Present:<br /> Sri. Santhosh Kesavanath P., President<br /> Smt. Bindhu M. Thomas, Member<br /> CC No. 159/2006<br /> Wednesday, the 30th day of July, 2008.<br /> Petitioner : Jayamon Varghese,<br /> Vellikara House,<br /> Vezhapara P.O<br /> Alappuzha District<br /> (By Adv. P.P Joseph)<br /> Vs.<br /> Opposite parties : 1) The Manager,<br /> Federal Bank Ltd.<br /> Changanacherry.<br /> <br /> 2) Yaaho Associate Travel Service,<br /> 46 – Gandhipuram,<br /> Coimbatore, Tamilnadu – 641012.<br /> (By Adv. Domenic D.)<br /> O R D E R<br /> Sri. Santhosh Kesavanath P. President.<br /> <br /> Case of the petitioner's is as follows:<br /> The petitioner on 25..8..2005 had taken a DD from the first opposite party for an amount of Rs. 25000/- by paying an amount of Rs. 55/- being the commission, in favour of Yaaho Associates Travel Services. ie. the second opposite party. According to the petitioner he had given the DD to the second opposite party. The main purpose of taking the D.D is to go to abroad through the second opposite party. Since the petitioner came to know that the second opposite party is not a genuine firm, on 6..9..2005 the petitioner had given letter to the first opposite party intimating him to stop payment of DD amount infavour of the second opposite party. The petitioner states that second opposite party closed their business and there is no encashment of DD in their favour so the petitioner approached the first opposite party for cancellation of the DD taken by him. But the first<br /> <br /> -2-<br /> opposite party had not cancel the DD. The petitioner states that the non cancellation of the DD is a clear deficiency of service so, he prays for a direction to the first opposite party to cancel the DD taken by the petitioner and for refund of the DD amount. He also claims 12% interest from 6..9..2005 and also he claims compensation in the tune of Rs. 25000/- and 5000/- as cost of the proceedings.<br /> First opposite party entered appearance and filed version the second opposite party has not entered appearance, even after paper publication, so the second opposite party is set ex-parte. The first opposite party contented that the petition is not maintainable it is bad for non jointer of necessary parties. According to the first opposite party the petitioner has no defenite case regarding the transaction. The petitioner by his letter dtd: 16..9..2005 requested the opposite party to pay the amount covered by the D.D, as the said D.D was reportedly lost from his custody of the petitioner, Subsequently the petitioner admits that it was not lost but was already handed over to the payee . The 1st opposite party states that as per the procedure of the bank if a bank, draft is lost, Both the purchaser and payee request the branch and the concerned branch shall obtain an undertaking from the payee that they have not received the DD and if so received subsequently it will be return to the bank and duplicate DD can be given after due notification in the bullatin in the bank. After complying with the formalities for issuing duplicate DD it was informed in person that DD was not lost and handed over to the payee. The first opposite party further contented that since the DD is a negotiable instrument as per section 85 A of the Negotiable Instruments Act 1881. The purchaser of the DD can issue notice to the bank to issue stop payment so long as the DD is in his<br /> <br /> -3-<br /> custody. The relationship of the purchaser of DD and payee is of debtor and creditor and bank can not refuse payment to the payee of the draft, unless there is doubt about his identity. So the opposite party prays for the dismissal of the petition with their costs.<br /> Points for determination are:<br /> i) Whether there is deficiency in service on the part of the opposite party?<br /> ii) Reliefs and costs?<br /> Evidence in this case consists of affidavit filed by the both parties and Ext. A1 to A3 documents on the side of the petitioner.<br /> Point No. 1<br /> The material question to be decided in this case is whether the purchaser of the DD can cancel the DD and demand for refund of the amount covered by the DD. As per <br /> the provisions of the law governing the instrument ie. Negotiable Instrument Act 1881 the purchaser cannot demand for a cancellation of a draft if it is not in his custody. So the stands of the bank that DD cannot be cancelled is genuine and no deficiency in service can be attributed against the first opposite party in non cancellation of the demand draft purchased by the petitioner. Since the DD is in favour of the second opposite party and second opposite party has not entered appearance or raised any claim with regard to the amount covered by the DD. We are of the opinion that amount can be returned to the petitioner. So, point No. 1 is found accordingly.<br /> Point No. 2<br /> In view of the findings in point No. 1, petition is to be allowed in part and the petitioner is entitled for the following reliefs. In the result the first opposite party bank is<br /> <br /> -4-<br /> ordered to refund the amount of Rs. 25,000/- which is covered by the DD No. 977888 purchased by the petitioner. Considering the facts and circumstances of the case, no cost and compensation is ordered.<br /> Dictated by me transcribed by the Confidential Assistant corrected by me and pronounced in the Open Forum on this the 30th day of July, 2008.<br />