DOF.17.2.07

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR

Present: Sri.K.Gopalan:  President

Smt.K.P.Prethakumari:  Member

Smt.M.D.Jessy:               Member

                                                  Dated this, the 15^th   day of  May  2010

C.C.No.32/2007

P.P.Muhammadali,

Olankayil House,

P.O.Uliyil,

Kannur Dist.                                                                 Complainant

1. Manager,

   Syndicate Bank

   Panoor Branch,

   P.O.Panoor.

2. Chairman,

   Syndicate Bank,   Head office,

   P.O.Manippal,

   Karnataka state                                             Opposite parties

O R D E R

Sri.K.Gopalan, President

            This is a complaint filed under sectin12 of consumer protection Act for an order directing the opposite party to pay compensation for an amount of Rs.10000/- with interest @12% as damages from 10.9.02 and the cost of these proceedings.

            The case of the complainant in brief is as follows: One Muhammed Muhesin issued a cheque dt.1.9.03 to complainant. Complainant presented this cheque for collection through 1^st opposite party. Cheque was bounced due to insufficient fund. But 1st opposite party did not return the cheque and the memo. Hence he could not take legal action for recovering the amount against Muhesin and thereby sustained a loss to the tune of Rs.10, 000/- with its interest. Complainant approached many times to give back the cheque and memo but nothing done except mere promise. Finally on 26.2.05 when the complainant and P.P.Shabeer approached 1^st opposite party gave him a letter informing that the cheque was lost. But they were not ready to give the compensation for the loss sustained by the complainant. On 7.6.06 complainant sent legal notice but 1^st opposite party sent reply with untrue facts saying that they have sent the cheque to complainant in time. The above cheque lost due to the negligence on the part of 1^st opposite party hence he is liable to meet the loss sustained by the complainant.

            Pursuant to the notice 2^nd opposite party entered appearance and filed version contending that the following. The compliant is not maintainable. The allegation that Rs.10,000/- is due from Muhmmed Muhasin is not correct. The complainant could not initiate legal action against Muhammed Muhasin on account of non-receipt of cheque and memo is also not correct. The complainant can take necessary legal action against Muhammad Muhasin to recover the amount if any even in the absence of cheque and memo. The loss of cheque does not have any material effect since the amount due can be realized by legal steps. The first opposite party sent the cheque by reregistered post to the complainant in the address given by him at the time of opening the account. The complainant received the cheque and the memo and based on that he issued notice dated 24.9.04 to Muhammed Muhasin through complainant’s Advocate Moidu. He did not take follow up action after issue of this notice. The bank issued a letter dated 26.2.05 to the complainant for enabling him to take legal action. Now the complainant misused it and filed this complaint. The allegation that no reply was sent to complainant is not correct. Proper reply was sent on 1.11.06 to the complainant through his advocate. The loan availed from the complainant by Muhammed Muhasin was on 10.9.02. The complainant received cheque dated 1.9.03. The complaint issued letter to Muhasin on 24.9.04. The complainant should have taken action against Muhasin on or before 9.9.05 which he did not take. This complaint is filed knowing well that he cannot recover the amount from the complainant in normal course. The complainant is not entitled to get any amount from the opposite party. This cheque is not encashed by anybody. As such complainant has not suffered any loss. The complaint has no merit. It is field on an experimental basis. Hence to dismiss the complaint.

            On the above pleadings the following issues have been taken for consideration.

1. Whether there is any deficiency on the part of opposite party?

2. Whether the complainant is entitled to get the relief as prayed for?

3. Relief and cost.

            The evidence consists of oral evidence of PW1 and Exts.A1 to A7 and B1.

Issue Nos. 1 to 3

            Admittedly complainant presented a cheque of Rs.10, 000/- bearingnumber85868 dt.1.9.03 for collection before 1at opposite party. The cheque was happened to be bounced due to insufficient fund but the cheuqe with memo did not return to the complainant.         

The case of the complainant is that the complainant could not take legal action for recovering the cheque amount from Mr.Muhesin, who issued the cheque since the cheque and memo has been lost  due to the negligence of the opposite party bank and thereby complainant sustained a damage of Rs.10,000/-.

            Ext.A1 is the lawyer notice dt.24.9.04 to Mr.Muhammed Muhasin calling upon to repay the sum of Rs.10, 000/- failing which he would take civil and criminal action. Complaint shows that the alleged cheque was dt.19.03. Thus it can be seen that complainant sent lawyer notice to Mr.Muhasin after one year. As per the cheque date it would be expired on 1.3.04. Complainant has not stated the date of presentation of the cheque. It might have been however, presented in bank before 1.3.04. Ext.A3 proves that complainant had presented the cheque before the bank for collection. This letter Ext.A3 issued by the bank reveals the admission of the bank that the alleged cheque No.85868 dt.1.9.03 for Rs.10, 000/- had been handed over to bank. It has also been admitted that the cheque had been sent to SBI Vadanappally for collection and returned by them due to insufficient funds. And further added that the cheque had unfortunately seen lost. Ext.A3 issued on 26.2.05.

            The opposite party contended that complainant was not eager or prepared to know about the fate of the cheque entrusted by him for collection and as the only option available, the 1^st opposite party sent the cheque and memo by registered post and the same was done due to deliberate inaction of the complainant in this regard. 1^st opposite party further contended that records maintained in the bank in the normal course of business, would reveal this fact, so also the relevant postal entry of sending the cheque and memo to the complainant. It is also contended that the complainant received the cheque and the memo and based on that he issued legal notice dated 24.9.04 to Muhammed Muhasin through advocate. But it is pertinent to note that opposite party adduced neither oral nor documentary evidence before the Forum to prove the above contended facts. If 1st opposite party sent cheque and memo by registered post it is easy to prove it by producing the acknowledgement. Opposite party also claims that the records maintained by them would reveal these facts. Then what is the reason for non production of those documents before the Forum. 1^st opposite party has no explanation to this question. Further more 1^st opposite party had issued a letter of information dated 26.2.05 to complainant stating clearly that the cheque and memo had already been sent to complainant. Opposite party contended that legal notice dated 24.9.04 sent to Mr.Muhasin though complainant’s Advocate based on the cheque and memo sent by 1^st opposite party. Then what is the necessity to issue the above said letter Ext.A3 dated 26.2.05. Bank has given a wonderful explanation ignoring the status of the bank. 1^st opposite party explains that they have issued such a letter dt.26.2.05 to assist the complainant for enabling him to take legal action against Muhasin on the request of the complainant for a letter from the Bank to the effect that the cheque was lost from the bank. A man of ordinary prudence will not be able to digest that a  reputed bank like Syndicate Bank will  commit such an official blunder that invites criminal liability for the  sake of a consumer. Hence it is better to believe it to be a plain lie. Hence we are of opinion that unless and until 1^st opposite party succeeded in proving that the alleged returned cheque and memo has been issued to complainant they cannot escape from the liability of deficiency in service. Ext.A3 dt.26.2.05 is the last communication received from the opposite party with respect to the subject matter, which entitled the complainant to initiate action before the Forum. Thus we held that 1^st opposite party is liable for the loss sustained by the complainant.

            It is contended strongly by the opposite parties that the complainant can take necessary legal action against Mr.Muhasin, who issued the cheuqe to recover the amount if any even in the absence of cheque and memo. But they have not explained the way in which it is possible. It is not possible to initiate a case under section 138 of N.I Act without cheque and memo. Successful civil action is also not possible without cheque and memo. It should also be considered that for the question of recovering amount depends upon several aspects legal and practical. A civil action to recover an amount against a person who is not having properly is practically worthless. Therefore the loss of cheque and memo has resulted in loss of scope of initiating legal action both criminal and civil as far as the complainant is concerned. It is a clear case of deficiency in service. Hence we are of opinion in that in the interest of justice the opposite party No.1 bank is liable to pay an amount of Rs.10, 000/- as damages and Rs.1000/- as cost of these proceedings. Taking into consideration the special situation, we are not awarding compensation and interest. Thus  the issues 1 to 3 are answered in favour of complainant and order passed accordingly.

            In the result, the complaint is allowed directing the 1^st opposite party to pay a sum of Rs.10, 000/-(Rupees Ten Thousand only) as damages and an amount of Rs.1000/- (Rupees One thousand only) as cost of this proceedings to the complainant within one month from the date of receipt of this order failing which the complainant is at liberty to execute the order as per the provisions of the consumer protection Act.

                  Sd/-                            Sd/-                                      Sd/-

            President                      Member                       Member

APPENDIX

Exhibits for the complainant

A1.Copy of the lawyer notice sent to opt

A2.Returned notice

A3.Letter dt.26.2.05 issued by OP

A4.Copy of the lawyer notice sent to oPs

A5 & 6.Postal AD cards

A7.Reply notice

Exhibits for the opposite parties                                     /forwarded by order/

B1.Undertaking slip of Ponnamma

Witness examined for the complainant                           Senior Superintendent

PW1.Complainant

Witness examined for the Opposite parties: Nil