Haryana

Yamunanagar

CC/99/2014

Shakun Sharma S/o. Padam Kumar - Complainant(s)

Versus

OBC - Opp.Party(s)

Shiv Raj Rana

16 Oct 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR AT JAGADHRI.

 

                                                     Complaint No.99 of 2014.

                                                     Date of institution: 11.02.2014.

                                                     Date of decision: 16.10.2017.

Shakun Sharma, age 36 years, son of Sh. Padam Kumar, resident of 649-B, Kartarpura, Yamuna Nagar, Tehsil Jagadhri, District Yamuna Nagar.

                                                                                                    …Complainant.

                        Versus

The Chief Manager, Oriental Bank of Commerce, Main Branch, Railway Road, Yamuna Nagar. 

 

….Respondent.

BEFORE. SH. SATPAL, PRESIDENT

                 SH. S.C.SHARMA, MEMBER.

                 SMT.VEENA RANI SHEOKAND, MEMBER.

 

Present:     Sh. Shiv Raj Rana, Advocate, for complainant.   

                  Sh. V.K.Arora, Advocate for the OP.

               

                ORDER

         

(SATPAL, PRESIDENT)

                The complainant-Shakun Sharma has filed this complaint under section 12 of the Consumer Protection Act 1986, as amended up to date (hereinafter respondents will be referred as OP). 

2.             Brief facts of the complaint, as alleged by the complainant, are that he is having account No.02712010032190 with the Op and he deposited a cheque bearing No.162716 dt. 15.08.2013 amounting to $6374,70 (Rs.3,37,859.10) paise drawn on Westpac 60 Martin Place, Sydney NSW for encashment in his account on 23.08.2013 but the aforesaid cheque was not encahsed by the OP.  It is alleged that the complainant requested the Op several times to encash the aforesaid cheque in question but the Op did not do needful.  So, it is a clear cut case of deficiency in service on the part of Op and prayed for acceptance of complaint with the direction to Op to pay Rs.3,37,859.10 paise i.e. cheque amount of cheque No.162716 dt. 15.08.2013 alongwith interest @ 24% p.a. and further to pay Rs.10,00,000/- as compensation for harassment and mental agony as-well-as Rs.5,000/- as litigation charges.    Hence, this complaint.

3.            Upon notice, the OP appeared and filed their written statement raising preliminary objections with regard to locus-standi; cause of action; jurisdiction; that the present complaint is not maintainable as the bank to which the cheque was sent for encashment i.e. ANZ Bank Melborne is a necessary party and the same was not impleaded as party to the complaint.  On merits, it is stated that the cheque in question was presented on 23.08.2013 and it was immediately sent for encashment to the collecting bank i.e. ANZ Bank Mellborne on 24.08.2013.  The DHL Courier (An approved courier) confirmed the delivery of the courier pack to the collecting bank and confirmed the fact that it was delivered on 29.08.2013 at 14:42 and when no response was received from the ANZ Bank Melbone i.e. collecting bank, the OP bank on 17.10.2013 sent a message to ANZ Bank Melborne enquiring regarding the status of cheque which was replied on 22.10.2013 by ANZ Bank Melborne that they have no record of receiving the cheque in question, then immediately on 13.11.2013, the Op bank requested to the collecting bank to send the format of letter of indemnity so that the cheque be encashed but no reply was received from the ANZ Bank Melborne and again the OP bank sent reminder on 18.11.2013 requesting the collecting bank to send format of indemnity for cheque collection.  It is further stated that a message was again sent on 20.11.2013 from the Head Office of the Op bank i.e. International Banking Division (IDB) requesting the collecting bank to send the format of indemnity and in this way, there is no deficiency in service on the part of answering Op.  The other pleas taken in the preliminary objections are reiterated and so, prayed for dismissal of complaint.

4.             Ld. Counsel for the complainant tendered in evidence affidavit of complainant as Annexure-CW/A and documents Annexure-C1 to Annexure-C9 and closed evidence on behalf of complainant. 

5.             On the other hand, ld. Counsel for the Op tendered in evidence affidavit of Sh. Vijay Kant Arora, Annexure-RA alongwith documents Annexure-R1 to Annexure-R10 and closed evidence on behalf of Op.    

6.             We have heard the ld. Counsel for both the parties and perused the record carefully and minutely.

7.             After hearing ld. Counsel for both the parties and going through the pleadings as-well-as on perusal of record available on the file, it is an admitted fact of both the parties that the complainant is having account No.02712010032190 with the Op.  It is also an admitted fact of both the parties that the complainant deposited a cheque bearing No.162716 dt. 15.08.2013 amounting to Rs.3,37,859.10 paise drawn on Westpac 60 Martin Place, Sydney NSW for encashment in his account on 23.08.2013.  The grievance of the complainant is that despite several requests, the Op neither encashed the said cheque nor told about the whereabouts of said cheque. 

                On the other hand, the plea of the Op is that the present complaint is not maintainable as the bank to which the cheque was sent for encashment i.e. ANZ Bank Melborne is a necessary party and the same was not impleaded as party to the complaint.  The cheque in question was presented on 23.08.2013 and it was immediately sent for encashment to the collecting bank i.e. ANZ Bank Mellborne on 24.08.2013.  The DHL Courier (An approved courier) confirmed the delivery of the courier pack to the collecting bank and confirmed the fact that it was delivered on 29.08.2013 at 14:42.  The Op wrote several letters as-well-as reminders to the collecting bank to send the payment and in response thereto, it was revealed by the collecting bank that the cheque in question has not been encashed with the memo “refer to drawer”.  The Op submitted the definition of ‘refer to drawer’, wherein it is mentioned that “A request by a bank that the payee consult the drawer concerning a cheque payable by that bank (usually because the drawer has insufficient funds in his account), payment being suspended in the meantime refer”.  The Op also submitted case law reported in 2009(1) CPR page 91 (NC) titled as A.P.Bopanna Vs. Kodagu District Co. Op. Central Bank and 2005(2) CPC page 466 (Haryana State Commission) titled as Senior Manager & Branch Incharge Canara Bank and another Vs. Sh. Anashwar Chopra. 

                From perusal of letter Annexure-R1, it is clear that the cheque in question was sent for encashment to ANZ Bank Melborne on 24.08.2013.  It is also clear from the report of DHL Courier, Annexure-R2 that the same was delivered on 29.08.2013 at 14:42.  The Op bank wrote several letters/reminders to the collecting bank for encashment of cheque in question and ultimately, the collecting bank reported vide document Annexure-R10 that “Refer To Drawer”.  So, in view of said report, it is clear that the drawer had insufficient funds in his account, hence, the cheque could not be encashed in the account of complainant.  In this regard, the definition of ‘refer to drawer’ submitted by the Op is fully applicable to the facts of instant case.  Moreover, the complainant has not impleaded “ANZ Bank Melborne” in the array of opposite party which was a necessary party.  Hence, there is no deficiency in service on the part of Op bank.  

8.             Thus, as a sequel of above discussion, we find no merit in the complaint of complainant and accordingly, the same is hereby dismissed with no order as to costs.  A copy of said order be supplied to the parties free of cost.  File be consigned to record-room after due compliance.      

Announced in open court:

Dated: 16.10.2017.

                                                         (SATPAL)

                                                         PRESIDENT.

 

 

(VEENA RANI SHEOKAND)         (S.C.SHARMA)

MEMBER                                          MEMBER