Karnataka

Kolar

CC/18/2014

Sri. J.B. Rangappa,, - Complainant(s)

Versus

State Bank of Mysore, - Opp.Party(s)

B.S.Amarnath

13 Jul 2015

ORDER

                                                                                      Date of Filing:  25.04.2015

                                                                                      Date of Order : 13.07.2015

 

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, KOLAR

 

Dated   13^th JULY 2015

 

PRESENT

 

Sri. N.B. KULKARNI                     …….              PRESIDENT

           Sri. R. CHOWDAPPA                     …….             MEMBER

           Smt. A.C. LALITHA                       …….              MEMBER

 

 

CC No. 18 / 2014

 

Sri. J.B. Rangappa,

S/o. Banappa,

R/at Jangama Gurjenahalli Village,

Arahalli Post,

Kolar Taluk.

 

(By Sriyuths B.S. Amarnath & M. Srinivasa, Advs.)    …...Complainant

 

V/s.

 

 The Manager,

State Bank of Mysore,

Kolar Branch,

Kolar.

 

 

(By Sriyuth V. Sreedhara Murthy, Adv.)             …… Opposite Party

 

 

ORDER

 

By Sri. N.B. KULKARNI,  PRESIDENT

 

This Complaint is filed by the Complainant against the OP U/s. 12 of the Consumer Protection Act 1986 praying to pass an order directing the OP to return cheque bearing No. 42312 dated 04.12.2013 for sum of Rs.1,92,000/- of Axis Bank, Kolar Branch, Kolar or to pay said sum of Rs.1,92000/- towards cheque amount and Rs.8,000/- towards damages, thus in all Rs.2,00,000/- with interest at the rate of 18% p.a. from said date of the cheque till realization and for costs. 

 

2.       The facts in brief:

 

It is contention of the complainant that he has S.B. Account bearing No. 540424433434 with OP being branch at Kolar, wherein he has regular transactions and that one Sri. Madhusudhana. G on 04.12.2013 did issue the said cheque for the said sum drawn on the said Bank being Branch at Kolar.    And that it was dishonoured as “Funds Insufficient”.   And that this was borne out by way of endorsement in the account extract and also pass book issued.   And that the original cheque was not returned.    And that frequent approaches to get the same back resulted in vain.  

 

3.       Further it is contended that notice was caused issued on 15.02.2014 for which OP gave untenable reply.   So, contending he has come up with this complaint on hand.    Along with the complaint on 25.04.2014 he has submitted following five documents:

1. One original pass book issued by State Bank of Mysore.

2. Zerox copy of legal notice issued on 05.02.2014.

3. Zerox copy of Legal Notice (Reply) on 15.02.2014.

4. One original acknowledgement.

5. One original RPAD cover.

 

4.       On receipt of the notice the OP has put in appearance and on 25.07.2014 has submitted written version.  It is contended that the complainant is not ‘consumer’ as envisaged under the Act.   And that the complaint is bad for non-joinder of necessary parties and mis-joinder of unnecessary parties.    However, it is conceded up till development leading to dishonouring the said cheque on the count of “Funds Insufficient”.  Further it is contended that the said dishonoured cheque was sent to the address of the complainant through post.   And that as such there was no deficiency in service.      Thus, dismissal of the complaint with exemplary costs has been sought. 

 

5.       The complainant has submitted his affidavit evidence by way of examination in chief.   The Assistant Manager Sri. C. Kamalakar has submitted his affidavit evidence by way of examination in chief as a OP.   On 05.05.2015 the Learned Counsel appearing for the OP has submitted Xerox copy of Govt. Cash Payment Register maintained by it, which is self verified.  On 28.02.2015 the Learned Counsel appearing for the complainant has submitted written arguments, whereas Learned Counsel appearing for the OP on 05.05.2015 has submitted written arguments.   On 07.07.2015  the Learned Counsel appearing for the OP with memo has submitted Xerox copy of following citation:

1. Civil Appeal No.43/2009 decided by the Hon’ble Supreme Court of India on 07.01.2009.

 

6.       On 06.05.2015 heard the oral arguments as submitted by the Learned Counsel appearing for both sides in part.   However, on 07.07.2015 the Learned Counsel appearing for the OP submitted that there could be no further oral arguments.    However, on 09.07.2015 case was adjourned as the Learned Counsel appearing for the complainant was absent on 07.07.2015.    As on 09.07.2015 the Learned Counsel for the complainant had continued to remain absent it was taken that there could be no further oral arguments.

 

7.       Therefore, the points that do arise for our consideration in this case are:

 

1. Whether the complainant is the consumer as envisaged under section 2(1)(d) of the Act?

 

2. If so, whether the Complainant proves deficiency in service on the part of the OP?

 

(iii)    Whether the Complainant is entitled for the reliefs sought

 for?

 

(iv)    What Order ?

 

8.       Our findings to the above points are:

 

1. In the affirmative

 

2. In the affirmative

 

3. Party affirmative

 

4. As per final order

 

REASONS

 

9.       Point Nos. (i) to (iii) – As these points do deserve common course of discussion and to avoid repetition in reasonings, they are taken for consideration at a time. 

 

 10.    When, indisputably the complainant was/is SB Account Holder with the OP having Branch Office at Kolar vide said Account No. 54042433434, certainly the complainant is consumer as envisaged under the said provisions.   Since, he has complained deficiency in service, the dispute even is also the consumer dispute.

 

11.     Up till dishonouring of the said cheque both the parties are not at controversy.   The Learned Counsel appearing for the OP by relying on the said document is to contend that vide Sl. No. 6 the entries made  would show that the said dishonoured cheque was sent by post.    This entry since self serving and as there is no postal document to support it, the same cannot be held as proper evidence to suppose that the complainant is in receipt of dishonoured cheque.  

 

12.     For better appreciation we deem it fit to extract para.6 of the said citation relied by the Learned Counsel appearing for the OP.    It reads thus,

 

“We have considered the respective submissions.   In our view the State Commission was not at all justified in awarding interest to the respondent.   Undisputedly the drawer, namely, Anil Kumar did not deposit any amount in the bank between 28^th March, 1998 and the date on which the cheque is said to have been issued in favour of the respondent.   Therefore, it was impossible for the respondent to get the amount credited in his account.    If the cheque had not been lost in transit, the same would have been dishonoured due to insufficiency of funds.    On its part, the bank had advised the respondent to obtain duplicate cheque from the drawer Banking Ombudsman gave similar advise to the respondent by pointing out that he can get duplicate cheque by resorting to Section 45A of the Negotiable Instruments Act.   However, the respondent did not take any steps whatsoever for obtaining duplicate cheque from Anil Kumar.   The reason for this is not far to see.   Anil Kumar had sum less than Rs.200/- in his account at the relevant time.   The appellant was aware of this and, therefore, he did not resort to Section 45A of the Negotiable Instruments Act.   Not only this, he did not take any action for recovery of Rs.9.85 lakhs from Anil Kumar either by filing a complaint before appropriate forum or by filing a suit before the competent civil court.”

 

13.     For the reasons to be stated the principles enunciated in the said citation are in applicable.  The complainant in the said citation had taken initiation in opening S.B. Account of the drawer by name Anil Kumar with the appellant Bank therein, and to the knowledge of the complainant therein from 28.03.1998 till 29.09.2000 there was no deposit in the said Bank in the name of the drawer.  Such are not the facts with regard  to the case on hand.  Besides, as per the principles in the said citation the Ombudsman had indicated the complainant therein to get duplicate cheque as envisaged under section 45 A of the N.I. Act on account of loss of the cheque during transit that was sent for collection.   Again, such are not the facts here. 

 

14.     Contrary the present complainant has been prevented from prosecuting the drawer of the cheque by name Madhusudhana G as indisputably the cheque was dishonoured, and this dishonoured cheque was not placed in the hands of the present complainant.    Therefore, service of the OP did not come to an end by simply relying on said self serving and unreliable entry.    Contrary the meaningful services could have been concluded only after showing that the complainant was in receipt of dishonoured cheque.   Therefore, the OP is bound to be held as grossly negligent, hence, deficient in service.   

 

15.     However, the complainant cannot seek the very encashment under the said cheque.    But, we cannot overlook the aspect that for no fault of him the complainant was prevented from prosecuting the said drawer for violation of section 138 of N.I. Act.    For this the OP is responsible.  Therefore, we are of the definite opinion that damages of Rs.8,000/- as claimed in the complaint deserve to be allowed.   Consequently, our findings on these points are as noted above.

 

 

16.     Point No. (iv) –  In the result, we proceed to pass the following order:

 

ORDER

 

1. The complaint is allowed with costs of Rs.3,000/- as hereunder.

 

2.  The complainant is held entitled to compensation of Rs.8,000/- together with interest at the rate of 9% p.a. from 25.04.2014 being the date of the complaint till realization for being recovered from the OP.

 

      3.  Send free copy of this order to both the parties.

 

Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Open Forum on this, the 13^th  July 2015.

 

 

 

 

 MEMBER                              MEMBER                    PRESIDENT