BEFORE THE MANDYA DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, MANDYA<br /> <br /> PRESENT: 1. SIDDEGOWDA, B.Sc., LLB., President,<br /> <br /> 2. M.N.MANOHARA, B.A., LLB., Member,<br /> <br /> 3. A.P.MAHADEVAMMA, B.Sc., LLB., Member, <br /> <br /> ORDER<br /> <br /> Complaint No.MDF/C.C.No.129/2008<br /> <br /> Order dated this the 26th day of February 2009<br /> <br /> COMPLAINANT/S <br /> Sri.H.R.Raghavendra S/o Rangaswamy, <br /> Holalu Village, Dudda Hobli, <br /> Mandya Taluk.<br /> <br /> (By Sri.S.Shiva Shankar., Advocate)<br /> <br /> -Vs-<br /> <br /> OPPOSITE PARTY/S <br /> 1. The Manager, Mandya City Co-operative Bank Ltd., V.V.Road, Mandya.<br /> 2. M/s Shriram Chits (Karnataka) Pvt. Ltd., M.C.Road, Mandya.(INPERSON)<br /> 3. The Manager, Karnataka Bank Ltd., M.C.Road, Mandya.<br /> 4. The Manager, State Bank of Mysore, V.V.Road, Mandya.<br /> (By Sri.T.Lokesh., Advocate for 1st O.P., Sri.A.Sunil Kumar., Advocate for 3rd O.P., & Sri.Shivalingaiah., Advocate for 4th O.P.,)<br /> <br /> Date of complaint 01.12.2008<br /> Date of service of notice to<br /> Opposite parties 10.12.2008<br /> Date of order 26.02.2009<br /> Total Period 2 Months 16 Days<br /> <br /> Result The complaint is partly allowed, directing the 1st Opposite party to pay Rs.86,470/- with interest at 9% p.a. from 24.05.2005 till realization to the complainant with cost of Rs.2,000/-.<br /> Complaint against Opposite parties 2 to 4 is dismissed.<br /> <br /> Sri.Siddegowda,<br /> President<br /> <br /> 1. This complaint is filed against the Opposite parties under section 12 of the Consumer Protection Act 1986, directing the Ist Opposite party to pay Rs.1,53,299/-. <br /> 2. The brief facts of the complaint are as follows:-<br /> The complainant is the customer of 1st Opposite party Bank having S.B. Account No.7847 from 16.11.2002. The complainant is also member of Chit Fund run by 2nd Opposite party and 2nd Opposite party had issued 3 cheques of 3rd Opposite party Bank and the details are cheque No.182377 dated 02.06.2005 amount Rs.86,469/-, cheque No.182378 dated 02.06.2005 amount Rs.86,469/- and cheque No.182379 dated 23.05.2005 amount Rs.86,470/-. The complainant presented the above 3 cheques to the 1st Opposite party Bank for collection and 4th Opposite party is the lead bank of the 1st Opposite party Bank and 1st Opposite party had submitted those 3 cheques to 4th Opposite party for collection and in turn, 4th Opposite party sent the cheques to 3rd Opposite party Bank and the amount was collected by 4th Opposite party and credited to the account of 1st Opposite party. The 1st Opposite party has credited the amount of two cheques to the account of the complainant, but not Rs.86,470/- pertaining to cheque No.182379, though all the cheques were Account Payee cheques. The complainant was enquiring about non-crediting of the said cheque amount and after one year 1st Opposite party Officials informed that there is record for having deposited the amount and to get entries to the original pass book. Accordingly, the complainant presented the original pass book to 1st Opposite party Bank. The 1st Opposite party Bank retained the original pass book on the ground that they are computerizing the records and they did not enter into the original pass book for some months and on pressure by the complainant they issued another pass book from 28.03.2006 and refused to enter the transaction taken place earlier to that and though the complainant tried to get Khatha Extract during transaction period, he could not get. On 29.08.2007, the complainant deposited Rs.3,25,500/- for the cement company and obtained a D.D. after two months. On the ground of miss-appropriation of the fund, the 1st Opposite party Bank suspended some employees and when the complainant demanded for the un-credited amount they assured to pay, but they did not pay and then on 31.03.2008, the complainant filed an application for ledger extract and obtained on 11.04.2008 and found that the cheque amount of Rs.86,470/- was not credited to his account. Then on 24.04.2008, the complainant gave an application and the Opposite party replied dated 13.05.2008 stating that the said cheque was not presented to the bank by the complainant. Then he approached the 4th Opposite party and they informed that on 24.05.2005, the cheque amount was credited to the current account No.737 and even 2nd Opposite party also reported that the cheque given by them, has been paid through their Karnataka Bank and furnished the copies of the records. Again on 21.05.2008, the complainant got issued a legal notice and 1st Opposite party denied presentation of the cheque by sending reply dated 19.06.2008. The 4th Opposite party refused to give the documents on the ground that he is not a Consumer. On account of the act of 1st Opposite party, the complainant had sustained loss and due to financial crises he had pledged the golden ornaments for Rs.11,700/- and he paid the loan with interest of 2%. On this ground, the complainant sought for cheque amount of Rs.86,470/- with interest amount of Rs.60,529/- from 23.05.2005 till the date of filing the complaint and notice charge of Rs.1,000/- and monitory loss of Rs.5,000/- and cost of Rs.300/-.<br /> 3. The complainant has filed I.A.I under section 24(A) of the Consumer Protection Act, 1986 to condone the delay in filing the complaint.<br /> 4. After admitting the complaint, notice was issued to the Opposite parties and Opposite parties 1 to 4 have appeared and have filed version except 2nd Opposite party.<br /> 5. In the version of 1st Opposite party has denied that the cheque No.182379 dated 23.05.2005 for Rs.86,470/- was presented to the 1st Opposite party Bank. It is admitted that the complainant is the account holder. It is denied that the 4th Opposite party Bank credited the amount of Rs.86,470/- to 1st Opposite party Bank, soon after receipt from 3rd Opposite party Bank. Since, the said cheque was not presented to the 1st Opposite party Bank, question of crediting the amount to the account of the complainant does not arise. It is denied that the complainant was questioning about non-crediting the cheque amount to his account and 1st Opposite party Bank did not enter same in the pass book saying that the Bank is being computerized. It is true that some of the employees of the 1st Opposite party Bank have been suspended, it does not mean that the 1st Opposite party Bank has not credited the disputed amount to the account of the complainant. Admitting the exchange of legal notice, the deficiency of service is denied. The cause of action pleaded is an invented theory to overcome the law of limitation. The claim of the complainant is false. The complaint is hopelessly barred by limitation. Hence, the complaint is liable to be dismissed with costs.<br /> 6. The 3rd Opposite party has filed version contending that unnecessarily 3rd Opposite party is made a party and complainant has not made any transaction with the 3rd Opposite party and he is not a Consumer. It is admitted that Sriram Chits (Karnataka) Pvt. Ltd., Mandya (2nd Opposite party) has opened a account in the 3rd Opposite party Bank and making all transaction. Cheque No.182377 and cheque No.182378 for Rs.86,469/- and Rs.86,469/- and then cheque No.182379 dated 23.05.2005 for Rs.86,470/- were sent by 4th Opposite party Bank to 3rd Opposite party Bank for collection and 3rd Opposite party Bank accepted the cheques and 4th Opposite party Bank has received the amount, cheque No.182379 dated 23.05.2005 for Rs.86,470/- of 3rd Opposite party Bank was issued by Sriram Chits to the complainant and all the three cheques are of 2nd Opposite party pertaining to 3rd Opposite party Bank. For the legal notice of the complainant, reply has been sent by 3rd Opposite party and the disputed cheque was honoured through current account No.737 and cleared. The complaint is barred by limitation. The complainant has no relief against 3rd Opposite party and therefore, the complaint is liable to be dismissed. <br /> 7. The 4th Opposite party has filed version contending that the complaint is bad for mis-joinder of necessary party. The complainant has not sought any relief against the 4th Opposite party and hence the complaint is not maintainable. It is true that the 1st Opposite party is having business dealings with the 4th Opposite party and 1st Opposite party had presented 3 cheques for collection and the same were sent to 3rd Opposite party and collected the proceeds and credited to the account of 1st Opposite party. Therefore, there is no deficiency in service by 4th Opposite party. There is no cause of action against 4th Opposite party and complaint is liable to be dismissed.<br /> 8. The 2nd Opposite party has not filed any version.<br /> 9. During trial, the complainant is examined and has produced Ex.C.1 to C.14. The 1st Opposite party is examined and Ex.R.1 to R.3 have produced.<br /> 10. The complainant took notice to 4th Opposite party and 4th Opposite party has produced the documents and they are not disputed.<br /> 11. We have heard both sides.<br /> 12. Now the points that arise for our considerations are:-<br /> 1. Whether the cheque No.182379 dated 23.05.2005 of 3rd Opposite party Bank issued by 2nd Opposite party for Rs.86,470/- was presented to the 1st Opposite party Bank and the cheque amount was realized by 1st Opposite party through their Banker 4th Opposite party?<br /> 2. Whether the 1st Opposite party has committed deficiency in service in not crediting the amount of Rs.86,470/- to the account of the complainant?<br /> 3. Whether the complaint is barred by limitation?<br /> 4. Whether the complainant is entitled to the amount sought for against the 1st Opposite party?<br /> 13. Our findings and reasons are as here under:-<br /> 14. POINTS NO.1 & 2:- The undisputed facts are that the complainant is an account holder in the 1st Opposite party Bank having S.B. Account No.7847 from 16.11.2002.<br /> 15. The case of the complainant is that the complainant is a member of Chit transaction run by 2nd Opposite party and in that connection, 2nd Opposite party had issued 3 cheques of 3rd Opposite party Bank and the cheque numbers are 182377 dated 02.06.2005 for Rs.86,469/- and cheque No.182378 dated 02.06.2005 for Rs.86,469/- and cheque No.182379 dated 23.05.2005 for Rs.86,470/-. The complainant presented those three cheques to his account in 1st Opposite party Bank and 1st Opposite party has presented those cheques to 4th Opposite party Bank and 4th Opposite party has collected the amount of said three cheques from 3rd Opposite party Bank and credited to the account of 1st Opposite party. But, the 1st Opposite party has not credited Rs.86,470/- in respect of cheque No.182379 to the account of the complainant and when the complainant was questioning 1st Opposite party Staff was giving one or other reason and therefore, the 1st Opposite party has committed deficiency in service. The 1st Opposite party has denied the presentation of the disputed cheque No.182379 for Rs.86,470/- and collection of the amount through 4th Opposite party Bank. It is admitted that the complainant has not produced the counter challan for having presented the said cheque to 1st Opposite party Bank. The copy of the said cheque is produced by the complainant and it is marked as Ex.C.10(a), because 3rd Opposite party Bank has issued the account extract of 2nd Opposite party Sriram Chits along with copy of this cheque. This Ex.C.10(a) (copy of the cheque) reveals that 2nd Opposite party has issued account payee cheque No.182379 dated 23.05.2005 for Rs.86,470/- in favour of the complainant and having of mention account No.7847 M.C.C. Mandya. Ex.C.10 proves that the 3rd Opposite party Bank has honoured the cheque on 24.05.2005 from the account of 2nd Opposite party. The 2nd Opposite party has issued a letter Ex.C.8 to the complainant stating that the “said cheque was presented to us in local clearing through State Bank of Mysore, Mandya on 24.05.2005 and paid through their current account No.737 on that day”. This letter Ex.C.8 along with account extract Ex.C.10 and Ex.C.10(a) copy of the cheque were furnished to the complainant on his letter Ex.C.9. When the legal notice was issued to 4th Opposite party and 3rd Opposite party Bank as per Ex.C.14 and also to 1st Opposite party and also to 2nd Opposite party, the 4th Opposite party Bank has issued reply Ex.C.11, that the complainant is not a customer and the instruments in question were tendered for collection by the Mandya City Co-Operative Bank for collection and any fate enquiry regarding the instruments are to be made directly with the Mandya City Co-operative Bank only. The 3rd Opposite party Bank has sent reply as per Ex.C.12 stating that cheque No.182379 dated 23.05.2005 for Rs.86,470/- in favour of Sri.Raghavendra H.R. drawn by Sriram Chits (K) Pvt. Ltd., was presented to us in local clearing by State Bank of Mysore, Mandya on 24.05.2005 and paid by us by debiting to the current A/c 737 of Sriram Chits (K) Pvt. Ltd., on that day itself and the complainant was directed to contact the M.C.C. Bank, Mandya, who have presented the cheque through S.B.M, Mandya. To the legal notice, 1st Opposite party has sent reply Ex.C.13 dated 19.06.2008 admitting two cheques of Rs.86,469/- presented by the complainant were encashed on credited to the account of the complainant, but it is denied that cheque No.182379 dated 23.05.2005 for Rs.86,470/- was presented and the amount was credited to the account of the 1st Opposite party Bank through S.B.M.<br /> 16. When the complainant took notice to 4th Opposite party to produce the documents, the 4th Opposite party has produced the certified copy of the outward clearing scroll dated 02.06.2005, 03.06.2005 and 24.05.2005, these documents cannot be disputed at all. As per the outward clearing scroll dated 02.06.2005 and also dated 03.06.2005 cheque No.182377 of Karnataka Bank was sent for clearing on 02.06.2005 to account of 1st Opposite party Bank and also cheque No.182378 of Karnataka Bank was sent for clearing and the presentation of these two cheques by the complainant to 1st Opposite party Bank and collection of the said amount of these two cheques through 4th Opposite party Bank and crediting the said amount to the account of the complainant is admitted by 1st Opposite party challan number 62 finds a place in outward clearing scroll dated 24.05.2005 and this challan number contains 3 cheque numbers totally for Rs.1,21,470/-, the 3 cheque numbers are 182379 for Rs.86,470/- of Karnataka Bank, another cheque No.246427 for Rs.10,000/- of Syndicate Bank and another cheque No.191138 for Rs.25,000/- of Canara Bank and by clearing through 3rd Opposite party Bank and other two Banks the said amount of Rs.1,21,470/- is credited to the account of 1st Opposite party in 4th Opposite party Bank and copy of the statement of account is produced and it is not disputed. But, the contention of the 1st Opposite party is that this amount pertains to a single cheque and credited to the account of S.B.9101. But in the copy of the challan produced by 4th Opposite party, we do not find any mention of cheque numbers, but only total amount is mentioned. Complainant has produced the copy of said cheque No.182379 marked as Ex.C.10(a) and Ex.C.10 account extract of 2nd Opposite party in 3rd Opposite party Bank. Of course at the time of arguments, 1st Opposite party has produced the certified copy of the S.B. A/c No.9101 pertaining to one G.C.Shekar, but there is no evidence by 1st Opposite party whether this Shekar presented a cheque and from which bank it was issued to him and no challan is provided. It is pertinent to note that on 24.05.2005 an account has been opened as per this document by depositing only Rs.250/- and on the same day Rs.1,21,470/- is credited to the account by mentioning LBC 297 and on the same day Rs.1,21,720/- has been drawn. In Ex.R.3, the account number is mentioned as S.B. 910 and not 9101. The 1st Opposite party has himself produced the Ex.R.1, the statement of its account in 4th Opposite party Bank and only on 24.05.2005 by clearance of the cheques mentioning the scroll of S.B.M. Mandya, the amount of Rs.1,21,470/- has been credited and including that amount the closing balance on that day was Rs.37,190/-, there is no withdrawal of Rs.1,21,000/- from this account on 24.05.2005. Such being the case, it is strange and shocking to believe that alleged Shekar opened a account on 24.05.2005 and presented the cheque and it was sent for clearance and then 4th Opposite party has collected the amount sending the cheque to concerned bank and then credited the amount to account of 1st Opposite party and then informed to 1st Opposite party Bank and 1st Opposite party has paid the amount to said Shekar. It is impossible to say that this type of transaction will take place in a single day except by concocted documents. The 3rd Opposite party has also produced the account extract to show the 3 cheques issued by 2nd Opposite party Sriram Chits in favour of the complainant presented through 1st Opposite party Bank and 1st Opposite party Bank presented the cheque to 4th Opposite party Bank for collection and 4th Opposite party has sent all the 3 cheques to 3rd Opposite party Bank and 3rd Opposite party Bank has honoured the cheques from the account of 2nd Opposite party and sent the amount and the disputed cheque 182379 dated 23.05.2005 was cleared on 24.05.2005 for Rs.86,470/- as per the account extract of the 3rd Opposite party Bank and the outward clearing scroll dated 25.04.2005 clearly established that the amount of Rs.1,21,470/- pertains to 3 cheques under challan number 62 which includes the disputed cheque No.182379 of Karnataka Bank and this amount was credited to the account of 1st Opposite party, but 1st Opposite party has credited this entire amount to the account of another person and creating documents by opening a account on the same day and paying this cheque amount making some entry. Inspite of collection of the cheque of the complainant from S.B.M. to its account, the 1st Opposite party Bank has not credited the amount of Rs.86,470/- and cheated the complainant and hence 1st Opposite party has committed deficiency in service and therefore, we answer point No.1 & 2 in favour of the complainant.<br /> 17. POINT NO.3:- The 1st Opposite party has taken the contention that the complaint is barred by limitation, on the ground that the disputed cheque is dated 23.05.2005 and sought to be cleared on 24.05.2005, but the complaint is filed on 01.12.2008 and the cause of action pleaded is created one. <br /> 18. The complainant has filed I.A. I under Section 24(A) of the Consumer Protection Act, 1986 to condone the delay in filing the complaint. The 1st Opposite party has filed objection to the same. According to the complainant evidence, he was enquiring about the transaction of the cheque and Opposite party prolonged and after one year. The 1st Opposite party informed there is information about the credit and get entry into the pass book. Therefore, he produced the pass book and 1st Opposite party dragged on to make entry the same to the pass book saying that the bank was being computerized. On demand, the 1st Opposite party issued duplicate pass book and started writing from 28.03.2006 and when he enquired to make entries from the beginning, but refused to make entry stating that in the duplicate pass book all the entries cannot be made and asked to obtain account extract. Though, he was trying to get account extract prior to 28.03.2006 he could not get and even this cheque amount was not credited. On the ground of mis-appropriation of bank amount 1st Opposite party suspended some employees and when he demanded for payment of amount, 1st Opposite party assured to pay the amount. The mis-appropriation was published in the newspaper. Then on 31.03.2008 he filed application and obtained account extract on 11.04.2008 and came to know that the cheque amount of Rs.86,470/- was not credited to his account. Then on 12.04.2008 he filed an application to furnish report of cheque clearance and 1st Opposite party by his reply letter dated 13.05.2005 stating that cheque was not presented to the bank at all. Then he approached 2nd Opposite party and 2nd Opposite party replied that the said cheque was presented through S.B.M. and the cheque amount was paid to current account No.737. Then he got issued a legal notice dated 21.05.2008 and 1st Opposite party replied that the disputed cheque was not presented to the bank. After reply of 2nd & 4th Opposite parties, he lodged a complaint about the deficiency in service by the 1st Opposite party suppressing the collection of clearance of the cheque amount and credited to the account of 1st Opposite party. In the cross-examination, he deposed that the 1st Opposite party collected the original pass book and did not return in spite of demands. Averments made in the affidavit evidence of the complainant are not at all denied in the cross-examination. Only after the collection of records from Opposite parties 2 to 4 and denial by the 1st Opposite party, the complaint is filed by the complainant. The complainant has given sufficient reason in his affidavit for the delay in filing the complaint. Further, the starting point for limitation in filing a complaint before Consumer Forum is either the date of transaction or the date of denial of the claim by the Bank. Since, the complainant has lost the challan of presentation of the disputed cheque and since Opposite party did not mention the collection of the cheque to his account and it was not made known to the complainant in spite of demanding the pass book and even the account extract was not given and when admittedly by means of letter Ex.C.7 dated 13.05.2008, 1st Opposite party denied the presentation of disputed cheque when the complainant gave letter dated 24.04.2008 as per Ex.C.5, therefore we have to take into consideration, the date of denial of letter by 1st Opposite party as per Ex.C.7 as the starting point for cause of action. The cause of action which is beneficial to the Consumer from the records should be taken in order to safeguard the interest of consumer. Therefore, the complainant has shown sufficient reasons to condone the delay in filing the complaint and hence, we hold that the complaint is not barred by limitation.<br /> 19. The complainant has sought for Rs.86,470/- (cheque amount), interest of Rs.60,529/- from 23.05.2005 and compensation of Rs.5,000/- and legal notice charges of Rs.1,000/- in addition to expenditure of Rs.3,000/- totally Rs.1,53,299/-. Considering the facts of the case, it is reasonable and just to direct the 1st Opposite party to pay the cheque amount of Rs.86,470/- with interest from 24.05.2005 till date at the rate of 9% p.a. <br /> 20. In the result, we proceed to pass the following order;<br /> ORDER<br /> The complaint is partly allowed, directing the 1st Opposite party to pay Rs.86,470/- with interest at 9% p.a. from 24.05.2005 till realization to the complainant with cost of Rs.2,000/-.<br /> Complaint against Opposite parties 2 to 4 is dismissed. <br /> <br /> (Dictated to the Stenographer, transcribed, corrected and then pronounced in the open Forum this the 26th day of February 2009).<br /> <br /> (PRESIDENT)<br /> (MEMBER) (MEMBER)