BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM

VAZHUTHACAUD, THIRUVANANTHAPURAM.

PRESENT

SRI. G. SIVAPRASAD : PRESIDENT

SMT. BEENAKUMARI. A : MEMBER

SMT. S.K.SREELA : MEMBER

C.C. No. 316/2005 Filed on 07.09.2005

Dated : 30.10.2009

Complainant:

B. Sreekumar, 'Pournami', Kottakkakam P.O, Aryanadu, Nedumangadu.

(By adv. Santhivila M.P. Sasidharan Nair)

Opposite party:

The Manager, State Bank of India, Marakkada Branch.

(By adv. S. Williams)

This O.P having been heard on 15.09.2009, the Forum on 30.10.2009 delivered the following:

ORDER

SRI. G. SIVAPRASAD: PRESIDENT

The facts leading to the filing of the complaint are that complainant is an account holder of the opposite party bank, that on 17.05.2005 complainant presented one cheque for Rs. 5,00,000/- for realisation, collection and crediting into his account, that the cheque was not encashed nor returned the dishonoured cheque by the opposite party to the complainant, that even after repeated requests opposite party did not respond or issue reply to the legal notice sent by the complainant. Hence this complaint to direct opposite party to refund the cheque amount with compensation of Rs. 10,000/- and cost of Rs. 1,000/-.

Opposite party filed version contending that the complaint is bad for non-joinder of necessary parties, that the drawer of the cheque is the necessary party for just and proper disposal of the complaint, that on 17.05.2005 complainant presented one cheque for Rs. 5,00,000/- drawn on Federal Bank, Muttada branch for collection, that the said cheque was sent for collection on 17.05.2005 itself, and that on 18.05.2005 the said cheque was dishonoured from the Federal Bank, Muttada branch and on 19.05.2005 the dishonour intimation was received by the opposite party. It is submitted by the opposite party that the dishonour of the said cheque was informed to the complainant over telephone and he was requested to collect the intimation and the dishonoured instrument. Complainant did not collect the dishonoured cheque. Opposite party sent the cheque and dishonour intimation to the complainant by registered post on 01.06.2005, the same was not accepted by the complainant and it was returned unclaimed on 10.06.2005. The return of the registered post was also informed to the complainant by telephone, but complainant again did not bother to collect the same. In the mean time Core-Banking was introduced to the opposite party bank during which many documents were reshuffled and the returned registered post was misplaced among the documents. On receipt of the registered letter dated 07.07.2005, opposite party searched for the returned registered post but it was not traceable. The bank could not reply to the lawyer notice as all along the bank has been searching for the misplaced cover in order to settle the issue. The complainant ought to have collected back the instrument on time, had he been vigilant over the matter. The complainant could have maintained action under Sec. 138 of the Negotiable Instrument Act and substantiated his case by adducing secondary evidence. Complainant has also the option of filing civil suit against the drawer of the cheque for realisation of the cheque amount. Opposite party offered the complainant all the necessary support and help for maintaining action against the drawer. The present complaint is therefore lacking bonafide and opposite party is not liable to pay any amount as claimed in the complaint. There is no deficiency in service and unfair trade practice on the part of the opposite party. Hence opposite party prayed for dismissal of the complaint.

The points that arise for consideration are:-

1. Whether there is deficiency in service on the part of opposite party?

2. Whether the complainant is entitled to get compensation and costs? If so, at what amount?

In support of the complaint, complainant has filed proof affidavit and Exts. P1 to P5 were marked. Complainant has been cross examined by the opposite party. In rebuttal, opposite party has filed affidavit as DW1 and opposite party has been cross examined by the complainant. One witness has been examined as DW2 and Exts. D1, D1(a) and D2 were marked and DW2 has been cross examined by the complainant.

Points (i) & (ii):- Admittedly, complainant had an account in 2^nd opposite party bank and on 17.05.2005 complainant presented one cheque for Rs. 5,00,000/- for realisation, collection and crediting into his account. It has been the case of the complainant that the opposite party bank did not encash the said cheque, nor did opposite party return the dishonoured cheque to complainant. It has also been the case of the complainant that even after repeated requests opposite party neither responded nor issued reply to the legal notice sent by the complainant. Ext. P1 is the copy of the counterfoil issued by the opposite party acknowledging the acceptance of the cheque in dispute by opposite party on 17.05.2005. Ext. P2 is the copy of the letter dated 07.07.2005 addressed to opposite party by the complainant. Ext. P3 is the copy of the letter dated 13.07.2005 addressed to the complainant by the opposite party informing him of the fact that the cheque has been returned by the drawee bank and the same has been sent to complainant by registered post on 01.06.2005. It is seen stated in Ext.P3 that 'as you have advised that you have not received the cheque, we are trying to trace the cheque and we note to advise you the details shortly'. Ext. P4 is the copy of the advocate notice dated 21.07.2005 addressed to opposite party. Ext. P5 is the copy of the acknowledgement card. Opposite party resisted the case, while admitting that complainant was having an account with it, and he presented the cheque in dispute, it is alleged in turn that it had sent the said cheque for collection but returned the same unpaid and the same was informed to the complainant by telephone and complainant was requested to come and collect the dishonoured instrument. It is also the say of the opposite party that opposite party sent the said cheque and dishonour intimation to complainant by registered post on 01.06.2005 and the same was not accepted by the complainant and it was returned unclaimed on 10.06.2005 and the return of the registered post was also informed to the complainant by phone. It is further argued by the opposite party that core banking was introduced to opposite party, during which many documents were reshuffled and the returned registered post was misplaced among the documents. Ext. D1 is the post office's daily note book showing delivery details for the period 19.05.2005 to 06.07.2005. On perusal of Ext. D1 it is seen that on 01.06.2005 R.L 2992 was sent to B. Sreekumar and intimation of the same was given to him. As per Ext. D1(a), it is seen recorded that on 09.06.2005 the said RL 2992 unclaimed by Sreekumar was returned to sender. Ext. D2 is the postman's book wherein the same RL 2992 is seen entered. On going through Exts. D1 and D2 it is evident that opposite party had taken earnest effort to send the dishonoured cheque to complainant. Even after intimation by Ext. P3 complainant for the reasons best known did not take any steps by invoking Sec. 45 A of Negotiable Instruments Act or approach proper Forum for recovery of the amount. Instead of taking steps for obtaining duplicate cheque from the drawer complainant filed a complaint before this Forum against the bank claiming the amount covered under the cheque.

Recently, the Hon'ble Supreme Court in Branch Manager, Federal Bank Ltd. Vs. N.S. Sebastian reported in III(2009)CPJ 3 (SC)& 2009 CTJ 248(SC)(CP) opined that in cases where cheques were lost, the complainants are not entitled to the amount covered under the cheque. They should resort to Sec. 45 A of the Negotiable Instruments Act or take steps for recovery of the amount from the person who issued the cheque. The said decision is applicable to the facts of the present case. In view of the matter we do not find any deficiency in service that could be attributed to the bank for the loss of cheque. The amount covered under the cheque cannot be recovered from the bank alleging deficiency. It is not the case of the complainant even then somebody has withdrawn the amount or the drawer refused to give duplicate cheque. He did not take any steps for realisation of the amount from the concerned bank. We do not find any fault with opposite party since the registered parcel (RL 2992) sent by the opposite party unclaimed by the complainant. The claim is misconceived, which deserves to be dismissed.

In the result, the complaint is dismissed. Parties are left to bear and suffer their own costs.

A copy of this order as per the statutory requirements be forwarded to the parties free of charge and thereafter the file be consigned to the record room.

Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the Open Forum, this the 30^th day of October 2009.

G. SIVAPRASAD,

President.

BEENAKUMARI. A : MEMBER

S.K. SREELA : MEMBER

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O.P. No. 316/2005

APPENDIX

I COMPLAINANT'S WITNESS :

PW1 - Sreekumar

II COMPLAINANT'S DOCUMENTS :

P1 - Photocopy of slip dated 17.05.2005 for Rs. 5 lakhs.

P2 - Photocopy of letter dated 07.07.2005 issued by the

complainant.

P3 - Photocopy of reply letter dated 13.07.2005 to the

complainant.

P4 - Photocopy of registered letter dated 21.07.2005.

P5 - Photocopy of acknowledgement card.

III OPPOSITE PARTY'S WITNESS :

DW1 - Baby John

DW2 - Prabha Sudha. R

IV OPPOSITE PARTY'S DOCUMENTS :

D1 - Register of Postal Department dated 02.06.2005.

D1(a) - Register of Postal Department dated 02.06.2005.

D2 - Postman's Book dated 01.06.2005 to 29.07.2008

PRESIDENT