State Consumer Disputes Redressal Commission
The Nalgonda District Cooperative ... vs 01. Md. Baba Tajuddin, S/O Md. Fakeer ... on 21 October, 2013
A. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION : AT HYDERABAD FA 130/2013 against CC 11/2012 on the file of the District Consumer Forum, Nalgonda. Between : The Manager The Nalgonda District Cooperative Central Bank Ltd Nalgonda, Valigonda Branch, Valigonda village and Mandal Nalgonda district .. Appellant/second opposite aprty And 01. Md. Baba Tajuddin, s/o Md. Fakeer Mohammed Aged about 54 years, occ : employee in Excise Department R/o Ramannapet Village and mandal, Nalgonda District .. Respondent/complainant. 02. The Manager State Bank of Hyderabad, Nakkrekal Branch Nakkrekal Village and Mandal,-508 001 Nalgonda district .. Respondent/opposite party No. 1 Counsel for the Appellant : M/s. Amarnath Goud Thodupunuri Counsel for the Respondents : Mr. Vakkanti Narasimha Rao for R-1. Mr. B. Ramana Murthy for R-2. Coram ; Sri R. Lakshminarasimha Rao Honble Member
And Sri T. Ashok Kumar .. Honble Member Monday, the Twenty First Day of October Two Thousand Thirteen Oral Order : ( As per Sri T. Ashok Kumar , Honble Member ) ****
1. This is an appeal preferred by the second opposite party as against the orders dated 03.08.2012 in CC 11/2012 on the file of the District Consumer Forum, Nalgonda. For convenience sake, the parties as arrayed in the complaint are referred to as under :
2. The brief facts of the complaint are that the complainant is a close relative of one Adil Pasha and on account of such a relationship the complainant gave loan of Rs.60,000/- to the said Adil Pasha and necessary document was executed in favour of the complainant. on demand Adil pasha issued a cheque bearing No. 333237 dt. 28.10.2010 drawn on OP 2 Bank in discharge of the said loan. Then the complainant presented the said cheque dt 28.10.2010 in OP. 1 bank for collection where he had Account. In turn, OP 1 had sent the same to collection to OP 2 bank. After lapse of two months, 2nd OP returned the cheque to Op 1 on 14.1.2011 with an endorsement that funds were insufficient to honour the cheque and on the same day the complainant again re-presented the cheque with OP 1 and it was sent to 2nd Op for collection but no information was given to the complainant with regard to the said cheque. The 2nd OP had kept the cheque in its branch and when the complainant approached OP 2 he was threatened to compromise with Adil Pasha. Since the cheque was kept pending, the complainant lost opportunity of prosecuting Adil pasha under the provisions of 138 of NI Act for issuing cheque without sufficient funds. The complainant issued a legal notice to both the Ops and OP 2 gave a reply to the effect that on 2.2.2011 the said cheque was returned by ordinary post to OP.1. The said cheque did not reach OP 1 nor OP 1 informed about the dishonor of the cheque to the complainant. The said acts of Ops 1 and 2 amount to deficiency in service and hence the complaint to direct Ops 1 and 2 to pay a sum of Rs.60,000/- to the complainant towards the value of misplaced cheque and Rs.40,.000/- compensation for mental agony.
3. OP.1 filed written version resisting the complaint stating that on the complainant submitting subject cheque on 28.10.2010 it was forwarded to OP 2 and the second OP 2 returned back the cheque with endorsement of insufficient funds. Again, the complainant resubmitted the said cheque and it was sent to OP 2 by registered post and when the complainant approached OP 1 it made enquiries with OP 2 and on phone OP. 2 informed the OP 1 that the cheque was sent on 2.2.2011 but did not furnish the details of registered post or courier service . Officials of OP 1 personally approached OP 2 bank but they did not give any reply in the said context. Then the OP 2 suggested that a certificate will be given to the effect that the cheque was returned on 2.2.2011 enabling the customer to take further action and accordingly a letter was addressed to OP. 1 mentioning that the subject cheque was returned on .2.2.2011 by ordinary post for want of sufficient amount in the account of Adil Pasha. In turn OP 1 intimated the same to the complainant. subsequently, the complainant filed a complaint with banking ombudsman Hyderabad, RBI, and after enquiry the complaint was closed. The first opposite party discharged its functions and duties with reference to the subject cheque and did not render any deficient service and thus prayed to dismiss the complaint against it.
4. Second OP filed written version admitting receipt of subject cheque on the first occasion and its return with endorsement of insufficient funds and also admitted receipt of the same cheque on second occasion for collection and that the same was also returned to OP. 1 by ordinary post with an endorsement of insufficient funds and that OP. 2 did not render any deficient service and that the issuer of the cheque ought to have been made as party in the complaint but it was not so done and as such the complaint is liable to be dismissed on the ground of non-joinder of proper and necessary party and thus prayed to dismiss the complaint.
5 Complainant filed evidence affidavit reiterating his case as set out in the complaint and marked Ex. A1 to A11 on his behalf. Mr. P.B Prasad Branch Manager of OP. 1 filed his evidence affidavit deposing the defences set out by the OP.1 and he marked Ex. B 1 to B9. Ex. B10 to B-20 were marked on his behalf of OP. 2
6. Having heard both sides and considering the evidence on record, the District Forum allowed the complaint against OP. 2 directing it to deposit Rs.60,000/- in the Forum with interest @ 9% pa from the date of complaint till realization and also costs of Rs.2,000/- giving one months time for compliance and as against the OP 1 the complaint was dismissed but without costs.
7. Feeling aggrieved with the said order the unsuccessful second opposite party filed this appeal on several grounds and mainly contended that the complainant being close relative of Adil Pasha knowing fully well that the Account shows insufficient funds presented the subject cheque in OP 1 bank maliciously to create trouble to OP. 2 bank for extraneous consideration and the said conduct of the complainant shows that merely to extract money from OP. 2 bank and share the same among the complainant and the Adil Pasha it was filed and that when the cheque was returned to OP. 1 on 14.1.2011 with an endorsement that the funds are insufficient to honour the cheque, the complainant ought to have prosecuted Adil Pasha U/s. 138 of NI Act but instead of proceeding against him designed the complaint to assure expiry period of the mandatory cheque under the guise of getting share from Adil Pasha and that it is not at all mandatory for OP. 2 to give reply to the notice of the complainant as the subject cheque was returned to OP. 1 on 14.1.2011 with an endorsement that the funds were insufficient to honour the cheque and that there is frequent communication between Ops 1 and 2 either expressly or through telephonic conversation and OP. 2 did not render any deficient service and OP. 2 also promised to give a certificate to the effect that the cheque was returned on 2.2.2011 to enable the complainant to take further course of action and that non joinder of Adil Pasha is fatal to the case of the complainant and that instead of filing complaint U/s. 138 of NI Act purposely the present complaint was designed to trouble the second OP and thus prayed to allow the appeal and set aside the impugned order.
8. Heard Counsel for R-2. Written arguments have been filed by appellant/OP.2 and complainant/R1.
9. Now the point for consideration is whether the order of the District Forum is sustainable?
10. The complainant did not prefer any cross appeal as against the dismissal of the complaint as far as the claim against first opposite party/second respondent is concerned and thus the said order attained its finality.
11. There is no dispute that complainant presented the cheque bearing No. 333237 dt. 28.10.2010 with its Banker OP. 1 and in turn OP 1 forwarded the same to second opposite party for collection and that it was returned with an endorsement insufficient funds in the Account of Adil Pasha and later on again the same was presented with op 1 BANK for the second time to collect the funds and that OP 1 had forwarded the said cheque to the second OP and its receipt by OP. 2.
12. The grievance of the complainant is that the outcome of the presentation of the cheque for second time was not informed to him and thus Ops 1 and 2 rendered deficient service. The contention of OP 2 is that since there was no sufficient funds in the Account of Adil Pasha , the second cheque was also returned to OP 1 with such an endorsement but it was so sent by ordinary post. As rightly observed by the District Forum the cheque is a negotiable instrument and in other words money. OP. 1 pleaded that according to banking rules which are also applicable to second opposite party the cheques more than worth of Rs.10,000/- are to be sent by regd. Post or authorized approved courier and the said rule is also based on logic. Admittedly OP 2 did not send the cheque by registered post or courier service and no explanation much less satisfactory explanation was offered by second opposite party as to why the cheque was sent by ordinary post. It is not in dispute that the said cheque and endorsement did not reach OP.1 and the complainant. Merely because there were no funds in the Account of Adil Pasha it does not diminish the value of the cheque because on return of the cheque with such endorsement of insufficient funds the complainant has every right to again submit the same for payment or prosecute the said Adil Pasha U/s. 138 of NI Act and the option is with the complainant in the said context. Why the cheque was retained for two months with OP 2 when it was sent for collection for the first time has not been explained. May be to give some more rope the complainant again sent the cheque for collection after its return for the first time and therefore we cannot find fault with him in the said context because he has option either to file Criminal complaint or represent the cheque for realization of money In the written version OP. 2 did not plead that being close relative of Adil Pasha knowing fully well that the Account shows insufficient funds presented the cheque in OP 1 bank maliciously to create trouble to second opposite party bank for extraneous consideration and it was so designed in the grounds of appeal and as such no credence need to; be given for it and to hold that the conduct of the complainant was merely to extract money from OP. 2. Unless the bounced cheque is filed it is difficult to seek conviction in the complaint U/s. 138 of NI Act. Therefore, the offer of second opposite party if any to give a certificate to the effect that the cheque was returned on 2.2.2011 with an endorsement that there were no sufficient funds could not be appreciated in favour of Op. 2. In the circumstances of the case, the said Adil Pasha is not a necessary party in the Consumer complaint because no relief is claimed against him in the present complaint. Sending of the cheque by second opposite party by way of ordinary post to the first OP certainly amount to gross negligence and thus there is no hesitation for this Commission also to hold that OP. 2 rendered deficiency service. In a recent decision reported in II (2012) CPJ 370 (NC) between ICICI Bank Vs. Sonne Gouda and others, in similar circumstances, the Honble National Commission held that the absence on the part of the banker to return the cheque with dishonoured endorsement has incapacitated the complainant therein to present the cheque once again and initiate proceedings U/s. 138 of NI Act to prosecute the drawer of the cheque and thus awarded entire amount of the cheque as compensation to the complainant against the erring bank and the said decision supports the case of the complainant. For the fault committed by second opposite party the complainant lost his right to file complaint against the drawer of the cheque U/s. 138 of NI Act. The District Forum discussed all the said aspects and rightly allowed the complaint against the second opposite party. Absolutely there are no merits in the appeal and as such the appeal is liable to be dismissed confirming the order of the District Forum.
13. In the result, the appeal is dismissed confirming the order of the District Forum. There shall be no order as to costs in the Appeal.
MEMBER MEMBER DATED :
21.10.2013