1.      This appeal is filed by the original opposite party (for short O.P.) Nos.2 and 3 which are branches of IDBI Bank, against the order dated 13/04/2011 passed by the District Consumer Forum Nagpur, in Consumer Complaint No.395/2010, by which the complaint has been partly allowed.

2.      The facts in brief giving rise to present appeal are as under.

          The original O.P.No.1/respondent No.2 herein is Wardhaman Urban Co-Operative Bank and it has opened Saving Account with the appellant No.1 IDBI Bank. The appellant No.1 has given at par cheque facility to the respondent No.2/Co-operative Bank on its request. The cheques issued by respondent No.2 as per said facility are honoured at various branches of appellant, subject to condition that sufficient balance is maintained in saving account of respondent No.2.  The original complainant/respondent No.1 herein purchased 5 bearer Bankers cheques from respondent No.2 which were issued as per aforesaid facility, under the seal and signature of the appellants. They were of total amount of Rs.98,550/-  which were drawn in the name of one Ashok Kumar. The respondent No.1/original complainant sent those five bankers cheques by post i.e. through respondent No.3 to Shri Ashok Kumar. However the respondent No.3 Post Office informed the respondent No.1/original complainant vide letter dated 07/02/2007 that the said bankers cheques have been lost in transit. Therefore the respondent No.1 made an application to respondent No.2 to stop payment of bankers cheques bearing No.254054 issued for Rs.19,975/-, since the said Ashok Kumar did not receive the envelop containing the said cheques. However before the said intimation was given, all the five cheques were already       encashed through the appellant No.2 bank. It is alleged by the respondent No.1/complainant herein that the said five bankers cheques were subsequently forged in the names of some other persons and the appellant No.2 without verifying the said forgery, those bankers cheques were allowed to be honoured and deposited amount of said cheques in the account of said wrong persons.

3.  The respondent No.2 intimated by letter to the complainant/respondent No.1 herein that the five bankers cheques   were cleared on 12/12/2006, 12/12/2006, 07/12/2006, 07/12/2006, 07/12/2006. The said letter of intimation was received by complainant on 01/02/2007. The complainant/respondent No.1 then lodged a report with the polilce on 06/02/2007 about the aforesaid forgery and making of payment of those three bankers cheques to Vinod Kumar, Muzaffarnagar and payment of remaining two bankers cheques in the name of Yogesh Trading Company. Police vide letter dated 07/02/2007 informed the complainant that as the payment of said bankers cheques was made at Jalandhar, the report be lodged at  Police Station Jalandhar. The complainant then vide letter dated 08/03/2010 written to O.P.No.1/respondent No.2 herein requested to provide details of those five bankers cheques. Accordingly the O.P.No.1/respondent No.2 herein vide letter dated 15/03/2010 informed the complainant the details of those five bankers cheques to the effect that all those five bankers cheques have been honoured respectively on 12/12/2006, 12/12/2006, 07/12/2006, 07/12/2006 and 07/12/2006 and payment of first two cheques was made to Yogesh Trading Company and payment of remaining three cheques was made to Vinod Kumar. Therefore alleging deficiency in service on the part of the appellant and respondent No.2 and 3, Consumer Complaint was filed before the Forum by the original complainant/respondent No.1 herein on 28/06/2010 and requested them that they be directed to pay him compensation Rs.3 lakhs.

4.        The O.P.No.1/respondent No.2 herein filed a reply and came with the case that it has not rendered deficient service to the original complainant as after getting information of stop payment, it had given immediately letter to the O.P.No.2 to stop the payment, but prior to that intimation, payment was already made.

5.    The O.P.No.2 and 3/appellants in their common reply had raised objection about maintainability of the complaint on the ground that complainant has not availed service from them and also there is no deficiency in service on their part and that the complaint is barred by limitation. They denied that the amount of five bankers cheques was credited to the account of Viniod Kumar and Yogesh Trading Company, illegally and thereby complainant has been cheated. According to them, they have no concern with the five bankers cheques issued by the original O.P.No.1/respondent No.2 herein. Therefore they requested the complaint may be dismissed.

6.       The O.P.No.4/respondent No.3 herein had submitted in their reply that they can not be held responsible for loss of the instrument vide section 6 of Indian Post Act, 1898 and that complaint is also barred by limitation.

 7.     The Forum after hearing both the parties and considering evidence brought on record came to the conclusion that the complaint is barred by limitation as against the O.P.No.4/respondent No.3 Post Office herein as it is not filed within two years from the date 07/02/2007 on which the O.P.No.4 had intimated vide letter to the complainant about loss of the instrument in transit. Therefore the Forum dismissed the complaint as against O.P.No.4/respondent No.3 herein.

 8.       The Forum also dismissed the complaint as against original O.P.No.1/respondent No.2 herein on the ground that it has not rendered deficient service to the complainant.

9.      However the Forum observed in the impugned order that O.P.Nos.2 and 3/appellant Nos. 1 and 2, without proper verification of the scratches over the bankers cheques and without making proper enquiry honoured those bankers cheques illegally and therefore that constitutes deficiency in service on their part. Hence Forum directed the original O.P.Nos.2 and 3/appellants to pay the original complainant/respondent No.1 herein Rs.98,550/- within 30 day from the receipt of copy of that order and in case of default, the said amount will be payable with interest @ 12 % p.a. The Forum also directed the O.P.Nos.2 and 3/appellants herein to pay to the complainant/respondent No.1 herein Rs,10,000/- as compensation for physical and mental harassment and Rs.3000/- as cost of the complaint.

10.     As observed above, the O.P.Nos. 2 and 3 have filed this appeal. We have heard the learned Advocate Mr.C.B.Pande appearing for the appellants, learned Advocate Mr.A.P.J.P.Dube appearing for respondent No.1/original complainant and learned Advocate Mr.V.V.Narwadia appearing for respondent No.2. Respondent No.3 is already proceeded ex-parte as per order dated 30/03/2012.

11.    The three fold submission is made by learned Advocate of appellants. Firstly, there is no relationship of service provider and consumer in between the appellants and respondent No.1. Secondly, the bankers cheques were issued in accordance with at par facility and the appellants were required to honour the same, and thirdly the complaint was barred by limitation as it was not filed within the period of two years from the date 01/02/2007, on which letter was given by respondent No.2 to the respondent No.1/original complainant herein intimating him that five bankers cheques have been honoured on 12/12/2006 and 07/12/2007. Thus the learned Advocate of the appellants submitted that the Forum has not considered these material aspects in right perspectives and erred in partly allowing the complaint. He therefore requested that the complaint may be dismissed.

          He relied on the decision in the case of T.Seshaiah and Another……V/s…..Standard Chartered Bank and Another, 2010 NCJ 267 (NC). It is observed by the Hon’ble National Commission in the said case that mere filing of repeated representation does not extend the period of limitation.

12.   On the other hand the learned Advocate of original complainant/respondent No.1 supported the impugned order and submitted that when the five bankers cheques were lost in transit and they were then forged by writing the name of Vinod Kumar, and when there was no attesting signature at the place of forgery, the appellants ought to have dis-honoured those cheques and therefore the Forum has rightly held them responsible for payment of those bankers cheques by way of compensation to the complainant. According to him there is a relationship service provider and consumer in between the appellants and respondent No.1 as the appellants provided at par facility of bankers cheques to the respondent No.2 and accordingly the bankers cheques were issued by respondent No.1. He also submitted that the cause of action arose for the first time on 15/03/2010 when the complainant/respondent No.1 herein learnt the details of forgery as per letter dated 15/03/2010 issued by respondent No.2 to him. Therefore, according to him the complaint was not barred by limitation as filed on 28/06/2010. He therefore requested that the appeal may be dismissed. He relied on the observations made in the following cases.

a)  Sunil Mittal …..V/s….Vijaya Bank and Another, 2016 Law Suit (CO) 267, decided by Hon’ble National Commission on 12/02/2016. In that case the Bank was held responsible to compensate for the loss of Bank demand draft.

b)  State Bank of India ….v/s…. Jayashree Laxman Habbu, 2004(1) BCR 534, decided by Hon’ble Bombay High Court on 11/09/2003. In that case, the District Forum              had held that the Bank provided deficient service because of inordinate delay of about a month to credit into the account of complainant and awarded compensation of Rs.10,000/-. The Hon’ble Bombay High Court upheld the said decision in the said appeal.

c)  State Bank of India ….v/s….Jain Irrigation System Ltd., 1995(1) CPJ 136. It is observed by the Hon’ble  National Commission that if proper care had been taken, the Bank could have detected the forgery committed in the cheque and therefore Bank has been negligent in passing the cheque and has not exercised proper care and diligence.

13.     The learned Advocate of the respondent No.2 submitted that the complaint has been rightly dismissed as against the respondent No.2 herein.

14.      So far as the relationship of the service provider and consumer is concerned, we find that it exists in between the appellant and respondent No.1 herein since bankers cheques were issued by respondent No.2 as per facility provided by the appellants.

15.      Moreover the copies of the bankers cheques produced on record show that they were initially issued in the name of Ashok Kumar but they were subsequently forged by writing the name of Yogesh Treading Company on two cheques and by writing Vinod Kumar on three cheques. There is no counter signature at the place of changing the said name. The appellants honoured the said cheques.

16.      However we find that the original complainant/respondent No.1 got knowledge of clearance of all the five bankers cheques on 01/02/2007 when he received the copy of letter issued to him by the respondent No.2 herein. Moreover the complainant/respondent No.1 herein had also lodged report with the police on 06/02/2007 giving the details of all the five bankers cheques issued in the name of Ashok Kumar and about making a forgery on those cheques and payment of two bankers cheques in the name of Yogesh Treading Company and payment of remaining three bankers cheques in the name of Vinod Kumar of Muzaffarnagar. The copy of that report lodged with the police placed before us also shows that the accounts statement of Vinod Kumar and Yogesh Treading Company were also handed over alongwith that report to the police by the original complainant.

17.      Thus on 06/02/2007 when that report was lodged with the police, the original complainant/respondent No.1 herein was well aware of the fact that five bankers cheques were forged and that amount of those cheques were not paid to Ashok Kumar but were paid to Yogesh Treading Company and Vinod Kumar. Therefore the last cause of action arose on 06/02/2007 when the said report was lodged with the police by the original complainant on getting knowledge of forgery and making of payments to wrong persons. Thus the complaint ought to have been filed within two years from 06/02/2007 i.e. on or before 06/02/2009 as per provision of Section 24-A of Consumer Protection Act, 1986. However it was filed on 28/06/2010 i.e. beyond the period of two years. Hence it was barred by limitation.

18.      The complainant has relied on the letter dated 15/03/2010 written to him by the respondent No.2 Urban Co-operative Bank giving him the details of payment made by way of forgery. However the complainant had already that acknowledge on 06/02/2007 and on the basis of that acknowledge he had lodged report with the police on 06/02/2007. Hence the original complainant/ respondent No.1 herein can not take that benefit of that letter dated 15/03/2010 for showing that last cause of action arose on 15/03/2010 for filing the complaint.

19.      The Forum erred in holding that the cause of action arose on when the O.P.No.1/respondent No.2 herein gave the details of clearance of bankers cheques on 08/03/2010. Thus we find that aforesaid decisions relied on by learned Advocate of original complainant/respondent No.1 herein are not applicable to the facts and circumstances of the present case since they are not relating to the point of limitation involved in complaint of present case.

20.     We find that the complaint was barred by limitation as observed above. The Forum did not consider the issue of limitation in right perspective and erred in entertaining complaint and partly allowing it. Therefore the impugned order deserves to be set  aside on the sole ground that complaint was barred by limitation. Accordingly the following order is passed.        

              //   ORDER  //

1.      The appeal is allowed.
2.      The impugned order is set aside.
3.      The complaint stands dismissed.
4.       No order as to costs in appeal.
5.       The copy of order be furnished to both parties free of costs.