Naveen Puri, President;

1        The complainant DalbirSingh has filed the present complaint under Section 11, 12 and 13 of the Consumer Protection Act (herein after called as 'the Act') against M/s Tycoonz Education Consultants Pvt. Ltd. (Opposite party No. 1) and Punjab National Bank Branch Tarn Taran Amritsar Road, Tarn Taran(Opposite Party No. 2) on the allegations of deficiency in service and negligence in service on the part of the opposite parties with further prayer to direct the opposite parties to pay full amount of lost cheque i.e. Rs. 50,000/- besides this, the complainant requests for damages and compensation of Rs. 20,000/- and Rs. 10,000/- as costs of litigation.

2        The case of the complainant in brief is that the opposite party No. 1 is in profession of providing guidance and counseling for immigration and other VISA formalities as such dealing in sending the youths in foreign countries. The complainant has approached the company for guidance, counseling, processing and documentation of its case for immigration to Canada and the opposite party No.1 has agreed to provide its services to the complainant on agreed fee and the complainant had firstly paid Rs. 60,000/- to the opposite party No. 1. It was settled that the opposite party No. 1 will return Rs. 50,000/- to the complainant after deducting Rs. 10,000/- if it becomes unable to send the complainant to Canada. Due to some technicalities i.e. due to paper work or for some other reasons, the opposite party No. 1 could not send the complainant to Canada. As per the stipulated terms and conditions, the opposite party No. 1 has agreed to pay back/ refund the amount of Rs. 50,000/- to the complainant. In this respect, in order to discharge its liability, the opposite party No. 1 has issued a cheque bearing No. 547384 dated 29.9.2015 drawn on Indusind Bank of the amount of Rs. 50,000/- to the complainant. The complainant has presented the above said cheque to the opposite party No. 2 for encashment in his account bearing No. 0454000108992509. The bank has sent the cheque for collection to drawing bank i.e. Indusind Bank, Amritsar through its collecting branch R.C.C. Amritsar and the cheque was returned with memo of insufficient balance, but the original cheque was lost by the bank in transit. The complainant has narrated all the facts to the opposite party No. 1 and has requested to refund his money i.e. Rs. 50,000/-  or to issue another cheque of the same amount but the opposite party No. 1 has insisted for the original lost cheque. The complainant has made several visits to the opposite party No. 2 for obtaining the original cheque but the original cheque could not be found by the opposite party No. 2 and the bank has given a certificate dated 26.10.2015 in this respect which clarifies that the cheque was dishnoured and it was lost by the bank. The complainant has sent the copy of memo, copy of certificate issued by the opposite party No. 2 and written request to the opposite party No. 1 for the refund of Rs. 50,000/- and requested that it was not his fault if the original cheque was lost as the same was lost by the opposite party No. 2 and it is very much clear that no amount from the account of the opposite party No. 1 was given to the complainant. Due to above said act of the defective services andunfair trade practice of both the opposite parties, the complainant has suffered a loss of Rs. 50,000/- for loss of cheque and the complainant has also suffered physical and mental harassment. Hence complaint was filed.

3        After formal admission of the complaint, notice was issued to Opposite Parties. The opposite party No.1 has duly served but the opposite party No. 1 did not appear and consequently, the opposite party No. 1 was proceeded against exparte vide order dated 21.3.2017.

4        Opposite Party No. 2 appeared through counsel and filed written version contesting the complaint on the preliminary objections that the complaint is not maintainable against the opposite party No. 2. The complainant has not made out the case regarding deficiency in service against the opposite party No. 2. The opposite party No. 2 has only presented the cheque which was lost in transit.  The complaint is liable to be dismissed against the opposite party No. 2. On merits, it is pleaded that said cheque was lost in transit but could not be traced despite efforts made by the bank but when opposite party No. 2 could not trace the cheque so issued the certificate ‘loss of instrument’. The opposite party No. 1 is still in existence so should issue the fresh cheque as earlier cheque was not encashed. The opposite party No. 2 is not liable and only opposite party No. 1 is liable. The opposite party No. 2 denied all the other allegations and prayer was made for dismissal of the complaint with costs. 

4        Sufficient opportunities were granted to the parties to lead evidence in order to prove their respective case. The Ld. counsel for the complainant tendered in to evidence affidavit of complainant Dalbir Singh Ex. C-1, alongwith documents Ex. C-2 to Ex. C-9 and closed the evidence and thereafter,the opposite party No. 2 tendered in evidence affidavit of RakeshKapoor Senior Manager Ex. OP 2/1 and closed the evidence.

5        We have heard the Ld. Counsel for the complainant and opposite party No. 2 and have gone through the evidence and documents placed on the file by the parties.

6        We have carefully examined and considered the evidence along with its supporting documents as available on ‘records’ of the proceedings in the backdrop of the arguments as put forth by the learned counsels for the participating litigants along with the scope of ‘judicial inference’ that may be statutorily as well as discretionarily drawn on account of primes and collaterals including ‘non-submission’ of some probable documentary evidence determined to assist the present resolve. We find that the present complaint pertains to the subsequent adjudication of the statutory, as well as the customary ‘liability’ in practice determined upon the Collecting Banks for the loss of negotiable-instrument deposited for collection purposes, by the A/c Holder payee.

7        We observe that the complainant has clearly and firmly deposed vide affidavit Ex.C1 that the ‘cheque’ alleged to have been lost/ misplaced (in transit) by the OP2 Bank was issued (subsequent to much persuasive efforts) by the OP1 Immigration Consultant as that of refund for Rs 50,000/- and ‘has further refused to issue another refund-cheque in lieu of the lost one. Further, the OP1 consultant is not presently traceable as has not been available on the recorded address and has been thus ordered to be proceeded against ex-parte. On the other hand, the OP2 Bank has admitted the ‘loss’ of cheque (in transit) as was deposited for collection and has also issued the requisite ‘certificate’ to enable the payee complainant to get another cheque, issued afresh, in lieu of the lost one.    

8        The complainant has further produced documentary evidence exhibited here in the present proceedings as Ex.C1 to Ex.C9 to support the contents of his complaint and has finally pleaded through his learned counsel that the opposite parties be directed to pay the full amount of the lost cheque along with cost and compensation since he has been deprived of the statutory legal remedy under the provisions of the NI Act, 1882, towards recovery of the proceeds of the lost cheque. In order to support his above pleadings the learned counsel has also cited the judgment of honorable NCDRC, New Delhi in RP # 649/ 2012/Appeal # 3356/ 2011 titled ICICI Bank Ltd., vs. Sonnegowda&Ors 2012(2) CPJ 370; CPC 327 and CPR 319; wherein it was conclusively observed as: ‘….. the complainant did neither receive back the bounced cheque nor the sum of the cheque thus he has been deprived of his legal right to file a case U/s 138 of the NI Act. Negligence and mistake has been committed by the petitioner Bank in not returning the cheque to the complainant then the petitioner Bank alone is liable to compensate the loss suffered. Order passed by the Fora below upheld. Costs of Rs 10,000/- be also awarded.’ …….  However, we find that on account of divergent ratios the above cited judgment does not fully assist the complainant since in the instant case the unpaid returned cheque in question was inadvertently delivered to its ‘drawer’ whereas in the present case the cheque stands lost in transit and there has been no evidence as to its subsequent payment by the drawee Bank.

9        The learned OP Bank has in turn submitted that the complainant has a legal right to procure cheques from the drawer in lieu of the lost cheques by virtue of section 45-A of the NI Act’ 1981 and also in line with the acceptable legal proposition by virtue of a plethora of senior court judgments. The complainant has legal remedy available in his favor to statutorily procure ‘fresh’ cheque from the drawer in lieu of the lost cheque and the collecting Bank shall fully assist him in the prescribed remedial process. However, we are not convinced with the submissions as put forth here by the Learned counsel for opposite party No.2.

10      In the light of the all above, we partly allow the present complaint and thus direct the titled OP2 Bank to pay an amount of Rs 20,000/- to the complainant as compensation for having suffered pecuniary loss and harassment on account of the lost cheque besides to pay him Rs 5,000/-as cost of the present litigation and future process of recovery of the proceeds of the lost cheque, in question. The OP Bank shall ensure compliance of the present orders within 30 days of receipt of its copy otherwise the awarded amount shall attract interest @ 9% PA from the date of the orders till actual payment. The complainant shall be at liberty to recover his ‘refund-amount/ proceeds of the lost cheque’ from the OP1 consultant by adopting a legal remedy of his choice as available in law and in that case he shall also be entitled to avail relaxations for the time spent here, before the forum, as per the provisions available under the law of limitation. 

11      Copy of the orders be communicated to the parties free of charges. After compliance, file be consigned to record.