Date of Filing:11/02/2019

Date of Order:31/01/2020

BEFORE THE BANGALORE I ADDITIONAL DISTRICT CONSUMER DISPUTES REDRESSAL FORUM SHANTHINAGAR BANGALORE -  27.

Dated: 31^stDAY OF JANUARY 2020

PRESENT

SRI.H.R. SRINIVAS, B.Sc., LL.B. Rtd. Prl. District & Sessions Judge And PRESIDENT

SRI. D.SURESH, B.Com., LL.B., MEMBER

COMPLAINT NO.333/2019

Vs

ORDER

BY SRI.H.R. SRINIVAS, PRESIDENT.

1.      ThisComplaintisfiled by the ComplainantU/S Section 12 of Consumer Protection Act 1986, against the Opposite Party (herein referred in short as O.P) alleging the deficiency in service in not returning the cheque presented for encashment through his SB account and for the value of the cheque i.e. Rs.90,000/- with interest at 18% per annum on the said amount Rs.50,000/- towards damages for causing mental agony, torture and harassment, not returning of cheque and its endorsement,andfor such other reliefs as this Hon’ble Forum deems fit. 

2.      The brief facts of the complaint are that:the complainant is a S.B. Account holder with OP. The account number bearing S.B.No.0882101056128 he deposited a cheque for value of Rs.90,000/- bearing No. 795077 drawn on 27.08.2018 on 04.09.2018.  OP after receiving the cheque sent it for clearance and the same was dishonoured. The dishonouredcheque and the endorsement/memo was not given to him inspite of repeated request.  OP went on evading the complainant in that respect on one or the other pretext.  OP negligently acted for which he had to suffer. The service rendered by OP in not returning the cheque along with endorsement amounts to deficiency of service and also against the provisions of the guidelines issued by RBI. He issued a legal notice to the OP which was not replied or complied. The act of OP in not returning the cheque along with endorsement, harassed him, caused him mental agony and torture. Hence this complaint.

3.     Upon the service of notice, OP appeared before the forum throughits advocate filed its version admitting the fact of the complainant having an SB account with it, depositing the cheque and also the loss of the cheque during transit. It is further in the version that, the said cheque when presented for payment, returned as  the payment was stopped by the drawer, and the same was intimated to the complainant. They lost the cheque in transit. They sent the cheque immediately after presentation for collection to the drawee bank without any delay. The drawee bank also returned the cheque with memo /endorsement that the payment was stopped by the drawer. The complainant could have file a case under Negotiable Instruments Act as per 61 R/W 62 and 65 of the Indian Evidence Act and the OP could have provided the secondary evidence in respect of the said loss of cheque. 

4.     Complainant had an opportunity to file a civil or/and criminal case against the drawer of the cheque and hence the bank is not liable to pay the cheque amount.  The complainant is not a consumer and the claim do not cover under the Consumer DisputeAct. The complainant has taken advantage of the beneficial legislation on vexatious, frivolous and false grounds. 

5.     It has denied the allegations made in each and every para of the complaint and further contended that there is no deficiency in service on their part and hence prayed the forum to dismiss the complaint.

6.    In order to substantiate their case, complainant and OP have filed their  affidavit evidence which is repetition of the contents of the complaint and version and also filed and got marked the documents. Perused the same.Heard the arguments.The points  arise for our consideration are:-

                   (1)   Whether the complainant has proved

deficiency in service on the part of the O.P?

(2)  Whether the complainant is entitled to

the relief prayed for in the complaint?

7.     Our answers to the above points are:-

POINT 1:         Partly in the affirmative

POINT 2:         In the affirmative

                        For the following:

REASONS

POINT No.1:-

8.     We have perused the complaint, version, affidavit evidence of both the parties and the documents filed respectively. It is an admitted fact by the OP that the complainant is a SB account holder and deposited the cheque bearing No.795077drawn for Rs.90,000/- on 27.08.2018 to be encashed and credited to his account.  It is also the case of the OP that the said cheque sent to the drawee’s branch immediately and the drawee’s branch informed them that the said cheque was returned unencashed due to the stop payment advise given by the drawer of the cheque. It is specifically mentioned in the endorsement given, that while receiving the return cheque by them, it was lost in transit.  Ex P1 is the challen for having deposited the cheque and Ex.P2 is the said letter dated 31.08.2018 and ExP3 is the copy of the legal notice issued to OP by the complainant.

9.     On the other hand, OP has also produced the return memo issued by the drawee bank i.e. Syndicate Bank informing them that the payment has been stopped by the drawer and sent the endorsement and Ex.R2 is the same as Ex.P2.  The contention of the OP is that the complainant has not taken any action to recover the money from the person who has issued the cheque the payment of which, has been stopped. He could have taken civil and criminal action against the drawer of the cheque and they are ready to provide the secondary evidence and support the complainant in that respect.  The counsel for the OP has relied on the decision reported in 2009 CTJ 248 Supreme Court (CP). Federal Bank VsN.S.Sabastianis that:

“Consumer Protection Act, 1986 – Section 2(1) (g) – Negotiable Instruments Act 1938 – Section 45 A- Banking and Financial Services – Cheque lost in transit – Bank advised complainant to get duplicate cheque from drawer – Banking  Ombudsman held no deficiency in service on part of bank proved – Consumer complaint filed – State Commission held bank liable to pay interest on cheque amount – Order upheld by National commission 0- civil appeal filed – No amount deposited by drawer in account – Even if cheque not lost in transit, would have been dishonoured due to insufficiency of funds – No steps taken to obtain duplicate cheque – No action taken against drawer for recovery of amount – Orders of Consumer Fora set aside.”

And prayed the forum to dismiss the complaint.It has also relied on a decision reported in 2015 STPL 100093 NCDRC [2015(3) CPR 888] in Ajay Kumar Singh VsCanara Bank.

(A) Consumer Protection Act,1986 Section 2(1)(g)- Banking – Cheque lost in transit – Held: the cheques were not lost because of negligence of the bank but were lost during postal transit – For the loss of cheques in postal transit the OP Bank cannot be held deficient in service.

(B) Consumer Protection Act,1986 Section 2(1)(d)- Consumer- Cash Credit facility – Commercial purpose – complainant had opened an account with cash credit facility with the bank in respect of his trading business- Held, the services of the Opposite Party bank were availed by the complainant for commercial purpose and as such he do not falls within the definition of consumer – No plea of complainant that he was doing trading business exclusively for earning livelihood by means of self-employment - Revision by complainant dismissed.

11.   On the other hand, the complainant has relied on the decision rendered by theHon’ble National Consumer DisputesRedressal Commission, New Delhi in Revision Petition 2028/2016 in Manager Bank of Baroda and Another VsChitrodiyaBabuiDivanji,wherein the facts and circumstances are similar to the case on hand.The judgment relied on by the counsel for OP rendered by the Hon’ble Supreme Court of India is entirely on different facts and circumstances.  In this case there is no evidence led in by the OP that the drawer was not at all having enough money in his account. On the other hand the decision relied on by the complainant aptly and squarely applies to the present facts of the case and hence there is deficiency on the part of OP in not returning the cheque along with endorsement. Hence we answer POINT NO.1 IN THE AFFIRMATIVE.

POINT NO.2

12.   In view of the above decision relied by the counsel for the complainant, and in view of the answeredPoint No.1 in the affirmative,  OP. is bound to pay the value of the chequei.e Rs.90,000/- along with interest at 6% per annum from the day on which he deposited the cheque with the OP i.e 27.08.2018. Since the complainant is made to file this complaint, OP is bound to pay the litigation expenses of Rs.5,000/- and also damages of Rs.10,000/- for causing mental trauma, agony and hardship.   Hence we answer POINT NO.2 PARTLY IN THE AFFIRMATIVE and proceed to pass the following:

ORDER

1. The complaint is hereby partly allowed with cost.

2. OP i.e. Canara bank Represented by its Manager/Authorized Signatory is hereby directed to pay a sum of Rs.90,000/- along with interest at 6% per annum from the day on which he deposited the cheque with the OP i.e 27.08.2018 till realization.

3. Further OP is hereby directed to pay Rs.10,000/- towards damages and Rs.5,000/-  towards cost and litigation and other expensesto  the complainant.

4.  O.P ishereby directed to comply the above order within 30 days from the date of receipt of this order and submit the compliance report to this forum within 15 days thereafter.

5. Send a copy of this order to both parties free of cost.

Note: You are hereby directed to take back the extra copies of the complaints/ version, documents and records filed by you within one month from the date of receipt of this order.

(Dictated to the Stenographer over the computer, typed by her corrected and then pronounced by us in the Open Forum on this 31^stDAY OF JANUARY 2020)

MEMBER                          PRESIDENT

ANNEXURES

1. Witness examined on behalf of the Complainant/s by way of affidavit:

Copies of Documents produced on behalf of Complainant/s:

Ex P1: Copy of the bank challen for having deposited the cheque for collection.

Ex P2: Copy of the endorsement given by the bank informing that the cheque was lost in transit.

Ex P3: Copy of the Legal notice issued by me to the bank.

Ex P4: Copy of the receipt for having sent the same through postal authority and

Ex P5: Postal acknowledgment.

2. Witness examined on behalf of the Opposite party/s by way of affidavit:

RW-1: Sri R.Narasimha Murthy, Branch Manager of OP.

Copies of Documents produced on behalf of Opposite Party/s

-Nil-

MEMBER                        PRESIDENT

A*