Date of filing:05.03.2020

                                                                                                Date of Disposal:09.03.2023

BEFORE THE KARNATAKA STATE CONSUMR DISPUTES REDRESSAL COMMISSION, BENGALURU (PRINCIPAL BENCH)

DATED: 09^nd Day of March 2023

PRESENT

Mr. K B SANGANNANAVAR: JUDICIAL MEMBER

Mrs.M.DIVYASHREE : LADY MEMBER

APPEAL NO. 301/2020

ORDER

BY Mr. K. B. SANGANNANAVAR: Pri. Dist. & Session Judge (R)- JUDICIAL MEMBER

1. This is an appeal filed by OP in CC/333/2019 on the file of I Additional District Consumer Disputes Redressal Forum, Bengaluru aggrieved by the order dated 31.01.2020.

2. The Commission examined grounds of appeal, impugned order, appeal papers and heard learned counsels.

3. The brief facts are:  As complainant presented a cheque bearing No.795077 dated 27.08.2018 for Rs.90,000/- drawn on Syndicate Bank, was sent for clearance by the appellant/OP bank, came to be returned for reason Payment stopped by the drawer and when the said cheque was returned with such endorsement by the drawee bank, was lost in transit, which was informed to the complainant/respondent. In this regard Complainant raised consumer complaint alleging deficiency in service on the part of OP/appellant bank, sought for direction to pay Rs.90,000/- along with interest @ 18% p.a. and Rs.50,000/- as damages for causing mental agony and this complaint was contested by the OP/appellant and the  Commission below held, OP liable to pay Rs.90,000/- along with 06% p.a. from the date of deposit of the cheque with OP and to pay Rs.10,000/- towards damages and Rs.5,000/- as cost of litigation and this is the order now assailed in this appeal, contending that Commission below failed to perceive the facts in right perception.  The Commission below failed to appreciate materials on record, in particular Section 61, 62 and 65 of Evidence Act, 1872.  On the contrary, respondent/complainant justified the impugned order, contending that Commission below rightly appreciated materials and rightly held OP/appellant was deficient in rendering banking service to its customer.

4. Complainant has made The Manger, Canara Bank namely the appellant herein as his opponent.  It is admitted fact that Syndicate Bank is a drawee bank.  It is also an admitted fact that complainant presented the said cheque on 27.08.2018 and on 04.09.2018.  It is not in dispute that the cheque presented by complainant was sent for clearance and the same was dishonored as Payment stopped by drawer.  Complainant has failed to disclose the name of author of the said cheque.  In other words, failed to implead either the author of the cheque or the Syndicate Bank as parties to the complaint case if not necessary parties but as proper parties to adjudicate the complaint under consumer law to find out the alleged deficiency of services alleged against the OP/ appellant.  It is not that the cheque sent by appellant bank for clearance to Syndicate bank was lost in transit at their negligence.  Learned counsel brought to the notice of the Commission that cheque presented by Canara bank for clearance was received by Syndicate bank and the said bank returned the said cheque with an endorsement Payment stopped by drawer being unable to obtain enclosed cheque bearing no.795077 and this endorsement is dated 12.09.2018 was not properly perceived  by the Commission below.  The complainant placed nothing on record as to why any action taken against drawer of the cheque for recovery of the amount. We could see, though the Commission below relied on the decision reported in 2009 CTJ 248 SC (CP) in the case of Federal Bank v. N.S.Sabastian and the decision reported in 2015 STPL 100093 NCDRC (2015(3) CPR 888) in the case of Ajay Kumar Singh v. Canara Bank, failed to apply the ratios laid down by the Hon’ble Apex Court and the Hon’ble NCDRC.  Further committed grave errors in appreciating the materials on record, in para-11 of the impugned order as there is no evidence led in by the OP that the drawer was not at all having enough money in his account.  In our view, the facts of the case are entirely different, since the cheque sent for clearance was returned to OP/ appellant bank for the reason Payment stopped by the drawer and not that drawer was not at all having enough money in his account.  In other words, as on the date, whether he was having enough money or not was not the issue before the forum. In our view, whether in his account he was having money or not makes no difference when drawer himself stopped payment in respect of the cheque sent for clearance by Canara bank to the drawee Syndicate bank and the Commission below failed to perceive all these legal implication to be examined and applied before passing any order. It is to be noted herein that the Commission below awarded Rs.90,000/- along with interest @ 06% p.a. is nothing but the amount covered under the cheque, lost in transit, sent by drawee bank being unable to obtain payment of the enclosed cheque for the reason Payment stopped by the drawer, has to be held is perverse, arbitrary, illegal, capricious as such  not maintainable either in law or on facts, is liable to be set aside with an observation that complainant/respondent could have filed the case under Negotiable Instrument Act as per Section 61, 62 and 65 of the Evidence Act by providing secondary evidence against the so called drawer to recover Rs.90,000/- covered under the said cheque or he could have initiated the other legal remedies against the drawer but definitely not against the appellant bank herein since he has avail efficacious remedies permissible under law.  Hence impugned order does call for an interference.  Accordingly, we proceed to allow the appeal.  Consequently, set aside the order dated 31.01.2020 passed by I Additional District Consumer Disputes Redressal Forum, Bengaluru in CC/333/2019 and in the result dismissed the complaint with no order as to cost.

5. The Amount in deposit is directed to be returned to the appellant bank with proper identification by his advocate.

6. Send a copy of this Order to the District Commission and parties to the appeal.

        Lady Member                             Judicial Member     

*GGH*