Delhi

StateCommission

A/1013/2014

CANARA BANK - Complainant(s)

Versus

S.N. SHARMA & ANR. - Opp.Party(s)

21 Dec 2018

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:21.12.2018

 

First Appeal- 1013/2014

(Arising out of the order dated 06.08.2014 passed in Complainant Case No. 218/2011 by the District Consumer Disputes Redressal Forum (Central), Kashmere Gate, Delhi)

 

Canara Bank,

Through its Branch Manager,

Paharganj Branch,

New Delhi-110055.

 

…..Appellant

 

Versus

1.       Sh. S.N. Sharma,

S/o Late Sh. Baij Nath Sharma,

3709/10, IInd Floor,

Gali Barna Wali,

Near Baratooti Chowk,

Sadar Bazar,

Delhi-110006.

 

2.       Andhra Bank,

Through its Branch Manager,

•  

Vijayawada.

 

.….Respondents

 

 

 

First Appeal- 153/2015

 

 

Shri S.N. Sharma,

S/o Late Brij Nath Sharma,

3709/10, IInd Floor,

Gali Barna Wali,

Near Baratooti Chowk,

Sadar Bazar,

Delhi-110006.

…..Appellant

 

Versus

1.       Canara Bank,

Through its Branch Manager,

Paharganj Branch,

New Delhi-110055.

 

2.       Andhra Bank,

          Through its Branch Manager,

          Sitarampuram,

          Vijaywada.

 

.….Respondents

 

 

 

CORAM

 

Justice Veena Birbal, President

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

Justice Veena Birbal, President

 

1. Both these appeals arise out of one order dated 6.8.14 passed in CC No.218/11 by the Consumer Disputes Redressal Forum (Central), Kashmere Gate, Delhi (in short, “the District Forum”) as such are taken up together.
2. Appeal No.153/15 is filed by the complainant and appeal No.1013/14 has been filed by the OP-1 i.e. Canara Bank.  By the aforesaid order, the Ld. District Forum has given following directions to OP-1:

“1. Pay to the complainant a sum of Rs.50,000/- as compensation for the pain and agony suffered by the complainant.

 

2. Pay to the complainant a sum of Rs.10,000/- as cost of litigation.”

 

 

3. For the sake of convenience, parties are hereinafter referred as are arrayed in the complaint.
4. Briefly the facts relevant for the disposal of the present appeal are as under:

A complaint under Section 12 of the Consumer Protection Act, 1986 was filed by the complainant stating therein that he was maintaining a bank account with OP-1 i.e. Canara Bank. On 18.5.11, he had deposited a cheque bearing No.795068 dated 18.5.11 for a sum of Rs.5 lacs drawn on Andhra Bank, Vijaywada i.e. OP-2 for with OP-1 bank for realisation of cheque amount. It was stated that the aforesaid cheque was neither returned to complainant nor it was encashed nor any kind of memo in respect of dishonouring of the cheque was issued to complainant.  It was alleged that complainant had been visiting OP-1 bank enquiring about the status of the cheque but no satisfactory reply was being given to him.  It was alleged that OP bank had not discharged its duty and had acted in a very negligent manner in not returning the cheque to complainant.  The same had caused financial hardship to him as such a complaint was filed before the District Forum seeking return of the cheque which complainant had presented to OP-1 bank for collection or in the alternative to pay a sum of Rs.10 lacs along with interest @ 18% per annum from 18.5.11 till actual payment.  Complainant had also prayed for award of compensation of Rs.5 lacs along with litigation cost of Rs.31,000/-.

5. Complaint was opposed by OP-1/Canara Bank by filing written statement wherein it was admitted that the complainant was maintaining a bank account with it.  OP-1 also admitted that the complainant had deposited with it a cheque of Rs.5 lacs, the details of which have been given above which was drawn on Andhra Bank, Vijaywada for collection i.e. OP-2.  OP-1 stated that the cheque was dropped in the box and the same was sent for realization to OP-2 but till date the cheque was not received back due to which the same could not be handed over to the complainant.  OP-1 alleged that only OP-2 i.e. Andhra Bank was in a position clarify as to whether the instrument was realized or returned unpaid.  OP-1 denied any deficiency on its part and prayed for dismissal of the complaint.
6. OP-2 filed written statement wherein it was stated that the complaint was not maintainable against it as it was not privy to the contract between the complainant and OP-1. OP-2 denied that OP-1 had sent the cheque in question to it for collection. OP-2 denied having received any such cheque.
7. Counsel for parties filed evidence by way of affidavits.  After hearing the parties, Ld. District Forum held OP-1 deficient in rendering services to complainant and also held that OP-1 ought to have brought to the notice of the complainant the fact that it had not been able to collect the proceeds of the cheque and that the cheque had been lost in transit. In the circumstances, the District Forum directed OP-1 bank to pay compensation of Rs. 50,000/- and costs of litigation of Rs. 10,000/- as has been stated above to complainant.

 

8. Aggrieved with the aforesaid order, complainant as well as OP-1 bank have filed two separate appeals.
9. Complainant has contended that though the District Forum had allowed the complaint, however, District Forum has not appreciated the facts of the case.  It is contended that in the facts and circumstances of case Ld. District Forum has committed error in not directing OP-1 bank to refund the cheque amount to the complainant and it is contended that if the cheque would have received back with distinct report in that event complainant would have instituted the proceedings under Section 138 of Negotiable Instrument Act against the person who had issued the cheque in question and complainant would have got penalty twice of the amount of the cheque. It is contended that the OP has acted in a reckless and negligent manner in non-returning of cheque, it is contended the same has  caused grave financial hardship to complainant as well as mental agony to him.  Even the awarded amount of compensation is on very low side. Complainant has prayed for setting aside of the impugned order and has sought directions against OP as are prayed in complaint.
10. The stand of OP-1 bank is that the District Forum has wrongly allowed the complaint.  The complainant was already informed that the instrument had not reached back as such OP-1 was not in a position to return the same.  It is contended that there is no negligence or deficiency in service or breach of duty on the part of OP bank and District Forum has wrongly directed it to pay compensation and costs of litigation to complainant. It is contended that the complainant has failed to place on record the documents relating to advance of alleged loan to the drawer of the cheques i.e. Sh. T. Sudhakar.  Even Sh. T. Sudhakar was not made a party to the complaint as such the complainant was not entitled to any relief.  It is contended that complainant has not approached the Ld. District Forum with clean hands and complaint is liable to be rejected.
11. Ld. Counsel for parties are heard and material on record is perused.
12. It is admitted position that the complainant had deposited the cheque in the drop box of OP-1 bank.  It is also not disputed that OP-1 had sent the cheque in question to OP-2 for encashment.  It is the stand of OP-1 bank that the cheque sent was not received back.  OP-1 bank has not placed on record any correspondence to show what efforts it had made to know the reasoning from OP-2 as to why the cheque had not been encashed or returned.  OP-1 bank ought to have made serious efforts to know the truth from OP-2 bank. In these circumstances, it cannot be said that there is no deficiency in service or breach of duty on the part of OP-1 bank.  Once the cheque was sent, it ought to have made enquiries to know its fate. The contention of OP-1 in this regard is rejected.
13. As regards the stand of complainant that had the cheque been returned to him with distinct report, he could have instituted proceedings under Section 138 of Negotiable Instrument Act against the person who had issued the cheque, we find that contention raised has no force.  The complainant did not lose all the remedies.  The complainant could have made request to drawer of cheque to issue another duplicate cheque to him.  He was also entitled to sue drawer of the cheque based on the original cause of action.  All the remedies were not lost to him.  There is no record also to show as to any request being made by the complainant to the drawer of the cheque in this regard or any enquiry made by him from drawer of the cheque.  OP-1 bank was under obligation to pay the amount of cheque only after receiving the fund from the bank of the borrower. In the present case, no such funds are received.  In these circumstances, OP-1 bank cannot be directed to pay the cheque amount to the complainant along with interest as has been prayed.  There is also no evidence led by complainant to show that there was loss caused to him in as much as that the cheque had been misused or encashed.  In these circumstances, bank cannot be held liable to pay the cheque amount to the complainant.  Reliance in this regard is placed on the judgement of National Commission in State Bank of India vs Muntha Lakhmi Kumari, I (2009) CPJ 198 (NC).
14. In view of above discussion, appeals filed by both the parties stand dismissed.
15. A copy of this order as per the statutory requirements be forwarded to the parties free of charge.  The record of the District Forum be also sent back forthwith.  Thereafter the file be consigned to record room.

         

 

(Justice Veena Birbal)

                                                                                                                                                                                                                                                                            PRESIDING