Per Justice Mr.S.B.Mhase, Hon’ble President:

Heard both the Counsels. 

This complaint is being disposed of at the admission stage itself.  By this complaint the complainant is making following prayers:-

a)                Direct the opp.party-Bank to refund the amount of

` 52,09,771/- with interest @12% p.a. to the complainant.

b)                Direct the opp.party-Bank to pay the amount of

` 1,04,196/- with interest @12% p.a. to the      complainant.

c)                 Direct the opp.party-Bank to pay pendente lite interest @12% p.a. on the sum of `  53,13,967/-.

d)                Direct the opp.party-Bank to pay damages in a sum of ` 9,78,398/-.

e)                 Cost of litigation.

Thus, what we find that the amount of ` 52,09,771/- has been claimed with interest    @    12% p.a.  On  the  said  amount by  way  of  a  mental  agony

` 1,04,196/- has been claimed along with interest @12% p.a.  The damages have been claimed to the extent of ` 9,78,398/- and cost of litigation etc. has been claimed.  The facts involved and which are not in dispute are as follows:-

          The complainant is a software company and it has its own employees.  The said company is under obligation to pay the tax either to the Central Government or to the State Government.  Apart from the liability for the company to pay income tax, the complainant company is also supposed to deduct the professional tax from the salaries of the employees and the said amount is to be deducted as TDS by employer.  The professional tax is a tax of the State Government of Maharastra which is equally to be recovered by the employer from the salaries of the employees which is also a “Tax Deducted at Source” and for a short purpose it is referred as “TDS”.  Thus, the obligation to deduct both the taxes from the salaries of the employee as TDS was/is on the complainant.  In order to provide a facility of depositing this TDS amounts with the concerned department, the opponent/ State Bank of India is one of the agencies for depositing such a taxes and the amounts to be deducted from the salary of the employees as TDS and therefore, income tax, professional tax can be deposited by the complainant and after said deposit the amount will be transferred in the respective accounts of the concerned departments. 

On 04/04/2008 the complainant has drawn a cheque no. 081689 dated 04/04/2008 drawn on the Citibank NA payable at Mumbai  for an   amount  of   ` 52,09,771/- and it was a TDS for the period from 01/03/2008 to 31/03/2008.  The cheque was issued as “State Bank of India A/c TDS”.  Along with this cheque there was Return-Cum-Challan, part III of The Maharashtra State Tax on Professions, Traders, Callings and Employments Act, 1975 and Rule no.11, 11-A, 11-B, 11-C.  In the said challan particulars of the amount of  ` 52,09,771/- were given.  Specifically the profession tax registration certificate number and period for which the tax at source has been deduced and being deposited has been stated.  This cheque along with Return-Cum-Challan was presented to the opponent.  After receipt of this cheque and challan opponent-Bank has sent the said cheque for collection to the Citibank and after payment is received from the collecting bank, the amount has been transferred in the account of Professional Tax Department of Government of Maharashtra.  Thereafter, on 29/05/2008 the complainant has issued a letter to the Manager of the Opponent-bank demanding a payment certificate. It is stated in the said letter,“We have paid `. 52,09,771/- vide cheque no. 081689 dated 04/04/2008 drawn on Citibank NA, payable at Mumbai to the credit of profession tax department of Maharastra through State Bank of India, branch at Ghatkopar.  The amount has been debited in our bank statement on April 10, 2008 and we have got a receipted challan dated April 15, 2008 to this effect.  We request to kindly issue us certificate stating that the said amount has been collected from us and remitted to the Credit of Profession Tax Department, Maharashtra on April 15, 2008 and oblige”. 

No doubt after receipt of this letter the opponent has issued a certificate as demanded but thereafter, after period of five months on 09/09/2008 the complainant has started to make a grievance in respect of return of amount of    ` 52,09,771/- making a grievance  that challan which was annexed to the said cheuqe was inadvertently submitted as profession tax challan and therefore, said amount has been according to the complainant, wrongly credited to the account of professional tax account and therefore, the amount was demanded.  Thereafter, there is another letter sent by opponent on October 29, 2008 covering a subject of “ Refund of wrong payment of  ` 52,09,771/- by SBI ”.  It appears from letter of the bank dated 04/11/2008 that the official of the bank had been to the professional tax department and they were informed by the official of the said department orally that they are ready to refund the said amount subject of submission of professional tax challans and salary register from the year 2002 onwards and bank has informed that it has submitted the necessary record with the bank and directed that complainant shall also submit necessary information to the profession tax department.  Thereafter, notice has been issued and complaint has been filed.  After the cheque was deposited with the opponent-Bank as stated earlier the cheque was sent to a collecting bank.  From the collecting bank after the amount was received, entry was made by the Citibank in the account of the complainant on 10/04/2008.  Said entry is as follows:

          “ MICR CLG CHQ                            -5,209,771.00

            WITHDRAWAL

           SBI A/C TDS SALARY

          CHECK/REF.081689

          TRN REF NO: D01INMI081015658”

In the complaint it is specifically admitted that inadvertently the complainant along with the said cheque sent a professional tax challan therefore, he further submitted that in respect of  this mistake on the part of complainant, the opponent should have noted the discrepancy in the cheque and  challan and should have asked the clarification from the complainant or should have made enquiry with the complainant and after getting clarification from the complainant, the amount should have been credited and thus, there is a deficiency in service on the part of opponent-Bank. 

What we find is that this all is an after thought story developed by the complainant in  respect of deficiency in service.  In letter dated 29/05/2008 he has specifically stated that the payment has been made towards the professional tax of ` 52,09,771/- by cheque no. 081689 dated 04/4/2008.  He has accepted that professional tax challan has been received and claimed certificate from the bank in respect of payment being credited to the profession tax.  Had it been inadvertent mistake on the part of complainant, the complainant would not have issued such a letter and claimed such a certificate from the bank.  But for the reasons best known to them after period of five months in the month of September-2008 the complainant has taken a somersault.  What is interesting to note is that, that the bank officials have reported to him that as per his request they had been to the Profession Tax Department and department has shown willingness to refund the amount if, it is a wrong payment.  But department officials wanted to scrutinize the record of the complainant from year 2002.  Whatever the record which was available with the bank in respect of profession tax account of the complainant, the bank officials have rendered to the Professional Tax Department.  However, the fact remains that original record in respect of employees attendance of the complainant is with the complainant only and it appears that complainant is not desirous in producing the said record before profession tax authorities and therefore, in stead of co-operating with the bank and the profession tax authorities, the complainant is much interested in pointing out that it is a erroneous payment and so also to avoid the payment to the Profession Tax Department, it has selected a path to file the complaint, because it is equally possible that the original record with him in respect of employment of the persons may not be suitable to produce before tax authorities.  In fact, the bonafide employer, who has deducted tax from his employees salaries from time to time and deposited, would have bonafidely came forward with the record to produce it before the tax authorities and claimed refund alleging inadvertent mistake on his part.  But in order to avoid such inquiry, this complaint has been started.  What we have observed that this is all an after thought efforts to avoid inquiry into profession tax account of the complainant.

          What is important is that Ld.Counsel for the complainant submitted that the cheuqe should not have been honored.  He submitted that as per provision of Negotiable Instrument Act when the drawer of the cheque had issued a specific direction by cross cheque  making it in TDS account, the cheque should have been credited as per the directions and no other method should have been adopted. In short, the Ld.Counsel for the complainant tried to persuade us that the since the cheuqe has been honored, the amount should have been credited to the income tax department.  He submitted that relying  upon the entry dated 10/04/2008 from the Citibank account which we have reproduced above that this was the TDS towards the salary and therefore, the amount should have been credited to the income tax department.  We do not find any merit in the said submission.  Firstly, both the taxes namely, the income tax deduction and profession tax deduction are the deductions at source and they are “TDS”.  Therefore, said distinction cannot be made only because in his passbook of the Citibank account a word “SLALRY” appears.  That does not make difference to the opponent because both the amounts have been deducted from the salary only and therefore, by the word “SALARY” appearing in the statement of Citibank is of no  help to the complainant. Thirdly, there is no tax paid along the challan.  On the contrary, the cheque was drawn in the name of the opponent in the TDS account coupled with profession tax challan.  Therefore, the bank is justified in crediting the amount in the profession tax account.  It is to be noted that cheque was drawn as on “State Bank of India Account TDS”.  Therefore, such a cheque being itself to be credited in the income tax department should have accompanied with challan of income tax department.  Therefore, what we find is that documents which were presented very categorically giving a direction to the opponent-Bank that the amount of TDS of ` 52,09,771/- is to be credited to the profession tax account and there was no alleged discrepancy as pleaded by the Ld.Counsel for opponent before us.  Therefore, what we find is that bank has obeyed the direction as given by the complainant and credited the amount.  There is no deficiency in service on the part of the opponent-Bank.  We also observe that mistake being committed inadvertently is a case of complaint.  Therefore, for the mistake committed by complainant the opponent-bank cannot be held liable or responsible.  That too for deficiency in service.   

          Next submission which has been developed by the Ld.Counsel for the complainant relying upon Section 131 of Negotiable Instrument Act is that, that act on the part of the bank was not bonafide and negligent and therefore, bank is deficient in rendering its services. In support of his contention relying on Section 131, he relied upon the judgement of Apex Court passed in case of The Kerala State Co-operative Marketing Federation V/s. State Bank of India and others (2004 (2) SCC 425 ).  The emphasis of Ld.Counsel was on the test laid down in para 10 of the order.  This Section is in respect of non-liability of a banker receiving payment by cheque.  Therefore, this Section can be used by the bankers and whenever the question of liability arises as against the bankers.  As per this Section a banker, “ who has in good faith and without negligence received a payment for a customer of cheque generally or specially to himself shall not, in case the title to the cheque proves defective, incur any liability to the true owner of the cheque by reason only of having received such  payment”.  Here in the present matter the cheque has been received by the opponent bank.  It was issued in the name of opponent bank to be credited into TDS account of professional tax account of Government of Maharashtra.  Therefore, bank was receiving this amount for and on behalf of Government of Maharashtra.  The cheque was drawn by the complainant and it was drawn from the account of the complainant from the Citibank, NA payable at Mumbai.  No doubt that it was crossed account payee cheque.  What we have noted is that in the above referred para the cheque coupled with challan has been rightly credited by the opponent bank in the account of profession tax department.  Therefore, here the amount which was received by the opponent for the sake of argument a collecting bank has been rightly deposited in the account of drawee.  What fact we have to look into is that, whether the title of the cheque was defective, namely, whether the cheque was not issued by the complainant. The title to the cheque will become defective only if the cheque was not drawn by the complainant.  Here, it is admitted fact that cheque was drawn by the complainant.  Therefore, it is not a case of defective title to the cheque.  What we find that the complainant has issued a cheque to be credited in the TDS account of salary of his employees to be deposited in the Professional Tax Department of Government of Maharashtra and accordingly, opponent has discharges its obligation.  It is not a case of receiving the wrong payment of a cheque on no title from the drawer of the cheque.  The cases which will be covered under Section 131, they will be cases of fraud and if we read the ratio decidendi of the case of the Apex Court, it will be evident that it is case of fraud, namely, cheque issued was lost and some other person got the said cheque and the person who interpolated opened a fake account  in his name and thereafter, deposited the said mutilated cheque in his account and withdrawn the amount there from.   There the title of the cheque was defective and therefore, in that light and fact the Apex Court has held that ratio decidendi is to be read in the light of the fact which has been considered by the Apex Court.  The facts in the present matter does not attract Section 131 of Negotiable Instrument Act.  What we find that even Apex Court in para 10 (1) has observed that

“  As a general rule the collecting banker shall be exposed to his usual

   liability under common law for conversation or for money had and

    received, as against the ‘true owner’ of a cheque or a draft, in the

   event the customer from whom he collects the cheque or draft has

   not title or a defective”.

In para 10(2) further it made clear that,

“  The banker, however, may claim protection from such normal

    liability provided he fulfils strictly, the conditions laid down in

   S.131 or S.131 A of the Act and one of those conditions is that he

   must have received the payment in good faith and without

   negligence. “    

In para 10(7) while considering this law the Apex Court has observed that,

“  The standard of care expected from a banker in collecting the

    cheque does not require him to subject the cheque to a minute and

   microscopic examination but disregarding the circumstances about

  the cheque which on the fact of it give rise to a suspicion may

  amount to negligence on the part of the collecting banker”.

What we find that firstly this is not a case of negligence or want of good faith.  Secondly, it is not a case of defective title to the cheque and thirdly, the opponent have credited the amounts as per the orders and directions as reflected in the cheque coupled with the challan and therefore, what we find is that provisions of Negotiable Instrument Act have been properly followed by the opponent.  In the result, we find that in the present matter, there is no deficiency in the services on the part of the opponent.  Complaint deserves to be rejected at the stage of admission only and accordingly, it stands rejected.  Hence, we pass the following order:-

                                       :-ORDER-:  

1.                 Complainant stands rejected at the stage of admission itself.

2.                  Both the parties are left to bear their own costs.

3.                 Dictated on dais in presence of parties.

4.                 Copies of the order herein be furnished to the parties as per rules.