AT HYDERABAD.

FA  514/2010  against  C.C 61/2007, Dist. Forum-I, Chittoor.             

Between:

N. Govardhana Babu

S/o. Ramanujulu

Age: 55 years, Contractor

R/o. 10-62, Kamma Street

Pakala Post & Mandal

Chittoor Dist.                                              ***                         Appellant/

                                                                                                Complainant.

                                                                   And

1)  The Branch Manager

Indian Overseas Bank

Chittoor.

2)  The State Bank of India

Rep. by its Branch Manager

Tirupathi Branch,

Chittoor Dist.                                              ***                         Respondents/     

                                                                                                Ops.    

Counsel for the Appellants:                        M/s. M. Hari Babu.

Counsel for the Resps:                               Admission Stage.

CORAM:  

          HON’BLE SRI JUSTICE D. APPA RAO, PRESIDENT 

                                                               &

                                SMT. M. SHREESHA, MEMBER

FRIDAY, THIS THE NINETH DAY OF  APRIL TWO THOUSAND TEN

Oral Order: (Per Hon’ble Justice D. Appa Rao, President)

                                                          *****

1)                Having heard the learned counsel for the appellant and having perused the material on record, we are of the opinion that the  matter can be disposed of at the stage of admission. 

2)                Appellant is unsuccessful complainant.

3)                The case of the complainant in brief is that   he is a contractor having   savings bank account with R1 Indian Overseas Bank (IOB).  One Sri Ramabadra Raju had issued a cheque bearing No. 548809 Dt. 29.11.2006 for Rs. 45,000/-.  Accordingly he deposited it in R1 bank for collecting the said amount.  However, it did neither collect the amount nor return the cheque.    On repeated enquiries, he could know that R1 sent the cheque for collection to its branch at Tirupathi,  however  its employees misplaced it.    They did not take any steps to trace the cheque and therefore he could not collect the amount.   Due to non-receipt of amount he could not complete his tender works.    Therefore he sought for refund of the amount covered under the cheque with interest @ 12% p.a. together with compensation of Rs. 5,000/- and costs of Rs. 5,000/-. 

4)                 R1 bank resisted the case.  While admitting that the cheque was presented for collection  and when it verified it could know that the account relates to one Shammem Banu Shaik.  It had sent it to R2 by courier.    It was received by its Tirupathi branch through courier.    It was sent for collection to State Bank of India, Tirupathi.  Later  when it came to learn that the cheque was misplaced  by the staff  it was  informed to  the complainant that the cheque was misplaced, and it  would obtain non-payment certificate from SBI, Tirupathi.  He  could get a fresh cheque from the drawer of the cheque and requested the complainant to furnish the name of the person who issued the cheque and his account number.    The complainant informed the name of the drawer as M. Ramabhadra Raju.  However, the account shows that it does not relate to him but that of one Shameem Banu Shaik.    It had informed  that  even otherwise cheque cannot be encashed.  The complainant can as well obtain a fresh cheque and present it so that amount would be paid.    At any rate, there was no chance of cheque being honoured   as the account relates to one Shameem Banu Shaik.    Accordingly,  they obtained non-payment advice from State Bank of India and sent it to the complainant.   Therefore, there was no deficiency in service on its part and prayed for dismissal of the complaint.

5)                 R2 did not choose to contest the matter and was set-exparte. 

6)                 The complainant in proof of his case filed his affidavit evidence and got Exs. A1 to A5 marked while the R1 bank filed the affidavit evidence of its Manager and got Exs. B1 to B9 marked. 

7)                 The Dist. Forum after considering the evidence placed on record opined that the cheque was undoubtedly presented to R1 bank,  which in turn  sent to its branch office at Tirupathi evidenced by Ex. B1 courier receipt and acknowledgement Ex. B2.  When the cheque was misplaced it addressed a letter to   R2 which in turn issued Ex. B9 certificate of non-payment., and that account relates to Shameem Banu Shaik and not that of   M. Ramabhadra Raju.   Even if the cheque was  presented it would not be honoured.    At any rate since the cheque was not  encashed by any third party, and he could  as well obtain a fresh cheque  and recover the amount   from the drawer of the cheque consequently  the complaint was dismissed.    

8)                 Aggrieved by the said decision, the complainant preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective.  It ought to have seen that it was the duty of the bank to collect the amount  and paid to him.    When it failed to collect the amount it was to be held that there was deficiency in service  and therefore prayed that the complaint be allowed. 

9)                 The point that arises for consideration is whether the order of the Dist. Forum is vitiated by mis-appreciation of fact or law?

10)               It is an undisputed fact that the complainant had presented a cheque for  Rs. 45,000/- on 29.11.2006 with R1 bank in order to credit the amount in his account  by collecting from  R2 bank where the drawer  had an account.    Admittedly  R1  bank  sent  the  said cheque  to  its  branch  at  Tirupathi  under acknowledgement Ex. B2 in order to collect the amount from R2 bank at Tirupathi    It is an undisputed fact that the said cheque was misplaced  and could not be traced.    Immediately  R1 bank  has  taken  steps

and addressed a letter to R2 bank which in turn  verified the account and issued Ex. B9 certificate mentioning that no payment was made under the said cheque.    It also found that the account   on which the cheque was issued related to Shameem  Banu Shaik and not that of  M. Ramabadra  Raju drawer of the cheque.    Despite the fact that the complainant was informed  about the non-payment of  amount  and non-drawal of the amount  under the said cheque by  any third party, and that the account does not relate to  M. Ramabadra Raju the complainant did not issue  any notice to M. Ramabadra Raju asking him to issue a fresh cheque with correct account number.   None of the persons had encashed the cheque.  There was no reason why  the complainant did not take steps for obtaining a fresh cheque from drawer M. Ramabadhra Raju so that he could recover the amount immediately.    Solely on the ground that  the cheque was misplaced in the  branch of R1 bank  the complainant alleges deficiency in service on its part.    Unless the complainant establishes that there was loss due to the acts of  R1 bank he  would not be  entitled to any compensation.    When there was categorical   evidence that the amount was not encashed, there is no reason why the complainant did not   seek another cheque from the drawer and recover his amount.     Even otherwise even if the cheque was presented to R2 bank,  it  would not be able to pay the amount as it  relates to Shameem  Banu Shaik.  The amount cannot be realized under the cheque.   The complainant did not inform to the drawer of the cheque  that  account number mentioned  by him  in the cheque did not relate to him.  Had the complainant issued notice  and if the drawer failed to issue fresh cheque with correct  account number it would be  altogether different  and liability may be mulcted on the bank.   The complainant did not sustain any loss  on whatsoever ground.   We did  not see any mis-appreciation of fact or law  by the Dist. Forum in this regard.   We do not see any merits in the appeal. 

11)              In the result the appeal is dismissed at the stage of admission.   No costs. 

1)       _______________________________

PRESIDENT                 

2)      ________________________________

 MEMBER          

   Dt.  09. 04.  2010.

*pnr

“UP LOAD – O.K.”