DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANSA. Complaint No.150/03.09.2007 Decided on : 28.01.2009 M/s Surya Agro Industries, Barnala Road, Bhikhi, Tehsil and Disitrict Mansa through Happy Kumar S/o Sh.Pawan Kumar, resident of Bhikhi. ..... Complainant. VERSUS Oriental Bank of Commerce, through its Branch Manager, Bhikhi, Tehsil and District Mansa. ..... Opposite Party. Complaint under Section 12 of the Consumer Protection Act, 1986. ..... Present: Sh.S.K.Singla, Advocate, counsel for the complainant. Sh.P.K.Singla, Advocate, counsel for the opposite party. Quorum: Sh.P.S.Dhanoa, President. Sh.Sarat Chander, Member. Smt.Neena Rani Gupta, Member. ORDER:- Sh.P.S. Dhanoa, President. This complaint has been filed by M/s Surya Agro Industries, Barnala Road, Bhikhi, Tehsil and Disitrict Mansa, through Sh.Happy Kumar, son of Sh.Pawan Kumar, resident of Bhikhi, against Oriental Bank of Commerce, through its Branch Manager, Bhikhi, Tehsil and District Mansa, under Section 12 of the Consumer Protection Act, 1986 (hereinafter called the 'Act'), on the averments, which may briefly be described as under:- 2. That complainant, has opened current Account No.100100 with the opposite party, for maintenance of which opposite party is Contd........2 : 2 : claiming charges, as such, he is consumer under them, qua the said bank account. The complainant is running the business of general merchants at Bhikhi. He has been appointed as stockists, by M/s Shammi Agro Industries , village and post office Sangnai, Tehsil Amb, District Una, in the State of Himachal Pradesh, for sale of toffees etc. The said firm had to pay a sum of Rs.1,95,000/-, to the complainant, as on 21.10.2006. In order to discharge the said liability, the above said firm issued cheques bearing No.820785 dated 23.10.2006, in the sum of Rs.20,000/-, cheque No.820784 dated 4.11.2006, in the sum of Rs.25,000/-, and cheque No.820757 dated 15.1.2007, in the sum of Rs.1,50,000/-, drawn on Punjab National Bank Gagret, District Una. The cheque bearing No.820757 dated 15.1.2007, drawn in the sum of Rs.1,50,000/-, was deposited, by the complainant, for collection of amount, from bankers of drawers, on 3.7.2007. The said cheque was valid upto 14.7.2007. The opposite party informed the complainant, on 31.7.2007 about dishonouring of the said cheque, by the bankers of M/s Shammi Agro Industries. The memo dated 24.7.2007, was also attached with the said letter, by the opposite party. The complainant approached the officials of the opposite party and after inquiry from them, he came to know that the cheque was sent for collection of amount through registered post on 18.7.2007, to bankers of the complainant, as such, there is deficiency, in service on the part of the opposite party, who has also debited a sum of Rs.545/-, in the account of the complainant, on account of dishonouring of the cheque deposited by him. The complainant, has suffered a loss of Rs.1,50,000/-, due to late presentation of his cheque, for collection of amount, by the opposite party, and he has also suffered mental and physical harassment, for which he is entitled to payment of Rs.50,000/-, as compensation, in addition to refund of Rs.545/-, and a sum of Rs.1,000/-, on account of costs incurred by him, for filing of the instant complaint. 3. On being put to notice, opposite party filed written version, Contd........3 : 3 : resisting the complaint, by taking preliminary objections; that the complainant, has no locus standi and cause of action, to file the complaint; and he is not a consumer, under them, within its definition, given in the Act; that the complaint is bad for non joinder of necessary parties; that the complainant, has concealed the material facts, from the knowledge of this Forum, as such, he is not entitled to relief prayed for and his complaint is liable to be dismissed with costs; that this Forum has no territorial jurisdiction to entertain and try the complaint; that there is no deficiency in service on the part of the opposite party, because cheque could not be encashed, due to insufficiency of funds, in the account of the drawer ; that complainant has alternative remedy in the civil court and also under Section 138 of the Negotiable Instrument Act and has deposited the cheque in his account few days before the expiry of period of its validity, as such, his complaint is not maintainable. It is admitted that complainant is maintaining a bank account as proprietor of M/s Surya Agro Industries, Bhikhi. It is denied for want of knowledge that complainant is running a business of general merchants at Bhikhi or M/s Shammi Agro Industries, Amb, District Una has appointed him their stockists for sale of toffees etc. It is also denied for the same reason that cheques mentioned in para No.2 of the complaint were issued in the name of the complainant by the said firm for payment of Rs.1,95,000/-. It is reiterated that the complainant kept the cheque in question for considerable time with him before presenting the same at the last moment to the opposite party for collection of the amount and the same, has been dishonoured, due to insufficiency of funds, in the account of the drawer, but the complainant, has concealed the said fact. It is also submitted, that even if the cheque, was presented earlier, the amount was not sufficient in the account of the drawer and there was no possibility of honouring of the same by his bankers. Rest of the averments, made in the complaint, have been denied, and a prayer has been made, for dismissal of the same, with costs. Contd........4 : 4 : 4. On being called upon, by this Forum, to do so, the complainant, furnished his affidavits, Exhibit C-1 and C-2, reiterating all the allegations made in the complaint, on solemn affirmation, almost in the verbatim. He has also produced photocopies of the documents including statement of his accounts maintained with the opposite party at Bhikhi, Returning Memo issued by the opposite party Ext.C-3 informing that cheque in question, has been dishonoured, by his bankers as period of validity, had expired. He has further produced on record, receipt Ext.C-4 issued by the opposite party in token of its acceptance of cheque in question and copy of postal receipt Ext.C-6 of cheque No.820757, drawn in the sum of Rs.1,50,000/-, in favour of the complainant, by M/s Shammi Agro Industries. On the other hand, Brij Bhushan Gupta, Manager of the opposite party, has tendered his affidavit Ext.OP-2 reasserting his averments made in the written version in their entirety. The counsel for the opposite party, has also tendered in evidence photocopy of documents, including statements of account of M/s Shammi Agro Industries, Ext.OP-1 and OP-3. He has also tendered Ext.OP-4 and OP-5, complaints filed by the complainant firm through its proprietor named above against M/s Shammi Agro Industries, and its proprietor Ms.Shalu Jaiswal, under Section 138 of the Negotiable Instruments Act. In additional evidence, learned counsel, has tendered complete statement of accounts of M/s Shammi Agro Industries, against which no evidence, has been led by the complainant, in rebuttal. 5. We have heard the learned counsel, for the parties and gone through, the oral and documentary evidence, adduced on record, by them , carefully, with their kind assistance. 6. At the out set, learned counsel for the complainant Sh. S.K.Singla, Advocate, has submitted that the opposite party, has admitted deficiency in service, on their part and the said fact is otherwise proved by the material placed on record. Learned counsel, has argued that relief to a Contd........5 : 5 : consumer under the Act cannot be denied merely because remedy is open to him against the drawer of the cheque under Section 138 of the Negotiable Instruments Act or by way of civil suit in the in civil court. Learned counsel argued that period of limitation for filing the complaint has expired, because of which, remedy under Section 138 of the Negotiable Instruments Act, is no more available, to the complainant, as such, opposite party ,cannot escape liability, of loss and inconvenience caused, to the complainant and expenses incurred by him for delay in despatch of cheque, for collection, to the bankers of its drawer. 7. On the other hand, learned counsel for the opposite party, Sh. P.K.Singla, Advocate, has submitted that deficiency in service on the part of the opposite parties is not disputed, but the complainant is also responsible for not depositing the cheque after its receipt, well before the date of expiry of period of validity. Learned counsel further submitted that, as per the copy of statement of accounts of the drawer of the cheque, produced on record by the opposite party, funds were never sufficient in the account of the drawer, for honouring the cheque in question, as such, the same was bound to be dishonoured, even if it was presented earlier. Learned counsel, has also submitted that opposite party, has produced on record copies of complaints filed under Section 138 of the Negotiable Instrument Act by the complainant against the drawer, after previous two cheques, sent for collection, were dishonoured, as such, complainant cannot be said to have suffered loss due to late presentation of the cheque by the opposite party and he is not entitled to payment of compensation on account of physical and mental harassment and costs incurred by him for filing of the instant complaint. In support of his contentions, learned counsel has placed reliance upon order passed in Appeal No.687 of 23.5.2006 by the Hon'ble Punjab State Commission, Chandigarh in appeal titled as State Bank of Patiala, Mansa versus Hari Ram Garg wherein appeal against order dated 13.4.2005 passed by the District Consumer Contd........6 : 6 : Forum, Mansa, has been set aside and the opposite party was directed, to pay a sum of Rs.10,000/-, to the complainant, including the costs of litigation incurred by him, in the District Consumer Forum, as well as in the Hon'ble State Commission, in filing the complaint and appeal, respectively. In this order, reliance, has been placed upon 2004(1) CPJ 413 State Bank of Patiala versus Vishwas Ahuja, wherein, it has been held at page No.7, that amount in the account of the drawer of the cheque was not sufficient for honouring the same, as such, even if, the cheque, has not been lost in transit and was presented for clearance by the opposite party, the same would have been dishonoured for want of sufficient funds. It has been also held at Page No.6, that as held by the Hon'ble National Commission, in Revision Petition No.2510 of 2002, titled as State Bank of Patiala versus Rajender Lal & Anr., decided on 13.5.2002, the complainant in such cases are not entitled to claim the amount of lost cheque, as he may seek compensation and recovery of the amount, by filing civil suit and ask the drawer to issue another duplicate cheque as per Section 45-A of the Negotiable Instrument Act. 8. Admittedly, the complainant is maintaining cash credit account with the opposite party bank at Mansa, as such, he is consumer under the opposite party qua the said account. It is not denied that cheque bearing No.820757 dated 15.1.2007, was drawn by M/s Agro Industries, Amb, District Una, upon their account maintained with the Punjab National Bank, Gagret and was deposited by the complainant for collection of amount on 3.7.2007. The cheque issued by the bank is valid for encashment for a period of six months, until it is revalidated by the drawer. In the instant case, the cheque deposited by the complainant was valid upto 14.7.2007. However, the opposite party sent the cheque through registered post on 18.7.2007 i.e. after the expiry period of validity and same was returned, by the bankers of the drawer, vide memo dated 14.7.2007 and was returned to the complainant on 31.7.2007. Therefore, we are of the Contd........7 : 7 : considered opinion that there is deficiency in service on the part of the opposite party in sending the cheque in question deposited by the complainant to the bankers of the drawer before expiry of period of validity thereof. Even this fact is proved by the oral and documentary evidence available on the record. Learned counsel for the opposite party, has also gracefully conceded this fact in the course of arguments. However, as per copies of statements of account of M/s Shammi Agro Industries, maintained with Punjab National Bank, Una, Ext.OP-3, the balance in the account of the drawer, had been running in debt, since the date of deposit of the cheque i.e. 3.7.2007 til the date of receipt from the opposite party i.e. 18.7.2007. Had there been no arrangement between the drawer of the cheque and his bankers, then cheque in question might have been dishonoured on the ground' Exceeds Arrangement'. These facts themselves demonstrate that drawer of this cheque has got sanctioned limit to some extent for availing of credit facility for running his business. As per remarks given in copy of returning memo issued by the Punjab National Bank, Gagret, District Una Ext.C-3, produced by the complainant, cheque in question has been dishonoured with the remarks that it has become 'out dated' , because it is not even presented within the period of validity. Since the cheque has not been dishonoured by the bankers of the complainant due to insufficiency of funds, therefore, relief to the complainant cannot be denied merely because his earlier two cheques have been dishonoured by the bankers of the drawer of the cheque and he has filed the complaint against drawer and its proprietor under Section 138 of the Negotiable Instrument Act. In the peculiar facts and circumstances of the case, we are constrained to hold, that opposite party cannot escape liability and is liable to make good the loss suffered by the complainant due to late presentation of the cheque, if any, for justifiable ground, because, the complaint under Section 138 of the Negotiable Instrument Act, is not maintainable, if the cheque is dishonoured by the bankers of Contd........8 : 8 : the draweron the ground that it has been presented after expiry of date of validity. As observed above, in the instant case, period of validity, had expired. As per provisions of Section 3 of the Act, remedy available to the consumer is additional remedy. The right of the complainant to recover the amount of cheque may be frustrated if civil suit fails on any technical ground or drawer is declared insolvent. As such, opposite party cannot escape liability to compensate the complainant due to pecuniary loss caused to him due to deficiency in service on its part. The complainant is entitled to payment of interest from the date of filing of the complaint till the amount of cheque is paid by the opposite party and suitable amount on account of costs incurred by him for filing the complaint.However, we are inclined to award interest, therefore, the complainant is not entitled to any payment on account of compensation for mental and physical harassment because interest and compensation cannot be granted simultaneously in the complaint filed under the Act. 9. We have carefully gone through the authority relied upon by the learned counsel for the opposite party and, have come to the conclusion that facts and circumstances of that case are not attracted to the peculiar facts of the case in hand because in that case a cheque was lost in transit and it was established that amount was not sufficient in the account of the drawer for honouring the same. 10. For the aforesaid reasons, we accept the complaint and direct the opposite party to pay a sum of Rs.1,50,000/-, to the complainant, for deficiency in service, alongwith interest @ 9% per annum, from the date of filing of the complaint i.e. 3.9.2007, till date of payment. The opposite party is further directed, to pay a sum of Rs.1,000/-, on account of costs to compensate the complainant. The above said payment shall be made by the opposite party, within a period of two months from the date of receipt of the copy of this order. Contd........9 : 9 : 11. The copies of the order be supplied to the parties free of charges under the rules, on the subject, and file be indexed and consigned to record. Pronounced: 28.01.2009 Neena Rani Gupta, Sarat Chander, P.S.Dhanoa, Member. Member. President.
