Complainant/s:             Shambulinga S/o Veerappa 

                                               Sangalada, Age:33 Years, Occ:

                                              Business, R/o Rona, Dist: Gadag.

                                            (Rep. by Sri.N.S. Basavaraddi, Advocate)   

V/s

ORDER

JUDGEMENT DELIVERED BY SRI. B.S. KERI, MEMBER:

        This complaint is filed by the complainant against the OP by invoking the Consumer Protection Act, 1986 to pay the cheque amount of Rs.75,000/- through the account of Sri. Hariprasad or from the OP with interest at the rate of 18% p.a, Rs.15,000/- towards compensation for physical and mental harassment with cost and such other relief.

             The averments of the complaint in brief are:

         2.  The above complaint is filed by the complainant stating that, he was working in Y.S.G. Group, Bangalore under the supervision of Smt. Asha. S.M, C.E.O who is the wife of one Hariprasad. B.R. It is further submitted that, the complainant opened a branch under the name and style as G.V. Enterprises at Badami and doing business.  Such being the case, Sri. Hariprasad. B.R, the husband of Smt. Asha, who is the CEO of Y.S.G. Group has barrowed hand loan of Rs.75,000/- from the complainant agreeing to repay the amount within a short period, but the said Hariprasad postponed the date of repayment of the above said amount on one or the other reason.  After several demands made by the complainant, Hariprasad has issued a cheque bearing No.000188 dated 21.02.2019 for Rs.75,000/- of ICICI Bank, Magadi Road, Bangalore where he maintained the account bearing No.233405500217.  The same was presented by the complainant on 20.05.2019 through his Bank i.e., Syndicate Bank, Ron.  The said Bank has issued a memo stating that, the instrument was outdated/stale.  The cheque issued by said Hariprasad B.R has been presented for encashment within the time limit.   But, the Syndicate Bank, Ron failed to see the instrument correctly, which caused the complainant to suffer physically and mentally and committed a deficiency of service.  Thereafter, the complainant issued a legal notice to OP on 05.07.2019 and the OP given an evasive reply on 31.08.2019.  The cause of action for this complaint arose on 22.05.2019, when the memo issued by the OP Bank on 05.07.2019, when the complainant issued legal notice on 05.07.2019 and on 31.08.2019 when the complainant received reply notice from the OP.   Hence there is a deficiency in service and prayed to order the OP to pay the cheque amount of Rs.75,000/- with interest @ 18% p.m or from the account of Sri. Hariprasad. B.R, Rs.15,000/- towards compensation for mental stress, loss and damages with costs of the proceedings and such other reliefs.

          3.   In pursuance of the notice issued by this Commission, the OP appeared through Advocate and filed written argument/version. 

          The brief facts of the Written Version of OP

          4.       The OP contended that, the complaint is false, frivolous and misconceived and hence, they are specifically denied.  The OP has no knowledge about the complainant working under Hariprasad’s wife Smt. Asha S.M., nor about borrowing hand loan from the complainant by said Hariprasad and also the OP has no knowledge about issuing of cheque to repay the hand loan and those are not concerned to this OP.  It is further submitted that, on 05.03.2019 complainant presented a cheque dated 21.02.2019 bearing cheque No.000188 for Rs.75,000/- with OP Bank, the same was sent for collection through clearing house and the said cheque was returned for want of insufficient funds in the drawer’s account and as such, the cheque was returned by informing the said fact.  On the back side of the said cheque, there is an endorsement made with regard to the cheque being presented and sent for collection.  It is further submitted that, for the second time, on 20.05.2019, complainant presented the same cheque for encashment, which was on the last date of its validity period, as such, OP has orally informed the complainant that, it is very difficult for the cheque to be encashed when it is presented for encashment on the last/final day of its validity period, since it involves as lengthy procedure.  Even then, to fulfill the request of the complainant, OP sent the said cheque to ICICI Bank for collection on the same day and it has taken two days to reach ICICI Bank and on 22.05.2019, ICICI Bank returned the cheque with a memo to OP stating that, instrument outdated/Stale, the same has been handed over to the complainant.  There was no delay on the part of this OP in sending the cheque for collection, since the cheque was presented on the last day of its validity, ICIC Bank has returned the cheque for being outdated when it reached their Bank for collection.  Hence, it is clear that, it is the negligence on the part of complainant not on the part of this OP.  It is denied and false to say that, OP without evaluating the cheque has simply given a memo stating instrument outdated and the OP has conducted its duty in accordance with the law towards the complainant.  It is further submitted that, the said cheque was presented for collection twice before 20.05.2019, both the times, the said cheque when it was presented for collection has been returned by ICICI Bank with a memo stating that, there is an insufficient fund in the drawer’s account and both the times the cheque and memo is handed over back to the complainant.  The remedy available to the complainant and also a right of action arises in favour of complainant is against the drawer of the cheque and not against this OP.  Therefore, there is no deficiency of service on the part of this OP and prayed to dismiss the complaint.

          5.  The complainant and OP have not filed their Chief affidavits and no documents have been marked. 

          6.   On pursuance of the materials, placed by the complainant and OP, the following points arises for our consideration:-

1. Whether the complainant has proved the deficiency in service

on the part of the OP as averred in the complaint?

2. Whether the complainant is entitled to any relief?
3. What Order?

       7.    Our findings to the above points are:-

              Point No. 1:  Negative.

              Point No. 2:  Negative.

              Point No. 3:  As per the final Order

R E A S O N S

           8.  POINT NO.1 AND 2:  Both the points are inter-linked and identical. Hence we proceed both the points together.

           9.      The Complainant filed this Complaint against the OP claiming cheque amount of Rs.75,000/- from the drawee or from the OP Bank.     

          10.     It is pertinent to note that, on 20.05.2019, complainant presented the cheque for Rs.75,000/- which was issued by one Hariprasad B.R who had taken hand loan from the complainant with the OP Bank for encashment, which was on the last date of its validity period.  The same has been sent to ICICI Bank for collection on the same day.  On 22.05.2019, ICICI Bank returned the cheque with a memo to OP stating that, instrument outdated/Stale and the same has been handed over to the complainant. There was no delay on the part of this OP in sending the cheque for collection.   OP had sent the cheque on the same day itself when the complainant presented before it for collection.   It is clear that, it is the negligence on the part of complainant not on the part of the OP.  The said cheque was presented for collection and the same had been returned with an endorsement that, instrument outdated/stale i.e., Ex.C-3 wherein at sl.No.31, it is mentioned as instrument outdated/stale.  OP produced the Xerox copy of the document wherein On 20.05.2019, the OP sent two cheques to main branch at Gadag with ref.Nos.129900899001 to drawee Bank ICICI with cheque No.000000000188 for Rs.75,000/- and another ref.No.129900901001 to drawee Bank Axis Bank with cheque No.000000036044 for Rs.2,00,000/-, the said cheque was encashed but, the complainant’s cheque was rejected because instrument outdated/stale.  The OP has done its duty without any delay or negligence.  OP has submitted that, cheque No.000188 of ICICI Bank, Magadi Road, Bangalore dated 21.02.2019 was presented to their Bank for collection to A/c No.12992250008948 of complainant on 20.05.2019, which was outstation branch, which takes minimum of seven days for collection.  There is no clearing house in OP Bank at Ron.  The OP has sent the cheque to their main branch at Gadag on the same day, which shows that, there is no deficiency on the part of OP. OP has completed its duty in minimum possible time without any negligence or deficiency in its part.  Being the agent of customer, OP promptly sent the cheque for collection to their nearest CTS branch at Gadag on the same day i.e., 20.05.2020 and on the next day i.e., on 21.05.2020, same was presented for CTS clearing at Gadag, which was rejected in clearing station as the instrument was outdated/stale, for that, the complainant cannot blame the OP stating that, there is a deficiency and negligence on the part of OP as the OP has done its duty without any negligence.  The complainant presented the cheque for encashment before the OP, OP sent the same to its main Branch at Gadag, then the same was sent to ICICI Bank, Magadi Road Branch, Bangalore, they are the proper parties to the proceedings.  So, the complainant has to made them as the parties to the proceedings.  But, the complainant has not made the Syndicate Bank, Gadag and ICICI Bank, Bangalore as the necessary parties to the proceedings. Hence, the Commission comes to the complainant has not made the necessary parties to the proceedings.  Accordingly we answer Point No.1 and 2 in negative.          

           11.  POINT NO. 3: In view of our findings on the above points, the complaint filed by the complainant is dismissed. In the result, we pass the following: 

//O R D E R//

            1.  The above Complaint is dismissed for non-joinder of necessary parties.  No order as to costs.

           2.  Send the copies of this order to the parties free of cost.

           (Dictated to the Stenographer, transcribed by him, corrected and then pronounced by me in the Open Court on this 22^nd day of April-2021)

          (Shri B.S.Keri)                               (Smt.C.H.Samiunnisa Abrar)

               MEMBER                                                 PRESIDENT