BEFORE THE A.P STATE CONSUMER DISPUTES REDRESSAL COMMISSION AT HYDERABAD.
F.A. 493/2008 against C.C. 180/2005, Dist. Forum, Nellore
Between:
1) Syndicate Bank,
Sangam Branch
Sangam (V&M),
Nellore Dist.
2) Syndicate Bank,
Rep. by its Managing Director
H.O. Manipal,
Karnata State
3) Syndicate Bank,
Regional Office
Somajiguda, Hyderabad. *** Appellants/
Ops. 1,3 & 4
And
1) Boyella Venugopal Reddy
S/o. Ramana Reddy
Age: 43 years,
R/o. Hasnapuram
A.S.Pet, Mandal
Nellore Dist. *** Respondent/
Complainant
2) M/s. Nandi Agro Products
Rep. by its Chief Person-in-
Management, Shed No. 29
Phase-II, IDA Cherlapalli
Hyderabad-500 051. *** Respondents/
O.P. No. 2
Counsel for the Appellant M/s. M. V. Ramana
Counsel for the Respondent: M/s. M. Venkatanarayana (R1)
CORAM:
HON’BLE SRI JUSTICE D.APPA RAO, PRESIDENT.
&
SMT. M.SHREESHA, MEMBER.
MONDAY, THE TWENTY NINETH DAY OF NOVEMBER TWO THOUSAND TEN
ORAL ORDER: (Per Hon’ble Sri Justice D. Appa Rao, President.)
***
1) This is an appeal preferred by the opposite party bank against the order of the Dist. Forum directing it to pay interest on Rs. 1,12,000/- @ 9% p.a., from 10.2.2005 till the date of realization together with costs.
2) The parties are described as arrayed in the complaint for felicity of expression and avoid confusion.
3) The case of the complainant in brief is that he purchased a rice mill from R2 for Rs. 2,62,440/-, however the mill could not be delivered to him and as such R2 issued a cheque for Rs. 1,50,000/- on 10.2.205 and the same was encashed and for remaining balance he issued another cheque for Rs. 1,12,000/- in his favour drawn on Andhra Bank, Tirumulgiri branch of Secunderabad. He presented it with R1 bank. Despite his several visits he was not informed whether the cheque was cleared or not. Finally on 2.9.2005 R1 bank gave a letter stating that the cheque was returned for want of sufficient funds in the account of R2 and that the original cheque was lost. The very validity of the cheque being six months he could not issue notice as contemplated u/s 138 of N.I. Act within 30 days from the date of dishonour. He was entitled to Rs. 1,12,000/- from R2. This was all due to defective service of the bank. Therefore he got issued a registered notice for which the bank had given a false reply. Therefore he sought Rs. 1,12,000/- with interest @ 12% p.a., from the date of complaint till the date of realization together with compensation and costs.
4) R1 bank resisted the case. While denying each and every allegation made in the complaint, however it admitted that on 25.4.2005 the complainant had tendered a cheque issued by R2 drawn on his banker Andhra Bank seeking for collection and crediting the proceeds to his account. Accordingly, it despatched the cheque on 25.4.2005 to the Central Accounts Office, Hyderabad for local clearance. The cheque was promptly presented on 3.2.2005 but it was bounced for insufficient funds in the account of R2. However, in the course of transit the dishonoured cheque was lost. It has been making periodical calls to Central Accounts Office under intimation to the complainant. Despite information that the cheque was lost in transit the complainant did not show inclination to take steps on the strength of the certificate issued by it. It had entered the said fact in the records and informed the same to the complainant through its letter dt. 2.9.2005 depicting the status of entry with a request to obtain a duplicate instrument from R2. The contention that he lost the opportunity to re-present as the validity period of cheque would be six month had no basis. The complainant ought to have taken advantage of written communication addressed to him on 2.9.2005 for initiating action against R2 u/s 138 of N.I. Act. When the enquiry was conducted before the Dist. Collector, Nellore it has expressed its willingness to provide necessary information or certificate facilitating the complainant to prove dishonour of cheque and loss of instrument. The complainant admittedly bent upon collecting the amount from it. There was no deficiency in service on its part and therefore prayed for dismissal of the complaint with costs.
5) R3 & R4 filed a memo adopting the counter filed by R1.
6) R2 equally resisted the case. He was not concerned with the loss of cheque. As per the statement furnished by Andhra Bank, Tirumalgiri branch, Secunderabad the said cheque did not find a place. It is for the complainant and the bank to settle the matter. Therefore he prayed that the complaint against him be dismissed.
7) The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A8 marked while the bank filed the affidavit evidence of its Manager and filed Exs. B1 to B6.
8) The Dist. Forum after considering the evidence placed on record directed R2 to issue a cheque for Rs. 1,12,000/- in favour of complainant while the bank was liable to pay interest on Rs. 1,12,000/- @ 9% p.a., from the date of cheque viz., 10.2.2005 till the date of realization besides costs of Rs. 500/-.
9) Aggrieved by the said decision the bank preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective. It ought to have seen that interest could not have been directed to be paid at any rate from 10.2.2005 and therefore prayed that the appeal be allowed.
10) The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?
11) It is an undisputed fact that the complainant had deposited a cheque dt. 24.4.2005 for Rs. 1,12,000/- issued by R2 drawn on Andhra Bank, Tirumalgiri, Secunderabad and the said instrument was dishonoured on the ground of insufficient funds, however the cheque was lost. The bank had given a certificate to that effect on 2.9.2005. The bank alleges that based on the said letter the complainant could have filed a criminal complaint u/s 138 of N.I. Act against R2 for recovery of the amount. The question is whether there is deficiency in service on the part of the bank. Evidently the cheque was presented on 25.4.2005 from which the date he could not get interest. This fact was informed belatedly on 2.9.2005. The complaint was filed on 15.12.2005 after issuing notice and on receipt of reply from the bank. Necessarily the complainant was denied interest from 24.4.2005 the date on which the cheque was presented, however not from 10.2.2005. We may also state that the complainant even did not seek interest from 24.4.2005. What all he claimed was interest @ 12% p.a., from the date of complaint till the date of realization. When the complainant himself restricted his claim, the Dist. Forum was not correct in awarding interest from 10.2.2005. Therefore, we are of the opinion that this needs modification. The bank is directed to pay interest @ 9% p.a., from the date of complaint viz., 15.12.2005 till the date of realization together with costs of Rs. 500/- awarded by the Dist. Forum.
12) In the result the appeal is allowed in part modifying the order of the Dist. Forum. The bank is directed to pay interest @ 9% p.a, on Rs. 1,12,000/- from the date of complaint viz., 15.12.2005 till the date of realization together with costs of Rs. 500/- that was awarded by the Dist. Forum. However, there shall be no order as to costs in the appeal. Time for compliance four weeks.
1) _______________________________
PRESIDENT
2) ________________________________
MEMBER
Dt. 29. 11. 2010
*pnr
“UP LOAD – O.K.”
