BEFORE THE DISTRICT CONSUMER DISPUTES

REDRESSAL FORUM, JALANDHAR.

Complaint No.536 of 2015

Date of Instt. 22.12.2015

Date of Decision: 22.03.2017

Kulbir Kaur aged 53 daughter of Umrao Singh resident of village Mahonwal Tehsil Nakodar, Distt. Jalandhar.

..........Complainant

Versus

1. UCO Bank Nakodar Branch through its Branch Manager/Authorized Officer, having its office at Nurmehal Road Nakodar.

2. UCO Bank having its circle office at Bank Square, Sector-17-B, Chandigarh through its General Manager.

3. Sundram Finance Limited, having its registered office at 21, Patulous Road, Chennai and having its branch office at G.T. Road Jalandhar.

.........Opposite parties

Complaint Under Section 12 of the Consumer Protection Act.

Before: Sh. Karnail Singh, (President),

Sh.Parminder Sharma (Member)

Present: Complainant in person.

Sh. A.S. Thakur, Adv. Counsel for OP No.1 and 2.

Sh. Vishal Chaudhary, Adv. Counsel for OP No.3.

Order

Karnail Singh (President)

1. The instant complaint filed by complainant Kulbir Kaur, wherein stated that she is an account holder of OP Bank i.e. UCO Bank Nakodar branch and have SB A/C No.01240110001059 in her name, so she is a consumer.

2. That the complainant has taken a personal vehicle loan facility of Rs.264000/- from Sundram Finance Ltd from its Jalandhar Office for purchase of car make Maruti Suzuki, (Maruti Wagon R LXi BS 4) for personal use and for the repayment of amount the complainant has issued 20 post dated cheque for Rs.14500/- each in favour of OP No.3 in February, 2013. The OP No.3 had presented the cheques and received the amounts as all the cheque are encashed from the account of complainant, as is clear from the statement of account. That the complainant approached the said firm for getting clearance certificate to get the hypothecation of vehicle cleared but the OP No.3 stated that a cheque bearing No.550316 dated 10.07.2014 for Rs.14,500/- was not encashed and was returned unpaid by the bank OP No.1 and demanded the amount of cheque with interest. That the complainant approached the OP No.1 and came to know that the amount of said cheque has been withdrawn from the account of complainant by the bank on 14.07.2014, but instead of transfer of payment in the name of OP No.3 the bank has issued memo of dishonored cheque to the OP No.3 by the OP No.1, which is clear case of unfair trade practice by the OPs. The complainant approached number of time to the concerned bank and requested for settlement of account but no attention has been given by the bank even a complaint has been sent to OP No.2 for intervention of matter was also letter was post on 30.10.2015 but till today no action has been taken in this matter. The OP No.3 has now started claiming a sum of Rs.23,151/- instead of Rs.14,500/- as per legal notice dated 08.12.2015 from the complainant and guarantor and has also started threatening to seize the hypothecated vehicle, whereas the OP No.3 has also committed negligence by not informing the complainant about the fate of cheque. Earlier intimation by the OP No.3 Sunderam Finanace to the complainant can avoid the harassment to the complainant, so there is deficiency or failure in service by the OP No.3 as they were duty bound to intimation which they have omit to do and due to the negligent act and omission of the OP No.3 the complainant is suffering today. There is gross negligence and deficiency in service by the OP No.1 and 2 and they have not performed their duty due diligent and have omit to do act which they were duty bound to do and has not even get the matter settled in spite of representation, which goes to show the height of negligence and omission in performing their duty by the OP No.1 and 2 and as such necessity arose to file the present complaint with the prayer that the complaint of the complainant may be allowed and the OP No.1 to 3 may be directed to pay compensation amount of Rs.3 lacs to the complainant and cost of complaint may also be awarded in favour of complainant and against the OPs or any other relief as this Forum deemed fir may also be passed.

3. Notice of the complaint was given to the opposite parties and accordingly opposite parties No.1 and 2 appeared through their counsel and filed joint written reply, whereby contested the complaint by taking preliminary objections that the complaint is not maintainable under the law as there is no deficiency in service on the part of answering OPs and as such the complaint is liable to be dismissed and further submitted that this Forum has got no jurisdiction to try the present complaint as the cheque as alleged bearing number 550316 dated 10.07.2014 was never presented within the jurisdiction of Jalandhar and the same was never returned by the answering opposite party and as such the complaint is liable to be dismissed. On merits, the opening of the account in UCO Bank, Nakodar is admitted but the remaining allegations made in the complaint are categorically denied and further submitted that when the cheque No.550316 dated 10.07.2014 came through clearing house then at that time there was no sufficient balance in the account of the complainant and accordingly the cheque was returned and further submitted that the OP No.1 and 2 received the cheque for collection through clearing house at Delhi and accordingly transferred the amount to the clearing house bank and it is the duty of clearing house bank to further transmit the amount in the account from where the cheque was presented for collection. The answering OP has never returned the cheque unpaid on 14.07.2014 and as per the statement of account of the answering opposite party the amount of the instrument has been withdrawn and lastly prayed that the complaint of the complainant is without merits and is liable to be dismissed.

4. Opposite party No.3 appeared through his counsel and filed his separate written reply, whereby contested the complaint by taking preliminary objections that the present complaint is not maintainable in the present form, as the same is based upon wrong, false and frivolous facts and the complainant is not entitled to any claim or to get any relief claimed therein. The complaint in reply is not maintainable in law and even the complainant has failed to disclose all the facts before this Forum which if disclosed would have indicated that there is no cause of action in favour of the complainant against the answering opposite party. The facts narrated by the complainant have been represented in a misleading manner and further submitted that the complainant took a loan from answering opposite party for the purchase of Car Maruti Wagon R and in order to pay the loan amount, the complainant gave the cheques to the answering opposite party for Rs.14,500/- each and the answering opposite party presented the cheques on the date mentioned on the cheque. The answering opposite party presented the cheque bearing No.550316 firstly on 10.07.2014 and the same was dishonored vide memo dated 12.07.2014 with the remarks “funds insufficient” and when the answering opposite party contacted the complainant then the complainant again told the answering opposite party to present the same, then the answering opposite party again presented the same in his bank on 21.07.2014 and the same was again dishonored vide memo dated 22.07.2014 with the remarks “funds insufficient”, then the answering opposite party as per the clause in the loan agreement issued a legal notice dated 08.12.2015 to the complainant for depositing of Rs.23,151/- but the complainant did not pay the balance loan amount rather not paying the balance loan amount but filed the present false and frivolous complaint. On merits, the factum of getting a loan amount by the complainant is admitted, but the remaining allegations made in the complaint are categorically denied and lastly prayed that the complaint of the complainant is without merits and is liable to be dismissed.

5. In order to prove her case, complainant herself tendered into evidence her duly sworn affidavit Ex.CA alongwith some documents Ex. C1 to Ex. C5 and then closed her evidence.

6. In order to rebut the evidence of the complainant, counsel for opposite parties No.1 and 2 Sh. A.S. Thakur, Adv tendered into evidence affidavit Ex. OP/A alongwith document Ex.OP/1 i.e. statement of account and closed the evidence on behalf of opposite parties No. 1 and 2. Similarly counsel for the opposite party No.3 also tendered into evidence affidavit of Vijith Kumar as Ex.OPW3/A alongwith some documents Ex.OP-1 to Ex.OP-3 and then closed the evidence on behalf of opposite party No.3.

7. We have heard the complainant in person and learned counsel for the opposite parties No.1 to 3 and also scanned the file very minutely.

8. After hearing the arguments and perusal of the case file and we find that the factum in regard to take a personal vehicle loan by the complainant from opposite party No.3 to the extent of Rs.26,4000/- for purchase of Car make Maruti Suzuki, (Maruti Wagon R LXi BS 4) is admitted and it is also admitted fact that the complainant has an account in the bank of OP No.1 and 2 and issued 20 post dated cheque of Rs.14,500/- each in favour of OP No.3 which is to be encashed from the bank of OP No.1 and 2 and it is also admitted fact that out of 20 cheques, 19 cheques were encashed and amount of the same has been transferred in the account of OP No.3 but dispute in this case is only in regard to one cheque bearing No.550316 dated 10.07.2014 for Rs.14,500/- it was as per the version of the OP No.3 never encashed nor its amount has been transferred in the account of OP No.3 rather the cheque was presented for encashment the same was returned back twicely with the remarks “insufficient funds” and cheque return memo produced on the file by OP No.3 i.e. Ex.OP2 wherein categorically mentioned that the cheque in question have been returned on 12.07.2014 and then 22.07.2014 and due to return of cheque un-paid, the OP No.3 issued a notice Ex.C5 to the complainant for depositing the principle amount of Rs.14,500/- plus interest i.e. in total Rs.23,151/- and the said notice has been challenged by the complainant on the ground that as per the statement of account Ex.C1 the amount of the disputed cheque has been withdrawn from his account on 14.07.2014 and same has been transferred in the account of the OP No.3 and as such the OP No.3 is not entitled to claim the said amount or interest thereon from the complainant rather OP No.3 has to issue No Due Certificate to the complainant.

9. Further the plea taken by the OP No.1 and 2 is that the cheque in dispute i.e. 550316 dated 10.07.2014 came through clearing house then at that time there was insufficient balance in the account of the complainant and accordingly the cheque was returned and further submitted that the OP No.1 and 2 received the cheque in question for collection through clearing house at Delhi and accordingly transferred the amount to the clearing house bank and it is the duty of clearing house bank to further transmit the amount in the account from where the cheque was presented for collection and as such there is no deficiency in service on the part of the OP No.1 and 2.

10. Now we have to adjudge, who is at fault for that purpose it is necessary to scrutinize all the documents very minutely and accordingly after going through the entire documents as well evidence of the each party, we find that to same extent there is also negligence on the part of the complainant because the statement of account placed by the complainant Ex.C1 itself shows that the cheque dated 10.07.2014 was presented on 10.07.2014 but if we go through the statement of account then find that the said cheque was returned on 12.07.2014 and its entry is made in the statement of account Ex.C1 and on that day the balance amount in the account of complainant is only Rs.5165/- if so then how the cheque amount of Rs.14,500/- can be encashed in favour of OP No.3. So, it means the memo produced on file by OP No.3 i.e. Ex.OP2 is a true document. So far the concern of second time returned of the cheque for want of “insufficient fund” i. e. 22.07.2014 is concerned, the same is not a true document because on 14.07.2014 the complainant has deposited the sum of Rs.14,500/- and the balance shown in the statement Ex.C1 is Rs.19,654/-. So, the bank OP No.1 and 2 where the cheque in question presented by the banker of the OP No.3 i.e. ICICI Bank had been wrongly and illegally returned for want of “insufficient funds” whereas on that day there was a sufficient fund for encashement of the cheque. So, under these circumstances, the UCO Bank i.e. OP No.1 and 2 are apparently at fault and complainant has suffered due to the wrong act done by the OP No.1 and 2.

11. Apart from above, the OP No.3 cannot safe his skin simply showing that there is no deficiency in service on the part of the OP No.3 because the cheque was presented twicely and it was returned back twicely for want of “insufficient fund”, because the cheque was firstly returned on 12.07.2014 and then on 22.07.2014 but it is primary duty of OP No.3 to immediately informed the complainant that your one cheque having No.550316 dated 10.07.2014 is returned with memo for want of “insufficient fund” and then duty casted upon the complainant to make arrangement for depositing of the said amount with OP No.3 immediately but for the best known reason the OP No.3 never gave any written intimation, if given then the copy of the same must be produced on the file, but there is only one document available on the file i.e. notice C5 given by OP No.3 to the complainant for depositing the amount on disputed cheque. So, under these circumstances, we find that all the parties i.e. Complainant, OP No.1, 2 and 3 are collectively committed negligence in their respective sphere and thus the complainant is not entitled for any compensation and similarly the OP No.3 is not entitled for any interest on the due amount of Rs.14,500/-.

12. In the light of above observations, the complaint of the complainant is partly accepted with the direction to complainant to deposit the cheque amount of Rs.14,500/- with the OP No.3 and thereafter OP No.3 will immediately issue a clearing certificate to the complainant without demanding any interest thereon. And the amount of the disputed cheque which has been already re-called by the OP No.1 and 2 from ICIC Bank through letter OP5 and same was cleared on 26.07.2014 and accordingly OP No.1 and 2 is directed to deposit the said amount in the account of the complainant with interest thereon from 14.07.2014 till the date of receipt of judgment and accordingly this complaint is disposed of without any cost, party will bear their own cost. Complaint could not be decided within stipulated time frame due to rush of work.

13. Copies of the order be supplied to the parties free of cost, as per Rules. File be indexed and consigned to the record room

Dated Parminder Sharma Karnail Singh

22.03.2017 Member President