State Consumer Disputes Redressal Commission
Ramkalyan Ramnarayan Dhokaria, vs Nagar Urban Co.Op. Bank Ltd.,And Other 4 on 8 February, 2010
Date of filing:05.02.2007 Date of order:08.02.2010 MAHARASHTRA STATE CONSUMER DISPUTES REDRESSAL COMMISSION, MUMBAI, CIRCUIT BENCH AT AURANGABAD . F.A. NO.: 94 OF 2007 IN COMPLAINT CASE NO. : 229 OF 2005 DISTRICT FORUM : AHMEDNAGAR. Ramkalyan Ramnarayan Dhokaria, R/o Chetna Hotel, Maliwada, Ahmednagar. APPELLANT (Org.Complainant) VERSUS 1. Nagar Urban Co.Op. Bank Ltd., Central bank Road, Ahmednagar. 2. The Oriental Bank of Commerce, Sewa Shakha Mumbai, Kamanwala Chambers, 1st floor P.M.Road, Fort, Mumbai 400 001. 3. Oriental Bank of Commerce, Branch Bada Padampura, At & Post Bada Padampura, TQ. Chakasu, Dist.Jaipur. 4. Shri.L.G.Meena, P.A.G.-66, authorized signatory Oriental Bank of Commerce, Branch Bada Padampura. 5. Sau.Sushila Ramesh Rawat, At Watika, Tq.Sanganer, Dist.Jaipur. RESPONDNETS (Org.Opponents) Coram : Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
Mrs.Uma S.Bora, Hon`ble Member.
Present : Adv.Shri.S.B.Mundada for appellant, None for respondent No.1 & 5, Adv.Shri.D.B.Hirawe for respondent No.2,3,4.
O R A L O R D E R Per Shri.S.G.Deshmukh, Hon`ble Presiding Judicial Member.
1. The present appeal is filed by original complainant against the judgment and order dated 22.01.2007 in complaint case No. 229/05 passed by District Forum, Ahmednagar.
2. Appellant/Org.Complainant`s case before the Forum is that, there was an agreement between him and respondent No.5 for sell of immovable property. It is contended that respondent No.5 had given D.D. of worth Rs.2,00,000/- in his favour drawn on Oriental Bank of Commerce Branch Mumbai. It is contended that complainant was having his account in respondent No.1 bank. It is contended that complainant presented the said draft in his account with respondent No.1. Draft amount was not credited to his account. It is contended that respondent No.1 informed the complainant on 26.5.2005 that the draft amount can not be credited to his account as draft is stolen. Complainant tried for draft amount but amount was not credited to his account by respondent No.1,2,3. It is contended that complainant made inquiry with respondent No.5. He was told by respondent No.5 that draft is original one and thus complainant approached the Forum against respondent No.1to 4.
3. Respondent No.1,3 & 4 appeared before the Forum and resisted the claim. It is contended that respondent No.1 had sent the said draft for collection of the amount to respondent No.2. It is contended that respondent No.5 had written letter to respondent No.3 & 4 that draft has been stolen and instructed to stop the payment and thus respondent No.2 sent draft to the respondent No.1. It is contended that draft amount is not returned to the respondent No.5 also. It is also contended that they are ready to act as per direction of the Forum.
4. Notice sent to respondent No.5 was returned unserved. Forum received written statement alongwith affidavit of respondent No.5 through post. It is contended by respondent No.5 that there was agreement between her and complainant about sell of immovable property. She had taken draft of Rs.2,00,000/- in the name of complainant and other draft also. Complainant was to execute sale deed in her favour. But same was not executed. It is contended that complainant took bag containing some drafts and other contents without knowledge of respondent No.5 from her house. It is contended that respondent No.5 filed complaint to the police station and intimated respondent No.3 to stop payment.
5. The Forum below after going through the papers and hearing the parties dismissed the complaint.
6. Being aggrieved by the said judgment and order passed by the District Forum, Ahmednagar, original complainant came in appeal.
7. Notices were issued to the respondents. Learned counsel Shri.D.B.Hirawe appeared on behalf of respondent No.2,3,4 , none appeared for respondent No.1 & 5.
Respondent No.2,3,4`s counsel filed written argument. We heard learned counsel Shri.S.B.Mundada for appellant and perused the arguments of respondent No.2,3 4. Learned counsel Shri.Mundada submitted that draft in favour of complainant drawn on respondent No.2 had been handed over to complainant by respondent No.5 and complainant had presented the same in his account in respondent No.1 Bank. Learned counsel submitted that there is no provision entitling drawee to issue instruction to stop payment to the bank. He submitted that it was incumbent on respondent No.2 to honour the draft on presentation. Learned counsel relied on Tatanagar Cold Storage Company Pvt.Ltd and another Vs- UCO Bank reported in SC & National Commission Consumer Law Cases(1996-2005) page 348 and T.M.Hussain Vs- State Bank of Travancore reported in II(2000) CPJ 185(Ker.).
8. We perused the papers and gave our anxious thoughts to the arguments put forth by the counsels. There is no dispute that the draft of Rs.2,00,000/- in the favour of complainant drawn on respondent No.2 had been obtained by respondent No.5.
According to respondent No.5 same was in respect of sell of immovable property. It is the contention of complainant that said draft was handed over to him by respondent No.5. There is no evidence to show that the drafts had been stolen by complainant from the custody of respondent No.5. No F.I.R. copy is brought on record. There is no dispute that said draft had been presented by complainant in his account with respondent No.1. There is also no dispute that respondent No.1 had sent draft for collection to respondent No.2. According to respondent No.1,3,4 that respondent No.5 had intimated respondent No.3 & 4 that the said draft is stolen draft and they were instructed to stop the payment and therefore accordingly memo was issued by respondent No.2 to respondent No.1 and thus amount could not be credited. In T.M. Hussain`s case State Commission, Kerala has observed that once draft have been delivered to the drawee or his agent purchaser is not entitled to issue instruction of stop payment of D.D. to the drawee.
9. In State Bank of India Vs- Muntha Laxmi Kumari reported in 2009(1) CPR 82(NC) the Hon`ble National Commission has held that where a cheque sent for collection was lost in transit, Bank could not be held liable for cheque amount. In absence of proof that cheque was misused causing loss to the payee consumer but bank would be liable to compensate for deficiency in service. In the instant case draft in favour of complainant drawn on respondent No.2 was presented by complainant in respondent No.1 bank. Respondent No.1 had sent the same to respondent No.2 for collection. Respondent No.1 was under obligation to pay amount of draft. Respondent No.2 ought not to have sent the draft back with memo draft stolen. It appears that respondent No.5 under pretext that draft is stolen informed respondent No.2,3 for stopping the payment. Copy of F.I.R. in respect of theft of draft has not been produced by respondent No.5. We have mentioned that when the draft has been delivered to the payee purchaser is not entitled to issue instruction to stop payment. Respondent No.3 is under obligation to pay amount of draft.
Respondent No.1,2,3 stopped payment only on the instruction of respondent No.5 which they should not have stopped the payment. It appears that payment has been stopped by respondent in collusion with respondent No.5 who had issued draft in favour of complainant. There is deficiency on the part of respondent No.1,2 and 3. Forum did not consider all these aspect and erred in dismissing the complaint. We are inclined to allow the appeal. We pass the following order.
O R D E R
1. Appeal is allowed.
2. The impugned judgment and order passed by the Forum is hereby quashed and set aside.
3. Respondent No.1,2 & 3 jointly and severally are directed to make the payment of Rs.2,00,000/- with interest @ 9% p.a. from 26.5.2005. They are also directed to pay Rs.5000/- towards mental agony and Rs.2000/- towards cost.
4. Copies of the order be sent to both the parties.
Mrs.Uma S.Bora S.G.Deshmukh, Member Presiding Judicial Member Mane