DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the 16^th day of January 2016

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                               Date of filing: 08/12/2014

                                                      (C.C.No.192/2014)       

Thoufeeq.N.H.

S/o.N.K.Hassan,

Nadunil  House, P.K.Building,

Kannothkavu, Pirayiri Post,

Palakkad – 678 004                                                 -        Complainant

(By Adv.B.Ravikumar) 

Vs

The Manager ,

Indian Bank Pirayiri Branch,

7/341, Krishna Road Junction,

Pirayiri Post

Palakkad – 678 004                                                  -       Opposite party

(By Adv.S.M.Unnikrishnan)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

The complainant is having a savings bank account No.6147976050 with the opposite party.  The complainant presented two cheques for collection  through opposite party, one cheque No.340237 of SBI Mercy College Branch, Palakkad for Rs.1,25,000/- and the other cheque bearing No.631557 drawn  on the Corporation Bank, Palakkad Branch for Rs.125000/-.  Complainant submitted that both  cheques were encashed and credited  to the account of the complainant on 10/1/2014. On 13.01.2014 there was a balance of            Rs.3,72,356.43/- in his account.  The complainant had withdrawn Rs.25,000/- on 13/1/2014 and Rs.25,000/- on 14/1/2014 and Rs.25,000/- on 15/1/2014 through ATM counters. An amount of Rs.2,50,000/- was withdrawn on 15/1/2014 through the branch directly. Thus the balance in his account as on 15/1/2014 was Rs.47,236.43/-.

The complainant had issued a cheque No.007623 dated 21/1/2014  to M/s.Galaxy Saw Mill Kuthirappara, Kannadi for an amount of Rs.45,000/-  towards his liability. But the cheque was returned as  unpaid stating that there were no sufficient funds in the account of the complainant. M/s.Galaxy saw Mill Kuthirappara, Kannadi sent a lawyer notice dated 8/2/2014 under section 138 of negotiable instrument act demanding the amount of Rs.45,000/-  due. Thereafter a criminal case was filed by M/s.Galaxy saw Mill Kuthirappara, Kannadi against the complainant and the same is pending before the Judicial First Class Magistrate Court No.I Palakkad as ST 2331/2014.  The complainant had engaged a lawyer and had to take bail in that case.

   It is submitted that the return of cheque was not informed to complainant and the cheque return memo were also not given to complainant. On 16/1/2014 the opposite party sent a letter alongwith photocopy   of the cheque return memo. The complainant had sent a reply on 30/1/2014 to the opposite party.

Subsequently the opposite party had issued a reply notice dated 22/5/2014 to the complainant demanding the amount of Rs.77,763.57/- with interest within 7 days.

The opposite party had sent a letter dated 21/11/2014, stating that the complainant had taken a loan from the bank on 15/1/2014 with loan No.6147976050 and demanding to pay an amount of Rs.84,572/- and to avail the concessions in the recovery camp conducted by the opposite party. The complainant had not taken any loan as alleged in  the notice. He is not liable to pay any amount as demanded as well.  The opposite party had wrongfully debited an amount of Rs.1,25,000/- from the account of the complainant without any reasons. Due to the illegal and unjustifiable action of the opposite party, the complainant had lost an amount of Rs.125000/- and interest from his account. As a result  of the  deficiency of service of the opposite party, the complainant herein had become an accused in a criminal case. The same had resulted in very serious mental agony, which cannot be quantified and compensated in terms of money alone.  He had to spent an amount Rs.5000/- for the criminal case. Moreover the opposite party  is even now debiting interest from his account. They are demanding unreasonable amounts from the complainant which cause  great mental agony to the complainant. 

Therefore complainant prays for an order

1. Directing the opposite party to remit an amount of Rs.125000/- with interest at the rate of 18% per annum from 15/1/2014 till payment to the complainant.
2. To declare that the complainant is not liable to pay the amount of Rs.77,763.53/- or Rs.84,572/- as demanded in the notices dated 16/1/2014, 22/5/2014 and 21/11/2014.
3. To pay an amount of Rs.2,00,000/- to the complainant as compensation for the mental agony and sufferings.
4. To pay an amount of Rs.10,000/- towards costs and compensatory cost of this proceedings.

Complaint was admitted and issued notice to opposite party. Opposite party appeared before this forum and filed version contending the following:

Opposite party admitted that complainant is maintaining a SB A/c as No.6147976050 with them and presented two cheques  of SBI, Mercy College Branch, Palakkad and of Corporation Bank, Palakkad branch for collection through  opposite party Palakkad main branch. The cheque No.631357 of Corporation Bank for Rs.125000/- dated 7/1/2014 submitted by complainant was returned by Corporation Bank stating the reason – funds insufficient. But before reversing the cheque return amount from our client account, the amount was withdrawn by complainant resulting in an excess payment of Rs.77,763.57/- on 15/1/2014. This fact was informed to complainant over phone and in person on the same day. 

On 17/1/2014 the complainant approached Indian Bank, Pirayiri for withdrawal of Rs.45,000/- by way of cheque and in the circumstances mentioned above the cheque was returned unpaid stating the reasons funds insufficient. Opposite party admitted that the cheque bearing No.007623 dated 21/1/2014 for Rs.45,000/- given to M/s.Galaxy Saw Mill, Kuthirappara, Kannadi by the complainant was presented  to Indian Bank Pirayiri Branch. This cheque was returned due to insufficiency of funds in the account of the complainant. The opposite party could not honour this cheque since there was no sufficient amount in the account of the complainant. Opposite party contended that   the complainant approached the bank on 17/1/2014 for withdrawal of Rs.45,000/- is willfully suppressed by him in the complaint. The averment in the complaint that M/s.Galaxy Saw Mill sent a notice under section 138 of the negotiable instrument act to the complainant on 8/2/2014 when cheque  bearing No.007623 was dishonoured and that he filed a criminal complaint against the complainant as stated in the complaint  are facts within the special knowledge  of the complainant.  Opposite party is not responsible  or liable  for the notice under section 138  and the criminal case mentioned in the complaint.

 The complainant sent a reply to the notice of the opposite party on 30/1/2014 through his advocate  and the opposite party sent a reply to the same on 22/5/2014. The willful suppression of the complainant that he presented a cheque bearing No.007622 to the opposite party on 17/1/2014 and that this was returned unpaid itself shows the malafide intention and the calculated move of the complainant. It is true that on 21/11/2014 the opposite party sent a letter to the complainant demanding to pay Rs.84,572/- and to avail the concessions in the recovery camp. The excess payment made by the bank as stated above and benefit obtained by the complainant is treated as a temporary overdraft and the complainant is liable to pay the amount reflected in his concerned loan account. The opposite party is not guilty of deficiency  of service as alleged in the complaint.

Complainant and opposite party filed their respective chief affidavits. Exts.A1 series to A8 except Ext.A5 are marked from the side of the complainant. No documents from the side of opposite party.

The following issues are considered

1. Whether there is deficiency in service on the part of opposite parties?

2.If so, what is the relief?

Issues 1 and 2

Opposite party admitted the fact that complainant presented two cheques one bearing No.340237 of SBI Mercy College Branch, Palakkad for Rs.1,25,000/- and the other bearing No.631557 drawn  on the Corporation Bank, Palakkad Branch for Rs.125000/-for collection and both the cheques were credited  to the account of the complainant on 10/1/2014. Ext.A8 also proves this fact. Even before collecting cash or cheque or getting the cheque return memo opposite party’s official credited the cheque amount to the complainant’s account. This act itself is a negligent act of the opposite party which amounts to deficiency in service. Ext A1 series shows that the cheque was dishonored on 11-1-2014. But Opposite party made reverse entry only after four days from the dishonor of cheque i.e. on 15-1-2014. According to the complainant, believing entries in his account, complainant issued cheque of     Rs.45000/- in favour of Mr.Sidhiq, M/s Galaxy Saw Mill.

Ext.A1 shows that the opposite party sent a registered letter to the complainant only on 16-1-2014. Opposite party submitted that they went to complainant’s house on 15-1-2014. But they could not meet the complainant there and on 16-1-2014 the opposite party contacted the complainant over phone. But no evidence is adduced to prove this version of opposite parties. No document is produced to show that the complainant had received the registered letter on or before 21-1-2014 i.e before the issuance of cheque. Opposite party failed to prove that they had intimated about the dishonor of cheque.    Moreover it is the bounden duty of the bank to return the cheque along with cheque return memo with remarks that funds insufficient immediately after the dishonor of cheque. Opposite party is terribly remiss in discharge of its duties. Instead, opposite party 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 demanded the penal interest. Ext A4 notice proved these facts. This act of opposite party  amounts to unfair trade practice.  Opposite party’s contended that the complainant approached the bank on 17/1/2014 for withdrawal of Rs.45,000/-. But opposite party had not  produced anything to prove this contention.  Complainant has no liability to pay  Rs.84,572/- as per the demand notice dated  21/11/2014. Instead he has the liability to pay Rs. 77763.57 to the opposite party which was withdrawn by him in excess from his account.

On verification of Ext A6 and A7 it is revealed that the complainant is charged with an offence under section 138 of Negotiable Instrument Act. This   occurred due to the deficiency in service of the opposite party. No doubt it will definitely cause severe mental agony to the complainant. Since No contrary evidence is adduced by the opposite parties to  rebut those contentions the  opposite party has the liability to pay compensation to the complainant for the mental agony suffered by him.

 In these circumstances, we are of the opinion that opposite party has committed deficiency in service and unfair trade practice. In the result complaint is allowed. The opposite party is directed to pay Rs.1,00,000/- (Rupees One lakh only)  as compensation for mental agony along with cost of    Rs.2,000/- (Rupees Two thousand only) to the complainant.

Opposite party has the right to adjust amount of Rs.77,763.57/- (Rupees Seventy seven thousand seven hundred and sixty three and fifty seven paise only)  which was withdrawn by the complainant in excess from his account from the ordered amount.

Order shall be complied within a period of one month from the date of receipt of order, failing which complainant is eligible for 9% interest per annum for the whole amount from the date of order, till realization.

Pronounced in the open court on this the 16^th day of January 2016.

      Sd/-

                      Shiny.P.R.

                      President   

                          Sd/-

                      Suma.K.P.

                      Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 series –  Original notice dated 16/1/14 alongwith dishonor memo sent to

                        complainant by  opposite party

Ext.A2  -  Copy of reply notice with postal receipt and A/D card dated 30/1/14

               sent  by complainant, advocate  to opposite party

Ext.A3 -  Original notice dated 22/5/14 sent to opposite party’s advocate by

              complainant’s advocate

Ext.A4   -Original notice dated 21/11/14 sent to complainant  by opposite

               party 

Ext.A6 – Summons in ST 2331/2014 of JFCM I Palakkad dated 7/7/14

Ext.A7 – Lawyer notice sent to complainant dated 8/2/2014.

Ext.A8 – Statement of Accounts

Exhibits marked on the side of opposite party

Nil

Cost 

Rs.2,000/- allowed as cost of the proceedings.