Haryana

Ambala

CC/124/2015

Pawan Kumar - Complainant(s)

Versus

Bank of Baroda - Opp.Party(s)

R.K.Pawan

16 Aug 2017

ORDER

BEFORE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

                                                                         Complaint No. 124 of 2015.

                         Date of Institution: 05.05.2015.

            Date of final order: 16.08.2017.

Pawan Kumar son of Shri Mangat Ram, resident of village Holi Tehsil Barara District Ambala.

                                                             ….Complainant.

                                       Versus

Bank of Baroda, Dosarka Branch District Ambala through its Branch Manager.

                                                          …..Opposite party.

                          Complaint under section 12 of

            Before: Sh. Dina Nath Arora, President.

           Smt. Anamika Gupta, Member.

            Sh. Pushpender Kumar, Member.   

Present:  Sh. R.K.Pawan Adv. for complainant.

              Sh. Anil Singla Adv. for opposite party.                             

ORDER:

             The brief facts in the complaint are that complainant is having saving bank account No.26040100001619 with the opposite party and on dated 03.06.2014 he presented a cheqe No.010174 dated 30.04.2014 for a sum of Rs.1,85,000/- drawn on ICICI Bank Yamuna Nagar which was sent by the Op for clearance with a promise that same would be encashed within 4/5 days but thereafter the Op did not disclose about the status of the cheque and finally the cheque was presented for encashment on 03.06.2014 but the Op had issued a receipt that the OP was duty bound to get the same encashed/cleared or if dishonored to return the same in original alongwith return memo but the OP had disclosed that cheque was lost. Due to this the complainant could not receive Rs.1,85,000/- and the person who had issued the cheque refused to issue fresh cheque for the same amount. Due to the deficiency on the part of OP the complainant has suffered mental agony and financial loss as he was to receive the money in the month of June-2014. The complainant requested the OP to make the loss good besides compensation for mental agony and harassment and also got served a legal notice upon it but to no avail.  In evidence, the complainant ha tendered affidavit Annexure CX and documents Annexure C1 to Annexure C6.

2.             On notice, OP appeared and contested the complaint of the complainant wherein several preliminary objections such as cause of action, estoppal, locus standi and suppression of material facts etc. have been taken. It has been submitted that on 12.06.2014 the complainant had presented the cheque No.010174 dated 30.04.2014 which was sent to Ambala Cantt. Branch but same was received back   on 17.06.2014 as dishonoured with the remarks of insufficient funds through courier but it was misplaced in the branch and could not be traced. Since the cheque was dishonoured therefore, the complainant had not suffered any loss. There is no deficiency in service and unfair trade practice on the part of OP-bank as loss of cheque was not intentional. The complainant was having another option to receive another cheque from that person who had issued the chque. Other contentions made in the complaint have been controverted and prayer for dismissal of the complaint has been made. In evidence the OP has tendered affidavit Annexure RX and documents Annexure R1 to Annexure R6.

4.             We have heard Ld. counsel of both the parties and also perused the record placed on file. Ld. counsel for complainant argued that complainant is having saving account number with opposite party and he had deposited a cheque No.010174 for Rs.1,85,000/- drawn at ICICI, Yamuna Nagar but the above said cheque has been lost by the opposite party and complainant is entitled for the above said cheque amount of Rs.1,85,000/- along with interest besides compensation for mental agony and harassment and prayed to allow the complaint.

5.             On the other hand, Counsel for opposite party argued that the cheque in question was dishonoured and the same has been lost in the branch and it was intimated to the complainant. So there is no negligence on the part of the opposite party and prayed for dismissal of complaint.

6.             After hearing Ld. counsel of both the parties, we have gone through the record placed on file. There is no dispute that complainant has presented the cheque No.010174 for Rs.1,85,000/- drawn on ICICI Bank Yamuna Nagar. The opposite party had sent the cheque to Ambala Cantt. Branch and the same was received as dishonoured due to “insufficient balance” (Annexure R1) on 17.06.2014 through courier but it is admitted that the same was lost in the branch. It is a settled principle of law that admission is a best evidence and it need not to be proved.

7.             In view of the above version of parties, it is clear that the cheque in question has been lost in the office of opposite party but not lost in transit. When there is no dispute that cheque in question was sent by OP to their main branch at Ambala Cantt. from where the same was sent to ICICI bank for clearance and ICICI had sent back the said cheque as dishonoured to the Ambala Cantt. Branch with remarks   “Insufficient funds” and thereafter the said cheque was lost from the OP bank. As per the version of the complainant he came to know that the cheque was lost in the transit when he approached to the OP-bank in order to know the status of the cheque one week ago. It is evident from the notice Annexure C3 dated 17.01.2015 meaning thereby he was very much in the knowledge that the cheque has been lost during transit in the month of January, 2015 after a period of nine months of the issuance of the cheque by Mr.Kashyap Parveen Badiayan on 30.04.2014. In the present complaint the complainant has prayed for paying the cheque amount of Rs.1,85,000/- alongwith compensation. From the above said facts it is clear that the complainant was well aware that cheque has been lost in January 2015 and as per the law the limitation for filing of suit is three years and there was sufficient time for the complainant to approach civil court by way of suit for recovery.

                Counsel for the OP has relied upon the case law titled as State Bank of India Vs. Untha Lakshmi Kumari (2009) CPJ 198 (NC) wherein it has been held that cheque misused/encashed, not moved-Bank not liable to pay cheque amount-order of State Commission set de- Compensation for deficiency in vice on part of bank awarded. The other case titled as Canara Bank Vs. Sudhir Ahuja 1 (2007) CPJ 1 (NC) in which it was held that neither amount credited nor cheque returned-Deficiency in service proved-Bank liable to pay some amount of compensation and not entire amount of cheque-order of State Commission directing OP to pay entire cheque amount not legally sustainable-OP liable to pay Rs.5,000/- compensation.

8.                     In view of the above said discussion, it is proved that the officials of the opposite party are negligent and not performed their duty and have lost the cheque in their Bank and great deficiency in service on the part of the opposite party is proved. In view of the law discussed above (Supra), the complainant is only entitled for compensation. The complaint is partly allowed and the compensation is assessed at Rs.40,000/-. The opposite party is directed as under:-

1. To pay a sum of Rs.40,000/-(Rs. Forty thousand only) as compensation to the complainant within 45 days  after receiving the certified copy of this order failing which the amount would carry interest @ 9 % per annum till realization of the amount.

 

Copies of order be supplied to the parties under the rule. File be consigned to the record-room after due compliance.

Announced on: 16.08.2017

 

                                                                (D.N.Arora)

(Pushpender Kumar)  (Anamika Gupta       )       President,

Member              Member                 District Consumer Disputes                                                               Redressal Forum, Ambala