SRI NILAKANTHA PANDA, PRESIDENT

                The Complainant has filed this complaint petition, U/s-35 of C.P.A.-2019, (here-in- after called as the “Act”), on dated 23/06/2015, alleging a “deficiency-in-service” by the Ops, where O.P No.1 is the Manager, IndusInd Bank Ltd, Balasore Branch, Balasore and OP No.2 is the Manager, Central Bank of India, Balasore Branch, Balasore. That, as per the complainant’s petition the cause of action arose on dated 08/08/2014 (The First date of Cheque Bounce).

                That upon admission of the present case matter, the Ops were appropriately noticed along with copy of the complaint petition. The record says, the notice was served on OP No.1 and he was appeared on 29/07/2015. OP No.2 was appeared in this case on 16/09/2015.

                The Ops have appeared in this case through their respective counsels and filled their separate written versions within the statutory period.

                The case of the Complainant, in brief is that, he has purchased one motor cycle (Passion XRRO) for an amount of Rs.52, 334.00 from one M/s Neelam Motors Pvt. Ltd at Balasore incurring a loan from IndusInd Bank (OP No.1) for an amount of Rs.33, 000.00 and the OP No.1 charged agreement amount of Rs.39, 000.00 for 20 equal instalments amounting to Rs.1950.00 for each instalment and taken four pieces of cheques of “Central Bank” as security. Thereafter, when the OP No.1 placed the cheque to collect the instalment amount from OP No.2, then the cheque became unclear (Bounced) although sufficient amount were in the account of complainant and each time Bank charged Rs.112.00 from the complainant ( Rs 100/- as NECS Charge & Rs 12/- Service Tax). Further, OP No.1 used to collect cash EMI amount of Rs.1950.00 each month since 08/08/2014 by deputing an agent to complainant’s house. The OP No.2 also deducted Rs.112.00 every time from his account, for each occasion of presenting the cheques at its custody. The complainant approached the OP No.1 to deposit EMI directly at its office, but the OP No 1, without considering the request of complainant, insisted that the agent will collect the amount from him, but till today neither OP No.1 nor any of his agent collect the EMI, rather charged extra Rs.02, 000.00 to take the EMI illegally. Therefore, the complainant prayed for realization of amount of Rs.672.00 from OP No.1 and to direct the OP No.1 to take the instalment amount with any charges. Lastly, the complainant claimed compensation of Rs.05, 000.00 for his mental agony with cost. Hence the complainant filed this petition.

                That to substantiate the complaint, the complainant relied upon the following documents, which are placed in the record, as mentioned hereunder:-

1. Copy of Cash Deposit Slips (03 Sheets)
2. Copy of Notice from OP No -1 (For non-Payment)
3. Copy of Statement of Account annexed to above Letter.
4. Copy of Letter of Complainant to OP No 1
5. Copy of Letter of OP No -1, to Complainant
6. Copy of Complaint’s Bank Statement from 19/04/2014 till 06/04/2015.
7. Copy of Complaint’s Bank Statement from 08/01/2015 till 18/11/2016.

                The OP No.1, in his written version, denying the averments made in the complaint petition so also claims, demands, stated that the present case is not maintainable and there is no cause of action for filing this case. It is further stated that the complainant does not fall within the definition of consumer, rather it is a civil dispute. The complaint petition is not maintainable as the loan agreement contains the clause for “Arbitration” and Territorial jurisdiction. The complainant has not come to this forum in clean hands and suppressed the material facts and he has filed this case only to escape from the loan liability. Further, it is quite reasonable that when the agent of OP No.1 used to go to the residence of complainant to collect EMI, the complainant should pay collection charges, service tax, cess, for that OP No.1 bank claimed Rs.250.00 each time as per the terms and conditions of the agreement and when the complainant paid the EMI himself in the office, he was not charged to pay extra charge. With a view to deprive the bank from his legitimate claim, the complainant has filed this case and has stopped the payment of his EMIs. Lastly, OP No.1 prayed to issue direction to the complainant for making regular payment of EMIs.

                That to substantiate the complaint, the complainant relied upon the following documents, which are placed in the record, as mentioned hereunder:-

1. Copy of Agreement
2. Copy of Awarded Arbitration

                The OP No.2, in his written version, has denied the averments made in the complaint petition OP No.2 admitted that the complainant is an account holder under them and was issued with cheque book. The OP No.2 has no knowledge about the fact of hire purchase of vehicle from OP No.1 or deposits of cheque for EMI payment. The OP No.2 has no knowledge about the presentation of cheques at Bhubaneswar nor has the OP No.2 bank got any scope to fine out the matter. Neither the complainant nor the OP No.1 informed about this matter regarding dishonour of one cheque. That regarding the use of issued cheques, more specifically for using for EMIs, the complainant did not follow the then RBI Guidelines. Thus, OP No.2 prayed to dismiss the case with cost. However the OP No.2 has not relied upon any documents, to substantiate its stand.

                In view of the above averments of parties, the points for determination in this case are as follows:-

(i)            Whether the Complainant is a Consumer as per C.P Act, 2019?

(ii)           Whether there is any cause of action to file this case?

(iii)          Whether this Consumer case is maintainable as per Law?

(iv)          Whether there is any deficiency of service on the part of the O.Ps?

(v)           Whether the complainant is entitled to get the relief, as sought for?

(vi)          To what other relief(s), the Complainant is entitled to?

F I N D I N G S

                All the issues are taken up together for the sake of convenience and for better appreciation of the case.

                That upon meticulous examination of the Complaint Petition, Written Version of OPs along with the documents produced by both the parties in this case, it is found that the complainant had purchased a Motor Bike of Hero Honda make from one M/s Neelam Motors on 09/07/2014 for an amount of Rs 52, 334.00 and obtained appropriate tax invoice. That to effect the said purchase the instant complainant incurred a financial assistance from OP No-1, for a sum of Rs 33, 000/- and conditioned to pay total of Rs 39, 000/-, including interest, spreaded over 20 numbers of instalments each @ Rs 1950/-, for use of that money for its own purpose. Hence it is concluded that the complainant is a consumer as per Sec 5(VI) of the C P Act.

                That referring to the Bank Statement of the complainant, attached with the complaint petition, in connection with the para no 03 of the complaint petition, it is clearly observed that, the first cheque placed by the OP No 1, got bounced on dated 08/04/2014, with appropriate cost & tax, despite the account maintained with OP No-2, having sufficient fund “over and above” the cheque amount. That allegedly there from the cause of action arose.

                That it is observed from the complaint petition that, the OP No – 1, who is the financer to the complainant has experienced multiple cheque bounces of those cheques which were submitted by the complainant. That without going to the root reason of the matter for bounce, has obtained the usual method of collection of funds through cash mode by imposing various service charges, without considering the letter of complainant dated 01/06/2015. Rather on the other hand the OP No-1, has issued a letter to complainant dated 05/06/2015, suggesting with three options i.e., contact with bank for resolving the issue, make payment through cash by paying cash handling charges of Rs 250/- and make payment through other bank. That being a Banking Organisation it has performed as a NBFC.

                That in other hand upon going through the WV of the OP No -2, it is observed that though the OP No -2, has charged appropriate Service Tax, on each bounce of the cheques has tried to make its hand clean by throwing the responsibility / liability on clearing Bhubaneswar Branch & RBI guideline. Hence, basing on above two reasons on the parts of both the OPs, it is determined that the present case filled is within the permitted scope of the CP Act, hence it is maintainable under this Act.             

                That while going through the para 7 of WS of OP No – 1, who is the financing bank, it is observed that the instant OP tried to rely upon the clause no 23.1 & 23.2 of Agreement which depicts the provision of “Arbitration” for any dispute. But on referring to the Arbitration Award it is seen that the Arbitration was initiated (Dated – 18/09/2017) long after of the institution of this case before this Commission, when the matter was sub-judiced. That in addition to this, it is also pertinent to mention that, on the very date of filling of WS of OP No-1 (Dated - 16/09/2015), upon hearing the submission of the instant OP, this commission passed an interim order to “keep on depositing the remaining EMIs”, during the pendency of this case hearing, for sustenance of financing company. That on referring to the Bank Statement as submitted by the complainant for the period 08/01/2015 till 18/11/2016, it is clearly observed that the complainant had appropriately obeyed the order of this Commission by depositing the rest of the EMIs. So this Commission does not find any valid reason for institution of Arbitration against the complainant. Rather it is clearly smelled out that the OP No -1 has applied its devil mind to divert this commission and subjugate the dispute of Arbitration, for satisfying its malafied intention. Hence on the said circumstances the Arbitration Award of the    OP No -1, set as “illegitimate and superfluous”, for the reason that the OP No -1 has tried to put a veil on the eye of this Commission in lieu Arbitration.

                That going through the para 9 of the WS pf the OP No – 1 along with the letter issued by this OP to the complainant, dated 05/06/2015, it is observed that, though the OP No – 1, acknowledges sufficiency of fund with the complainant’s account, but, fails to find the actual reason for bounce & also on whose part the lacuna lies, for use & bounce of cheques. This point is appropriately discussed below, together with, in reference to the submission of OP No – 2, along with its relaying notification of RBI. Where from it would be concluded, that the lacuna lies with both the OPs.

                That the OP No -2, the “Account Holding & Cheque issuing Bank”, has submitted its WS on dated 07/11/2016. The OP No -2, did not submit any document in its support of its claim as made out in WS. That, besides the usual arguments, the instant OP emphasised few points in para 6. They are as under;

1. OP No -2 was not in knowledge of nature of use of Cheques by complainant (i.e. For EMIs).
2. As per RBI notification dated 24/07/2013, all the old pattern cheques required to be exchanged with New CTC Cheques for ECS uses, by presenting concern (i.e. OP No -1).
3. The cheques were presented at Bhubaneswar, for clearing, which was beyond the control & scope of knowledge of the OP No -2.

                That now on examining the first contention as made out by OP No -2, as aforesaid, we infer that, an account holding concern is not bound by any law / procedure, to furnish prior information about future use of the acquired cheques. As this is a vague plea, is not acceptable, hence rejected.

                That as regard to the RBI notification dated 24/07/2013, bearing no RBI/2013-14/158 regarding ECS cheques, the OP No – 2, did not furnish any document to that effect. Hence for proper adjudication of the matter, this Commission on its own, invoked the same for appropriate reference, which is kept in record.

                That upon through going through the RBI notification, we observe, Banks are advised not to accept old pattern cheques where ECS facilities are available. That, in this context we are to conclude that, if such is the matter, then how come the OP No -1, being the lending Bank did not intimate the complainant the same and kept on using those old patterned cheques repeatedly. Secondly the OP No – 2, who is the Banker of the Complainant did not take any step towards educating / intimating its customer (Complainants) regarding the non-use of old patterned cheques, despite observing and collecting charges for bounce for the reason of non-cts cheques.

                That the OP No – 2, has taken a plea that, as the cheques were placed for clearance at Bhubaneswar, hence the concerned “accounting holding branch” had no scope to find the matter. This commission upon going through this argument of OP No – 2, infer that, this is a very cheap & irresponsible statement given by the instant OP. That when a branch opens / operate an account, issue cheques and control / manage the account, take financial advantages out of transaction made by the account holder, the it is the prime duty of that branch to “look into” & “look after” all the aspects of that “account” & the “account holder”. Hence this plea of “out station clearing” is not acceptable and hence rejected.

                That rest of the submissions of the OPs, are stereophonic, usual and are irrelevant, which do not require addressing.

                Hence upon travelling through the substance, as aforesaid and described circumstances leads this Commission to arrive at unanimous conclusion that there is gross deficiency on both the part of the OPs and all the OPs are jointly and severally liable for loss incurred on the part of the complainant.

                So, now upon careful consideration of all the materials available in the case record vis-a-vis submission made by complainant & O.Ps, this Commission is of the unanimous opinion that the OPs have not adjudicated their dispute properly before the Commission. There is no solution arrived by the O.Ps for the loss sustained / suffered by the Complainant incurring out of deficiency on the part of OPs, which legally termed as deficiency-in-service by the O.Ps. Therefore, the complainant is reserves the right to be entitled to get the relief as sought for. Hence, it is ordered -

                                                                 O   R   D   E   R

                Having regard to the judgement reflected above, the Complaint Petition of the instant Consumer bears merit and hence allowed on contest against both O.Ps. The O.P No – 1 & 2, are hereby severally and jointly set liable for its deficiency of service.

                The OP No – 1 is hereby directed to pay Rs. 672/-, along with interest @09.00% P.A., from the date of cause of action arose (08/08/2014) till the date of release of on said sum, within sixty days from receipt of this order. That the OP No -1, is hereby directed to pay, along with aforesaid, a sum of Rs. 05, 000/-, (Five Thousand Only) as compensation for both mental agony & harassment, as sustained by the complainant.

                That this Commission is of the unanimous opinion that there is a gross deficiency on the part of the OP No -2, as that of OP No -1. But the hands of this commission is tight to award any compensation, as there is no prayer sought for by the complainant. But this does not make the OP No – 2, free from any liability as well as responsibility.  

                That delay in any manner, what so ever, for compliance of this order, for the OP No - 1, shall carry fine of Rs. 500/-, per day, payable by the defaulter OP/s to the complainant.

                In case of failure by any of the O.Ps to comply the order within the aforesaid stipulated time frame, the Complainant is at liberty to realize the same amount from the O.Ps as per prevailing law.

                Pronounced in the open Court of this Commission on this day i.e. the 05^th day of June, 2023 given under my Signature & Seal of the commission.