BEFORE THE DISTRICT FORUM: KURNOOL

Present: Sri. T.Sundara Ramaiah , B.Com B.L., President

And

Sri. M.Krishna  Reddy , M.Sc., M.Phil., Male Member

Wednesday the 15^th day of December, 2010

C.C.No 120/08

Between:

Sk. Ismail,S/o S.K. Hassain Saheb,

R/o D.No. 8/89-1, Kadatala Street, Gudur Village and Mandal, Kurnool District.                                             .…Complainant

-Vs-

1)     The Andhra Bank. Represented by its Branch Manager,

  Near APSRTC Bus Stand, H.No.51-12-12A, Kurnool-518 003.

2)     The National Cooperative Bank, Represented by its Branch Manager,

  D.No.38-1, Up Stairs, Opp. to Kurnool Municipal Corporation, Kurnool-518004.                     …Opposite PartIES

               This complaint is coming on this day for orders in the presence of Sri.S.Ch.Basha , Advocate, for complainant, and Sri.A.V.Subramanayam,  Advocate for opposite party No.1 and Sri.D.Siva Sankar Reddy , Advocate for opposite party No.2  and upon perusing the material papers on record, the Forum made the following.

ORDER

(As per Sri. T.Sundara Ramaiah, President)

C.C. No. 120/08

1.    This complaint is filed under section 12 of C. P. Act, 1986 praying  to direct the OPs

(a)        to pay a sum of Rs.50,000/- to complainant

(b)        to award interest @ 18% p.a from the date of presentation of the said cheque till the date of realization

( c)       to award Rs.25,000/- towards damages and mental agony

(d)        to award cost of the compliant

(e)        to award such other relief as the Hon’ble Forum deems fit and proper in the circumstances of the case.   

 (2)   The case of the complainant in brief is as under:- The complainant  is the S.B. account holder in OP.No.1 bank . One Sami issued a cheque bearing No. 6183 dated 05-04-2007 to the complainant for a sum of Rs.50,000/- drawn on OP.No.2 bank. The complainant presented the said cheque in OP.No.1 bank for collection on 09-04-2007. OP.No.1 received the said cheque on the same day. One week after presentation of the said cheque the complainant went to OP.No.1 bank and enquired about the cheque.  OP.No.1 gave a reply that the said cheque was not cleared by OP.No.2. Thereafter the complainant approached the O.No.1 number of times but OP.No.1 did not give proper reply. The complainant got issued a legal notice to OP.No.1 on 18-02-2008 . OP.No.1 received the same and issued reply stating that the said cheque was sent to OP.No.2 bank for collection and the same was not returned by OP.No2. Had the cheque was honoured, the complainant would have used the amount. Due to negligence of OPs 1 and 2 the cheque was not encashed and the complainant could not get the cash. Due to the laches on the part of the OPs the complainant could not get the proceeds of the cheque   . There is negligence and deficiency of service on the part of OPs 1 and 2. They are liable to pay cheque amount of Rs.50,000/- and damage of Rs.25,000/- to the complainant .  

3.     OP.No.1 filed written version stating that the complaint is not maintainable. The complainant is having S.B account in the bank. He presented a cheque bearing No.6183 dated 05-04-2007 for Rs.50,000/- drawn on OP.No.2 bank for collection.  On receiving the said cheque the OPs sent the same to OP.No.2 bank for collection through ANL parcel service. OP.No.2 bank neither cleared the said cheque  nor returned the same despites several reminders. After receipt of the legal notice the OP issued reply notice. There was no negligence on the part of the OP. There is no deficiency of service on the part of the OP. The complainant in collusion with the Sami and OP.No.2 filed false complaint. The complainant is not entitled to any amount. The complaint is liable to be dismissed.

        OP.No.2 filed written version stating that the complaint is not maintainable. In the name of Same no account is available in OP.No.2 bank. As per bank ledger the holder of S.B account No. 1082 is one Syed Soumiuzzana S/o. Syed Fakruddin. Previous bank chairman and his brother misused bank funds and a case was registered in Cr.No.303/07 under section 409 IPC against them.  The said chairman was removed  subsequently on 05-12-2007 by basing a resolution by the members and directors of the bank.  The Reserve Bank canceled  the license of OP.No.2 to carry on banking business. The bank is under the process of winding up. The complaint is liable to be dismissed.           

4.     On behalf of the complainant Ex.A1 to A3 are marked and the sworn affidavit of the complainant is filed.  On behalf of the opposite party No. 1  Ex.B1 to B13 are marked and sworn affidavit of OP.No.1  is filed. On behalf of OP.No.2 Ex.B14 to B16 are marked and sworn affidavit of the Liquidator of OP.No.2 bank is filed.

5.     Both sides filed written arguments.

6.     The points that arise for consideration are      

(i)     whether there is deficiency of service on the part of the OPs?

(ii)    whether the  complainant is entitled to the reliefs as prayed for?

(iii)    To what relief?

7. Point No.1 & 2:   Admittedly the complainant is having S.B account in OP.No.1bank and he presented a cheque bearing No.6183 dated 05-04-2007 for Rs.50,000/- said to have been issued by one Same infavour of the complainant ,  for collection. The complainant filed Ex.A1 counter foil issued by OP.No.1 bank. As seen from Ex.A1 it is very clear that the complainant  got S.B.account No.65097 in OP.No.1 bank and that the complainant  presented a cheque for Rs.50,000/- on 09-04-2007 for collection. It is the contention of the OP.No.1 bank that the cheque received from the complainant was sent to OP.No.2 bank on 10-04-2007 through ANL parcel service. OP.No.1 filed Ex.B1 ANL parcel service receipt. It shows that the letter was delivered to the consignee i.,e National Co-operative Bank Ltd., on  11-04-2007. As seen from Ex.B1 it is very clear that the cheque that was received by OP.No.1 from complainant was sent to OP.No.2 for collection. It is the case of the OP.No.1 bank that inpsite of several reminders OP.No.2 bank did not give any reply regarding the cheque that was sent for collection. As seen from Ex.B2 to B9 it is very clear that OP.No.1 bank issued several reminders to OP.No.2 bank regarding the cheque bearing No. 6183 presented by complainant. OP.No.1 bank was not at fault. OP.No.1 bank immediately after receiving the cheque  from the  complainant  sent it to OP.No.2 for collection and there was no deficiency of service  on the part of OP.No.1 bank. Merely because the cheque that was sent for collection was not encahsed by OP.No.2 bank , OP.No.1 bank can not be held responsible.      

8.     It is the case of the OP.No.2 bank that Sami is not at all holding account in OP.No.2 bank and that the S.B.account bearing No.1082 stands in the name of Syed Soumiuzzana. It for the complainant to show that Same is having S.B. account in OP.No.2 bank and that OP.No.2 bank refused or neglected to encash the cheque though there is sufficient amount in the account. The complainant who is contending  that Sami issued the cheque did not take steps to establish that Same got S.B account in OP.No.2 bank and that there is sufficient amount in the said account of Same. The complainant did not choose to file  sworn affidavit of the Same who is said to have issued the cheque bearing No. 6183 infavour of the complainant. Merely because OP.No.2 did not return the cheque to OP.No.1 bank  it can be presumed that there was deficiency of service on the part of OP.No.2. It is for the complainant to establish that Sami got account in the OP.No.2 bank and that there was sufficient amount in the said account to meet the cheque .  It is further case of the OP.No.2 that the bank chairman and his brother misappropriated bank funds and that the RBI canceled banking license of OP.No.2 bank. Ex.B15 is the letter date 30-03-2010 issued by RBI cancelling the license to carry on banking business by OP.No.2 bank. Liquidator was appointed to attend to the processor winding up of the bank. The complainant failed to establish that Sami got S.B account in OP.No.2 bank. As seen from Ex.B14 it is very clear that the S.B. account bearing No. 1082 stands in the name of Syed Soumiuzzana  but not in the name of Same.  Admittedly no action was taken by the complainant against the Same who is said to have issued cheque dated 05-04-2007 for Rs.50,000/- . For non encashment of the cheque , OPs can not be blamed. To fix liability on OP.No.2 there must be account of Same in OP.No.2 bank and in the said account there must be sufficient amount to meet the said cheque. As already stated the complainant failed to establish that Sami got S.B account in OP.No.2 bank. Therefore OP.No.2 can not be held responsible for not encashing the cheque received from OP.No.1 . The complainant is not entitled for reliefs prayed for .

9 Point No3:  In the result the complaint is dismissed . In the circumstances no costs.

Dictated to the stenographer, transcribed by her, corrected and pronounced by us in the open bench on this the 15^th day of December, 2010.

          Sd/-                                                                        Sd/-

MALE MEMBER                                                            PRESIDENT

     APPENDIX OF EVIDENCE

Witnesses Examined

For the complainant : Nil            For the opposite parties : Nil

List of exhibits marked for the complainant:-

List of exhibits marked for the opposite parties:

         Sd/-                                                                 Sd/-

MALE MEMBER                                                            PRESIDENT

// Certified free copy communicated under Rule 4 (10) of the

A.P.S.C.D.R.C. Rules, 1987//

Copy to:-

Complainant and Opposite parties

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