DOF.10/11/2008 DOO.18/8/2010 IN THE CONSUMER DISPUTES REDRESSAL FORUM, KANNUR Present: Sri.K.Gopalan: President Smt.K.P.Prethakumari: Member Smt.M.D.Jessy: Member Dated this, the 18th day of August 2010 CC.270/2008 Mrs. Patricia Martinez, “Sithara”, P.O.Kurichiyil, Punnol, Thalassery (Rep. by Adv.T.Jagadeesh) Complainant Manager, ICICI Bank Ltd, Shafeer Complex, Opp.YMCA Road, Kozhikode Dist. (Rep. by Adv.Rajesh V Nair) Opposite parties ORDER Sri.K.Gopalan, President This is a complaint filed under section 12 of consumer protection act for an order directing the opposite party to pay a sum of Rs.5,00,000/- as loss sustained by the complainant and Rs.25,0000/- as compensation. The nutshell facts of the case of the complainant are thus: complainant is the holder of AccountNo.046201000174 of ICICI Bank. On 25th August the complainant had presented a cheque bearing NO.4227 of BBVA Bank for a sum of Rs.25, 000/- Euro, which will come Rs.16, 00,000/-(Rupees Sixteen lakh only). At the time of accepting the cheque from the complainant the opposite party represented that they are the international banking group and they can arrange the cheque amount immediately. But they did not give any information for a long time and even after repeated enquiry their reply was to wait further. On 22.9.08 complainant received a return memo with an endorsement “payee Bank Address required”. Actually the cheque contains the name and address of the payee bank. More over in banking business, the cheques, drafts etc. will bear the code number of the Bank. Complainant received the return memo after the expiry of 27 days which caused huge loss to her business. The non availability of amount had caused a loss to the tune of Rs.5, 00,000/-. Her husband entered into a sale agreement for purchase of property and given Rs.5, 00,000/- as advance. The time stipulated in the sale agreement was elapsed due to the non payment of the balance consideration. And it will cause a huge financial loss and mental agony to the complainant. It is due to the intentional latches on the part of opposite party. Registered notice was sent on13.10.08 calling upon to pay compensation. But opposite party had not even sent a reply. It reflects the admission of their fault. Opposite party is liable for the deficiency in service on their part. Hence this complaint. Pursuant to the notice opposite party entered appearance and filed version denying the main allegation. The brief facts of the contentions raised by the opposite party are as follows: Complainant is an account holder complainant had presented a cheque bearing number 4227 of BBVA Bank. It is false to say that the opposite party represented that they are the international banking group and they can arrange to encash the cheque immediately. It is also false that complainant had not received any information from the bank and she had to contact the bank several times for the encahsment of the cheque. The complainant opened the account for encashing the alleged cheque. The cheque was sent for collection to Bombay but on scrutiny of the cheque it was revealed that details of payee bank’s address were not clear. So memo was issued to furnish address of the payee bank. At the time of presenting the cheque the opposite party informed the complainant the encashment shall take minimum one month for clearing and the proceeds will be credited in her account. The said cheque was cleared on 1.10.08 and the proceeds were credited in the complainant’s account. Complainant has to state what basis she is entitled for compensation. On the above pleadings the following issues have been raised for consideration. 1. Whether there is any deficiency in service on the part of opposite party? 2. Whether the complainant is entitled to get the remedies as prayed? 3. Relief and cost. The evidence consists of the oral testimony of PW1, PW2, DW 1 and Exts.A1 to A5. Issue Nos.1 to 3 Admittedly complainant is an account holder of opposite party and complainant presented the alleged cheque Ext.A1 for collection. The main case of the complainant is that it took unusual delay for encashment of the amount and thereby causes huge loss and the opposite party bank is liable for the loss sustained by the complainant. PW1, the husband of the complainant filed proof affidavit in tune with the pleadings. In cross examination he has deposed that the alleged cheque Ext.A1 was presented on 25.8.08 and the amount was encashed on 1.10.08. He has also deposed as follows: There is 27 days delay and it is for this delay Rs.5, 00,000/- is claimed from the bank as compensation. Ext.A5 agreement is produced to prove it. Lawyer notice was sent to bank. It was not mentioned about Ext.A5. Agreement was written on 19.3.08. Expiry date was 19.9.08. Advance amount Rs.5, 00,000/- was forfeited due to non payment of the amount within the stipulated time. The cheque itself contains the address of the bank issued the cheque. Ext.A4 notice mentioned the amount of loss. The other witness examined as PW2 on the side of the complainant. He deposed in chief examination that he knows the complainant and also the affairs of property agreement between the husband of the complainant and Vasu. He has also deposed that he was signed in the agreement Ext.A5 as a witness. He further deposed that he knows the details of the agreement. The registration was not done since the payment was not made within 6 months. He could understand that it was because the cheque was returned whereby the complainant could not encash the amount in time. In the cross examination PW2 deposed that the agreement written from the document writer near the Puthankurishu Registrar office in Ernakulam. He further deposed that there were two witnesses himself and one Abootty from Thalalssery. The property situated in Kunnathunadu village. He also deposed that he was aware of the terms and conditions in the agreement and Saga and Vasu told him that the sale was not executed. Sager told him that cheque could not be issued. PW3, Mr. Vasu. K.N the owner of property for which Ext.A5 agreement were executed. He adduced evidence that he has executed the agreement with Sabir, the husband of the complainant. He identified Ext.A5. He has further stated in chief that the agreement was executed for the purpose of selling his property and house. He has also stated that the agreement was for a total amount of Rs.21 lakhs that the agreement period was six months from 19.3.08 to 20.9.08 that as per agreement he has received Rs.5,00,000/- and the balance amount was not received. He has also stated that he is not liable to return the amount in case the sale is not registered by performing the agreement paying the full amount. In the cross examination PW3 deposed that the alleged transaction was for an amount of Rs.21 lakh. He was told that he did not receive the amount form the bank. Rupees 5 lakh of Sahir is still with him. Manager of the Bank was examined as DW1. He has filed affidavit, evidence repeating the same contentions raised in the version. He deposed in cross examination as follows: ICICI bank includes in international Banking Group. The cheque will be sent for collection on the same day of presentation in the usual course. That will be entered in dispatch register after dispatch. It will be clear from the dispatch register whether the alleged cheque had sent for collection or not. There is no reason for not producing the extract of the register. The address of the foreign banks will be available in the foreign exchange wing. There is no difficulty to send the cheque for collection if the address of the drawee bank had not been furnished by the person presented the cheque. All cases address of the bank will be collected from the customers. He was not aware whether the details of the foreign bank in respect of the alleged cheque involved in this case were collected when the cheuqe was presented. It is the duty of the official who deals with the concerned section. On going through the evidence it is clear that the delay in encashment of the cheuqe Ext.A1 is the main point to be considered. The cheuqe was presented on 25.8.08 and encahsed on 1.10.08. The complainant was in need of money for purchasing the property and the last date of payment as per the agreement was on 19.9.08. the justification for the delay on the part of opposite party is that the cheque was sent for collection and on scrutiny of the cheque it was revealed that the details of the address of the payee bank was not clear. At this context it is important to note what is deposed in the cross examination of DW1, the Manger of the opposite party Bank. He has deposed in cross examination that the address of the foreign banks will be available in the foreign exchange wing of the bank. He has categorically stated that there is no difficulty to send the cheque for collection even if the address of the drawee bank has not been furnished by the customer those who present the cheque. All cases the address of the drawee bank will be collected from the customers but he was not aware whether the details of the foreign bank in respect of the cheque involved in this case were collected at the time when it was presented and further he deposed that it is the duty of the concerned official to collect the details. The above evidence of DW1 alone is sufficient to come in to conclusion that it is quite possible to send the cheque for collection even without gathering any details from the customer or account holder. The evidence makes it clear that the bank has its own set up to find out the details without the help of account holder. A leading bank is not expected to plead otherwise. Hence the delay of encashment of amount on this ground cannot be justified in any way. Complaint sends notice Ext.A4. But it was not replied. Non reply of a lawyer notice in respect of a huge amount, for its non encashment is nothing but a gross deficiency in service performed by a conscious and purposeful not doing by the opposite party applying professional skill. There is nothing more need to analysis to establish deficiency in service on the part of opposite party in the case of delay as far as the collection of cheque is concerned. The opposite party has no explanation what prevented them from collecting the details necessary from the customer at the time of presenting the above cheque. Opposite party has not taken interest to place facts before the Forum so as to convince that true and necessary measures had been taken sincerely to get the cheque collected without delay. Opposite party has argued that at the time of presenting the cheque the opposite party had informed the complaint that the encashment of the cheque shall take minimum one moth for clearing. But opposite party has not produced any convincing evidence to support this contention. DW1 in his cross examination deposed that the cheque will be sent for collection on the same day of its presentation. After dispatch that will also entered into the dispatch register. It is also stated that as far as the present cheque in dispute is concerned it can be seen from the dispatch register whether the cheque had been sent for collection or not. That means it will show when it was sent. That register is not produced. Why? There is no reason for non production of such a document. Delay is the cause and curse of this case. The dispatch register is one that shows when did the cheque sent for collection? Non production of that document adds weights in attributing deficiency in service on the part of opposite party. Thus we have no hesitation to hold that there is deficiency in service on the part of opposite party and opposite party is liable to meet the consequences. The evidence adduced by PW1, PW2, and PW3 reveals that complainant was in need of money so as to purchase the property and he is bound by the terms of agreement to pay the full amount on or before 19.9.08. Ext.A5 is the agreement. PW3 Vasu identified the agreement. Mr.Vasu is the second party in the agreement. The stamp paper in which the agreement has been written bears the number 18484 dt.19.3.08inthe name of K.N.Vasu. It is specifically written in the agreement that: “ Xmsg-]-«n-I-bn hnh-cn-¡p¶ hkvXp-h-I-I-sf-bpT ]pc-tb-bp-T-IqSn sam¯T 21,00,000/þ(-C-cp-]¯n H¶p evIjT cq]) hne¡v C¶p-ap-X Bdp-am-k-¯n-\-IT (20-þ9-þ2008) Xob-Xn-¡-IT \½-fn H¶mT ]mÀ«n-¡vXodp sImSp-¸m³ cmT ]mÀ«n-bpT A{]-Im-cT Xodv hm§p-hm³ H¶mT ]mÀ«n-bpT k½-Xn-¨n-cn,-¡p-¶-X-\p-k-cn¨v taÂ{]-Im-c-ap-ff Xodp hne-bn \n¶pT5,00,000/þ (A©p e£T cq]) Ct¶ Znh-kT AU-zm³kmbn H¶mT ]mÀ«n cmT ]mÀ«n¡v sImSp-¡p-I-bpT cmT ]mÀ«n BbXp-ssI-¸-äp-I-bpT sNbvXn-cn-¡p-¶p.”.This document reveals that there was an agreement with respect to purchase the property. It also shows that the purchaser is bound to pay the amount with in 6 months before 20.9.08. The agreement also contains that “ H¶#mT ]mÀ«n CuI-cmÀ {]Im-cT {]hÀ¯n-¡msX H¶mT ]mÀ«n IcmÀ eT-Ln-¨m AU-zm³kmbn cmT ]mÀ«n ]än-bn-cn-¡p¶ kT-J.y cmT ]mÀ«n-¡p-ff \jvS-]-cn-lm-cT hI-Ibv¡v H¶mT ]mÀ«n hI-sh-s¨-Sp-¡p-¶-XpT So kT-J-y-Xn-cn-sI-In-«p-hm³ H¶mT ]mÀ«n¡v Ah-Im-i-ap-m-bn-cn-¡p-¶-X-Ãm-¯-Xp-am-Ip-¶p. “. The terms of the agreement Ext.A5 proves that the consideration fixed for the property was rupees Twenty one lakh and the advance amount was Rs.5,00,000/-.The duration for the registration of the document was 6 months and the last day of payment was 20.9.08. It also shows that if the amount has not been fully paid before 20.9.08 first party will suffer the loss Rs.5, 00,000/- paid as advance amount. But it has to be noted that no attempt had been made on the part of the complainant or her husband to get the period of agreement extended for a further time. Though it has become late for encashment the expected money is there to be collected at any time. Actually the amount of the alleged cheque encashed and credited the amount in the account of the complainant on 1.1.08. Under such circumstances a man of ordinary prudence in the course of usual life will make an attempt to get extended the date of performance, to the maximum possible. In the cross examination specific question put to the mouth of PW1 whether he has taken any legal action? It was answered no action had been taken and no lawyer notice was issued. The amount of Rs.5, 00,000/- was forfeited. This attitude of the complainant can only be seen quite unusual. No doubt there is deficiency of service on the part of opposite party but the quantum of damage can only be determined by testing the genuinity of actual loss. The case of the complainant is that they have suffered loss of Rs.5, 00,000/- by reason of forfeiture. But there was no attempt on the side of the complainant to avoid such loss by getting extended the period for few days for the purpose of registration. Taking into account the available evidence on record and the prevailing circumstances it cannot be considered the complainant has proved that they have suffered a loss of Rs.5,00,000/-. Hence we are of opinion that an amount of Rs.1, 00,000/- will meet the ends of justice, for the financial loss and mental sufferings of the complainant. Thus we find there is deficiency in service on the side of opposite party and opposite party is liable to pay Rs.1,00,000/- as compensat9on to complainant together with a sum of Rs.1000/- as cost of his proceedings. Issue 1 to 3 is found in favour of the complainant and orders passed accordingly. In the result, the complaint is allowed directing the opposite party to pay an amount of Rs.1, 00,000/- (Rupees One lakh only) as compensation together with an amount of Rs.1000/- (Rupees One thousand only) including cost of this proceedings to complainant within one month from the date of receipts of this order, failing which the complainant is entitled to execute the order as per the provisions of consumer protection act. Sd/- Sd/- Sd/- President Member Member APPENDIX Exhibits for the complainant A1.Cheque A2.Pay-in-sliip A3.Return memo A4.Copy of the lawyer notice sent to OP A5.Sale agreement Exhibits for the opposite party : Nil Witness examined for the complainant PW1.Complainant PW2.K.N.Vasu Witness examined for the opposite parties DW1.Srideep Forwarded by order/ Senior Superintendent Consumer Disputes Redressal Forum, Kannur.
| | [HONORABLE PREETHAKUMARI.K.P] Member[HONORABLE MR. GOPALAN.K] PRESIDENT[HONORABLE JESSY.M.D] Member | | 
