Haryana

Yamunanagar

CC/470/2011

Bishan Dass S/o Harnam Dass - Complainant(s)

Versus

Dena Bank - Opp.Party(s)

H.S.Sandhu

03 Aug 2016

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                               Complaint No. 470  of 2011.

                                                                                               Date of institution: 10.05.2011

                                                                                               Date of decision: 03.08.2016

 

Bishan Dass aged about 50 years son of Shri Harnam Dass, resident of House No. 24, Shivpuri B, Near Ram Krishana School, behind ITI, Yamuna Nagar.                                                                                                                                                      

                                                                                                                                             …Complainant.

                                                    Versus

1. Dena Bank, near Kamani Chowk, Yamuna Nagar, through its Branch Manager.
2. The Punjab National Bank, Bilaspur, District Yamuna Nagar through its Branch Manager.  

                                                                                                                                             …Respondents.

BEFORE:         SH. ASHOK KUMAR GARG PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. Harbhajan Singh Advocate, counsel for complainant.  

               Sh.  P.K.Kashyap, Advocate, counsel for respondent No.1

               Sh.  D.C.Singla, Advocate, counsel for respondent No.2.                  

 

ORDER

1                      Complainant has filed the present complaint under section 12 of the Consumer Protection Act. 1986 praying therein that the respondents (hereinafter referred as OPs Bank ) be directed to trace out the cheque No. 593458 for Rs. 40,000/- drawn on Punjab National Bank, Bilaspur and to make the payment of the amount of cheque to the complainant with interest and further to pay compensation as well as litigation expenses.

2.                     Brief facts of the present complaint, as alleged by the complainant, are that complainant Bishan Dass is the saving bank account holder bearing No. 110010002429 with the OP No.1 Dena Bank. Sh. H.S. Shahal son of Ram Kishan is the employee of OP No.2 had taken some money on loan basis from the complainant and in order to discharge of his existing liability towards that he had issued a cheque bearing No. 593458 for Rs. 40,000/- drawn on Punjab National Bank, Bilaspur in favour of complainant. The complainant presented the said cheque for collection to his banker i.e. OP No.1 in the last week of July 2010 which was sent for collection to the OP No.2 but not received back after collection by OpNo.1 Bank. Thereafter, the complainant made inquiries from Op No.1 Bank and a copy of forwarding letter was supplied by OP No.1 to the complainant informing that the cheque had been sent to Op No.2 on 29.07.2010 for collection. Ultimately, after repeated visits OP No.1 wrote a letter dated 01.11.2010 to OpNo.2 inquiring about the fate of cheque, however, OP No.2 sent back the letter with the endorsement that they have not received the cheque till date. In fact the said Sh. H.S. Shahal taking advantage of being employee of the Op No.2 bank has committed mischief by getting the cheque misplaced as he had no intention to make the payment of the amount of the said cheque. The complainant repeatedly visited the office of OPs but till date nothing has been revealed as to where the cheque in question. Finding no other alternative the complainant got served a legal notice dated 08.03.2011 against the Ops by registered post calling upon them to get the cheque in question traced and make the payment of the same within a period of 15 days from the receipt of legal notice, failing which complainant shall be constrained to take appropriate legal proceedings against OP No.1 & 2 but no response was received from the Ops nor they complied with the notice. Hence, this complaint.

3.                     Upon notice, OPs appeared and filed its written statement separately. OP No.1 filed its written statement by taking some preliminary objections such as complaint is not maintainable; no locus standi to file the present complaint; no cause of action against the OP No.1, there is no deficiency in service; complainant has concealed the true and material facts from this Forum and has not come to this Forum with clean hands. The true facts are that the complainant had deposited a cheque bearing No. 593458 drawn on PNB Bilaspur in his account with OP No.1. The said cheque was sent to OP No.2-Punjab National Bank Bilaspur for encashment on 29.07.2010 through Blaze Flash Couriers which had been duly received by PNB Bilaspur on 03.08.2010 which is evident from forwarding letter Annexure R-1 and copy of courier receipt Annexure R-2. But even after sufficient time, the said cheque could not be received back either after encashment or dishonour. The complainant approached to OP No.1 Bank in this regard, who had been informed accordingly and he was asked to contact to Op No.2 Bank also. The OP No.1 also wrote a letter dated 14.12.2010 to OP No.2 asking him to look into the matter and OP No.2 sent a reply through courier that they have not received the cheque. The copy of letter sent by OP No1 is Annexure R-3. Thereafter, the complainant sent a legal notice dated 08.03.2011 upon the OP No. 1 and OP No.2, but even then the Op No.2 has not taken any initiative action to trace out the said cheque. As such, there is no deficiency in service on the part of OP No.1 Bank and on merit controverted the plea taken in the complaint and reiterated the stand taken in the preliminary objection and lastly prayed for dismissal of complaint qua OP No.1.

4.                     OP No.2 filed its written statement by taking some preliminary objections such as complaint is not maintainable against the OP No.2; no locus sandi to file the present complaint; no cause of action has ever arisen between the parties as the OP No.2 has not received any cheque from OP No.1 for encashment as alleged so the question of negligence and deficiency in service on the part of Op No.2 does not arise at all. The present complaint is filed in collusion with complainant and OP No.1 just to receive the damage from the OP No.2. There is complicated question of facts and evidence, so, the jurisdiction of this Forum is barred to hear and decide the present complaint and on merit controverted the plea taken by complainant and reiterated the stand taken in the preliminary objections. Lastly, prayed for dismissal of complaint.  

5.                     In support of his case, counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents such as Photo copy of Delivery run sheet as Annexure C-1, Photo copy of letter forwarding cheque schedule as Annexure C-2, Photo copy of letter dated 14.12.2010 written to PNB by Dena Bank as Annexure C-3, Photo copy of receipt of PNB Bilaspur as Annexure C-4, Postal receipt as Annexure C-5, Photo copy of registered AD legal notice dated 08.03.2011 as Annexure C-6, Postal receipts as Annexure C-7 and C-8 and closed the evidence on behalf of complainant.

6.                     On the other hand learned counsel for the OP No.1 Bank tendered into evidence affidavit of Rishi Kant Sharma as Annexure RW/A and documents such as Photo copy of letter forwarding cheques for collection as Annexure R-1, Photo copy of delivery run sheet as Annexure R-2, Photo copy of letter dated 14.12.2010 as Annexure R-3 and closed the evidence on behalf of OP No.1 Bank.

7.                     Counsel for the OP No.2 closed the evidence on behalf of Op No.2 Bank without tendering any evidence and stated that his written statement be read as evidence on behalf of OP No.2 Bank.

8.                     We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very carefully and minutely.

9.                     It is not disputed that complainant was having a saving bank account bearing No. 110010002429 with Dena Bank i.e. OP No.1 Bank and further he had deposited a cheque bearing No. 593458 amounting to Rs. 40,000/- drawn on Punjab National Bank,Bilaspur for collection which is evident from copy of letter dated 14.12.2010 Annexure C-3. Learned counsel for the OP No.1 Bank argued that the said cheque was sent to Punjab National Bank Bilaspur for encashment on 29.07.2010 through Blaze Flash Couriers which had been duly received by PNB Bilaspur on 03.08.2010 which is evident from forwarding letter Annexure R-1 but the said cheque could not be received back either after encashment or dishonour. Learned counsel for the OP No. 1 Bank further argued that they wrote a letter dated 14.12.2010 to the OP No.2 Bank to look into the matter but they replied that they have not received the cheque whereas they had duly received the cheque through courier which is evident from delivery run sheet Annexure R-2. Even then the OP No.2 has not taken any initiate to trace out the said cheque. Learned counsel for the OP No.1 further argued that in case there is any negligence or deficiency in service then the OP No.2 is responsible for that. Whereas on the other hand, learned counsel for OP No.2 i.e. Punjab National Bank hotly argued that the respondent No.2 Bank has not received any cheque from OP No.1 Bank for encashment as alleged so the question of negligence and deficiency in service on the part of OP No.2 does not arise at all. Hence, there was no negligence on the part of Op No.2. Further, it has been argued that all the documents have been falsely prepared by the complainant and OP No.1 in collusion with other persons and has played fraud with OP No.2 Bank. Lastly prayed for dismissal of complaint against OPNo.2 Bank.

10.                   After hearing both the parties, we are of the considered view that there is a negligence and deficiency in service on the part of OPs Bank as it was the duty of the OPs Bank to take care and take up the matter internally to redress the grievances of the complainant immediately but no step has been taken by OPs. From the perusal of letter (Annexure C-3) issued by OpNo.1 i.e. Dena Bank to the OP No.2 PNB Bank, it is clearly evident that OP No.1 Bank wrote a first letter on 14.12.2010 i.e. after a period of near about 5 months to look into the matter and return the instrument whereas it was the duty of the Op No.1 Bank to look into the matter immediately. Further from the perusal of delivery run sheet dated 03.08.2010 of Blaze Flash Courier Ltd. it is duly evident that a courier bearing No. 293297250 was delivered at the PNB Bilaspur Branch. The OP No.2 i.e. PNB  Bank has not filed any cogent evidence to controvert the version of OP No.1 Bank that vide this courier No. 293297250 dated 03.08.2010 cheque in question was not delivered to OP No.2 Bank. Even the OP No.2 Bank has also not produced before this Forum or filed any copy of receipt register of dated 03.08.2010 to controvert the plea of OP No.1 Bank that courier was delivered to OP No.2 Bank. In the absence of any cogent evidence the plea of OP No.2 Bank that they never received any cheque is not tenable. Further the arguments advanced by the counsel for OP No.2 that all the documents have been prepared by the complainant and Op No.1 in collusion with other person is also not tenable as the Op No.2 Bank has not filed any cogent evidence to prove his version. Even for the sake of argument, if we presumed that there was a collusion between the complainant and official of OP No.1 Bank and other persons even then it was the duty of Op No.2 Bank to lodge the FIR and investigate the matter but Op No.2 Bank has totally failed to file any such evidence on the file that they have taken any steps or not in this regard. Further the OP No.2 Bank has also not disclosed in its written statement that what was the balance in the account of the cheque drawer i.e. Sh. H.S. Shahal was having any sufficient fund in his account at the time of presenting the cheque in question or not. 

11.                   From the above noted circumstances, it is clearly evident that both the Banks were not vigilant in respect of the valuable documents of the customers and performed their duties in negligent and careless manner which constitute deficiency in service on the part of both the Banks.  

Now next question is that whether the complainant is entitled to get the cheque amount of Rs. 40,000/- alongwith compensation or not?

12.                   To decide this question we have carefully and minutely gone through the contents of the complaint as well as replies filed by OP Bank and documents placed on file by the complainant, we are of the considered view that the complainant is not entitled to get the cheque amount of Rs. 40,000/- from the OPs Bank as the complainant has miserably failed to file any cogent evidence that the cheque issuing person i.e. Sh. H.S. Shahal has not made the payment of Rs. 40,000/- to him despite the effective steps taken by him i.e. whether any recovery suit or legal notice was sent to that person or not. Even the complainant did not bother to file the account statements of his account as well as the account statement of that cheque issuing person to prove that he has not received the payment of cheque amount through any mode. So, we are unable to hold that complainant has suffered financial loss on account of loss of that cheque. However, complainant might have suffered some mental agony and harassment which  forced to him to file the present complaint, hence, he is entitled to get some relief. 

13.                   In the circumstances noted above, we are of the considered view that there is a deficiency in service on the part of both the OPs Bank.

14.                   Resultantly, we partly allow the complaint of complainant and direct the OPs Bank to pay a sum of Rs. 5000/- each as compensation for mental agony, harassment as well as Rs. 2000/- as litigation expenses to the complainant. Order be complied within a period of 30 days after preparation of copy of this order, failing which, complainant shall be entitled to invoke the jurisdiction of this Forum as per law. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in the open court:03.08.2016.

                                                                                               ( ASHOK KUMAR GARG)

                                                                                                PRESIDENT

 

                                                                                                (  S.C. SHARMA)

                                                                                                 MEMBER