Haryana

Ambala

CC/215/2018

Harpal - Complainant(s)

Versus

HDFC Bank - Opp.Party(s)

31 Oct 2019

ORDER

 BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, AMBALA.

 

                                                          Complaint Case No.:  215 of 2018.

                                                          Date of Institution           :   11.07.2018.

                                                          Date of decision    :   31.10.2019.

 

Harpal son of Shri Kartar Singh, Prop./Partner M/S Shree Ram Trading Company New Anaj Mandi, Naraingarh, District Ambala.

                                                                              …. Complainant.

                                                             Versus

 

1. H.D.F.C Bank, Naraingarh, Near Milk Plant, Ward No.1, Chandigarh Chowk, Naraingarh, District Ambala through its Branch Manager.
2. The Manager Operations HDFC Bank, Ltd. Plot No.18, Phase-I, Industrial Area, Chandigarh.
3. Ashok Dhiman Ex. Branch Manager, HDFC Bank, Naraingarh, District Ambala with new correct address as Branch Manager, HDFC Bank, Main Branch, Near Jagadhri Bus Stand, Jagadhri, Ambala-Jagadhri Road, Jagadhri, Distt. Yamuna Nagar and with permanent address Ashok Dhiman son of Shri Om Parkash near Radha Swami Satsang Bhawan, Panjlasa Road, Naraingarh, Distt. Ambala.

                                                              ….Opposite Parties        

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

 

Present:       Shri Mohender Singh, Advocate, counsel for complainant.

Shri Anil Kumar Kaushik, Advocate, counsel for the OPs.

         

Order:        Smt. Neena Sandhu, President.

Complainant has filed this complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter referred to as ‘the Act’) against the Opposite Parties (hereinafter referred to as ‘OPs’), praying for issuance of following direction to them:

To pay Rs.80,000/- alongwith interest 9% per annum from 08.03.2018 till its realisation alongwith compensation for harassment and costs of litigation to the complainant.                                                                         

                                      OR

Any other relief which this Hon’ble Forum may deem fit.                                                                                                                                                   Brief facts of the case are that on 08.03.2018, the complainant deposited a cheque bearing No.632805 of Rs.80,000/-, drawn on Punjab National Bank with the OP No.1. The said cheque was issued in favour of the complainant by Dharam Pal son of Shri Sawan Ram of village Khanpur Lobana, Tehsil Naraingarh, District Ambala, in discharge of his liability. The entry of the said cheque was made by the OPs on 08.03.2018, but as per the entry dated 09.03.2018, the amount of Rs.80,000/- was debited from his account due to dishonour of the said cheque for the reason “Insufficient Funds”. Since the cheque in question was dishonoured due to “Insufficient Funds” therefore the OP No.1 was duty bound to hand-over the dishonoured cheque alongwith bank memo to him as early as possible, but till 11.04.2018, when he had not received the dishonoured cheque and bank memo, then he served a legal notice dated 11.04.2018, upon the OP No.1. Thereafter, he received a letter dated 13.04.2018, alongwith duplicate bank memo dated 13.04.2018 from it, but the original cheque was not delivered to him and as such complainant was helpless to take any legal action against the person, who issued the cheque in favour of the complainant. In the letter dated 13.04.2018, the OP No.1 has falsely stated that it had returned the dishonoured cheque to the complainant, but actually he has not received the said cheque till yet. Even the OP No.1, has not disclosed vide which agency and on which date it had returned the dishonoured cheque to the complainant. The OP No.3, who at that relevant time was the Branch Manager of the OP No.1, had cheated him and misappropriated the cheque. After dishonour of the cheque the OPs were under legal and official obligation to hand-over the same alongwith bank memo to him. By not doing so the OPs have committed deficiency in service. Hence, the present complaint.

2.                Upon notice, the OPs appeared through counsel and filed written version on behalf of OP No.3. On 29.05.2019, he suffered a statement that written version filed by OP No.3 be also read as written version of OPs No.1 and 2. In the written version preliminary objections regarding maintainability, locus standi, estoppel, cause of action, non-joinder & mis-joinder of necessary parties and not coming to this Forum with clean hands have been raised. On merits, it is stated that complainant is having account with OP No.1. He presented the cheque and same was dishonoured on 09.03.2018, for want of “insufficient funds”. After that the cheque alongwith memo dated 09.03.2018, was sent back to the complainant through Dolphin Courier Service having POD No.C/N/No.36839. However, the courier agency by mistake handed over the envelop to Shri Raj Kumar, partner of Shree Ram Traders, near Balmiki Mandir, Nahan Road, Naraingarh District Ambala, instead of delivering the same to the firm of the complainant i.e. Shri Ram Trading Company. As such there is no negligence on the part of the OPs and the negligence was that of the courier agency. Thereafter, the complainant requested the OP/Bank to give the reason of dishonour of the cheque. The OP No.1 wrote a letter dated 09.04.2018, to Punjab National Bank, Naraingarh. Vide letter dated 13.04.2018, the said bank replied that cheque was dishonoured because of “Insufficient Funds” and same was handed over to the complainant. There is no deficiency in service on the part of the OPs, thus the present complaint may kindly be dismissed with costs.

3.                The learned counsel for the complainant tendered affidavit of complainant as Annexure CA alongwith documents as Annexure C-1 to C-9 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs tendered affidavits of Shri Dalip Sharma, Prop. Dolphin Courier Service, PNB Street, Naraingarh, District Ambala as Annexure OPA and Shri Jasmit Singh, Asst. Manager, HDFC Bank, Naraingarh as Annexure OPB alongwith document Annexure OP1 to OP3 and closed the evidence on behalf of OPs.

4.                We have heard the learned counsel of the parties and carefully gone through the case file.

5.                At the outset, the Ld. counsel for the OPs raised the objection that the present complaint is not maintainable on the ground of non joinder and mis joinder of necessary parties because the courier agency which has committed deficiency in service by not delivering the documents to the complainant has not been impleaded as party in the array of opposite parties by the complainant. To this effect, the Ld. counsel for the complainant argued that the OPs were under obligation to return the dishonoured cheque along with the return memo to the complainant. The OPs are solely responsible for any mistake committed by the courier service to whom they have engaged to deliver the aforesaid documents. The complainant has no privity of the contract with the courier agency and as such he has not impleaded the courier agency in array of opposite parties, being not a necessary party. It may be stated here that it is the OPs who hired the services of courier agency to deliver the aforesaid documents to the complainant and he has no privity of contract with the courier agency. Thus, we do not find any force in this contention, hence rejected. 

6.                On merits, the learned counsel for the complainant argued that the aforesaid cheque presented by the complainant with the OP No.1 was dishonoured due to “insufficient funds”. But the OPs did not deliver the said dishonoured cheque alongwith the return memo to him, as a result whereof, he was deprived of his legal right to file a case under Section 138 of Negotiable Instrument Act, 1881 against the person who issued the cheque. Thus, the OPs are liable to compensate the complainant for the loss suffered by him.

                   On the contrary, the Ld. counsel for the OPs argued that the dishonoured cheque along with return memo have duly been sent to the complainant through courier, therefore they cannot be said to be deficient in providing the services.

7.                It is an admitted fact that the complainant presented a cheque for clearance with the OP No.1, but it was dishonoured due to “insufficient funds” and same was not delivered to the complainant. Due to non receipt of the dishonoured cheque, the complainant was deprived of his legal right to file a case under Section 138 of Negotiable Instrument Act, 1881 against the account holder. In the case of Bank of Baroda & others Versus Chitrodiya Babuji Divanji, Vol. IV (2019) CPJ 2 (NC), the Hon’ble National Commission has held that respondent did not receive the bounced cheque nor he get the cheque amount of Rs.3,60,000/-. The petitioner failed to return the cheque to the respondent and respondent was deprived of his legal right to file a case under Section 138 of N.I. Act against account holder. Thus, the respondent had to suffer a loss of Rs.3,60,000/-. When the cheque in question had been lost by the petitioner Bank, it is the responsibility of the Bank to compensate the loss. In view of the law laid down in the case of Bank of Baroda & others (supra), we hereby allow the present complaint and direct the OPs to pay the cheque amount of Rs.80,000/-, jointly and severally to the complainant within a period of 30 days from the date of receipt of certified copy of this order, failing which they shall pay interest @ 9% per annum on the awarded amount from the date of filing of the present complaint i.e. 11.07.2018 till its realization. Certified copy of this order be supplied to the parties concerned, forthwith, free of cost as permissible under Rules. File be indexed and consigned to the Record Room.

Announced on: 31.10.2019.

 

                             (Ruby Sharma)                        (Neena Sandhu)

                                Member                                President