FA  102  of 2010   against C.C. 32/2008 , Dist. Forum,  Nellore

Between:

The Branch Manager

Andhra Bank, Plot No. 15,

Ward No. 21, Balaji Nagar,

Nellore Dist.

Rep. by its Senior Manager.                       ***                         Appellant/

          O.P. No. 1.

                                                                    And

Mudivarthi Radha Krishna

S/o. Raghavender Rao

Age: 40 years,

D.No. 27-2-56, Balaji Nagar

Nellore.                                                       ***                         Respondent/

                                                                                                Complainant

Counsel for the  Appellant:                         M/s. K. Vijay Kumar Reddy

Counsel for the  Respondents:                   M/s. C. P. Suresh

CORAM:

HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT

                                                                   &

                                          SRTI T. ASHOK KUMAR, MEMBER.
                                                         

WEDNESDAY, THIS THE FIFTH DAY OF OCTOBER TWO THOUSAND ELVEN

ORAL ORDER:  (Per Hon’ble Sri Justice D.Appa Rao, President)

***

1)                This is an appeal preferred by  the opposite party Andhra Bank    against the order of the Dist. Forum directing it to pay Rs. 50,000/-  with interest @ 9% p.a., from the date of complaint till the date of realization.

2)                The case of the complainant in brief is that  he presented a cheque  dt. 20.6.2007 for Rs. 50,000/-  with the appellant bank  on 17.12.2007 valid up to 20.12.2007.  The said cheque was returned  on the ground that it was stale.    It could not  have been a stale cheque.    The appellant bank did not send the said cheque on the same day.  On  that he issued a legal notice for which a reply was given with false allegations.   In order to get over its liability  it was alleging that it has sent  through messenger  to Allahabad Bank, Hyderabad.   Though he and his family members were having various accounts  the appellant bank did not take any interest  in sending the cheque as soon as it was  presented.  He had lost an opportunity  to take action against  one M. Kameshwari  who had issued the cheque.    Therefore he claimed Rs. 50,000/- covered under the cheque with interest @ 24% p.a.,  Rs. 50,000/- towards mental agony and costs. 

3)                 The appellant bank resisted the case.   It admitted that the cheque dt. 20.6.2007 for Rs. 50,000/- was presented on 17.12.2007  to be collected at  Allahabad Bank, Hyderabad.  Immediately  it forwarded the said cheque  through Speed & Safe Courier  evidenced by receipt as well as despatch register.    Andhra Bank at Hyderabad  made acknowledgement as to receipt of  cover.    However, Allahabad Bank, Hyderabad  returned the cheque  on 20.12.2007 with endorsement  that it was a stale cheque.    It was not responsible for subsequent events happened in relation to the said cheque.   As per the banking rules  the validity of cheque ends  by 20.12.2007 and  he could have presented at least 15 days before expiry so as to enable the appellant bank  to collect the proceeds as desired by the complainant.    He did not mention as to why he did not present the said cheque within reasonable period from  20.6.2007.    He cannot blame it for his lapses when he himself was blameworthy.   The cheque was presented just three days prior to date of expiry.    As per the rules the bank cannot send the cheque directly to  Allahabad Bank at Hyderabad.   It has to send the cheque through service branch of Andhra Bank at Hyderabad.  The complainant was not entitled to any amounts claimed.   There was no deficiency in service on its part and therefore prayed for dismissal of the complaint with costs. 

4)                The complainant in proof of his  case filed  his affidavit evidence and got Exs. A1 to A5 marked while the appellant bank filed the affidavit evidence of its  Senior Branch Manager and got Exs. B1 to B6 marked.

5)                The Dist. Forum after considering  the evidence placed on record opined that non-filing of cheque return memo bearing stamp and seal of the receiving bank  proves that there was deficiency in service on the part of appellant bank in sending the cheque for  collection belatedly, and therefore directed the bank to pay Rs. 50,000/- covered under  the cheque  with interest @ 9% p.a., from the date of complaint till the date of realization. 

6)                Aggrieved by the said decision, Andhra Bank the opposite party preferred the appeal contending that the Dist. Forum did not appreciate either facts or law in correct perspective.    It ought to have seen that  on the date of presentation of cheque  on 17.12.2007 it was sent to  Andhra Bank, Hyderabad for collection through  courier service under acknowledgement dt. 18.12.2007, and the Allahabad Bank to which cheque was sent  had returned on the ground that  it was stale.    It has no concern  when Allahabad Bank  returned  on the ground that it was ‘stale’.  The complainant ought not to have presented the said cheque  even without giving breathing  time.     He ought to have presented at least 15 days prior to expiry date so that amount could be collected, more so, when it was an outstation cheque.   Therefore the amount covered under the cheque cannot be collected from it, even when the amount was liable to be paid by issuer of the cheque.    Its role is limited.  As a facilitator it cannot be directed to pay the amount covered under the cheque.

7)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

8)                 It is an undisputed fact that the complainant presented a cheque  dt.  20. 6. 2007 for Rs. 50,000/- issued by one  M.  Kameshwari with the appellant bank at Nellore  on 17.12.2007 payable by  Allahabad Bank, Himyathnagar, Hyderabad.   The validity of the cheque is six months  valid up to 20.12.2007.   No reason whatsoever was mentioned as to why  the complainant  has chosen to keep the cheque for 5 months and 27 days  and presented just when it was  going to be expired within three days.    It is not a cheque where the amount could be collected within local limits of the same bank.  While the cheque was presented  in the appellant bank at Nellore the amount had to be collected from  another bank  viz., Allahabad Bank, Hyderabad.      Allahabad Bank, Hyderabad returned the cheque  with endorsement  ‘stale cheque’.    The question is whether  there is any negligence  on the part of the appellant bank in sending the cheque  to Allahabad Bank, Hyderabad  for collection.    It is not in dispute that the cheque  was presented before the appellant  bank on  17.12.2007 and the bank in its turn entrusted the same to Speed & Safe Courier service  on the very same day vide Ex. B2 courier receipt and also entries in the register  maintained by the bank  Ex. B1.    It was received in Andhra Bank Service branch at Hyderabad on 18.12.2007 evidenced under acknowledgement Ex. B3. 

9)                 Allahabad Bank, Hyderabad returned the cheque on the ground that it was ‘stale’.    Importantly, the complainant did not choose to file the cheque  return memo though he was in receipt of the same through appellant bank.    It is an important document to prove  as to when  Allahabad Bank  received it.    It is not known  why the complainant did not implead Allahabank Bank  as a party   to which cheque was sent for collection  and the bank that was instrumental  in returning the cheque on the ground that it was a stale one.  When the appellant immediately sent the cheque  for collection through its  service branch at Hyderabad  no negligence or deficiency in service could be attributed to the appellant bank.    It is not the complainant’s case that the cheque was presented with the Allahabad Bank  belatedly before expiry of the date or that  Allahabad Bank  had returned  the cheque without any justifiable cause. 

10)              At the cost of repetition, we may state that the complainant had waited all through for a period of 5 months and 27 days.  Just  three days prior to expiry  of the cheque period presented it at Nellore for collection of amount at Hyderabad bank.    If anybody could be found fault in the entire transaction   it was the complainant who could be found fault.    There is no reason why  he should wait  for six months for presentation of a cheque in the appellant bank.    Obviously he intends to create a cause of action  for recovery of the amount from the appellant bank which had no concern  in the transaction  covered under the cheque.    It is not known how the complainant is alleging  that he has lost an opportunity to file a complaint against  the person who had issued the cheque.  We do not intend to discuss the validity of the complaint if it is filed for the purpose of reckoning  date of return of the cheque.  Instead of taking action against  Allahabad Bank   which  had returned   the cheque on the ground that it was a stale one,     he intends to collect the amount from the appellant bank  which has nothing to do with except sending the cheque for collection.    On the day when the complainant has presented   the cheque the same was sent on the very same day.  Absolutely there is no delay on the part of appellant bank in forwarding the cheque for recovery of the amount.  As pleaded  by the appellant bank it cannot be made liable for the delays that are attributable at  some other end.    As rightly pleaded  if there was any delay it was complainant who was guilty of delay in presentation of cheque just three days prior to expiry of cheque. More so, when it was an outstation cheque he ought to have presented  well in advance to enable the appellant bank to collect the amount.     He cannot present the cheque at the eleventh hour,  and then complain that there was delay, and that  constitutes deficiency in service. 

11)               We may also state that the complaint for the reasons not  known did not implead  Allahabad Bank,  Himayathnagar, Hyderabad  as a party which had returned the cheque  on the ground that it was stale.  The appellant could prove by  irrefutable documentary evidence  on the day when the complainant had presented the cheque  it has sent  on the very same day for collection of amount to Hyderabad.   Subsequent events were not in the hands of appellant bank  in order to find fault   nor  any deficiency in service attributable to Allahabad Bank at Hyderabad.     Importantly he has suppressed the document viz., cheque return memo, obviously he was afraid that entire case falls to ground.   Considering the circumstances, we are unable to  fix liability  on the appellant bank nor we can say that there was  deficiency in service on its part.   The complainant is guilty of  his own acts by presenting the cheque just three days before expiry.   We do not subscribe to the view expressed by the Dist. Forum in  this regard.  

12)               In the result the appeal is allowed setting aside the order of the Dist. Forum.  Consequently the complaint is dismissed with costs computed at Rs. 2,000/-.  Time for compliance four weeks. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

                                                                                       05/10/2011

*pnr

UP LOAD – O.K.