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Vijaya Bank vs. Pooja G. Joshi dated 2008-10-23
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
FIRST APPEAL NO. 801 OF 2003
(From the order dated 1.10.2003 in C.No.394/2000 of the State Commission,
Vijaya Bank
Bandra (West) Mumbai – 400 050. … Appellant
Versus
Pooja G. Joshi
87/6 Nutan Priyadarshini
Daulat Nagar
Santacruz (West)
Mumbai – 400 054. … Respondent
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 : 23rd October 2008
O R D E R
ASHOK BHAN J., PRESIDENT
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/-. Sd/-
…………………………………………. (ASHOK BHAN J.) PRESIDENT Sd/- ………………………………………… (B.K. TAIMNI) MEMBER
Sd/- ………………………………………… (ANUPAM DASGUPTA) MEMBER
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION,
FIRST APPEAL NO. 801 OF 2003
(From the order dated 1.10.2003 in C.No.394/2000 of the State Commission,
Vijaya Bank … Appellant
Versus
Pooja G. Joshi … Respondent
The enclosed order is sent herewith for your kind perusal. If approved, the same may be listed for pronouncement.
(ASHOK BHAN J.) PRESIDENT 22.10.2008
Hon’ble Mr.B.K. Taimni, Member
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