Punjab

Nawanshahr

CC/83/2014

Satnam Singh - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

P.K.Dhir, Poonam Atri

11 Mar 2015

ORDER

ORDER

 

PER S.KARNAIL SINGH, MEMBER

1.                Satnam Singh (hereinafter referred to as Complainant) has filed this complaint under Section 12 of the Consumer Protection Act 1986 (hereinafter referred to as the Act only) against OPs praying for the following reliefs:-

“(I)    To direct the opposite parties to pay the amount of Rs.3,00,000/- (Three Lacs only) along with upto date interest @18% per annum.

(II)     To pay Rs.2,00,000/- on account of mental, physical and financial harassment.

2.                 Brief facts of the complaint are that an account No.107600100316452 is being maintained by the complainant with OP No.1.  On 14.06.2013, the complainant deposited a cheque bearing No.208641 dated 01.06.2013 worth Rs.3,00,000/- for encashment with OP No.1.  The cheque was drawn on OP No.2.  At the time of deposit the complainant was told by official of OP No.1 that they will send the cheque to the drawee bank i.e. OP No.2 and if the drawee bank encashed the said cheque then the amount will be deposited in the account of the complainant.  If the drawee bank will not encash the said cheque then the cheque in original alongwith memo of drawee bank will be returned to the complainant.  Thereafter, the complainant visited OP No.1 many times with the requests to inquire the current status of his cheque but the officials of the OP No.1 kept on making excuses.  After one year when the complainant lost his patience he served a legal notice upon OP No.1 on 12.05.2014.  Reply to the notice was received from OP No.1 on 06.06.2014.  The complainant was informed that the cheque was sent for realization to OP No.2 through OP No.3 but the courier containing cheque has been lost during the transaction.  OP No.1 in their letter dated 27.05.2014 informed the complainant that OP No.2 has informed them that they have not received the cheque but they have issued the non-payment certificate.  The non-payment certificate issued by OP No.2 has not been received by the complainant till date.  It is clear that OP No.1 failed to perform his services to the satisfaction of complainant.  It is the duty of OP No.1 to avail the service of reputed courier as OP No.1 has also charged an amount for this procedure.  Due to this illegal and unlawful act of OP No.1 the complainant has suffered a loss of Rs.3,00,000/-, as Sh.Achhar Dass who issued the cheque in question has refused to issued another cheque of the same amount to the complainant.  In this way, act of OP No.1 has caused a great mental, physical as well as financial loss to the complainant.  At the end reliefs as prescribed at the outset of this order has been claimed.    

3.                In reply to notice of complaint OP No.1 has filed a written reply in which taking preliminary objections has maintained that the complainant had approached this Forum which soiled hand and has not disclosed the true and actual facts.  The complainant is barred by his act and conduct to file the present complaint and the complainant has no locus standi to file the present complaint.  On merits, it has been accepted as correct that the complainant is maintaining an account bearing No.1076000100316452 with answering OP.  It has been also accepted that the complainant deposited the cheque bearing No.208641 dated 01.06.2013 worth Rs.3,00,000/- with the answering OP for collection.  Answering OP sent the cheque to the drawee bank i.e. State Bank of India Branch Neoli, U.P. through M/s Akash Ganga Courier, Branch Nawanshahr for encashment.  Whenever, the complainant approached the answering OP he was given satisfactory reply by the bank staff regarding the submission of the said cheque to SBI Neoli, and regarding follow up action with SBI Neoli on 29.08.2013, 14.09.2013, 18.09.2013, 20.01.2014, 21.02.2014, 04.04.2014, 17.04.2014 and 20.04.2014.  It is correct that the complainant served a notice and the same was replied through the counsel.  The matter was also taken up with the Courier Company regarding the status of cheque on 29.04.2014, 17.05.2014 and 19.05.2014.  SBI Neoli, did not submit the response to any of the communication of this branch previously but it was informed vide their letter dated 29.04.2014 and 27.05.2015 that the cheque in question has been lost in transaction.  This fact was informed to the complainant by letter dated 27.05.2014.  As per clause-2 written overleaf of pay in slip “the collecting bank will not be responsible for any loss due to loss of cheque etc during transit or otherwise”.  As the said cheque was neither encashed nor it was returned to collecting bank due to its loss so the collecting bank is not responsible to return the same to the complainant.  The answering OP has performed his services as required.  As services of reputed courier agency were availed.  The answering OP cannot be held liable or responsible for the loss of the cheque in transit.  The complainant was requested to obtain another cheque of the same amount from the drawer namely Sh.Achhar Dass son of Dittu Ram so that the needful can be done.  The official of the bank also contacted Shri Achhar Dass who disclosed that the father of the complainant Shri Hussan Lal has stolen the cheque and the same was filled in the name of the complainant, hence refused to issue another cheque.  The complainant has not suffered any mental, physical or financial loss.  At the end, it has been prayed that the complaint having no merits be dismissed with costs.   

4.                OP No.2 has submitted separate written reply in response to the notice of complaint.  Taking preliminary objections it has been submitted that complaint against the answering OP is not maintainable as the cheque in question alleged to be belonging to the complainant was never received by answering OP for its realization, the complainant has no cause of action to file the present complaint against the answering OP.  The complaint is bad for mis-joinder of OP No.2 as OP No.2 has nothing to do with the cheque in question.  If the cheque in question would have been received by answering OP then they would have disbursed the payment of the cheque in question to OP No.1.  On merits, it has been contended that the answering OP is not bound to issue non-payment certificate to the complainant as the complainant has no business with answering OP.  However, the cheque in question was never received by the answering OP nor the same has ever been delivered by OP No.3 to the answering OP and till date the amount of said cheque has not been disbursed by the answering OP.  All other allegations contained in the complaint has been categorically denied and prayer for dismissal of the complaint being in the interest of justice has been made.

5.                Registered notice was issued to OP No.3 but OP No.3 has refused the service of notice, as such OP No.3 was proceeded ex parte vide order dated 25.11.2014.

6.                In order to prove the case, the parties have tendered documentary evidence. The learned counsel for complainant has tendered affidavit of complainant Ex.CW1/A alongwith photocopies of documents i.e. cheque receipt dated 14.06.2013 Ex.C-1, letter dated 27.05.2014 Ex.C-2, legal notice dated 12.05.2014 Ex.C-3, reply dated 06.06.2014 Ex.C-4 and closed the evidence.  Sh.Pritpal Singh Branch Manager of OP No.1 has tendered his affidavit Ex.OP1/A alongwith photocopies of documents i.e. letter dated 27.05.2014 Ex.OP1/1, courier receipt dated 19.06.2013 Ex.OP1/2, dispatch letter Ex.OP1/3, circular No.14/2013 dated 20.11.2013 Ex.OP1/4 and closed the evidence.  Learned counsel for OP No.2 has also tendered affidavit of Sh.Anil Kumar, Manager of OP No.2 as Ex.OP2/A and closed the evidence.

7.                We have gone through the record thoroughly and heard the learned counsel for parties.

8.                 Learned counsel for the complainant contended that a cheque for Rs.3,00,000/- was deposited for collection with OP No.1 but the same was lost in transit and now the complainant is unable to recover this amount as the person who issued the cheque refused to give another cheque.  OP No.1 did not take timely action to ascertain the status of cheque with the drawee bank or with the courier company.  The collecting bank is fully responsible for the loss incurred by the complainant, hence liable to pay the cheque amount and compensation for the inconvenience suffered by the complainant.

9.                On the other hand, learned counsel for OP No.1 has contended that the answering OP is not deficient in service in any manner.  The cheque bearing No.208641 dated 01.06.2013 for Rs.3,00,000/- deposited by the complainant was sent for collection to the State Bank of India, Branch Office, Neoli, U.P. through courier service but the same was lost in transit.  The answering OP has been corresponding with the State Bank of India, Neoli regarding the status of the cheque.  The amount of the cheque cannot be refunded by the answering OP as the cheque in question was never presented and the account on which the cheque was issued was never debited, hence there is no loss to the complainant or to the person who issued the cheque. 

10.              We have considered the respective submissions advanced by the learned counsel for the parties and have thoroughly scrutinized the entire record and material placed on file.

11.              Admittedly, the complainant presented the cheque bearing No.208641 dated 01.06.2013 for a sum of Rs.3,00,000/- to OP No.1 and the bank sent the same for collection to the State Bank of India, Branch Office Neoli, U.P. but the same was lost during the transit.  Though, the answering bank has claimed that continuous track of the movement of the cheque was kept by sending emails on various dates but the bank has failed to bring the copies of emails in question on record.  However, letter dated 27.05.2014 Ex.OP1/1 written by OP No.2 to OP No.1 in response to email dated 23.05.2014 has confirmed that proceeds against the cheque in question has not been disbursed.  It is clear that cheque No.208641 was issued by Shri Achhar Dass and the same was lost in transit.  The argument of the learned counsel for the complainant that the collecting bank is liable to pay the amount of the cheque is not tenable and as per settled law only the compensation can be awarded.  We fortify our contention by placing reliance on Hon’ble National Commission in case State Bank of Patiala Vs Vishwas Ahuja’ 2007(1) ISJ (Banking) 432 (NC), in which it is held that the bank cannot be made to pay the entire amount of cheque if it is legally open to the complainant to initiate civil/Criminal Action based on the cheque against drawer and bank is liable only to pay reasonable compensation to the complainant.

12.              The appellant is at liberty to seek other legal remedies available to him for recovering the amount of the cheque including filing of a suit for recovery.  However, mental tension and harassment caused to the complainant for a long time entitled him to be compensated reasonably.

13.              In view of the above discussion, the complaint filed by Satnam Singh is partly allowed and the OP No.1 is directed as follows:

          I.       To hand over no-payment certificate against cheque No.208641 dated 01.06.2013 received from drawee bank.

          II.      To pay Rs.15,000/- on account of compensation for harassment suffered by the complainant.

          III.     To pay Rs.5,000/- on account of litigation expenses.

          The aforesaid order be complied within 30 days from the date of receipt of copy of this orders.

          The complainant if so advised may seek any other legal remedy including filing of suit for recovery.  Since, the complainant has been pursuing the complaint before this District Forum, as such, the time spent from the date of filing of the complaint till the decision of this complaint is ordered to be excluded from the period of limitation provided for recourse to the legal remedy whatsoever chosen by the complainant. 

14.              The arguments in the case were heard on 04.03.2015 and the order was reserved.   This order be communicated to the parties, free of costs, as permissible under the rules.

Dated: 11.03.2015