BEFORE THE IV ADDL DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU

1^ST FLOOR, BMTC, B-BLOCK, TTMC BUILDING, K.H ROAD, SHANTHINAGAR, BENGALURU – 560 027.

  25^th DAY OF AUGUST 2020

ORDER

SMT.PRATHIBHA. R.K., PRESIDENT

This complaint is filed by the complainant against the Opposite Parties (herein after called as OPs) under section 12 of the Consumer Protection Act, 1986.  The complainant prays to direct the OPs to pay compensation of Rs.3,00,000/- for the loss suffered, injury caused to the complainant and to pay interest @ 12% p.a on Rs.3,00,000/- on the allegations of negligence.

2.      The brief facts of complaint is as under:

Complainant submitted that, he presented a cheque bearing No.000479 dated 29.09.2018 amounting to Rs.1,50,000/- before OP-1 Bank on 11.12.2018 for encashment from IDFC Bank, Residency Road, Residency Building, Bangalore.  The complainant submitted that if customer presented the cheque before Bank for collection, the Bank ought to have collected the said amount and transfer into the customer’s account.  This is a usual formality in respect of function of Banks, if the amount is not available in the account of the drawer Bank ought to have been returned back the cheque with an endorsement stating that either account is closed/account is blocked/insufficient funds.  The cheque number 000479 presented by the complainant for the encashment with the OP-1 Bank, the OP-1 Bank has failed to process the said cheque for collection of money.  The complainant was regularly approaching OP-1 but the OP-1 was not informed the complainant about the encashment of cheque amount nor they return back the cheque.  This shows the negligence and deficiency in service on the part of OP-1 Bank.  The said act of OP-1 the complainant incurred a loss to the tune of Rs.3,00,000/-.

The complainant further submitted that the cheque so presented before OP-1 Bank was returned with a reason as ‘Account Blocked’.  If OP-1 Bank intimated the said facts within the time stipulated the complainant would have return back the cheque to the drawer or the complainant can file a case against the drawer U/s.138 of N.I Act.  The OPs have issued a letter after lapse of time limit that too on 01.02.2019.  Hence the complainant has lost his right to file complaint against the drawer.

The complainant further submitted that OPs.1 & 2 have issued a letter dated 01.02.2019 informing that the cheque is lost in transit and they have filed a FIR before the Police Commissioner under ‘Lost Article Report’.  The said information given by the OPs does not compensate the loss so caused by negligence and deficiency in service.  Hence complainant filed this complaint.

  3. In response to the notice issued, OP-1, 2 & 3 appeared through advocate and filed their version in brief as under:

The complaint is not maintainable either in law or on facts and is liable to be dismissed in limine.  The complaint does not disclose any cause of action against the OPs.  That the OPs in the complaint are ‘The Manager, Kotak Mahindra Bank Ltd., High Court Branch, and ‘The Manager, Kotak Mahindra Bank Ltd., Main Branch’.  The complainant has maintained his account with Kotak Mahindra Bank, High Court Branch and not with the OPs.  The complainant has availed the services from Kotak Mahindra Bank and not the OPs herein and therefore no personal liability can be fastened on them.  The complainant has no right to relief against the OPs in respect of the matter involved in the present proceedings.

OPs further submitted that, it is settled law that a company is a separate entity in law and as such, if any proceeding is to be initiated for recovery of any money which is payable by a company to any person, such proceedings should be against the company only and not its employees.  The complainant has maintained his account with Kotak Mahindra Bank Ltd., which is public limited company registered under the Companies Act, 1956.  Permitting the complainant to sue the OPs in the present proceedings will tantamount to negation of the concept of ‘company’.  Therefore the complaint is not maintainable against the OPs and is liable to be dismissed.  The complaint is bad for non-joinder of courier agency through which the cheque was sent to the complainant.  In view of the definition of the term ‘consumer’ under the Consumer Protection Act, 1986, and as the complainant has availed the services of courier agency, the courier agency is a necessary party to the present proceedings.

OPs further submitted that the complainant has maintained a savings bank account bearing No.20111009529 with the High Court Branch of Kotak Mahindra Bank Ltd., (hereinafter referred to as the ‘Bank’).  On 11.12.2018, the complainant deposited a cheque for a sum of Rs.1,50,000/- bearing No.000479, dated 29.09.2018, drawn on IDFC Bank, Residency Road Branch with the High Court Branch of the Bank.

OPs further submitted that pursuant to the deposit of the cheque, on 11.12.2018, the collecting banker forwarded the cheque to the drawee bank for further process.  On 14.12.2018 the Bank received an intimation from the drawee bank that the cheque presented was dishonoured and returned with an endorsement ‘Account Blocked’ and the Bank informed the same to the complainant.  After receipt of the said intimation, the Bank in due discharge of its duties, sent the original cheque along with the return memo to the complainant by courier.  The cheque was sent through the courier agency ‘Professional Couriers’ vide consignment No.HRD752882751 on 15.12.2018.  However, on 04.01.2019 the Bank received a communication from the courier agency that the consignment was missing in transit and the same could not be traced.  As per confirmation received, the courier agency has lodged a First Information Report on the website of Bengaluru City Police under Lost Article Report on 05.01.2019.  Further, Bank has issued a Lost Letter along with the FIR copy for the lost consignment submitted by the courier agency to the complainant on 07.01.2019.  By the said communication, the Bank also advised the complainant to advise his customer to contact the drawee bank to place a stop payment and issue a fresh cheque in lieu of the lost cheque.

OPs further submitted that it is clear that the Bank duly forwarded the cheque to the drawee Bank for realization, intimated the complainant about the fact of dishonour of cheque, sent the dishonoured cheque to the complainant by courier and intimated the complainant that the cheque was lost.  The loss of cheque during transit cannot be attributed to the Bank when the Bank had duly sent the cheque to the complainant through the courier agency.  The Bank had duly performed all its duties and there is no deficiency whatsoever by the Bank in discharge of its duties.  Hence OPs.1 to 3 prays for dismissal of the complaint with costs.

4. In response to the notice issued, OP-4 appeared through advocate and filed their version in brief as under:

The complaint is not maintainable either in law or on facts and the same is liable to be dismissed in limine.  OP-4 is not aware of the cheque bearing No.000479 dated 29.09.2018 amounting to Rs.1,50,000/- deposited at Kotak Mahindra Bank Ltd., Extn. Counter, High Court Building, Bangalore dated 11.12.2018 for encashment from the IDBI Bank, Residency Road Building, Bangalore.  That the OPs.1 & 2 have issued a letter dated 01.02.2019 informing that the cheque is lost in transit and they have filed a FIR in the office of Commissioner of Police under lost Article report and Professional Courier on 04.01.2019 was also issued complaint are facts on record.  OP-4 has informed the OP-1 by letter dated 04.01.2019 about the missing of consignment HRD 752882751.  The contents of the consignment was not disclosed by the OP-1 while booking the consignment and also the value of the consignment is not disclosed to OP-4.  As such the very suit itself is filed by person who has no authority in the eyes of law.  OP-4 name is not mentioned anywhere and OP-4 has never been under any contractual obligations with the complainant.  Hence OP-4 is not at all concerned with the claim of the complainant.  Moreover, the consignment was booked by one Meraaj Zeshan and not by the complainant.

OP-4 denies that the lapses of the time period of the cheque will not get back to claim a case U/s.138 of N.I Act which is also lost.  This fact was not relied with OP-4 for the reason that the OP-1 has booked a consignment with consignment note bearing No.HRD752882751, addressed to one Meraaj Zeshan, No.18, 3^rd Cross, Bhuvaneswari Nagar, R.T Nagar Post, Bangalore.  The contents of the consignment was not disclosed by the OPs.1 to 3 while booking the consignment and so also the value of the consignment is also not disclosed and the same is evident from the documents produced by the complainant.  The consignment booked by the OP-1 with the consigning note No.HRD75288275 did not contain any cheque as alleged and as such the question of delivering the alleged cheque under the consignment does not arise.

OP-4 further submitted that the OP-4 has filed complaint to the jurisdictional police, it is under the investigation who is yet to give any finding on the investigation.  The transaction which has taken place at the office of OPs.1 to 3 for which OP-4 is not a party and it was the responsibility of OP-1 to take utmost care when clearing such a high value cheque if it was presented for the realization.  OP-4 has already taken all legal recourse by filing the police complaint and also intimating through letter dated 04.01.2019 the respective consignment persons who had booked the consignment which is lost.  In tracing out the address of the persons who booked the consignment consumed a letter more time than anticipated but reasonable time otherwise there was no willful delay in informing the concerned parties regarding the loss of consignment.  OP-4 directs all the consigners to take the appropriate insurance coverage for the consignment before accept the same.

OP-4 further submits that they as carriers are covered under Section 3 of the Carriers’ Act, hence OP-4 is not liable for the loss or damage to the property delivered to them to be carried exceeding in value of Rs.100/- unless the person delivering such property to be carried shall expressly declare to such carrier, the value and description of the contents of the consignment in the consignment note at the time of booking the item.  The carriers liability is clearly printed on the consignment note and as such OP-4 is not liable to pay any amount exceeding Rs.100/- as per the agreed terms of contract between the parties.  Hence OP-4 prays for dismissal of the complaint with exemplary cost.

5. In the course of enquiry into the complaint, the complainant and the OPs have filed their affidavits reproducing what they have stated in their respective complaint and objections.  Complainant and OPs have submitted written arguments.  Complainant and OPs have produced certain documents.  We have heard the arguments of complainant and OPs and we have gone through the oral and documentary evidence of both parties scrupulously and posted the case for order.

6. Based on the above materials, the following points arise for our consideration;  

1. Whether the complainant has proved that there is deficiency in service on the part of the OPs, if so, whether complainant is entitled for the relief sought for?

2.  What order?

7. Our findings on the above points are as under:

Point No.1:  Negative

Point No.2:  As per the order below

REASONS

8. Point No.1:  On perusal of the pleadings, evidence and documents produced by both parties, it is an admitted fact that the complainant is having an S.B account No.20111009529 with OP-1 Bank.  The complainant has presented a cheque bearing No.000479 dated 29.09.2018 before OP-1 Bank on 11.12.2018 for collection from IDFC Bank, Residency Road Branch, Residency Building, Bangalore-25.  The complainant alleged that OP-1 Bank has not informed about the loss of cheque within time stipulated nor the OP Bank return back the cheque.  Hence the complainant has lost his right to file a case against the drawer U/s.138 of N.I Act.

9. Per contra OPs.1, 2 & 3 submitted that the complainant presented a cheque on 11.12.2018 for collection before OP-1 Bank.  The OP-1 forwarded a cheque to drawee Bank for further process.  On 14.12.2018 OP-1 received an intimation from drawee Bank that the cheque presented was dishonoured and returned with an endorsement ‘Account Blocked’.  After receipt of the said intimation from the drawee Bank, the OP-1 informed the said facts to the complainant.  The drawee bank send a original cheque along with return memo to the complainant by courier.  The said cheque was sent through the courier agency ‘Professional Courier’ vide consignment No.HRD 752882751 on 15.12.2018.  On 04.01.2019 the OP-1 received a communication from the courier agency that the consignment was missing in transit and the same could not be traced.  After receipt of the said information OPs.1, 2 & 3 lodged complaint before the Bangalore City Police under ‘Lost Article Report’.  The said fact was communicated to the complainant on 07.01.2019 and advised the complainant to contact the drawee bank to place a stop payment and issue a fresh cheque in lieu of the lost cheque.  The OPs.1, 2 & 3 have done their duty without any fault.  Hence there is no deficiency on the part of OP.1, 2 & 3.  The OPs have relied the following judgments.

10. Admittedly the cheque No.000479 issued to the complainant was dishonoured with a reason ‘Account Blocked’.  The said cheque presented by the complainant was lost in transit.  The OPs in his affidavit evidence submitted that they have informed the said fact to the complainant on 07.01.2019 without any delay.  In the said letter OPs have clearly stated that cheque was lost in transit and the complainant has to take steps to obtain duplicate cheque as per section 45A of N.I Act.  Further the judgment passed by Hon’ble Supreme Court of India, in Civil Appeal No.43 of 2009 in a case between Branch Manager, Federal Bank Ltd., Vs. N.S Sabastian, has held in para.3 & 7 as under:

1 ..

2 ..

3 .. The cheque was sent for collection to Chengannur branch of the bank through M/s. Professional Couriers but the same was lost in transit.  The respondent complained to the Manager of Kunchithanni branch of the bank about non-credit of Rs.9.85 lakhs in his account and then filed a petition before the Banking Ombudsman for the state of Kerala.  The Manager of the Kunchithanni branch of the bank, vide his letter dated 5^th June, 2000, informed the respondent that the cheque was lost in transit and advised him to get a duplicate cheque in lieu of the lost instrument.  Thereafter, the Banking Ombudsman issued communication dated 10^th July, 2000 to the respondent that there was no deficiency of service on the part of the bank and that he may take necessary steps to obtain duplicate cheque from the drawer by invoking Section 45A of the Negotiable Instruments Act or approach a court/appropriate forum for recovery of the money.  However, instead of taking steps for obtaining duplicate cheque from the drawer, namely, Anil Kumar, the respondent filed a complaint before the State Commission claiming Rs.9.85 lakhs with interest @ 18% per annum.  The bank contested the complaint by asserting that there was no deficiency of service because it had asked the complainant to obtain duplicate cheque which he failed to do.

7. This being the position, the direction given by the State Commission for payment of interest to the respondent is liable to be set aside.  Consequently, the order of the National Commission is also liable to be set aside.

11. In the aforesaid judgment referred cheque was sent for collection to Chengannur Branch through Professional Couriers and the same was lost in transit.  The Manager of the Kunchithanni Branch informed the respondent on 05^th June 2000 that the cheque was lost in transit and advised him to obtain a duplicate cheque on 10^th July 2000.  Inspite of taking duplicate cheque the Respondent filed complaint before State Commission.

12. In the instant case the complainant submitted that the OPs have issued a letter only on 01.02.2019 informing that the cheque lost in transit and they have filed a FIR before the Police Commissioner under ‘Lost Article Report’.  Since the OPs have delayed in issuing the letter to the complainant, the complainant has lost his right to file a case U/s.138 of N.I Act.  Hence the complainant has prayed for compensation of Rs.3,00,000/-.

13. Admittedly the OPs have issued a letter to the complainant that the cheque was lost and advised him to contact the drawee Bank to place a stop payment and advised the complainant to obtain a duplicate cheque.  Complainant has not made any effort to obtain duplicate cheque from the drawer by invoking U/s.45A of the Negotiable Instruments Act.  However the complainant instead of taking a steps for obtaining the duplicate cheque from the drawer the complainant had approached this Forum for compensation.  Since the cheque in question was dishonoured and the “Account Blocked” there was remedy available to the complainant to pursue his legal remedy against the drawer.  The complainant has to file a complaint U/s.138 of N.I Act under Criminal Proceedings or he can file a civil suit before the Civil Suit for recovery of the said amount if so he desires.  Complainant has not made any effort and approached this Forum without any grounds.

 14. Thus looking to the facts and circumstances of the case and the discussions made in the above paragraphs, we are of the opinion that, the complainant has failed to establish deficiency of service on the part of OPs.  Therefore, we are of the opinion that, the complainant is not entitled to any of the reliefs sought in the complaint.  Accordingly, we answered the point No.1 in the negative.

15. Point No.2: In the result, for the foregoing reasons, we proceed to pass the following order:          

  O R D E R

The complaint filed by the complainant is dismissed.  No order as to costs.

 Supply free copy of this order to both the parties.

(Dictated to the Stenographer, got it transcribed and corrected, pronounced in the Commission on this 25^th day of August 2020)

Witnesses examined on behalf of the complainant by way of affidavit:

Sri.Faraaz Afshan.

Copies of documents produced on behalf of complainant:

Witnesses examined on behalf of the OPs.1 to 3 by way of affidavit:

Sri.Guruprasad Nayak, who being the Manager, Legal.

Documents produced on behalf of Opposite Parties.1 to 3

Witnesses examined on behalf of the OP-4 by way of affidavit:

Sri.Ashok M.N, who being working as Chief Manager Operations

Documents produced on behalf of Opposite Party -4

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