Haryana

Panchkula

CC/178/2019

SANDEEP KUMAR. - Complainant(s)

Versus

YES BANK. - Opp.Party(s)

COMPLAINANT IN PERSON

21 Feb 2024

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,  PANCHKULA

 

                                                       

Consumer Complaint No	:	178 of 2019
Date of Institution	:	19.03.2019
Date of Decision	:	21.02.2024

 

 

Sandeep Kumar son of Sh. Prem Singh, Resident of H.No.469, Sector-26, Panchkula.

 

                                                                           ….Complainant

Versus

Yes Bank SCO No.24, Sector-11, Panchkula, Haryana through its Branch Manager.                                                                                                                                                                                              ….Opposite Party

 

COMPLAINT UNDER SECTION 35 OF THE CONSUMER PROTECTION ACT, 2019

 

 

Before:              Sh. Satpal, President.

Dr. Sushma Garg, Member.

Dr. Barhm Parkash Yadav, Member

 

 

For the Parties:   Complainant in person.   

                        Sh. Gaurav  Bhardwaj, Advocate for OP.

 

ORDER

(Satpal, President)

1.Briefly stated, the facts as involved in the present complaint are that the complainant was having a current bank account No. 02236300000020, Yes Bank, Solan Branch(H.P) and on 10.09.2018, a cheque no.489340, drawn at State Bank of India, amounting to Rs.20,000/-, was presented in the OP bank at Panchkula. The said cheque was sent by OP for its clearance and it was promised by the official of OP that the cheque would be got encashed within two days. It is stated that the complainant visited the OP numbers of times after the presentation of said cheque to enquire about the status of the cheque in question, but no proper reply was given to him and the official concerned lingered on the matter on one pretext or the other. It is stated that the said cheque was duly presented by the complainant to OP bank for encashment of the same and the OP had issued a receipt  regarding the receipt of the said cheque and that the OP was duty bound to get the same encashed/cleared and in the eventuality of dishonoring of the same, then to return the same in original along with the return memo but as disclosed by OP, the cheque had been lost; as such, the complainant has suffered loss of Rs.20,000/- i.e. the cheque amount  as the person, who had issued the cheque, namely, Sehage Sahni has not issued  a fresh cheque for the same amount despite the requests of complainant by giving reason of loss of cheque. It is submitted that the complainant was in dire need of money in the month of September 2018. Due to the non- payment of the cheque amount, the complainant has suffered great mental, physical and financial harassment. It is averred that the cheque in question was lost by the OP Bank and therefore, there was deficiency on its parts. The complainant was not disclosed about the lost cheque for a long period, which also had resulted into loss of time. A legal notice was sent to OP on 12.02.2019 through his counsel but no response was received.  Due to the act and conduct of the OP, the complainant has suffered financial loss and mental agony, physical harassment; hence the present complaint.

2.Upon notice, the OP appeared through counsel and filed the written statement raising preliminary objections qua the complaint is not maintainable; the complainant has not come with clean hands; the complainant is not a consumer in the present case as the account in question was a current account and the same was in the name of M/s Vidhi Traders in Solan Branch of the Yes Bank. It is submitted that the current account was for commercial purpose only and the present transaction was also solely for the business purpose only; so, the complainant does not fall within the definition of the consumer as defined in Section 2(1)(d) of the C.P.Act, 1986. It is submitted that the cheque in question was deposited by the complainant with the OP Bank and the same was dishonored twice and the said fact was in the knowledge of the complainant. On first instance, the cheque no.489340 dated 06.09.2018  amounting to Rs.20,000/- drawn at State Bank of India, in favour of Vidhi Traders, was duly presented for collection and the same was dishonored by SBI on 07.09.2018 due to reason  ‘insufficient funds’. The cheque and the return memo was duly sent to the customer at his address through courier on 11.09.2018 vide POD No.1359387538. The said courier was returned  back to the branch with remarks ‘addressee  shifted’; the complainant collected  the cheque manually from the branch and the cheque was again presented  by him on 20.10.2018 and the said cheque was again dishonored on 22.10.2018 for the reason as ‘insufficient funds’. The cheque and return memo was sent to the customer on 25.10.2018 through trackon courier vide POD no. 136395540. Thereafter,  the complainant didn’t approach the OP bank and only a legal notice dated 12.02.2019 was received and upon enquiry from the courier company, it was informed that the cheque and return memo sent on 25.10.2018 through POD No.136395540 was returned with reason ‘consignee shifted’ and the cheque was lost by courier company during its return transit to the bank. The courier company thereafter lodged the lost article information report with police on 27.02.2019 for the loss of said cheque. It is submitted that the present complaint is also liable to be dismissed for non-joinder of parties as the courier company being a necessary party has not been arrayed as one of the OPs in the present complaint. It is submitted that the complainant knew that the cheque had got bounced in the first instance but he again presented the same for collection, which was again dishonored; however, the complainant raised the issue for the first time through legal notice on 12.02.2019 only. The complainant was also supplied the photocopy of the cheque and return memo for both the instances alongwith the copy of police report and thus, he could have initiated action against the person, who had issued the cheque but he choose to file the present complaint against the OP for claiming the cheque amount, which the OP is not liable to pay under any circumstances. The liability to pay the cheque amount lies with the person, who had issued the cheque without having sufficient funds in his account. The OP has been dragged into undue litigation by the complainant.  

                On merits, the pleas and assertions made in the preliminary objections have been reiterated and it has been prayed that there is no deficiency in service on the part of the OP and as such, the complaint of the complainant is liable to be dismissed.

3.To prove the case, the complainant has tendered affidavit as Annexure C-A along with documents Annexure C-1 to C-3 in evidence and closed the evidence by making a separate statement. On the other hand, the learned counsel for the OP has tendered affidavit as Annexure R-A along with documents Annexure R-1 to R-12 in evidence and closed the evidence.

                During arguments, the learned counsel for the OP has tendered the account statement, pertaining to account no. 022363300000020 of M/s Vidhi Traders, which is taken on record as Mark ‘A’. Sh. Sehaj Sahni, authorized signatory of M/s Sanjog Trading Company appeared and tendered the copy of registration certificate of M/s Sanjog Trading Company along with details of its proprietor and got recorded his statement separately. The copy of registration certificate of M/s Sanjog Trading Company along with details of its proprietor, are taken on record as Mark ‘B’ & ‘C’.

                 The complainant has also tendered the copy of order dated 01.03.2019 passed by the Learned, JMIC, Panchkula in NACT 49- 2019, which is taken on record as Mark ‘D’. The statement of the complainant was also recorded separately.

4.We have heard the complainant as well as the learned counsel for the OP and gone through the record available on file including the written arguments/Additional arguments filed by OP and minutely and carefully.

5.The grievances of the complainant is qua the lost cheque no.489340(Annexure C-A)  in transit by the Trackon Courier, to whom the said cheque was entrusted by the OP for its delivery to the complainant. During arguments, the complainant reiterated the averments as made in the complaint as also in his affidavit (Annexure C-A) and contended that the cheque no.489340(Annexure R-5) amounting to Rs.20,000/-, drawn at SBI, issued by M/s Sanjog Trading Company, in favour of M/s Vidhi Traders, was presented in the OP-Bank for its encashment but the same was lost  at the level of the OP Bank and thus, he has suffered financial loss. It is contended that the complainant was the sole proprietor of M/s Vidhi Traders, in whose favour, the said cheque was issued by M/s Sanjog Trading Company. It is further contended that he had formed/constituted the said firm to earn his livelihood by way of self-employment. The complainant alleging the deficiency on the part of the OP-Bank has prayed for acceptance of the complaint by granting the relief as claimed for in the complaint.

6.On the other hand, the OP has contested the complaint on several grounds. The learned counsel, during arguments, has reiterated the averments as made in the written statement as also in the affidavit (Annexure R-A) and controverted the allegations as levelled by the complainant attributing the lapses and deficiencies on the part of the OP-Bank.

                 The learned counsel, first of all, disputed the maintainability of the complaint on the ground that M/s Vidhi Traders, of which the complainant was allegedly the proprietor, was having a current account no. 022363300000020 with the Solan branch of Yes Bank, which was used and operated for commercial purpose only. The learned counsel argued that the cheque in question was also issued in connection with commercial transactions and thus, the complainant does not fall under the definition of consumer as define in Section 2(1)(d) of Consumer Protection Act 1986.

                The said plea disputing the status of the complainant as consumer is not tenable. The “Explanation” as given at serial (a) appended with Section 7 of the Consumer Protection Act, reads as under:-

(a)     The expression “commercial purpose” does not include use by a person       of goods bought and used by him exclusively for the purpose of earning          his livelihood, by means of self-employment.  

The complainant was the sole proprietor of M/s Vidhi Traders, who had formed the said firm to earn his livelihood by way of self-employment. Even in the account statement(Annexure R-1/Mark ‘A’), which has been placed on record by the OP, the complainant is shown as proprietor of M/s Vidhi Traders. Even otherwise, the OP has not disputed the fact of sole proprietorship of complainant of M/s Vidhi Traders; thus, the plea raised by the OP qua the status of the complainant as consumer is rejected being devoid of any merits in it.  

7.The learned counsel on behalf of the OP has taken the next plea that the said cheque was lost in transit by the Trackon Courier, to which the cheque was entrusted vide POD No.136395540 and thus, the said Courier Company was a necessary party to be impleaded in the present complaint so as to decide the present complaint in a proper and fair manner.

                The said plea, having no merits in it, is rejected because the handing over the cheque in question to the Trackon Courier was an internal arrangement between the OP-Bank and the said Courier Company. The Bank and the Courier Company work with each other on certain settled terms and conditions, wherein no consumer or customer has no role. Thus, no consumer can be made to suffer on account of any lapses and deficiencies on the part of the Courier Company, in the selection/appointment of which, he has no role.

8.The next plea, as taken by the learned counsel for the OP, is that the complainant was duly provided the photocopy of the cheque and return memo dated 07.09.2018(Annexure R-3) and 22.10.2018 (Annexure R-6) along with the copy of police report dated 27.02.2019 (Annexure R-8) pertaining to the lost article information and thus, he ought to have initiated the legal action as per law against the person, who had issued the cheque.

                The aforesaid plea being devoid of merits in it is also rejected. The complainant can seek additional remedy under the Consumer Protection Act and his right can’t be curtailed on the ground that he ought to have availed another remedy for the redressal of his grievances. Therefore, no merits are found in the plea that the complainant ought to have initiated the proceedings for the recovery of the cheque amount under the Negotiable Instrument Act. 

9.The next plea as taken  by the learned counsel for the OP is that the complainant had already received the payment of sum of Rs.20,000/- through NEFT from M/s Sanjog Trading Company on 11.09.2018, which had issued the said cheque No.489340, which was allegedly lost in transit by the Courier Company. The learned counsel vehemently argued that the claim of the complainant qua the cheque in question is not maintainable as he had already received the payment of Rs.20,000/- on 11.09.2018 from the said firm and in this regard invited our attention towards the account statement(Annexure R-1) and thus, prayed for dismissal of the complaint being frivolous, baseless and meritless.

10.With regard to the said contention of the OP that M/s Vidhi Traders was made the payment of sum of Rs.20,000/- on 11.09.2018 by M/s Sanjog Trading Company, Sh. Sehaj Sahni, authorized Signatory of M/s Sanjog Trading Company appeared before the Commission and stated that a sum of Rs.20,000/- was paid  to M/s Vidhi Traders on 11.09.2018 through NEFT in lieu of the cheque amount. The statement made by Sh. Sehaj Sahni, lacks credibility as he had failed to clarify the fact as to why the cheque in question was not taken back from the complainant after making the payment of sum of Rs.20,000/- in favour of M/s Vidhi Traders on 11.09.2018. It is totally unbelievable that the complainant’s firm, namely, M/s Vidhi Traders was made the payment of Rs.20,000/- through NEFT on 11.09.2018 without taking the cheque in question back from it by M/s Sanjog Trading Company. The incredible & unreliable acts, conduct and attitude of M/s Sanjog Trading Company is evident from the order dated 01.03.2019(Mark ‘D’) passed by the learned JMIC, Panchkula in criminal complaint no.NACT-49 titled as M/s Vidhi Traders Vs. Tarun Sahni, which shows that M/s Vidhi Traders through the complainant had to approach the learned JMIC, Panchkula by filing the said criminal complaint to recover its amount qua the bounced cheque. Pertinently, M/s Sanjog Trading Company, which had issued the cheque in question, would have collected the said cheque back from M/s Vidhi Traders, in whose favour the cheque was issued, prior to making the payment of cheque amount, if any, as alleged. Moreover, as per perusal of account statement pertaining to M/s Vidhi Traders (Annexure R-1/Mark ‘A’), no payment of sum of Rs.20,000/- qua the lost cheque in question, has been found to have been ever made by M/s Sanjog Trading Company in favour of M/s Vidhi Traders after the dishonoring of the cheque in question on 22.10.2018 for reason “insufficient funds” and its return on 25.10.2018 through Trackon courier vide POD No. 136395540. Therefore, no merits in the contentions of the OP are found that M/s Sanjog Trading Company had already made the payment of cheque amount on 11.09.2018 in favour of M/s Vidhi Traders through NEFT.

11.The last plea taken by the learned counsel for the OP is that the complainant has not disclosed the fact in the complaint that the cheque was bounced on 07.09.2018 and thereafter, the said cheque was collected by him manually.

                The aforesaid plea is of no help to the case of OP as the cheque in question, admittedly, was lost during transit by the courier company to whom, the OP had entrusted the cheque for onward delivery of the same to the complainant. Moreover, the cheque in question was lost in the last week of October 2018/first week of November, whereas the lost article information report was lodged with the police on 27.02.2019 i.e. after a delay about of 120 days. In fact, the OP had slept over the matter after handing over the cheque to the Courier Company and did not bother to ascertain and enquire whether the cheque was duly delivered by the courier company or not. It was binding upon the OP Bank to ensure that the cheque was duly delivered to the complainant but the OP preferred not to keep any tracking qua the delivery of the cheuqe in question by the Courier Company. The OP-bank woke up from its deep slumber only after the receipt of the legal notice on 12.02.2019 from the complainant through his counsel.

12.Admittedly, as per averments made by the OP in para no.3 of its preliminary objections of written statement that the said cheque no.489340 was returned back by the Courier Company with the remarks as “address shifted”. As such, the OP ought to have obtained the correct address from the complainant telephonically or otherwise before sending the said cheque again on 25.10.2018 through Trackon Courier vide POD No.136395540 for the delivery of the same to the complainant at the same address; thus, it was a serious error on the part of the OP-Bank, which had sent the cheque in question again at the same address qua which the report as address shifted was already available with it.

13.The aforementioned facts as discussed above speaks volumes qua the negligence, lapses and deficiency on the part of the OP Bank, while rendering services to the complainant, for which,  it is liable to compensate him.

14.In relief, the complainant has claimed the payment of sum of Rs.20,000/- along with interest @18%. In addition, compensation of Rs.50,000/- and Rs.50,000/- has been claimed on account of mental agony, harassment and litigations respectively.

15 As a sequel to above discussion, we partly allow the present complaint with the following directions:-

1. The OP is directed to make the payment of Rs.20,000/- to the complainant, in lieu of lost cheque No.489340 amounting to Rs.20,000/-, along with interest @ 9% per annum(simple interest) w.e.f. 25.10.2018 till its realization.
2. The OP is also directed to pay an amount of Rs.15,000/- to the complainant on account of mental agony and harassment.
3. The OP is further directed to pay an amount of Rs.5,500/- as litigation charges.

 

16.The OP shall comply with the order within a period of 45 days from the date of communication of copy of this order failing which the complainant shall be at liberty to approach this Commission for initiation of proceedings under Section 71/72 of CP Act, against the OP. A copy of this order shall be forwarded, free of cost, to the parties to the complaint and file be consigned to record room after due compliance.

Announced on:21.02.2024

 

 

 

Dr.Barhm Parkash Yadav      Dr.Sushma Garg             Satpal               

                Member                          Member                        President

 

Note: Each and every page of this order has been duly signed by me.

 

                                         Satpal                               

                                        President