Judgment:
HONBLE M. THANIKACHALAM J, PRESIDENT
1. The first opposite party in COP.70/2004 on the file of District Consumer Disputes Redressal Forum, Tuticorin, unable to resist the case of the complainant successfully, has come to this Commission as appellant.
2. The respondent herein as complainant preferred a complaint against the opposite parties, alleging deficiency in service, thereby, seeking a direction, directing the first opposite party not to claim the additional interest of Rs.991/-, as well as claiming a sum of Rs.50,000/- as compensation.
3. The complaint was opposed by the opposite parties, denying all the allegations and pleading mistake that the demanded additional interest was not wanton, that on coming to know the mistake committed by them, they informed the complainant, waiving the penal interest of Rs.991/-, and that the complainant, knowing the same unnecessarily dragged them to the Consumer Forum, thereby, praying for the dismissal of the complaint.
4. The trial Forum considering the plea and counter plea, as well as perusing the documents, came to the conclusion, that there was deficiency on the part of the opposite partie,s and therefore issued direction not to collect the additional interest and further awarding Rs.5,000/- as compensation, thereby causing grievance to the first opposite party to prefer, this appeal.
5. Heard the learned counsel appearing for either side, perused the documents, written submissions as well as the order of the District Forum.
6. The complainant had borrowed loan from the opposite parties, agreeing to pay the sum on installment basis, for which, it seems he has issued post dated cheques also. The Bank/appellant had also collected some installments, sending cheques, properly to the Bank on which they were drawn. Unfortunately, one of the cheque was sent for collection, to Trichy State Bank of India, which returned correctly with endorsement âNot drawn on usâ. Immediately without verifying about the cheque in whose favour it is drawn, and sending the same to the Bank on which the cheque was drawn, it seems the Bank has issued a notice to the complainant claiming Rs.991/- towards penal interest for the cheque bearing No.573270, dated 21.05.2003 including the amount in his account. In the Written Version as well as before us also, the fact of sending the cheque to the incorrect bank, as well as claiming penal interest is not proper and it is a mistake. After issuance of notice also, as seen from the correspondence, they have agreed to waive the additional interest. According to complainant, though agreed, they have not deducted the interest, thereby, complaining, the complainant came to be filed, accusing the bank as if they have committed deficiency in service. If the opposite parties having agreed to waive additional interest and credited the same, before the filing of the case, we can excuse the mistake, committed by the Bank since they have realized the mistake and acted immediately.
7. Unfortunately the bank without even verifying the cheque on which bank it is drawn, hastily we can say, negligently claimed additional interest or penal interest, which should be construed as mistake or deficiency in service, as held by the District Forum. But as agreed, this amount has been waived, before the case has been filed, no direction would be issued, or even compensation also cannot be granted, since no suffering for the complainant. To verify the same, when the case was heard by us on 25.09.2009, a direction has been issued to the appellant to produce the statement copy showing the actual date on which the entry has been reversed. Responding positively, copy of the account has been filed, which would disclose that even on 07.05.2004, the entry was reversed as informed, as per the notice dated 06.05.2004 vide Ex.B1. Thus, it is evident the complainant knowing that the entry was already reversed, appears to have filed the case, complaining deficiency, which was rectified, as proved before this Commission. The trial Forum without looking into the matter properly, taking into account that there was a demand for penal interest alone, has affixed the seal of penalty, as well as direction which appears to be unwarranted, under the above said circumstances. For awarding compensation of Rs.5,000/- we find no material. By the demand of penal interest, and adding the same in the account of the complainant, no loss of any kind would have occurred, and the suffering all must be imaginary, and therefore awarding compensation is unwarranted. In view of the fact, the appellant having realized his mistake, rectified the same, for which, he should not be penalized at later stage. Before the complaint if the entry has not been reversed, then only the order of the Forum would be, sound acceptable, whereas, in this case, it is proved even before the complaint, coming to this Forum, the mistake or even calling it as deficiency in service was rectified, thereby, not causing any loss to the complainant. In this view, we are unable to confirm the order of the lower Forum which requires to be set aside.
7. In the result, the appeal is allowed. The order of the District Forum in OP No.70/2004, dt.08.12.2005 is set aside, and the complaint is dismissed. Considering the facts and circumstances of the case, there will be no order as to cost, throughout.
The Registry is directed to handover the Fixed Deposit Receipt, made towards the mandatory deposit, to the appellant/first opposite party duly discharged, since appellant succeeded, and there is no need to retain the FDR.