THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
C.C.523/2011
Dated this the 5th day of April, 2017
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Joseph Mathew, Member:
This petition is filed under Section 12 of Consumer Protection Act, 1986.
The petitioner is an account holder of the opposite party bank vide SB A/c. No. 4387. His case is that, on 09/12/2010 he had presented a cheque bearing No. 570914 dated 15/06/2010 drawn at Syndicate Bank, Panoor branch for Rs.32,500/- with the opposite party bank for encashment. The opposite party assured him that as it is a core banking cheque, it will be encashed within two days if there is sufficient funds in the account of the drawer. The opposite party had issued a slip for the acknowledgement of the cheque also. Thereafter he had visited the opposite party bank on everyday and enquired about the encashment but the opposite party sent him back by saying that the cheque was neither encashed nor returned from the other bank. Finally on 29/12/2010, he got back the cheque dishonoured for the reason stated in a memo attached to the instrument ‘post dated/outdated/without proper date’. When he enquired about the same to the opposite party he was told that the cheque had been mistakenly sent to the Kannur branch of the Syndicate Bank for collection and after returning the same from there, they again sent it to Panoor branch and meanwhile the cheque became outdated and hence the drawer bank bounced the cheque. It is stated by the petitioner that he had entrusted the cheque to the opposite party only upon the assurance made by them that it will be encased within two days, otherwise he could have presented it directly at the drawer bank itself. The cheque was dishonoured only because of the negligence and deficiency in service on the part of the opposite party.
After dishonouring the cheque, he had contacted the drawer of the cheque on several times for getting the cheque amount but he declined to give the amount saying that there had been sufficient funds in his account upto 15/12/2010 and so he has no liability for not encashing the cheque within the time limit. Since the cheque was dishonoured for the said reason, he has lost his chance to initiate legal proceedings against drawer to recover the amount. so he had incurred a loss of Rs.32,500/- ie. the cheque amount due to the negligence and deficiency in service of the opposite party. In addition to that he had suffered much mental pain and other hardships which cannot be calculated in terms of money, even then he had limited the same to Rs.25,000/-.
The petitioner further submitted that, thereafter he had issued a lawyer notice to the opposite party on 10/08/2011 stating the facts and demanding the cheque amount of Rs.32,500/- and compensation for his sufferings but instead of complying the demands they have sent a replay raising false allegations. The said act of the opposite party is gross negligence and deficiency in service on their part and hence they are liable to compensate the loss incurred to him. Though he is entitled to get the cheque amount of Rs.32,500/- and Rs.25,000/- towards compensation, however he limit the claim to Rs.50,000/- with interest at the rate of 12% per annum. Hence this petition is filed to direct the opposite party to pay him a total amount of Rs.50,000/- as compensation and also cost of the proceedings.
The opposite party filed version admitting that the petitioner is an account holder of them, but contended that they have not given any assurance regarding the cheque being encashed within two days as alleged.
Actually they have pointed out to the petitioner the short span of time left for encashment at the time of presentation of the cheque itself but as insisted by the petitioner they have sent the same for collection. It is submitted that immediately on receipt of the cheque they have sent the same for collection through the banks Kannur office as usual but it was returned from there for the reason that the drawee bank was situated at Panoor which was not included in its clearing area. Thereafter the cheque was presented directly but it was returned with memo ‘out of date’. There was no intentional delay on their side as alleged. The statement of the petitioner that the drawer of the cheque denied to make payment for the reason that there were enough funds in his account till 15/12/2010 and hence he is not liable to pay the amount was denied by the opposite party as illogical and unsustainable.
It is further submitted that, as far as the amount is due from the drawer of the cheque, there is no bar for initiating legal action for recovery of the amount by the petitioner. But he has not made any attempt to recover the amount so far. It seems strange and unbelievable. The petitioner is at liberty to initiate legal proceeding to recover the amount even now. The lawyer notice was replied with true and correct facts and the reception of the legal notice doesn’t mean admission of any negligence. In fact the petitioner who had retained the cheque with him till the last moment of its validity is responsible for the invalidation of the cheque. Actually they got only 6 days for collection. If at all any loss is sustained to the petitioner it was only due to his fault and negligence in retaining the cheque with him till the last moment of its validity. There was no negligence or deficiency in service on their side. No loss has been occurred to the petitioner due to any of their act. In any case the claim made by the petitioner is excessive, exorbitant, and without any basis. The intention of the petitioner is to make double benefit by collecting amounts from the drawer as well as from them. He is not entitled to get any of the reliefs sought for and hence prayed to dismiss the petition with cost of them.
The matters to be decided are:
Whether there is any deficiency in service on the part of the opposite party?
Reliefs and cost if any?
Evidence consists of the affidavit filed by both the parties, Ext.s A1 to A6 and deposition of PW1 and RW1.
Point No. 1: There is no dispute with regard to the entrustment of Ext. A1 cheque to the opposite party on 09/12/2010 by the petitioner for encashment. So also no dispute regarding the fact that the cheque was dishonourned due to the reason outdated/insufficiency funds. The learned counsel for the petitioner argued that the cheque was dishonourned only because of the gross negligence and deficiency in service on the part of the opposite party. The opposite party denied this argument and according to them the fault is with the petitioner himself in retaining the cheque with him till the last moment of its validity and they have got only 6 days for collection. The Manager of the opposite party bank Smt. Anoopa was cross-examined as RW1. In cross she admitted that Ext. A1 was a core banking cheque and for clearing such a cheque it needs 4 days in normal course, though it may vary from branch to branch (Page 4-RW1). This statement defeats the contention of the opposite party bank that they didn’t get enough time for clearing the cheque. Ext. A2 receipt shows that the petitioner had presented the cheque before the opposite party bank 6 days prior to its validity date. This was admitted by the opposite party also. RW1 also admitted that from 2007 March onwards the opposite party bank come under 100% core banking group (Page 4&5-RW1). This statement further made it clear that the opposite party got ample time to clear the cheque if they have sent the same directly to the drawee bank instead of sending it to the Kannur office.
Ext. A3 is the cheque return memo dated 20/12/2010. This shows that it takes 10 days to reach the cheque at the drawee bank from the opposite party bank. The reason stated by the opposite party for this delay is that they have firstly sent the cheque to the Kannur office for collection, but it was returned from there for the reason that the drawee bank was not including in its clearing area. So they again presented the cheque directly to the drawee bank but by that time it became outdated. As a bank they should have known that the drawee bank is not included in the clearing area of the Kannur office. So the delay is occurred on the side of the opposite party bank. If they have taken proper care and caution and had sent the cheque directly to the drawee banks Panoor branch, then the unnecessary delay would have been avoided and the cheque would have been encashed if there is sufficient fund in the account of the drawer. The opposite party argued that the sending of cheque to the Kannur office was neither their negligence nor deficiency in service because it was not intentional but a mistake. The said contention is not acceptable as it is the bounden duty of the bank to forward a cheque to proper clearing house, when a customer is entrusting a cheque with them. The customer has no role in it. Moreover intention is not an ingredient of negligence or deficiency of service as the learned counsel for the petitioner stated. So considering the facts of the case and evidence on record we are of the view that there is deficiency in service on the part of the opposite party in handling the cheque which resulted dishonor of the same. Point No. 1 found accordingly.
Point No. 2: Of course there is deficiency in service on the part of the opposite party, but at the same time the arguments of the petitioner that since the cheque was dishonourned due to the reason ‘outdated’ he had lost the chance to initiate legal proceedings against drawer to recover the amount is also not acceptable. The dishonor of a cheque due to any reason will not exonerate or discharge the drawer from the liability of payment as far as the amount has not been debited from his account and transferred to the account of the drawee. So the drawee can very well approach the drawer for a fresh cheque or direct payment and if he hesitate, the drawee can start legal proceedings against him for the recovery of the cheque amount. So also a drawer of a cheque cannot say in any case that once a cheque was returned dishonoured due to the delay in presenting the same, he has no liability to pay the amount further. In cross-examination the petitioner-PW1-would say that, after dishonor of the cheque he has not take any steps against Muneer, the drawer of the cheque, no notice was sent and no civil suit was filed against him for the recovery of the cheque amount (Page 1&2-PW1). This inaction or careless attitude of the petitioner is a fault on his side. So the petitioner also is equally faulty for not recovering the cheque amount. In such a situation though there is deficiency in service on the part of the opposite party they are not liable to pay the cheque amount to the petitioner but liable to compensate him for the mental agony and other difficulties suffered by him due to their act.
In the result, the petition is partly allowed and the following order is passed.
The opposite party is ordered to pay Rs.10,000/- (Rupees ten thousand only) as compensation and Rs.2,500/- (Rupees two thousand five hundred only) as cost of the proceedings to the petitioner within 30 days from the date of receipt of this order. If the petitioner prefers any legal action against the drawer of the cheque for realization of the amount, the time spent here can be raised as a defence for condonation of delay under Limitation Act.
Dated this the 5th day of April, 2017
Date of filing: 27/12/2011
SD/-MEMBER SD/-PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
A1. Copy of cheque dated 15/06/2010
A2. Copy of receipt issued by the opposite party
A3. Copy of cheque return memo dated 20/12/2010
A4. Intimation given by the opposite party
A5. Copy of lawyer notice sent to the opposite party
A6. Reply received from the opposite party
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
PW1. Sudheer Kumar (Complainant)
Witness examined for the opposite party:
RW1. Anoop, Amma’, Kolathara P.O., Cheruvannur
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
