K.K.G.ENTERPRISES vs BANK OF BARODA

BY this appeal under Section 15 of the , the order dated 6.2.2006 in Complaint No. 83/2005 by District Consumer Disputes Redressal Forum, Raipur (hereinafter referred to as the District Forum) dismissing the appellant''s complaint, has been challenged.

INDISPUTABLY, the complainant/appellant has an account with the respondent No. 1 Bank of Baroda. The appellant submitted a cheque dated 23.3.2004 issued by complainant/ appellant''s customer Kalpesh Joshi in its favour. The said cheque was drawn on respondent Nos. 2 and 3 herein, namely ICICI Bank. The said cheque appears to have been dishonoured by the drawee bank (ICICI). The grievance of the complainant was that the due notice regarding cheque having been dishonoured by the drawee bank was not given by respondent No. 1, Bank of Baroda. It was also averred that the slip returning the cheque was not duly singned by any Competent authority or stamped by the drawee bank (ICICI); nor was any intimation regarding the same was given to the complainant by respondents. It was thus alleged that there was deficiency in service by the respondents as above. It was submitted by the learned Counsel for the appellant that not only the deficiency as above; but the respondent No. 1 also debited Rs. 300 as legal fee from the account of the appellant, which was allegedly paid by the respondent No. 1 to its Advocate. Aggrieved, the complainant prayed that amount of cheque be directed to be paid along with compensation and cost to the complainant/appellant.

The respondent No. 1 in its written version averred that it was for the respondent No. 2, bank to have given proper notice of the dishonour of the cheque on account of insufficient funds in the account of the person issuing the cheque. The respondent Nos. 2 and 3 averred that the cheque was dishonoured on account of insufficient funds, in the credit of the person issuing the cheque and that return memo was duly sent to the collecting bank.

THE District Forum held that Kalpesh Joshi, who issued the cheque was the consumer of respondent Nos. 2 and 3, Bank. It was further observed by the District Forum that as the cheque was issued by the said Kalpesh Joshi hence the complainant was the consumer of the Kalpesh Joshi. It was also held that respondent Nos. 1 and 2, Bank did not commit any deficiency in service. It was further held that appellant was not consumer of the respondent Nos. 2 and 3 and, therefore, not entitled to any relief against them. Learned Counsel for the complainant/appellant as well as respondent Nos. 2 and 3 heard. None appeared for respondent No. 1 in this appeal.

AS mentioned above, indisputably, cheque of Rs. 5,800 dated 23.3.2004 was issued by Kalpesh Joshi, the customer of appellant. The said cheque was submitted by the appellant with respondent No. 1-Bank of Baroda, in which the appellant had his accounts. Since, the said cheque was drawn on respondent No. 2, ICICI Bank; hence, the respondent No. 1 Bank sent it for collection to drawee Bank (ICICI). However, it appears that respondent No. 2 returned the cheque with a memo dated 23.3.2004 showing the funds at the credit of person issuing the cheque (Kalpesh Joshi) to be insufficient. The return memo of respondent No. 2 is placed on record of District Forum states to that effect. It appears that the said memo returning the cheque, has not been duly signed by any of the officers of respondent No. 2, Bank nor it has been stamped. It further appears that the respondent No. 1- Bank of Baroda, forwarded the said letter of dishonour by respondent No. 2, to the complainant/appellant without any making endorsement or covering letter by them. It may be observed here that respondent No. 1 Bank ordinarily should have enclosed a letter stating reasons for non-encashment of cheque. However, it has not been done so, by the respondent No. 1, Bank. Moreover, it appears that respondent No. 1, Bank, besides committing deficiency in service, as above, has chosen to slap the charges of legal proceedings of Rs. 300 on the complainant; as would be clear from the slip dated 30.6.2005 filed in the appeal, which shows that Rs. 300 have been debited in the account of the complainant, towards legal charges paid by the respondent No. 1, Bank to their Advocate. Obviously, not only respondent No. 1 committed deficiency in service but furher acted in rather high-handed manner by imposing legal charges of Rs. 300 on complainant, without any specific order of the District Forum in that regard. The deficiency in service, therefore, stands aggravated by the action as above of respondent No. 1, Bank. In the circumstances, we consider that respondent No. 1, Bank committed deficiency in service as narrated above. In the circumstances, we consider it just and proper to award compensation of Rs. 2,000 as against respondent No. 1, Bank. So far as respondent Nos. 2 and 3 are concerned, it is clear that the slip issued by them stating that the cheque submitted by the complainant was dishonoured, does not bear the signature of any officer nor does it bear any stamp of the Bank. Such a memo was, therefore, suffered from omission. The complainant''s grievance was that due to the above flaw and omissions of the respondents, he could not succeed in the proceedings initiated by him, under the Negotiable Instruments Act. However, the slip as mentioned above by respondent No. 2, Bank, appears to be inadvertent. It may be mentioned that the contention of respondent Nos. 2 and 3 that the appellant was not their consumer, cannot be accepted. It is clear that respondent Nos. 2 and 3 were expected to deal with the cheques issued by their customer received by them either from the customer himself, or by any other person in whose favour the cheque was issued by the customer of the Bank, as the latter would be the beneficiary of the said customer. Needless to say, that respondent bank earns profit from doing business maintaining account on behalf of the customer and in providing banking services to such customer and their beneficiary. Hence, it cannot be said that the appellant is not the consumer of respondent Nos. 2 and 3.

IN the circumstances, we consider it just and proper to impose nominal compensation of Rs. 100 on respondent Nos. 2 and 3, Bank.

IN view of the above this appeal is allowed. The impugned order dismissing the complaint is set aside. It is directed that respondent No. 1 shall pay to the appellant compensation of Rs. 2,000 (Rupees two thousand), while respondent Nos. 2 and 3 shall jointly and severally be liable to pay to the complainant compensation of Rs. 100 (Rupees one hundred). The amount of compensation as above shall be payable within 2 months, failing which interest at the rate of 9% p.a. from the date of default, shall also be liable to be paid. It is further directed that respondent No. 1 shall not realize any amount regarding legal expenses from the appellant and if any amount has been so realized, it will be refunded to the complainant/appellant. It is further directed that respondent No. 1, Bank of Baroda shall pay to the complainant/appellant cost of this litigation which includes the cost of the complaint as well as this appeal, which is quantified at Rs. 2,000 (Rupees two thousand) only. Appeal allowed.