Haryana

Kurukshetra

170/2018

Sanjeev Kumar - Complainant(s)

Versus

IDBI - Opp.Party(s)

W.C.Juneja

13 Aug 2019

ORDER

 

 

BEFORE THE  DISTRICT CONSUMER DISPTUES REDRESSAL FORUM, KURUKSHETRA.

 

Consumer Complaint no. 170 of 2018.

Date of instt. 08.08.2018. 

                                                                        Date of Decision: 13.08.2019.

 

Sanjeev Kumar Sharma S/o Sh. Jai Kishan Sharma, resident of House No.268/1, Masita House, Thanesar, Kurukshetra. 

                                                                ……….Complainant.      

                        Versus

 

IDBI Bank Limited, Railway Road, Kurukshetra through its Branch Manager.

 

..………Opposite party.

 

       Complaint under section 12 of Consumer Protection Act.            

 

Before       Smt. Neelam Kashyap, President

                Sh. Sunil Mohan Trikha, Member                                          

Present:     Sh. W.C. Juneja, Advocate for complainant.  

 Sh. K.K. Kaushik, Advocate for opposite party.

 

           

ORDER

                                                                         

                    This is a complaint under Section 12 of the Consumer Protection Act, 1986 moved by complainant Sanjeev Kumar against IDBI Bank Limited, the opposite party.

2.             It is stated in the complaint that complainant is having the account with the op IDBI Bank having no.50100159405800. A cheque bearing No.000004 dated 14.11.2017 for Rs.65,000/- drawn at HDFC Bank was issued by Surender Kaur in favour of complainant. That the complainant presented the above said cheque with his banker i.e. op for onwards payment firstly on 15.11.2017, which was dishonored and second time it was presented with op on 10.1.2018. The complainant asked the op regarding the status of the above said cheque, but the officials of op postponed the matter on one pretext or the other and lastly on 17.7.2018 the op told to the complainant that above said cheque has been lost with the report that cheque has been bounced on 11.1.2018. It is further averred that due to negligence on the part of op, the complainant could not file case either criminal or civil against drawer of the cheque neither can recover the amount of Rs.65,000/- from the drawer in manner. That op is liable to make payment of cheque amount to the complainant and the aforesaid act and conduct on the part of op amounts to unfair trade practice and deficiency in service. Hence, this complaint.

3.             On notice, opposite party appeared and filed written statement taking certain preliminary objections regarding maintainability, cause of action, estoppal, jurisdiction, suppression of true and material facts and that complaint is hit by provision of Under Section 45A of the Negotiable Instrument Act. The cheque in question was sent for collection to the drawer bank but it was reported to be dishonored due to insufficient in the account of drawer and the intimation in this regard was given to the complainant. The complainant did not take any steps whatsoever for obtaining duplicate cheque. Not only this, the complainant did not take any action for recovery either by filing a complaint before appropriate forum or by filing a suit before the competent civil court. On merits, it is submitted that complainant is not having any account no.50100594058 with IDBI Bank. The cheque submitted by complainant was dishonored on 10.1.2018 and thereafter, the op has sent the original cheque as well as memo of dishonor to the complainant through courier on 11.1.2018 at the correct address given in the account of complainant. But later on the said courier was received back with the remarks that no person in the name of Sanjeev Kumar Sharma is residing at that address. Further when the complainant approached the op, the official of the op issued a certificate that this cheque has been bounced. Hence, there is no deficiency in services on the part of op. It was the responsibility of the complainant to provide/ update his correct address in the account. The complainant was having remedy to recover the said amount from the executants of the cheque but complainant instead of taking any action against Surender Kaur has filed the present false and frivolous complaint against the op. The remaining contents of complaint are also denied and prayer for dismissal of complaint made.   

4.             Learned counsel for complainant tendered affidavit Ex.CW1/A and documents Ex.C1 to Ex.3. On the other hand, learned counsel for ops tendered affidavit Ex.RW1/A and documents Ex.R-I to Ex.R-III.

5.             We have heard learned counsel for the parties and have perused the case file carefully.

6.             The counsel of the complainant contended that complaint has a account with the opposite party. Complainant has presented a cheque of Rs.65,000/- with the Op. It was presented by the complaint two times with the Op and the presented firstly on 15.11.2017, it was dishonoured and second time it was presented with Op on 10.01.2018, deposited memo is Ex. C-1. But Op has lost his cheque and regarding his lost of cheque Op has given the certificate which is Ex. C-2 stamped and signed by Op. The counsel of the complainant contended that it is clearly mentioned in the cheque in the Ex. C-2 that the cheque of complainant was lost in the bank and this is deficiency of Op. Counsel of the complainant again contended that Op is liable to make payment of cheque amount of the complainant. 

7.             The counsel of the Op contended that it is admitted fact that cheque was presented by the complainant and that cheque was dishonoured on 10.01.2018. Thereafter, opposite party has sent the original cheque as well as the memo of dishonour to the complainant through courier on 11.01.2018 at the address given in the account of the complainant. But later on the said courier was received back with the remarks that no person in the name of Sanjeev Kumar Sharma is residing in that address. It is also contended that when the complainant approached the opposite party, the officials have issued a certificate of lost of cheque i.e Ex.C-2. The second point raised by the Op that the complainant has remedy to recover the said amount from the executants of the cheque namely Surender Kaur by way of filing Civil suit for recovery of the alleged amount but the complainant instead of taking any action Surender Kaur has filed the present false and frivolous complaint against the opposite party. So, there is no deficiency of services on the part of the opposite party. Moreover ld.counsel for the Ops has place on record judgment reported as Branch manager, Federal bank Ltd. Vs. N.S.Sabastian, Appeal No.43 of 2009, decided on 07.1.2009 (Supreme Court of India).

8.             At the time of argument, complainant has filed some documents Mark A to Mark-E to show his resident address proof.

9.             It is clear from the fact that the cheque of amount Rs. 65,000/- was presented by the complainant to the opposite party and that cheque with memo of report has been lost by the Op. It is clear from the file that complainant was deprived of his legal right to file a case under Section 138 Negotiable Instrument Act against the executants. Op has taken a plea that the courier has sent to the house of complainant on 11.01.2018, but there is no document which shows that the complainant is not residing at the address which was mentioned in pass-book Mark-E. The authority cited by learned counsel for Op is not disputed but same is not applicable to the facts and circumstances of the present case. The claim of complainant clearly amounts to deficiency in service on the part of op.

(I)             The Hon’ble Rajasthan state Consumer Disputes redressal Commission, Jaipur in case titled Udaipur Central Co-operative Bank Vs. Anurag Nagar, Appeal No.937 of 2003, decided on 07.11.2003 has held as under:-

                Cheques entrusted for collection, lost- Held, safe collection of cheques entrusted to a bank by its consumer is the contractual obligation of bank-deficiency in service proved- Bank liable to reimburse consumer for loss caused.

(II)           The Hon’ble Consumer Disputes Redressal Commission, Chandigarh in case titled State Bank Of India Vs. M/s Rastriya Ispat Udyog, Ambala, Appeal No.358 of 1992, decided on 06.01.1993 has held as under:-

        Sections 2(1) (g) and 2 (1) (0)-Deficiency in service- Bank cheque- whether the service of banking entails an undertaking to ensure the safe collection of cheques entrusted to the banker for the said purpose.

(III)            The Hon’ble National Consumer Disputes Redressal Commission, New Delhi in case titled 1. Manager, Bank of Baroda & ANR. Sh. Solanki Chaturabai Mohanlal, Market Yard Branch, Visnagar, Tal. Visnager, Distt. Mehsana Gujarat 2. Authorized Officer, Bank of Baroda (Head Office) at Mandvi, Tal. & District-Baroda, Gujarat Vs. Chitrodiya Babuji Divanji R/O.B/41, Shirdinagar Society, Dharoi Colony Road, Visnagar, Tal.Visnagar, Distt. Mehsana Gujarat, Revision Petition No.2028 of 2016, decided on 19.07.2019.

10.            In view of the above, we allow the present complaint and direct the opposite party to pay the cheque amount of Rs.65,000/- to the complainant within a period of 45 days from the date of receipt of copy of this order, failing which the complainant will be entitled to interest @9% per annum from the date of order till actual realization. A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.          

Announced in open Forum:

Dt.: 13.08.2019.                                                  (Neelam Kashyap)

                                                                        President.

 

(Sunil Mohan Trikha),                      

                Member