The Br Manager, Pragathi Grameena Bank APMC yard V/S K Basavaraj S/o Sharanappa - Consumer Court Case

Karnataka

Raichur

DCFR 133/06

K Basavaraj S/o Sharanappa - Complainant(s)

Versus

The Br Manager, Pragathi Grameena Bank APMC yard - Opp.Party(s)

T M. Swamy

04 Aug 2008

ORDER

DIST. CONSUMER DISPUTES REDRESSAL FORUM
DIST. CONSUMER DISPUTES REDRESSAL FORUM,DC Office Compound, Sath Kacheri
consumer case(CC) No. DCFR 133/06

K Basavaraj S/o Sharanappa						...........Appellant(s)
Vs.
The Br Manager, Pragathi Grameena Bank APMC yard The Branch Manager The Branch Manager,						...........Respondent(s)

BEFORE:

Complainant(s)/Appellant(s):

OppositeParty/Respondent(s):

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ORDER

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant-K. Basavaraj against the two Respondents- (1) Branch Manager, Pragati Gramina Bank Ltd., (Tungabhadra Gramina Bank Ltd.,) Sindhanoor and (2) The Branch Manager, ICICI Bank Ltd., Branch Dharwad. The brief facts of the complaint are as under: Complainant is having SB A/c. bearing No. 395 with Respondent No-1 Bank. One K. Gangadhar resident of Parvathinagar, Bellary is the account holder of SBGEN Account No. 0170011503246 with Respondent No-2 Bank. This K. Gangadhar is well known to complainant. In-view of amount due by K.Gangadhar out of transactions with this complainant the said Gangadhar had issued a cheque bearing No. 117831 dt. 20-12-05 for getting collected the cheque amount from his account with Respondent NO-2 Bank. Accordingly complainant presented the said cheque initially in his (another) account No. 11536 at Karnataka Bank Ltd., at Dharwad which came to be dishonoured on 23-12-05 for insufficient funds. When the same was brought to the knowledge of said K.Gangandhar by complainant, then he requested the complainant not to go for presenting the cheque until he provides funds to his account with Respondent NO-2 Bank and assured that he would keep sufficient funds for encashment of the said cheque before lapsing of cheque. After providing sufficient funds with Respondent No-2 Bank said K.Gangadhar instructed the complainant on 14-06-06 to present the said cheque for collection. Accordingly he presented the said cheque dt 20-12-05 in his S.B. A/c. No. 395 on 15-06-06 with Respondent NO-1 Bank. The Respondent NO-1 Bank sent the said cheque for collection on 16-06-06 to its sponsored Branch-Canara Bank Br. Main Dharwad and the said Canara-Bank Dharwad in-turn send the said cheque for collection to the 2nd Respondent-Bank. In-spite of having sufficient funds in the account K.Gangadhar and before the expiry of validity period of the said cheque, the 2nd Respondent-Bank did not honour the said cheque on the ground that the said cheque was presented out of date as per intimation letter dt. 22-06-06 which was served to the complainant through Respondent No-1 Bank by Respondent NO-2 Bank and which was furnished to the complainant by Respondent NO-1 on 05-07-06 by collecting charges of Rs. 1,040/- on 04-07-06. The complainant had presented the said cheque before the 1st Respondent Bank within the validity period and further the Respondent NO-2 by taking into consideration the date of presentation of the cheque amount of Rs. Five Lakhs should have paid the cheque amount as the presentation of the said cheque was within validity period when it was presented before Respondent No-1 & 2. Hence Respondent NO- 1 & 2 are liable for payment of the said cheque amount of Rs. Five Lakhs to the complainant. The complainant by receiving the memo dt. 05-07-06 by the Respondent No- 1 Bank got issued a legal notice to both the Respondents on 24-07-06 which were duly served on both the Respondents. Respondent NO-1 replied through letter dt. 02-08-06 by denying his liability stating that he has sent the cheque on 16-06-06 by RPAD within the validity period to the Respondent No-2. The Respondent No-2 also replied through letter dt. 08-08-06 denying its liability on some other grounds which were contrary to the memo dt. 22-06-06 issued to the complainant. Hence the very act of Respondent No-2 by way of issuing memo dt. 22-06-06 which is contrary to their replied letter dt. 08-08-06 is nothing but a glory example of sheer negligence deficiency in service and unfair trade practice. The complainant without any other go for recovery of the said cheque amount knocked the door of this Forum. Since he had been deprived his right to enjoy the money since 22-06-06 as Respondent No-2 denied his liability to pay the cheque amount. Hence for all these reasons has sought for direction to both the Respondents for payment amount of Rs. Five Lakh cheque bearing No. 117831 dt. 20-12-05 along with 12% interest thereon from 22-06-06 till realization and cost of the proceedings. 2. In-response to service of notice Respondent No- 1 & 2 appeared through their respective counsel and filed written version: Respondent NO-1 in the written version has contended that on presentation of the said cheque dt. 20-12-05 for collection in his SB.A/c. on 15-06-06, this Respondent No-1sent the same for collection on 16-06-06 by Registered Post to the sponsor Bank- Canara Bank Dharwad Main Br. The contention regarding intimation provided to the complainant by Respondent NO-1 on 05-07-06 etc., is admitted. Respondent NO-1 was supposed to send the cheque for collection only to the concerned Bank as per rules and accordingly it has discharged its duty by sending the cheque/instrument for collection immediately on 16-06-06. Even the complainant has also admitted this facts. Thus there are no latches or deficiency in service on the part of the Respondent NO-1 Bank. Hence the Respondent No-1 Bank is not liable to pay cheque amount to the complainant and he has been un-necessarily dragged to this litigation. The Respondent No-1 has properly replied to the notice. Even the allegations of the complaint does not attribute any latches, deficiency, negligence or unfair trade practice on the part of this Respondent NO-1 Bank. Hence for all these reasons the Respondent NO-1 Bank has sought for dismissal of the complaint with heavy cost. 3. The Respondent No-2 Bank has filed the written version contending that the complainant is not a customer of the Respondent No-2 Bank and there is no privity of contract between the complainant and this Respondent No-2 Bank. The complainant has not hired or availed the service of the Respondent. Hence the complaint against the Respondent No-2 is not maintainable. The contention of the complainant that one K.Gangadhar of Bellary is the Account Holder SBGEN No. 0170011503246 with Respondent No-2 Bank is admitted. The allegation that this K.Gangadhar had issued a cheque dt. 20-12-05 bearing No. 117831 drawn on this Respondent No-2 Bank in favour of the complainant and initially complainant has presented the said cheque for realization in his another A/c. No. 11536 at Karnataka Bank Ltd., Dharwad which came to be dishonoured on 23-12-05 for insufficient funds are true and correct. The other allegation of the complaint that the said K.Gangadhar requested not to go for presenting the cheue for collection until he deposits funds to his Account with Respondent NO-2 Bank and accordingly the said Gangadhar after providing the funds with Respondent NO-2 Bank instructed the complainant to present the cheque for realization etc., are false and denied. The contents of the complaint that the complainant once again presented the said cheque for honour on 15-06-06 to his A/c. NO. 395 of Respondent NO-1 Bank which in turn send the same for collection through its sponsorship Bank Canara Bank on 16-06-06 and this Canara Bank sent the same for collection on 22-06-06. The allegation that in-spite of sufficient funds in the account of K.Gangadhar and even the cheque was within the validity period this Respondent No-2 did not honour the cheque on the ground that the cheque was out of date as per intimation dt. 22-02-06 are all false. By way of defence it is submitted that the cheque was dishonoured for insufficient funds. The drawer of the cheque has not maintained sufficient funds in his Account. As such cheque bearing NO. 117831 for Rs. Five Lakh drawn on Respondent No-2 Bank dt. 20-12-05, drawn in favour of the complainant was returned by Respondent No-2 Bank. Hence there was no deficiency of service on the part of this Respondent No-2 Bank and so the Respondent NO-2 is not liable for any claim. The complainant (it ought to be K.Gangadhar) after opening the account with Respondent No-2 has never deposited amount in terms of lakhs. Since July 2005, account of K.Gangadhar of Bellary bearing Account holder of SBGEN No. 0170011503246, has been gone into the debit balance. Either on the date of cheque or on the dates of presentation of the cheque there was no balance in the account so as to honour the said cheque. The complainant (it ought to be K.Gangadhar) has deposited of Rs. Five Lakh in the month of June-2006, is totally false and against documentary evidence. On both occasion of the presentation of the cheque in-question it has been returned/dishonoured for the reasons Insufficient Funds. Hence on both occasions also the Respondent No-2 issued dishonour memo mentioning the reason Insufficient Funds. The Account/Statement pertaining to the Account No. SBGEN No. 0170011503246 of Mr. K.Gangadhar for the period 09-02-05 to 31-07-05 is filed at Annexure-B. The Account/Statement pertaining to this K.Gangadhar for the period from 01-04-06 to 30-09-06 is filed at Annexure No-C. Hence it is evident that there is absolutely neither deficiency of service nor unfair trade practice on the part of this Respondent No-2 Bank. Hence for all these reasons the Respondent has sought for dismissal of the complaint with cost. 4. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and either sworn-affidavit by way of additional evidence. In-rebuttal the Respondent No-1 & 2 have filed sworn-affidavit by way of examination-in-chief. On behalf of complainant (11) documents at Ex.P-1 to Ex.P-11 have been got marked. On behalf of Respondents (9) documents at Ex.R-1 to Ex.R-9 have been got marked. It is worthwhile to note here that during the course of enquiry, the Respondent No-2 Bank has called for the Inward & Outward Register or any Register of whatever nominclature maintained by Canara Bank Main Branch Dharwad regarding collection of out-station cheques sent by it for collection for the period from 16-06-06 to 22-06-06 as per Order on I.A. No-IV. Accordingly after seeking same clarification, this Canara Bank Dharwad through Canara Bank Br. Raichur submitted a letter dt. 05-07-08 stating that:- on verification of their records they found the instrument-cheque bearing No. 117831 dt. 20-12-05 for Rs. Five Lakh was presented in ICICI Bank on 22-06-06 & the same was returned on the same day. So the cheque along with the returned memo was sent to Pragathi Gramina Bank, Sindhanoor accordingly. However they are enclosing a letter issued by ICICI Bank Dharwad along with copy of the Pass sheet of the account for the period from 01-06-06 to 30-06-06. They are not maintaining copies of clearing Outward Pattis sent to other banks in clearing. They have also enclosed a sheet containing the information regarding presentation and return of the said cheque on 22-06-06. The L.C. for Respondent NO-2 submitted for marking of documents produced by Canara Bank Main Branch Dharwad through Canara Bank Branch Raichur, in response to order on I.A.No-4. The L.C. for complainant and L.C. for Respondent No-1 objected for marking the same. However the L.C. for respective parties submitted that they will argue on the merits of the case as well as on marking of documents produced by Canara Bank Main Dharwad through Canara Bank Raichur, in-response to order on I.A.No-4 and they leave it to the decision of the Forum for marking or otherwise of the document. 5. Accordingly arguments of both sides were heard. In addition the L.C. for complainant and L.C. for Respondent No-2 have filed written arguments. Perused the records. The following points arise for our consideration and determination: 1.Whether the complainant proves deficiency in service and unfair trade practice, as alleged. 2.Whether the complainant is entitled for the reliefs sought for. 6. Our finding on the above points are as under:- 1.In the affirmative against Respondent No-2 only. 2. As per final order for the following REASONS POINT NO.1:- 7. It is the case of the complainant that the cheque bearing NO. 117831 dt. 20-12-05 for Rs. Five Lakh issued by K. Gangadhar in his favour and after intimation from said K.Gangadhar on 14-06-06 for having provided sufficient funds with his banker Respondent NO-2 he presented the said cheque (for 2nd time) on 15-06-06 with his banker-1st Respondent Bank. His banker-1st Respondent Bank sent the said cheque on 16-06-06 for collection to its one of the sponsorship Branch-Canara Bank Br. Dharwad Main Canara-Bank Dharwad in turn sent the said cheque to Respondent No-2 Bank for collection. In-spite of having sufficient funds in the account of K.Gangadhar with Respondent No-2 Bank and the said cheque having been received by Respondent No-2 Bank before expiry of validity period, but the Respondent No-2 Bank did not honour the said cheque on the ground that it was presented out of date' as per intimation letter dt. 22-06-06 which was forwarded to the complainant through Respondent No-1 Bank by Respondent No-2. The said intimation was provided to the complainant by Respondent No-1 on 05-07-06 by collecting charges of Rs. 1,040/- on 04-07-06. The Respondent No-2 Bank by taking into consideration the date of presentation of cheque should have been paid the cheque amount, as the cheque was presented within the validity period. Hence he got issued legal notice dt. 24-07-06 to both the Respondents who have replied denying their liability. The acts of Respondent NO-2 in dishonouring his cheque as per memo dt. 22-06-06 which is contrary to what is replied by it to his legal notice is nothing but sheer negligence, deficiency in service and unfair trade practice and complainant has been deprived of his right to enjoy the money since from 22-06-06 as Respondent No-2 denied his liability to pay the cheque amount, which caused him mental harassment. 8. The complainant has produced in all (11) documents at Ex.P-1 to Ex.P-11. Ex.P-1 is the Original Cheque bearing NO. 117831 dt. 20-12-05. Ex.P-2 is the Information Letter dt. 23-12-05 of Respondent No-2 intimating Insufficient Funds. Ex.P-3 is the Counter Receipt issued by Respondent No-1 Bank dt. 15-06-06. Ex.P-4 is the Letter Forwarding Bill for collection issued by Respondent No-1 Bank dt. 16-06-06 to the Branch Manager Canara-Bank-Dharwad. Ex.P-5 is the Intimation Letter dt. 22-06-06 issued by Respondent No-2 Bank for dishnouring the cheque. Ex.P-6 is the Information Letter of Canara-Bank-Dharwad dt. 22-06-06 to the 1st Respondent. Ex.P-7 is the Counter Receipt issued by Respondent No-1 Bank dt. 04-07-06. Ex.P-8 is the Memorandum of cheques unpaid issued by Respondent No-1 Bank to the complainant dt. 05-07-06. Ex.P-9 is the Copy of legal notice issued by the complainant to Respondents 1 & 2. Ex.P-9(1) & (2) are the Registered Postal Receipts. Ex.P-9(3) & (4) are two Postal acknowledgement by Respondent NO- 1 & 2. Ex.P-10 is the Reply Notice of the Respondent No-1 Bank dt. 02-08-06. Ex.P-10(1) is the Postal cover. Ex.P-11 is the Reply notice of Respondent No-2 Bank dt. 08-08-06. Ex.P-11(1) is the Postal cover. 9. The Respondent No-1 Bank in the written version as well as in the reply notice dt. 02-08-06 vide Ex.P-10 have specifically stated that the cheque dt. 20-12-05 for Rs. Five Lakh presented by the complainant on 15-06-06 was sent by it to its sponsorship Bank- Canara Bank Dharwad Main Branch on 16-06-06 as per rules and subsequently the said cheque was returned unpaid for the reasons already made known to the complainant and so there is no deficiency in service by the 1st Respondent Bank. The L.C. for Respondent No-1 Bank has submitted that the complainant as it was that the cheque presented by the complainant on 15-06-06 has been sent to its sponsorship Bank Canara Bank Main Dharwad Branch on 16-06-06 by Registered Post. Hence there is no deficiency in service on the part of Respondent No-1 Bank and so the complaint against Respondent NO-1 is to be dismissed. The L.C. for complainant fairly conceded that the complainant has no grievance against Respondent No-1 Bank and Respondent No-1 has been impleaded as farmer party. So we have to consider the case against Respondent No-2 only. 10. The Respondent NO-2 Bank in Para-5 & 9 of written version has admitted the allegation of the complainant that the complainant once again has presented the cheque for honor on 15-06-06 through his banker Respondent No-1 Bank, which in-turn sent the same for clearance through its sponsorship Bank-Canara Bank on 16-06-06 and this Canara Bank in-turn sent the same for collection on 22-06-06. The said cheque was dishonoured by Respondent No-2 for Insufficient Funds hence there was no deficiency of service on the part of Respondent No-2 Bank. 11. The L.C. for the complainant drawing our attention to the memo/intimation letter dt. 22-06-06 at Ex.P-5 submitted that in Ex.P-5 the reasons for dishonour of the cheque has been firstly shown as for insufficient funds by marking a tick at Sl.No-4 which is subsequently scored of and another tick mark is shown at Sl.No-21 showing the reasons that the cheque was out of date. He further argued that as per the letter of Canara-Bank Dharwad Main as referred to above, it is stated that they are not maintaining copies of clearance Patties sent to other banks in clearing. This means one cannot know as to on what date the Canara Bank Dharwad Main Branch, sent the said cheque to Respondent No-2 Bank for realization. As against this the L.C. for Respondent NO-2 Bank argued that the Minor Subsidiary Account Details enclosed to the letter of the Canara Bank Main Branch Dharwad it shows that the cheque was sent to Respondent No-2 Bank on 22-06-06 itself. Besides the seal of Canara Bank Dharwad Main Branch put on the back side of said cheque, Ex.P-1 shows that it was sent on 22-06-06 and so the cheque was dishonoured as it was out of date. On the contrary the L.C. for the complainant further submitted that in the Reply Notice at Ex.P-11, the Respondent No-2 Bank has put up a story that the cheque was dishonoured for want of sufficient funds and the same has been reiterated in the written statement, but subsequently Respondent No-2 Bank woke-up on their memo/intimation at Ex.P-5 and have taken a stand that the cheque was dishonoured as it was out of date and accordingly got amended the written version. But however the reply notice at Ex.P-11 clearly shows that the cheque was dishonoured for insufficient funds. The L.C. for further submitted that even assuming for sake of arguments that the cheque was dishonoured for want of sufficient funds and if the Respondent NO-2 Bank had given such an intimation-slip, then the complainant would have taken legal action under 138 of Negotiable Instrument Act against said K.Gangadhar who had issued the impugned cheque. But the intimation slip at Ex.P-5 shows that the cheque was dishonoured as out of date, and thereby the Respondent No-2 Bank has deprived the right of complainant for initiating legal action against said K.Gangadhar and thus Respondent No-2 has deprived the right of complainant to enjoy the cheque amount. But the L.C. for Respondent NO-2 argued that the complainant has not produced Account Extract of said K.Gangadhar to show that he had sufficient amount in his Bank Account. However the Account extract of this K.Gangadhar produced by Respondent No-2 at Ex.R-4, amply shows that this K.Gangadhar had no sufficient funds in his Bank Account on the date of presentation of the cheque. The Respondent NO-2 Bank has also produced Extract of the Inward Clearing Return Register at Ex.R-9 which shows that the said K.Gangadhar has no sufficient balance in his account so as to honour the impugned cheque for Rs. Five Lakh. So on both counts namely for want of sufficient funds and for out of date the impugned cheque was dishonoured and the complainant could have sued against the said K.Gangadhar for recovery of money in appropriate civil court of law. 12 The Intimation-slip at Ex.P-5 as discussed above, shows the reason for dishonour of the cheque for insufficient funds by marking a tick at Sl.No-4. But subsequently it was scored of and another tick mark is shown at Sl.No-21 showing the dishnour of cheque as Out of date. Even though the argument of the L.C. for the Respondent No-2 that this Ex.P-5 has been tampered with but the same has not been substantiated by any cogent and convincing material. From a close perusal of Ex.P-5 with naked eye it can be said that the Pen (ink) used for marking of tick at Sl.No-4 & 21 are of one and same. Further the Pen (ink) used for signature on the space for Authorized Signatory and the tick mark at Sl.No-21 appears to be one and same. However the Respondent No-2 Bank has not substantiated by any material particulars regarding tampering of Ex.P-5 as contended. When according to the Respondent NO-2 Bank this Ex.P-5 is tampered with, then why the Respondent No-2 Bank has sought for amendment of written version in Para-5 for the defence that the cheque was out dated one. ? 13. As stated above the Canara Bank Main Branch Dharwad submitted a letter dt. 05-07-08 through Chief Manager Canara Bank Branch Raichur in-pursuance of Order on I.A.No-IV. In the background of arguments of both sides regarding marking of this letter dt. 05-07-08, we need this letter to be marked and accordingly it is now marked Ex.R-10. In this letter at Ex.R-10 it is stated that they are not maintaining copies of clearing outward patties sent to other banks in clearing. This letter Ex.R-10 also shows that the cheque in question was presented to ICICI Bank (Respondent No-2) on 22-06-06 and the same was returned on the same day. But, as rightly pointed out by the L.C. for the complainant, when according to the Canara Bank (Main) Dharwad, they are not maintaining copies of Clearing Outward Patties sent to other banks in clearing, then the contents of the letter Ex.R-10 that the impugned cheque was presented to ICICI Bank on 22-06-06 is without any substantative evidence. 14. From above discussion it follows that the Respondent NO-2 Bank has not explained the ambiguity in the Intimation-slip at ExP-5 regarding the reason for which the cheque in-question was dishnoured. Further the Respondent No.2 has also not established that the impugned cheque was sent/presented to it only on 22-06-06. Even Respondent No-2 Bank has not chosen to implead this Canara Bank Main Dharwad as party Respondent to substantiate and/or to shift its burden that the cheque in-question was presented to it only on 22-06-06 by Canara Bank Main Dharwad. However, when according to Respondent No-2 as per their written statement (except Para-5) and as per the Reply Notice of Respondent NO-2 Bank at Ex.P-10, the cheque was dishnoured for insufficient funds then how the Intimation-slip Ex.P-5 came to be issued showing the dishnour of the cheque as out of date by scoring out the earlier reason for insufficient funds. At the cost of repetition the Respondent NO-2 Bank has not proved the ambiguity appearing in the Intimation-slip at Ex.P-5. But however in their written statement and Reply notice they have wranged the Bell that the cheque was dishnoured for insufficient funds. Of-course from the Account extract of K.Gangadhar produced by them, shows that this K.Gangadhar who has issued the cheque in-question had no Bank Balance at his credit, so as to honour the cheque for Rs. Five Lakh. But on this count alone the Respondent No-2 Bank cannot shirk its responsibility since the right of complainant in enjoying the cheque amount by initiating proceedings against K.Gangadhar under Negotiable Instrument Act was taken away by Respondent No-2 Bank issuance of such Intimation-slip at Ex.P-5 showing the reason for dishonour of the cheque as out of date. In this background the arguments of the L.C. for Respondent No-2 that the complainant can recover the cheque amount from K.Gangadhar by filing a civil suit will not suffice much since the complainant has been deprived of his right under N.I. Act as rightly argued by the L.C. for complainant. Hence we find there is deficiency in service on the part of Respondent NO-2. In this view of the matter we hold that the complainant has proved deficiency in service by the Respondent No-2 in-depriving his right of enjoying the cheque amount by issuing impugned the Intimation-slip at Ex.P-5. Therefore Point NO-1 is answered in the affirmative against Respondent No-2 only. POINT NO.2: 15. The complainant has sought for payment of cheque amount of Rs. Five Lakh along with interest at 12% thereon from 22-06-06 till realization and for payment of Rs. 50,000/- as damages and compensation for mental suffering and deprive of right to enjoy the money together with cost proceedings. 16. As discussed in Point No-1, the complainant first of all has not produced Account extract of K.Gangadhar showing he has sufficient funds in his Bank account even on the alleged date on 22-06-06. On the contrary the Account extract of K.Gangadhar produced by Respondent No-2 at Ex.R-2 to Ex.R-8 and more particularly at Ex.R-4 for the period from 01-02-06 to 31-07-06 shows that Rs. 3,700/- was the Bank balance in the account of K.Gangadhar between 31-05-06 to 30-06-06. When there was absolutely no Bank balance in the Bank account of K.Gangadhar, then the complainants claim for awarding Rs. Five Lakh from the Respondent No-2 does not stand to reason. So far as the second relief for compensation of Rs. 50,000/- is concerned, in-view of our discussion & finding on Point NO-1, the complainant was deprived of his right for taking legal action against K.Gangadhar under N.I. Act by the Intimation-slip issued by the Respondent No-2 Bank vide Ex.P-5 showing the reason for dishonour of the cheque as out of date even though their main defence was for insufficient funds. So having regard to the facts and circumstances of the case, we feel it just and proper to award a global compensation of Rs. 35,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part against Respondent No-2 (ICICI Bank) only. The Respondent No-2 Bank shall pay a global compensation of Rs. 35,000/- including cost of litigation. The Respondent No-2 Bank shall pay this awarded amount within a period of (6) weeks from the date of receipt of copy of this order. The complaint against Respondent No-1 Bank (Pragathi Gramina Bank) is dismissed. Office to furnish certified copy of this order to the respective parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 04-08-08) Sd/- Sd/- Sd/- Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi, Member. Member. President, Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.

This is a complaint filed U/s. 12 of Consumer Protection Act by the complainant-K. Basavaraj against the two Respondents- (1) Branch Manager, Pragati Gramina Bank Ltd., (Tungabhadra Gramina Bank Ltd.,) Sindhanoor and (2) The Branch Manager, ICICI Bank Ltd., Branch Dharwad. The brief facts of the complaint are as under: Complainant is having SB A/c. bearing No. 395 with Respondent No-1 Bank. One K. Gangadhar resident of Parvathinagar, Bellary is the account holder of SBGEN Account No. 0170011503246 with Respondent No-2 Bank. This K. Gangadhar is well known to complainant. In-view of amount due by K.Gangadhar out of transactions with this complainant the said Gangadhar had issued a cheque bearing No. 117831 dt. 20-12-05 for getting collected the cheque amount from his account with Respondent NO-2 Bank. Accordingly complainant presented the said cheque initially in his (another) account No. 11536 at Karnataka Bank Ltd., at Dharwad which came to be dishonoured on 23-12-05 for insufficient funds. When the same was brought to the knowledge of said K.Gangandhar by complainant, then he requested the complainant not to go for presenting the cheque until he provides funds to his account with Respondent NO-2 Bank and assured that he would keep sufficient funds for encashment of the said cheque before lapsing of cheque. After providing sufficient funds with Respondent No-2 Bank said K.Gangadhar instructed the complainant on 14-06-06 to present the said cheque for collection. Accordingly he presented the said cheque dt 20-12-05 in his S.B. A/c. No. 395 on 15-06-06 with Respondent NO-1 Bank. The Respondent NO-1 Bank sent the said cheque for collection on 16-06-06 to its sponsored Branch-Canara Bank Br. Main Dharwad and the said Canara-Bank Dharwad in-turn send the said cheque for collection to the 2nd Respondent-Bank. In-spite of having sufficient funds in the account K.Gangadhar and before the expiry of validity period of the said cheque, the 2nd Respondent-Bank did not honour the said cheque on the ground that the said cheque was presented out of date as per intimation letter dt. 22-06-06 which was served to the complainant through Respondent No-1 Bank by Respondent NO-2 Bank and which was furnished to the complainant by Respondent NO-1 on 05-07-06 by collecting charges of Rs. 1,040/- on 04-07-06. The complainant had presented the said cheque before the 1st Respondent Bank within the validity period and further the Respondent NO-2 by taking into consideration the date of presentation of the cheque amount of Rs. Five Lakhs should have paid the cheque amount as the presentation of the said cheque was within validity period when it was presented before Respondent No-1 & 2. Hence Respondent NO- 1 & 2 are liable for payment of the said cheque amount of Rs. Five Lakhs to the complainant. The complainant by receiving the memo dt. 05-07-06 by the Respondent No- 1 Bank got issued a legal notice to both the Respondents on 24-07-06 which were duly served on both the Respondents. Respondent NO-1 replied through letter dt. 02-08-06 by denying his liability stating that he has sent the cheque on 16-06-06 by RPAD within the validity period to the Respondent No-2. The Respondent No-2 also replied through letter dt. 08-08-06 denying its liability on some other grounds which were contrary to the memo dt. 22-06-06 issued to the complainant. Hence the very act of Respondent No-2 by way of issuing memo dt. 22-06-06 which is contrary to their replied letter dt. 08-08-06 is nothing but a glory example of sheer negligence deficiency in service and unfair trade practice. The complainant without any other go for recovery of the said cheque amount knocked the door of this Forum. Since he had been deprived his right to enjoy the money since 22-06-06 as Respondent No-2 denied his liability to pay the cheque amount. Hence for all these reasons has sought for direction to both the Respondents for payment amount of Rs. Five Lakh cheque bearing No. 117831 dt. 20-12-05 along with 12% interest thereon from 22-06-06 till realization and cost of the proceedings. 2. In-response to service of notice Respondent No- 1 & 2 appeared through their respective counsel and filed written version: Respondent NO-1 in the written version has contended that on presentation of the said cheque dt. 20-12-05 for collection in his SB.A/c. on 15-06-06, this Respondent No-1sent the same for collection on 16-06-06 by Registered Post to the sponsor Bank- Canara Bank Dharwad Main Br. The contention regarding intimation provided to the complainant by Respondent NO-1 on 05-07-06 etc., is admitted. Respondent NO-1 was supposed to send the cheque for collection only to the concerned Bank as per rules and accordingly it has discharged its duty by sending the cheque/instrument for collection immediately on 16-06-06. Even the complainant has also admitted this facts. Thus there are no latches or deficiency in service on the part of the Respondent NO-1 Bank. Hence the Respondent No-1 Bank is not liable to pay cheque amount to the complainant and he has been un-necessarily dragged to this litigation. The Respondent No-1 has properly replied to the notice. Even the allegations of the complaint does not attribute any latches, deficiency, negligence or unfair trade practice on the part of this Respondent NO-1 Bank. Hence for all these reasons the Respondent NO-1 Bank has sought for dismissal of the complaint with heavy cost. 3. The Respondent No-2 Bank has filed the written version contending that the complainant is not a customer of the Respondent No-2 Bank and there is no privity of contract between the complainant and this Respondent No-2 Bank. The complainant has not hired or availed the service of the Respondent. Hence the complaint against the Respondent No-2 is not maintainable. The contention of the complainant that one K.Gangadhar of Bellary is the Account Holder SBGEN No. 0170011503246 with Respondent No-2 Bank is admitted. The allegation that this K.Gangadhar had issued a cheque dt. 20-12-05 bearing No. 117831 drawn on this Respondent No-2 Bank in favour of the complainant and initially complainant has presented the said cheque for realization in his another A/c. No. 11536 at Karnataka Bank Ltd., Dharwad which came to be dishonoured on 23-12-05 for insufficient funds are true and correct. The other allegation of the complaint that the said K.Gangadhar requested not to go for presenting the cheue for collection until he deposits funds to his Account with Respondent NO-2 Bank and accordingly the said Gangadhar after providing the funds with Respondent NO-2 Bank instructed the complainant to present the cheque for realization etc., are false and denied. The contents of the complaint that the complainant once again presented the said cheque for honour on 15-06-06 to his A/c. NO. 395 of Respondent NO-1 Bank which in turn send the same for collection through its sponsorship Bank Canara Bank on 16-06-06 and this Canara Bank sent the same for collection on 22-06-06. The allegation that in-spite of sufficient funds in the account of K.Gangadhar and even the cheque was within the validity period this Respondent No-2 did not honour the cheque on the ground that the cheque was out of date as per intimation dt. 22-02-06 are all false. By way of defence it is submitted that the cheque was dishonoured for insufficient funds. The drawer of the cheque has not maintained sufficient funds in his Account. As such cheque bearing NO. 117831 for Rs. Five Lakh drawn on Respondent No-2 Bank dt. 20-12-05, drawn in favour of the complainant was returned by Respondent No-2 Bank. Hence there was no deficiency of service on the part of this Respondent No-2 Bank and so the Respondent NO-2 is not liable for any claim. The complainant (it ought to be K.Gangadhar) after opening the account with Respondent No-2 has never deposited amount in terms of lakhs. Since July 2005, account of K.Gangadhar of Bellary bearing Account holder of SBGEN No. 0170011503246, has been gone into the debit balance. Either on the date of cheque or on the dates of presentation of the cheque there was no balance in the account so as to honour the said cheque. The complainant (it ought to be K.Gangadhar) has deposited of Rs. Five Lakh in the month of June-2006, is totally false and against documentary evidence. On both occasion of the presentation of the cheque in-question it has been returned/dishonoured for the reasons Insufficient Funds. Hence on both occasions also the Respondent No-2 issued dishonour memo mentioning the reason Insufficient Funds. The Account/Statement pertaining to the Account No. SBGEN No. 0170011503246 of Mr. K.Gangadhar for the period 09-02-05 to 31-07-05 is filed at Annexure-B. The Account/Statement pertaining to this K.Gangadhar for the period from 01-04-06 to 30-09-06 is filed at Annexure No-C. Hence it is evident that there is absolutely neither deficiency of service nor unfair trade practice on the part of this Respondent No-2 Bank. Hence for all these reasons the Respondent has sought for dismissal of the complaint with cost. 4. During the course of enquiry the complainant has filed his sworn-affidavit by way of examination-in-chief and either sworn-affidavit by way of additional evidence. In-rebuttal the Respondent No-1 & 2 have filed sworn-affidavit by way of examination-in-chief. On behalf of complainant (11) documents at Ex.P-1 to Ex.P-11 have been got marked. On behalf of Respondents (9) documents at Ex.R-1 to Ex.R-9 have been got marked. It is worthwhile to note here that during the course of enquiry, the Respondent No-2 Bank has called for the Inward & Outward Register or any Register of whatever nominclature maintained by Canara Bank Main Branch Dharwad regarding collection of out-station cheques sent by it for collection for the period from 16-06-06 to 22-06-06 as per Order on I.A. No-IV. Accordingly after seeking same clarification, this Canara Bank Dharwad through Canara Bank Br. Raichur submitted a letter dt. 05-07-08 stating that:- on verification of their records they found the instrument-cheque bearing No. 117831 dt. 20-12-05 for Rs. Five Lakh was presented in ICICI Bank on 22-06-06 & the same was returned on the same day. So the cheque along with the returned memo was sent to Pragathi Gramina Bank, Sindhanoor accordingly. However they are enclosing a letter issued by ICICI Bank Dharwad along with copy of the Pass sheet of the account for the period from 01-06-06 to 30-06-06. They are not maintaining copies of clearing Outward Pattis sent to other banks in clearing. They have also enclosed a sheet containing the information regarding presentation and return of the said cheque on 22-06-06. The L.C. for Respondent NO-2 submitted for marking of documents produced by Canara Bank Main Branch Dharwad through Canara Bank Branch Raichur, in response to order on I.A.No-4. The L.C. for complainant and L.C. for Respondent No-1 objected for marking the same. However the L.C. for respective parties submitted that they will argue on the merits of the case as well as on marking of documents produced by Canara Bank Main Dharwad through Canara Bank Raichur, in-response to order on I.A.No-4 and they leave it to the decision of the Forum for marking or otherwise of the document. 5. Accordingly arguments of both sides were heard. In addition the L.C. for complainant and L.C. for Respondent No-2 have filed written arguments. Perused the records. The following points arise for our consideration and determination: 1.Whether the complainant proves deficiency in service and unfair trade practice, as alleged. 2.Whether the complainant is entitled for the reliefs sought for. 6. Our finding on the above points are as under:- 1.In the affirmative against Respondent No-2 only. 2. As per final order for the following REASONS POINT NO.1:- 7. It is the case of the complainant that the cheque bearing NO. 117831 dt. 20-12-05 for Rs. Five Lakh issued by K. Gangadhar in his favour and after intimation from said K.Gangadhar on 14-06-06 for having provided sufficient funds with his banker Respondent NO-2 he presented the said cheque (for 2nd time) on 15-06-06 with his banker-1st Respondent Bank. His banker-1st Respondent Bank sent the said cheque on 16-06-06 for collection to its one of the sponsorship Branch-Canara Bank Br. Dharwad Main Canara-Bank Dharwad in turn sent the said cheque to Respondent No-2 Bank for collection. In-spite of having sufficient funds in the account of K.Gangadhar with Respondent No-2 Bank and the said cheque having been received by Respondent No-2 Bank before expiry of validity period, but the Respondent No-2 Bank did not honour the said cheque on the ground that it was presented out of date' as per intimation letter dt. 22-06-06 which was forwarded to the complainant through Respondent No-1 Bank by Respondent No-2. The said intimation was provided to the complainant by Respondent No-1 on 05-07-06 by collecting charges of Rs. 1,040/- on 04-07-06. The Respondent No-2 Bank by taking into consideration the date of presentation of cheque should have been paid the cheque amount, as the cheque was presented within the validity period. Hence he got issued legal notice dt. 24-07-06 to both the Respondents who have replied denying their liability. The acts of Respondent NO-2 in dishonouring his cheque as per memo dt. 22-06-06 which is contrary to what is replied by it to his legal notice is nothing but sheer negligence, deficiency in service and unfair trade practice and complainant has been deprived of his right to enjoy the money since from 22-06-06 as Respondent No-2 denied his liability to pay the cheque amount, which caused him mental harassment. 8. The complainant has produced in all (11) documents at Ex.P-1 to Ex.P-11. Ex.P-1 is the Original Cheque bearing NO. 117831 dt. 20-12-05. Ex.P-2 is the Information Letter dt. 23-12-05 of Respondent No-2 intimating Insufficient Funds. Ex.P-3 is the Counter Receipt issued by Respondent No-1 Bank dt. 15-06-06. Ex.P-4 is the Letter Forwarding Bill for collection issued by Respondent No-1 Bank dt. 16-06-06 to the Branch Manager Canara-Bank-Dharwad. Ex.P-5 is the Intimation Letter dt. 22-06-06 issued by Respondent No-2 Bank for dishnouring the cheque. Ex.P-6 is the Information Letter of Canara-Bank-Dharwad dt. 22-06-06 to the 1st Respondent. Ex.P-7 is the Counter Receipt issued by Respondent No-1 Bank dt. 04-07-06. Ex.P-8 is the Memorandum of cheques unpaid issued by Respondent No-1 Bank to the complainant dt. 05-07-06. Ex.P-9 is the Copy of legal notice issued by the complainant to Respondents 1 & 2. Ex.P-9(1) & (2) are the Registered Postal Receipts. Ex.P-9(3) & (4) are two Postal acknowledgement by Respondent NO- 1 & 2. Ex.P-10 is the Reply Notice of the Respondent No-1 Bank dt. 02-08-06. Ex.P-10(1) is the Postal cover. Ex.P-11 is the Reply notice of Respondent No-2 Bank dt. 08-08-06. Ex.P-11(1) is the Postal cover. 9. The Respondent No-1 Bank in the written version as well as in the reply notice dt. 02-08-06 vide Ex.P-10 have specifically stated that the cheque dt. 20-12-05 for Rs. Five Lakh presented by the complainant on 15-06-06 was sent by it to its sponsorship Bank- Canara Bank Dharwad Main Branch on 16-06-06 as per rules and subsequently the said cheque was returned unpaid for the reasons already made known to the complainant and so there is no deficiency in service by the 1st Respondent Bank. The L.C. for Respondent No-1 Bank has submitted that the complainant as it was that the cheque presented by the complainant on 15-06-06 has been sent to its sponsorship Bank Canara Bank Main Dharwad Branch on 16-06-06 by Registered Post. Hence there is no deficiency in service on the part of Respondent No-1 Bank and so the complaint against Respondent NO-1 is to be dismissed. The L.C. for complainant fairly conceded that the complainant has no grievance against Respondent No-1 Bank and Respondent No-1 has been impleaded as farmer party. So we have to consider the case against Respondent No-2 only. 10. The Respondent NO-2 Bank in Para-5 & 9 of written version has admitted the allegation of the complainant that the complainant once again has presented the cheque for honor on 15-06-06 through his banker Respondent No-1 Bank, which in-turn sent the same for clearance through its sponsorship Bank-Canara Bank on 16-06-06 and this Canara Bank in-turn sent the same for collection on 22-06-06. The said cheque was dishonoured by Respondent No-2 for Insufficient Funds hence there was no deficiency of service on the part of Respondent No-2 Bank. 11. The L.C. for the complainant drawing our attention to the memo/intimation letter dt. 22-06-06 at Ex.P-5 submitted that in Ex.P-5 the reasons for dishonour of the cheque has been firstly shown as for insufficient funds by marking a tick at Sl.No-4 which is subsequently scored of and another tick mark is shown at Sl.No-21 showing the reasons that the cheque was out of date. He further argued that as per the letter of Canara-Bank Dharwad Main as referred to above, it is stated that they are not maintaining copies of clearance Patties sent to other banks in clearing. This means one cannot know as to on what date the Canara Bank Dharwad Main Branch, sent the said cheque to Respondent No-2 Bank for realization. As against this the L.C. for Respondent NO-2 Bank argued that the Minor Subsidiary Account Details enclosed to the letter of the Canara Bank Main Branch Dharwad it shows that the cheque was sent to Respondent No-2 Bank on 22-06-06 itself. Besides the seal of Canara Bank Dharwad Main Branch put on the back side of said cheque, Ex.P-1 shows that it was sent on 22-06-06 and so the cheque was dishonoured as it was out of date. On the contrary the L.C. for the complainant further submitted that in the Reply Notice at Ex.P-11, the Respondent No-2 Bank has put up a story that the cheque was dishonoured for want of sufficient funds and the same has been reiterated in the written statement, but subsequently Respondent No-2 Bank woke-up on their memo/intimation at Ex.P-5 and have taken a stand that the cheque was dishonoured as it was out of date and accordingly got amended the written version. But however the reply notice at Ex.P-11 clearly shows that the cheque was dishonoured for insufficient funds. The L.C. for further submitted that even assuming for sake of arguments that the cheque was dishonoured for want of sufficient funds and if the Respondent NO-2 Bank had given such an intimation-slip, then the complainant would have taken legal action under 138 of Negotiable Instrument Act against said K.Gangadhar who had issued the impugned cheque. But the intimation slip at Ex.P-5 shows that the cheque was dishonoured as out of date, and thereby the Respondent No-2 Bank has deprived the right of complainant for initiating legal action against said K.Gangadhar and thus Respondent No-2 has deprived the right of complainant to enjoy the cheque amount. But the L.C. for Respondent NO-2 argued that the complainant has not produced Account Extract of said K.Gangadhar to show that he had sufficient amount in his Bank Account. However the Account extract of this K.Gangadhar produced by Respondent No-2 at Ex.R-4, amply shows that this K.Gangadhar had no sufficient funds in his Bank Account on the date of presentation of the cheque. The Respondent NO-2 Bank has also produced Extract of the Inward Clearing Return Register at Ex.R-9 which shows that the said K.Gangadhar has no sufficient balance in his account so as to honour the impugned cheque for Rs. Five Lakh. So on both counts namely for want of sufficient funds and for out of date the impugned cheque was dishonoured and the complainant could have sued against the said K.Gangadhar for recovery of money in appropriate civil court of law. 12 The Intimation-slip at Ex.P-5 as discussed above, shows the reason for dishonour of the cheque for insufficient funds by marking a tick at Sl.No-4. But subsequently it was scored of and another tick mark is shown at Sl.No-21 showing the dishnour of cheque as Out of date. Even though the argument of the L.C. for the Respondent No-2 that this Ex.P-5 has been tampered with but the same has not been substantiated by any cogent and convincing material. From a close perusal of Ex.P-5 with naked eye it can be said that the Pen (ink) used for marking of tick at Sl.No-4 & 21 are of one and same. Further the Pen (ink) used for signature on the space for Authorized Signatory and the tick mark at Sl.No-21 appears to be one and same. However the Respondent No-2 Bank has not substantiated by any material particulars regarding tampering of Ex.P-5 as contended. When according to the Respondent NO-2 Bank this Ex.P-5 is tampered with, then why the Respondent No-2 Bank has sought for amendment of written version in Para-5 for the defence that the cheque was out dated one. ? 13. As stated above the Canara Bank Main Branch Dharwad submitted a letter dt. 05-07-08 through Chief Manager Canara Bank Branch Raichur in-pursuance of Order on I.A.No-IV. In the background of arguments of both sides regarding marking of this letter dt. 05-07-08, we need this letter to be marked and accordingly it is now marked Ex.R-10. In this letter at Ex.R-10 it is stated that they are not maintaining copies of clearing outward patties sent to other banks in clearing. This letter Ex.R-10 also shows that the cheque in question was presented to ICICI Bank (Respondent No-2) on 22-06-06 and the same was returned on the same day. But, as rightly pointed out by the L.C. for the complainant, when according to the Canara Bank (Main) Dharwad, they are not maintaining copies of Clearing Outward Patties sent to other banks in clearing, then the contents of the letter Ex.R-10 that the impugned cheque was presented to ICICI Bank on 22-06-06 is without any substantative evidence. 14. From above discussion it follows that the Respondent NO-2 Bank has not explained the ambiguity in the Intimation-slip at ExP-5 regarding the reason for which the cheque in-question was dishnoured. Further the Respondent No.2 has also not established that the impugned cheque was sent/presented to it only on 22-06-06. Even Respondent No-2 Bank has not chosen to implead this Canara Bank Main Dharwad as party Respondent to substantiate and/or to shift its burden that the cheque in-question was presented to it only on 22-06-06 by Canara Bank Main Dharwad. However, when according to Respondent No-2 as per their written statement (except Para-5) and as per the Reply Notice of Respondent NO-2 Bank at Ex.P-10, the cheque was dishnoured for insufficient funds then how the Intimation-slip Ex.P-5 came to be issued showing the dishnour of the cheque as out of date by scoring out the earlier reason for insufficient funds. At the cost of repetition the Respondent NO-2 Bank has not proved the ambiguity appearing in the Intimation-slip at Ex.P-5. But however in their written statement and Reply notice they have wranged the Bell that the cheque was dishnoured for insufficient funds. Of-course from the Account extract of K.Gangadhar produced by them, shows that this K.Gangadhar who has issued the cheque in-question had no Bank Balance at his credit, so as to honour the cheque for Rs. Five Lakh. But on this count alone the Respondent No-2 Bank cannot shirk its responsibility since the right of complainant in enjoying the cheque amount by initiating proceedings against K.Gangadhar under Negotiable Instrument Act was taken away by Respondent No-2 Bank issuance of such Intimation-slip at Ex.P-5 showing the reason for dishonour of the cheque as out of date. In this background the arguments of the L.C. for Respondent No-2 that the complainant can recover the cheque amount from K.Gangadhar by filing a civil suit will not suffice much since the complainant has been deprived of his right under N.I. Act as rightly argued by the L.C. for complainant. Hence we find there is deficiency in service on the part of Respondent NO-2. In this view of the matter we hold that the complainant has proved deficiency in service by the Respondent No-2 in-depriving his right of enjoying the cheque amount by issuing impugned the Intimation-slip at Ex.P-5. Therefore Point NO-1 is answered in the affirmative against Respondent No-2 only. POINT NO.2: 15. The complainant has sought for payment of cheque amount of Rs. Five Lakh along with interest at 12% thereon from 22-06-06 till realization and for payment of Rs. 50,000/- as damages and compensation for mental suffering and deprive of right to enjoy the money together with cost proceedings. 16. As discussed in Point No-1, the complainant first of all has not produced Account extract of K.Gangadhar showing he has sufficient funds in his Bank account even on the alleged date on 22-06-06. On the contrary the Account extract of K.Gangadhar produced by Respondent No-2 at Ex.R-2 to Ex.R-8 and more particularly at Ex.R-4 for the period from 01-02-06 to 31-07-06 shows that Rs. 3,700/- was the Bank balance in the account of K.Gangadhar between 31-05-06 to 30-06-06. When there was absolutely no Bank balance in the Bank account of K.Gangadhar, then the complainants claim for awarding Rs. Five Lakh from the Respondent No-2 does not stand to reason. So far as the second relief for compensation of Rs. 50,000/- is concerned, in-view of our discussion & finding on Point NO-1, the complainant was deprived of his right for taking legal action against K.Gangadhar under N.I. Act by the Intimation-slip issued by the Respondent No-2 Bank vide Ex.P-5 showing the reason for dishonour of the cheque as out of date even though their main defence was for insufficient funds. So having regard to the facts and circumstances of the case, we feel it just and proper to award a global compensation of Rs. 35,000/- including cost of litigation. In this view of the matter we pass the following order: ORDER The complaint of the complainant is allowed in part against Respondent No-2 (ICICI Bank) only. The Respondent No-2 Bank shall pay a global compensation of Rs. 35,000/- including cost of litigation. The Respondent No-2 Bank shall pay this awarded amount within a period of (6) weeks from the date of receipt of copy of this order. The complaint against Respondent No-1 Bank (Pragathi Gramina Bank) is dismissed. Office to furnish certified copy of this order to the respective parties forth with free of cost. (Dictated to the Stenographer, typed, corrected and then pronounced in the open Forum on 04-08-08) Sd/- Sd/- Sd/- Smt.Pratibha Rani Hiremath, Sri. Gururaj Sri. N.H. Savalagi, Member. Member. President, Dist.Forum-Raichur. Dist-Forum-Raichur Dist-Forum-Raichur.