IN THE CONSUMER DISPUTES REDRESSAL COMMISSION, ALAPPUZHA

Thursday the 06^thday of January, 2022.

                                      Filed on 17.08.2020

Present

1. Sri.S.Santhosh Kumar  BSc.,LL.B  (President )
2. Smt.P.RSholy, B.A.L, LLB (Member)

In

CC/No.195/2020

between

Complainant:-                                                              Opposite parties:-

Sri.AshikRahnuman                                               1.    The Manager

S/o Mohammed Ashraff                                                 State Bank of India

Pulimoottil North                                                           Civil Station branch

Ali Muhammed Road                                                     Alleppey-688001

Civil Station Ward,                                                        (Adv.Smt.Miji S Mony)

Bazar P.O., Alleppey-12                                         2.     The Manager, IDBI Bank

(Adv.Sri.Azeem Mohammed)                                         Sree Ranga Soudham

                                                                                       Opp.TDHS, Alleppey-688001

O R D E R

SMT.P.R SHOLY (MEMBER)

          This is a consumer complaint filed under Sec.35 of Consumer Protection Act,2019.

          Material averments briefly discussed are as follows:-

          Complainant is a holder of account of 1^st opposite party having No.33283216412.

          M/s DAY N NI8 Business & Research, Cherthala had issued 3 cheques drawn from 2^nd opposite party in favour of the complainant for Rs.5 lakhs each dated 13.04.2020.  The validity of the instruments is 3 months from the date of issue ATPAR branch and expires on 12-7-2020. 

Since the payer of the cheques demanded postponement of presenting it for collection due to insufficient funds in his account, the complainant presented the cheques in the account with the 1^st opposite party only on 09-7-2020 as requested by the payer of the cheque.  On 30-7-2020 complainant received registered letter from the 1^stopposite party with the above mentioned 3 cheques along with 3 dishonor memo dated 13-7-2020 and a covering letter with reason “31- instrument out dated stale”. 

2.      Upon receiving the registered cum consignment, father of the complainant who is a disabled person approached the 1^st opposite party to enquire about the reason for the dishonor of cheques the manager of the 1^st opposite party acted very rude and asked him get out of the bank. 

3.      The complainant sent the cheques for collection through 1^st opposite party on 9-7-2020 ie, on the 87^th day from the date of issue.  10-7-2020 was a working day, 11-7-2020 and 12-7-2020 were Saturday and Sunday.  2 holidays came immediately prior to the expiry of 90 days.  The 2^nd opposite party ought to have either honoured or dishonoured the cheques considering the last 2 days were holidays.  The reason shown is not valid. 

4.      The instruments are ATPAR branch instruments.  The payer bank is also within the local limits of Alappuzha.  If the 1^stopposite party had sent the instruments for collection on the date of which it was presented the instruments ought to have been either honoured or dishonoured.  The delay in presenting the cheques for collection by the 1^st opposite party caused much hardship and loss to the complainant and the said acts of the opposite parties comes under the purview of dereliction of duty and deficiency of service under the Consumer Protection Act.The negligence on the part of opposite parties caused loss of Rs.15 lakhs to the complainant by way of value of instruments.  In addition to that the complainant suffered much mental agony towards the behavior of the 1^st opposite party to the father of the complainant.Hence complaint filed for realization of Rs.15 lakhs and for compensation of Rs.5 lakhs from the opposite parties.

5.      The 1^st opposite party filed version mainly contenting as follows:-

          The complaint is not maintainable.  There is no deficiency or dereliction of service on the part of 1^st opposite party.  The complainant is maintaining a SB account with this opposite party.  On 9-7-2020 Mr.MuhammedAshraff, father of the complainant presented 3 cheques bearing Nos.262030, 262031, 262032 dated 13.04.2020 for Rs.5 lakhs each to the 1^st opposite party for collection.  The said cheques were presented before the 1^st opposite party after the business hour.  It is well known that the business hour of the bank is between 10 AM to 1PM and 2.30 Pm to 4 PM.   1^st opposite party is not in a position to accept the above cheques as it was presented at 4.30 PM and the clearing file of the day was already uploaded.  Hence the bank officials requested Mr. Muhammed Ashraff to present the cheque in the next day as the business hour is over.  But he represented that he is a physically disabled and it is difficult to come in the next day also.  On humanitarian consideration the 1^st opposite party accepted the cheques and informed him that it will be sent only for the next day’s clearance, ie, on 10-7-2020.  On 10-7-2020 1^st opposite party uploaded the cheques for clearance to the clearing cell at Thiruvananthapuram.   Unfortunately the next 2 days, ie, 11-7-2020 and 12-7-2020 are bank holidays.  Hence the clearance cell sent it to the 2^nd opposite party, the payer bank for clearance on 13-7-2020 but said bank returned the cheques with reason out dated and stale, as 90 days completed on 12-7-2020.  1^st opposite party uploaded cheques for clearance in correct time.  1^st opposite party has no control over the clearance of cheques after it is uploaded for clearance and everything is done through the system. 

6.      1^st opposite party duly informed to the complainant regarding the return of cheque due to the reason of outdated cheque and requested to collect the same.  But he refused to accept the cheques and demanded to send it by post.  Hence 1^stopposite party sent the returned cheques to the complainant through post.  Complainant presented the cheques for the collection in the last day of validity period, with the intention of defaming and harassing the 1^st opposite party.  The request of the complainant to the 1^st opposite party to send the returned cheque through post is made only with the intention to file this illegal complaint and to defame this 1^st opposite party.

7.      The account of M/s Day N NI8 business and research, Cherthala with 2^nd opposite party had no sufficient fund during the period from 01-04-2020 to 23-11-2020.  It is clear from the statement of account submitted by the 2^nd opposite party.  The complainant also has knowledge regarding the insufficiency of funds in the above account of the said concern with the 2^nd opposite party on the date of presentation of the cheque for clearance.  The ill motivation and intention of the complainant is clear from the act of the complainant himself.  There is no defective service or dereliction of duty on the part of 1^st opposite party hence the contentions in the complaint will not stand.  Hence complaint may be dismissed with compensatory cost of 1^st opposite party. 

8.      2^nd opposite party filed a version mainly contenting as follows:-

          The complaint is not maintainable either in law or on facts.  Complaint is frivolous, vexatious, and scandalous and is filed for abusing the process of this Commission and defaming and harassing the 2^nd opposite party and therefore liable to be dismissed with compensatory cost.  The complainant is not a consumer as defined underS.2 (7) of the Consumer Protection Act.  The above complaint is to be filed before the civil court by paying proper court fee if the complaint has a cause of action.  The 2^nd opposite party is not a necessary party.   The complainant is maintaining an account in IDBI bank under the name and style of Day N NI8 business and research and Ashik Rahuman  is maintaining an account in SBI and has submitted 3 IDBI  cheques ( in the name of Day N NI8 business and research) in SBI for clearing on 9-7-2020.  IDBI bank Ltd. received the cheque on 13-7-2020 for clearing after the expiry of 90 days and returned the instrument with reason instrument outdated stale.  Bank cannot honour a stale cheque and hence there is no defective service on the part of 2^nd opposite party.  2^nd opposite party has no control over the processing of cheque as everything is done through system.  The system will not honour a cheque after 90 days. 

9.      The complaint is ill motived.  The complainant is not entitled to get any reliefs from the 2^nd opposite party.  Hence the complaint may be dismissed with compensatory cost of the 2^nd opposite party.

10.    On the above pleadings following points were raised for consideration:-

1. Whether there is any deficiency of service on the part of the opposite parties?
2. Whether the complainant is entitled to realise an amount of Rs.15 lakhs with interest from the opposite parties?
3. Whether the complainant is entitled to realize an amount of Rs.5 lakhs as compensation ?
4. Reliefs and cost?

11.    Evidence in this case consists oral evidence of PW1 and PW2 and Ext.A1 series to A3 series and A4 and A5 on the part of complainant and oral evidence of RW1 and Ext.B1 from the side of opposite parties.  Heard both sides.

12.    Point No.1 to 3

          PW1 is the complainant in this case.  He filed an affidavit in tune with the complaint and got marked Ext.A1 series to A3 series and A4 and A5.  During cross examination by counsel appearing for 1^st opposite party Ext.B1 also marked.

13.    PW2 is the father of PW1.  He also filed an affidavit in tune with the complaint.

14.    RW1 is the senior associate of 1^st opposite party bank.  She filed an affidavit in tune with the version of 1^st opposite party.

15.    Complainant’s case is that M/s Day N NI8 business& research, Cherthala had issued 3 cheques for Rs.5 lakhs of each dated 13-4-2020.  The validity of said cheques expires on 12-7-2020.  As demanded by the payer, M/s Day N NI8 business and research PW1 did not present the cheque at the initial stage.  Thereafter on 9-7-2020 the payer of the cheque requested to present the cheques for collection and thereby the PW2 presented it on 9-7-2020 for collection on and behalf of PW1 through 1^st opposite party.  But the said 3 cheques were returned with memo endorsed as “instrument outdated stale”.  Alleging deficiency in service from the part of 1^st opposite party for sending the cheques for collection in time to the payer bank this complaint filed for realizing the cheque amount of Rs.15 lakhs from opposite parties along with compensation for Rs.5 lakhs.

16.    Admittedly the PW1 is the holder of SB account with 1^st opposite party.  On perusal of Ext.A1 series and A2 series it reveals that PW1 had presented the above mentioned cheques for Rs.5 lakhs each having Nos. 262030, 262031 and 262032 dated 13-4-2020 to the 1^st opposite party bank on 9-7-2020.  Ext.A3 series is the cheque return memos dated 13-7-2020 with endorsement of reason, “instrument out dated stale”.  Ext.A4 is the intimation given to the complainant through post and A5 is its envelope.

17.    The main contention of the 1^st opposite party regarding the presentation of the cheques in dispute was that they were presented by PW2 after the business hour of the said day ie, on 9-7-2020 at 4.30 PM.  Even though the time was not admitted by PW1 during cross examination by counsel appearing for 1^st opposite party he deposed that his father, PW2 reached the bank for presenting the cheques at 4.30 PM on 9-7-2020.  He is also having knowledge of business hour of bank upto 4 PM.  Further admitted that 11.7.2020 and 12.7.2020 were public holidays and knows those were also bank holidays. 

18.    In this circumstance it is pertinent to note that the subject matter of instruments were presented for collection to the 1^st opposite party on the extreme day and time of its expiry considering the succeeding 2 holidays.  More over there were so many contradictious in the depositions of the PW1 and PW2 regarding the issuance of the disputed cheques and its presentation for collection.  Some of the examples are; PW1 deposed that the cheques in question were issued by the Day N NI8 company with regard to the share business and the reason for delaying its encashment was due to attending class and also admitted that he had demanded to send the cheque return memo through post.  Further PW1 deposed that his father had enquired the account details of payer to opposite party No.2.  Per contra PW2 stated that the cheques were not presented earlier as requested by the payer due to insufficient fund.  But on questioning by the counsel appearing for 1^st opposite party he answered there were no evidence for the same.  Further PW2 deposed that he did not enquired the account details of the payer bankas alleged by the PW1.  The key point of his contradicted deposition is that the disputed cheques of a company were issued by an individual in connection with the payment of Rs.15 lakhs to that person for his personal purpose.  Firstly PW2 admitted that the amount of Rs.15 lakhs paid on 10^th or 12^th of June 2019 and thereafter he answered that the said amount paid in 3 installments of 5 lakhs each and the date was not recollected.  He also reiterated that each amount of 5 lakhs were withdrawn from the accounts of himself, his son PW2, and one of his cousins.  However for more clarification he could not brought out any evidence by placing the withdrawal details of the said accounts while the payment was disputed by opposite parties.  It is also pertinent to note that it was come out in cross examination that no attempt was made for seeking reliefs against the said M/s Day N NI8 company for reimbursement of such a huge amount.  At this count itself we can have a conclusion that there was no consideration with respect to the disputed cheques with the payer as alleged by the opposite parties.  It is also noticed that for almost all questions PW1 answered in the negative pretended ignorance and stated that it was PW2, his father is dealing with the disputed cheques.  Both the witnesses were admitted during cross examination by learned counsel appearing for 2^nd opposite party that there is no deficiency in service on the part of opposite party No.2.  From the above discussion it is crystal clear that there was no deficiency in service from the part of opposite parties. 

19.    Point No.4

          In the result complaint stands dismissed with cost of Rs.3,000/-.

     Dictated to the Confidential Assistant, transcribed by her corrected by me and pronounced in open Commission on this the 6^th day of January, 2022.

Sd/-Smt. P.R.Sholy (Member)

Sd/-Sri.S.Santhosh Kumar (President)

Appendix:-

Evidence of the complainant:-

PW1                                       Sri.Ashik Rahuman.M (Witness)

PW2                           -           Sri.Mohammed Asharaf M (Witness)

Ext.A1 series             -           Cheques            

Ext.A2 series             -           Cheques

Ext.A3 series             -           Cheque return memos dated 13.07.2020

Ext.A4                       -           Intimation given to the complainant through post

Ext.A5                       -           Envelop

Evidence of the opposite parties:-

RW1                          -           Sri.Linin K Baby (Witness)

Ext.B1                       -           Statement of account

///True Copy ///

To     

          Complainant/Oppo. party/S.F.

                                                                                                     By Order

                                                                                                Senior Superintendent

Typed by:- Sa/-

Compared by:-