16.02.2015

MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER

            The instant Appeal u/s 15 of the Consumer Protection Act, 1986 has been directed against the judgment and order No. 18 dt. 16.10.2012 passed by the Ld. Consumer Disputes Redressal Forum, Unit-I, Kolkata, in Complaint Case No. CDF/Unit-I/Case No. 173/2011, directing the Appellant/OP to close the Personal Loan Account (No. 11293143099) of the Respondent/Complainant as also to issue ‘No Due Certificate’ in favour of the Respondent/Complainant.  The OP/Appellant was also directed to pay to the Respondent/Complainant Rs. 8,000/- as compensation and Rs. 2,000/- as litigation cost within 45 days from the date of order, failing which interest @ 9% shall accrue on the above amount for the entire period of default.

          The facts of the case, leading to the present Appeal, centred round a narrow compass.  The Complainant/Respondent obtained personal loan of Rs. 80,000/- on 8.8.2002 from the OP/Appellant-Bank.  As security for re-payment of the said loan the Complainant/Respondent deposited with the OP/Appellant-Bank 48 post-dated cheques bearing Nos. 49121 to 49168 for Rs. 2198/- each drawn on UBI, Thakurpukur Branch, which were to be presented to the concerned Bank for encashment thereof on the 10^th day of every English calendar month starting from 10.9.2002 till 10.08.2006.  Out of the said 48 post-dated cheques the OP/Appellant-Bank encashed all the post-dated cheques except the post-dated cheque bearing No. 49162 dated 10.2.2006 for Rs. 2190/- which was misplaced from the custody of the OP/Appellant-Bank as stated by the OP/Appellant-Bank.  The said cheque having thus been misplaced from the custody of the OP/Appellant-Bank, the loan amount of Rs. 2190/- as covered by the said cheque was shown by the OP/Appellant-Bank as outstanding, which gradually accumulated to Rs. 6833/- as on 1.9.2009, the accrued interest for default in repayment of the due loan amount being added to it.  In this position, the OP/Appellant-Bank started sending Demand Notices dated 6.9.2007 etc. to the Complainant/Respondent forcing, as alleged, the Complainant/ Respondent to repay the loan amount with accrued interest related to the said misplaced cheque.  In this factual background, the Ld. District Forum passed the impugned judgment and order in the aforesaid manner.  Aggrieved by such order the OP-Bank has preferred the instant Appeal.

          The Ld. Advocate for the Appellant/OP-Bank submits that the Appellant/OP-Bank could not present the cheque so misplaced from the custody of the Appellant/OP-Bank for encashment and thus could not recover the loan amount in question related to the post-dated cheque No. 49162 dated 10.2.2006 for Rs. 2190/- and hence, the Respondent/Complainant cannot escape from his liability for repayment of the unpaid loan amount along with interest accrued thereon.  It is also submitted by the Ld. Advocate that the misplacement/loss of the cheque in question took place due to inadvertence of the Appellant/OP-Bank and such inadvertence does not attract either any deficiency in service or negligence on the part of the Appellant/OP.  The Ld. Advocate finally submits that from the aforesaid facts and circumstances of the case the impugned judgment and order should be set aside, the same being unjust and improper.  In support of such submission the Ld. Advocate refers to  the following decisions of the Hon’ble National Commission.

1. State Bank of India Vs. M/s. Bansal Harware – 2009(4) CPR 60 (NC).
2. Dr. Guru Dayal Kumar Sinha Vs. Manager, Sate Bank of India, Dumra Branch – 2011 (3) CPR 251 (NC).
3. National Controlling Equipment Industries Vs. National Insurance Co. Ltd., through its Divisional Manager – 2012 (4) CPR 620 (NC).
4. Renu Sharma Vs. State Bank of Patiala, MID CORPORATE BRANCH – 2013 (3) CPR 512 (NC).
5. Rajasthan Housing Board through Secretary Vs. Smt. Gyanwati Jain (since deceased) through LRs & Ors. – 2014 (3) CPR 155 (NC).

On the other hand, the Ld. Advocate for the Respondent/Complainant

submits that the Respondent/Complainant deposited, at the initial stage of the sanction of the loan, with the Appellant/OP 48 post-dated cheques bearing No. 49121 to 49168 covering the entire amount of loan together with interest as  would be accrued thereon on the understanding that the loan amount with accrued interest was thus paid in full and final and in advance as per terms and conditions of the loan.  It is further submitted by the Ld. Advocate that the Respondent/Complainant did not keep any loan amount unpaid and that for the purported outstanding loan amount, if any, none but the Appellant/OP-Bank is responsible.  It is further submitted by the Ld. Advocate that inadvertence on the part of the Appellant/OP cannot be a tenable ground for shifting the Appellant/OP-Bank’s negligence and liability to the shoulder of the Respondent/Complainant who had no contribution for misplacement of the cheque in question.  The Ld. Advocate finally submits that the decisions referred to by the Ld. Advocate for the Apepllant/OP are not applicable to the present case as the facts of neither of the cases pertain to the misplacement/loss, of post-dated cheque deposited in advance as security, from the custody of the trustee-bank.  The Ld. Advocate finally submits that in this view of the case, the impugned judgment and order should be sustained, the same being just and proper on the principle of equity.

          We have heard both the sides, considered their respective submissions and perused the materials on records.

          Materials on records reveal that the post-dated cheques bearing Nos. 49121 to 49168 for Rs. 2190/- each were undisputedly deposited with the Appellant/OP-Bank as security for full and final settlement of the sanctioned loan together with accrued interest and that the Appellant/OP encashed all the cheques except the post-dated cheque No. 49162 dated 10.2.2006 for Rs.2190/-, which the Appellant/OP-Bank misplaced from their custody as admitted by the Appellant/OP-Bank  in their letter dated 18.1.2008 (Ref. No. BR No. 37 – 160 - Running Page-25, Annexure-G of the Memo of Appeal).  Materials on records thus indicate that the Respondent/Complainant is in no way responsible for the outstanding loan, if any.  Materials on records also suggest that the Respondent/Complainant made provision well in advance for full and final settlement of the outstanding loan in question by depositing the post-dated cheques with the lending Appellant/OP-Bank, the misplacement of which from the custody of the Appellant/OP-Bank  tantamounts to deficiency in service  on the part of the Appellant/OP-Bank.

Accordingly, we find substance in the submission of the Ld. Advocate for the Respondent/Complainant.  We also find force in the submission of the Ld. Advocate for the Respondent/Complainant in respect of inapplicability of the decisions as the Ld. Advocate for the Appellant/OP-Bank has referred to as mentioned hereinbefore, the facts of those decisions being not identical with that of the present case.

          The whole gamut of all facts and circumstances on records leans on the side of the Respondent/Complainant.  We, therefore, dismiss the Appeal with cost of Rs. 5,000/- to be paid to the Respondent/Complainant within 45 days from the date of order and affirm the impugned judgment and order passed by the Ld. District Forum, there being no illegality or irregularity or infirmity.