T.APPU-/ vs EGMORE BENEFIT SOCIETY LTD.-/Opposite party

THE complainant is the appellant. THE complainant filed a complaint before the District Forum, Chennai (North) claiming a sum of Rs. 10,000/- as damages for deficiency, negligence, mental agony and suffering.

THE complainant''s case is thus: He opened a Savings Bank Account with the opposite party at the time when he made a Fixed Deposit Account. THE complainant made deposit of Rs. 25,000/- with instruction to pay monthly accruing interest thereon into his Savings Bank Account. On 30.9.1995, the complainant wanted to withdraw certain amounts from his S.B. Accout, S.B. No. 6006, and wrote out a withdrawal slip for Rs. 1000/-. THE practice of the opposite party is that whenever a withdrawal slip is presented it will be verified by a responsible person, who checks the same and records the information in the Computer and after a printout is taken, it will be attached to the withdrawal slip and handed over to the complainant and the complainant along with the passbook has to present it at the Cashier counter for payment. THE cashier upon production of both the withdrawal slip and the computer printed form would make an entry in the Daily Cash Book and disburse the amount to the party. THE complainant had thus withdrawn a sum of Rs. 1000/- on 30.9.1995. He was paid Rs. 1000/- namely 10 currency notes of 100 denomination each. THE complainant, thereafter, had left the office of the opposite party. Again, in the next month, the complainant went to the opposite party and withdrew a sum of Rs. 500/- on 22.10.1995. THE same procedure was followed by the opposite party. Since the complainant was in need of money, he had to encash the Fixed Deposit amount and, therefore, made a request for foreclosure of the Fixed Deposit on 4.4.1996. When the complainant approached the cashier, the cashier asked for the passbook and made inquiries about the complainant. THE complainant was all of a sudden asked to follow the cashier and another person to the canteen nearby. At the canteen, the cashier informed the complainant that he had wrongly given cash of Rs. 9000/- in excess, which was due to somebody, by mistake and if this mistake is known to others, he will lose his career. He, therefore, requested the complainant to help him out of the situation by taking Rs. 9,000/- from the cashier and deposit the said sum into his Savings Bank Account, as though to say that the sum of Rs. 9,000/- was wrongly overpaid to him. THE cashier insisted that it should be done immediately since his career was at stake and in spite of the complainant''s request explaining that he was in urgent need of money and he had come only to foreclose the deposit. THE complainant refused to help the cashier and went out. THE cashier then threatened him to hand over to the police if he did not act according to his instructions. After much persuasion, the official called the complainant into his chamber and suggested that he will permit foreclosure of the Fixed Deposit Account withholding a sum of Rs. 9,000/-, pending inquiry against the cashier. He was assured that short payment will be temporarily held with the opposite party until the matter is sorted out and that they will undertake the responsibility of seeing that the complainant receives the sum of Rs. 9000/- with interest in due course. THE complainant had to agree to the proposal. He was asked to sign for foreclosure and the withdrawal of Rs. 13,875/- with respect to the two Fixed Deposits. Entry was also made in the passbook and settlement of Fixed Deposit account. Since there was no proper response, the complainant sent an Advocate notice on 14.11.1996. THEy sent a reply stating that there was no responsibility to settle the short payment and made contradictory statements. THE opposite party had failed to perform their legal duty namely Banking Services in accordance with law. THEy have failed to carry out the services to the complainant. When on the specified dates the complainant had withdrawn cash, to say, that there was excess disbursement of cash to the tune of Rs. 9,000/- on a particular date cannot be accepted. THE book of the opposite party has to be closed and reconciled daily as per the Banking Laws. In such circumstances, the non-payment of the entire Fixed Deposit amount with interest even after lapse of time only depicts the malfunctioning of the opposite party and deficiency of service. Hence, this complaint. The opposite party in their version has stated as follows: The complaint is not maintainable. The trasaction commenced more than three years ago. The complainant visited the office of the opposite party on 30.9.1995 to withdraw cash from his Savings Bank Account after getting the withdrawal slip for Rs. 1000/-, which was verified and checked by the saving deposit section of the opposite party and the complainant presented the same to the cashier, who was then busy transacting with a large number of customers. The cashier had inadvertently handed over to the complainant a bundle of 100 currency notes of the denomination of Rs. 100/- each instead of 100 currency notes of the denomination of Rs. 10/- each. The complainant dishonestly went away with the entire sum of Rs. 10,000/- instead of informing the cashier about the same and failed to return the excess payment. The denomination details of the currency notes handed over to the complainant by the cashier of the opposite party have been clearly recorded on the reverse of the challan. When the huge shortage of Rs. 9000/- was noticed by the opposite party only in the evening hours of the day, it became clear that the complainant was the person who received the excess payment of Rs. 9,000/- and he was the only person on that day who had sought to draw cash of exactly Rs. 10,000/-. Steps were taken to meet the complainant. It was informed that the complainant had sold the house and there was litigation pending in that regard between the complainant and the purchasers and the whereabouts of the complainant would be ascertained only from the Tea Shop at Ayanavaram. Therefore, the representatives of the opposite party made repeated visits to the said Tea Shop to meet the complainant. Finally the workers are of that tea shop gave the address of the complainant and the opposite party visited that address and could not find the complainant there. After a period of three months, the inmates informed that the complainant only a friend of theirs who used to stay casually there. The opposite party denied the allegations in paragraph 12 of the complaint. On 4.4.1996, the complainant visited the fixed deposit section in the premises of the opposite party to foreclose the fixed deposit made by him with the opposite party. When the concerned officials who identified the complainant and interrogated him then, he admitted that he had collected an excess payment of Rs. 9,000/- from the opposite party and that instead of withdrawing Rs. 1000/-, he had actually withdrawn Rs. 10,000/- from the opposite party. The complainant submitted the Fixed Deposit Receipts and requested the opposite party to deduct the excess payment from the proceed thereof, and return the remaining balance amount payable due to him. He also brought along with him an elderly person who identified himself as retired Bank official. In the pressure of that person and with full and free consent of the complainant, the Fixed Deposit of the complainant with the opposite party was foreclosed and after deducting the sum of Rs. 9,000/-, the entire balance was paid to the complainant by way of cheque. The complainant accepted the same in full and final settlement thereof. The other allegations are denied. The opposite party prays that the complaint may be dismissed with costs.

The lower Forum accepted the case and version of the opposite party and dismissed the complaint whereupon the present appeal has been filed.

THERE are certain glaring features in this case, which have escaped the attention of the lower Forum. That an excess payment of Rs. 9,000/- was paid by the cashier on 30.9.1995 is the fulcrum of the case. It is not known how the Bank Officials, who are able to fix the complainant as the person to whom the sum of Rs. 9,000/- was paid in excess. Both in the passbook and in the challan, the sum of Rs. 1,000/- alone is mentioned. Though the opposite party would say that the currency notes numbers are noted on the back of the challan, the original challan is not produced. THERE is nothing to show that such a thing has taken place. On the other hand, from the passbook we find that after this alleged excess payment of Rs. 9,000/-, there have been transactions in the Savings Bank Account held by the complainant. He has withdrawn another sum of Rs. 500/- on 22.10.1995. After 30.9.1995, there is an entry by way of interest crediting a sum of Rs. 41.13 np. in his account. From November 1995 to April 1996, we find entries in showing deposits by way of interests from Fixed Deposit at the rate of Rs. 354.17 np per month. On April 4, a sum of Rs. 2,000/- has been withdrawn by the complainant. If really, there were any excess payment on that day and the Bank officials were certain that the amount was only made in excess payment to him, it is not known how they permitted the complainant to withdraw Rs. 500/- on 22.10.1995 and Rs. 2,000/- on 4.4.1995. It is also not known why they continued to credit interest in his Savings Bank Account. If really such a thing had taken place, one would expect them to make a note in the passbook either in Red Ink or otherwise so that they can follow the matter when again it comes up before them. They have not produced the ledger or the daybook or the Journal to show the number of transactions, more specifically the number of withdrawals effected on 30.9.1995. Unless they produce the concerned ledgers and daybooks and other registers to show that there could not have been any other persons except the complainant to whom such excess payment could have been made, it is not possible to accept the contentions of the opposite party. It is also easier for the Bank to produce the accounts to show that certain number of persons withdrew by way of cash from the Bank on the particular day and how the disbursement was made to them. On the other hand in the version they have come out with a completely different case. In paragraph 5 of their version, they have stated that while closing the cash on scrutiny and verification, it became very clear without any doubt that the complainant alone was the person who received the excess payment of Rs. 9,000/- and in fact he was the only person on that day who had sought to draw cash of exactly Rs. 10,000/-. This statement makes it clear that the Bank has no regard for truth. It is nobody''s case that the complainant sought to draw a cash of Rs. 10,000/-. On the other hand, he had only given a cheque for Rs. 1,000/-. While so how it could be stated that he was the only person who had sought to draw cash of Rs. 10,000/-. It is not the case of the Bank that the complainant sought to draw a cash of Rs. 10,000/-. But on the other hand, it is their case that instead of making a payment of Rs. 1000/- to him they made a payment of Rs. 10,000/-. It is also very naive to say that the cashier instead of giving the complainant 10 currency notes of 100 denomination each gave 100 currency notes of 100 denomination each. If the cashier is going to give Rs. 10,000/- in Rs. 100/- denomination, it would be a sizable in volume or bulk. If it is given in fresh currency notes, it will be stapled in a bundle with numbers running 1 to 100 or if it is given in used currencies, it must have been a bundle held together by stapling it or by tying the rubber band. An ordinary person can easily distinguish whether he was paid Rs. 1,000/- or Rs. 10,000/-. If so, for a cashier to say that he paid Rs. 10,000/- instead of Rs. 1,000/- and he paid him in 100 rupee denominations is very difficult to understand. It is but a cock and bull story trotted out for the purpose of the case. It is also not known how and by what process they have deduced that it was the complainant to whom the payment was made. THERE is nothing to show that they had examined all those persons who encashed cheques on that day. No such statements are available. It is not known how they have pitched upon him. If really such a thing had happened as early as 30.9.1995 and on the very same day evening the cashier came to know of it to say that they continued to allow withdrawals by the complainant, whose case is that he went to the Bank in person and made the withdrawals, sticks out like a sore thumb. Moreover, it is their case that it is only somewhere after the month of April, 1996, they could contact the complainant. If really any excess payment was made and it was realized on the very day itself by the concerned cashier, why is it that the bank did not issue any notice or make suitable endorsement either in the Fixed Deposits or in the S.B. Account or in the concerned ledgers about the same so that they can watch out when the person again appears before them for transacting any banking business. THERE is no answer to that. They have not given immediate notice nor have tried to contact him immediately. The delay reveals the cloven foot. THERE is yet another point to be noted in this regard. If really, the complainant had come and had confessed that it was he who received the excess payment of Rs. 9,000/-, one would expect that bank authority to take a statement from him to that effect in the presence of the witnesses. That has not been done. THERE is no affidavit from the concerned cashier. THERE is no affidavit from the concerned Manager. We are left with only surmises. According to Banking practice whenever payment is made or cash are received, they have to be checked and verified and noted by the cashier in his account book maintained by him and at the end of the day, it has to be checked and cross-checked so that it does not lead to any misappropriation or fraud. The relationship of a banker and customer is a peculiar one. It mostly depends upon good faith and trust. Bankers act as the trustee of various moneys of the depositors. If there is any negligence on their part, they have to blame themselves. They cannot act in an arbitrary manner as they have chosen to do in this case. Without any basis and without any evidence, they have pounced upon the complainant and made him a scapegoat for the misappropriation committed either by the cashier or by any other customer. Because they had the money of the complainant with them, they thought, perhaps, they can put the screws upon the complainant and make him pay through his mouth and thus save their neck. The lower Forum has been greatly persuaded by the fact that the foreclosure receipt has been signed by the complainant. It is not a matter of significance nor any inference can be drawn from that. Whoever, who wants to withdraw the deposit either on the maturity or before maturity has to necessarily sign the original deposit receipt. But that does not in any manner lend any credence to the case of the complainant. Apparently, we find that there is a "x" mark against the signature of the complainant. The writing on the Fixed Deposit reads as follows : "On oversight I collected from the cashier excess amount. For that reason, I am foreclosing the deposit." It is definitely not an oversight by the appellant and it does not say that he has agreed voluntarily to give up the sum of Rs. 9,000/-. As we have already pointed out, one would expect in such circumstances, the Bank would obtain a separate note or letter from the complainant stating that he had received by mistake a sum of Rs. 9,000/- in excess while encashing a cheque on 30.9.1995. But we find an entry which is innocuous and, the opposite party, in the circumstance, cannot clamp any liability upon the complainant. Therefore, considering the broad probabilities of the case, it would follow that the Bank officials concerned have pitched upon the appellant/complainant apparently with a view to escape from a charge of misappropriation and save their neck in that process. Otherwise there is no reason as to why they should give up the formalities required under law and under the banking procedure when they found out as early as 30.9.1995 that a sum of Rs. 9,000/- was not accounted for at the end of the transaction for that day. Therefore, in our view, the lower Forum has failed to take into consideration these important aspects and they simply adverted to the question of complainant having signed in the foreclosure. There is nothing to show that the endorsement was made in the foreclosure by the appellant/complainant. It is not so stated in the version also. Therefore, in such circumstance, there is a stark deficiency in service. Hence, in the circumstances, we have no hesitation in holding that the order of the lower Forum cannot be sustained. The deduction of Rs. 9000/- from the Fixed Deposit amount is erroneous and contrary to RBI guidelines when the Bank which has caused the mistake of payment of Rs. 9,000/- to a person cannot rely on their own mistake attributing it to the complainant. This is a clear case of deficiency in sevice. Consequently, the Appeal is allowed with costs. The complaint will stand allowed. We direct the opposite party to pay a sum of Rs. 9,000/- with interest @ 12% per annum from 30.9.1995 till date of realization. We further award a sum of Rs. 3,000/- towards costs and a sum of Rs. 5,000/- towards mental agony and suffering. The amounts awarded hereinabove shall be paid by the respondent/opposite party within two weeks hereof, failing which the said amount shall carry interest @ 15% per annum. Appeal allowed.