In the Court of the Calcutta District Forum, Unit-I
CDF-1/Case no.177/2005
M/s. D M I India (Pvt) Ltd.,
53, Syed Amir Ali Avenue,
P.S. Karaya, Kolkata-19 ……. Complainant
vs.
Vijaya Bank, Overseas Branch,
125/1, Park Street, Kolkata-17 …… Opposite party
Present : Sri A.K. Das, President
Sri L.K. Banerjee, Member
Smt. J, Saha, Member
Order no. dt. .05.2008
The petitioner / complainant, in this consumer complaint has prayed for direction upon o.p. Vijaya Bank to pay sum of Rs.148212/- and other consequential reliefs as o.p. debited his account 205 (current) with the said amount wrongly and due to fault and deficiency in service on their part.
The petitioner received an order for export of jeans pant to Uganda along with a cheque for US $ 3100 on 20.2.03, annex- A1 to A3. The complainant deposited the cheque for encashment with the o.p’s Overseas Branch on 21.2.03. The o.p. by their letter , annex-B, intimated the complainant that the said cheque had been encashed and proceeds credited to complainant’ account no.205. Then complainant obtained Foreign Remittance Inward Certificate, annex-D dt.3.4.03 and afterwards the petitioner consigned the gods to Uganda and submitted export documents against the cheque proceeds to o.p. along with the F.I.R.C., annex-C, C1 and D.
The o.p. suddenly intimated the petitioner on 3.5.03, annex-E, that the cheque was returned unpaid for the reason “forged / unauthorized, endorse / alter item claim has been made against AEBL under US law for which warranty alleging that the item bears a forged or unauthorized endorsement is altered”. Therefore they (o.p) requested the petitioner to refund the amount credited to their account and returned the FIRC 8issued to them.
It is submitted by petitioner that they are no way responsible or liable to pay the said amount Rs.148212/- equivalent to US $ 3100 + cheque return charge of US $ 15 = US $ 3115 which has been debited from their account (complainant) without intimation to them. Due to deficiency in service and fault on the part of the o.p. complainant suffered a loss of Rs.148212/- which was wrongfully debited from their account no.205 maintained with the o.p. So the o.p. is liable to pay the amount with interest to the complainant.
In the w/v o.p. has contended that the petitioner is not a consumer as they have availed the services of o.p. for commercial purpose.
The complainant deposited the cheque with the o.p. on 13.2.03 for collection. The o.p. sent the cheque on 14.2.03 for realization through their correspondent Bank American Express Bank under forwarding memo cash letter no.526001596. The said American Bank upon receipt of such cheque from the o.p. bank and pending realization of the proceeds of the cheque from paying bank on which the cheque was drawn, credits the account of the o.p. bank with the said bank provisionally and the o.p. also in turn gives provisional credit of the amount to its constituents accounts, upon getting such advice.
On 29.4.03 o.p. bank in Kolkata was informed by its Head Office that the cheque for US $ 3100 sent for collection was returned by the drawee bank as conveyed by American Express Bank on 25.4.03 with the reason forged / unauthorized endorsed / altered item. Claim has been made against AEBL under US Law for breach of warranty, alleging that the item bears a forged or unauthorized endorsement or is altered.
Immediate upon receipt of such message, the o.p. by letters dt.29.4.03 called upon the complainant to refund the amount credited to its account.
The American Express Bank forwarded to o.p. a debit note for US $ 3115 which included US $ 15 towards cheque return charges along with a copy of an affidavit of forgery submitted by the drawer of the cheque Mr. Leonard M. Calabrese . As per said affidavit dt.13.3.03 the name of the payee and the amount were altered and that the cheque in question was originally drawn by the drawer in favour of a person in Kenya for a different amount.
The complainant in the circumstances did not have any right, title or any interest in the cheque. The drawer of the cheque had confirmed that instrument was materially altered and had fallen into the hands of a person who is not entitled to the amount of he instrument. Thereby there was no negligence / deficiency in service on the part of the o.p.
Parties have sweared affidavit regarding their contentions and submission.
It is evident form the undisputed facts that the o.p. was maintaining an account no.205 in the name of complainant who deposited a cheque for US $ 3100 with the o.p. bank for encashment / collection a cheque dt.3.2.03 drawn on Charter One Bank USA by one Leonard M Calabrese, payable to complainant. The o.p. bank sent the cheque for collection through correspondent bank American Express.
There is no evidence that American Bank upon receipt of such cheque from o.p. bank and pending realization of he proceeds of the cheque from the praying bank on which cheque was drawn credit the accounts of the o.p. with the said bank provisionally.
But on the other hand it is evident that o.p. bank had credited the complainant’s account with o.p. vide annex-B, of the consumer complaint. In the said annexure it was not mentioned “provisionally credited”. It is not denied that the o.p. did not issue certificate of Foreign Inward remittance, annex-D.
It is also admitted that complainant that complaint submitted the expert documents against the said cheque proceeds to o.p. along with original FIRC tom deposit the G.R. Form duly filled in before the RBI, Thereafter o,.p intimated the complainant through their letter dt.29.4.03 that the cheque had been returned unpaid.
The complainant categorically submitted that they are no way responsible or liable to pay the amount Rs.148212/-. Due to deficiency in service on the part of o.p. they wrongfully debited the complainant’s account with the said amount Rs.148212. The o.p’s defence is that the complainant was aware that once the cheque in question is dishonoured complainant would be liable for the amount.
It is evident that petitioner sent the cheque in good faith to their o.p. for collection. On the basis of the intimation annex-B of o.p. regarding realization of the proceeds of the cheque, o.p. issued FIRC annex-D and accordingly complainant shipped the goods as ordered to Uganda before dishonour of the cheque. Thereby complainant cannot be held liable equity disfavour unjust enrichment. When there is no question of unjust enrichment of he o,.p. by repeating the benefit of an accidental wind fall, the complainant should not be made to suffer for they would be as innocent as the payer (o.p) who paid the money acting under a mistake. In support of the above principle complainant has cited a decision reported in AIR 1978 Cal 169.
From the point of view of equitable principle petitioners are entitled to recover the money from o.p. who debited the petitioner’s account immediate after cancellation of the disputed cheque.
It is submitted by the ld. Counsel for o.p. that petitioner is not a consumer as they obtained the service of the bank for commercial purpose.
Commercial purpose mean that gods purchased or services hired should be used in any activity directly intended to generate profit. Profit is the main aim of commercial purpose. But in the instant case services hired in an activity which is not directly intended to generate profit. Therefore hiring service of o.p. bank cannot be termed as commercial purpose.
In the above facts and circumstances the complainant is entitled to recover the money which had been debited in consequence of dishonour of the cheque. The consumer complaint thereby succeeds and it is awarded in the following terms.
The o.p. no.1 is directed to pay the complainant Rs.1,48,212/- (Rupees one lakh forty eighty thousand two hundred twelve) only with interest @ 8% p.a. from 1.5.03 and litigation cost Rs.1000/- (Rupees one thousand) only within two months from date.
Let copy of this order be supplied to the parties free of cost.
