By Yadunadhan, President.

The case of the complainant is that complainant has an S.B.Account with the first opposite party. The account number of the said account is S.B.A/c.2320. The complainant on 19.09.05 had presented for collection a cheque No.786673 dated 30.03.05, drawn on the second opposite party for the sum of Rs.14,000/-(Rupees fourteen thousand only) issued by one Mr. Babu, Kizhakkedath (H) P.O.Omchiyam, Chombala, Vatakara, Kozhikode District. On the date of presentation the cheque was perfectly valid and there was eleven more days for the cheque to become stale. At the time of presentation of the aforesaid cheque, the complainant had specifically enquired with the personals of the opposite party No.1, whether the cheque would be promptly sent for collection. The complainant had also made them aware that there was only 11(eleven) more days before the cheque became invalid. The opposite party No.1 had specifically assured the complainant that  the cheque would be sent for collection without any delay at all, and that the cheque would be encashed on time. Believing their words, the complainant presented the cheque for collection with the opposite party No.1.

           

            But contrary to all the assurance given, the cheque was returned by the drawee bank, the second opposite party for the reasons viz. stale cheque’ and funds insufficient. It was then that the complainant understood that the cheque was sent to the drawee bank only after the expiry of the validity of the cheque. In fact the first opposite party ought  not to have received the aforesaid cheques for collection from the complainant, if the opposite party No.1 could not transact the said cheque on time they should have refused to accept the cheque at the first instance itself. Then the complainant could have gone to Vatakara, presented the cheque straight to the drawee bank itself and encashed the amount. Complainant can not sustain a complaint against the issuer of the cheque under section 138 and 142 of the Negotiable Instruments Act, as one of the reasons stated is stale cheque.    Hence the complainant has lost his sole hope of regaining the cheque amount. The complainant has lost Rs.14,000/-(fourteen thousand)the amount covered by the returned cheque due to lack of service, careless attitude and unfair trade practices adopted by all the opposite parties. The said act is a clear case of deficiency of service.

            The complainant states that even though the cheque was presented for collection from the first opposite party on 19.09.05, the same was sent to the 3^rd opposite party only at a later date. The third opposite party had retained the cheque for a prolonged period and had sent to their branch at Vatakara, the 4^th opposite party. The complainant apprehends that the cheque was further delayed by the 4^th opposite party due to undue influence exerted by the issuer of the cheque, knowing fully well that no criminal proceeding would lie Under Section 138 of Negotiable Instrument Act. While presentation of the cheque, there were 11(eleven) more days for the cheque to became invalid. Due to the negligent act of the opposite parties complainant has suffered a lot of mental tension and agony. Therefore opposite parties are liable to pay compensation of Rs.25,000/-(Rupees Twenty five thousand) along with the cheque amount with 12% interest. 

Opposite party No.1 entered in appearance and filed their version denying all the averments made by the complainant. Opposite party admits that complainant had presented cheque No.786673 dtd.30.03.05 for Rs.14,000/- through his S.B.Account No.2320 maintained by him with the opposite party No.1. It is denied by first opposite party that opposite party No.1 had given assurance of clearance. The allegation is only to mislead the Hon’ble forum. It is the complainant to prove the deficiency of service as stated in para 4. It is the complainant to understand that he had presented the cheque after knowing all the procedure of the bank and sent his cheque through SB.Account No.2320 dtd. 19.09.05 at 4.25 P.M. The complainant ought to have proved that the first opposite party’s negligent handling caused  the cheque to become stale cheque. The opposite party No.1 is not responsible for the mental tension and agony of the complainant. Hence the compensation claimed with regard to the mental tension and agony is not meted out by the opposite party No.1. Being a cheque dated 30.03.05 the complainant ought to prove that why he did not present the cheque before 19.05.05, there is no merit in the case.  The complaint is liable to be dismissed.

Opposite party No.2 after serving notice entered in appearance and filed their version stating that complainant will not come within the purview of the definition of the word “Consumer” as far as the opposite party is concerned. This opposite party is denying the various allegations raised by the complainant in Para 3^rd and 4^th of the complaint against this opposite party. It is true that Kozhikode District Co-Op.Bank, Vatakara branch presented the cheque bearing No.786693 dtd.30.03.05 for a sum of Rs.14000/- drawn on this opposite party on 03.10.05 for payment through clearing. Above mentioned cheque was related to Sri.Babu in S.B. Account No.537. Aforementioned cheque dated 30.03.2005 was presented to this opposite party by the 4^th opposite party only on 03.10.2005 for payment through clearing. As such the statutory period of the validity of six months from the date of issuance of the cheque was over by the time of presentation of the said cheque before this opposite party and accordingly the cheque became stale. Further there was no sufficient amount also in the S.B.Account No.527 to honour the cheque. Accordingly this opposite party had returned the cheque on 03.10.2005 itself revealing the reasons that cheque became stale and there was no sufficient amount to honour the cheque in the account. So there was no deficiency in service in any manner from the side of the opposite party. Hence it is humbly submitted that this Hon’ble forum may kindly dismiss the complaint upholding the fact that there was no deficiency in service in any manner from the side of this opposite party.

 

 

            Opposite party No.3 and 4 appeared and filed their version. This opposite parties admits that the cheque was valid at the time of presentation. Though there was 180 days time to present the cheque it was presented only at a belated stage ie. 11 days stipulated validity period. It is further submitted that out of 11 days 2 days were bank holidays and only 9 days were set apart for passing it through four banks.   Even if a bank is situated at 10 meters away from another, when a cheque is presented for collection normally it would take more than a day for clearing the cheque.   Opposite party No.1 has stated that they have not given any assurance to the complainant regarding the clearing of  cheque in time. Complainant is a business man and is very well aware of the procedure of clearing an outstation cheque. The second opposite party had returned the cheque for two reasons ie. stale cheque /’insufficiency of funds’. So it is evident that the drawer of the cheque is not intended to maintain sufficient funds in his account to honour the cheque irrespective of the fact that whether it is stale or not. It is also pertinent to state that the person who had committed the default is not a party to these proceedings.    When an out station cheque is presented in the bank, it has to be passed through different sections in the bank and through the despatch section it is sent to the other bank for clearance. Hence it is always subjected to administrative delay.   There was no unreasonable willful or undue delay on the part of the 3^rd and 4^th opposite parties in handling the cheque. This opposite party is not responsible for the mental tension and agony to the complainant and is not liable to pay any amount on this count. Therefore complaint is liable to be dismissed.

            Points for consideration. Whether any deficiency on the part of the opposite parties? If so what is the relief and cost.

            Complainant   has no oral evidence only Exts. A1 to A13 were marked. Opposite party marked as RW1 marked Exts.B1 to B7. It is the admitted case of the complainant and the opposite parties that cheque presented for collection on 19.09.05 It is their banking practice that opposite party No.1 used to sent their cheque to their parent branch ie. opposite party -3 and from there  to it opposite party -4 and from OP-4 it will be sent to drawee   bank ie. opposite party No2, in the version submitted by opposite party No.1 & 3. There is no clear explanation regarding the delay caused   to sending the cheque for collection. Opposite party No.1 received the cheque on 19.09.05 and they sent this to opposite party No.3 only on 23.09.05 and from there they sent the cheque only on 01.10.05. There is no satisfactory explanation for this delay even though the manager deposed that   25th & 26 were holidays there was no explanations for other days, except the procedural delay which cannot be excused or condoned. So there is deficiency in service on the part of opposite party No.1 & 3. Forum doses not want to go other merits of the case including the insufficiency of cheque and loss sustained to the complainant. Since other leagal recauses are available only question  remains that whether there is any deficiency of service on the part of opposite party No.1 & 3 .As explained above the delay is not properly explained whatever the reason submitted is not satisfactory also. Being a service provider opposite party No.1 & 3 should be more careful while handling a cheque like this. Therefore opposite parties 1 & 3 are found liable to pay an amount of Rs.2500/- each and also to pay a cost of Rs.500/- to the complainant within one month from the date of receipt of copy of the order.

 

Pronounced in the open court this the 29^th   day of November 2010.

Date of filing:19.12.2006.

 

SD/-PRESIDENT                   SD/- MEMBER             SD/- MEMBER

 

APPENDIX

 

Documents exhibited for the complainant:

A1. Photocopy of the cheque dtd.30.03.05 of Rs.14,000/-.

A2. Photocopy of collection slip issued by the Ramanattukara service Co-Op.Bank

      dtd.19.09.05.

A3.Photo copy of Memo issued by the South Malabar Gramin Bank Ltd, Vatakara

      Branch.dtd.03.10.05.

A4. Photocopy of Memo issued by the Ramanattukara Service Co-Op.Bank Ltd.

      dtd.22.10.05.

A5.Photocopy of Lawyer notice issued on behalf of the complainant with postal receipts

      and acknowledgement cards( series 4 in Nos) dtd.21.02.2006.

A6. Photocopy of Reply notice issued by the Ist Opposite party dtd.08.03.06.

A7.Photocopy of Regd.Reply notice issued by the 2^nd opposite party dtd.07.03.06.

A8.Photocopy of Courier slip of Professional dtd22.09.05.

A9. Photocopy of consignment statement of Kozhikode District Co-Op.Bank

       dtd.23.09.05.

A10. Photocopy of Relevant page of dispatch register of Calicut branch dtd.01.10.05.

A11. Photocopy of Courier clientwise Booking status dtd.01.10.05.

A12. Photocopy of inward Register of Vatakara branch dtd.30.09.05 to 03.10.05.

A13. Photocopy of dispatch Register dtd.04.10.05.

 

Documents exhibited for the opposite party:

B1. Collection slip of Ramanattukara Co-Op Bank dtd.19.09.05.

B2. Courier slip of Professional courier service

B3. Cheque send from Ramanattukara service Co-Op.Bank to the Manager of Kozhikode

       KDC Bank dtd.20.09.05.

B4. Photocopy of clearing slip submitted by KDC Bank Ltd, Vatakara dtd.03.10.05.

B5. Photocopy of the outward clearing report of South Malabar Gramin Bank, Vatakara.

B6. Copy of Outward clearing of Cheque of South Malabar Gramin Bank dtd.04.10.05.

B7. Photocopy of Registered Lawyer notice dtd.08.03.06.

B8. Photocopy of Attendance Rolls for the Month of 9/05 of KDC Bank, Calicut branch.

 

Witness examined for the complainant:

None

 

Witness examined for the opposite party:

RW1.Jayaraj.V.T. Safe, Pautherppadam, Kunnamangalam.

                                                                                                                 Sd/-President

 

   //True copy//

 

 

(Forwarded/By Order)

 

 

 

SENIOR SUPERINTENDENT.