NATIONAL CONSUMER AWARENESS GROUP vs STATE BANK PATIALA

THE complainant which is a registered body under the Societies Registration Act, styled as ''National Consumer Awareness Group (Regd)'', has filed this complaint through its Joint Secretary Shri S.S. Badwal u/ Sec. 12 read with Section 17(a)(i) of the Consumer Protection Act, 1986 (for short ''the Act'') against the respondents on 28.11.1991.

IN view of the conclusion to which we have arrived at, it is not necessary to state the facts in detail. Suffice it to state that the seven depositors had deposited the amount of Rs. 1,20,000/- (as detailed in Annexure C-1) on 1.8.1991 with Shri Som Sabbarwal (respondent-3) who was then posted as Manager of State Bank of Patiala, Shahkot Branch for obtaining the ''Fixed Deposit Receipts''. It is stated that the said amount had been collected by Shri Som Sabbarwal on behalf of respondents-1 and 2. According to the complainant, respondent-3 had issued cheques in the names of the seven ''consumers/depositors'' for the amounts received by him and those cheques were signed by him. The case of the complainant is that the depositors had waited for the issuance of'' Fixed Deposit Receipts'' which respondent-3 had promised on 1.8.1991, but all in vain and ultimately, when they approached the concerned branch of the respondent-Bank at Shahkot for the issuance of ''FDRs'' in lieu of the amounts collected by him, they came to know that the said respondent had been transferred to Patti Branch of the Bank. It is alleged that the cheques given by the depositors in Shahkot branch of the Bank had been returned to them with the remarks "Refer to Drawer" or "The Funds not arranged etc.". The grouse of the complainant is that respondent-3, while acting in the course of his duties and on behalf of respondents-1 and 2, had collected the amounts from the depositors, causing financial loss to them to the extent of Rs. 1,20,000/- for which they were to be compensated by the respondents with interest at the rate 12% p.a. for negligently allowing its Manager to collect the amounts on their behalf. On notices being issued, respondents-1 and 2 have stoutly controverted the allegations of the complainant and raised preliminary objections that the complaint is not at all maintainable for the reasons that the alleged depositors do not fall within the definition of ''consumer'' under the Act and therefore, the complainant has no locus standi to file the present complaint and that the complaint is prima facie false, frivolous and vexatious and as such the same is liable to be dismissed with costs. On merits, it is denied that respondent-3 was authorised by the answering-respondents to act on their behalf or approach the alleged depositors for collecting the money under the head ''Fixed Deposits''. It is stated that as per Bank rules, the officer designated issues the ''Fixed Deposit Receipts'' against the money deposited by the depositors with the Bank through the Cashier and the ''FDRs'' are also signed by the Bank official designated/authorised for the purpose. It is stated that if any person is desirous of opening ''Fixed Deposit Account'' with any branch of the answering-respondent-Bank, the person is required to come to the Bank and deposit the amount by filling the ''Pay-in-Slip'' and ''Account Opening Form'' and thereafter the depositor is issued a certificate which clearly mentions the amount deposited, the date of maturity and the rate of interest etc. In the present case, no such formalities had been completed by the alleged depositors which evidently shows that the alleged amounts were never deposited as ''Fixed Deposits'' with respondent-3 or he ever collected the amount on behalf or under the authority of the answering-respondent. Respondents-1 and 2 have, however, admitted the fact that the alleged depositors had presented the cheques which were returned with the objections "refer to drawer" and it was denied by them that the alleged depositors ever approached them for the issuance of the ''FDRs''.

The respondent-3 has stoutly defended the complaint by denying the a negations made against him. He has denied having collected any amount from the alleged depositors. Respondent-3 has pleaded that it could not be imagined that any person would deposit any amount with any Bank without taking any proper receipt. He has denied having issued cheques in the names of the alleged depositors without mentioning the account numbers. It is stated that, in fact, the answering -respondent issued cheques to Shri S.K. Gupta of Jalandhar who was a money-lender. According to him, he had taken some amount on interest from Shri Gupta and the latter, just to make sure of proper repayment of that amount which he had advanced, had taken blank cheques duly signed by him. His case is that he had repaid the whole amount to Shri S.K. Gupta and presumably those cheques which were given to him, were misused by him. 5.In support of its case, the complainant rested content with the unverified complaint filed by it and the unproved cheques Annexures C2 to C8 allegedly issued by respondent-3. No other evidence was adduced and no reason was given as to why the complainant and the alleged seven depositors had chosen to refrain from appearing in the case indicated. However, during the course of arguments, the complainant put in the affidavits of Joginderpal Awasthi and Vijay Kumar, the alleged two depositors, who reiterated the allegations made in the complaint. In rebuttal, the respondents put in their evidence, documents Annexures R1 to R6. Annexure R1 is the suspension order against respondent-3 passed by the General Manager (Operation) of the respondent-Bank and Annexure R2 is the chargesheet against the said respondent passed by the same officer. 6.Both the parties were afforded opportunities to adduce any other evidence in support of their case. These, however, were not at all availed of and this Commission was compelled to close their evidence. When the complaint was taken up today, Shri S.S. Paruthi, Advocate for the complainant and Shri V.K. Sharma and Km. Neeru Sharma, Advocates for the respondents expressly stated that they did not wish to lead any further evidence apart from the one noticed above. At their request, we heard the learned Counsel for the parties and considered the record. 7. Perhaps at the very outset it may be highlighted that the scope of ''consumer dispute'' in the present context is somewhat limited. The complainant, in order to succeed, has to establish a patent ''deficiency'' in the service of the Bank and its employee which the respondents had undertaken to render. It is not for this Commission to go into the highly contested questions of fact or the complexity of legal rights of the parties under the contract. 8. Viewed in the aforesaid context, the onus, however, lies on the complainant to show an apparent ''deficiency in services'' on the part of the Bank and its employee. However, it would appear that the complainant has been some what cavalier in discharging the onus. What first meets the eye is the fact that Shri S.S. Badwal, Joint Secretary of the National Consumer Awareness Group (Regd) who had chosen to present this complaint, has not come in the witness-box. Obviously, he was the best witness to depose with regard to the allegations made on behalf of the alleged seven depositors of money against respondent-3. Even the depositors who approached the complainant to file the complaint before this Commission, were the best persons with regard to the alleged fraud having been played on them, have not been called as witnesses. It is an old add age that the complainant''s case has to stand on its own legs. It would be somewhat obvious in the present case that the complainant/depositors have not been able to lay sure foundation of establishing as a fact that they had approached respondent-3 Shri Som Sabbarwal and deposited the amount of Rs. 1,20,000/- with him for the issuance of ''FDRs'' to them. 9. Apart from the inherent weakness of the complainant''s case, the respondents have virtually established their stand that the complainants/depositors had never approached respondent-3 Shri Som Sabbarwal, the then Manager of the Bank at Shahkot or that the latter had issued cheques in their favour. According to respondents-1 and 2, as per Bank rules, the officer designated issues the ''FDRs'' against the money deposited by the depositors with the bank through the Cashier and the ''FDRs'' are also signed by the bank officer designated/authorised for the purpose and that if any person is desirous of opening the ''Fixed Deposit Account'' with any of the branches of the Bank, the person is required to come to the bank to deposit the amount by filling in the ''pay-in-slip'' and ''Account Opening Form'' which clearly mentions the amount deposited, the date of maturity and the rate of interest etc. It is not in dispute that no such formalities have been completed in the present case by the alleged depositors which evidently shows that the alleged amounts were never deposited as ''Fixed Deposits'' with respondent-3 and he had not collected any amount from them on behalf or under the authority of respondents-1 and 2. The depositors could not controvert by filing a rejoinder, the specific facts as averred by respondents-1 and 2. The complainants/depositors have not even filed affidavits that the facts stated in the complaint are true to their personal knowledge. Consequently, the aforesaid contentions of respondents-1 and 2 remained unchallenged in their favour. 10. As is manifest from the earlier resume of the facts and diametrically opposite stands of the parties, the core of the controversy herein is, whether respondent-3 had accepted the amount of Rs. 1,20,000/- from the alleged depositors and issued the cheques to them. The burden to establish this fact lay heavily on the alleged depositors. Respondent-3 has categorically denied having accepted any amount and issued the cheques to the depositors. The complainant-depositors have not produced some handwriting expert to establish that respondent-3 had signed the cheques before issuing them to the depositors. Therefore, the contentions that the complainants/depositors had approached respondent-3 and deposited the money with him for obtaining the'' FDRs'' and the latter had issued the cheques to them duly signed by him must be unhesitatingly rejected. Once that is so, it is difficult and indeed impossible in the consumer jurisdiction to hold that there was deficiency of services which the respondents had undertaken to render. 11. In view of what has been stated at the very outset, it seems unnecessary to labour the point. In fact, in this context it would be unfair to the alleged depositors to record concluded findings of fact which may prejudice their case in a Court of law. Inevitably the depositors must fail in their attempt to seek redressal in the summary jurisdiction under the Act. 12. In view of the a foresaid discussion, we find no option but to hold that the alleged depositors must be left to their ordinary remedy of Civil Court of competent jurisdiction. If so advised, the alleged depositors can establish their case to the hilt in the Civil Court which is the proper one for deciding the complicated issues of fact and law. The complaint is consequently disposed of in the terms aforesaid. We would leave the parties to bear their own costs. Complaint disposed of.