Haryana

Yamunanagar

CC/579/2013

Satinder Kaur W/o Amrik SIngh - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Ashok Kamboj

04 Sep 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA   NAGAR.

 

                                                            Complaint No.579 of 2013.

Date of institution: 12.08.2013/12.04.2013

Date of decision: 04.09.2017.

 

 

Smt. Satinder Kaur, aged about 61 years, widow of Late Shri Amrik Singh Baath, Advocate R/o 16-A Sanjay Vihaar Colony Gobind Pura Yamuna Nagar.

                                                                                                    …Complainant.

                             Versus

1. Punjab National Bank SD Public School branch Jagadhri through its Branch Manager.

 

2. Indian Bank Raj Market Ambala Cantt. Haryana.

 

 

….Respondents.

 

BEFORE    SH. SATPAL, PRESIDENT

                   SH. S.C.SHARMA, MEMBER.

                   SMT. VEENA RANI SHEOKAND, MEMBER.          

 

 

Present:       Shri Ashok Kamboj, Advocate for complainant.   

                    Shri Mukesh Sehgal, Advocate for OP No.1

                    None for OP No.2

 

 

ORDER (SATPAL, PRESIDENT)

 

 

1.                 The complainant Satinder Kaur has filed this complaint under section 12 of the Consumer Protection Act 1986 as amended up to date (hereinafter respondents will be referred as OPs). 

2.                Brief facts of the complaint, as alleged by the complainant, are that complainant had presented on 10.10.2011 a cheque no. 823731 dated 30.08.2011 for Rs.4,50,000/- payable at Indian Bank, Ambala Cantt., isused by Jyoti Sharma in favour of the complainant before the OP No.1 for onward clearance from the OP No.2. The aforesaid cheque was accordingly sent for collection to opposite party No.2 by the opposite party no.1. The cheque was dishonoured for want of sufficient funds and “signature differs” in the account of issuing person vide Bank Memo Dated 13.10.2011 but the cheque in dispute was not attached with the memo itself as per information given by the OP No.1. The OP No.2 then informed the counsel for the complainant in reply to legal notice dated 18.09.2012 that the subject cheque was presented in clearing by the OP No.1 to them and the OP no.2 has returned the original cheque to the OP no.1 along with the memo itself. After several visits and written representation of dated 14.11.2011, the OP No.1 has expressed that they have taken up the matter before their concerned office and they would revert soon as and when get response in the matter. However, the OP no.1 has fairly admitted that “it appears that the said cheque has been misplaced some where from our said office”. Since then, the complainant has not received the satisfactory response from the OPs nor the original cheque has been returned so far. It is alleged that the complainant had to face a great technical problem in filing complaint under Section 138 of NI Act against the issuing person for want of original cheque. Hence, this complaint, wherein it has been prayed that the original cheque may be returned and compensation and cost of litigation be paid to her.

3.                Upon notice, OP No.1 appeared and filed its written statement taking some preliminary objection such as complaint is not maintainable; complainant has no locus standi to file the present complaint; complainant has no approached this Forum with clean hands and has concealed the true and material facts; complainant is bad for non joinder of necessary parties and on merit it is admitted to the extent that on 10.10.2011, the complainant presented the disputed cheque 2^nd time for collection to the answering OP bank and answering OP bank sent the same to PNB RCC Ambala in collection and PNB, RCC Amabla sent the same in collection to the OP No.2. It is further admitted that the disputed cheque was dishonoured for want of sufficient funds in the account of person, as per memo dated 13.10.2011 issued by the OP No.2. In fact, the true facts are that the answering OP bank received a sealed envelope through courier agent of M/s Dolphin Services on 17.10.2011 at about 12.00 noon. On opening the said sealed envelope, the answering OP bank found the original memo dated 13.10.2011 of OP No.2. But, in the said sealed envelope, original disputed cheque was not found by the answering OP Bank. Immediately, the answering OP  bank wrote a letter dated 17.10.2011 to the Chief Manager, PNB, RCC Ambala stating therein that “Today, we have received an envelope from your branch  containing returning schedule of branch from Indian Bank but no cheque is attached with it”. In this regard, the answering OP Bank also telephonically talked to Shri Harbans Lal and Shri SK Sharma, officials of PNB RCC Ambala. On the same day at about 12.55 pm and 05.07 pm the answering OP bank also sent two emails to the PNB RCC Ambala with the averments that no cheque was attached with the memo  issued by the OP No.2 and requested them to treat this matter as urgent. On the next date i.e. 18.10.2011, the answering OP bank also wrote a letter to Shri Darshan Singh Lamba, Manager/ Director/ Prop. Of M/s Dolphin Courier Services regarding the missing of the original cheque in the sealed envelop which was delivered by him to the OP Bank on 17.10.2011. The answering OP Bank has sent the original cheque in clearing to PNB, RCC, Ambala and PNB RCC, Ambala sent the same to the OP Party No.2. It is admitted by the complainant that while submitting the reply of the legal notice dated 18.09.2012 issued by the OP No.2 that the original cheque has been received by he OP no.2. Now, the burden is shifted upon the OP no.2 or the PNB, RCC Ambala that they had sent back the original cheque along with memo to the answering OP bank. Rest contents of the complaint were denied as wrong and incorrect and lastly prayed for dismissal for the complaint qua the answering OP.

4.                OP No.2 appeared and filed its written statement alleging that cheque No.823731 dated 30.08.2011 for Rs.4,50,000/- was presented by Punjab National Bank Ambala Cantt through clg house on 03.09.2011 and was returned with a Bank Return Memo “Insufficient Funds” to PNB through Clg. House. The above said cheque was again presented by PNB Ambala cantt thru clg. House on 13.10.2011 and was returned with a Bank Return Memo “Insufficient Funds” to PNB on the same day i.e. 13.10.2011 through Clg. House.

5.                In support of his case, learned counsel for the complainant tendered into evidence affidavit of complainant as Annexure CW/A and documents as Annexure C1 to C3 and closed the evidence on behalf of complainant.

6.                On the other hand, learned counsel for the OP No1 tendered into evidence affidavit of Shri Sanjeev Suri, Manager, PNB SD Public School Jagadhri as Annexure RW/A and documents as Annexure R1 to R18 and closed the evidence on behalf of OP No.1.  

7.                We have heard learned counsel for the parties and have also perused the record available on the file.

8.                The counsel for the complainant argued that the complainant had presented a cheque amounting to Rs.4,50,000/- with OP No.1 on 10.10.2011 payable at Indian Bank Ambala Cantt. for onward clearance from OP No.2 and the said cheque was dishonoured for want of “sufficient funds and “signature differs” in the account of issuing person but the cheque in dispute was not attached with the memo itself as per information given by the OP No.1. After several visits as well as written representation, legal notice was issued to the OPs Bank but the OPs gave no satisfactory reply response in the matter. The counsel for the complainant further argued that the complainant had to face a great technical problem in filing complaint under Section 138 of NI Act against the issuing person for want of original cheque. The counsel for the complainant referred the case law titled as “State Bank of India Vs. Jagjit Kaur FA No.151 of 2008 decided on 21.12.2012 by Hon’ble State Consumer Dispute Redressal Commission, Punjab, Chandigarh and another case law titled as “Syndicate Bank, Udaipur Vs. Rajeev Bajaj, FA No.1466 of 2008 decided on 13.01.2010 by the State Consumer Dispute Redressal Commission, Jaipur wherein it has been held that it is a settled law  by the Hon’ble Supreme Court as well as by the Hon’ble National Commission in number of judgments that If the cheque was lost in transit, the bank cannot be held liable to refund the value of the cheque lost in transit to the depositor but liable to pay compensation for the deficiency in service.

                   On the other hand, the learned counsel for the OP No.1 argued that the cheque in question had been presented by the complainant on 10.10.2011 and the same was sent to the PNB Bank. RCC Ambala for collection of the same from OP No.2 and the said cheque was dishonoured for want of sufficient funds as well as “signature differs” as per memo dated 13.10.2011. It is further argued that the OP bank received a sealed envelope through courier on 17.10.2011 at about 12.00 noon and on opening of the said sealed envelope, the OP Bank found the original memo but in the said sealed envelope original cheque was not found. Immediately the OP Bank wrote a letter on the same day to the Chief Manager, PNB, RCC Ambala regarding non receipt of the original cheque. The official of the bank also contacted the Manager , PNB RCC Ambala on telephone. On the very next day i.e. on 18.10.2011 again the OP Bank also wrote a letter to courier service regarding non delivery of original cheque. The OP bank also made several e-mails to the PNB, RCC Ambala as well as Indian Bank Ambala for non receiving the original cheque. The counsel for the OP No.1 further argued that the version of the complainant is not true that she has not availed the remedy for filing complaint under Section 138 of NI Act against the issuing person for non availability of original cheque because the complainant has filed a complaint under Section 138 of Negotiable Instruments Act against the issuing person on 09.01.2012 before filing the present complaint which is clear from the copy of judgment passed by Shri Saraubh Gupta, JMIC, Yamuna Nagar at Jagadhri (Annexure R-18) and prayed for dismissal of the complaint qua the OP No.1.

9.                After hearing, the learned counsel for the parties, the foremost question which arises before us for consideration that whether the complainant is entitled to compensation due to the negligence on the part of Bank? It is admitted that the cheque in question was presented by the complainant for collection with the OP No.1 and the same was not received in original and the said cheque was lost in transit/ transaction or in PNB RCC, Ambala. From the perusal of the letter dated 17.10.2011 (Annexure R-5) email dated 17.10.2011 (Annexure R-6) e mail dated 17.10.2011 (Annexure R-7), letter dated 18.10.2011 (Annexure R-8) written to Shri Darshan Singh Lamba, Dolphin Courier Service, Yamuna Nagar, letter dated 24.10.2011 (Annexure R-10), letter dated 29.10.2011 (Annexure R-11), letter dated 14.11.2011 (Annexure R-12), letter dated 26.11.2011 (Annexure R-15), letter dated 08.12.2011 (Annexure R-16), it is clear that the OP No.1 Bank immediately informed the PNB RCC, Ambala as well as courier service for not receiving the original cheque with memo. From the perusal of the documents placed on record, it is proved beyond any doubt that the loss of cheque from the official of the Bank was gross negligence on the part of the Bank. Even, the Bank had not inquired as to who was responsible for the loss of cheque. No doubt the valuable documents like cheques, bank drafts and FDRs are deposited by the customers in the Bank and if in the above condition, the valuable documents are misplaced by the officials of the Bank and no action is taken against delinquent officials, then the customers  will be at the mercy of the such Bank officials and will suffer irreparable loss. The plea of the complainant that he is unable to avail the remedy for filing complaint under Section 138 NI Act against the issuing person is not tenable because before filing this complaint the complainant had filed complaint on dated 09.01.2012 under Section 138 of NI Act before the JMIC Yamuna Nagar at Jagadhri which is clear from the order dated 21.02.2015 (Annexure R-18) but it is not disputed that the cheque in question was lost by the PNB RCC Ambala or by the Courier Service. The courier services from which the said cheque in question was sent was not party in the present case because it is matter between the bank and courier and the complainant had not hired any service of the courier for consideration. The complainant suffered a mental agony and harassment as well as unwanted litigation with the Bank. Hence, we are of the considered view that in case of loss of cheque in transit during collection, the bank cannot escape liability as a Banker, in collecting the cheque, is required to exercise the same care which reasonable businessman would  bear in handing valuable Negotiable Instruments. There is no deficiency on the part of the OP No.2 because they had sent the cheque along with memo after dishonouring the cheque to the PNB RCC Bank, Ambala who has not performed its duty properly.

10.              In view of the facts discussed above as well as law laid down by the Hon’ble National Commission as well as Hon’ble State Commissions, , we partly allow the present complaint of the complainant and direct the OP No.1 to comply with the following directions within a period of 30 days from the receipt of the copy of this order: -

1. To pay Rs.5000/- as compensation to the complainant on account of mental agony and harassment suffered by her.
2. And also to pay Rs.2200/- on account of litigation expenses.

Copy of this order be supplied to the parties free of cost. File be consigned to the record room after due compliance.

Announced in open Court:

Dated 04.09.2017

 

                                                     (SATPAL)

                                                     PRESIDENT

                                                     D.C.D.R.F.YAMUNA NAGAR

                                                     AT JAGADHRI

 

 

 

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

MEMBER                                       MEMBER