. Since the renewal of overdraft facility was not done the complainant’s account resulted in limit drop. This fact was brought to the notice of the complainant but the complainant submitted insufficient documents to support the overdraft facility. Therefore the opposite parties gave an option to convert the facility to DOD (Drop Line Over Draft) for a period of six moths and it was agreed by the complainant but the complainant failed to do the necessary follow up works and signing documents. It was due to the negligence and carelessness happened on the part of the complainant, the complainant lost the over draft facility. The opposite party is not responsible for the dishonour of the cheque. Hence there is no merit in the complaint and it is liable to be dismissed.
3. The evidence in this case consists of the evidence of PW1, the Managing Partner of the complainant Firm and Ext.A1 and opposite parties are examined as DW1 and Exts B1 and B2 marked.
4. After considering the above facts the following issues were raised for consideration.
1. Whether the complaint is maintainable?
2. Whether there is any deficiency in service on the part of the opposite parties?
3. If so what order as to relief and costs?
5. Issue No. Maintainability
The opposite parties taken a contention that the complainant has not exhausted the remedies available with Ombudsman constituted under the Banking Ombudsman Scheme 2006 and hence the complaint is not maintainable. The said contention has no force. The Ombudsman scheme is introduced with the object of enabling resolution of complaints relating to certain services rendered by banks and to facilitate the satisfaction or settlement of such complaints. It is not discharging judicial or quesi judicial functions. Therefore a consumer need not exhaust his remedy by approaching the Ombudsman. Further the Hon’ble National Consumer Disputes Redressal Commission while discussing the maintainability of a complaint after the rejection of the same by Insurance Ombudsman has held that the role of Ombudsman is altogether different and it is to act as a counselor or a mediator in matters and the decision of the Ombudsman is not binding in a consumer even if he preferred a complaint. Therefore the complaint is maintainable before this Forum. The second contention of opposite parties is that the complaint is one for a settlement of account and hence it is not maintainable in view of the decision Vishal Roadways V. Economic Traders (Gujarath Ltd) 1998(II) CPJ 9(NC). But the said contention is not acceptable. In this complaint the prayer of the complainant is not for settlement of his account but for an order for damages for the illegal dishonour of the cheque. The said decision is not applicable to this case and hence the complaint is maintainable before this Forum.
6. The definite case of the complainant is that the opposite parties with an intention to cause damages to the reputation of the complainant unlawfully dishonoured the cheque issued by the complainant eventhough there was sufficient fund in the account of the opposite parties. According to the complainant the overdraft facility enjoyed by him is in force during the time of dishonour. Here the version of opposite parties are that the complainant failed to produce the sufficient documents for the renewal of overdraft facility which the complainant enjoyed earlier. This version of opposite parties can be believable because the complainant has no case that he renewed the overdraft facility before the expiry period and the complainant submitted sufficient documents before opposite party for renewal of over draft facility and the same is not accepted by the opposite parties so also the statement of opposite parties that after the expiry of over draft facility the opposite parties granted Drop Line Over draft facility to the complainant for six months is also believable because during that period the complainant issued cheques and the same were duly honoured by the opposite parties. The cheque issued on 11-09-2009 was dishonoured since the Drop Line Over draft facility is available only up to 1-9-2009. From the evidence it is clear that the complainant lost their over draft facility because the complainant failed to submit the sufficient documents. It is not the negligence act of the opposite parties. It is the duty of the complainant to renew the overdraft facility in time and it is not the duty of the opposite parties to renew the over draft facility of the complainant. There is no negligence on the part of the opposite parties. The case of the complainant is that the firm lost its credibility or lowered its reputation in dishonouring of a cheque issued to one Shiva. The dishonouring of the cheque is not illegal or unlawful since there is no overdue facility is in force at the time of dishonour. If the firm lost its credibility or lowered its reputation it is only because of their act itself and not the act of opposite parties. Here there is no evidence before the Forum that the opposite parties are charging interest more than agreed. Hence we are of the opinion that the complaint has no merit.
Therefore the complaint is dismissed. No order as to costs.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
EXts.
A1 14-10-2009 copy of lawyer notice.
B1. 11-01-2008 Committee Sanction Memo No.3A/2008
B2. 15-1-2010 reply notice
PW1. S.A. Wahab.
DW1. Jaimon Mathew.
Sd/- Sd/- Sd/-
MEMBER MEMBER PRESIDENT
Pj/ Forwarded by Order
SENIOR SUPERINTENDENT
