BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

O.P. No. 321/2004 Filed on 13.08.2004

Dated : 17.08.2009

Complainant:

Suja Alex, T.C 24/255, Stonil, Thycaud, Thiruvananthapuram-14.

(By adv. Sarath Chandran Nair)

Opposite parties:

1. State Bank of Travancore, Vazhuthacaud Branch, Thiruvananthapuram.

(By adv. Hari Kumar Meenattoor)

2. UCO Bank, 91/1, Hazra Road, Kolkatta, West Bengal-26.

(By adv. S. Laila)

Addl. Opposite party:

3. Speed and Safe Courier (P) Ltd., Near Government Hospital, Thycaud, Thiruvananthapuram.

(By adv. S. Reghu Kumar)

This complaint is disposed of after the period so specified under the Consumer Protection Act, 1986. Though the case was taken up for orders by the predecessors of this Forum on 28.10.2005, the order was not prepared accordingly. This Forum assumed office on 08.02.2008. This O.P having been taken as heard on 15.07.2009, the Forum on 17.08.2009 delivered the following:

ORDER

SMT. S.K.SREELA : MEMBER

The case of the complainant is as follows: The cheque bearing No. 043579 dated 15.11.2003 amounting to Rs. 31,500/- drawn on UCO Bank Hazra Road, Calcutta signed by Mr. Rampuria, Managing Director of Zigma software Ltd., Kolkata was presented by the complainant to State Bank of Travancore, Vazhuthacaud, Thiruvananthapuram on 11.05.2004 for collection as the complainant maintained a Savings Bank account in the said 1^st opposite party bank. The cheque entrusted for collection was returned with an endorsement “cheque is out of date”. The complainant presented the cheque in opposite party bank on 11.05.2004 and the cheque was sent for collection to the drawee bank late resulting in the cheque becoming stale. The said instance constituted deficiency in service, negligence and unfair trade practice. The 1^st opposite party bank was duty bound to forward the cheque to the drawee bank on the very same day of the presentation of the cheque. The 1^st opposite party bank delayed in forwarding of the cheque which resulted in cheque reaching the drawee bank only on 18.05.2004. The validity of the cheque was upto 15.05.2004 and due to negligence on the part of the 1^st opposite party, the cheque became stale when it reached the drawee bank. The said act of the 1^st opposite party constituted deficiency in service, negligence and imperfection in service. The act of the 2^nd opposite party bank in dishonouring the cheque by stating the cheque is out of date also constitutes deficiency in service. The act of the 1^st opposite party bank deprived the complainant of the opportunity to realize Rs. 31,500/- from the drawer of the cheque. If the cheque was dishonoured then the complainant had the right to institute criminal proceedings under Sec. 138 of Negotiable Instrument Act, 1881. With a stale cheque, a complaint under Sec. 138 of Negotiable Instrument Act cannot be lodged and the said option was foreclosed.

Opposite parties filed their separate versions. The 1^st opposite party in their version contends as follows: Complainant presented the said cheque bearing No. 043579 dated 15.11.2003 for the sum of Rs. 31,500/- drawn on UCO Bank, Hazra Road, Calcutta, at the first opposite party bank only on 11.05.2004 and the said cheque was entered into the computer system for collection on 11.05.2004 and sent for collection by the 1^st opposite party on 12.05.2004, to its collecting branch-Calcutta Branch, through M/s Speed and Safe Courier Services Pvt Ltd. The said cheque was sent for collection promptly by the 1^st opposite party and neither deficiency in service nor negligence and unfair trade practices were caused by the 1^st opposite party as alleged. The complainant herself was negligent for sending the said cheque for collection, which was dated 15.11.2003 and presented for collection only on 11.05.2004 though she was aware of the fact that its validity period expires on 15.05.2004 and it could be collected only by sending to Calcutta. The 1^st opposite party was prompt and punctual in sending the said cheque for collection and the allegations of the complainant that such sincere and efficient service are deficient, negligent and imperfect will tantamount to defamation. There is no deficiency or defect in the service of the 1^st opposite party. No delay was caused from the part of the 1^st opposite party in sending the said cheque for collection.

The 2^nd opposite party contended that the alleged incident occurred only due to the negligence and latches of the complainant herself. This opposite party is not a necessary party in this complaint and the complainant has not sustained any grievance due to the act of this opposite party and hence the complaint is bad for misjoinder of parties. The complainant is not a consumer of this opposite party and this opposite party in this particular alleged transaction was not rendering any service as defined in the consumer Protection Act. It is an admitted fact that the complainant obtained the alleged cheque dated 15.11.2003 in August 2003. Complainant is a well educated lady and she very well knows that cheques should be presented to the bank for encashment within a period of six months from the date on which it is drawn or within the period of its validity, whichever is earlier. She withheld the cheque almost the entire period of its validity and presented on 11.05.2004 i.e; just 3 days before its expiry period, for an interstate collection. If she was prudent as an ordinary woman, in similar circumstances the alleged incident would not have happened. From the admissions in the complaint itself the complainant is well aware that the particular cheque reached this opposite party only on 18.05.2003 that is after it became stale. She also knows that with a stale cheque, a complaint under Sec. 138 of Negotiable Instrument Act cannot to be lodged. With all these knowledge this complainant filed this complaint against this opposite party only to harass this opposite party. No bank is entitled to honour a stale cheque. Hence this opposite party correctly returned the cheque for the reason “cheque is out of date”. This opposite party duly followed the directions of the Reserve Bank of India and there is no deficiency in service as alleged in the complaint. It is respectfully submitted that the complainant filed this complaint with out clean hands and with malice intention so as to get unlawful gain over this opposite party. Hence the complaint is to be dismissed. This opposite party is not liable to pay the complainant any amount as compensation or cost as prayed for or as stated in the statement of account.

The Courier company, the additional 3^rd opposite party, contends that the complainant is not a consumer or a beneficiary of service of this opposite party or is there any privity of contract between the complainant and this opposite party. This opposite party has not offered or rendered any service to the complainant for consideration. This opposite party is the approved courier of the 1^st opposite party and is rendering services to State Bank of Travancore for more than a decade. On the evening of 12.05.2004 the 1^st opposite party has entrusted a cover to this opposite party to be delivered at its Calcutta branch under Consignment Note No. A 58307. This opposite party is not in a position to say as to what was its contents as it was sealed. The value of the consignment or its contents were also not declared to this opposite party by the 1^st opposite party at the time of booking. The said consignment No. A 58308 entrusted to this opposite party on the evening of 12.05.2004 was promptly delivered at their branch name State Bank of Travancore Calcutta on 15.05.2004 that is within the stipulated time agreed upon between this opposite party and 1^st opposite party. As such there is no deficiency of service or negligence on the part of this opposite party. The complainant has no cause of action against this opposite party. This opposite party is not a necessary or proper party to this proceedings. This opposite party is unnecessarily dragged into these proceedings. The above complaint as against this opposite party is liable to be dismissed with costs and it is prayed accordingly.

The issues that would arise for consideration are:-

1. Whether there is any delay on the part of the opposite parties?

2. Whether the complainant is entitled for the reliefs claimed?

Points (i) & (ii):- From the contentions and allegations, the aspect to be looked into is whether there has been any wilful delay on the part of any of the opposite parties. The complainant has admitted that the cheque has reached the 2^nd opposite party, UCO Bank, on 18.05.2004, i.e, after the expiry of 6 months from the date of cheque and thus the same has been returned by the 2^nd opposite party as it has become stale. Hence whether 1^st opposite party has promptly sent the cheque for collection and whether there is any inordinate delay are to be looked into. As per the version of the 3^rd opposite party, the cheque has been delivered at the Calcutta branch on 15.05.2004 which is within the stipulated time agreed between the 3^rd opposite party and the 1^st opposite party. The 2^nd opposite party contends that the cheque reached them on 18.05.2003. There is no dispute with regard to the date of receipt of the cheque by the 2^nd opposite party.

From the records on file, it can be seen that the SBT has entrusted the consignment, to Calcutta, with Speed & Safe Courier on 12.05.2004. This is admittedly an outstation cheque which of course will take time for clearance though the complainant has deposed that she doesn't know whether delay will be caused for the same. Here the cheque has reached the Calcutta branch of the 1^st opposite party on 15.05.2004, the date on which the validity period of the cheque expires. The complainant has alleged that the 1^st opposite party delayed in forwarding the cheque to the drawee bank which has resulted in cheque reaching the drawee bank only on 18.05.2004. The 1^st opposite party in their affidavit has sworn that the complainant herself was negligent for sending the said cheque dated 15.11.2003 for collection and presented for collection only on 11.05.2004 though she was aware of the fact that its validity period expires on 15.05.2004 and it could be collected only by sending it to Calcutta.

In order to find negligence or deficiency in service on the part of the 1^st opposite party, delay has to be established. 15.05.2004 is a Saturday and 16.05.2004 is a Sunday and the cheque has reached the drawee bank i.e UCO Bank on 18.05.2004 which is a Tuesday. It is clear from the above that the cheque has been consequently send for realisation, without any delay, to the UCO Bank. On consideration of the facts and circumstances leading to the return of the cheque, there is no ground to hold any kind of deficiency in service. In this case from the records and evidence on file we do not find any wilful or inordinate delay or negligence on the part of the opposite parties. We further find that the complainant is also equally responsible for the dishonouring of the cheque as the same was presented for collection on 11.05.2004 only to the bank where the complainant was maintaining an account and the complainant was well aware that the outstation cheque has to reach the drawee bank which is at Calcutta on or before 15.05.2004.

Taking an overall view from the records on file and considering the facts and circumstances of the case, this Forum is of the view that no deficiency in service can be attributed on the part of the opposite parties and there appears to be no element of neglect or deficiency in service and hence the complaint is only to be dismissed.

In the result, complaint is dismissed. No order as to costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 17^th day of August 2009.

S.K. SREELA : MEMBER

G. SIVAPRASAD : PRESIDENT

BEENAKUMARI. A : MEMBER

O.P. No. 321/2004

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Suja. S

II COMPLAINANT'S DOCUMENTS :

P1 - Copy of pass book bearing Account No. 19870 issued by

SBT, Vazhuthacaud.

P2 - Copy of cheque dated 15.11.2003 for Rs. 31,500/-

P3 - Copy of pay-in-slip dated 11.05.2004

P4 - Copy of Cheque Returning Memo issued by UCO Bank

P5 - Copy of Returned Cheque Remittance Memo issued by

SBT.

P6 - Copy of lawyer's notice.

P7 - Original postal receipt dated 17.06.2004

III OPPOSITE PARTY'S WITNESS :

NIL

IV OPPOSITE PARTY'S DOCUMENTS :

NIL

PRESIDENT