Sri Santanu Ghosh vs State Bank Of India And Others
2023 Latest Caselaw 4444 Cal

AD-36
Ct No.09
24.07.2023
TN
                            WPA No. 16148 of 2023

                               Sri Santanu Ghosh
                                      Vs.
                         State Bank of India and others


             Mr. Saikat Roy Chowdhury,
             Mr. Aritra Ghosh
                                                 .... for the petitioner

             Mr. Debashis Saha
                                                       .... for the SBI

             Mr. Amitesh Banerjee,
             Mr. Tarak Karan
                                                     .... for the State




                   Learned counsel for the petitioner contends that

             the bank and the Ombudsman closed a complaint of

             the petitioner in a cursory manner, despite the

             petitioner having been defrauded by way of an online

             transaction.

                   It is contended that not only the bank but also

             the Ombudsman and the Appellate Authority made

             cryptic communications to the petitioner, without

             going into the issue raised by the petitioner.

                   The petitioner, it is argued, was defrauded on an

             online   transaction     on    February     15,    2023.

             Subsequently on February 21, 2023, a shadow

             reversal was done by the bank in respect of the

             account of the petitioner. It is submitted that in view
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of the said shadow reversal, it cannot be said that the

bank closed the complaint of the petitioner. That

apart, the bank could not disown its liability in the

issue, since the bank, even after the complaint of the

petitioner on February 15, 2023, undertook the

shadow reversal in the petitioner's account.

      Learned   counsel     for   the   petitioner   places

reliance on the communication made by the bank, the

Ombudsman and the Appellate Authority respectively

and    contends     that        such    statements     and

communications were mere efforts to shirk the

responsibility of the said authorities on the issue.

Hence, the present writ petition has been preferred for

seeking justice in the matter.

      Learned   counsel     for   the   petitioner   places

reliance on a Circular issued by the Reserve Bank of

India (RBI) on July 06, 2017 and submits that the

relevant provisions thereof have not been complied

with in the present case.

      Learned counsel also places reliance on certain

judgments in support of his contention.

      The first judgment cited by learned counsel is a

Division Bench judgment of the Allahabad High Court

rendered in Awadhesh Singh vs. Reserve Bank of India

and Others, reported at 2021 SCC OnLine ALL 301,

where it was observed that, so far as the closure of the
                           3




complaint    of   the   petitioner   by   the   Banking

Ombudsman is concerned, the same was closed

merely on the ground that the ground of complaint

does not fall within Clause 8 of the Banking

Ombudsman Scheme, 2006.          It was observed that

perusal of Clause 8 of the said scheme shows that it

does not cover the controversy as involved in the said

writ petition. Therefore, it was held, the closure of the

complaint by the Banking Ombudsman does not come

in the way of the petitioner therein to get credit of the

unauthorized transactions in terms of Clause 9 of the

Reserve Bank of India Policy.

      Learned counsel for the petitioner also places

reliance on a judgment of a learned Single Judge of

the Madras High Court, reported at 2023 SCC OnLine

Mad 3165 (Dr. R. Pavithra vs. Commissioner of Police

and Others). In the said judgment, it was observed by

the court that as per Guideline no.16.4.8 of the RBI,

the non bank Prepaid Payment Instrument issuers

shall ensure that a complaint is resolved and the

liability of the consumer is established within the

stipulated period of time, not exceeding 90 days.

      It is submitted that the bank did not, in the

present case, conclude the proceedings within 90

days. It was the Ombudsman who ultimately passed

the order within 90 days.       However, nothing was
                           4




communicated from the end of the bank to indicate

that the complaint of the petitioner was duly closed

within 90 days. Hence, the petitioner is also entitled

to get compensation on such score.

      Learned counsel appearing for the respondent-

bank controverts the contentions of the petitioner and

argues that the complaint was closed within 90 days.

Next placing reliance on the communications

made to the petitioner, it is argued that it was an error

on the part of the petitioner that the OTP (One-time

Password), which was sent to the registered mobile

number of the petitioner, was shared by the petitioner

with a third party.

It is, thus, submitted that the said act on the

part of the petitioner does not cast any liability on the

bank or the respondent-authorities, to take any

further steps in the matter. It is also contended that

the respondent-bank has sufficiently enquired into the

matter, which is also evident from the documents

annexed to the writ petition.

Learned counsel for the bank cites a coordinate

Bench unreported judgment of this court rendered in

WPA No. 14390 of 2021 (Mrs. Kiran Tewary vs. The

Banking Ombudsman, Kolkata Center & Ors.), where it

was observed that the petitioner was entitled to

institute appropriate civil and/or other proceedings.

It is, thus, submitted that since the complaint of the

petitioner has been dealt with by the bank, the

Ombudsman and up to the Appellate Authority, no

further remedy lies in the writ jurisdiction.

Upon hearing learned counsel for the parties, it

transpires that the judgments cited by the bank are

operative in a limited context. It has to be ascertained

whether the present writ petition or the allegations

made therein come within the limited window of

interference in a writ petition.

However, no ratio was laid down conclusively in

the coordinate Bench judgment of this court debarring

the writ jurisdiction in such matters as the present

one. Moreover, in the said case, apparently all

channels of challenge had not been exhausted by the

writ petitioner, for which the court observed that the

petitioner's remedy lay elsewhere.

Considering the judgment cited by the

petitioner, the first one of them, being the Division

Bench judgment of the Allahabad High Court, deals

with a similar issue.

In the said judgment, it was observed that the

closure of the complaint of the petitioner by the

Banking Ombudsman was merely on the ground that

the ground of complaint did not fall within Clause 8 of

the Banking Ombudsman Scheme, 2006.

However, the facts the present case are

different, inasmuch as the respondent-authorities

herein adverted to the complaint of the petitioner on

merits and arrived at certain conclusive findings, one

way or the other. The complaint was not rejected, as

not maintainable, at the threshold.

The scrutiny in the present writ petition is

whether the decision-making process was de hors the

law and the Guidelines of the RBI. Thus, the ratio

laid down in Awadhesh Singh (supra) by the Division

Bench of the Allahabad High Court is not applicable in

the present case.

Insofar as the coordinate Bench judgment of the

Madras High Court is concerned, the same observed,

in line with RBI Guideline no. 16.4.8, that a complaint

of the customer is to be resolved within 90 days. The

exact language used therein was that a complaint is to

be ensured to be resolved and the liability of the

customer established within the said time, not

exceeding 90 days.

In the present case, it is seen that the complaint

was lodged by the petitioner on February 15, 2023.

Thereafter, the bank intimated the petitioner on

March 8, 2023 that it had submitted all the

documents to the respective departments at the local

head office for resolution. However, at least till that

date, the issue raised by the petitioner was not

resolved.

Thereafter, the matter went up to the Banking

Ombudsman who, by a communication dated March

30, 2023, intimated the petitioner that the Regulated

Entity (RE), that is, the respondent bank had provided

OTP SMS log, SMS delivery confirmation report (of

Telecom Service Provider) and stated that the SMS

OTPs were delivered on the registered mobile number

of the complainant.

The RE had added further that the transactions

were performed in a secure manner and that

deficiency/contributory negligence on the part of the

Regulated Entity was not evidenced.

As such, the Ombudsman held that the incident

pertains to financial fraud done by some unknown

third party, which requires detailed investigation by

the appropriate law enforcement authority. OBO

being a summary forum, it was observed, is not vested

with such power of investigation. The complainant

was accordingly advised to pursue the matter with

appropriate law enforcement authority.

Although there was no formal communication

by the bank with regard to closure of the complaint, it

is evident from the communication by the

Ombudsman, which was also approached in the

matter, that the said communication dated March 30,

2023 conclusively closed the complaint of the

petitioner. Hence, the closure was well within the

outer limit of 90 days, as contemplated in the RBI

Guidelines.

Hence, it cannot be said that the bank was

deficient on such score, so as to entitle the petitioner

to get compensation from the bank in terms of the RBI

Guidelines.

Insofar as the RBI Guidelines dated July 06,

2017 relied on by the petitioner is concerned, the

same cannot lend an edge to the petitioner's case.

Guideline 6 of the said Guidelines stipulate that a

customer's entitlement to zero liability shall arise

where the unauthorized transaction occurs in the

events as given thereunder.

The first instance of such event is contributory

fraud/ negligence/ deficiency on the part of the bank

(irrespective of whether or not the transaction is

reported by the customer).

       The    second    sub-clause      under    Clause    6

stipulates    that   third   party     breach,   where    the

deficiency lies neither with the bank nor with the

customer but lies elsewhere in the system, and the

customer notifies the bank within three working days,

also gives rise to zero liability on the part of the

customer.

In the present case, however, there is nothing

on record or produced before the respondent-

authorities, to indicate that there was either any

contributory fraud/negligence / deficiency on the part

of the bank or elsewhere in the system, to entitle the

customer/petitioner to zero liability.

Clause 10 (ii) of the Guidelines provides that the

bank shall ensure that where it is unable to resolve

the complaint or determine the customer liability, if

any, within 90 days, the compensation as prescribed

in paragraphs 6 to 9 thereof is paid to the customer.

As discussed earlier, however, there is no

occasion to hold that the complaint was not resolved

within the period of 90 days.

Clause 12 of the RBI Guidelines provides that

the burden of proving customer liability in case of

unauthorized electronic banking transactions shall lie

on the bank.

In the present case, on the complaint of the

customer, the bank as well as the Ombudsman and

the Appellate Authority have adverted to the complaint

and have come to the conclusion that there was no

deficiency on the part of the bank.

Hence, the present matter has crossed the

initial stage of burden of proof and has reached the

realm of final conclusion of the complaint. Hence, the

provision as to burden of proof, which is relevant at

the initial stages of a proceeding, regarding customer

liability is no longer of any relevance.

That apart, there is nothing in the

communication dated March 30, 2023, which has

been discussed above, issued by the banking

Ombudsman, which calls for any interference on the

ground of any deficient decision-making process. It is

reflected therein that the bank provided all the logs

and delivery confirmation report and other necessary

materials for the Ombudsman to come to a

comprehensive conclusion on the issue.

Upon going through such materials, the

Ombudsman observed that there was no deficiency or

contributory negligence on the part of the bank, since

the OTP was apparently shared by the petitioner from

his registered mobile number.

Insofar as the rejection by the Appellate

Authority is concerned, the same reveals that the

authority intimated the petitioner that the grievance

levelled before the said authority was closed.

In view of the detailed observations of the

Ombudsman, nothing further remained to consider in

detail by the appellate authority. The description of

the grievance, as revealed in the Action Status Details

recorded by the Appellate Authority, sufficiently takes

care of the issues.

In the communication dated May 22, 2023, it is

seen that, with reference to the trail mail and

CPGRAMS complaint made, the bank had rejected the

claim of the petitioner after scrutinizing the same in

detail. It was further mentioned therein that, as

already informed, no transaction was possible without

OTP or password.

Hence, the same also reiterated the findings of

the Ombudsman on the issue.

Inasmuch as the communication dated June 05,

2023 to the petitioner by the Appellate Authority,

annexed at page - 44 of the writ petition, is

concerned, the same does not make any sense.

However, the mere fact that the said communication

does not have any germane bearing on the present

complaint of the petitioner does not enhance the case

of the petitioner in any manner whatsoever.

In view of the above discussions, the petitioner

is not entitled to reopen the issue before any other

forum, let alone the writ court, for the purpose of a re-

scrutiny on the issue on merits of the petitioner's

complaint.

Hence, in view of the above observations, there

is no scope of interference in the present writ petition.

Accordingly, WPA No. 16148 of 2023 is

dismissed on contest, without any order as to costs.

Urgent photostat certified copies of this order, if

applied for, be made available to the parties upon

compliance with the requisite formalities.

(Sabyasachi Bhattacharyya, J.)