Tamil Nadu

South Chennai

CC/138/2006

Shrachi Securities Ltd - Complainant(s)

Versus

Centurion Bank Ltd - Opp.Party(s)

M.Deivanandam

19 Jan 2017

ORDER

                                                                        Date of Filing :   16.11.2005

                                                                        Date of Order :   19.01.2017

DISTRICT CONSUMER DISPUTE REDRESSAL FORUM, CHENNAI (SOUTH)

     2^nd Floor, Frazer Bridge Road, V.O.C. Nagar, Park Town, Chennai-3

 

PRESENT: THIRU. S. PANDIAN, B.Sc., L.L.M.                       : PRESIDENT 

                 TMT. K.AMALA, M.A. L.L.B.,                                  : MEMBER I          

                DR. T.PAUL RAJASEKARAN, M.A ,D.Min.PGDHRDI, AIII,BCS : MEMBER II

 

C.C.NO.138/2006

THURSDAY THIS  19^TH  DAY OF       JANUARY 2017

 

M/s. Shrachi Securities Ltd.,

Rep. by its Power of attorney,

P. Srinivasan, Assistant Manager

Luz Church Road, (Oliver Road),

Mylapore, Chennai 600 004.                                   ..Complainant

             

                                        ..Vs..

 

1. The Manager,

M/s. Centurion Bank Ltd.,

Padma Complex, 320, Anna Salai,

Nandanam, Chennai 600 035.

 

 

2. The Manager,

State Bank Of Mysore,

Srinivasapur 4091,

Kolar Distrit 563 135.                                              ..Opposite parties

 

 

Counsel for the Complainant        :  M/s. M. Deivanandam & others  

Counsel for the 1^st opposite party :  Exparte. 

Counsel for the 2^nd opposite party :  M/s. R.Ravichandran

ORDER

THIRU.   T.PAUL RAJASEKARAN ::    MEMBER-II      

        This complaint is filed by the complainant against the opposite parties  to seek direction to pay a sum of Rs.1,10,000/- with interest and also to pay a sum of Rs.10,000/- towards compensation for mental agony and to pay cost of the complaint.

1.  The averment of the complaint is brief as follows:

     The complainant submit that the complainant company had deposited a cheque bearing No.191977 for a sum of Rs.1,10,000/- dated 17.11.2004 drawn at Kolar Gramin Bank in his current account with Centurian Bank on 1.12.2004.  The said cheque was issued by one of its customer favouring the complainant company towards the payment of the outstanding amount of the customer in the course of its business.    The complainant also submit that though the cheque was deposited on 1.12.2004 the status of the cheque was not informed to the complainant company within the usual time.   Accordingly the first opposite party also informed that the aforesaid cheque was dishonoured for funds insufficient on 5.12.2004 and the return memo issued by the 2^nd opposite party was handed over to the complainant unaccompanied dishonoured cheque above after an inordinate delay.    

2.     The letter issued by the 2^nd opposite party on 2.7.2005 informing the complainant about the erroneous dispatch of the cheque referred above to the Corporation Bank instead of Centurion bank and requested the complainant to advice Centurion bank not to insist for the physical return of the cheque referred above as the same was lost and drawer of the cheque ie.. the customer of the complainant had already settled the issue with the complainant and hence to advice the 1^st opposite party not to insist for the cheque and close the issue.   

3.     Accordingly the complainant had issued a legal notice dated 16.8.2005 to the 1^st and 2^nd opposite parties and the same was received by both the opposite parties.   But  the 1^st opposite party failed to respond to the grievance of the complainant.     Hence the act of the opposite parties amounts to negligence and deficiency in service which caused mental agony and hardship to the complainant.   Hence the complaint is filed.  

4.     Inspite of service of notice the opposite party-1 is called absent  and set exparte.

5. Written Version of  2^nd opposite party is in brief as follows:

   The opposite party does not admit the several allegations made by the complainant against the opposite party in their complaint except those that are specifically admitted herein.   It is true that the subject cheque issued on Kolar Gramina Bank Srinivasapura Branch was sent by the 1st opposite party for collection through the opposite party bank branch at Sirinivasapura.  As soon as the said chque was received by the opposite party they presented it for payment on 4.12.2004 to the Kolar Gramins Bank, Srinivasapura Branch.   The said bank returned the cheque for want of sufficient fund in the drawer’s account vide with return memo dated 5.12.2004.  

6.     Unfortunately the opposite party dispatched the cheque wrongly to Corporation Bank, Caps Branch, Whites Road, Chennai instead of to Centurion Bank, Anna Salai, Chennai, When this mistake was brought to the notice of the opposite party the opposite party made efforts to retrieve the subject cheque by contacting the Corporation Bank, When such efforts did not succeed the opposite party secured a certificate / confirmation letter dt. 27.9.2005 for Kolar Gramina Bank to the effect that the subject cheque was presented to them for collection on 4.12.2004 and that the same was returned unpaid on 5.12.2004 due to insufficient funds in the drawer’s account.    The opposite party also learnt that the drawer of the cheque had already settled the matter with the complainant.   Therefore requested the complainant to close the issue.    The opposite party submit that the above claim of the complainant is unsustainable either in law or on facts.   

7.     The opposite party also submits that the mistake committed by them in sending the subject cheque to Corporation Bank was due to inadvertence. When the said mistake was brought to their notice the opposite party made every attempt to retrieve the subject cheque.  When their efforts failed they obtained a certificate from the drawer’s bank and forwarded it to the complainant within time.  In such circumstances it is humbly submitted that the opposite party cannot be accused of any deficiency in service.    The opposite party as mentioned supra reliably understands that the drawer of the cheque  had already settled the issue with the complainant.    The complainant is hereby called upon to state the correct position in this regard.   Hence this complaint is liable to be dismissed.

8.     In order to prove the averments of the complaint, the complainant has filed proof affidavit as his evidence and documents Ex.A1 to Ex.A17 marked.  Proof affidavit of 2^nd  opposite party  filed and no document  was marked on the side of the 2^nd opposite party.   

9.      At this juncture the point for consideration before this Forum is:

1.   Whether there is any deficiency of service on the part of the opposite     parties as alleged in the complaint?.

 

2. To what other reliefs, the complainant is entitled for?

10.    POINTS .1 & 2 :-

           The complainant was holding the current account with opposite party-1 and he had deposited a cheque for Rs.1,10,000/- drawn on Kolar Gramin  Bank which was issued by one of his customer Ex.A3, the complainant himself drawn para-4 of the compliant that it is a public limited company registered under the company act engaged in business of vehicle financing.   The said cheque was issued in favouring the complainant company towards the outstanding amount of the customer in the course of its business.    The said cheque was returned with a note of an insufficient from Kolar Gramin  Bank under Ex.A4. 

11.    The opposite party-2 had informed the complainant unfortunately at the time of return dispatch it was posted to corporation bank erroneously instead of opposite party-1 till date the said instrument was not returned to opposite party-1 and it was not unable to trace to hand over the same to the complainant (Ex.A5).   The opposite party-1 had sent a letter Ex.A6 to the opposite party-2 bank insisting for the return of dishonored instrument.   In mean time the complainant wrote a letter to opposite party-1 higher ups (Ex.A7) and opposite party-2 (Ex.A8)  but there is no response from opposite party-2.    When complainant had issued a legal notice Ex.A9, Ex.A10, Ex.A11 which was acknowledged by opposite parties 1 & 2, the opposite party-2 had informed the complainant on 17.1.2005 which was received by the complainant on 20.7.2005 not to insist on original instrument which was issued in favour of the complainant which was found to be lost.   Without original instrument the complainant cannot preceed criminal proceedings on the drawer u/s 138 of Negotiable Instrument Act.   The complainant also stressed u/s 77 of Negotiable Instrument Act it is the duty of the banker to duly present the cheque deposited for realization and not returning the same to the depositor / complainant which is dereliction of the duty of the banker.   

11.    The complainant in spite of several reminders they are not given an opportunity for the complainant to have a legal proceedings to have drawer of the cheque and the complaint could not recoup the outstanding dues from his customer which led the complainant to have mental agony and loss of money hence he sought a legal remedy from this forum by claiming Rs,1,10,000/- for non realization of the cheque deposited by the complainant with the  opposite parties and claiming compensation of Rs.10,000/- for mental agony with cost.
12.    The opposite party-1 had become exparte and the opposite party-2 had not disputed a submission for a cheque which was transmitted to Kolar Gramin  Bank Srinivasapura Branch for collection on 4.12.2004 and which was returned unpaid on 5.12.2004  due to insufficient fund in the drawers account.   Since the opposite parties have forwarded the certificate confirming about the insufficient funds from the drawers account issued by Kolar Gramin  Bank though the original  cheque has been lost and requested the complainant nor to persist seeking full value of the cheque and for compensation of mental agony which was unsustainable either in law or on facts.    Opposite party-2 stated there is no privity of contract between them and the complainant and it could not be legally sustainable.    Further it was stated by opposite party-2 counsel that the issue was already settled with the complainant and the had paid the money by their customer. 

13.    In this connection the opposite party had referred two judgments of NCDRC 1) R.P. 2808 of 2004 Corporation Bank ..Vs.. NCS films decided on 17.7.2006 and R.P. No.2510/2002 State Bank of Patiala  ..Vs.. Rajendar decided on 13.5.2003 both cases are similar to that of this complaint.    The opposite party had confirmed under para-9 of the proof affidavit the mistake committed by them in sending the subject cheque to the Corporation bank was due to inadvertence.   Though the said mistake was admitted by the opposite party they made every effort to  retrieve the subject cheque but in vain.   Hence the 2^nd opposite party pleaded not to be accused of any deficiency and pray for dismissal of the case.

14.    Pursuant on the complaint, documents, and proof affidavit filed by the complainant, opposite party-1 was set exparte and opposite party-2 had submitted their written version, proof affidavit and thereby ventilating the misplacement of cheque and submission of certificate from the collection bank as an evidence in proving the in sufficient funds of the drawers account.  

15.    The opposite party-2 had agreed in their written version and proof affidavit that they have lost the original instrument of cheque issued by the drawer making the complainant in order to proceed u/s 138 of the Negotiable Instrument act for not keeping sufficient funds in their account.   But it is stated that they have taken their utmost effect to trance out the lost instrument but in vain.   This proves the deficiency of opposite parties 1, 2 is not hourning the Sec.77 the Negotiable Instrument ac in excising the collection of the cheque submitted by the complainant in time.  

16.    It is observed that the opposite party had informed the complainant about the insufficiency of fund but it is not fair on the part of the complainant to seek the recovery of Rs.1,10,000 which was drawn on the drawers bank when there is no funds.   It is found there was a disbursed and mental agony to the complainant to collect the outstanding dues from the customers because of the non availability of the original instrument issued by the drawer to the drawing we are not inclined to direct the opposite parties to pay Rs.1,10,000/- which was furnished in the instrument and therefore considering the facts and circumstances of the case this forum is of the view the opposite parties 1 & 2 joint and severally directed to pay compensation of Rs.20,000/- (Rs.10,000/- each of the opposite parties 1 & 2) to the complainant for causing mental agony and to pay cost of Rs.5,000/- to be paid by both the opposite parties jointly and severally.     Thus the point No.1 & 2 is answered accordingly.

In the result, the complaint is allowed in part.   Accordingly the opposite parties  1 and 2 are directed to pay a sum of Rs.20,000/- (Rs.10000/- each of opposite parties 1 & 2) towards compensation for causing mental agony and hardship due to deficiency of service on the part of them  and the opposite parties 1 & 2 are also jointly and severally   to pay a sum of Rs.5000/- (Rupees Five Thousand only) towards cost to the complainant. 

The above amounts shall be payable within six weeks from the date of receipt of the copy of the order, failing which, the said amounts shall carry interest at the rate of 9% p.a till the date of payment.        

        Dictated by the Member-2 to the Assistant, taken down, transcribed and computerized by her, corrected by the Member-2 and pronounced by us in the open Forum on this the  19^th day  of  January   2017.

 

MEMBER-I                        MEMBER-II                             PRESIDENT.

Complainant’s side documents:

Ex.A1- 4.9.2002    - Copy of Board resolution.

Ex.A2- 21.10.2002         - Copy of Power of attorney.

Ex.A3- 1.12.2004  - Copy of counterfoil of the cheque.

Ex.A4- 5.12.2004  - Copy of Return Memo.

Ex.A5- 17.1.2005   - Copy of letter by the 2^nd opposite party to the complainant

Ex.A6- 22.4.2005  - Copy of letter by the 1^st opposite party to the complainant.

Ex.A7- 15.7.2005  - Copy of complainant’s letter to the 2^nd opposite party.

Ex.A8- 5.8.2005    - Copy of complainant’s letter to the 1^st opposite party.

Ex.A9- 16.8.2005  - Copy of legal notice.

Ex.A10- 16.8.2005 – Copy of postal receipt.

Ex.A11- 17.8.2005         - Copy of Ack. card.

Ex.A12- 16.8.2005         - Copy of legal notice.

Ex.A13- 16.8.2005         - Copy of postal receipt.

Ex.A14- 19.8.2005         - Copy of Ack. Card.

Ex.A15- 15.9.2005         - Copy of letter by the 1^st opposite party to the complainant.

Ex.A16- 28.9.2005         - Copy of letter by State Bank of Mysore.

Ex.A17- 27.9.2005         - Copy of confirmation of return of Cheque.

 

 

Opposite parties’ side documents:    .. Nill..

 

MEMBER-I                        MEMBER-II                             PRESIDENT.