IN THE CONSUMER DISPUTES REDRESSAL FORUM, ALAPPUZHA
Monday the 19th day of March, 2018
Filed on 23.06.2017
Present
- Smt. Elizabeth George (President)
- Sri. Antony Xavier (Member)
- Smt.Jasmine.D (Member)
in
C.C.No.176/2017
between
Complainant:- Opposite Party:-
Sri. Bhaskaran 1. State Bank of Travancore
S/o Krishnan Kayamkulam
Muravasseril
Kandalloor South Muri 2. The Manager
Kandalloor Village - 690535 State Bank of India,
Rep. by Power of Attorney Holder Kayamkulam Branch.
Sri, Renjan 3. Sri.Suresh Sudhakaran,
S/o Vasudevan S/o Sudhakaran,
Athira Bhavanam Plamoottil,
Kandalloor South Muri Kandalloor South Muri,
Kandalloor Village.Kandalloor Village.
(By Adv.P.Biju)(By Adv.K.G.Ajith Kumar -
for opp: party 1&2)
O R D E R
SMT. ELIZABETH GEORGE (PRESIDENT)
The case of the complainant is as follows:-
Complainant is represented by the power of Attorney holder. On 3/9/2016 the 3rd opposite party reached the house of the complainant and received Rs. 1,50,000/- from him and issued a cheque dated 3/12/2016 for the said amount. The complainant presented said cheque before the 1st opposite party on 13/12/2016. The complainant has approached the 1st opposite party several times and enquired about the cheque whether it has encashed or not. Since there was no credible information about the encashment the complainant issued an Advocate notice to the 2nd opposite party on 18/2/2017 and it was received by the 2nd opposite party. There after the 2nd opposite party issued reply notice stating that the original cheque found misplaced in bank. The opposite party failed to return the original cheque and the dishonor memo to the complainant. The irresponsible attitude of the opposite parties caused many difficulties to the complainant. Alleging deficiency in service on the part of the opposite parties the complaint is filed.
2. Version of the opposite parties 1 and 2 as follows:-
The petition filed by the Power of Attorney Holder of so called Bhaskaran is not maintainable either in Law or on facts. Even if the alleged incident of dishonour of cheque and intimation matter is true, this C.P is not admitting any such willful fault. The alleged dispute and so called transaction was in between complainant and 3rd C.P. Complainant could have initiated proceedings U/S 138 of N.I Act as the limitation starts only after receiving intimation from Bank. But from the Petition it can be seen that the complainant has not even tried to avail any Legal Remedy available or open to him. The opposite parties 1 and 2 are not aware about the transaction entered into between complainant and 3rd opposite party. Due to an unexpected human error there accured a delay in informing the dishonor of said cheque to the complainant. The detailed enquiry continued four days which lead to understand that the said cheque was bounced for reason want of money and that cheque is misplaced. Since the original cheque is found misplaced , a scanned copy of the same from bank records duly attested under provisions of law has been send on 2-3-2017 along with cheque return memo to Advocate of complainant who received it on 04-03-2017. There is no deficiency in service on the part of the opposite party.
3. Notice issued against the 3rd opposite party was served, but they did not turn up hence 3rd opposite party was set expartie. The Power of Attorney Holder of the complainant was examined as PW1. The documents produced were marked as Ext.A1 to Ext.A7. No oral or documentary evidence adduced from the part of the opposite party.
4. Points for the considerations are:-
- Whether there is any deficiency in the service of the Opposite Parties?
- Whether the complainant is entitled to get any relief?
5. Complaint is filed by the power of attorney holder of the complainant. The power of Attorney produced and marked as Ext.A1. It is an admitted fact that complainant presented the cheque bearing No. 188006 of SBI Kayamkulam branch for Rs. 1,50,000/- on 13/12/2016 with the 1st opposite party.According to the complainant he made so many enquiries with the opposite party about the cheque whether it was encash or not and since there was no credible information about the encashment he sent an advocate notice on 18/02/2017.There after opposite party sent reply to him, informing that the cheque found misplaced in bank.It is admitted by opposite party 1 and 2 that they intimated the misplacement of cheque to the advocate of complainant as a reply to the advocate notice.Opposite party 1 and 2 stated that they have sent with the reply notice the true copy of cheque received for collection along with cheque return memo.Complainant produced the reply notice along with true copy of cheque and dishonor memo and it marked as Ext.A7 series.According to the complainant the bank failed to return the original cheque and dishonor memo to him. We have perused Ext.A7 series.Cheque no. 188006 was dated 3/12/2016 and the validity of cheque date will be expired on 3/3/2017. But opposite party sent Ext.A7 series only on 1-3-2017. So it is clear that opposite party had taken so much time to inform the complainant about the missing of cheque.
It is an admitted fact that the original cheque is lost by the opposite party.The clarification of the opposite party is that due to an unexpected human error, there occurred a delay in informing the dishonor of cheque to the complainant. It is not a reasonable explanation.According to the opposite party the misplacement of cheque is informed to the advocate of complaint along with true copy of cheque return memo.But complainant failed to file complaint under section 138 of NI Act.While cross examing the power of attorney holder as PW1,to the question put by the learned counsel of the opposite party “ Bank - \n¶pw Ext.A7 document  ]d-bp¶ sdt¡mÀUp-IÄ Ext.A5se Xmev]-cy-{]-Imcw \n§-fpsS `mKw A`n`mjI\p Ab¨p sImSp¯ tijw \nb-am-\p-kr-X-amb XpSÀ\-S-]Sn kzoI-cn-¡m-Xn-cn-¡m³ ImcWw hÃXpw Dtm. he answered that h¡o ]dªp Hdn-Pn-\ sN¡v thW-sa¶v F¶m C¶p hsc B sN¡v X¶n-«n-Ã. More over after receiving the scanned certified true copy of the cheque along with dishonor memo and covering letter of Bank, complainant did not take any initiative to peruse the matter for the realization of cheque either by initiating criminal proceedings or by civil suit. There was no embargo in initiating legal proceedings apart from the fact that the original cheque was missing. Complainants did not enter the box and explained the reasons for not initiating legal proceedings inspite of receipt of the certified copy of the original cheque. It is true that there was delay on the part of the Bank in informing the missing of original cheque to the complainant and that amounts to deficiency in service on the part of the 1st and 2nd opposite party.
In a decision Vijay Bank Vs. M/s Nectar Beverages (P) Ltd and others, Revision Petition No.4201 of 2007 Hon’ble National Commission held that “Regarding the compensation amount to be given for deficiency in service, we are unable to agree that the compensation amount should be the same as that mentioned in the cheque.There are a number of Judgments of Hon’ble National Commission including in Central Bank Vs. Sudheer Ahuja, I (2007) CPJ 1 (NC), wherein the Commission has held that on a ground of deficiency in service, the bank can be ordered to pay the compensation and not the entire amount of the cheque”.Following this precedent since there was a clear deficiency in service on the part of the opposite parties, in informing the missing of original cheque to the complainant we are of the view that Rs. 20,000/- is adequate and equitable compensation.
In the result, the complaint is allowed partly.The opposite parties 1and 2 are directed to pay the complainant, an amount of Rs. 20,000/-(Rupees Twenty Thousand only) within a period of one month from the date of receiptof this order, failing which this amount would carry interest 9% per annum from the date of filing the complaint.The opposite parties are further directed to pay Rs. 3000/-(Rupees Three thousand only) towards cost of the proceedings.
Dictated to the Confidential Assistant transcribed by her corrected by me and pronounced in open Forum on this the 19th day of March, 2018.
Sd/- Smt.Elizabeth George (President) :
Sd/- Sri. Antony Xavier (Member) :
Sd/- Smt.Jasmine.D. (Member) :
Appendix:-
Evidence of the complainant:-
PW1 - P.Renjan (Witness)
Ext.A1 - Power of Attorney
Ext.A2 - Copy of Cheque dtd.3/12/2016
Ext.A3 - Original Deposite receipt SBT
Ext.A4 - Postal Receipt
Ext.A5 - AD card
Ext.A6 - Legal Notice
Ext.A7 - Reply notice
Evidence of the opposite party:- Nil
// True Copy //
By Order
Senior Superintendent
To
Complainant/Opposite parties/S.F.
Typed by:- Br/-
Compared by:-
