By Smt. Padmini Sudheesh, President: Petitioners case is as follows: Petitioners are the joint account holders of the respondent Bank bearing No.5067. Some amount was due to the first petitioner from one Mr. M.J. Thomas. He has issued cheque towards that amount. The first petitioner presented the cheque bearing No.671193 dated 2.11.04 of the Catholic Syrian Bank, College Road, Thrissur Branch for Rs.85,000/- for collection through the respondent Bank. The cheque was honoured and the amount was credited and on 9.11.04 the first petitioner withdrawn Rs.1,00,000/-. On 5.11.04 the amount of Rs.85,000/- was credited to the account. At that time there was a balance of Rs.1,20,312/- in the account including the said Rs.85,000/-. Four days after the withdrawal of the amount on 9.11.04, the petitioner had received a notice from the respondent bank demanding the overdraft. Reply notice was sent. A lawyer notice was sent by the respondent bank. Reply also sent to that notice also. There is no other transaction with the respondent bank except the dealing stated above. The balance amount in that account is Rs.20,312/-. Petitioners are entitled to get back that amount. Respondent bank refused to return. Hence this complaint. 2. The counter is as follows: This respondent has filed suit O.S.1184 of 2005 before the Honble Thrissur Munsiff Court against the complainants and M.J. Thomas namely the drawer of cheque No.671193 dated 2.11.04 of the Catholic Syrian Bank Ltd., College Road, Thrissur who has issued the cheque fraudulently. M.J.Thomas is a necessary party before this Forum to adjudicate and decide the real issue and cause of action shown in this O.P. and the Forum may be pleased to order impleadment of M.J. Thomas, S/o. M.T. Jose, Olarikkara. The complainants have joined Savings Bank account No.5067 in respondent Bank Branch Olarikkara. Ist complainant presented cheque No.671193 dated 2.11.04 of the Catholic Syrian Bank Ltd, College Road, Thrissur for Rs.85,000/- the drawer of the cheque being M.J. Thomas and first complainant represented to respondent that there is sufficient cash as per this cheque issued by M.J. Thomas and the cheque will be honoured. So complainants were allowed to draw the cheque amount of Rs.85,000/-.The said cheque was presented at Service Branch on 4.11.04 for clearing to Catholic Syrian Bank, the drawer Bank, this respondent did not receive any information from the Catholic Syrian Bankor clearing House or from Plaintiffs service Branch. On 9.11.04 believing complainants and M.J. Thomas, complainants were allowed to draw Rs.85,000/- being the above cheque amount. Subsequently the said cheque was returned holding that there is no sufficient fund and the said cheque was bounced. By this payment of Rs.85,000/- the respondent was deceived by petitioners and M.J. Thomas and thereby caused a financial loss of Rs.,64,688/-. Lawyer notice sent to petitioners and Mrs.M.J. Thomas and M.J. Thomas sent a reply stating that a loan is applied, if that is sanctioned amount will be paid. Complainants sent a reply supporting their case. Hence dismiss this complaint. 3. From the averments and from the argument, the following points are to be considered: (1) Whether the complaint is barred by resjudicata? (2) Whether there is any defect of non-joinder of necessary parties? (3) Whether the petitioners are entitled for the amount as prayed? (4) Reliefs and costs. 4. The evidence consists of Exts. R1 to R7. No other evidence by either sides. 5. Point No.1: As per Ext. R7 there was a civil suit regarding the same subject matter and was adjudicated. The parties are also same. One Mr. Thomas who was a party in O.S.1184/05 is not impleaded in this O.P. He is a necessary party in this O.P. No steps were taken by the petitioners to implead him. So the petition is liable to be dismissed on the ground of non-joinder of necessary parties. Considering the aspect of resjudicata, in both the cases the subject matter is substantially the same and there has been a judicial adjudication. A second trial on the same subject matter is barred. The other points are not considered. 6. In the result, this complaint is dismissed. No order as to cost and compensation. Dictated to the Confidential Assistant, transcribed by her, corrected by me and pronounced in the open Forum, this the 30th day of June 2008.
