: : BEFORE THE DISTRICT CONSUMER FORUM, AT GULBARGA. : :

C.C.No.133/2008

Date of filing: 07.06.2008

Date of disposal: 09.03.2009.

P R E S E N T :- (1) Shri. Shivananda Katti
B.A., LL.B.,
President.

(2) Smt. Gopemma,
B.A.,
Member.

(3) Sri V.S.Yekkelli,
M.Com, LL.B.,(Spl.).,
Member.


COMPLAINANT:- M/s. Sri. Nandi Basaveshwar
Finance Corporation (R),
Shop No.2,3,4, Plot No.20, J.R. Nagar,
Khadri Chowk Aland Road,
Gulbarga,
Through its Managing Partner Sri. Siddappa
S/o. Gurubassappa Police Patil,
Age: 46 Years, Occ: Business,
R/o. Gulbarga.

(By Sri. Mahesh T.R. Advocate)

// Versus //
OPPONENTS:- 1) The Branch Manager,
Krishna Grameen Bank,
Shahabazar Branch,
Gulbarga.

2)Sri. Vithal S/o Maruti Giri,
Age : About 35 Years, Occ: Teacher,
C/o. HigherPrimary School, Karari,
Post: Kamal Nagar, Tq: Aland,
Dist: Gulbarga.

(OP-1 by Sri. S.K. Kaba Advocate)
(OP-2, Exparte)

: : O R D E R : :

1. This complaint is filed by one M/s. Sri. Nandi Basaveshwar Finance Corporation, Gulbarga through its Managing Partner Sri. Siddappa Police Patil, R/o. Gulbarga, against the OP-1 & 2 U/s.12 of Consumer Protection Act 1986, praying that, direction may be given to O.P.1 to pay cheque amount of Rs.10,635/- with 18% P.A., interest from the date of presentation of cheque, i.e., from 22-3-2007. Further direction may be given to OP-2 to issue fresh cheque for Rs.10,635/- in favour of the Complainant. Further direction my be given to OP-1 to pay compensation of Rs.50,000/-towards mental agony and harassment and Rs.5000/- towards costs of the proceedings in the interest of justice.

2. The brief facts of the case of the complainant are as under;
Complainant Firm is registered Finance Corporation carrying out its business of lending money at Gulbarga. The OP-1 is bank in which complainant having its account. OP-2 is the regular customer of Complainant Firm. OP-2 availed loan from the Complainant and on 22-3-2007 he has issued cheque for Rs.10,635/- of SBH Bank brg. No.986006, in favour of Complainant in discharge of his legally liable debts towards Complainant.
It is further averred in the complaint that, on 22-03-2007, Complainant presented the cheque, which was given by OP-2 for encashment through his banker OP-1 from its C.C. A/c. No.65 maintained in OP-1 Bank. On the presentation of said cheque, OP-1 has intimated to the Complainant that, at least seven days required for clearance of said cheque. Believing the words of OP-1, Complainant approached after 7 days for encashment of said cheque. But on one or other false reasons, OP-1 postponed the matter. Fed up with the delaying tactics of OP-1, Complainant wrote letter on 27-4-2007 requesting to OP-1, to ascertain the steps taken by him in respect of clearance of said cheque. Neither OP-1 has credited the said cheque amount nor returned the said cheque. Therefore, on 05-02-2008, Complainant issued legal notice to OP-1 calling upon to clear the said cheque within 15 days from the date of receipt of legal notice. On 08-02-2008, OP-1 given reply notice, wherein he admitted about presentation of cheque, cheque number and cheque amount. Further he informed that, the cheque presented by Complainant, which is lost in the transit as it was sent to Aland Branch for collection. The said clarification was given by OP-1 after lapse of more than 11 months from the date of presentation of the cheque and only after issuance of legal notice given by the Complainant, belatedly after expiry of six months validity period of cheque. On 13-3-2008 Complainant issued legal notice to OP-2 in compliance to Sec.45-A of Negotiable Instruments Act and intimated that, cheque issued by him in favour of Complainant is lost in the transit by his banker i.e. OP-1 and called upon OP-2 to issue fresh cheque for the same amount. But inspite of it, OP-2 did not issue fresh cheque in favour of Complainant and also he has refused to receive postal cover, which was sent by the Complainant through RPAD. The cause of action arose to file this complaint and this Forum have jurisdiction to entertain this complaint. Under these circumstances, it is prayed that, complaint may be allowed and compensation may be awarded as prayed in the complaint.

3. After registering the case, notices were issued to OPs. After serving the notice, OP-1 appeared through counsel and filed Written. Though notice served upon OP-2, inspite of service of notice, he did not appear. Hence it is held that, service is sufficient and OP-2 was placed exparte. OP-1 has contended in the written statement that, contents of Para-3 of the complaint, it is admitted that, Complainant is having account with OP-1 Bank. It is specifically denied for want of knowledge that, OP-2 is the regular customer of Complainant. It is further denied for want of knowledge that, OP-2 availed loan from the Complainant, but it is admitted that, OP-2 has issued cheque for Rs.10,635/- of SBH Bank brg. No.986006, in favour of Complainant. It is further denied for want of knowledge that, in discharge of his legally liable debts towards Complainant.
In reply to Para-4 of the complaint it is true that, on 22-03-2007, Complainant presented cheque, which was given by OP-2 for encashment through his banker OP-1 from its C.C. A/c. No.65 maintained in OP-1 Bank. It is denied that, on the presentation of the above said cheque, OP-1 has orally intimated to the Complainant that, at least seven days required for the clearance of the said cheque. It is further denied that, believing the words of OP-1, Complainant approached after 7 days for encashment of said cheque. It is further denied that, on one or other false reasons, OP-1 postponed the matter of clearance of above said cheque. It is submitted that, on 24-3-2007 in S.C. No.253 OP-1 has send the said cheque through KGB Aland Branch to SBH Branch Aland for collection, in which SBH Aland Branch has given endorsement “Funds Insufficient” and returned to KGB Aland Branch, who returned same to OP-1 through postal services, wherein it was lost during business transit and same was intimated orally to Complainant, but Complainant paid no heed to it. It is further denied that, fed up with the delaying tactics of OP-1, Complainant wrote letter on 27-4-2007 requesting to OP-1, to ascertain the steps taken by him in respect of clearance of said cheque. It is further denied that, after receiving the said letter, neither OP-1 has credited the said cheque amount nor returned the said cheque. It is submitted that, OP-1 has orally instructed to Complainant about the insufficient fund in OP-2 account and loss of cheque in transit and the loss of cheque in transit. Hence this complaint is not tenable against the OP-1 and liable to be dismissed. Therefore, on 05-02-2008, Complainant issued legal notice to OP-1 calling upon to clear the said cheque within 15 days from the date of receipt of legal notice to OP-1 calling upon to clear the said cheque within 15 days from the date of receipt of the legal notice. It is further denied that, clarification was given by OP-1 regarding loss of cheque in transit, after lapse of more than 11 months from the date of presentation of the cheque and only after issuance of legal notice given by the Complainant, belatedly after expiry of six months validity period of cheque. Therefore there is no deficiency in service on the part of OP-2. Under these circumstances, it is submitted that, complaint may be dismissed with cost.

4. To prove the claim of complainant, himself was filed affidavit by way of evidence, who examined as PW-1, documents got marked Exh.P-1 to P-9. OP-1 filed affidavit by way of cross PW-1, Complainant side evidence closed. OP-1 also filed affidavit by way of evidence, who examined as RW-1, documents got marked Ex.R1 and Ex.R.2. Complainant also filed affidavit by way of cross of RW-1, OP-1 side evidence closed.


5. Heard the arguments from both sides.


6. The points that arises for our consideration are;
(1) Whether there is a deficiency of service on the part of O.P-1?
(2) Whether cheque sent by OP-2, having insufficient funds in the Bank?

3) What Order?
7. Our answer to the above points are as under:-

(1)No.
(2)Yes.
(2) As per final order for the following;

: : R E A S O N S : :

8. Points No:1 :

We have perused the affidavit of complainant, evidence and also documents. Complainant case is that, OP-2 is the regular customer of Complainant Finance Corporation. OP-2 availed loan from Complainant Firm and on 22-3-2007 he has issued cheque for Rs.10,635/- of SBH Bank brg. No.986006, in favour of Complainant in discharge of his legally liable debts towards Complainant. Further he deposed in his evidence that, on 22-03-2007, he presented said cheque, which was given by OP-2 for encashment through his banker OP-1 from its C.C. A/c. No.65 maintained in OP-1 Bank. On the presentation of said cheque, OP-1 intimated to Complainant that, at least seven days required for clearance of the said cheque. Believing the words of OP-1, Complainant approached OP-1 after 7 days for encashment of said cheque. But on one or other false reasons, OP-1 postponed the matter clearance of said cheque. During the course of evidence, he was examined as PW-1, Ex.P.1 is original KGB voucher. Ex.P.2 is letter written by Complainant addressed to OP-1. Ex.P.3 is copy of legal notice sent to OP-1. Ex.P.4 is reply to legal notice. Ex.P.5 is copy of legal notice sent to OP-2. Ex.P.6 is unserved postal cover. Ex.P.7 is UCP. Ex.P.8 is registration certificate of Complainant Firm. Ex.P.9 is license of Complainant Firm. On the other hand OP-1 also filed affidavit by way of evidence, who examined as RW-1, Ex.R-1 is letter of KGB Aland Branch addressed to OP-1 regarding in sufficient funds. Ex.R.2 is endorsement given by Syndicate Bank Aland regarding insufficient funds. On careful perusal of evidence and documents of Complainant, it is clear that, Complainant has presented cheque for sum of Rs.10,635/- of SBH Bank brg. No.986006, which was issued by OP-2 for payment of loan amount received from Complainant Finance Corporation. Complainant has further deposed that, after issuing legal notice, i.e. after lapse of 11 months of presentation of cheque, OP-1 Bank informed about return of cheque with endorsement “insufficient funds” and the said cheque was lost in transit. Hence there is deficiency in service on the part of OP-1. Complainant has further deposed that, he has issued legal notice to OP-2 in compliance to Sec.45-A of Negotiable Instruments Act intimated that, cheque issued by him in favour of Complainant is lost in the transit by his banker i.e. OP-1 and called upon OP-2 to issue fresh cheque for the same amount. After receiving the said notice, OP-2 did not issue fresh cheque in favour of the Complainant and also he has refused to take postal cover, which was sent by Complainant through RPAD sent by the Complainant. We have also carefully perused the evidence and documents of OP-1, who deposed in his evidence that, the said cheque presented by Complainant was sent for collection through KGB Aland Branch to SBH Branch Aland for collection, in which SBH Aland Branch has given endorsement “Funds Insufficient” and returned to KGB Aland Branch, who in turn returned same to OP-1 through postal services, wherein it was lost during business transit and same was intimated orally to the Complainant, but Complainant paid no heed to it. It clearly goes to show that, though cheque was issued by OP-2, but said cheque was returned with endorsement “insufficient funds” as per Ex.R.1 & R.2. Though Complainant is running Finance Corporation, he ought to have known about non-clearance of said cheque, why he has kept silent for about 11 months without enquiring about clearance of said cheque. Therefore, on careful perusal of evidence and documents of OP-1, we are of the considered opinion that, there is in sufficient funds in the account of OP-2, hence there is no deficiency in service on the part of OP-1, accordingly we answered Point No.1 in negative and complaint against OP-1 is dismissed.

9. Point No.2:

Though notice was served against OP-2, he remained absent. Even after issuing legal notice by Complainant’s Advocate, he has not issued fresh cheque in favour of Complainant Firm. After receiving said notice he was kept silent. Though OP-2 is having knowledge about in sufficient funds in his account, he ought to have not to issue the said cheque. On perusal of documents Ex.R.1 & Ex.R.2 goes to show that, the said cheque issued by OP-2 is returned with endorsement “insufficient funds”. On going through evidence of Complainant and Ex.R.1 and Ex.R.2, in our considered opinion, there is in sufficient funds in the account of OP-2, accordingly we answered this point in affirmative and we direct the OP-2 to issue fresh cheque in favour of Complainant Firm.

10) Point No.3:-
In view of the discussions made on point No.1 & 2, we proceed to pass the following;

: : O R D E R : :

Complaint against OP-1 is dismissed. OP-2 is directed to issue fresh cheque for Sum of Rs.10,635/- in favour of the Complainant Firm, within one month from the date of this order. No order as to costs.

(Typed to our dictation then corrected, signed by us and then pronounced in open Forum on this the 9th day of March 2009).




(1) Shri. Shivananda Katti
President.



(2) Smt. Gopemma,
Member




(3) Shri V.S.Yekkelli,
Member.