Haryana

Ambala

CC/250/2018

Suraj Parkash - Complainant(s)

Versus

Kotak Mahindra Bank - Opp.Party(s)

06 Sep 2021

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, AMBALA.

 

                                                          Complaint Case No.: 250 of 2018.

                                                          Date of Institution           :   07.08.2018.

                                                          Date of decision    :   06.09.2021.

 

Suraj Parkash s/o Sh. Lakhi Singh, H.No. 10, Shiv Pratap Nagar, Ambala Cantt.

                                                                             ……. Complainant.

                                                Versus

 

1. Kotak Mahindra Bank, Nicholson Road, Ambala Cantt. Through its Sr. Manager.
2. Kotak Mahindra Bank, Registered Office, 27 BKC, C27, G Block, Bandra Kurla Complex, Bandra(E), Mumbai-400051, Through its Managing Director.
3. Blue Dart Express Ltd., Mohra, Ambala Cantt., Through its Proprietor/Authorized Signatory/Manager.

           ..…..Opposite Parties.

         

Before:        Smt. Neena Sandhu, President.

                   Smt. Ruby Sharma, Member.

Shri Vinod Kumar Sharma, Member.         

                                                

Present:       Shri Rajeev Sachdeva, Advocate, counsel for the complainant.

Shri Puneet Sirpaul, Advocate, counsel for the OPs No.1&2.

Shri Sanjeev Vashisth, Advocate, counsel for the OP No.3.    

 

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 directions to them:-

1. To pay Rs.80,000/-, i.e. the amount of lost cheque.
2. To pay Rs.10,000/- as compensation on account of financial loss, mental agony and physical harassment suffered by the complainant.  
3. To pay Rs. 9,000/- as litigation expenses.
382.  

 

Any other relief which this Hon’ble Commission may deem fit.

 

Brief facts of the case are that complainant is residing at Ambala and having bank account No.9612563088 with the OP No.1. Complainant presented a Cheque of Rs.80,000/- bearing  No.066040 dated 19.02.2018 of SBI Ambala Cantt, issued by  Mr. Kamal Kishor s/o Sh. Babu Lal, r/o H.No. 582, Ward No. 21, Ram Bagh Road, Jawaladin Ki Mandi, Ambala Cantt, in the name of the complainant, to the OP No.1 for encashment but the said cheque was dishonoured. Thereafter complainant enquired from the OP No.1, about the bounced/dishonoured cheque. The OP No.1 told that the said cheque was given to the Op No.3 to deliver it to the complainant. Complainant waited for two days but when did not get the dishonoured cheque, he again approached the OP No.1 and gave a letter to it regarding non delivery of cheque. The OP No.1 also gave the Mobile No. 9017641068 of OP No.3. Complainant on mobile enquired from the OP No.3 about the status of the dishonoured cheque.  The official of the OP No.3 told him that the concerned official had delivered all the courier letters and returned the undelivered letters to OP No.1.  He further told that no courier was booked in the name of complainant and he advised the complainant to bring the POD receipt or POD number from the Bank to track the courier. On next day, complainant again approached the OP No.1 and demanded POD number or bounced cheque but the officials of the OP No.1, did not given any satisfactory reply and misbehaved with the complainant. Thereafter, complainant met Kamal Kishor (the drawer of the cheque) to recover the amount but the drawer told him that he will pay the cash amount or issue another cheque provided complainant give him the dishonoured cheque. Complainant told him that he cannot give the dishonoured cheque because the same got lost by the Bank. The drawer, refused to pay the due amount in cash or to issue a fresh cheque. In the absence of dishonoured cheque, complainant cannot avail the remedy available under the law, to recover the amount from the drawer. By not delivering the dishonoured cheque to the complainant, OPs have committed deficiency in service. Hence the present complaint.

2.                Upon notice, OPs No.1&2 appeared through counsel and filed written version and raised preliminary objections regarding maintainability, suppression of material facts and not come with clean hands etc. On merits, it is stated that Cheque bearing No.066040 drawn on State Bank of India, was deposited by complainant in his account bearing No.9612563088 on 19.02.2018. The said cheque was sent by OPs No.1 and 2 for clearing on 19.02.2018 to the SBI. However, the said cheque was returned on 20.02.2018 by the SBI of India, stating the reason “Exceed Arrangement”. The reason for return of said cheque can also be seen from the account statement of complainant.  It is further stated that answering OPs handed over the cheque to OP No.3, on 20.05.2018, with POD No.15051710575 for delivering the same to the complainant. From the website of the OP No.3 it was found that the cheque was not received by the complainant and the same was not returned by the OP No.3 to the answering OPs. Whereas, in the status report of delivery of POD No.30330514900, given by the OP No.3, it is mentioned as received by ‘STMP on 28.02.2018. Rest of the averments of the complainant were denied by OPs No.1 and 2 and prayer has been made for dismissal of the complaint against them with special costs.   

                   Upon notice, OP No.3 appeared through counsel and filed written version and raised preliminary objections regarding maintainability and no cause of action etc. On merits, it is stated that complainant did not disclose the POD details vide which the OPs No.1 and 2 had booked the alleged cheque with the answering OP. Therefore, without POD number, it is not possible to track the status of dispatch or delivery. It is further stated that when the OPs No.1 and 2 did not book any courier with the OP No.3 to send to the complainant, then, the question of harassing the complainant, does not arise at all and complainant has unnecessarily dragged the OP No.3 into uncalled litigation.  The OP No.3 has not committed any deficiency in service, thus the complaint filed against it is liable to be dismissed with costs.

3.                Counsel for the complainant tendered affidavit of complainant as Annexure CW1/A alongwith documents as Annexure C-1 to C-3 and closed the evidence on behalf of complainant. On the other hand, learned counsel for the OPs No.1 and 2 tendered affidavit of Shri Sunil Narwal, POA, of M/s Kotak Mahindra Bank, Ambala as Annexure OP1/A alongwith documents as Annexure OP1/1 to OP1/3 and closed the evidence on behalf of OPs No.1 and 2. Learned counsel for the OP No.3 tendered affidavit of Shri Jasvinder Singh son of Shri Jagtar Singh, Sr. Executive Finance, Blue Dart Express Limited, LIC Building, Ground Floor, Ambala Cantt., as Annexure OP3/A and closed the evidence on behalf of OP No.3.

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

5.                The learned counsel for the complainant has argued that the complainant presented a cheque bearing 066040 dated 19.02.2018 of Rs.80,000/- issued by Kamal Kishore (drawer) in his favour, to the bank for encashment. However, said cheque got dishonoured and when the complainant did not receive the said dishonoured cheque then he enquired from the Bank.  The official of the Bank told him that the dishonoured cheque has been given to the OP No.3, to deliver it to the complainant. Complainant also enquired from the OP No.3, about the delivery of the said cheque.  The official of the OP No.3 told him that all the letters had been delivered and returned the undelivered letters to the OP No.1. It was further told that no courier was booked in the name of the complainant. OP No.3 asked the complainant to provide the POD number. Complainant requested the OP No.1 to provide the POD number but it did not provide the same. In the absence of dishonoured cheque, the drawer refused to pay the due amount in cash or to issue a fresh cheque. In the absence of the dishonoured cheque complainant was prevented from taking up the matter under the Negotiable Instrument Act, 1881, as per Section 61 of the Indian Evidence Act, 1872.

6.                On the contrary, the learned counsel for the Bank i.e. OPs No.1 & 2 averred that the dishonoured cheque was sent to the complainant through OP No.3. As per status report of delivery of POD No. 30330514900/074-15051710575, Annexure OP1/1, the dishonoured cheque was delivered. Whereas the plea of the complainant is that he has not received the dishonoured cheque. The OP No.3 is solely responsible for non-delivery of the cheque in question to the complainant.

7.                The learned counsel for the OP No.3 averred that the bank has wrongly alleged that it had given the dishonoured cheque to the OP No.3, to deliver the same to the complainant. The OPs No.1 and 2 have not produced any receipt/invoice regarding booking of the said cheque having allegedly POD No.15051710575.

8.                From the perusal of the status report of delivery having POD No. 30330514900/074-15051710575, Annexure OP1/1, it is revealed that in the Colum meant for status date and time 28.02.2018 @ 11:48 and in the Colum receiver/relation STMP has been mentioned. However, no such document in the shape of invoice/booking slip has been placed on record by the OPs No.1 and 2 to show that what amount they had paid to the OP No.3 as consideration and mentioning therein the POD No.15051710575, regarding booking of the dishonoured cheque to deliver it to the complainant. In the absence of documentary evidence the contentions of the OPs No.1 and 2 that they had booked the cheque in question with the OP No.3, to deliver it to the complainant. It is pertinent to mentioned here that it was the bounded duty of the bank to hand over the dishonoured cheque to the complainant but it failed to perform its duty, which tantamounts to deficiency in service. It is thus liable to compensate the complainant.

                   Now coming to the quantum of compensation. The Hon’ble Supreme Court in the case of Citi Bank NA Vs. Gee Kay Agro Pact Private Limited SCC 2008 (15) 102, has held that bank may be liable for damages for not returning the cheques as it amounts to deficiency in service but there cannot be any liability to pay the cheque amount. For recovery of the total amount of the loss it is open for the Gee Kay to file a civil suit before the appropriate Court. In the case of  State Bank of Patiala v. Rajender Lal and Anr. IV (2003) CPJ 53 (NC), the Hon’ble National Commission has held that a bank on ground of deficiency in service in such like matters can be burdened with compensation but it cannot be made to pay the entire amount of the cheque.

                   With regard to the plea of the complainant that the drawer, in the absence of dishonoured cheque refused to make the payment in cash or to issue a new cheque. In the absence of the dishonoured cheque the complainant was deprived of his legal right to file a case under Section 138 of the Negotiable Instrument Act 1881, against the drawer. It may be stated that in the case of B. Sitharam Reddy Vs. Manager Dena Bank & Others decided on 13.03.2018, by the Hon’ble National Commission, the contention of the petitioner was that the original cheque and the return memo were not given to him and he was prevented from taking up the matter under the Negotiable Instrument Act, 1881, the Hon’ble National Commission has held that as per Section 61 of the Indian Evidence Act 1872, the contents of the document may be proved either by primary or secondary evidence. Primary evidence means the document itself produced for inspection of the Court. Secondary evidence includes certified copies given under the provision contained. Certified copies made from the original mechanical process which in themselves ensure the accuracy of the copy & copies compared with such copies and copies made from or compared with the original. In the situation, where the original dishonoured cheque has been misplaced, the bank is under obligation to provide the certified image copy of the cheque in question and duplicate cheque return memo to the complainant, so that he can avail his remedy under the Negotiable Instrument Act. Hence, the petitioner could have filed a case under the Negotiable Instrument Act, as per section 61 read with Section 62 and 65 of Indian Evidence Act, 1872 with secondary evidence provided to him by the Bank.

                    In view of the law laid down by the Hon’ble superior Courts, in the cases referred to above, we hold that the bank is liable to compensate the complainant for the deficiency in service but cannot be made to pay the entire amount of the cheque. The Bank is also under obligation to provide the certified image copy of the cheque in question and duplicate cheque return memo to the complainant.   

                   It may be stated here that the OPs No.1 and 2 have failed to prove that the Bank had engaged the OP No.3, to deliver the cheque in question to the complainant, therefore, the complaint filed against OP No.3 is liable to be dismissed.

                   In view of the aforesaid discussion, we hereby dismiss the present complaint against the OP No.3 and partly allow the same against the OPs No.1 & 2 and direct them in the following manner:-

                   1)      To provide the certified image copy of the cheque in                         question and duplicate cheque returned memo to the                              complainant.

                   2)      To pay Rs.10,000/- as compensation for deficiency in                        service and the mental agony and physical harassment                          caused to the complainant.

                   3)      To pay Rs.10,000/- as litigation expenses.

 

                    The OPs No.1 & 2 are further directed to comply with the aforesaid directions within the period of 45 days from the date of receipt of the certified copy of this order, failing which, they shall pay interest @ 5% per annum on the awarded amount w.e.f 06.08.2021 i.e the date of the order, till its realisation. 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: 06.09.2021.

 

 

          (Vinod Kumar Sharma)            (Ruby Sharma)     (Neena Sandhu)

              Member                                  Member             President