PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
That the Complainant is having Current Account/O.D. Account with the Opposite Party No.1 bank. The Complainant is a Proprietor of M/s. Astoun Brothers, having address at Kalbadevi Road, Mumbai-2. Opposite Party No.1 is the Manager of Central Bank of India, at Shamaldas Gandhi Marg, Kalbadevi Road, Mumbai-2. Opposite Party No.2 - M/s. Kiran Collection who deals in the textile goods and having their address at Nagpur.
2) It is the case of the Complainant that during the course of one transaction, Opposite Party No.2 had issued cheque dtd.05/09/06 to the Complainant for an amount of Rs.40,000/- bearing No.774568, drawn on Nagpur Nagrik Sahakari Bank Ltd. On 04/09/06 the Complainant deposited aforesaid cheque with Opposite Party No.1. Alongwith complaint, the Complainant has produced photo copy of counter foil of the deposit slip issued by Opposite Party No.1 for the said cheque. It is submitted that after few days the Complainant made inquiry about the clearance of the said cheque with Opposite Party No.1 and that time it was informed to the Complainant by Opposite Party No.1 that the said cheque is not credited in the Complainant’s account. Thereafter, immediately Complainant made complaint to the Branch Manager of Opposite Party No.1. Branch Manager assured the Complainant that within 10-15 days period he will personally look into the matter and he will make necessary inquiry. However, there was no response from the Branch Manager of Opposite Party No.1. So Complainant again personally visited the bank and asked about the progress of his matter. Then Opposite Party No.1 told the Complainant that said cheque has been misplaced/lost in their another branch (lost in transit). On hearing the same the Complainant shocked and immediately requested Opposite Party No.1 to give all this in writing but it was not immediately responded by Opposite Party No.1. On 14/10/06 Opposite Party No.1 has forwarded a letter to the Complainant and also addressed one letter dtd.18/10/06 to the CMS-Mumbai, QCC Department, Mumbai and further asked the Complainant to ask for fresh cheque from Opposite Party No.2 and thereby instructed to stop payment of the lost cheque, as such, Opposite Party No.1 shirk their liability. The Complainant has produced OC of the letter dtd.14/10/06 of Opposite Party No.1 alongwith complaint at Exh.‘C2’.
3) The Complainant was not satisfied with the advise given by Opposite Party No.1 as it was not possible for the Complainant to approach Opposite Party No.2 ask for fresh cheque. The Complainant by his letter dtd.19/10/06, 09/04/07 and 24/05/07 had requested Opposite Party No.1 bank to give in writing about the lost of cheque and requested to compensate him, but after lot of persuasions it was not materialized.
4) It is submitted by the Complainant that as per instructions of Opposite Party No.1 he orally contacted Opposite Party No.2 on various occasions and asked for fresh cheque as earlier cheque was lost by Opposite Party No.1. But Opposite Party No.2 simply refused to issue second cheque for the same transaction saying that once he has done his job & now he should not be blamed as it is problem between the Complainant and the Central Bank of India. Lastly the Complainant issued legal notice dtd.30/08/07 to the Opposite Party No.1 and thereby asked Rs.40,000/- towards the lost cheque and Rs.1 Lac as compensation for deficiency in service on the part of Opposite Party No.1. After 5 months i.e. on 23/02/08 the bank has given a letter and also issued a Certificate to the Complainant about lost of cheque and thereby intimated that the Complainant should approach again to Opposite Party No.2 to ask for another fresh cheque.
5) According to the Complainant there is total failure of service and negligence and deficiency in service rendered by the Opposite Party No.1 and thereby the Complainant has suffered a loss. Hence, the Complainant has filed this complaint. It is contended that the Complainant has filed this complaint within the limitation period prescribed under Sec.24(A) of the Consumer Protection Act, 1986, if there is any delay in filing the complaint then that may be condoned in the interest of justice.
6) The Complainant prayed to direct Opposite Parties to pay Rs.40,000/- to the Complainant towards lost of cheque. The Complainant has prayed for compensation for Rs.1 Lac for mental & physical agony from the Opposite Party No.1. The Complainant has prayed for interest @ 18 % p.a. on aforesaid amount and Rs.10,000/- towards cost of this proceeding.
7) Alongwith complaint, the Complainant has filed his affidavit and produced document at Exh.‘C1 to C4’.
8) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending that complaint is false and frivolous and it is barred by law of limitation. Therefore, complaint deserves to be dismissed. It is contended that the Complainant is not a consumer and therefore, it is not a consumer dispute.
9) According to the Opposite Party No.1, there is no deficiency in service as alleged by the Complainant. Still, Complainant is having his account with Opposite Party. By letter dtd.05/10/06, Nagpur Branch of Opposite Party No.1 informed Opposite Party No.1 that cheque dtd.05/09/06 was not credited in their branch. Nagpur Branch also issued Certificate dtd.13/10/06 as to FSCM being lost in transit. Opposite Party No.1 immediately informed the matters to the Complainant vide their letter dtd.14/10/06 and called upon the Complainant to give stop payment instructions of the said cheque and to obtain new cheque in lieu of it. It is contention of the Opposite Party No.1, due to vast banking network such situations of cheque not being credited do occur and in such circumstances the letter to effect is given for enabling the party to obtain new cheque. In this matter, Opposite Party No.1 had given letter dtd.14/10/06 to enable the Complainant to obtain new cheque in lieu of earlier cheque which was lost in transit.
10) It is contended that inspite of letter dtd.14/10/06 the Complainant failed to take steps in that direction and continued to demand the cheque amount from Opposite Party No.1. It is say of the Opposite Party No.1 that they have acted as per the guidelines of Bank and RBI and has immediately issued certificate to that effect for enabling the Complainant to obtain fresh cheque form the party. As such, it cannot be said that there is deficiency in service of Opposite Party No.1. It is alleged that the Complainant has not deliberately taken steps for obtaining fresh cheque from Opposite Party No.2 and for harassing the Opposite Party No.1 he has filed this complaint.
11) Opposite Party No.1 denied allegations made in the complaint submitting that the Complainant cannot take advantage of his own wrong. According to the Opposite Party No.1, complaint deserves to be dismissed with compensatory cost.
12) Opposite Party No.2 was duly served with the notice of this complaint, but he has not appeared before this Forum, so ex-parte order was passed against Opposite Party No.2 on 07/09/2010.
13) The Complainant has filed written argument. Opposite Party No.1 has also filed written argument. Opposite Party No.1 has not appeared before this Forum from 07/09/2010. As Opposite Party No.1 has filed written argument, we heard Ld.Advocate Mr. Kiran Patil for the Complainant and complaint was closed for order.
14) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether complaint is barred by limitation ?
Findings : Yes.
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Parties ?
Findings : Does not survive.
Point No.3 : Whether the Complainant is entitle to recover Rs.40,000/- as compensation and cost of proceeding as prayed
from the Opposite Parties ?
Findings : As per final order.
Reasons :-
Point Nos.1 :- Opposite Party No.1 in their written statement as well as in the written argument has raised contention that complaint is barred by limitation. Therefore, complaint deserves to be dismissed with cost. In the complaint para no.14 the Complainant has averred that complaint is filed within the period of limitation which is prescribed under Sec.24(A) of the Consumer Protection Act, 1986. As per provisions of Sec.24(A) of the Consumer Protection Act, 1986, complaint is required to be filed within period of 2 years from the date on which cause has arisen. In this case, according to the Complainant, on 04/09/06 he had deposited cheque of Rs.40,000/- with the Opposite Party No.1 Bank for realization which was given to him by Opposite Party No.2. Said cheque was drawn on Nagpur Nagrik Sahakari Bank Ltd. The Complainant has produced photo copy of counter foil of the deposit slip of the said cheque issued by Opposite Party No.1 alongwith complaint at Exh. ‘C1’. It is averred in the complaint that after few days he went to the Branch of the Opposite Party No.1 and made inquiry regarding the said cheque and till that time cheque amount was not credited in his account. Thereafter, Complainant immediately approached the Branch Manager of Opposite Party No.1 and pointed out the situation to him. The said Branch Manager assured the Complainant that within 10-15 days period he will personally look into the matter and he will make necessary inquiry. As there was no response from the Branch Manager, Complainant again personally visited Opposite Party No.1 bank and made inquiry. That time it was told to the Complainant by the staff of the Opposite Party No.1 that said cheque has been misplaced/lost in their another branch (lost in transit). On hearing the same the Complainant shocked and asked Opposite Party No.1 to give all this in writing but it was not immediately responded from Opposite Party No.1. On 14/10/06 Opposite Party No.1 has forwarded a letter to the Complainant and also addressed one letter dtd.18/10/06 to the CMS-Mumbai, QCC Department, Mumbai and advised the Complainant to ask the fresh cheque from Opposite Party No.2 and thereby instructed to stop payment of the lost cheque. According to the Complainant, it was not possible for him to approach Opposite Party No.2 again who is at Nagpur and he repeatedly requested Opposite Party No.1 to compensate him. There was no response from Opposite Party No.1, so lastly he issued legal notice on 30/08/08 and demanded Rs.40,000/- from Opposite Party No.1 towards the lost cheque and Rs.1 Lac as compensation for negligence and deficiency in service on the part of Opposite Party No.1. About 5 months after i.e. on 23/02/08 Opposite Party No.1 bank gave him letter and issued a Certificate about lost of cheque and advised the Complainant to approach again Opposite Party No.2 for another fresh cheque.
It is the contention of the Opposite Party that cause of action to this complaint took place when Complainant came to know about the lost of cheque in transit. In the normal course of business amount of said cheque ought to have credited in Complainant’s account within 10-14 days after depositing cheque for collection. It is the case of Complainant that few days after depositing of said cheque when he made inquiry with Opposite Party No.1 it was told that amount of said cheque was not credited in his account. Then he immediately made complaint to the Branch Manager of Opposite Party No.1 who assured to make inquiry within 10-15 days. But there was no response. Therefore, again Complainant visited Opposite Party No.1 Bank and that time it was told to the Complainant that his said cheque was lost in transit. Therefore, according to the Opposite Party No.1, Complainant ought to have filed complaint before this Forum on or before 11/09/08. By letter dtd.14/10/06 Opposite Party No.1 informed the Complainant that cheque was lost in transit and advised him to arrange to stop payment of the said cheque. Therefore, lastly cause of action for this complaint took place on 14/10/06. Present complaint is filed on 15/06/09 which is beyond period of 2 years from the cause of action. As complaint is barred by law of limitation it deserves to be dismissed. Issuance of certificate dtd.23/02/08 regarding lost of cheque by Opposite Party No.1 cannot be treated as cause of action as already Opposite Party No.1 had informed the Complainant by letter dtd.14/10/06 regarding lost of cheque. Inspite of receipt of letter dtd.14/10/06 the Complainant has not taken any steps for filing of complaint within stipulated period of 2 years. Alongwith complaint, the Complainant has not filed application for condonation of delay, hence, complaint is liable to be dismissed.
It is undisputed fact that on 04/09/06 the Complainant had deposited Cheque No.774568 of Rs.40,000/- drawn on Nagpur Nagrik Sahakari Bank Ltd. with Opposite Party No.1 and on that day Opposite Party No.1 issued counter foil of that receipt. In the normal course of banking transaction, bank is required to give credit of cheque within 10-15 days from the date of presentation of cheque for collection. In this case according to the Complainant, after few days of deposit of said cheque the Complainant went to Opposite Party No.1 bank for making inquiry about the clearance of the said cheque and till that time said cheque was not credited in his account. When he approached Branch Manager of the Opposite Party No.1 bank, the Branch Manager of the Opposite Party No.1 assured the Complainant that he will personally look into the matter. According to the Complainant as there was no response from the Opposite Party No.1, within 10-15 days he again visited Branch Manager of Opposite Party No.1 bank and made inquiry. That time Opposite Party No.1 told him that said cheque has been misplaced/lost in their another branch (lost in transit). It is say of the Complainant that he asked Opposite Party No.1 to give all this in writing but there was no response from Opposite Party No.1. Subsequently, on 14/10/06 Opposite Party No.1 sent a letter and advised him to ask fresh cheque from Opposite Party No.2 and further instructed to stop payment of the lost cheque. The Complainant had produced xerox copy of the aforesaid letter alongwith complaint. Opposite Party has also produced xerox copy of aforesaid letter alongwith copy of letter received from their QCC Department, Mumbai. Copy of the letter addressed to Opposite Party No.1 by QCC Department is dtd.13/10/06 by which it was informed the Opposite Party No.1 that cheque no.774568 for Rs.40,000/- drawn on Nagpur Nagrik Sahakari Bank Ltd. was lost in transit alongwith two other cheques. The Complainant had not produced copy of QCC Department mentioned in the letter dtd.14/10/06 received by him. However, in the letter dtd.14/10/06 Opposite Party No.1 has clearly mentioned that copy of letter was sent to the Complainant and Complainant was advised to stop the payment of above cheque and get the new cheque in lieu of it. In the complaint, the Complainant has averred that it was not possible for him to obtain fresh cheque from Opposite Party No.2. There is not documentary evidence on record to show that at any time the Complainant had sent letter to Opposite Party No.2 for issuance of fresh cheque. From the facts on record, it is clear that cause of action to this complaint took place on 14/10/06. It appears that on 23/02/08 Opposite Party No.1 issued Certificate about lost of cheque to the Complainant. However, before receipt of aforesaid certificate Opposite Party No.1 by letter dtd.14/10/06 had informed the Complainant about the loss of cheque and advised to get new cheque in lieu of it. Therefore, it was necessary for the Complainant to file complaint within 2 years from 14/10/06 as required under Sec.24(A) of the Consumer Protection Act, 1986. The Complainant has filed this complaint on 15/06/09. This complaint is filed 2 years and 8 months from the date of cause of action i.e. from 14/10/06. About 8 months delay is caused in filing of this complaint. Alongwith complaint the Complainant has not filed application for condonation of delay. In the complaint para 14, the Complainant has averred that complaint is filed within limitation of period prescribed under Sec.24(A) of the Consumer Protection Act, 1986 and further added that if there will be any delay in filing of this, that may be condone in the interest of justice. The Complainant has not assigned any reason to explain the delay caused. Absolutely Complainant has not assigned any sufficient cause for condonation of delay. Therefore, we hold that complaint is barred by law of limitation. Hence, we answer point no.1 in the negative.
Point Nos. 2 & 3 : As the complaint is barred by law of limitation, it is liable to be dismissed. Therefore, point no.2 & 3 does not survive for consideration. Hence, we answer point no.2 & 3 accordingly.
For the reasons discussed above, the complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.189/2009 is hereby dismissed
ii.No order as to costs.
iii.Certified copies of this order be furnished to the parties.
