CENTRAL BANK OF INDIA vs NAWAL KISHORE

THIS appeal has been heard ex parte as the respondent did not appear in spite of the notice. The appellant is the O.P. (Central Bank of India, Bagaha (West Champaran). The appeal has been preferred against the order dated 4.5.1998 passed in Complaint Case No. 62/1997 by District Forum, Bettiah (West Champaran).

APPEAL No. 399/1999 has been preferred by the O.P.-appellant against the order dated 30.6.1998 passed in Execution Case No. 1/99 by District Forum, West Champaran under Section 27 of the C.P. Act for non-compliance of the order passed in the Complaint Case No. 62/97 and appellant has been sentenced to pay Rs. 500 as fine within two months. The complainant has alleged that he had a cloth shop in the town of Baga in the name and style of Tirath Raj Kishun Prasad of which he was proprietor. He had opened a current account No. C/C 380 in the Central Bank of India, Begusarai Branch. On 19.8.1997 he issued a cheque of Rs. 2,21,196.50 in his aforesaid account for getting a Bank Draft in the name of Sri Radhe Govind Enterprises, Surat. On the same date he was given draft No. 004781. He sent the aforesaid draft to the said Firm at Surat through special messenger for supply of the goods. The said Firm deposited the draft in its account for payment through clearing. The said firm did not get payment because the draft issued by the O.P. did not bear code number and stamp besides it also did not contain the name of the branch nor any signature. The Bank of Surat returned the draft was also returned to him. The complainant alleged that he suffered a financial loss of Rs. 50,000 for non-supply of the goods and Rs. 4,424 as loss in the interest besides other inconvenience and harassment. It is further case of the complainant that he approached the Bank and returned back the draft with a request for correcting the mistake which was corrected and given back to him on 8.9.1997. The complainant also sent a letter to the Branch Manager of the Bank to make good the loss suffered by him but it was orally refused by the Bank hence the complaint was filed.

On notice the O.P.-Bank appeared and filed the written statement. It challenged the maintainability of the complaint. It is also the case of the Bank that one Mr. Kishun Prasad Nathani is the proprietor of the said Firm and in the capacity of proprietor he had applied for a loan and he was granted cash credit limit by the Bank for his business and he has executed loan document. As such the complainant has got no concern with the said firm. Nand Kishore Nathani had issued a cheque for Rs. 2,21,521 only for getting draft out of cash credit account No. 380 and the draft was prepared and delivered to him. The power of attorney issued by Mr. Nathani in the name of the complainant is after thought when the objection was raised by the Bank in the complaint case. There is no mention in the power of attorney authorising the complainant to file the complaint in the complaint petition.

AFTER hearing both the parties the District Forum held that the complainant is son of Kishun Pd. Nathani and looks after the business of his father of the said firm. Therefore, he is competent to file the complaint as his father has also issued a power of attorney in his name. Therefore, there is no merit in the above contention of the O.P. The District Forum further held that other facts in the case are not denied and the draft returned back because there was some inherent mistake in it committed by the Bank. Therefore, allowed interest on the above amount of the draft in favour of the complainant. The District Forum further directed to pay compensation of Rs. 500 and a litigation cost of Rs. 500 to the complainant. On behalf of the appellant it was submitted before us that the impugned order is composite one and it is settled law that a composite order allowing compensation and interest also an award of punishment is not permissible under ther Act. The finding arrived at by the District Forum that complainant is a consumer is erroneous and against the accepted facts.

WE have gone through the impugned order and the memo of appeal. WE are of the view that the impugned order dated 4.5.1998 is not a composite order, hence the case law relied on behalf of the appellant, I (1997) CPJ 246 of the State Commission has got no application with the facts of the present case. The District Forum has only allowed interest on the above amount and payment of compensation of Rs. 500 and litigation cost of Rs. 500 as well. Admittedly, the draft issued by the Bank was not acted upon by the Surat Firm because it had some mistake which was committed by the authority of the Bank while issuing the draft. It amounts to deficiency in service on behalf of the Bank. This fact is not in dispute that complainant is the son of Mr. Nathani who is the proprietor of the firm. Therefore, the complaint being the son has jurisdiction to file this complaint on behalf of the firm of which he is also a partner. The District Forum has disallowed the claim of Rs. one lac as compensation on the ground that it is arbitrary. WE are also of the view that complainant is not entitled to get this huge amount as compensation. The District Forum has rightly allowed interest on the above amount from the date of preparation of the draft till the date it was returned back. WE do not find any reason to interfere with the impugned order. In the result, the appeal is dismissed. The impugned order is hereby confirmed. The appellant-O.P. is directed to pay the above amount (Rs. 5,424) within two months from the date of this order. However, there shall be no order as to cost. It is admitted fact that when Execution Case No. 1/99 was pending and the order was passed the appellant has preferred Appeal No. 357/98 before the State Commission which are pending for disposal. In view of this fact the District Forum should not have proceeded in the executin case awaiting final order passed in the appeal. In the fact and circumstances, the order passed in the execution case is not sustainable and fit to be set aside.

IN the result, the Appeal No. 399/99 is allowed and the impugned order is set aside. However, there shall be no order as to cost. Both the appeals are disposed of accordingly. Appeals disposed of.