KERALA  STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION

                    VAZHUTHACADU    THIRUVANANTHAPURAM

APPEAL  NO: 84/2009

                                 JUDGMENT DATED:14..06..2010.

PRESENT

SMT. VALSALA SARANGADHARAN                : MEMBER

SRI. M.V. VISWANATHAN                                    : JUDICIAL MEMBER

The Manager,

State Bank of Travancore,

Main Road, P.B.No.1,                                            : APPELLANT

Pattambi-679 303.

(By Adv:Sri.M.Nizamudeen)

            Vs.

1.         Narayanankutty.K,

S/o Kunjan Nair,

Kondoti House, P.O. Puruthur,

Via Pallippuram, Ottappalam-

Taluk, Pallakkad.

(By Adv:Sri.K.S.Vijayakumar)

                                                                        : RESPONDENTS

2.         P.Bhaskaran, S/o Velu Asari,

Pakathu House, P.O. Puruthur,

Via Pallippuram, Ottappalam-

Taluk, Pallakkad.

(By Adv:M/s P.Pradeep & R.Balakrishnan)

                                                JUDGMENT

SHRI.M.V. VISWANATHAN: JUDICIAL MEMBER

Appellant was the 1^st opposite party and respondents 1 and 2 herein were the complainant and 2^nd opposite party respectively in CC.151/06 on the file of the CDRF, Palakkad.  The complaint therein was filed alleging deficiency of service on the part of the 1^st opposite party, the Manager, State Bank of Travancore, Pattambi branch in causing financial loss of Rs.81,025/- with interest accrued thereon and also in the failure of the 1^st opposite party in returning the dishonoured cheque for Rs.1,00,000/- which was presented for encashment.  Thus, the complainant claimed a sum of Rs.81,025/- with interest thereon which was shown as the balance amount in the SB account No.57061727919 in the name of the complainant and also for compensation of Rs.5000/- for the mental agony and hardship suffered by the complainant.

2. The 1^st opposite party entered appearance and filed written version denying the alleged deficiency of service.  He contended that the cheque dated:31/3/2006 for Rs.1.lakh presented on 3/4/2006 was returned with the endorsement that ‘no sufficient fund’ and that the complainant had withdrawn Rs.20,000/- on 21/4/2006 and there was overdrawing of Rs.18,963/- by the complainant/account holder.  The complainant was requested repeatedly for remittance of the overdrawn amount and to regularize the SB account.  But the complainant failed to remit the overdrawn amount.  A registered letter dated:6/5/2006 was also issued to the complainant for remitting the overdrawn amount.  Then also he failed to remit the amount as demanded.  Thereafter, a lawyer notice dated:5/7/2006 was issued to the complainant demanding remittance of the overdrawn amount.  The complainant sent a reply lawyer notice stating untenable contentions.  So, the 1^st opposite party filed a suit as OS.1/07 before the Munsiff Court, Pattambi on 21/12/2006 to recover the overdrawn amount with interest and cost.  The complainant is not entitled to get Rs.81,025/- as claimed.  In fact the complainant had to remit the overdrawn amount of Rs.18,963/-.  The complainant is not a consumer as per Sec.2(1)(d) of the Consumer Protection Act,  since there is only a debtor-creditor relationship between the complainant and the 1^st opposite party bank.  Thus, the 1^st opposite party prayed for dismissal of the complaint with cost.

3. 2nd opposite party the person said to have issued the cheque for Rs.1.lakh filed written version denying issuance of the cheque bearing registration No.109261 drawn on the Punjab National Bank, Pallippuram branch dated:31/3/2006.  He also denied his liability to pay the said amount of Rs.1.lakh to the complainant.  It is further contended that the 2^nd opposite party is an unnecessary party and the complaint filed against him is to be dismissed.

4. Before the Forum below the complainant and the 1^st opposite party filed proof affidavit in support of their respective pleadings.  Ext.A1 to A4 documents were marked on the side of the complainant and B1 on the part of the 1^st opposite party.  No evidence was adduced by the 2^nd opposite party.  On an appreciation of the evidence on record, the Forum below passed the impugned order dated:31^st December 2008 directing the 1^st opposite party to pay an amount of Rs.81,025/- being the balance amount credited and an amount of Rs.20,000/- as compensation with cost of Rs.1000/- to the complainant.  1^st opposite party is also made liable to pay interest at the rate of 9% per annum from the date of impugned order till realization.  Hence the present appeal.

5. We heard the learned counsel for the appellant/1^st opposite party and the 1^st respondent/complainant.  There was no representation for the 2^nd respondent/2^nd opposite party, though vakalath has been filed for the 2^nd respondent.   The learned counsel for the appellant submitted his arguments based on the grounds urged in the memorandum of the present appeal.  He pointed out the statements in Exts.A1 and A2 notices issued by the 1^st opposite party bank to the complainant and argued for the position that the cheque dated:31/3/2006 for Rs.1.lakh presented for encashment was dishonoured and returned from the Punjab National Bank, Pallippuram branch and thereby the complainant/account holder had over drawn an amount of Rs.18,975/- by withdrawing a sum of Rs.20,000/- on 21/4/2006.  He further submitted that the dishonoured cheque has been produced before the Munsiff Court Pattambi in OS.1/07 filed by the appellant/1^st opposite party as plaintiff against the 1^st respondent/complainant as the defendant.  He also drew our attention to B1, the certified copy of the plaint in the suit OS.1/07 on the file of Munsiff Court, Pattambi.  He also submitted that the complainant never demanded return of the dishonoured cheque by remitting the overdrawn amount of Rs.18,975/- with interest accrued thereon.  Thus, the appellant prayed for setting aside the impugned order passed by the Forum below.  On the other hand, the 1^st respondent/complainant supported the impugned order passed by the Forum below and argued for the position that there was deficiency of service on the part of the appellant/1^st opposite party bank due to their failure in returning the dishonoured cheque and due to that deficiency the complainant could not proceed against the 2^nd opposite party who issued the said cheque for Rs.1.lakh  towards his liability to the complainant.  Thus, the 1^st respondent prayed for dismissal of the present appeal.

 6. The points that arise for consideration are:-

1.                            Whether there was any deficiency of service on the part of the appellant/1^st opposite party  (State Bank of Travancore, Main road, Pattambi branch) as alleged by the 1^st respondent/complainant?

2.                            Whether the Forum below can be justified in passing the impugned order against the 1^st opposite party bank directing to pay an amount of Rs.81,025/- being the balance amount credited in the SB account of the complainant and also to pay a further sum of Rs.20,000/- as compensation with cost of Rs.1000/-?

7. Points 1 and 2:-

Appellant/1^st opposite party, State Bank of Travancore, Pattambi had taken the contention that the 1^st respondent/complainant is not a consumer as defined under Sec.2(1)(d) of the Consumer Protection Act and that the relationship between the complainant and the 1^st opposite party/bank is that of a debtor and creditor.  Admittedly the complainant had  opened the SB account along with his wife with the 1^st opposite party/State Bank of Travancore, Pattambi branch.  The complainant as the customer of the 1^st opposite party presented the cheque for Rs.1,00,000/- drawn on Punjab NationalBank, Pallippuram branch issued in the name of the complainant by the 2^nd opposite party P.Bhaskaran.  Thereby the complainant availed the service of the 1^st opposite party bank for getting the said cheque encashed through the 1^st opposite party bank.    The definition given for the term ‘service’ under Sec.2(1)(O) of the Consumer Protection Act would make it clear that the service or facilities availed in connection with banking is to be treated as service coming within the purview of the Consumer Protection, 1986.  The case of the complainant is that there was deficiency of service on the part of the 1^st opposite party bank in the said transaction related to the said cheque entrusted for encashment.  So, the complainant can be considered as a consume as defined under sec.2(1)(d)(ii) of the Consumer Protection Act, 1986.  Thus, the Forum below had the jurisdiction to entertain the complaint in CC.151/06.

8. The next aspect for consideration is regarding the alleged deficiency of service on the part of the 1^st opposite party, bank.  It is to be noted that the 1^st opposite party bank is the Manager of State Bank of Travancore, Pattambi branch.  The complainant was having the SB account with the State Bank of Travancore, Pattambi.  Ext.A4 SB account passbook issued by the 1^st opposite party in the name of the complainant and his wife would show that the complainant was having the transaction with the 1^st opposite party bank.  It is an admitted fact that the complainant (1^st respondent herein) presented a cheque dated:31/3/2006 drawn on Punjab National Bank, Pallippuram branch and that the said cheque for Rs.1,00,000/- was issued by the 2^nd opposite party, P.Bhaskaran.  It is true that the 2^nd opposite party has filed written version stating that he has not issued any such cheque to the complainant, Narayanankutty.K.  But no evidence has been adduced by the 2^nd opposite party other than filing the version and an affidavit.  He was not available for cross-examination by the complainant and the 1^st opposite party.  But the documentary evidence on record would show that such a cheque was issued by the 2^nd opposite party in favour of the complainant for an amount of Rs.1.lakh and the said cheque was drawn on Punjab National Bank, Pallippuram branch and it was dated:31/3/2006.

9. There is rival contention regarding the date of presentation of the said cheque.  According to the complainant he presented the said cheque for Rs.1.lakh drawn on Punjab National Bank, Pallippuram branch for encashment on 31/3/2006 itself.  On the other hand, the 1^st opposite party, State Bank of Travancore, Pattambi branch would contend that the said cheque was presented before the 1^st opposite party bank only on 3/4/2006.  The complainant and the 1^st opposite party have filed affidavits in support of the said case.  Thus, there is oath against oath regarding the date of presentation of the said cheque for Rs.1.lakh drawn on Punjab National Bank, Pallippuram branch. But the complainant has not adduced any acceptable evidence to support his case that he presented the said cheque for encashment on 31/3/2006 itself.  On the other hand, A4 passbook would only show that the said cheque for Rs.1.lakh has been credited on 3/4/2006.  It is to be noted that the cheque will be presented along with pay in slip duly filled with counter foil.  On presentation of the said cheque with the pay in slip, the account holder will get the counter foil of the pay in slip.  But the complainant who presented the cheque for Rs.1.lakh has not produced the aforesaid counter foil of the pay in slip.  It is also to be noted that the complainant has not taken any step to get the pay in slip or the said cheque itself produced before the Forum below.  On the other hand, the available document namely A4 passbook issued in the name of the complainant would show that the said cheque for Rs.1.lakh was credited on 3/4/2006.  This circumstance would support the case of the 1^st opposite party bank that the complainant presented the cheque on 3/4/2006 and at the request of the complainant the amount covered by the said cheque was credited in his SB account on 3/4/2006 itself.  It is too much to believe the case of the complainant that he presented the cheque for encashement on 31/3/2006 and that the amount covered by the said cheque was credited in his SB account on 3/4/2006.

10. The 1^st opposite party bank issued A1 registered notice dated:6/5/2006.   In the A1 notice it was specifically stated that the cheque for Rs.1.lakh dated;31/3/2006 submitted by the complainant on 3/4/2006 and the same was returned unpaid on 22/4/2006.  It is further stated that the complainant withdrew an amount of Rs.20,000/- from his SB account on 21/4/2006 and thereby there was a debit balance of Rs.18,975/- in the said SB account.  Thereby the complainant was requested to remit the overdrawn amount immediately.  The acceptance of A1 notice is admitted by the production of the same by the complainant.  There is no case for the complainant that he issued any reply to A1 registered notice.  Had there been any dispute regarding the fact stated in A1 notice with respect to the presentation of the cheque on 3/4/2006, the complainant should have sent a reply to the said notice.  It could be seen that as early as on 6/5/2006 the 1^st opposite party was definite on his stand that the said cheque for Rs.1.lakh was presented for encashment on 3/4/2006.  Thus, the available circumstances and evidence on record would only show that the complainant presented the said cheque dated:31/3/2006 for encashment on 3/4/2006.

11. There is no material available on record to show that the said cheque was encashed on 3/4/2006.  On the other hand, the 1^st opposite party has very much contended that the said cheque for Rs.1.lakh drawn on Punjab National Bank, Pallippuram branch was returned unpaid on 22/4/2006.  This fact regarding returning of the said cheque by the Punjab National Bank, Pallippuram branch is categorically stated in A1 registered letter issued by the 1^st opposite party bank to the complainant.  The dishonour and return of the said cheque unpaid would make it clear that the said cheque amount of Rs.1,00,000/- credited in the account of the complainant on 3/4/2006 was liable to be cancelled.  There is no case for the complainant that he had remitted the said sum of Rs.1.lakh on 3/4/2006 other than presentation of the cheque for Rs.1.lakh for encashment.  There is no dispute regarding the fact that the said amount of Rs.1.lakh credited in the SB account of the complainant on 3/4/2006 represents the amount covered by the said cheque for Rs.1.lakh drawn on Punjab National Bank, Pallippuram branch.

12. Appellant/1^st opposite party bank credited the said amount of Rs.1.lakh covered by the said cheque on 3/4/2006.  The only fault on the part of the appellant/1^st opposite party bank was crediting the amount covered by the said cheque without getting the said cheque honoured or encashed.  In the ordinary course the bank need credit the amount covered by a cheque which was placed for encashment only after getting the cheque encashed from the drawee bank.  But in the present case on hand, the 1^st opposite party without waiting for getting the said cheque encashed, credited  the amount covered by the cheque.  It is the case of the 1^st opposite party bank that the amount covered by the said cheque was credited at the request of the complainant/consumer by believing the words of the complainant that the said cheque presented for encashment will be honoured by the drawee bank.  At any rate, it can very safely be concluded that the crediting of Rs.1.lakh on 3/4/2006 in the SB account of the complainant was without any supporting consideration.  At the most the said entry in the passbook can be treated as a mistaken entry.  The mere fact that the 1^st opposite party bank mistakenly credited an amount in the SB account of the complainant cannot be taken as a ground to hold that the complainant/account holder was entitled to get the said amount which was credited by mistake or by oversight.  In the present case there is nothing on record to show that the complainant was entitled to get the said sum of Rs.1.lakh which was credited in his account on 3/4/2006.

13. Ext.B1 certified copy of the Plaint in OS.1/07 on the file of Munsiff Court, Pattambi would show that the said cheque dated:31/3/2006 for Rs.1.lakh issued by the 2^nd opposite party, P.Bhaskaran has been produced along with the said Plaint.  It would also show that the memorandum returning the said cheque issued by the Punjab National Bank, Pallippuram branch has also been produced by the plaintiff in the said suit along with the Plaint.  It is an admitted fact the 1^st opposite party bank filed the said suit OS.1/07 before the Munsiff Court, Pattambi against the complainant as defendant to realize the overdrawn amount of Rs.18,963/- with interest accrued thereon.  So, the production of the said cheque and the memorandum regarding return of the said cheque by the drawee bank was necessitated and thereby those documents were produced by the 1^st opposite party bank who filed the said suit OS.1/07.  Thus, the materials available on record and also circumstances of the case would make it abundantly clear that on 3/4/2006 there was only a balance of Rs.1,25,000/- in the SB account of the complainant and that the amount of Rs.1.lakh credited in his SB account on 3/4/2006 was not in fact due to the complainant.  It can only be treated as a mistaken entry.  The complainant cannot claim any right over that amount because no such amount was due to the complainant on 3/4/2006.

14. Admittedly the complainant withdrew a sum of Rs.20,000/- on 21/4/2006.  The 1^st opposite party/bank permitted the complainant to withdraw the said sum of Rs.20,000/- on 21/4/2006 based on the mistaken entry effected on 3/4/2006.  In fact there was no such outstanding balance actually due to the complainant.  Thus, the 1^st opposite party bank has rightly contended that by withdrawing the said sum of Rs.20,000/- on 21/4/2006, there was an overdrawn amount of Rs.18,963/- by way of debit balance.  Thus, on 21/4/2006 the complainant/SB account holder was liable to refund a sum of Rs.18,963/- to the 1^st opposite party bank.

15. The appellant/1^st opposite party bank demanded the overdrawn amount of Rs.18,963/- with interest vide Ext.A1 registered letter dated:6/5/2006.  Ext.A1 would show that on 21/4/2006 the debit balance of Rs.18,975/- was due to the bank representing the overdrawn amount.  The 1^st respondent/complainant failed to issue any reply to A1 demand.  This circumstance would give an indication that the complainant admitted his liability regarding over drawn amount of Rs.18,975/-.  There after, the 1^st opposite party bank issued A2 lawyer notice dated:5/7/2006.  In A2 also the bank demanded the overdrawn amount of Rs.18,975/- and requested to regularize the SB account in the name of the complainant and his wife.  It is the A2 lawyer notice the complainant issued A3 reply stating the entry in his SB passbook showing the credit balance of Rs.81,025/- as on 21/4/2006.  It has already been held that the said entry in A4 SB passbook was only a mistaken entry and there was no such credit balance due to the complainant as on 21/4/2006.  It is to be noted that the complainant never expressed his readiness to remit the overdrawn amount and to get back the dishonoured cheque.  There is nothing on record to show the readiness or willingness of the complainant to remit the overdrawn amount and to get back the dishonoured cheque.  The appellant/1^st opposite party bank is perfectly justified in insisting the payment of the overdrawn amount and to get back the dishonoured cheque.  The bank can be justified in their contention that the dishonoured cheque has been withheld as a security for the amount overdrawn by the complainant.  It is to be noted that there is no other document other than the dishonoured cheque evidencing the crediting of the amount of Rs.1.lakh on 3/4/2006.  It is to be borne in mind that as per the entry dated:3/4/2006 in A4 passbook, there is only an entry regarding crediting of a sum of Rs.1.lakh on 3/4/2006.  There is no relevant entry in A4 passbook that the said amount of Rs.1.lakh was credited towards the amount covered by the cheque.  In fact there is no whisper in A4 passbook about the presentation of the said cheque for Rs.1.lakh for encashment and the resultant crediting of the amount covered by the cheque in the passbook.  On the other hand, the said entry dated:3/4/2006 in A4 SB passbook would give an indication that a sum of Rs.1.lakh was deposited by the complainant on 3/4/2006.  In the absence of any other document the appellant/1^st opposite party bank has rightly withheld the said cheque by way of security.  It is the admitted case of the complainant that the1st opposite party/bank demanded the overdrawn amount and they retained the dishonoured cheque.  The definite stand of the appellant 1^st opposite party bank was that they were ready to return the dishonoured cheque only on getting the over drawn amount remitted by the complainant/account holder.  So, there cannot be any deficiency of service on the part of the 1^st opposite party bank in withholding the dishonoured cheque and insisting for payment of the over drawn amount by the complainant.

16. The facts, circumstances and evidence on record would negative the case of deficiency of service alleged by the complainant.  The complainant has claimed a sum of Rs.81,025/- being the credit balance in his SB account as on 21/4/2006. In fact there was no such credit balance outstanding in his SB account.  The aforesaid credit balance shown in A4 SB passbook was only a mistaken entry.   The claim for the said sum of Rs.81.025/- is really untenable and unsustainable.  The Forum below cannot be justified in directing the 1^st opposite party bank to pay the said amount of Rs.81,025/- being the balance amount credited in the SB account of the complainant.  Unless there was such a mistaken entry in A4 SB passbook there would not have any such credit balance in the SB account.  The complainant cannot be permitted to take advantage of the mistaken entry in A4 SB passbook.  So, the aforesaid order passed by the Forum below directing payment of Rs.81.025/- being the balance credited in the account is liable to be setaside.  Hence we do so.

17. The complainant has got a case that he suffered mental agony and discomfort on account of the alleged deficiency of service on the part of the 1^st opposite party bank.  The complainant claimed compensation of Rs.5000/- for the aforesaid mental agony and the discomforts or inconvenience.  In the complaint in CC.151/06 there was only a claim for Rs.5000/- as compensation under the head mental agony, inconvenience and financial loss.  The complainant has also filed an affidavit in support of his case in CC.151/06.  In the said affidavit also the complainant has only claimed Rs.5000/- as compensation towards mental agony, inconvenience and financial loss.  It is to be noted that there was no such claim for compensation in A3 reply notice.  At any rate the complainant has only claimed Rs.5000/- by way of compensation; but the Forum below awarded compensation of Rs.20,000/-.  Thus, the aforesaid compensation of Rs.20,000/- ordered by the Forum below is unwarranted and unsustainable.  So, the order directing payment of Rs.20,000/- as compensation is also liable to be quashed.  Hence we do so.

18. The 1^st respondent/complainant has got a case that by withholding the dishonoured cheque he lost his valuable right to proceed against the 2^nd opposite party, the drawer of the cheque under Sec.138 of the Negotiable Instrument Act.  It is to be noted that the complainant can proceed against the 2^nd opposite party for realization of the amount covered by the aforesaid cheque even without the dishonoured cheque.  There is nothing on record to show that the complainant suffered financial loss on account of the encashment of the said cheque by somebody else.  The complainant has no such case that the aforesaid cheque was misused by somebody else and he suffered a resultant financial loss.  In this case it is established  that the dishonoured cheque or returned unpaid cheque is with the 1^st opposite party bank and that they were ready to return the cheque to the complainant, provided the complainant is ready to remit the over drawn amount which he had withdrawn on the strength of the said cheque for Rs.1.lakh drawn on Punjab National Bank, Pallippuram branch.  It has been held by the Hon’ble National Commission that compensation for the cheque amount cannot be granted unless it is shown that the cheque was misused causing loss to the payee cum consumer.  At the most the bank who was deficient in returning dishonoured cheque can be made liable only for the deficiency of service  (State Bank of India Vs. Muthuleskhmy kumary 2009 (1) CPR 82 (NC).  So, the claim of the complainant for the aforesaid cheque amount cannot be entertained.  The facts, circumstances and evidence on records would show that there was no deficiency of service on the part of the appellant/1^st opposite party bank in retaining the cheque.  The 1^st opposite party bank was always ready and willing to return the dishonoured cheque on getting the overdrawn amount remitted by the complainant/account holder.  But the complainant was not ready to remit the over drawn amount.  Thus, the complainant himself was negligent in remitting the overdrawn amount and thereby to regularize his SB account with the 1^st opposite bank.  Only because of the aforesaid negligence on the part of the complainant, the 1^st opposite party bank was compelled to retain the dishonoured cheque.  In fact the complainant has not suffered any financial loss.  He was at liberty to proceed against the 2^nd opposite party, the drawer of the said cheque for Rs.1.lakh as and when he got information from the 1^st opposite party bank regarding the return of the cheque unpaid.  At any rate, the complainant was informed about the return of the cheque unpaid by Ext.A1 registered notice issued by the 1^st opposite party bank to the complainant.  It is the definite case of the 1^st opposite party bank that they got intimation about the return of the cheque unpaid on 22/4/2006.  The said case of the 1^st opposite party bank can be accepted as true and correct because of the memorandum returning the cheque dated:18/4/2006 issued by Punjab National Bank, Pallippuram branch.  The details of that document can be seen from B1 certified copy of the Plaint in OS.1/07 on the file of the Munsiff Court, Pattambi.  But, on getting the aforesaid intimation about the return of the cheque unpaid, the 1^st respondent/complainant was sitting idle.  He was not prepared to remit the overdrawn amount to the bank and to get the dishonoured cheque from the 1^st opposite party bank.  Thus, there was no deficiency of service on the part of the 1^st opposite party bank as alleged by the complainant.  But, unfortunately the Forum below failed to appreciate the facts, circumstances and evidence available on record in its correct perspective.  The Forum below was simply relying on the entry in A4 SB passbook issued by the 1^st opposite party bank in the name of the complainant with respect to the SB account.  We have no hesitation to set aside the impugned order passed by the Forum below.  If that be so, the complaint in CC.151/06 is liable to be dismissed.  These points are answered accordingly.

In the result the appeal is allowed.  The impugned order dated:31/12/2008 passed by CDRF, Palakkad in CC.151/06 is quashed  and  thereby  the complaint in CC.151/06 on the file of the

CDRF, Palakkad is dismissed.  The parties to this appeal are directed

to suffer their respective costs throughout.     

M.V. VISWANATHAN : JUDICIAL MEMBER

VL.

VALSALA SARANGADHARAN   : MEMBER