PER:
Nidhi Verma Member,
1 The complainant has filed the present complaint under Section 34, 35 and 36 of the Consumer Protection Act (herein after called as 'the Act') against the opposite party on the allegations that the complainant is having account No. 50100024176781 with the opposite party i.e. Kairon Branch. On 22.4.2021, the complainant deposited a cheque bearing No. 056401 dated 1.4.2021 for Rs. 6 Lakh of State Bank of Patiala Branch Lahuka now merged in State Bank of India Branch Lahuka, issued by Sh.Sukhwinder Singh son of Joginder Singh, resident of V.P.O Khabe Rajputan Tehsil and District Tarn Taran for the amount No. MSB65114917185 for collection. The complainant inquired from the opposite party so many times verbally regarding the collection of the above mentioned cheque but no appropriate reply was given by the opposite party/ Bank to the complainant and at least, he sent the e-mails 3/4 times i.e. on 19th May, 2021, 31st May 2021 to opposite party to get information regarding the fate of the cheque and on written request, the opposite party replied and admitted vide letter dated 4.6.2021 that the above said cheque was presented for outward clearing drawn on SBP now merged with SBI which was sent by opposite party i.e. HDFC Bank Ltd. branch Kairon to CTS clearing house at Patti branch but the instrument was inadvertently lost in transit and could not have been presented to SBI which is reason for non collection of the cheque. The lost of cheque/ instrument causes deficiency and negligence of service on the part of the bank and made a heavy loss of Rs. 6 Lacs to the complainant. The opposite party has also guided to get a fresh instrument in lieu of the lost instrument from the drawer. The question raised in the reply to get the fresh instrument/ cheque from the drawer cannot be solved as the drawer is not ready to give fresh cheque to the complainant. The bank officials worked very negligently manner and caused huge loss i.e. Rs. 6 Lacs to the complainant and the opposite party is directly responsible for the deficiency of service and failed to provide appropriate service at appropriate time. Thus, the opposite party is fully responsible for the loss caused to the complainant. The complainant sent a legal notice dated 5.7.2021 vide registered No. RP970160216IN to the opposite party through registered post but no reply has been given by the opposite party to the complainant till today even did not give any cooperation in the matter. The complainant has prayed the following relieves:-
- The opposite party may kindly be directed to pay a sum of Rs.6,00,000/- i.e. amount of the cheque deposited with the opposite party i.e. of Rs. 6,00,000/- to the complainant immediately alongwith interest which the opposite party have lost deliberately and with negligence which is a deficiency of service.
- An amount of Rs. 40,000/- be granted as compensation and Rs. 20,000/- as litigation expenses on account of mental agony and physical harassment and emotional distress suffered by the complainant due to the negligence and deficiency of service unprofessional conduct and working of official of opposite party be awarded to the complainant in the interest of justice, equity and fair play.
Alongwith the complaint, the complainant has placed on record his affidavit Ex. CW-1, self attested copy of receipt dated 22.4.2021 Ex. C-1, Self attested copy of cheque bearing No. 056401 deposited with the opposite party Ex. C-2, self attested copy of letter dated 19.5.2021 to the opposite party Ex. C-3, Self attested copy of letter dated 31.5.2021 to the opposite party Ex. C-4, Self attested copy of reply given by the opposite party Ex. C-5, Self attested copy of letter written to the opposite party on 21.6.2021 Ex. C-6, Self attested copy of legal notice dated 5.7.2021 Ex. C-7, Postal receipt Ex. C-8, Self attested copy of Adhar Card of complainant Ex. C-9, reply of opposite party dated 4.6.2021 Ex. C-10.
2 Notice of this complaint was sent to the opposite party and opposite party appeared through counsel and has filed written version by interalia pleadings that the complaint under the reply is not maintainable and is liable to be dismissed as the complainant has attempted to misguide and mislead this commission and as such the complaint is liable to be dismissed on this ground alone. The complainant does not qualify the ingredients of a valid complaint as envisaged in Consumer Protection Act, 2019 as such the complaint is liable to be dismissed on this ground alone. The complainant has created a false story in his complaint to mislead this commission by concocting and distorting the facts and circumstances of the present case. The complainant in the present complaint has leveled false and frivolous allegations against the opposite party. The complainant deposited a cheque bearing No. 056401 dated 1.4.2021 for Rs. 6,00,000/- of State Bank of Patiala Branch Lahuka which is now merged in State bank of India Branch Lahuka issued by one Sh. Sukhwinder Singh son of Joginder Singh, resident of VPO Khabe Rajputan, Tehsil and District Tarn Taran from the account No. MSB65114917185 for collection. It was further alleged by the complainant that he approached the opposite party many a times to get the information regarding he cheque deposited and vide letter dated 4.6.2021 the opposite party admitted that the instrument was inadvertently lost in transit and could not have been presented to SBI. A cheque bearing No. 056401 was presented at the branch of opposite party for outward clearing drawn on State Bank of Patiala which is now merged with State bank of India. The opposite party informed the complainant to obtain fresh instrument i.e. replacement of the lost instrument from the drawer as the amount was not encashed by/ through the said instrument which was lost in transit as it could not have been presented to the Banker of drawer of the said instrument. Due to unforeseen circumstances, the cheque was lost but however the opposite party arranged a Non payment certificate from State Bank of India, Lohuka confirming that cheque No. 056401 is unpaid and hence, the complainant could request the drawer of the cheque to give instructions to his Banker to put stop payment on the lost instrument so that the same cannot be misused by anyone and obtain fresh instrument in lieu of lost instrument. The complainant was already informed by the opposite party vide email dated 4.6.2021 and letter Ex. C-5 that he may take appropriate steps for getting fresh cheque issued from Sukhwinder Singh. The misplacing of the cheque has nowhere prejudiced the right of the complainant to file a complaint under Section 138 of the Negotiable of Instrument Act against Sukhwinder Singh before appropriate court of law. The complainant can also approach the Drawer for issuance of the fresh/ duplicate cheque as per the provisions of Section 45-A of the Negotiable of Instruments Act and on refusal, he can proceed legally against him. There was no loss caused to the complainant but infact he was defrauded by Sukhwinder Singh who had issued a cheque qua State Bank of Patiala which was merged in to SBI long time back and even if the said cheque was presented then also the same would not have been encashed as State Bank of Patiala is no more existence and the said cheque would have been dishonoured as per laid down procedure and as per directives issued by the RBI, therefore, the opposite party bank is not under any fault. Best efforts were made by the Bank as well as by the Courier Company to trace the bag containing the couriers but the same could not be traced. However, the complainant also miserably failed to lead any evidence that there was loss caused to him inasmuch as that the cheque has been misused or encashed by somebody else. In the absence of any proof to that effect, the opposite party could not be held liable to pay the cheque amount. The opposite party was under an obligation to pay the amount of cheque only after receiving the funds from the bank of the borrower. Since, the same could not be done, the opposite party could not be held liable to pay the cheque amount alongwith interest. The present complaint is false, frivolous and vexatious besides being devoid of any merits and has been filed with a view to malign the credential and reputation of the opposite party with dishonest intentions to detriment the opposite party and to the illegal advantage to the complainant. The opposite party has denied the other contents of the complaint and prayed for dismissal of the same. Alongwith the written version, the opposite party has placed on record documents i.e. copy of authority letter Ex. OP1, copy of letter dated 1.6.2021 written by opposite party Bank to SBI for issuing non payment certificate, endorsement by SBI that the cheque has not been encahsed and Non payment certificadte issued by the State Bank of India dated 7.6.2021 Ex. OP2 to Ex. OP-4 and affidavit of Himet Rai Ex. OP5
3 We have heard the Ld. counsel for the parties and have carefully gone through the record and written arguments filed by the opposite parties.
4 In the present complaint, on dated 22nd April, 2021 the complainant deposited a cheque bearing No. 056401 dated 01.04.2021 for Rs.6 Lakh of State Bank of Patiala branch Lahuka now merged in State Bank of India branch Lahuka, issued by Sh. Sukhwinder Singh son of Joginder Singh from the account No. MSB65114917185 for collection. On 4th June 2021 the opposite party replied vide letter that the above said cheque was presented for outward clearing drawn on SBP now merged with SBI which was sent by the opposite party i.e. HDFC Bank Ltd. branch Kairon to CTS clearing house at Patti branch but the instrument was inadvertently lost in transit and could not have been presented to SBI which is reason of non collection of the cheque . The opposite party has also guided to get a fresh instrument in lieu to the lost instrument from the drawer but same cannot be solved as the drawer is not ready to give fresh cheque to the complainant. Hence the bank officials worked in very negligent manner and caused huge loss of rupees 6,00,000/- to the complainant and the opposite party is directly responsible for the deficiency in service and failed to provide appropriate service at the appropriate time, thus the opposite parties is fully responsible for the loss caused to the complainant.
5 O.P stated in their written version that, the O.P informed the complainant to obtain fresh instrument i.e. replacement of the lost instrument from the drawer as the amount was not encashed by/ through the said instrument which was lost in transit as it could not have been presented to the banker of drawer of the said instrument. It is humbly submitted that due to unforeseen circumstances the cheque was lost but however the opposite party arranged non payment certificate from State Bank of India ,Lohuka confirming that the cheque number 056401 is unpaid and hence the complainant could request the drawer of the cheque to give instruction to his banker to put stop-payment on the lost instrument so that the same cannot be misused by anyone and obtain fresh instrument in light of lost instrument. It is relevant to mention here that the best efforts were made by the bank as well as by the Courier company to trace the bag containing the couriers but the same could not be traced . However ,the complainant also miserably failed to lead any evidence that there was loss caused to him in-as-such as that the cheque has been misused or engaged by somebody else. In the absence of any proof to that effect the opposite party could not be held liable to pay the cheque amount. The opposite party was under an obligation to pay the amount of cheque only after receiving the funds from the Bank of the borrower. Since the same could not be done the opposite party could not be held liable to pay the cheque amount among the interest. The opposite party placed on record revision petition No. 3438 if 2005 titled as State Bank of India Vs Muntha Lakshmi Kumari and argued that the bank is not liable to pay the cheque amount and is only entitled to compensation for deficiency in service on the part of Bank.
6 As a result of the above discussion we are of the considered view that, from the material available in record it is clear that the complainant on dated 22.04.2021 deposited a cheque bearing no. 056401 dated 01.04.2021 for Rs.6lakh of SBP now merged in SBI ,Lahuka (Ex.C1 photocopy of deposit receipt & C-2 photocopy of cheque placed on record) . The plea of the O.P is that the cheque was sent to the CTS clearing house but the instrument was inadvertently lost in transit and due to which it couldn’t have been presented with SBI. The O.P informed the complainant to obtain fresh cheque from the drawer( Ex.C-10 & C-5) as the amount was not encashed and the O.P arranged a Non- payment certificate from SBI, Lohaka on dated 07/06/2021 confirming that cheque No. 056401 of Account No.65114917185 is unpaid till date. ( Ex.OP-2 & OP-3).
7 First of all, we would like to deal with the point whether the complainant is entitled to the refund of the amount of Rs.6,00,000/- against the said cheque. We have gone through the record of the case carefully. The said cheque was lost in the bank branch and they sent the information to complainant vide e-mail Ex. C-10. It is the version of OP that the complainant had a remedy under Section 138 of Negotiable Instrument Act, who issued the cheque in his favour and He could produce his evidence through secondary evidence, but he cannot recover the cheque amount from the OP. It is admitted fact that OP bank lost the cheque of Rs.6,00,000/- in question. Learned counsel for opposite party relied upon the law held by Hon’ble National Commission in Revision Petition No. 3438 of 2005 titled as State bank of India Vs Muntha Lakshmi Kumari. We have perused the above referred authority and find that the facts of the above referred authority are different from the instant case. In referred case, the cheque was sent by the bank for collection through courier service named as ANL Parcel Services but the said cheque was lost in the transit by the said courier service. In the above referred authority there was contributory negligence on the part of the bank in losing the cheque and opposite party bank also not made efforts to trace out the same. But in the instance case it is admitted fact that the cheque in question was lost by the opposite party. The cheque in question was sent to the CTS clearing house but the instrument was inadvertently lost in transit and due to which it could not have been presented with State Bank of India. It is important to mention that in CTS the presenting bank (or its branch) captures the data (on the MICR band) and the images of the cheque using their capture system (comprising of a scanner, core banking or other application) which is internal to them and meeting the specifications and standards prescribed for data and images under CTS. Through the CTS system, there is no need to move the cheque physically. However, if the cheque was sent through courier then the opposite party has failed to produce on record the daily dispatch register which shows that cheque was sent through courier. And if the cheque was lost during transit by currier service then what action they have taken against courier company. If the cheque was lost whether the opposite party has conducted any enquiry. This act of the opposite partly clearly indicates that this was a deficiency in service on their part. This is a grave negligence on the part of OP bank, being the custodian of the said cheque of Rs.6,00,000/-, due to which complainant could not use that amount and suffered lot of harassment and mental agony. The complainant also remained deprived of initiating the proceedings under Section 138 of Negotiable Instruments Act against the concerned party due to above negligent act of OP bank as well as from suit for recovery. The matter is not res integra, the Hon'ble National Commission has held in case titled as "Manager, Bank of Baroda & another Vs. Chitrodiya Babuji Divanji" Revision Petition No.2028 of 2016, decided on 19.07.2019 as under:-
"Unfortunately, the cheque was lost by the Bank. The respondent did not receive the bounced cheque nor did he get the cheque amount of Rs.3,60,000/-. The petitioner failed to return the cheque to the respondent and the respondent was deprived of his legal right to file a case under Section 138 of Negotiable Instrument Act against the 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."
The above revision petition filed by Bank was dismissed by the Hon'ble National Commission by upholding order dated 20.01.2016 passed by the Hon’ble State Commission, wherein the bank was directed to pay the cheque amount i.e. Rs.3,60,000/- to the respondent. The instant case is squarely covered by above referred authority. The Hon'ble National Commission also held in case titled as "Canara Bank & 2 others Vs. Sanjay Mitra" Revision Petition No.2956 of 2015, decided on 29.04.2016 that a lumpsum compensation of Rs.2,00,000/- is considered just and reasonable to meet the ends of justice on account of deficiency in service on the part of Bank with cost of Rs.10,000/-.
8 In this case, the complainant suffered loss of Rs.6,00,000/-, as pleaded by him in complainant supported by affidavit due to above negligence act and deficiency in service of OP. Moreover, the OP has failed to prove on record that complainant recovered the said amount of Rs.6,00,000/- from the concerned party, who issued the cheque by initiating any other action, as per law. Sequel to our above discussion and in the light of law laid down by the Hon'ble National Commission in case Manager, Bank of Baroda (supra), we hold that OP bank is liable to pay the amount of cheque in question i.e. Rs.6,00,000/- to the complainant. Moreover, the authority placed on record by opposite party State Bank of India Vs Muntha Lakshmi Kumari (Supra) is not applicable to the present case.
9 In light of the above discussion, the complaint succeeds and the same is hereby allowed with costs in favour of the complainant. The opposite Parties are directed to pay Rs. 6,00,000/- i.e. cheque amount to the complainant. The complainant has been harassed by the opposite parties unnecessarily for a long time. The complainant is also entitled to Rs.35,000/- as compensation on account of harassment and mental agony and Rs 11,000/- as litigation expenses. Opposite Party is directed to comply with the order within one month from the date of receipt of copy of the order, failing which the complainant is entitled to interest @ 9% per annum, on the awarded amount, from the date of complaint till its realisation. Case could not be disposed of within the stipulated period due to heavy pendency of the cases in this Commission and due to COVID-19. Copies of the order be furnished to the parties as per rules. File is ordered to be consigned to the record room.
Announced in Open Commission
22.04.2024
