NATIONAL CONSUMER DISPUTES
REDRESSAL COMMISSION,
(From the
order dated 1.10.2003 in C.No.394/2000 of the State Commission,
Bandra (West)
BEFORE :
HON’BLE MR.
JUSTICE ASHOK BHAN,
PRESIDENT
HON’BLE MR. B.K. TAIMNI, MEMBER
HON’BLE MR.
ANUPAM DASGUPTA, MEMBER
For the Appellant : Mr.K.K. Khurana and Mr.A.K.
Mehta,
Advocates
For the Respondent :
In person
Pronounced on :
Present Appeal challenges order dated
1.10.2003 passed by the State Consumer Disputes Redressal Commission, Maharashtra, Mumbai (hereinafter referred to as ‘the State
Commission’ for brief) in Complaint No.394 of 2000. By the impugned order, the State Commission
has directed the appellant bank to give credit and pay a sum of Rs.5 lakh to the respondent complainant with interest at the
rate of 7.5% per annum with effect from 3.6.1997 till its realization. Compensation quantified at Rs.1 lakh has also been awarded.
The respondent operates a Saving Bank
Account (hereinafter referred to as ‘the SB Account’ for short) No.22305 with
the appellant. In addition, the
respondent operates two Current Accounts with the appellant, i.e., Current
Account No.2297 in the name of M/s.Design Deals, of
which respondent is the proprietor and Current Account No.2593 in the name of
M/s.Salsun Exports (P) Ltd., of which respondent is
the Director.
It was averred in the complaint that the
respondent had deposited a sum of Rs.5 lakh in the SB
Account No.22305 by filling in the printed pay-in-slip issued to her by the
bank in the bound book. The then Chief
Manager of the bank accepted the cash and in token thereof put his
initial/signature on the counter-foil and also stamped it with the rubber stamp
of the bank. It was averred that the
amount was paid to the Chief Manager of the bank as at that time, the cashier
was not available at the cash counter.
In support of the said deposit, she produced the counter-foil of
pay-in-slip bearing the date as 3.6.1997.
It was averred that on such deposit being made, the respondent expected
the appellant to process the matter further as per banking business by
crediting the said amount into her account.
However, in August 1998, the respondent’s Chartered Accountant, to whom
the relevant papers had been handed over for the purpose of filing the
income-tax return, brought to her notice the non-credit of Rs.5 lakh by the bank into the respondent’s account. The respondent, thereafter, took up the
matter with the bank and enquired about the credit entry of Rs.5 lakh missing from her account. She also sent a letter dated 15.9.1998
addressed to the bank along with xerox copy of the
counter-foil in respect of the deposit of Rs.5 lakh. The appellant, by its letter dated 16.9.1998,
acknowledged the respondent’s letter dated 15.9.1998 and stated in its reply
that the transaction of the deposit did not pertain to the cash transaction
referred to by the respondent in the counter-foil of pay-in-slip dated 3.6.1997
and called upon the respondent to prove the original challan. The respondent sent rejoinder to the said
letter as also further reminders dated 3.3.2000 and 29.6.2000, to which the
appellant sent reply dated 3.7.2000 confirming the fact that the
acknowledgement appearing in the counter-foil of the pay-in-slip was that of
the then Chief Manager, Mr.Rajiv Shetty,
but did not explain of non-credit of the said amount in her account. All this correspondence has been put on
record.
As there was no response, the respondent
served a Notice through her advocate on 7.8.2000 upon the appellant that their
omission and failure to give credit of the amount in her account constitutes
deficiency in service and called upon the bank to rectify her account by giving
credit of the amount to respondent’s account failing which legal action shall
be initiated.
As per the appellant, reply was sent but
the same was received back unserved. Since the appellant failed to elicit any
reply to the Show-cause Notice or the settlement of the account, the respondent
filed complaint before the State Commission.
The appellant filed its reply denying any deficiency in service, as
alleged, in not giving credit of Rs.5 lakh to the
account of the respondent complainant.
It was, inter alia, pleaded that the
complaint made was false as well as beyond time and, as such, should be
dismissed. On merits, it was asserted
that the complainant had not deposited the sum of Rs.5 lakh
in her account as claimed and that being so, there is
no question of crediting the said amount in her SB Account. The appellant in para-8 of the reply set out
the procedure followed by it in receiving and accepting cash deposit by its
account holders in their account saying that the same is tendered to the cashier
who, on receipt, accepts the same with pay-in-slip and endorses by putting the
bank’s rubber stamp and his initials on the counter-foil or the pay-in-slip,
which is returned to the depositors. It
was denied that on 3.6.1997 its cashier was not available, as alleged.
It was further stated that the
counter-foil produced by the respondent is the acknowledgement of the Chief
Manager which clearly shows clearing of transfer transaction only and not cash
transaction, as has been alleged. The
purported counter-foil may have been issued for transfer or for clearing a cheque of Rs.5 lakh and
subsequently the instrument might have been deposited with the appellant under
the purported counter-foil. The
counter-foil might have been returned back to the respondent and against the
same, the Department/Section of the appellant might not have collected the
counter-foil as the present action was not foresighted and, as such, it was
beyond the scope of imagination.
The State Commission
framed 3 points for its consideration, that is:-
1.
Whether the
appellant was deficient in rendering services to the complainant in its failure
to give credit of Rs. 5 lakh
in the respondents account.
2.
Whether the appellant
has been able to establish that it did not receive the said amount from the
respondent and that the counter-foil dated 03.06.1997, relied upon by the
respondent pertains to some other transaction.
3.
If the answer to
point no. 1 is answered in affirmative, what amount of compensation would be
awarded to the complainant?
No
point regarding limitation was framed.
Points no. 1
and 2 were taken up together and it was held that the appellant was deficient
in rendering service to the respondent, as it had failed to give credit of Rs. 5 lakh in the respondent’s
account. That the appellant had failed to prove that it did not receive the
amount of Rs. 5 lakh.
Accordingly, the appellant was directed to credit and pay a sum of Rs. 5 lakh to the respondent with interest at the rate of 7.5 % p.a. w.e.f. 3.6.1997 till realization and to pay a compensation of Rs. 1 lakh. The complaint was accepted with costs which were estimated at Rs. 10,000/-.
Counsel for the parties have been heard.
At the outset, Learned
Counsel for the appellant, Shri K.K. Khurana contented that though the point of limitation was
raised before the State Commission, the State Commission has failed to deal
with the same. He prayed that the case be remitted back to the State Commission
to decide the point of limitation.
Respondent, who is appearing in person, opposed the prayer for remand
and submitted that she was present during the course of arguments before the
State Commission and the point of limitation was not argued during the course of
submissions. That the original complaint
was filed before the State Commission on 15.9.2000 and the remand would result
in unnecessary delay which would cause undue harassment and expense to the
respondent which can be avoided if this Commission decides the point of
limitation here only.
Keeping in view the fact that present proceedings are going
on for the last so many years, we deem it appropriate to go into the question
of limitation ourselves.
Period of limitation provided under Section
24(1) of the Consumer Protection Act, 1986 (hereinafter referred to as “the
Act” for brief) is two years from the date on which the cause of action has
arisen. It seems that this point was not
argued before the State Commission during the course of arguments. In the grounds of Appeal also, it is not
stated that the point of limitation was argued before the State Commission and
the State Commission has failed to take note of it. Otherwise also, we are of the opinion that
the complaint was filed within the period of limitation. Deposit was made on 3.6.1997. It was averred that the respondent came to
know of the non-deposit when this fact was
brought to her notice in August, 1997 by her Chartered Accountant who had been
handed over the papers for preparing the income tax returns. The respondent complainant took up the matter
with the bank and enquired about the entry of Rs. 5 lakh missing from her
account. She addressed a letter dated 15.9.1998 to the bank along with xerox copy of the counter-foil dated 3.6.1997 in respect of
Rs. 5 lakh deposited in her
account. The appellant by its letter dated 16.9.1998 acknowledged the
complainant’s letter dated 15.9.1998 stating that the transaction of deposit
did not pertain to the cash transfer referred to in the counter-foil of
pay-in-slip dated 3.6.1997 and called upon the respondent to prove the original
challan. The
appellant accepted that the counter-foil of pay-in-slip, referred to
hereinabove, was signed by the then Chief Manager and the rubber stamp of the
bank has been put, but asserted that the same related to some other transaction
without elaborating the nature of such transaction. Thereafter, the respondent sent rejoinder to
the said letter as also further reminders being dated 3.3.2000 and 29.6.2000.
The bank by its letter dated 3.7.2000 confirmed the fact that the
acknowledgment appearing on the counter-foil of the pay-in-slip was that of its
then Chief Manager Shri Rajiv
Shetty but did not explain about the non-credit of
the said amount in her account.
Thereafter, the respondent issued a legal notice through her counsel on
7.8.2000, to which, according to the respondent, no reply was sent, but
according to the appellant, a reply was sent but the same was received back unserved. It would be seen from the narration of the
aforesaid facts that soon after coming to know of the fact that the credit of Rs. 5 lakh had not been given to
her which she had deposited, the respondent took up the matter with the bank in
good faith and only after repudiation of the claim directly/indirectly in
August/September, 2000, the complaint was filed. The period of limitation shall not start to
run from the date of the deposit of the amount. Rather the same will start on
the repudiation of the respondent’s claim made by the appellant. The complaint
was filed on 15.9.2000 without losing much time. Before the repudiation of the claim, the
respondent could not have filed a complaint seeking credit of Rs. 5 lakh, which she had
deposited. In our view, the complaint
had been filed within the prescribed period of limitation from the date of
arising of cause of action.
During the course of
arguments before us, a question arose as to whether the respondent had Rs. 5 lakh cash in hand. The
respondent had filed affidavit in evidence. The appellant did not ask for
cross-examination of the respondent either in person or through
interrogatories. In the absence of this fact being put to the respondent, the
claim filed by the respondent cannot be rejected. It was also asserted by the counsel for the
appellant as to why the respondent deposited the amount in her SB Account
No.22305 and not in the Current Accounts No.2297 and 2293. Those two accounts are in the name of the
firms. The respondent was again not
confronted with this fact. This fact
could be explained by the respondent if such a question had been put to
her. In the absence of any such query by
the appellant, the claim of the respondent cannot be rejected on this ground as
well.
On merits, we agree
with the findings recorded by the State Commission. The counter-foil
undisputedly is in the prescribed format of the pay-in-slip kept and maintained
by the bank in its ordinary course of business for deposit of cash/cheque by its account holders and is bound in a book form.
The bank has not led
any evidence to show that money had not been received. The appellant has not filed the affidavit in
evidence of the Chief Manager who had put his signatures and the rubber stamp
of the bank on the counter-foil. It is
he who could have been in a position to rebut the assertion made by the
respondent in an effective manner. Instead of filing the affidavit of the then
Chief Manager, the appellant has filed the affidavit of Shri
Shailesh Charcha, the
Assistant Manager of the bank who did not have any personal knowledge of the
transaction.
The amount being heavy
and due to non-availability of the cashier at the cash counter, the appellant
had deposited the amount with the Chief Manager. The appellant has not filed the affidavit of
the cashier concerned. The bank has
simply denied this fact. It could have
filed an affidavit of the cashier concerned being its employee which has not
been done which is a militating factor against the defense put up by the
appellant.
Respondent in her
complaint had stated that she had sent a legal notice through her counsel to
which no reply was received from the appellant which fact has been countered by
the bank by stating that in fact reply to the legal notice was sent but the
same was returned unserved. The State Commission has recorded a finding
after examining the closed postal envelope which was made available, evidences
its transmission but postal endorsement made is not legible. No steps were taken thereafter to endorse the
copy thereof to the respondent complainant who was in continuous correspondence
with the bank. An adverse inference has
been drawn against the appellant by the State Commission and, in our view,
rightly.
From the discussion
above, we have no hesitation in concurring with the findings recorded by the
State Commission that the respondent had in fact deposited a sum of Rs. 5 lakh with the appellant
bank and there was deficiency of service on the part of the appellant in giving
credit of the sum of Rs. 5 lakh
to the respondent. The appellant had failed to prove that it had not received
the sum of Rs. 5 lakh as
alleged by the respondent complainant.
For the reasons stated
above, we do not find any merit in this appeal and dismiss the same with costs
which are assessed at Rs. 20,000/-.
………………………………………….
(ASHOK BHAN J.)
PRESIDENT
Sd/-
…………………………………………
(B.K. TAIMNI)
Sd/-
…………………………………………
(ANUPAM DASGUPTA)
MEMBER