Andhra Pradesh

Nellore

CC/57/2014

1.Patchava Venakata Ramanaiah(Died) - Complainant(s)

Versus

1.Velagapudi Mallikarjuna Rao, S/o. Late hanumantha Rao - Opp.Party(s)

O.Abbai reddy

23 Oct 2017

ORDER

Date of Filing     :13-08-2014

                                                                             Date of Disposal:23-10-2017

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM:NELLORE

Monday, this the 23^rd day of   OCTOBER, 2017

 

          Present: Sri Sk.Mohd.Ismail, M.A., LL.B., President

                         Sri K. Umamaheswara Rao, M.A., B.L., Member

 

C.C.No.57/2014

 

1.	Patchava Venkata Ramanaiah (Died), S/o.Late China Vengaiah, Hindu, Aged about 63 years,
2.	Patchava Venkata Ramanamma, W/o.Late Venkata Ramanaiah, Hindu, Aged  about 61 years,
3.	Patchava Vengal Rao, S/o.Late Venkata Ramanaiah, Hindu, Aged about 39 years, Represented by his GPA  Holder / Mother:     Patchava Ramanamma ,                                                    Residing at  D.No.3-1-243, Nagendra Nagar, Nellore-2.                                                                             ..… Complainants   (amended and added as per orders in I.A.No.48/2016     Dated 28-03-2016)

 

Vs.

 

1.	Velagapudi Mallikarjuna Rao, S/o.Late Hanumantha  Rao, Hindu, Aged about 41 years, Doing Business at Sri Bhavani  Opticals, Indira Bhavan Road, Brindavanam, Nellore City.
2.	The Branch Manager, State Bank of Hyderabad, MSME Branch, Lakshmipuram, Settigunta Road, Nellore City.                                                                  ..…Opposite parties

                                                             .

          This complaint is coming before us for hearing in the presence of                Sri O. Abbai Reddy and Sri M. Brahmam, advocates                                                      for the complainant and opposite party No.1 called absent, Sri P. Gangadhara Reddy and Smt.I. Sobha Rani,  advocates for the opposite party No.2  and having stood over for consideration till this day and this Forum made the following:

 

ORDER

                       (ORDER BY  Sri.Sk.MOHD.ISMAIL, PRESIDENT)

           Originally the 1^st complainant Patchava Venkata Ramanaiah filed this complaint against the opposite parties under Section-12 of Consumer Protection Act to direct the opposite parties to pay the cheque  amount of Rs.2,10,000/-  along with interest @ 24% p.a. from the date of dishonor of the cheque  bearing No.005549, dated 13-05-2013 and till the date of its realization, costs of the complaint and notices charges and submits to allow the complaint                                with costs.

          2.       During the  course of enquiry, the 1^st complainant Patchava Venkata Ramanaiah  died and as per orders passed in I.A.No.48/2016, dated 28-03-2016, the complainant Nos.2 and 3  were impleaded as parties as  they are  the legal heirs of the complainant No.1 who died.

          3.       The brief averments of the complaint are as follows that:-

                   The complainant submits that the 1^st  opposite party  borrowed a sum of Rs.1,50,000/-  from him on 13-09-2011 and in consideration thereof he executed a promissory note on the even date agreeing to repay the same with interest @ 24% p.a.  Towards the discharge of the said debt the 1^st opposite party issued a cheque bearing No.005549, dated 13-05-2013 for a sum of Rs.2,10,000/-  to the complainant  drawn  on IDBI Bank, Nellore. Accordingly, the complainant presented the said cheque in his bank account of the 2^nd opposite party on                 14-05-2013 for encashment but the same was  dishonoured by IDBI  Bank, Nellore on the ground that “Funds Insufficient”.  On 14-05-2013, the 2^nd opposite party informed to the complainant that the said cheque was lost and they will return   the same on tracing it and issued memo of dishonour  of the said cheque.

          The complainant submits that subsequently the complainant wandered around the 2^nd opposite party bank several time and requested them to return the said cheque but they have been postponing  the same on the pretext that the same was not traced.   The 2^nd  opposite party service is defective towards the complainant.  Due to the 2^nd opposite party negligence  and defective service the complainant is unable to proceed legally against the 1^st opposite party and sustained heavy loss and suffered lot mental agony.

          The complainant submits that the complainant having no other go issued a registered legal notice to the 2^nd opposite party on 31-05-2013, received the same and issued a reply  notice on 07-06-2013 stating that to obtain a duplicate cheque from the 1^st opposite party and in case, the original cheque is traced, they will return the same immediately.  Then the complainant approached the 1^st opposite party and requested him to issue another cheque but  he refused.  Subsequently on 12-06-2013, the 2^nd opposite party sent a legal notice to the complainant advocate stating that they are taking all the steps to overcome the situation on harmonious way and so  far hey are not initiating any further  action in this regard.  Believing the words of the 2^nd opposite party, the complainant waited for a period of one year but they have not traced the said cheque or paid the cheque amount to him.

          The complainant submits that the 1^st complainant namely Patchava Venkata Ramanaiah who is the husband of the 2^nd complainant and father of the 3^rd complainant died intestate on 31-12-2015  leaving behind the wife and son i.e., complainants 2 and 3.  For that the 2^nd and 3^rd complainants are entitled to recover  the above said complaint amount from the opposite parties, being  legal heirs of the said Venkata Ramanaiah (amended and added as per orders in I.A.No.48/2016, dated 28-03-2016 and submits to allow the complaint with costs.

          4.       The opposite party No.1 called absent and no written version or affidavit filed on behalf of the opposite party No.1 and no documents were filed on behalf of the opposite party No.1.

          5.       The opposite party No.2 filed written version with the following averments that:-  

            The opposite party No.2 is not aware that the opposite party No.1 borrowed a sum of Rs.1,50,000/-  from the complainant  No.1 on 13-09-2011 and  executed a promissory note agreeing to repay the same with interest @ 24% p.a. and towards the  discharge of the said date, the opposite party No.1 issued  a cheque baring No.005549, dated 13-05-2013 for Rs.2,10,000/- to the complainant, drawn on IDBI Bank, Nellore.  It is true that the complainant presented the said cheque in his bank account  of  this opposite party No.2  on 14-05-2013  for encashment, but the same was  dishonoured by IDBI Bank, Nellore on the ground that  “Funds Insufficient” on  dated 14-05-2013 and the 2^nd opposite party informed the same  to the complainant that the said cheque was lost  and they will return   the same on tracing it and issued memo of dishonor of the said cheque.

          The opposite party No.2 submitted that the  complainant is not entitled for any relief against the opposite party No.2 and due to non-returning of dishonour of cheque no prejudice has been caused to the complainant as the complainant can file civil suit or a complaint under Section-138  of Negotiable Instrument  Act  on the basis certificate of bank / 2^nd opposite party given for loss of cheque in transit.  It is settled principle of law that in case of cheque loss in transit the complainant is not entitled   for cheque amount.  Hence, the prayer of the  complainant is not tenable  in view of the different judgment of High Courts, National Commission and Supreme Court.  It is submitted that if the cheque  was lost in transit somewhere and was not traced or not honoured there cannot be any liability on the  opposite party No.2 / bank for the cheque amount.  It is submitted that the complainant should have  gone to 1^st opposite party for issue of fresh cheque / duplicate cheque which the complainant has not filed any proof of such request for issuing duplicate cheque.  It is submitted that the complainant has not filed any proof of exercising the other   alternative remedies for recovery of the amount like filing of civil suit,  request of  issuance of duplicate cheque etc., Moreover, the 2^nd opposite party has come to know that the complainant has concealed the fact regarding filing of civil suit  of recovery and complaint under Section-138 of Negotiable Instrument Act against the 1^st opposite party.  It is submitted that complainant is not entitled   for any relief sought for against the 2^nd opposite party  as no prejudice  has been caused  to the complainant due to not returning  of the dishonoured cheque.  It is submitted that 1^st opposite party may be directed by this Forum to issue a duplicate cheque in favour of the complainant.  It is submitted that the  complainant can get the certificate from the 2^nd opposite party that the cheque submitted by the complainant has been lost in transit   and the complainant may initiate criminal or civil proceedings against the person, who issue the cheque i.e., 1^st opposite party.  It is submitted that the 2^nd opposite party cannot be substitute for the original debtor.  It is submitted that the 2^nd opposite party is ready and willing to cooperate the complainant in exerting the other recourse against the 1^st opposite party like filing of civil suit and complainant under Section-138 of  Negotiable Instrument Act; if the same  have not been filed by the complainant.

          It is submitted that the complainant got issued a registered legal notice to this 2^nd opposite party on 31-05-2013 and this 2^nd opposite party received the same and  issued a reply notice on 07-06-2013 stating  that to obtain a duplicate cheque from the  1^st opposite party and in case, the original cheque is traced, they will return the same immediately.  My client is not aware that the complainant approached the 1^st opposite party and requested him to issue another cheque, but  he refused.  It is true that subsequently, on 12-06-2013, the 2^nd opposite party  sent a legal notice to the complainant advocate stating that they  are taking all the steps to trace out the said cheque and overcome the situation.  It is not true that believing  the words of the 2^nd opposite party the complainant waited for a period of one year, but they have not traced the said cheque or paid the cheque amount to him.

          The opposite party No.2 submits that there is no willful  latches or negligence or deficiency of service on the part of the opposite party in returning the dishonoured cheque dated 13-05-2013 to the complainant as it was lost in transit and it is not traced out in spite of best efforts made in tracing out the same.  It is further submitted that the opposite party reliably learnt  that the complainant filed civil suit for recovery of debt and criminal complaint under Section-138 of Negotiable Act against 1^st opposite party, but he suppressed true and correct facts to this Forum in filing this  complaint

          The opposite party No.2 submits that officers of the opposite party are discharging  their duties with utmost care and caution and the loss of cheque was only an incidental act which was happened in the  transit and hence he submits to dismiss the complaint with costs.

          6.       On behalf of the complainants during the life time of the 1^st complainant, the  affidavit of P.W.1 was filed and Exs.A1 to A4 were marked.  After death of the 1st complainant,  the affidavit of complainant No.2 is received as affidavit of P.W.2.

          7.       On behalf of the opposite party No.1, no evidence was adduced and no documents were marked.

 

          8.       On behalf of the opposite party No.2, the affidavit of R.W.1 received in evidence  and Exs.B1 and B2  were marked..

 

          9.       Written arguments on behalf of the complainants and  opposite party No.2 filed.  Written arguments of opposite party No.1 not filed.

 

          10.     Arguments on behalf of the both parties heard.

 

          11.     Perused the written arguments filed on behalf of both parties.

 

          12.     Now the point for consideration are

          (1)     Whether  the complaint filed by the complainants under Section-12 of

                   Consumer Protection  Act, 1986 against  the opposite party No.1

                   alleging deficiency of service is maintainable?

(2)      Whether  the complaint filed by the complainants under Section-12 of

                   Consumer Protection  Act, 1986 against  the opposite party No.2

                   alleging deficiency of service is maintainable?

          (3)     To what relief, the complainant is entitled?

 

          13.  POINT No.1:The learned counsel for the complainants submits that the opposite party No.1  borrowed a sum of Rs.1,50,000/- on 13-09-2011 and executed a pronote in favour of the complainant No.1 on 13-09-2011 agreeing to repay the same with interest @ 24% p.a. and on 13-05-2013, the opposite party No.1  issued a cheque bearing No.005549,  dated 13-05-2013 for a sum of Rs.2,10,000/- to the complainant  drawn on IDBI Bank, Nellore and the said  cheque was presented for realization and the same was dishonoured that  Funds Insufficient on 14-05-2013 and the opposite party No.2 informed to the complainant that the said cheque was lost  and the opposite party No.2  informed the complainant No.1 that after tracing of the said lost cheque, they will handed over the complainant  No.1 and as the opposite party No.2 lost  the cheque, the complainant suffered lot of mental agony and hence the complainant  filed this complaint against  the opposite party No.1 to direct them for the payment of cheque  amount with interest  and submits to allow the complaint with costs.

          But as seen from  Exs.B1 and B2, the complainant No.1 filed C.C.No.880/2013 under Section-138 of Negotiable Instrument Act against the opposite party No.1 before  II Additional Judicial Magistrate of  First Class, Nellore  and the complainant No.1 also filed O.S.No.127/2014  before the  Principal  Senior Civil Judge, Nellore for the recovery of the  said cheque amount.  In view of the  above said fact and  as there is knownly creditor and debtor relationship  between  the complainant No.1 and opposite party No.1,  we are of the opinion that  the facts in this case  does not  disclose about the deficiency of service and hence the complaint filed  by the complainants against the opposite party No.1 is not maintainable as there is no deficiency of service by the opposite party No.1 against the complainants as the complainants are prosecuting  the opposite party No.1 both criminal  and  civil.  Hence in view of the above said facts, we are of the opinion that the complaint filed by the complainant against  the opposite party No.1 is not maintainable.  In view of the above said facts, we answer this point against the complainants  and in favour of the opposite party No.1. 

          14.  POINT No.2:The learned  counsel for the complainant submits  by  relying upon the evidence of P.Ws.1 and 2 and Exs.A1 to  A4 that the opposite party No.1 borrowed a sum of Rs.1,50,000/- on 13-09-2011  agreeing to repay the same with interest @ 24% p.a. and  executed a pronote in favour of  the complainant No.1  and towards the discharge of the  said loan amount, the opposite party No.1 issued a cheque bearing No.005549 on 13-05-2013  for Rs.2,10,000/-  to the complainant  drawn on IDBI Bank, Nellore and when the said cheque was presented before opposite party No.2, the said cheque was returned with an endorsement  “Funds Insufficient”  and later the opposite party No.2 informed  to the 1^st complainant that the said cheque was lost  and as soon as the said cheque was traced out the  opposite party No.2 while  handedover the said cheque of the  complainant No.1 and inspite of issuing of the legal notice as the opposite parties failed to pay the due amount.  Hence, the complainant filed this complaint against the opposite parties to direct  for the payment of the cheque amount of Rs.2,10,000/- with interest @ 24% p.a. and submits to allow the complaint with costs.

          On the other hand the learned counsel  for the opposite party No.2 submits by relying upon decisions reported in  2009 (3) CPJ  3 (SC),  2015 Vol-II CPJ 269 (NC), 2009 CTJ 412 ( NC), 2009 CTJ 297 (NC), 2007 Vol-3 CPJ 30 (NC)  and  2007 Vol-1 CPJ-1 (NC)  that  when the  cheque was lost  during the transit the complainants are not entitled for the cheque amount and as the said cheque was lost in transit, the complaint filed by the complainants against the opposite party  No.2 is not maintainable  and submits  for the dismissal of the complaint against the opposite party No.2 with costs.  In view of the arguments submitted by the learned counsel for the both parties in this case it is an admitted  fact that the complainant  proved  he presented a cheque bearing No.005549  which was issued by the opposite party No.1 and the said cheque was   dishonoured  on the ground  of  Fund Insufficient and the opposite party No.2 informed to the complainant  No.1 that  the said cheque was lost and as and when the said  cheque was  traced out he handed over the cheque to the complainant.  In the light of the above said facts, the case of the both parties has to be examined.

 

In Branch Manager, Federal Bank Limited Vs.                       N.S. Sabastian  reported   in 2009 (3) CPJ (SC),

In ICICI Bank Limited and others  Vs. Ramakishan Choudhary and others reported  in   CPJ 2015, Vol-2, 269 (NC),

In Azhar Mohammad and another Vs. Punjab National Bank reported  in   2009 CTJ 412 (NC),

In A.P. Bopanna Vs. Kodagu District Co-operative Central Bank reported  in  2009 CTJ  297(NC),

In Corporation Bank Vs. N.C.S. Films reported in               2007 (3) CPJ 30 (NC) and

In Canara Bank Vs. Sudhir Ahuja reported in                    2007 (1)  CPJ 1 (NC)

          Wherein the Hon’ble Apex Court  and Hon’ble National Commission  held that  when the  cheques which were sent to the  bank   were lost in transit, the bank was held  not liable to reimburse the value of the cheques as the account holder had enough time  to initiate the proceedings   under Negotiable Instruments Act against the issuer of the cheque and has  not  done.  The claim for damages was allowed.

 

          Following the above decisions, we are of the opinion that when the cheque was lost,  the complainants  are not entitled to claim cheque amount.  Hence by relying upon the above decisions and discussions made above, we are of the opinion that the complaint filed by the complainant against the opposite party No.2 to direct  the opposite party No.2  for payment of Rs.2,10,000/- with interest is not maintainable.

 

In ICICI  Bank Limited and  others Vs. Ramkishan Choudhary and others reported  in  2015 (2) 269 (NC).

          Wherein the Hon’ble National Commission held as follows “ Regarding the  compensation  amount to be  given for deficiency in service, we are unable  to agree that the compensation amount should be the same as  that mentioned in the cheque i.e., Rs.1,80,000/-.” 

 

In   Canara Bank Vs. Sudhir Ahuja reported in                                     I (2007) CPJ 1 (NC)

          Wherein this Commission is held  on that ground of deficiency in service, the bank  can be ordered  to pay the compensation and not the entire amount of the  cheque. 

          Following  the above decision  since there was  a clear deficiency in service on the part of the  opposite party No.2, we are of the view that Rs.30,000/- is adequate and equitable compensation and , therefore, direct,  opposite party No.2 to pay  complainant No.1, this  amount  within a period of six weeks from the  date of receipt of this order, failing which this amount would carry interest @ 6% p.a.   R.P.No.49/2008 filed by the Bank of Baroda is disposed of accordingly.

          Following the above decisions and observation made  by the Hon’ble National Commission, we are of the opinion that awarding of Rs.30,000/- towards the  compensation to the complainant will meets the ends of justice.

           By relying upon above decisions and discussion made above, we are of the opinion that the complaint filed by the complainant  against the opposite party No.2 for the recovery of the cheque amount of Rs.2,10,000/-  with interest @ 24%  p.a. is not maintainable   and  the complainants are  awarded compensation of Rs.30,000/- only.  By relying upon the above decisions and discussion, we answer this point accordingly. 

 

          15.  POINT No.3:In view of our answering on point No.1 against the complainants and in favour  of the opposite party No.1, the complaint filed by the complainants against the opposite party No.1 has to be dismissed and in view of our answering on point No.2, accordingly the complaint filed by the complainants against the opposite party No.2 has to be allowed partly.

             In the result, the complaint is allowed partly  and   the opposite party No.2 is directed to pay Rs.30,000/- (Rupees thirty thousand only) as compensation to the complainants within a period of six weeks from the date of receipt  of this order. Failing which this amount will carry interest @  6% p.a. till realisation.

          The opposite party No.2 is also directed to pay costs of Rs.5,000/- (Rupees five thousand only) to the complainants.

          The complaint filed by the complainants  against the opposite party                   Nos.1 and 2 to recover the cheque amount ofRs.2,10,000/-  with interest                @ 24% p.a. on cheque bearing No.005549, dated 13-05-2013  is hereby dismissed without costs.

          The opposite party  No.2  is directed to comply the order on communication of the orders within six weeks.

 

          Dictated to Stenographer, transcribed by her corrected  and pronounced by us in the open  Forum, this the   23rd day of  OCTOBER, 2017.

 

 

           Sd/-                                                                                        Sd/-

     MEMBER                                                                          PRESIDENT

                                      APPENDIX OF EVIDENCE

 

Witnesses Examined for the complainant

 

P.W.1  -	17-08-2015	Sri Patchava Venkata Ramanaiah, S/o.Late China Vengaiah, Nellore-2 (Evidence affidavit filed).
P.W.2  -	25-11-2016	Sri Patchava Ramanamma, W/o.Late Venkata Ramanaiah, Nellore-2 (Evidence affidavit filed).

 

Witnesses Examined for the opposite parties

 

R.W.1  -

30-09-2015

Sri Penukonda Venkata Nagesh, S/o.P.V. Krishna Rao, Working as Manger in State Bank of Hyderabad, Nellore City ( Chief affidavit filed).

 

                           EXHIBITS MARKED FOR THE COMPLAINANT

 

 

Ex.A1  -	14-05-2013	Photostat copy of  chque No.005549 return memo in favour of  complainant No.1 issued by the opposite party No.2.
Ex.A2  -	31-05-2013	Legal notice from complainant No.1 ‘s advocate              V. Upendra Rao to the  opposite party No.2 along with served postal acknowledgement and registered post receipt.
Ex.A3  -	07-06-2013	Letter from opposite party No.1 to the complainant.
Ex.A4  -	12-06-2013	Legal notice from opposite party No.2’s advocate to the complainant’s advocate V. Upendra Rao.

                         EXHIBITS MARKED FOR THE OPPOSITE PARTIES

 

Ex.B1  -	-	Photostat copy of Complaint filed u/Sec.38 and 142 of Negotiable Instruments Act r/w.Sec.190 of the Code of Criminal  Procedure on behalf of  complainant in C.C.No.880/2013 before II Additional Judicial Magistrate of First Class, Nellore.
Ex.B2  -	15-06-2015	Notice from the Court of Hon’ble Principal Senior Civil Judge, Nellore in E.P.No.61/2014 in o.s.No.127/2014.

                                                                                                           Id/-

                                                                                                      PRESIDENT

Copies to:

 

1.	Sri O. Abbai Reddy  and Sri M. Brahmam, Advocates, 23-1-962, Wahabpet, Nellore-524 003.
2.	Sri Velagapudi Mallikarjuna Rao, S/o.Late Hanumantha  Rao, Doing Business at Sri Bhavani  Opticals, Indira Bhavan Road, Brindavanam, Nellore City.
3.	Sri P. Gangadhara Reddy and Smt.I. Sobha Rani, Advocates, 23/826/1, Ramesh Reddy Nagar, Nellore-524 003.

 

Date when free copy was issued: