The Supreme Court bench comprising Justices Ajay Rastogi and Bela M. Trivedi was hearing an Appeal filed by the bank and held that the complainant has failed to discharge his burden to prove that there was a deficiency in service on the part of the bank.
In the instant case, it is not disputed that three drafts were issued by an NRI from Malaysia for the purchase of three flats. Out of three, one draft was for the sum of Rs. 5 lakhs dated 28.06.1996 and two drafts were for Rs. 3 lakhs & Rs. 6 lakhs dated 18.11.1996. It is also not disputed that the two drafts in question were issued in the name of “D-Cube Construction” and not in the name of “D-Cube Constructions (P) Ltd.” The Current Account No. 3600 was in the name of “D-Cube Constructions (P) Ltd.”, whereas the Current Account No. 4160 was opened on 15.02.1997 in the name of “D-Cube Construction” by Shri R. Thulasiram, as the proprietor of his proprietary concern, when he was one of the Directors of “D-Cube Constructions (P) Ltd.” It is also not disputed that appellant no. 2- the bank had received a letter dated 15.02.1997 from “D-Cube Constructions (P) Ltd.” giving “no objection” to opening the current account in the name of “D-Cube Construction”. It is also not disputed that there were certain disputes going on between the Directors of the said company- “D-Cube Constructions (P) Ltd.”.
Under the circumstances, when the Current Account No. 4160 was opened by R. Thulasiram as the proprietor of “D-Cube Construction”, relying upon the letter dated 15.02.1997 written on behalf of the “D-Cube Constructions (P) Ltd.”, and when the disputed two drafts in question which were in the name of “D-Cube Construction”, were credited in the account of “D-Cube Construction”, it could not be said that there was any willful default or imperfection or shortcoming so as to term it as the deficiency in service on the part of the appellant-bank within the meaning of Section 2(g) of the Consumer Protection Act, 1986, Supreme Court bench noted.
So far as the facts of the present case are concerned, even if the allegations made in the complaint are taken on their face value, then also it clearly emerges that there was no wilful fault, imperfection, shortcoming or inadequacy in the discharge of the duty on the part of the employees of the appellants’ bank, which could be termed as “deficiency in service” under Section 2(1)(g) of the said Act. As emerging from the record, some disputes were going on amongst the Directors of the Company and one of the Directors allegedly had committed fraud or cheating, the employees of the bank could not be held liable if they had acted bona fide and followed the due procedure, the SC Bench observed.
The proceedings before the Commission being summary in nature, the complaints involving highly disputed questions of facts or the cases involving tortious acts or criminality like fraud or cheating, could not be decided by the Forum/Commission under the said Act. The “deficiency in service”, as well settled, has to be distinguished from criminal acts or tortious acts. There could not be any presumption with regard to the wilful fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance in service, as contemplated in Section 2(1)(g) of the Act. The burden of proving the deficiency in service would always be upon the person alleging it, the Bench further noted.
In the instant case, the respondent-complainant having miserably failed to discharge his burden to prove that there was a deficiency in service on the part of the employees of the appellants-bank within the meaning of Section 2(1)(g) of the Consumer Protection Act.
The complaint was dismissed. The impugned orders passed by the State Commission and the National Commission were therefore quashed and set aside. The appeal was allowed.
Comments