Kerala

StateCommission

A/16/277

THOUFEEQ N H - Complainant(s)

Versus

THE MANAGER INDIAN BANK - Opp.Party(s)

B RAVIKUMAR

12 Oct 2017

ORDER

KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION SISUVIHARLANE VAZHUTHACAUD THIRUVANANTHAPURAM

APPEAL.NO.277/2016

JUDGMENT DATED : 12.10.2017

(Appeal filed against the Order in CC.No.192/2014 on the file of CDRF, Palakkad, order dated : 16.01.2016)

PRESENT

JUSTICE SHRI.S.S.SATHEESACHANDRAN         : PRESIDENT

SRI.V.V.JOSE                                          : MEMBER

APPELLANT

Thoufeeq, N.H.S/O N.K.Hassan, Nadunil House, P.K.Building, Kannoth Kavu, Pirayiri P.O, Pallakkad-678 004

          By Advocate Sri.B.Ravikumar, Palakkad and Saritha V.R.

RESPONDENT

The Manager, Indian Bank Prayiri Branch, 7/341, Krishna Road Junction, Pirayiri P.O, Palakkad 678 004

          By Advocate Sri.S.Sreekumaran Nair

 

JUDGMENT

 

JUSTICE SHRI. S.S.SATHEESACHANDRAN: PRESIDENT

          Opposite party, a bank, in a  complaint case, namely, CC 192/14 of District Forum, Palakkad, has filed this appeal impeaching the order of the Forum directing payment of Rs.one lakh as compensation with cost of Rs.2000/- to the complainant.

     2.  Respondent, hereinafter referred to as the complainant ,moved the complaint alleging deficiency of service by the opposite party/bank, which, according to him, caused him financial loss and severe mental agony.  He presented two cheques for collection, both cheques for Rs.125000/- each, before the bank, and they were encashed and credited in his savings bank account.  His account reflected  balance of Rs.371548/61 on  crediting of the cheques.   He would  allege that a sum of Rs.807.82/- was also credited in his account as interest on 13.01.2014 and, thus, his account had Rs.372356.43 on the above date.  He had withdrawn Rs.25000/- on 13.01.2014, Rs.25000/- on 14.01.2014 and Rs.25000/- on 15/1/2014 through ATM counters and an amount of Rs.250000/- on 15/01/2014 directly from the branch of the bank.  After such withdrawals his account had only Rs.47236.34.  However, a cheque issued by him for Rs.45000/- was dishonoured stating that there was no sufficient funds in his account and that resulted in the payee of the cheque prosecuting him u/s 138 of the Negotiable Instruments Act.  Without giving him any notice, according to the complainant, the opposite party/bank had deducted a sum of Rs.1,25,000/- from his account on 15.1.2014.  Not only that he was not informed of that deduction, it is alleged, that it was done without authority.  However, later, he was informed that a cheque of Corporation Bank, Palakkad for a sum of Rs.125000/- presented by him earlier was dishonoured, but, he had not been issued cheque return memo with the cheque.  The bank had issued a notice to him demanding a sum of Rs.77763/57 towards his liability arising from the dishonouredcheque after adjustment of the balance amount in his account.  Some proceedings were also initiated against him with respect to a loan he had availed from the bank.  It was in this background imputing deficiency of service he had filed the complaint to direct the bank to remit an amount of Rs.125000/- with interest at 18% per annum from 15.01.2014 till payment, to declare that he is not liable to pay the amount of Rs.77763.53 or Rs.84512 demanded in notice issued by the bank and also to pay compensation of  Rs.2 lakhs to him for mental agony and sufferings undergone with cost of Rs.10000/-

          3.      Refuting the case of the complainant, the bank filed a version contending that one among the two cheques presented by the complainant i.e. for a sum of Rs.125000/- was dishonoured and that endorsing of necessary entries in his SB Account. When the complainant had produced  two cheques each for Rs.125000/- the amount under those instruments were credited on the same day before presenting them for clearing.   Later when it was sent to the clearing house  one of the two cheques bounced for insufficiency of funds of the drawer of that instrument..  Before his account reflected the true state of affairs emerging from the dishonouring of that cheque the complainant had withdrawn Rs.250000/- from his account and also some other amounts through ATM.  After such withdrawals alone the bank got intimation of the dishonouring of  cheque and thereupon the S.B.Account of the complainant was debited of the sum under  the dishonoured cheque and bank charges thereof. A debit balance of Rs.77763/57 was found since he had then a credit balance of Rs.47236/43 only.  The bank  contacted the complainant over phone  and he promised to rectify his account, but, later he retracted contending that the amount had to be recovered from thedrawer of the  cheque  which was returned.  A cheque  issued by him  to another was returned dishonoured as his account then had  only a debit balance as indicated above. He had shaped out a case over the dishonor of that cheque and filing of a complaint by the payee in the cheque  for  Rs.45000/- as an experimental venture to claim compensation from the bank. Contending that the complainant is not entitled to any of the reliefs canvassed out the bank urged for dismissal of the complaint.

          4.      Evidence in the case consisted of Ext.A1 to A8 tendered by the complainant,  with both parties leading no  oral evidence.

          5.  The appeal coming up for hearing today only counsel for appellant appeared.  Respondent/complainant was absent. 

          6.  We heard the counsel for the appellant and perused the records.

          7.  We are surprised to note that Forum below had failed to appreciate the facts and circumstances with reference to the materials produced.  Proceeding with a view that the bank committed a gross negligent act in crediting to SB account of  complainant the amounts covered by the two cheques presented by him on 10/01/2014 before it was cleared through the clearing house the Forum concluded that there was deficiency of service by the bank.  In banking practice which is built upon  trust  confidence of banker in his customer empowers it to credit the cheque amounts on presentation itself without waiting for clearing.  There is no rule or law that the bank should wait for the clearing of the cheques, the delay which may be detrimental to the customer.  On any count the inference drawn by the Forum that crediting of the cheque amounts on presentation itself was a negligent act and it amounted to deficiency of service, is unworthy of any merit.  Immediately on knowing that one of the cheques presented for  a sum of Rs.125000/- when sent over for clearing was dishonoured the bank issued a registered notice.  Ext.A1 is the copy of that notice. That was responded by the complainant with A2 reply through an advocate.  A reading of his reply would disclose that right from knowing of the dishonour of one of the cheques presented by him he was trying to evade his liability to clear of the  debit balance in his account.  Merely because the bank credited the cheque amounts covered by the two cheques each for Rs.125000/-, on the date of its presentation itself, no right to retain the entire amount would flow to the complainant. If at all the crediting of the cheque amount turned out  to be not correct on account of dischonour of the instrument later the complainant is duty bound to discharge whatsoever sum due to the bank by dishonouring of the instrument.  Rather than accepting his liability to pay back to the bank whatever due on dishonouring of the instrument of Rs.125000/-.  it is evidently clear  the complainant was bent upon shaping out a case                that he was put to financial loss and mental agony.  We also find from perusal of complaint that material facts had been suppressed over the dishonour of his cheques the amounts which had been credited in his account on presentation before  the bank.  Bonafide believing that his cheques would be honoured when sent over to clearing house the bank credited the amounts on presentation.  On such crediting and  after reaping all the benefits thereof Complainant accused the bank of  deficiency of service.  A cheque issued by him later for a sum of Rs.45000/- was dishonoured for the reason that his account then  had only  a debit balance.  The bank was fully justified in dishonouring  that cheque and consequenced thereof necessarily has to be borne by the complainant and none else.  Without appreciating the circumstances  indicated above finding fault with the bank for crediting the cheque amounts under the two instruments on the presentation date itself as a negligent act the Forum concluded that there was deficiency of service by the bank.  We do not find anything more in the discussion of the Forum in the Order how it has reached a conclusion that there was deficiency of service by the bank.  Strangely enough the Forum had also formed a conclusion that the bank failed to return the  dishonoured cheque with cheque return memo to the complainant. No oral evidence was tendered by the complainant in support of that allegation set out in his complaint which was denied by bank.  The Forum has observed that the bank retained the cheque and unilaterally transferred the excess amount which was withdrawn by the complainant from his account into temporary over draft without fulfilling the formalities and it had also demanded penal interest.  It has drawn such conclusion from Ext.A4 which related to a loan transaction of the complainant and the amount due from him.  Issue of  Ext.A4 notice is viewed by the Forum as an unfair trade practice.  Complainant had no such case. We find it difficult how the Forum has formed  an opinion that there was unfair trade practice by the bank in issuing  a notice intimating the amount due under a loan from the complainant.  The only other circumstance which weighed with the Forum to grant reliefs to the complainant is his prosecution for the dishonoured cheque issued for a sum of Rs.45000/- We have already held that the bank was perfectly justified in dishonouring that cheque when his account showed a debit balance  Complaint alone was culpable for the dishonor of his cheque and he was bound to face the consequences thereof.  In short, there was total non application of  mind by the Forum in appreciating the facts and circumstance and also materials produced in the case and that had resulted in manifestation of injustice in granting  reliefs to  complainant which he was not entitled to under law and facts.

          In the result, reversing the order of the Forum the appeal is allowed with cost quantified at Rs.10000/- to the bank from the complainant.      Complaint shall stand dismissed.

JUSTICE S.S.SATHEESACHANDRAN:  PRESIDENT

 

Pr                         V.V.JOSE                     :  MEMBER

 

 

 

THE KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSIION

VAZHUTHACAUDE,

THIRUVANANTHAPURAM

 

 

 

 

 

          JUDGMENT IN  A.277/2016        

         DATED 12.10.2017