The fact of the case of the complainant in a nutshell is that the complainant is an Account holder of Op no.2 Bank being account no.02821000113429. On 16.4.2014 the complainant presented a cheque to the Op no.2 Bank being cheque no. 002619 dated 30.12.2013 for a sum of Rs.99,375/- for encashment issued by authorized signatories of
Shreysth Production Industries Ltd upon ICICI Bank, Barrackapore Branch. After presentation of the said cheque the complainant was in dark about the fate of above cheque. On 5.5.2014 and on 13.5.2014 the complainant wrote a letter to the OP no.2 Bank about the cheque in question but the oP no.2 Bank did not reply anything. The further case of the complainant is that being frustrated the complainant on 11.8.2014 sent Legal notice through his Ld. Advocate to the G.M., R.M., Manager at Konnagar Branch demanding the appropriate information for withholding the aforesaid cheque to such a long period . After that the HDFC Bank Ltd sent a letter to the complainant disclosing the fact “the instrument was presented for collection in clearing as per process and was returned unpaid by ICICI Bank Ltd with the reason” Insufficient Funds on 17.4.2014 as evident from the copy of the NPC but the instrument was inadvertently lost in transit by courier company”. Hence, this complaint filed by the complainant praying for relief as stated in the prayer portion of the complaint.
The Ops contested the case by filing Written version denying inter alia all material allegations . The positive case of the Ops is that the complainant is trying to cover up loss caused to him for his own act of negligence i.e. cheque vide no.002619 dated 30.12.2013 of amount Rs.99,375/- was already a stale instrument at the time of it’s pr3esentment i.e. on 16.4.2014 as because validity of cheque is for 3 months from the date of issuance of instrument and complainant failed to present cheque no.002619 within its validity period. No question of any suffering of loss and injury at all arises, for such negligent act of complainant and therefore no liability can be fastened on anyone including answering Op’s . Hence
complainant cannot claim loss from answering Op’s for his own act of negligence. It is settled law that an instrument cannot be paid if it is beyond its validity period. It is well settled that by ingenious and crafty drafting which purport to create the illusion of cause of action, a pretended, baseless , false or a simulated claim or cause of action, as is manifest in the instant case against answering Ops, cannot be brought into the judicial arena. It is therefore, fit and proper that this meritless, ve4xatious complaint ought to be nipped in the bud and dismissed on the very threshold. Hence, the Ops pray for dismissal of the complaint.
Complainant filed (1) Copy of depositing slip (2) Copy of A/d card addressed to Ganaranjan Chakraborty , Manager, HDFC Bank (3) Copy three Postal receipts (4) Copy of letter issued by Ganaranjan Chakraborty to lHDFC Bank Manager, (5) Copy of letter from HDFC Bank addressed to Ganaranjan Chakraborty (6) Copy of letter addressed to ICICI Bank issued from HDFC Bank (7) Copy of letter addressed to HDFC Bank issued by Professional Courier Net work and (8) copy of letter addressed to Officer in charge, Konnagar Police Fari. Complainant also filed Evidence in chief and W.N.A.
OP on other hand filed (1) copy of letter dated 10.5.2014 addressed to Professional Couriers Network , (2) copy of letter addressed to officer in charge, Konnagar Police Fari issued by Professional Courier (3) Copy of letter of Gana Ranjan Chakraborti, Advopcate (4) Copy of letter addressed to Gana Ranjan Chakraborty issued by HDFC Bank dated 5.9.2014 (5) Copy of non payment certificate etc. Op also filed Evidence in chief and W.N.A.
POINTS FOR DECISION
- Whether the complainant is a consumer?
- If there is any deficiency on the part of the oP ?
- If complainant is entitled to get any relief?
DECISION WITH REASONS :
Point no.1
It is admitted fact that the complainant is a customer under the HDFC Bank, Konnagar Branch being A/c no.02821000113429. So , the complainant is a consumer U/s 2(d)(i) of the C.P.Act, 1986. The point no.1 is thus answered in favour of the complainant.
Point no.2 and 3
Both the points are taken up together for easiness of discussion.
Complainant’s case regarding deposition of cheque before the HDFC Bank , Op no.2 is an admitted position . There is no dispute that cheque was not deposited by the complainant before the HDFC Bank. Later the cheque was sent to ICICI Bank as per case of the HDFC Bank for encashment. But ICICI Bank returned the cheque with a reason insufficient fund on 17.4.2014 and that cheque was lost by courier company. As such, the said alleged cheque was not sent to the oP no.2 by the ICICI Bank. So, it is surfaced from the argument of both sides as well as from the letter of correspondence between the parties and letter of the ICICI Bank that the instrument no. 002619 was unpaid and was transmitted by the courier service to the HDFC Bank and HDFC admits that instrument was presented on 16.4.2014 but the cheque was dated
30.12.2013 . It is alleges by HDFC that complainant deposited the cheque for collected beyond his validity period. Be that as it may , but the complainant is entitled to get back the cheque if it has been defaulted or sent back by the ICICI Bank on the ground of insufficient fund. So the total responsibility lies on the HDFC Bank. HDFC Bank have /had duty towards the complainant. HDFC Bank /OP no.1 had duty to discharge legal obligation to pay back the cheque to the complainant. HDFC Bank has written letter after receiving the legal notice. They admitted that loss of instrument in transit is a bona fide occurrence of incident without any motive and was beyond control. Such plea of HDFC Bank is not sustainable. There is no document to show that HDFC Bank has taken step against ICICI Bank for not discharging obligation of the ICICI Bank. It is also not in the record that ICICI Bank took recourse of law against courier company to whom the cheque was lost or the courier service who have been engaged by the ICICI Bank in carrying their letters to the other branch. Without a wide analysis it is surfaced that complainant did not get the instrument which was deposited before HDFC Bank. It is not a duty of the complainant what has done by the HDFC Bank. Rather it is admitted position that complainant deposited cheque before the HDFC Bank which is transpired from letter dated 3.5.2014 to the Manager, ICICI Bank, Service Branch, Kolkata. By that letter HDFC Bank requested the Manager ICICI Bank to kindly issue a non payment certificate from their end. The cheque in question was deposited by the complainant on 30.12.2013. After a prolong time the HDFC Bank has informed the ICICI Bank with a request to issue non payment certificate. Furthermore, within those years no appropriate action have been taken against the person who caused the lost of the cheque directly or indirectly by omission or commission of some act against the interest of the
complainant. The HDFC Bank did not take any step to inform the complainant regarding the status of cheque even after being informed by the complainant. The complainant after depositing the cheque did not get any information for which the complainant knocked the door of the HDFC Bank again and again mainly on 16.4.2014, 5.5.2014 and 13.5.2014 regarding the instrument deposited before the HDFC Bank/OP.
So, avoiding unnecessary details, beyond the issue of this case it is crystal clear that complainant deposited the cheque which was not paid back to the HDFC Bank, OP no.1 and 2 informing the lost of the cheque. Such conduct of the HDFC Bank within the course of one year within which the OP no.1 and 2 were silent and were sleeping neglecting the duty towards complainant. As such, there was deficiency in service of HDFC Bank by not taking adequate step in proper time. So, after deliberation the material on record , we are of opinion that the case succeeds . Hence it is –
Ordered
That the C.C. no. 30 of 2015 be and the same is allowed on contest. The Op no.1 and 2 are jointly and severally liable to pay Rs.1,00,000/- (Rupees one lakh) to the complainant towards compensation for unnecessary harassment ,mental agony and pain. The Op no.1 and 2 are jointly and severally liable to pay Rs.10,000/- to the complainant towards litigation cost.
The Opposite party no.1 and 2 are jointly and severally shall comply the above orders within 30 days from the date of order, i.d. Rs.200/- per day shall be deposited to the Consumer Legal Aid Fund till full realisation of the payment.
Let a copy of this order be made over to the parties free of cost.
