Shri Partha Kumar Basu, Hon’ble Member :
The complaint case has been filed u/s 35 of the Consumer Protection Act, 2019 against the OP bank for deficiency in service and adopting unfair trade practices in a matter of dispute regarding banking services.
The case of the complainant in gist is that the complainant is a registered club represented by the President of the club who are maintaining a bank account with the bank cum sole OP. The petitioner received one account payee cheque from the Kakdwip Treasury for Rs.50,000/- and deposited that instrument on 11.10.2021 at the account maintained by the club with their OP banker. The petitioner however did not get reflection of the credit. Being aggrieved, the complainant approached the bank and received the instrument back on 29.06.2022 as averred in the complaint petition. As the validity of the cheque expired due to negligence of the OP bank the matter was taken up by the complaint with them who sent a letter on 05.07.2022 to the treasury office, Kakdwip informing inter alia that the said cheque could not be cleared due to technical reasons and merger issue between Punjab National Bank and United Bank of India and urged upon the treasury office to issue fresh cheques in lieu thereof. But no replacement or new cheque was obtained by the club. Hence, the complainant filed the instant case praying for relief to the tune of the cheque value i.e. Rs.50,000/- due to the financial loss caused to them for negligence of the OP bank, an amount of Rs.50,000/- as compensation due to harassment and deficiency of service with unfair trade practices alongwith a litigation cost for Rs.20,000/-.
In support of their claim the complainant has filed exhibits which are photocopy of the said cheque dated 07.10.2021 (Pg.-4), copy of deposit slip dated 11.10.2021 duly stamped (Pg.-5), copy of face page of Bank Pass Book (Pg.-6), copy of letter from PNB, Namkhana Branch dated 05.07.2022 addressed to Addl. Treasury Officer, Kakdeep Treasury, Govt. of W.B. (Pg.-7), copy of complaint by complainant dated 07.07.2022 addressed to S.P., Sunderban Police District (Pg.-8-9).
The case is running ex-parte against the OP bank as per order no. 4 dated 21.09.2023. Evidence is filed by the complainant on affidavit. The evidence of the complainant is treated as their BNA as per prayer of the complainant. The case was taken up for ex-parte hearing on 19.12.2023 when the arguments of the Ld. Lawyer of the complainant were heard in full. From the arguments and on perusal of records and documents, it appears that the cheque no.124311 dated 07.10.2021 drawn on SBI, Namkhana Branch in favour of Narayanpur Sreedurga Ideal Association for Rs.50,000/- was issued by the ATO, Kakdwip Treasury that was duly deposited by the complainant at the Namkhana Branch of Punjab National Bank on 11.10.2021 in the account of the club savings account duly sealed and stamped. From the letter of the OP Bank namely PNB dated 05.07.2022 addressed to the treasury office, the reason of non-clearance of the said instrument is conspicuous which was termed by the bank as ‘Technical and Merger issue of two branches of PNB (UBI, Namkhana and PNB, Namkhana)’ as per the admitted position of the OP Bank apparent from exhibits. However as per evidence adduced by the complainant, they have not received any replacement or revalidated or any new cheque in lieu thereof.
As the case has been running ex-parte, hence there was nobody to resist the case which is now decided on merit. From the exhibits, it appears that it is the admitted position of the OP bank that the cheque got some sort of misplaced while in bank’s custody. But there can’t be any unjust enrichment or undue advantage of a human error. The misplacement of the dishonoured cheque is a bonafide mistake and it appears that in spite of best efforts the OP bank could not process it within it’s validity period. To support the above contentions, the following judgements are relied upon from the Supreme Court in the matter of Citibank N.A. Vs Geekay Agropack (P) Ltd., reported in SCC 2008 (15) Page 102 which states inter alia the Bank may be liable for damages for not returning the cheques as it amounts to deficiency in service but there cannot be any liability to pay the cheque amount. To the same effect, a similar view was taken by the Hon'ble National Commission in the matter of State Bank of Patiala v. Rajender Lal & Anr., reported in IV (2003) CPJ 53 (NC). Also the Hon'ble National Commission in the case of Manoj Khurana Vs. Rajender Banchor & Anr., reported in I (2007) CPJ 234 (NC) submitted that though there was deficiency in service on the part of the appellant / opponent-bank, it cannot be made liable to pay entire amount of cheque. According to him though the appellant/opponent-bank committed deficiency in service neglecting to take care to encash the cheque by getting clearance from the drawee bank, complainant/respondent would claim compensation and not the amount of the cheque. In the case of the Manoj Khurana Vs. Rajender Banchor & Anr.(Supra) it is held by the Hon'ble Members of the National Commission that in such case bank can be burdened with compensation, but cannot be made liable to pay entire cheque amount. The relevant portion of the Judgement is quoted below :-
“From the aforesaid judgments, it is clear that while the opposite parties bank could be made liable for deficiency in service, no liability can be fastened to it for the cheque amount. Therefore, the order under challenge directing the opposite parties-Bank to pay the cheque amount with interest is set aside. However, a sum of Rs.25,000/- is awarded to the complainant as compensation for deficiency in service on the part of the opposite parties Bank. In the result, the appeal F.A.No.1 of 2014 is allowed by modifying the order of the District Forum by setting aside the order directing the opposite parties no.1 and 2-Bank to pay the cheque amount with interest. However, we direct the opposite parties no.1 and 2 to pay compensation of Rs.25,000/- to the complainant together with costs of Rs.5,000/-. Time for compliance four weeks. F.A.No.251 of 2015 filed by the complainant is dismissed."
The Hon'ble Supreme Court in the case of Citibank N A vs Geekay Agropack (P) Ltd., and Anr decided on 24.04.2008 in a similar case has held as under :-
“The appeal filed by Geekay for not getting adequate compensation for the total amount of loss incurred by it is misconceived. For the recovery of total amount of loss, it is open for the appellant Geekay to file a civil suit before the appropriate Court which, we are informed has already been filed. The National Commission could have awarded compensation only for the deficiency of service only. The said compensation has been awarded by the National Commission. Therefore, there is no reason to interfere in the appeal filed by Geekay also. In the result, all these appeals are dismissed. No order as to costs insofar as proceedings before this Court are concerned”
Also the National Commission in the case of Manoj Khurana vs Rajender Banchor and Anr., decided on 16.01.2007 has held as under :-
“It is admitted case of the parties that cheques in question all dated 10.10.2003 were deposited by the petitioner with respondent No. 2 on 31.3.2004 for collection and those were sent by respondent No. 2 to their branch at Durg on 7.4.2004 and the Durg branch returned the cheques on 13.4.2004 on ground of six months validity period having expired. State Commission had, thus, found respondent No. 2 bank deficient in service for delay in despatching the cheques to their branch at Durg on 7.4.2004 and awarded compensation of Rs. 5,000. To be only noted that amount of Rs. 61,000 as claimed by the petitioner also included amount of Rs. 50,000 of the cheques in question. This Commission has taken the view in State Bank of Patiala v. Rajender Lal and Anr. IV (2003) CPJ 53 (NC), and other cases rendered subsequently that a bank on ground of deficiency in service in such like matters can be burdened with compensation but it cannot be made to pay the entire amount of the cheque. In view of said facts, there is no scope for increase of compensation beyond Rs. 5,000. Accordingly, revision petition is dismissed.
In the instant case, it is apparent that the cheque was duly deposited by the petitioner with the OP bank. The said cheque was not got credited due to validity being over although petitioner deposited the same in time. The cheque was possibly misplaced at the service branch of the bank and after making serious efforts to trace the same, the bank had orally informed the petitioner about the same. Thereafter the bank communicated the drawer of the cheque to re-issue the same. Due to such non-performance of the OP bank it can be safely said that the complainant has suffered the financial loss for the reason amounting to deficiency on the part of the bank. A consumer cannot suffer due to the negligent act of the OP under any circumstances. The above-mentioned citations are applicable to the case in hand and in view of the above, the petitioner is entitled to claim only compensation and cost for the deficiency of services in delaying to process the cheque.
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Hence the complaint case, be and the same, succeeds in part, which is decided ex-parte against the OP and in favour of the complainant with cost.
Hence, it is,
ORDERED
The OP is liable and is directed to pay a compensation for Rs. 10,000/- (Rupees Ten Thousand) only for causing mental agony and harassment to complainant organisation office bearers, within 60 days from the date of passing this order.
The OP is also liable and is directed to pay the litigation cost of Rs.5,000/- (Rupees Five thousand) only within 60 days from the date of passing this order.
That the complainant is at liberty to put the order into execution after the expiry of 60 days, in case the order is not complied with by the OP within 60 days from the date of passing of this order.
Let a copy of the certified order be supplied free of cost to the parties as per CPR.
That the final order will be available in the following website www.confonet.in.
Dictated and corrected by me.
Member
