FA.No.730/2007 AGAINST C.D.No.45/2003 DISTRICT FORUM, KHAMMAM.

Between:

1. Sri K.Satyanarayana, S/o.Sri Koteswara Rao,

Aged about 28 years, Occ:Daal Mill Gumastha

R/o.H.No.3-5-99/22, Ranganayakula Temple

Khammam.

2. Smt.K.Aruna, W/o.Sri Satyanarayana,

Aged about 23 years, Occ:House hold.

R/o.H.No.3-5-99/22, Ranganayakula Temple

Khammam. Appellants/

Complainants
And

1. The Branch Manager,

Bhadradi Co-operative Urban Bank Ltd.,

Gandhi Chowk Branch, Khammam

Rep. by its Branch Manager.



2. Bank of Baroda,

Maredpalli Branch, Secunderabad.

Rep. by its Branch Manager. Respondents/

Opposite parties



Counsel for the Appellants: Mr.P.Raghavendra Rao



Counsel for the Respondents:M/s.Y.N.Vivekananda-R1

Mr.C.Srinivas-R2



QUORUM: SMT.M.SHREESHA, MEMBER

&

SRI K.SATYANAND, MEMBER



MONDAY, THE TWENTY FIRST DAY OF DECEMBER,

TWO THOUSAND NINE



(Typed to the dictation of Sri K.Satyanand,Hon’ble Member)
***



This is an appeal filed by the complainants not satisfied with the relief granted by the District Forum.

The facts that led to filing this appeal are briefly are as follows:

The complainants have a joint savings Account vide A/c.No.2070 in opposite party No.1 bank. They have presented two cheques for Rs.40,000/- each bearing Nos.61720 and 61721 dated 13-3-2001of Union Bank of India, Chandigarh branch for clearance on 8-4-2001 which were issued by the Director, Golden Forests India Limited. The opposite party No.1 received the two cheques for the purpose of clearance and many times the complainants approached it for enquiry about the clearance and thereupon opposite party No.1 issued a letter to the complainant dated 4-8-2001 that the two cheques were sent to Bank of Baroda, Secunderabad on 9-4-2001, opposite party No.2 herein. The opposite party No.2 vide their letter dated 3-8-2001 informed that the above two cheques were sent for collection on 12-4-2001 and were returned unpaid with an endorsement ‘Refer to drawer High Court case on 2-5-2001’. It is the case of the complainants that the above cheques were not returned to the complainants on the ground that they were lost in transit. Hence the complainants approached the District Forum for payment of Rs.80,000/- with interest etc.,

Opposite party No.1 filed counter admitting that the complainants presented the aforementioned two cheques for clearance and that those were sent to opposite party No.2 for clearance on 9-4-2001 and in turn opposite party No.2 sent for collection on 12-4-2001 and they were returned unpaid. The said fact was intimated to complainants on 4-8-2001 and opposite party No.1 made efforts to issue duplicate cheques and submitted that the dishonour of the cheques would not be useful to complainants to take recourse in a court of law for the reason that there was an endorsement that ‘Refer to Drawer High Court case on 2-5-2001’ and prayed for dismissal of the complaint.

Opposite party No.2 filed counter admitting that the aforementioned cheques were presented for collection through opposite party No.1 and were returned by a memo of Union Bank of India Chandigarh Branch as dishonoured for the reason ‘Refer to Drawer High Court case on 2-5-2001’. Immediately opposite party No.2 sent the cheques to opposite party No1. through ANL courier service under consignment note No.761718 and the said cover was delivered to opposite party No.1 on 4-5-2001 and submitted that there was no deficiency of service on their behalf.

In support of his case, complainant No.1 filed his affidavit and relied upon documents marked as Exs.A1 to A5. Opposite parties on the other hand relied upon documents marked as Exs.B1 to B5.

On a consideration of the evidence adduced on both sides, the District Forum gave a finding that there was deficiency in service against opposite party No.1 for loosing the cheques and directed it to pay Rs.5,000/- to the complainants and dismissed the complaint against opposite party No.2.

As the District Forum allowed the C.D. only in part, the complainants filed the present appeal praying the full relief they sought in the complaint on the following among other grounds.

Admittedly the complainants lost the cheque amounts of Rs.40,000/- each due from Director, Golden Forests India Limited with the loss of cheques permanently shutting them out from effecting the recovery in as much as the cheques came to be returned not for want of funds but on account of some pending case in a High court which could have been surmounted by initiating recovery proceedings against their debtor on the foot of the returned cheques. The District Forum ought to have addressed this predicament of the complainants and granted full relief as the complainants were disabled by the acts of the opposite party No.1 which negligently lost the instruments. The District Forum erred in abridging the relief even while addressing all the issues properly fixing up the liability of opposite party no.1.

Counsel for the appellant filed written arguments and also addressed oral arguments. Respondent No.1 too filed written arguments.

The point for consideration is whether the relief granted by the District Forum is liable to be revised upwards as craved by the appellants?

It is not in dispute that the complainants presented the two cheques in question to opposite party no.1 for crediting the proceeds thereof to their joint account. Then opposite party no.1 sent those cheques to opposite party No.2 for realization, opposite party No.2 promptly sent them to Union Bank of India, chandigarh as the cheques were drawn on the said bank. The UBI, Chandigarh returned those cheques on the ground of pendency of some High Court case back to opposite party No.2. Opposite party No.2 claimed to have sent those returned cheques to opposite party No.1 through the couriers, ANL parcel service. At this point, while opposite party No.2 maintained they were duly dispatched to opposite party No.1, through the couriers, opposite party No.1 emphatically maintained that they did not receive those cheques. It is therefore essential for the adjudicating machinery to properly examine as to which of all these persons that successively handled these lost cheques was at fault and instrumental in loosing those cheques. The District Forum readily accepted Ex.B4 and B5 tendered by opposite party No.2 to hold that opposite party No.2 did its part without any blemish and sent the returned cheques to opposite party No.1 and it was therefore opposite party No.1 that should bear the brunt for causing the disappearance of the cheques thereby dealing a blow to the interests of the complainants. In this regard, the District Forum readily placed reliance upon Ex.B5 to agree with the theory of opposite party no.2 that ANL parcel service to which it entrusted the envelop for being carried to opposite party No.1 had duly served it as per their certificate, Ex.B5. It is in this context that this Commission has to keenly examine whether Ex.B5 could validly absolve ANL parcel and consequently opposite party No.2 But in this evaluation, this Commission not to speak of the District Forum was handicapped as ANL parcel service was not made a party. So much so that the party which was responsible in not making the ANL parcel emerges as the party that failed in its adherence to the due process as at times the non joinder of a necessary party proves fatal to the complaint. Before discussing this fall out of the non joinder, it is essential to revert to the true probative value of Ex.B5. Ex.B5 was after all a certificate issued by ANL parcel service testifying to the fact that the envelop containing (the two cheques ) was duly delivered to opposite party No.1 but opposite party No.1 categorically denied having received any such envelope. It is therefore very clear that it is ANL parcel service that was in possession of the suit documents before the alleged delivery of them to opposite party No.1. This, the ANL parcel service sought to establish by issuing a certificate in Ex.B5 asserting due delivery. When opposite party’s No.1 case was that it did not receive those cheques what could be the value of Ex.B5 which did not mention, leave alone attach, the details of acknowledgement signified by opposite party No.1. It is not as if ANL;s certificate was a statutory instrument or a gospel truth especially after the entrustment of those documents to ANL parcel service is amply proved not only by their own admission in Ex.B5 but also by Ex.B4 issued by ANL parcel service to Bank of Baroda. Had Ex.B5 been the acknowledgement of receipt of article containing cheques by opposite party No.1,it would have been totally different and the case against opposite party No.1 would have been firmly established. So in order to identify as to who really was guilty of deficiency in service, it is essential that ANL parcel service too should have been made a party because opposite party No.2 successfully passed the buck on to ANL by proving Ex.B4 under which it handed over the tappal to ANL for transmitting the same to the addressee/opposite party No.1. The complainants ought to have added ANL as a party atleast after coming across Ex.B5, a document hardly capable of proving the delivery to opposite party No.1 so that ANL service would have been in a better position to throw light upon the question whether a service was effected on opposite party no.1 or not by producing the substantive document of actual service instead of certificate of service which has no statutory force and which in the absence of statutory force answers the description of only an ordinary document, the contents of which stand precluded from being received an evidence in the absence of the production of the primary evidence namely the document that evidences the actual factum of delivery as signified by a person on behalf of opposite party No.1. This lapse or omission betrays the inherent weakness in the case of the complainants. Inspite of that the District Forum hastened to fix up the liability against opposite party being carried away by Ex.B5 without evaluating its probative value. The opposite party no.1 filed a petition to receive additional evidence calculated to tender in evidence that their inward register pages 94 and 95 did not disclose any receipt of the documents delivered to it by ANL parcel service claimed to have been sent by Bank of Baroda during the relevant dates. This circumstance further dilutes the efficacy of Ex.B5 in proving the delivery of the parcel containing the cheques to opposite party No.1. In this view of the matter, it is necessary in the interest of justice and for just adjudication of the matter to mark the said original register, pages 94 and 95 put together as Ex.B6 and B7 though the party wanted them to be marked as Exs.B3 (a) and B3(b) as such kind of numbering of exhibits is deprecated. Be that as it may, this infirmity in the finding of the District Forum cannot but exercise the mind of this Commission in acceding to the request of the appellants for enhancement of the relief though nothing can be done at this stage to overturn the finding of the District Forum in this regard as after all there is no appeal on behalf of opposite party No.1 in this regard. Inspite of this infirmity in the order of the District Forum, we are not in a position to relieve opposite party no.1 entirely even from the moderate liability imposed against it by District Forum nevertheless, the above infirmity cannot but weigh with us for the purpose of turning away the appellants from getting any enhancement of the relief as the relief already they earned before the District Forum itself turned out to be resting on tenuous grounds though by virtue of a rule of practice and procedure, the order of District Forum already inuring for the benefit of a person who files an appeal for more or greater relief cannot be disturbed in the absence of a cross appeal by the party aggrieved with the subject order.

In these circumstances, we are firmly of the opinion that the complainants do not deserve any enhancement in the relief as sought by them. Accordingly the appeal is dismissed but without costs in the circumstances of the case.