O R D E R<br /> <br /> <br /> <br /> SRI.D. KRISHNAPPA, PRESIDENT:<br /> <br /> <br /> The grievance of the complainant against the Ops in brief is, that he is having bank account in Op No.2, that he had on 22/06/2007 presented two cheques one for Rs.10.00 lakhs and another for Rs.44,600/- for crediting those cheque amounts to his account maintained with Op No.2. The cheque amount of Rs.44,600/- was credited to his account but the amount for Rs.10.00 lakh due under another cheque was not credited and has stated that it was issued by Op No.3. If the second Op had not passed the cheque for payment the cheque should have been returned to him with an endorsement but did not do so. That he is having an acknowledgement for having presented the Cheque of Rs.10.00 lakhs to the second Op. Then he received a letter from the City Bank, Prestige Meridian, M.G. Road, Bangalore stating that Op No.2 reported to had not received the cheque. The letter received from Ops reveal that they did not receive the cheque and have failed to credit the amount. As the result, he has suffered loss. The Ops have not given any reason for not either honouring cheque or for not returning it and thereby has prayed for a direction to the first and second Op to pay him the cheque value of Rs.10.00 lakhs and to award other compensation.<br /> <br /> This forum on the basis of these facts ordered notice against Ops No.1 and 2 only who have appeared through their advocate and filed version contending that the complaint is fictitious and frivolous. That the complaint is filed after 2½ years from the date of cause of action, is barred by limitation. That they had through the letter dated 15/03/2007 and 26/03/2007 mentioned that cheque alleged to had been deposited is not traceable and the complainant was requested to approach the drawer of the cheque to collect another cheque. In view of the cheque which had been issued and to issue stop payment. The conduct of the complainant shows that the cheque was issued in a fictitious transaction and the drawer had no intention to make payment. The complainant has not suffered any monetary loss. The complainant had approached banking ombudsman on 31/10/2008 after lapse of 20 months. Therefore, they are not under obligation to pay the cheque amount and the prayer is misconceived. The complainant has not approached the forum with clean hands and has prayed for the dismissal of the complaint.<br /> <br /> In the course of enquiry into complaint, the complainant and One Narendra Singh for Ops have filed their affidavit evidence reproducing what they have stated in their respective complaint and version. The complainant along with complaint has produced both challans under which he had deposited two cheques to Op No.2 for crediting those amounts to his account, also produced several letters he had received from Ops 1 and 2 and a copy of legal notice he got issued to Ops and reply sent by them. Ops 1 and 2 filed interrogatories for which the complainant has given reply, we find that these interrogatories are not at all relevant to decide the issue that has cropped up in this complaint. The counsel for the complainant has also highlighted the same in answer to interrogatories. We have heard the counsel for the complainant and perused the written of arguments filed by the counsel for the Op and perused the records.<br /> <br /> On the above materials, following points for determination arise.<br /> <br /> 1. Whether the complainant proves that the Op No.2 has caused deficiency in his service in not collecting and crediting the cheque amount of Rs.10.00 lakhs to his account or in not returning that cheque.<br /> 2. To what relief the complainant is entitled to?<br /> <br /> Point No.1 : In the affirmative<br /> Point No.2 : To see the final order.<br /> <br /> Answer on point No.1: <br /> <br /> The opponents have contended that the complaint is filed after 2½ years from the date of cause of action, therefore, the complaint is barred by limitation. But they have not specifically stated when according to them cause of action arose. Of course, in their version have stated that through their letter dated 15/03/2007 and 26/03/2007 had intimated the complainant that the cheque deposited by the complainant is not traceable and there by probably the opponents wants to say that cause of action arouse on 15/03/2007 and 26/03/2007 and the complainant since has not been filed within two years from those dates is barred by limitation. Complaint is filed on 30/11/2009. But it is found, the complainant who received letter of the Ops on 26/03/2007 did not keep quite but gave a complaint to banking ombudsman who sent a reply to the complainant on 19/11/2008 directing the complainant to follow up with the bank for the needful and thereafter it looks the complainant again took up the matter with the Ops who promised to take up investigation and re-investigation and then sent replies from 14/11/2008 till 17/03/2009 to the complainant Thereafter, the complainant got issued legal notice on 14/05/2009 and received reply from the Ops on 16/06/2009. Therefore, it is not that matter ended on 23/02/2007 and limitation started running from that day. Hence, considering these developments it can not be held that the complaint is barred by limitation.<br /> <br /> Coming to the merits of the case, we could see from the letters of the Ops addressed to the complainant, that they at the earlier point of time denied receipt or depositing of cheque by the complainant but later on admitted to had received the chque of Rs.10.00 lakh from the complainant but pleaded misplacement or lost in transit. In the version and affidavit evidence they have not specifically denied tendering of the cheque by the complainant to Op No.2 branch for collection of the cheque amount and to credit that amount to his account. Complainant has produced the original challans issued by the OP on receipt of the cheque in question on 26/02/2007. The Ops have not denied the issue of this challan and its genuineness. Added to this the Ops in reply to the legal notice given by the complainant through his advocate has specifically admitted that the cheque has been lost in transit and that is one of the rarest incident and pleaded their inability to credit that amount to the account of the complainant. Therefore, the fact that the complainant had deposited that cheque of Rs.10.00 lakhs with Op No.2 stands proved.<br /> <br /> Ops have further conceded that they could not trace the cheque and it is lost in transit but have contended that the cheque was issued to the complainant in a fictitious transaction that the complainant did not being drawer to get another cheque and approached banking ombudsman at the belated stage and thereby suspected as if the cheque issuing transaction was not genuine and the complainant has not suffered any loss therefore they are in no way liable.<br /> <br /> Once it is proved that the complainant had presented two cheques on the same day one is given credit and another one is lost. When it was in the custody of Op No.2 it is not for Ops 1 and 2 to say whether there was genuine transaction between the drawer and the complainant and whether the cheque issued was in a bonafides transaction. Ops 1 and 2 in our view are crossing their limit in taking such a stand what is required of them was to take care of the cheque received and to account for it and then if there was sufficient funds in the account of the drawer then to collect the cheque amount and credit it to the account of complainant or it issue endorsement and not to cross that limit. Ops who are unable to account for the loss of the cheque in our view is estoped from taking such contention. Of course, the cheque is not mis-used elsewhere or by any one and that cheque amount has not gone out of the account of the drawer and the complainant has not suffered loss of the cheque amount but the fact that the complainant has lost opportunity to take action against drawer, in the event of dis-honour is deprived of. The act of Ops not accounting to the presented cheque amounts to deficiency in their service and therefore are liable to compensate the complainant under law, as such we proposed to award damages to that extent by answering point No.1 in the affirmative and pass the following order.<br /> <br /> O R D E R<br /> <br /> <br /> Complaint is allowed. Ops 1 and 2 are directed to pay damages of Rs.15,000/- to the complainant within 60 days from the date of this order which in our view would meet the ends of justice and in the event of their failure to pay that amount within time fixed they shall pay interest @ 9% p.a from the date of this order till the date of payment.<br /> <br /> Ops shall pay cost of Rs.2,000/- to the complainant.<br /> <br /> Dictated to the Stenographer. Got it transcribed and corrected. Pronounced in the Open forum on this the 26th May 2010.<br /> <br /> <br /> <br /> <br /> MEMBER MEMBER PRESIDENT<br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br /> <br />