D.o.F:11/1/2010

D.o.O:11/5/2011

IN THE CONSUMER DISPUTES REDRESSAL FORUM, KASARAGOD

                                          CC 4/2010

                     Dated this, the 11th   day of May 2011

PRESENT:

SRI.K.T.SIDHIQ                         : PRESIDENT

SMT.P.RAMADEVI                    : MEMBER

SMT.BEENA.K.G                        : MEMBER 

Ramadas Baloor,

S/o Srinivas Poojary,

R/at Chethana House,

Opp. Ganaraj Clinic, Udyavar,                                          : Complainant

Po.Manjeshwar,Kasaragod.

(Adv.M.Mahalinga Bhat & Adv.M.Mahesh,Kasaragod)

The Branch Manager,

SBT, Hosangadi Branch,                                                      

Po.Manjeshwar, Kasaragod.                                          : Opposite party

(Adv.I.V.Bhat,Kasaragod)

                                                                                       ORDER

SMT.P.RAMADEVI     : MEMBER

        The facts of the complaint in brief as follows:

     That the complainant is an NRI account holder of the opposite party bank.  On 25/9/09 the complainant presented a cheque bearing No.949734 dtd.8/4/09 drawn on HSBC Bank JabalAli, UAE for 15,000/- Dirhams before the opposite party bank for collection.  The cheque was issued by one  Vincent.  On 8/10/09 the complainant has sent his wife to enquire about the position of the above cheque presented for  collection.  Then the opposite party returned the cheque to his wife  stating that the cheque was dishonored for want of sufficient fund in the account of the drawer but the opposite party did not issue the memo showing the cause of dishonor of cheque.  Then the complainant went to the bank and asked about the bank endorsement and cheque return memo.  At that time the opposite party told the complainant that the cheque was not sent for collection due to oversight.  The   very same cheque was  earlier presented through  the same bank and it was returned dishonored for want of sufficient fund in the account of drawer.  The complainant further submits that during second time when the cheque was given back to the complainant, the validity period of the cheque was about to expire.  Therefore  the complaint alleging negligence and deficiency in service  on the part of  opposite party.

 2.    In this case the opposite party was duly served the notice and appeared through their counsel and filed written version.  In the version the opposite party denied the allegations made by complainant.  The first contention raised by the opposite party is that the complaint is bad for non joinder of necessary party i.e., the drawer of the cheque Mr. Vincent Fernandez  is a necessary party to the proceedings.  The further contention is that the cheque was presented for collection on 25/9/09 knowing the validity period of the cheque going to expire within 12 days ,ie on 7/10/ 09 and the same is informed to the complainant.  The cheque was in foreign currencies and it was drawn on HSBC Bank Jabil Ali, UAE.  Opposite party sent the cheque to the Foreign Exchange Department on 25/9/09 and the cheque had to be sent to drawee Bank and remaining days were not enough to get the cheque collected.  Hence the Foreign Exchange department returned the cheque.  The complainant presented the cheque for collection before opposite party only on knowing the fact that the cheque will become   stale in 12 days.  Hence there is no negligence or deficiency in service on the part of opposite party and the complainant is liable to be dismissed.

3.     The evidence in this case consists of the evidence of PW1 the complainant and Exts.A1 to A6 documents and the evidence of DW1 and Exts.B1 and B2 .  After considering the evidence  and  documents the following issues were raised for consideration:

1.    Whether the complaint is bad for nonjoinder of necessary parties?

2.    Is there any deficiency in service on the part of opposite party?

3.    If so what is the relief?

4..Issue No.1:  the contention raised by the opposite party is that the complaint is bad for nonjoinder of necessary party.  According to opposite party Vincent Fernandez, drawer of the cheque is a necessary party to this proceeding.  Here the relationship between the drawer of the cheque Vincent Fernandez and the payee of the cheque is debtor creditor relationship and there is no consumer relationship between them.  Hence the drawer of the cheqe is not a necessary party in the complaint and the first issue is answered accordingly.

5.  Issue No.2:  The specific case of the opposite party in their version is that 12 days time is not enough to get the cheque collected.  That is the reason their Foreign Exchange Department returned the cheque.  Here the question is whether 12 days time is enough to reach the cheque the drawee bank for collection.  If a cheque is reached to the drawee bank for collection even though amount is not collected the cheque will not become stale.  There is no evidence before the Forum to prove that how many days are required to reach the cheque to the drawee bank at Jabil Ali  though once the same cheque sent for collection and returned it for want of sufficient funds.  Here the opposite party failed to produce any document before the Forum that 12 days time is not enough to  realize the money lying in a  foreign bank in UAE.

6.    Here the opposite party taken another contention in their reply to the notice issued by the complainant is that “Our Foreign Exchange Department was not authorized to collect the proceeds of a cheque drawn for the currency UAE Dirham and so they returned the cheque to complainant.   That means Foreign Exchange Department of opposite party bank has not sent the cheque for collection.  Both contentions will not lie together.  Opposite party has no specific reason for returning the cheque.

7.   After considering all the facts and circumstances of the case we are of the opinion that there is deficiency in service on the part of opposite party.  The complainant sought the relief of getting the cheque amount from the opposite party.  But in number of decisions the appellate courts held that incase of theft or loss of cheque from the bank the bank is not liable to pay the  cheque amount.  The bank is liable to pay only compensation for mental agony and sufferings.  Here the complainant has no case that the drawer’s account is sufficiently funded.  In this case the complainant can initiate legal proceedings against the drawer for recovering of the cheque amount.

    Therefore the complaint is allowed in part and the opposite party is directed to pay 5000/- to the complainant for mental agony and suffering and also directed to pay 2000/- towards the cost of the proceedings.  The time for compliance is 30 days from the date of receipt of copy of the order.

Exts:

A1-Original cheque

A2-counter foil issued by OP

A3- 20/10/09- copy of lawyer notice

A4- 6/11/09- reply notice

A5-FDBP/FBC return advice

A6-returned cheque remittance memo

B1- copy of dispatch register

B2- copy of covering schedule

DW1-Pradeepan.A.K- witness of OP

Sd/                                                                Sd/                                                                                  Sd/

MEMBER                                         MEMBER                                                            PRESIDENT

eva

/Forwarded by Order/

SENIOR SUPERINTENDENT