M/s. Citimake Builders Pvt. Ltd. vs. Samata Sahakari Bank Ltd. dated 2012-10-16
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION
M.A. No. 580 of 2011
(For evidence & Dismissal of Complaint)
CONSUMER COMPLAINT NO. 141 OF 2009
M/s. Citimake Builders Pvt. Ltd.
C-3, Parijat Apartments, Fairdeal Road,
Off S.V. Road, Jogeshwari (West),
Mumbai – 400 102 …Complainant
Samata Sahakari Bank Ltd.
New Link Road,
Oshiwara, Jogeshwari (West),
Mumbai – 400 102 … Opp. Party
HON’BLE MR. JUSTICE K.S. CHAUDHARI,
HON’BLE MR. SURESH CHANDRA, MEMBER
For the Complainant : Ms. Hina G. Acharya, Ms. Sharmila Deshmukh & Ms.
Rajshree N. Reddy, Advocates
For the Opp. Party : Mr. Jay Savla, Ms. Shilpa Chowdhary, Ms. Renuka
Sahel & Mr. Viren Vashi, Advocates
PRONOUNCED ON 16th OCTOBER, 2012
O R D E R
PER JUSTICE K.S. CHAUDHARI, PRESIDING MEMBER
M.A. No. 580 of 2011 for dismissal of complaint:
Complainants filed complaint against opposite party for recovery of Rs.1,09,03,212/- along with interest @ 18% p.a. and damages.
2. Brief facts of the complaint are that complainants are carrying on business of builders and developers. Complainants opened Current Account No.1211 in the year 2004 with the opposite party and the said account was operated by Naresh Jain and Abdul Wahid Abdul Gafoor Khatri. On scrutiny of Company’s record on 8.11.2008 it was found that Companies account was debited for various amounts which were suspicious entries on the basis of forged and fabricated signatures of the authorized persons/partners without any consent, knowledge and information to the complainant by the opposite party, the opposite party’s concerned officers have intentionally and willfully encashed and honoured about 53 cheques mentioned in paragraph 4 of the complaint without verifying signatures which were prima facie forged. The cheques shown to be debited in their account have neither been issued nor signed by them and concerned officers of the opposite party having been in collusion and conspiracy with the erring persons forged cheques have been encashed. Complainants filed criminal complaint against the opposite party on 8.7.2009 and the same is under investigation by Oshiwara Police Station. Opposite party is service provider and on account of deficiency in service, complainants have claimed aforesaid amount from the opposite party. Opposite party filed written statement.
3. Opposite party moved an application M.A. No.580 of 2011 and alleged that complaint filed by the complainants needs to be dismissed solely on the ground that fraud as alleged to have been committed by the bank officials of the opposite party does not come under the purview of the Consumer Protection Act as the complaint involves complicated question of facts and law. Oral and documentary evidence is required to be led which is not possible in this summary jurisdiction as the matter is to be decided within time bound schedule. It was further alleged that there are disputed question of facts whether signatures of Directors of the complainants on the cheques which were honoured by opposite party are forged or genuine and whether employees of the opposite party had been negligent in their duty to compare the signatures on the cheques which requires elaborate evidence and Consumer Forum cannot decide this issue in summary jurisdiction. It was further alleged that complainants were actively operating the accounts and from time to time requested for overdraft facility and complainants being aware of the withdrawals made from its accounts, complainants cannot be allowed to file present complaint for its own negligence, hence, complaint may be dismissed as being not maintainable.
4. In reply to the application complainant submitted that opposite party moved application after allowing application filed by the complainant under Section 13 for summoning the Additional Chief State Examiner of Documents, C.I.D., Maharashtra State, Mumbai for filing evidence by way of affidavit. It was further alleged that Additional Commissioner of Police (Crimes) sent all the forged and fabricated cheques to State handwriting examiner of documents and after obtaining his opinion application under Section 13 was moved. It was further alleged that merely because recording of evidence is required or some question of fact and law arise which would need to be investigated and determined cannot be a ground for shutting the doors of any forum under the Act. On the ground of summary trial, complainant cannot be directed to approach Civil Court as procedure provided under the Code of Civil Procedure has been made available to this Forum and if such procedure is followed strictly, it will not delay the proceedings. Affidavit of expert can be taken on record and the National Commission can evolve procedure to permit cross-examination by putting written question which could be replied by the expert on affidavit and cross-examination can even be taken on Commission. It was further alleged that complaint cannot be dismissed merely on the ground that it involves complicated question of facts and law as held by Apex Court. It was further alleged that complaint does not require a detailed and elaborate examination of evidence and even bare comparison of signatures on cheques with the signatures of authorized persons can be done by the Commission. This Commission has jurisdiction to decide complaint summarily. It was further alleged that complainants never applied for overdraft facilities but they requested for over draft facility against the fixed deposit receipts. Opposite party never provided bank statement to the complainant, hence, application may be dismissed.
5. Heard learned Counsel for the parties and perused record.
6. Learned Counsel for the opposite party submitted that as complaint has been filed on the basis of encashment of about 53 forged cheques and complaint has been filed with the allegation of fraud on the part of the officials of the opposite party, would require elaborate evidence and involves complicated question of facts and law which is not possible to adjudicate in summary jurisdiction and complaint may be returned back to the complainant for approaching Civil Court. On the other hand, learned Counsel for the complainant submitted that already report of handwriting expert has been received and trial of complaint would not require elaborate evidence and no delay will be caused in disposal of complaint, this Commission is competent enough to decide the complaint summarily, hence, application may be dismissed.
7. Basis of complaint is encashment of about 53 forged and fabricated cheques by the opposite party which were not issued by the complainant or their authorized signatories. These cheques pertain to period commencing from 30.5.2006 to 24.09.2008. Record also contains opinion of Addl. Chief State Examiner of Documents C.I.D., Maharashtra State, Mumbai dated 22.10.2010 which is in two pages, but without any reasoning for the purposes of proving a document genuine or forged. Handwriting expert has to take photos of the documents and has to compare them with the genuine signatures and has to give reasons for proving signatures to be genuine or forged. This opinion neither contains reasoning for similarities/dissimilarities nor contains photos of any document. Detailed examination in chief as well as cross-examination of handwriting expert will be required. About 53 forged cheques are required for examination about their genuineness/forgery. For this, it will require too much time and in such circumstances, the matter cannot be decided in summary nature. Learned Counsel for the opposite party placed reliance on 2002 (2) SCC 1 – Synco Industries Vs. State Bank of Bikaner & Jaipur and others in which it was held that where detailed evidence would have to be led both to prove the claim and thereafter to prove the damages and expenses, it cannot be decided in summary fashion and direction to the complainant to approach the Civil Court or any other forum passed by National Commission was upheld by Apex Court. He also placed reliance on (2004) 13 SCC 656 – Trai Foods Ltd. Vs. National Insurance Co. and others in which it was held –
“6. The only question to be decided is, when should this jurisdiction be exercised by the Commission. In our view the Commission should address itself to the quantity of the claim, the nature of the claim, the nature of the evidence which would be required to be submitted both in respect of the claim and the damages suffered and the nature of the legal issues before deciding that the matter ought to be decided by the civil courts in the regular course. It is not disputed that the Consumer Forum has been set up to grant speedy remedy. The Consumer Forums have been given the responsibility of achieving this object. They were not meant to duplicate the civil courts, and subject the litigants to delays which have become endemic in the civil courts.
7. Although the reason given in the impugned order of the Commission for referring the present matter to the civil court is cryptic, we have been through the records filed before us and are satisfied that the Commission’s decision was correct. There is no doubt having regard to the nature of the claim, the large amount of damages claimed, and the extensive enquiry into the evidence which would be necessary in order to resolve the disputes between the parties that this is not a mater to be decided summarily at all”.
He also placed reliance on II (2003) CPJ NC – Bhupendrakumar R. Parikh NS Bank of India and others in which it was held that where oral and documentary evidence is required to decide a case, it is not possible to decide the matter in summary jurisdiction, as mattes before Commission are to be decided in a time bound schedule. National Commission affirmed order of State Commission directing complainant to pursue his remedy in a Civil Court. He also placed reliance on IV (2007) CPJ 33 (NC) – Pratibha Pratisthan & Ors. Vs. Allahabad Bank & Ors. in which it was held that where there is allegation of fraud in connivance with the officers of the bank, the complaint is not required to be dealt with under Consumer Protection Act. He also placed reliance on III (2011) CPJ 175 (NC) – Bhagwanji D. Patel & Anr. Vs. Indian Bank & Ors. in which 5 cheques of NRE/SB Account signed by power of attorney holder for different amounts were in question and CBI had also investigated into large scale fraud and forgery and filed charge sheet against 8 persons including the Bank Manager, it was held that complaint raises very complicated question of facts and law which can only be answered by a regular Civil Court.
8. On the other hand, learned Counsel for the complainant placed reliance on I (2010) CPJ 312 (NC) – Sutlej Textile and Industries Ltd. Vs. Punjab National Bank in which it was held that despite allegations of fraud, forgery, cheating, etc. Consumer Forum’s jurisdiction is not ousted. In this case, Rs.65 lakhs were withdrawn after forging 25 cheques. This judgment was passed by Hon’ble Mr. Justice R.C. Jain on 23.4.2009 and judgment in Bhagwanji D. Patel (supra) was also passed by Hon’ble Mr. Justice R.C. Jain on 6.5.2011. In latest judgment of Bhagwanji D. Patel, Hon’ble Mr. Justice Jain held that complicated question of facts and law are involved in issuing 5 drafts on the basis of 5 forged cheques and held that Consumer Fora cannot decide complaint in summary nature. In such circumstances, his Lordship’s earlier judgment delivered in Sutlej Textile and Industries Ltd. case cannot support complainant’s contention. Learned Counsel for the complainant placed reliance on (2002) 6 SCC 635 - Dr. J.J. Merchant and others Vs. Shrinath Chaturvedi in which it was held that merely because there are allegations in the complaint about negligence of expert (Doctor) it would not be proper to ask the complainant to approach Civil Court. In this case, complainant’s son was admitted to hospital on 4.8.1992 for operation of slip disk and he died on 29.8.1992 in the hospital and complaint was filed on the basis of medical negligence. Facts of this case are different from the present case in hand as in the aforesaid case only negligence of doctor was to be seen, wherein, in the present case forgery in about 53 cheques is to be enquired and in such circumstances, aforesaid case does not help to the complainant.
9. Both the parties placed reliance on (2003) 7 SCC 233 – CCI Chambers Coop. Hsg. Society Ltd. Vs. Development Credit Bank Ltd. in which it was held that complaint cannot be returned without going through pleadings of the opposite parties, on the basis of complicated question of facts and law arising out of the allegations made in the complaint. In the case in hand, in reply opposite party has disputed forgery in the cheques and collusion with the bank employees and in such circumstances, complicated question of facts and law arise.
10. After going through the pleadings if complicated question of facts and law arise, complaint should be returned to the complainant to approach Civil Court or any other Forum. Perusal of pleadings clearly reveals that forgery/genuineness of 53 cheques is in issue which involves complicated question of facts and law and involves lot of evidence and detailed enquiry, which cannot be decided in a summary way and in such circumstances application filed by the opposite party should be allowed and complaint should be returned to the complainant.
11. Perusal of paragraph 4 of the complaint clearly reveals that most of the cheques have been encashed by way of overdraft, thus, it becomes clear that prima facie overdraft facility was provided by opposite party to the complainant. Complainant, in reply to the application submitted that overdraft facility was granted against fixed deposit receipt, but it is very much clear that complainant’s current account was having facility of overdraft. As current account with overdraft facility was for commercial purpose, prima facie, complainant does not fall within the purview of consumer under the Consumer Protection Act and complaint is not maintainable.
12. Consequently, M.A. No. 580 of 2011 filed by the opposite party is allowed and Original Petition No. 141 of 2009 is dismissed with liberty to approach to the Civil Court or any other Forum, as advised.
( K.S. CHAUDHARI, J)
( SURESH CHANDRA)