Date of filing: 10.02.2020
Date of Disposal: 30.05.2023
BEFORE THE III ADDITIONAL BANGALORE URBAN
DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, BENGALURU – 560 027.
DATED THIS THE 30TH DAY OF MAY, 2023
CONSUMER COMPLAINT NO.139/2020
PRESENT:
-
SRI.RAJU K.S,
SMT.REKHA SAYANNAVAR,:MEMBER
G.K. Shivanna,
S/o.late Kari Gowda,
Aged About 49 Years,
Residing at No.30,
Nethravathi Nilaya,
Ambalipura, Belandur Gate,
Sarjapura Road, Bangalore-560035.
(Rep by Sri. K.C. Viswanatha, Advocate)
- V/s -
1) The Manager,
ICICI Bank,
H.S.R. Layout Branch,
(Rep. by Sri. S. Ramakrishnan, Advocate)
2) The Manager,
South Indian Bank (SIB),
Sarjapura Road Branch,
(Rep. by Sri.Narayana Shenoy, Advocate)
//JUDGEMENT//
BY SRI. SHIVARAMA K, PRESIDENT
01. The complainant has filed this complaint on 10.02.2020 under section 12 of the Consumer Protection Act, 1986 seeking for a direction to opposite party No.1 and 2 to return the original cheque bearing No.106739 for a sum of Rs.5,00,000/- and direct the Opposite party No.1 to 3 to pay a sum of Rs.5,00,000/- with interest at the rate of 18% per annum from the date of complaint till realization and such other relief as this Commission deems fit in the circumstances of the case.
02. It is not in dispute that, the complainant owns an S.B. account at opposite party No.2-Bank. Further it is not in dispute that, on 13.05.2019 the complainant had presented the cheque bearing No.106739, dated: 25.02.2019, for a sum of Rs.5,00,000/- drawn on opposite party No.1 – Bank issued by one Sri.Wahengham Lalith Singh for encashment. Further it is not in dispute that, the said opposite party No.1 had issued an endorsement that, the cheque was returned “instrument reported lost in transit” and “the Drawers signature not as per mandate”.
03. It is the further case of the complainant that, the complainant cannot do anything against the drawer of the cheque since the original cheque has not been handed-over by the opposite party No.2-Bank. Hence the complainant was compelled to make many requests to the opposite parties by phone calls, but the opposite parties have given scant regard and deaf ears. Thereafter the complainant issued legal notice to return the original cheque. Even after service of legal notice, opposite party did not handover the cheque to the complainant. Hence the present complaint came to be filed.
04. It is the further case of the opposite party No.1 that, since the complainant does not have a Bank account with opposite party No.1 he cannot be a consumer under the provisions of Consumer Protection Act, 1986. Further opposite party No.1 had received physical cheque stated above from opposite party No.2 –Bank for clearance. Further after verifying it was found that, even though the mode of operation of the account was with the signatures of 03 persons the cheque was signed only by two of them, hence the instrument was returned by opposite party No.1-Bank to opposite party No.2. Further since opposite party No.1 could not trace the acknowledgment pertaining to return of cheque it has issued a letter to opposite party No.2-Bank dated: 30.05.2019 stating that, the cheque was lost in transit. Further since opposite party No.2-Bank did not share the same with the complainant, it amounts to negligence on the part of opposite party No.2-Bank. Further the complainant had remedy to initiate proceedings under civil law and criminal law i.e., under section 138 of N.I. Act and a copy of the instrument and a Bank endorsement was sufficient to prove and to establish the existence of the instrument. Hence, it is sought to dismiss the complaint.
05. It is the further case of the opposite party No.2 that, the instrument was said to be lost in the hands of opposite party No.1 and now it cannot be allowed to shift the liability on opposite party No.2 and opposite party No.1 did not return the original cheque upon its dishonour rather issued a letter dated: 30.05.2019 stating that, the original cheque has been lost. Further opposite party No.2 has handed-over the said letter issued by opposite party No.1-Bank to the complainant on 03.06.2019. Hence, it is sought to dismiss the complaint.
06. To prove the case, the complainant (PW-1) has filed affidavit in the form of his evidence in chief and got marked EX.P.1 to EX.P.9 documents. The authorized signatory of opposite party No.1 (RW-1) has filed affidavit in the form of his evidence in chief and got marked EX.R.1 and EX.R.2 documents.
07. Counsel for complainant has filed written arguments.
08. The points that would arise for consideration are as under:-
(1) Whether there is deficiency of service on the part of the opposite parties?
(2) Whether the complainant is entitle for the
relief sought ?
(3) What order ?
09. Our findings on the aforesaid points are as follows:-
POINT NO.1:- In affirmative
POINT NO.2:- Partly affirmative
POINT NO.3:- As per the final order
for the following:
REASONS
10. POINT NO.1:- The complainant (PW.1) and the authorized signatory of opposite party No.1 (RW.1) have reiterated the fact stated in their pleadings, in the affidavits filed in the form of their evidence in chief.
11. It is the contention of the learned counsel for the complainant that, the complainant without the original cheque cannot take any action against the drawer of the cheque in accordance with law as the opposite party No.1 has lost the cheque in transit. The complainant had also issued legal notice to opposite party vide EX.P.5 and EX.P.6. According to opposite party No.1 (RW-1) by way of abundant caution and to maintain goodwill, since the opposite party No.1 could not trace the acknowledgment pertaining to return of cheque, it has issued a letter stating that, the cheque lost in transit. Hence one thing is clear that, the cheque was lost in transit by opposite party No.1-Bank. It is the duty of the opposite party No.1-Bank to return the original cheque if the same was dishonoured. It is the contention of the learned counsel for the opposite party No.1 that, it has issued a letter to opposite party No.2 stating that, the cheque was lost in transit, but opposite party No.2 did not inform the same to the complainant. We feel since it is the duty of the opposite party No.1-Bank to return the cheque to the sender Bank in case the same has not been honoured. In the case on hand since the cheque has not been honoured it is the duty on the part of opposite party No.1-Bank to return the said cheque to opposite party No.2 and in-turn opposite party No.2 shall handover the said dishonoured cheque to the Drawee (complainant). Admittedly opposite party No.1 has failed to return the cheque rather it has issued a letter to opposite party No.2-Bank vide EX.P4 stating that, the instrument has been lost in transit and drawer signature does not tally. Further the complainant got issued legal notice vide EX.P.5 & 6. Since the instrument has been lost question of returning to opposite party No.2 and handing over the same by opposite party No.2 to the complainant does not arise. Further opposite party No.2 – Bank has consistently stating that, on 03.06.2019 it has handed-over the letter dated: 30.05.2019 given by opposite party No.1 to the complainant. Hence opposite party No.2 has did its duty and opposite party No.2 is not answerable to the grievance of the complainant. Hence we feel there is deficiency in service on the part of opposite party No.1-Bank since it has lost the cheque while in transit. Accordingly we answer this point in affirmative.
12. POINT NO.2:- The complainant claimed a direction to opposite party No.1 & 2 to return the original cheque No.106739 for an amount of Rs.5,00,000/- to the complainant. Since the same has been lost by the opposite party No.1 in transit, the direction cannot be issued. It could only be said that, in case the cheque has been traced, opposite party No.1 shall return the same to opposite party No.2 and it shall be handover to the complainant by opposite party No.2. It is the contention of the learned counsel for the complainant that, since the cheque has been lost in transit, the complainant cannot recover the amount covered in the cheque of Rs.5,00,000/-. We feel there is no merit in the said contention since action could be taken on the lost documents also. Further the complainant claimed a direction to the opposite party No.1 & 2 to pay a sum of Rs.5,00,000/- with interest. Admittedly the said cheque has not been honoured. Nothing has been debited from the account of the drawer of the cheque. The remedy to recover the cheque amount to the complainant is elsewhere and without an adjudication with regard to the amount due under the cheque, it cannot be directed the opposite party to pay the cheque amount. Hence opposite party No.1 & 2 cannot be directed to pay the cheque amount for the negligence caused by opposite party No.1-Bank. We feel opposite party No.1 shall pay a sum of Rs.5,000/- towards inconvenience caused to the complainant. Further the activity of the opposite party No.1 made the complainant to get issued the legal notice vide EX.P.5 & EX.P.6 and made the complainant to approach this Commission for the relief in question. Hence the complainant is entitled for a sum of Rs.5,000/- towards litigation cost. Accordingly we answer this point party in affirmative.
13. POINT NO.3:- In view of the discussion made above, we proceed to pass the following:-
ORDER
The complaint is allowed in part.
The opposite party No.1-Bank is directed to send back the lost cheque in case if it was traced to opposite party No.2-Bank and opposite party No.2-Bank shall in-turn handover the same to the complainant.
The opposite party No.1-Bank is directed to pay a sum of Rs.5,000/- towards damages caused and a sum of Rs.5,000/- towards litigation cost to the complainant.
The opposite party No.1-Bank shall comply the order within 30 days. In case, the opposite party No.1-Bank fails to comply the order within the said period, the above said amount of Rs.10,000/- carries interest at the rate of 9% p.a. from the date of order till realization.
Supply free copy of this order to both the parties and return extra copies of the pleading and evidence to the parties.
Applications pending, if any, stands disposed-off in terms of the aforesaid judgment.
(Dictated to the Stenographer, typed by him, the transcript corrected, revised and then pronounced in the open Commission on 30th Day of MAY 2023)
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
MEMBER MEMBER PRESIDENT
//ANNEXURE//
Witness examined for the complainant side:
Sri. G.K. Shivanna, the complainant (PW-1) has filed affidavit in the form of his evidence in chief.
Documents got marked for complainant side:
- Certified copy of the cheque bearing No.106738, dt.15.02.2019 of ICICI Bank for Rs.10,00,000/- - EX.P.1.
- Bank receipt dt.13.05.2019 – EX.P.2.
- Inward return (CTS) Memo dt.14.05.2019 – EX.P.3.
- Letter of OP-1 to OP-2 dt.30.05.2019 – EX.P.4.
- Legal notice dt.06.07.2019 to OP-1 – EX.P.5.
- Legal Notice dt.30.08.2019 to OP-2 – EX.P.6.
- Two postal receipts – EX.P.7 & EX.P.8.
- One postal acknowledgment – Ex.P.9.
Witness examined for the opposite party No.1 side:
Sri. Rahul Srivastava, Legal Manager in opposite party No.1 (RW-1) has filed affidavit in the form of his evidence in chief.
Documents got marked for the Opposite Party No.1 side:
1. Notarized copy of power of attorney dt.15.12.2020 – EX.R.1.
2. Xerox copy of letter dt.30.05.2019 issued to OP-2 – EX.R.2.
Witness examined for the opposite party No.2 side:
Documents got marked for the Opposite Party No.2 side:
- REKHA SAYANNAVAR) (RAJU K.S) (SHIVARAMA. K)
MEMBER MEMBER PRESIDENT
