Vijaya Bank, Bandra Branch Vs. Mrs. Pooja G. Joshi
Appeal No.801 of 2003
In the National Consumer Disputes Redressal Commission
Judgement Pronounced on 23.10.2008
Mrs. Pooja G. Joshi(Respondent) operates a Saving Bank Account with Vijaya Bank, Bandra Branch. In addition,the respondent operates two Current Accounts with the said Bank under her firms’ names. It was averred that Mrs. Joshi had deposited a sum of Rs.5 lakh in the SB Account No.22305 by filling in the printed pay-in-slip issued to her by the bank in the bound book. The then Chief Manager of the bank accepted the cash and in token thereof put his initial/signature on the counter-foil and also stamped it with the rubber stamp of the bank. It was averred that the amount was paid to the Chief Manager of the bank as at that time, the cashier was not available at the cash counter. In support of the said deposit, Mr. Joshi produced the counter-foil of pay-in-slip bearing the date as 3.6.1997.
However, in August 1998, the respondent’s Chartered Accountant, to whom the relevant papers had been handed over for the purpose of filing the income-tax return, brought to her notice the non-credit of Rs.5 lakh by the bank into the respondent’s account. The respondent, thereafter, took up the matter with the bank and enquired about the credit entry of Rs.5 lakh missing from her account. She also sent a letter dated 15.9.1998 addressed to the bank along with xerox copy of the counter-foil in respect of the deposit of Rs.5 lakh. The appellant, by its letter dated 16.9.1998, acknowledged the respondent’s letter dated 15.9.1998 and stated in its reply that the transaction of the deposit did not pertain to the cash transaction referred to by the respondent in the counter-foil of pay-in-slip dated 3.6.1997 and called upon the respondent to prove the original challan. The respondent sent rejoinder to the said letter as also further reminders dated 3.3.2000 and 29.6.2000, to which the appellant sent reply dated 3.7.2000 confirming the fact that the acknowledgement appearing in the counter-foil of the pay-in-slip was that of the then Chief Manager, Mr.Rajiv Shetty, but did not explain of non-credit of the said amount in her account.
As there was no response, the respondent served a Notice through her advocate on 7.8.2000 upon the Bank that their omission and failure to give credit of the amount in her account constitutes deficiency in service and called upon the bank to rectify her account by giving credit of the amount to respondent’s account failing which legal action shall be initiated.
As per the appellant, reply was sent but the same was received back unserved. Since the appellant failed to elicit any reply to the Show-cause Notice or the settlement of the account, the respondent filed complaint before the State Commission. The appellant filed its reply denying any deficiency in service, as alleged, in not giving credit of Rs.5 lakh to the account of the respondent complainant. It was, inter alia, pleaded that the complaint made was false as well as beyond time and, as such, should be dismissed. On merits, it was asserted that the complainant had not deposited the sum of Rs.5 lakh in her account as claimed and that being so, there is no question of crediting the said amount in her SB Account. The appellant in para-8 of the reply set out the procedure followed by it in receiving and accepting cash deposit by its account holders in their account saying that the same is tendered to the cashier who, on receipt, accepts the same with pay-in-slip and endorses by putting the bank’s rubber stamp and his initials on the counter-foil or the pay-in-slip, which is returned to the depositors. It was denied that on 3.6.1997 its cashier was not available, as alleged. It was further stated that the counter-foil produced by the respondent is the acknowledgement of the Chief Manager which clearly shows clearing of transfer transaction only and not cash transaction, as has been alleged. The purported counter-foil may have been issued for transfer or for clearing a cheque of Rs.5 lakh and subsequently the instrument might have been deposited with the appellant under the purported counter-foil. The counter-foil might have been returned back to the respondent and against the same, the Department/Section of the appellant might not have collected the counter-foil as the present action was not foresighted and, as such, it was beyond the scope of imagination.
The State Commission held that the appellant was deficient in rendering service to the respondent, as it had failed to give credit of Rs. 5 lakh in the respondent’s account. That the appellant had failed to prove that it did not receive the amount of Rs. 5 lakh. Accordingly, the appellant was directed to credit and pay a sum of Rs.5 lakh to the respondent with interest at the rate of 7.5 % p.a. w.e.f. 3.6.1997 till realization and to pay a compensation of Rs. 1 lakh. The complaint was accepted with costs which were estimated at Rs.10,000/-.
The Bank then filed an Appeal in the National Consumer Disputes Redressal Commission against the State Commission’s Order.
Judgement
The National Commission heard the arguments of the both counsels and held that, for the reasons stated below, it did not find any merit in the appeal filed by the Bank against the State Commission’s Order and dismiss the same with costs which are assessed at Rs. 20,000/-.
The counter-foil undisputedly is in the prescribed format of the pay-in-slip kept and maintained by the bank in its ordinary course of business for deposit of cash/cheque by its account holders and is bound in a book form.
The bank has not led any evidence to show that money had not been received. The appellant has not filed the affidavit in evidence of the Chief Manager who had put his signatures and the rubber stamp of the bank on the counter-foil. It is he who could have been in a position to rebut the assertion made by the respondent in an effective manner. Instead of filing the affidavit of the then Chief Manager, the appellant has filed the affidavit of Shri Shailesh Charcha, the Assistant Manager of the bank who did not have any personal knowledge of the transaction.
The amount being heavy and due to non-availability of the cashier at the cash counter, the appellant had deposited the amount with the Chief Manager. The appellant has not filed the affidavit of the cashier concerned. The bank has simply denied this fact. It could have filed an affidavit of the cashier concerned being its employee which has not been done which is a militating factor against the defense put up by the appellant.
Respondent in her complaint had stated that she had sent a legal notice through her counsel to which no reply was received from the appellant which fact has been countered by the bank by stating that in fact reply to the legal notice was sent but the same was returned unserved. The State Commission has recorded a finding after examining the closed postal envelope which was made available, evidences its transmission but postal endorsement made is not legible. No steps were taken thereafter to endorse the copy thereof to the respondent complainant who was in continuous correspondence with the bank. An adverse inference has been drawn against the appellant by the State Commission and, in our view, rightly.
From the discussion above, we have no hesitation in concurring with the findings recorded by the State Commission that the respondent had in fact deposited a sum of Rs. 5 lakh with the appellant bank and there was deficiency of service on the part of the appellant in giving credit of the sum of Rs. 5 lakh to the respondent. The appellant had failed to prove that it had not received the sum of Rs. 5 lakh as alleged by the respondent complainant.
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