By Smt. Jayasree Kallat, Member

            The complainant is a M.B.B.S. Doctor practicing in M.M. Hospital, Cherngottukavu, Koyilandy..  Complainant had an S.B. Account (18762) in Synidicate Bank Ltd., Balusseri Branch.  The complainant had presented a cheque for an amount of Rs.40000/- On 22-3-06 in Syndicate Bank Perambra Branch in the account of the complainant.  The cheque was of Federal Bank, Perambra Branch.  Cheque No. was AV075189.  The syndicate Bank had sent this cheque through Canara Bank, Perambra branch to Federal Bank, Perambra.  The Federal Bank had sent back this cheque along with a Memo “payment stopped by drawer” to Canara Bank, Perambra on 22-4-06.  The complainant had approached Syndicate Bank several times to collect the cheque amount.  But the complainant was sent back from the bank without receiving the amount.  The Bank did not give any information regarding the presented cheque even though the complainant had repeatedly contacted Syndicate Bank to get the amount.  After one month the complainant got the information that the cheque sent for collection from Syndicate Bank had been returned back from Federal Bank along with a memo to Canara Bank, Perambra Branch.  This cheque along with the memo was misplaced in the Canara Bank branch. Complainant got the message that they will search out and inform the complainant.  Later on complainant was given a photocopy of the letter received from Canara Bank and the memo “ payment stopped by the drawer”.  The complainant had several times approached the Syndicate bank to get back the cheque in the name of the complainant or to make available the cheque amount to the complainant.  The first opposite party has not taken necessary action either to cash the cheque amount or to get back the cheque in the name of the complainant.  The complainant could not take any action for cashing the cheque amount as the bank did not return back the uncashed cheque.  The complainant alleges that because of the negligence and deficiency of service on the part of the opposite parties he had to suffer a great deal.  Complainant had to face financial loss, mental agony and many other hardships.  Hence complainant has filed this petition seeking relief from both opposite parties.

            Opposite party-1 has filed the version denying averments contained in the petition.  The first opposite party submits that the averments contained in Paragraph-3 of the complaint is true and correct.  First opposite party admits the fact that the complainant is maintaining S.B. account with the first opposite party.  The first opposite party also admits that the complainant had entrusted a cheque dated 22-3-06 drawn on Federal Bank, Perambra to first opposite party for collection.  The mentioned cheque was returned by Federal Bank, Perambra with the endorsement “payment stopped by the drawer on 22-4-06.  The aforesaid cheque was returned by Federal Bank, Perambra to the second opposite party.  The first opposite party denies the contention in Para-4 of the complaint that the complainant has repeatedly contacted the first opposite party for details regarding the cheque given for collection.  The first opposite party submits that the second opposite party who had received the cheque from Federal Bank, Perambra had misplaced the same and was not in a position to return the said cheque to the first opposite party.  The first opposite party had never received back the cheque from second opposite party Canara Bank, Perambra.  The said cheque was misplaced at the second opposite party branch.  The complainant was duly informed about the fact that the cheque had been misplaced at the hands of second opposite party and first opposite party was not responsible for loss of the cheque.  There was no negligence on the part of first opposite party.  The first opposite party had taken all the necessary care that is expected of a collecting bank. The first opposite party had promptly responded to the legal notice issued by the complainant.  As there is no negligence or deficiency on the part of the first opposite party, the first opposite party is not liable to pay any amount to the complainant.  Hence complaint is liable to the dismissed.

            The second opposite party filed a version contending that the complaint is not maintainable, the complainant has no locus standi to file a complaint of this nature.  The complainant is not entitled to any relief claimed in the complaint.  Opposite party-2 admits the fact that a cheque has been received by opposite party-2 drawn on Federal Bank Ltd., Perambra dated 25-1-06 bearing cheque No. 075189 for an amount of Rs.40000/- from the first opposite party for collection. The second opposite party being the collecting bank had sent the cheque for clearing to the Federal Bank Ltd.  The said  cheque was returned by the Federal Bank along with a memo stating that “payment stopped by drawer”.  The second opposite party had received the cheque and the memo but the cheque happened to be misplaced somewhere.  The employees of second opposite party had made earnest efforts to trace out the misplaced cheque but it could not be found.  So the second opposite party sent a memo to the first opposite party informing the loss of the cheque.  The averments in the complaint that the complainant could not proceed legally against the person who issued the cheque to recover the amount is not true.  The fact that the cheque was issued and it is dishonoured can be proved by the complainant in the proceedings to recover the amount.  The complainant had not made any effort to proceed legally against the person from whom the above mentioned amount is due.  The second opposite party is not liable to  pay the cheque amount as the person who had  given the cheque should pay the cheque amount. The complainant has all the right to retrieve the cheque amount from the person who has issued the cheque.  The second opposite party is not liable to pay any amount.  The petition is liable to be dismissed with costs.

            The question for consideration is whether the complainant is entitled to get the relief sought?

            PW1 was examined and Ext.A1 to A4 were marked on complainant’s side.

            The case of the complainant is that he had a S.B. account in first opposite party bank.  He had presented the cheque for an amount of Rs.40000/- drawn on Federal Bank Ltd. Perambra dated 25-1-06 bearing cheque No.075189.  Canara bank, the second opposite party was the collecting bank.  The second opposite party had sent the cheque for clearing to the Federal Bank Ltd.  The cheque was returned by Federal Bank along with a memo stating that “payment stopped by drawer”.  The second opposite party had received the returned back  cheque and memo.  But the cheque happened to be misplaced.  Both opposite party-1 and opposite party-2 admits the fact that the complainant had an account in opposite party-1 bank, he had presented a cheque for an amount of Rs.40000/- in the opposite party-1 bank.  Opposite party-1 bank had sent the cheque to the opposite party-2 bank for collection.  According to the second opposite party this said cheque was returned back along with a memo “payment stopped by drawer”.  The cheque was misplaced at the hands of opposite party-2 bank.  Opposite party-2 admits the missing of the cheque.  Opposite party-2 in their version has stated that employees of opposite party-2 bank had taken efforts to trace the missed cheque but in vain.  Opposite party-2 admits the fact that they had misplaced the cheque they could not trace back the said cheque.  From the evidence of PW1 and Exts.A1 to A4 the Forum has been convinced that opposite party-2 was not efficient enough to take care of the instruments entrusted with them.  In our opinion this is a gross negligence on the part of second opposite party.  But the complainant is claiming the whole cheque amount of Rs.40000/- from opposite parties-1 and 2.  In our opinion the complainant can take necessary steps to get the cheque amount from the person who has issued the cheque.  Both opposite party-1 and 2 had intimated the complainant about the memo stating payment stopped by the drawer.  This fact is sufficient for the complainant to take steps against the person who has issued the cheque and get the amount but this does not leave the second opposite party scot free.  It has come out from the evidence that second opposite party was negligent in taking care of the cheque.  The second opposite party is liable to return back the cheque if it is not honoured.  Misplacing the cheque in such a manner that it is not traceable is a gross negligence. We have no hesitation to say that the second opposite party a banking institution was negligent in dealing with the complainant’s cheque.  In our opinion second opposite party is liable to compensate the complainant for the mental agony and hardship caused to the complainant

            In the result the petition is partly allowed and opposite party-2 is directed to pay a compensation of Rs.5000/- to the complainant along with cost of Rs.500/-.

Pronounced in the open court this the 20^th day of December 2008.

            Sd/-PRESIDENT                                                        Sd/-MEMBER

APPENDIX

Documents exhibited for the Complainant:

A1            Photocopy of lawyer notice sent for the complainant.

A2            Photocopy of the postal registration receipt.

A3            Photocopy of the reply to Ext. A1 lawyer notice.

A4            Photocopy showing address of Regd. Post with A/D cover.

Documents exhibited for the opposite parties.

Nil.

-/True copy/-

Sd/-President

(Forwarded/By Order)

Senior Superintendent