SUMAN GUPTA vs BANK OF INDIA (CAPITAL MARKET BRANCH)

SINCE both the above mentioned appeals, filed by the appellants, under Section 15 of the Consumer Protection Act, 1986 (hereinafter referred to as ''the Act''), are directed against a common order dated the 24th November, 2000, passed by District Forum, (New Delhi), in Complaint Case Nos. 808/98 and 809/98, entitled Ms. Suman Gupta v. The Bank of India, and Ms. Kiran Gupta v. The Bank of India, have common facts and raise common questions for consideration, the same are being disposed of by this common order.

THE facts, relevant for the disposal of the above mentioned appeals, briefly stated, are that the appellants had filed separate complaints under Section 12 of the Act, before the District Forum, averring that they had issued two account payee cheques - one cheque by each appellant for Rs. 5,000/- in favour of Daikaffil Public Issue. THE grievance of the appellants, in the complaints, filed by them, before the District Forum in nutshell, was that the cheques issued by them in respect of the above mentioned Public Issue, were deposited with/entertained by the Bank of India, Connaught Circus Branch, New Delhi, who were not the bankers in respect of the above said Public Issue. As per the case of the appellants, the bankers to the above said Issue were Bank of Baroda. It was alleged that both the cheques were unauthorisedly encashed by Bank of India, Connaught Circus Branch (respondent), despite the fact that the respondent Bank of India was not the banker to the above said Issue. It was stated that the appellants took up the matter for the refund of the amount with the respondent and when the amount in question was not refunded by the respondent to the appellants, the appellants filed separate complaints under Section 12 of the Act before the District Forum (New Delhi), seeking refund of the amount in question, together with interest and compensation. The claim of the appellants in the District Forum was resisted by the respondent. In the written statement/written version filed on behalf of the respondent, the respondent had taken a preliminary objection to the effect that the applications along with the cheques in question were deposited with the respondent by the appellant through the sub-broker, who had not been impleaded as a necessary party. On merits, it was stated on behalf of the respondent that the respondent Bank was the banker to the Public Issue of Messrs. Hindustan Domestic Oil and Gas Company Ltd., which was opened for public subscription on 6th November, 1995. It was stated that all the applications, so received, were duly processed and the funds received in respect of the above said Public Issue was also remitted to the Bombay Capital Market Branch of Messrs. Hindustan Domestic Oil and Gas Company Ltd. It was also stated that one Shri G.N. Gupta had approached the respondent on behalf of the appellants on 16th August, 1995 and on verification/enquiry, it was found that the cheques in question were attached with the applications relating to the Public Issue of Messrs. Hindustan Domestic Oil and Gas Company Ltd., through the sub-broker.

The learned District Forum, vide impugned order, has held that there was no ''deficiency'' in service on the part of the respondent Bank and on the above ground has dismissed both the complaints filed by the appellants, vide common order, being impugned in the present proceedings.

FEELING aggrieved, the appellants have preferred the present appeals under Section 15 of the Act. We have heard Mr. G.N. Gupta, the Authorised Representative of both the appellants, at length on the question of admission of the above mentioned appeals and have also carefully gone through the documents/material on record. The only point requiring consideration in the present appeals is as to whether in the given facts was there any ''deficiency'' in service on the part of the respondent within the meaning of Section 2(1)(g) of the Act.

ON the basis of material on record, it is not in dispute that the respondent was banker to the Public Issue of M/s. Hindustan Domestic Oil and Gas Company, which was opened for public subscription on 6th November, 1995. It is also not in dispute that the applications, along with the cheques in question, were submitted by the appellants not by themselves but through a sub-broker. The sub-broker, who was not a party either before the District Forum or before us, in the present appeals, deposited the cheques with the respondent, who were not bankers to the Daikafful Public Issue, but were bankers to a different Public Issue, known as M/s. Hindustan Domestic Oil and Gas Company Ltd. ON the basis of material on record, it is further apparent that on behalf of the appellants, Mr. G.N. Gupta, their Authorised Representative, had approached the respondent-Bank on 16th August, 1995 and the respondent-Bank, after due verification/enquiry, informed said Mr. Gupta that the cheques in question were attached with the applications relating to the Public Issue of M/s. Hindustan Domestic Oil and Gas Company Ltd., through the sub-broker. ON the basis of material on record, it is apparent that the cheques in question had been enclosed with wrong applications and were submitted to wrong banker, who was not the banker for the Public Issue in question. In the presence of the above facts, it cannot be stated that there was any ''deficiency'' in service on the part of the respondent-banker. Apparently, the default was on the part of the appellant and negligence, if any, was on the part of the sub-broker, who has not been impleaded as a party. For the above reasons, the above mentioned appeals, filed by the appellants, in our opinion, are devoid of substance. The same merit dismissal. Accordingly the same are dismissed in limine, with no order as to costs. Before concluding, we would like to make it clear that the dismissal of the above mentioned appeals, filed by the appellants, by this Commission, would not be a bar for the appellants in seeking redressal of their grievance, raised by them in the above mentioned appeals, before any other appropriate Forum, in accordance with law, if so advised. The above mentioned appeals, filed by the appellants, stand disposed of in above terms. Appeals dismissed.