KERALA STATE CONSUMER DISPUTES REDRESSAL COMMISSION,

VAZHUTHACAUD, THIRUVANANTHAPURAM

APPEAL No. 543/2016

JUDGMENT DATED: 16.01.2023

(Against the Order in C.C. 398/2013 of CDRF, Ernakulam)

PRESENT:

HON’BLE JUSTICE SRI. K. SURENDRA MOHAN              : PRESIDENT

SRI.T.S.P. MOOSATH                                                                   : JUDICIAL MEMBER

SRI. RADHAKRISHNAN K.R.                                                    : MEMBER

APPELLANT:

M.S. Bhasi, S/o Sankaran, Mundappilly House, Cherai P.O., Ernakulam.

(By Adv. Narayan R.)

                                                Vs.

RESPONDENT:

The Branch Manager, Canara Bank, Paravur-Ezhikkara Branch, North Paravur, Ezhikkara P.O., Ernakulam-683 513.  

            (By Advs. P. Balakrishnan & K.P. Krishnan)

JUDGMENT

SRI.T.S.P. MOOSATH: JUDICIAL MEMBER

The complainant in C.C. No. 398/2013 of the Consumer Disputes Redressal Forum, Ernakulam, in short the District Forum, has filed the appeal against the order passed by the District Forum by which the complaint filed by him was dismissed. 

2.  The averments contained in the complaint are, in brief, as follows: The complainant opened a SB Account with the opposite party bank with No. 0736101004787.  On 13.08.2012 the complainant received a cheque dated 13.08.2012 for Rs. 18,095/- which was originally issued to one Nabeesa by the Sub Treasury Officer, N. Paravur in connection with O.S. No. 321/98 on the file of the Principal Sub Court N. Paravur.  Smt. Nabeesa was his client and she had adjusted the cheque amount towards his professional fees and the cheque was properly endorsed in favour of the complainant.  On presentation, the opposite party bank refused to accept the cheque for collection.  Therefore, the complainant had to open a new SB account in Paravur Co-operative Bank and the very same cheque was entrusted to them for collection and it was collected by that bank without any difficulty.  The complainant had sent a lawyer’s notice to the opposite party demanding damages for mental agony and deficiency in service.  The opposite party had replied stating that there was no endorsement on the cheque and hence it was not accepted for collection.  That statement was incorrect and therefore the complainant approached the Banking Ombudsman, Thiruvananthapuram who disposed of the complaint without giving an opportunity to prove his case and without issuing a notice to him.  The complainant was compelled to open a new account in another bank only due to the deficient service rendered by the opposite party.  Smt. Nabeesa on 13.08.2012 at 11.20 am had endorsed the cheque in favour of the complainant.  Immediately he went to the opposite party bank who refused to accept the cheque.  If there was no endorsement on the cheque, the Co-operative bank could not have accepted the cheque for collection.  The opposite party had refused to accept the complainant’s cheque only because of the lethargy in getting the amount collected from the treasury as it involved more work.  The complainant therefore filed the complaint seeking compensation of Rs. 15,000/- and costs of the proceedings from the opposite party. 

3.  The opposite party filed version raising the following contentions: The complainant had filed this complaint only as an experimental one.  The District Forum has no jurisdiction to entertain a complaint of this nature which is hopelessly barred by limitation.  The cheque submitted by the complainant was not properly endorsed.  The cheque drawn in the name of Nabeesa was presented to the opposite party for collection by the complainant.  The complainant was therefore asked to prepare a challan so as to enable the opposite party to credit the proceeds in the account of Nabeesa.  At the time of presentation of the cheque before the opposite party, the same was not endorsed.  The complainant thereafter informed the opposite party that he shall come back after getting necessary instructions from Nabeesa.  However, the complainant did not turn up thereafter.  Therefore the opposite party was not in a position to honour the instrument.  Along with the lawyer’s notice issued by the complainant a photocopy of the Pay order cheque in question was attached.  On the reverse side of the photocopy of the cheque there was original endorsement of Nabeesa to pay the proceeds to the complainant, which would show that it was an afterthought to get the proper endorsement from Smt. Nabeesa which was originally missing while presenting the cheque.  The order of the Ombudsman shows that there was no lapse on the part of the opposite party.  There is no deficiency in service on the part of the opposite party.  The complainant has no cause of action.  The complaint is only to be dismissed. 

4.  On the side of the complainant PW1 & PW2 were examined and Exts. A1 to A5 were marked.  On the side of the opposite party DW1 was examined and Ext. B1 was marked.   

5.  After considering the evidence adduced by the parties and hearing both sides the District Forum has passed the impugned order by which the complaint was dismissed. 

6.  Aggrieved by the order passed by the District Forum, the complainant has filed the present appeal. 

7.  Heard both sides.  Perused the records.

8.  The parties are referred according to their status/rank in the original complaint.

9.  There is no dispute to the fact that Ext. A1 Pay order cheque was issued to one Smt. Nabeesa.  She has no account in the opposite party bank.   The complainant has got account in the opposite party bank.  So to get the amount covered by the Pay order cheque in the account of the complainant it requires endorsement on that Pay order cheque by Nabeesa.  The claim of the complainant is that when he presented Ext. A1 Pay order cheque before the opposite party bank there was endorsement of Nabeesa on the reverse side of the cheque.  It is specifically contended by the opposite party that at the time of presentation of Ext. A1 Pay order cheque before them by the complainant there was no endorsement of Nabeesa on that Pay order cheque.  When that fact was brought to the notice of the complainant, he informed that he would come later after getting necessary endorsement of Nabeesa on Ext. A1, but thereafter he did not turn up.  The District Forum found that since there was no material to prove that the endorsement was already made on Ext. A1 prior to the presentation of Ext. A1 before the opposite party there was no deficiency in service on the part of the opposite party and dismissed the complaint. 

10.  The counsel for the appellant submitted that the District Forum has not considered the fact that the complainant being a lawyer who knows that for presentation of the cheque before the bank in the name of another person, the endorsement of that person was necessary, there was only a little chance of the cheque being presented without the endorsement of Nabeesa, by the complainant before the opposite party bank.  The counsel for the respondent submitted that if there was already the endorsement of Nabeesa on the cheque, when it was presented before the opposite party bank, there was no reason/necessity for the opposite party to refuse to receive Ext. A1 from the complainant who has got account in the bank, who is a customer of the bank.  He pointed out that the complainant has not raised any specific allegation against Branch Manager or any staff of the opposite party bank, that because of some particular reason they refused to receipt Ext. A1 Pay order cheque from him.  The only allegation of the complainant is that the opposite party bank refused to accept the cheque only because of the lethargy in getting the amount collected from the treasury as it involved more work, which is baseless.  He pointed out that Ext. A5 shows that the complainant has moved before the Banking Ombudsman and the prayer of the complainant was not allowed by them.  The counsel for the appellant submitted that the District Forum has not considered the evidence of PW1 and PW2 and in the order there is no mention of anything about the evidence of PW1 and PW2.  PW1 is the complainant.  In order to prove that there was endorsement on the reverse side of Ext. A1 at the time of presentation of the cheque before the opposite party, complainant had examined a witness, as PW2.  On a reading of the deposition of PW2 it can be seen that his deposition cannot be relied and it would not help the complainant.  PW2 admitted that he has no account in the opposite party bank and on that day he went to the bank to enquire whether purchase loan was available in the bank.  He admitted that he has not availed any purchase loan from the opposite party bank.  He has no prior acquaintance with the complainant.  PW2 deposed that he knew that the complainant was an advocate.  In cross examination PW2 deposed that he came to the District Forum to state that the Advocate (complainant) had put signatures on the front side and reverse side of the cheque before presenting it before the bank.  Ext. A1 is the Pay order cheque signed by the Treasury Officer and it cannot be signed by the complainant on the front side of Ext. A1.  Even the complainant has no such case.  So the evidence of PW2 will not support the case of the complainant.  As rightly found by the District Forum the maker of the endorsement of Ext. A1 Pay order cheque, Smt. Nabeesa, was not examined by the complainant as a witness to prove his case that there was her endorsement on the reverse side of Ext. A1 before the presentation of the same before the opposite party bank.  In the version filed by the opposite party they contended that along with the lawyer’s notice sent by the complainant to them a photocopy of the Pay order cheque was attached and on the reverse side of that copy of the Pay order cheque, the original endorsement of Nabeesa was there, which would show that it was an afterthought of the complainant intended to cover up his omission to get proper endorsement from Nabeesa which was originally missing while presenting it before the opposite party.  The opposite party has produced the copy of the Pay order cheque sent by the complainant to them along with the notice and it was marked as Ext. B1.  PW1 admitted that Ext. B1 is the copy of the Pay order cheque sent by him to the opposite party along with the notice sent by him and on the reverse side of Ext. B1 there was the original endorsement of Nabeesa as ‘please pay the amount to M.S. Bhasi Advocate’.  Regarding that, the explanation given by PW1 is that, before making the endorsement on the reverse side of the original of Ext. A1 Pay order cheque, Nabeesa had made the endorsement on the reverse side of the copy of the Pay order cheque as ‘draft’.  PW1 admitted that those facts are not mentioned either in Ext. A2 notice or in the complaint.  It shows that there is some basis for the contention of the opposite party that it was an afterthought of the complainant to cover up his omission to get the proper endorsement of Nabeesa which was not there in the original Pay order cheque when it was presented before them.  Considering all these facts the District Forum found that the complainant failed to prove that there was deficiency in service on the part of the opposite party and dismissed the complaint.  We consider that there is no reason/ground to interfere with the finding of the District Forum.  So the appeal is to be dismissed.

In the result, the appeal is dismissed.  Parties are directed to suffer their respective costs.

JUSTICE K. SURENDRA MOHAN  : PRESIDENT

                        T.S.P. MOOSATH   : JUDICIAL MEMBER

                           RADHAKRISHNAN K.R.  : MEMBER

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