State Consumer Disputes Redressal Commission
The Oriental Bank Of Commerce vs M/S Surya Agro Industries on 29 July, 2013
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.234 of 2009.
Date of Institution: 27.02.2009.
Date of Decision: 29.07.2013.
The Oriental Bank of Commerce, a body corporate, constituted under
Banking Companies (Acquisition and Transfer of Undertaking) Act,
1980, having its Head Office at E-Block, Connaught Place, New Delhi
and a branch office amongst other places at Bhikhi, Tehsil and District
Mansa, through its Manager/Principal Officer of the bank, duly
Constituted Attorney of the bank, Sh. Abhimanyu, Manager, Bhikhi,
Tehsil and District Mansa, Punjab.
.....Appellant.
Versus
M/s Surya Agro Industries, Barnala Road, Bhikhi, Tehsil and District
Mansa.
...Respondent.
First Appeal against the order dated
28.01.2009 of the District Consumer
Disputes Redressal Forum, Mansa.
Before:-
Shri Inderjit Kaushik, Presiding Judicial Member.
Shri Vinod Kumar Gupta, Member.
Present:- Sh. Mohinder Singh, Advocate, counsel for the appellant.
None for the respondent.
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INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER:-
The Oriental Bank of Commerce, appellant/opposite party (In short "the appellant") has filed this appeal against the order dated 28.01.2009 passed by the learned District Consumer Disputes Redressal Forum, Mansa (in short "the District Forum").First Appeal No.234 of 2009 2
2. Facts in brief are that M/s Surya Agro Industries, respondent/complainant (hereinafter called as "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, making the narrations that the respondent opened a Current Account No.100100 with the appellant. The respondent is running the business of general merchants at Bhikhi. The respondent was appointed as stockiest of M/s Shammi Agro Industries, Village & Post Office, Sangnai, Tehsil Amb, District Una in the State of Himachal Pradesh, for the sale of toffees etc. The said firm was to pay Rs.1.95 lacs to the respondent as on 21.10.2006 and in order to discharge the said liability, the said firm issued three cheques bearing no.820785 dated 23.10.2006 for Rs.20,000/-, no.820784 dated 04.11.2006 for Rs.25,000/- and no.820757 dated 15.01.2007 for Rs.1.50 lacs, drawn on Punjab National Bank, Gagret, District Una.
3. The cheque bearing No.820757 dated 15.01.2007 for Rs.1.50 lacs was deposited by the respondent for collection of the amount from the banker of the drawer on 03.07.2007. The said cheque was valid upto 14.07.2007. The appellant informed the respondent on 31.07.2007 about dishonouring of the said cheque by the bankers of M/s Shammi Agro Industries and a memo dated 24.07.2007 was attached. The respondent approached the officials of the appellant and came to know that the cheque was sent for collection of the amount through registered post on 18.07.2007 to bankers of the respondent and there is deficiency in service on the part of the appellant, who also debited a sum of Rs.545/- in the account of the respondent on account of dishonouring of the cheque. The respondent suffered loss of Rs.1.50 lacs due to late presentation of the cheque for collection of the amount First Appeal No.234 of 2009 3 by the appellant and also suffered mental tension, physical harassment and is entitled to compensation of Rs.50,000/- in addition to refund Rs.545/- and Rs.1,000/- as litigation expenses. The prayer was accordingly made.
4. In the written version filed on behalf of the appellant, preliminary objections were raised that the respondent has no cause of action to file the complaint and is not a consumer of the appellant. The complaint is bad for non-joinder of necessary parties. The respondent has concealed the material facts from the District Forum and has not come to the District Forum with clean hands. The complaint has been filed on frivolous grounds and the appellant is entitled to special costs of Rs.10,000/-. The District Forum has no jurisdiction. There is no deficiency in service on the part of the bank. The cheque in question otherwise could not be encashed as there was no sufficient balance in the account of M/s Shammi Agro Industries. The respondent is having alternative remedy as provided under the Negotiable Instruments Act. The respondent could have approached the drawer for issuance of the duplicate cheque and in case of refusal, he could be compelled by a court of law. The respondent itself was negligent in keeping and retaining the cheque for such a long period and presenting the same at the last moment. At the time of presentation of the cheque in question, there was no sufficient balance in the account of M/s Shammi Agro Industries and the complaint is not maintainable.
5. On merits, it was admitted that the respondent firm is having a Current Account with the appellant bank, but the respondent is not a consumer under the Act. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the First Appeal No.234 of 2009 4 complaint, it was prayed that the complaint may be dismissed with costs.
7. Parties led evidence in support of their respective contentions by way of affidavits and documents.
8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that as per memo Ex.C-3, the cheque in question was dishonoured with the remarks that it has become outdated, because it is not even presented within the period of validity. Since the cheque has not been dishonoured due to insufficient funds, therefore, the relief to the respondent cannot be denied merely because the earlier two cheques have been dishonoured by the banker of the drawer and he has filed a complaint u/s 138 of the Negotiable Instruments Act. The appellant cannot escape the liability and is liable to make good the loss suffered by the respondent due to late presentation of the cheque, if any, because the complaint u/s 138 of Negotiable Instruments Act is not maintainable if the cheque is dishonoured by the banker of the drawer, on the ground that it has been presented after the expiry date of validity. The right of the respondent to recover the amount of the cheque may be frustrated if the civil suit fails on any technical ground, or drawer is declared insolvent. The appellant cannot escape the liability to compensate the respondent due to pecuniary loss caused to him due to deficiency in service on its part. The complaint was allowed and the appellant was directed to pay Rs.1.50 lacs to the respondent for deficiency in service along with interest @ 9% p.a. from the date of filing of the complaint i.e. 03.09.2007 till realization and Rs.1,000/- as costs. First Appeal No.234 of 2009 5
9. Aggrieved by the impugned order dated 28.01.2009, the appellant has come up in appeal.
10. We have gone through the pleadings of the parties, perused the record of the learned District Forum and have heard the arguments advanced by the learned counsel for the appellant.
11. Neither the counsel for the respondent nor anybody else on its behalf appeared at the time of arguments.
12. Learned counsel for the appellant contended that the District Forum has allowed the cheque amount which was not presented in time, because the respondent firm itself presented the cheque late and there was no fault of the appellant bank. It has been further contended that even if the cheque is lost by the bank, even then the amount of cheque is not payable, but the compensation can be granted. It has been argued that in the present case, the cheque was sent to the drawer bank well within the validity period, but it reached late and the validity period expired and for that, the appellant bank cannot be fastened with the liability of the cheque amount. The order passed by the District Forum is against the law and the same is liable to be set aside.
13. We have considered the submissions advanced on behalf of the appellant and have thoroughly scanned the entire record and other material placed on the file.
14. The cheque Ex.C-5 dated 15.01.2007 was presented by the respondent to the appellant bank and the appellant bank sent the same to Punjab National Bank, Gagret, Distt. Una (HP), but the same was received back with the memo 'Instruments outdated'. Earlier also, two cheque were sent by the respondent, but the same were dishonoured and for the same, the complaints u/s 138 of the First Appeal No.234 of 2009 6 Negotiable Instruments Act Ex.OP-4 and Ex.OP-5 were filed, but in the present case, no complaint could be filed as it was not dishonoured. The appellant bank has not placed on record any document to prove as to when the cheque was sent to the Punjab National Bank for collection and who delayed the sending of the cheque and ultimately, the validity period of the cheque expired and it was sent back with remarks 'it is outdated'. There is deficiency in service on the part of the appellant bank, but as per the settled law, for the deficiency in service on the part of the appellant, the cheque amount cannot be ordered to be paid. Even in some cases, the cheque is lost and in those cases also, the amount of the cheque is not directed to be paid, only the compensation is paid. Sending of the cheque late as well as the loss of the cheque are almost on same footing and reflect the deficiency in service on the part of the appellant, but the appellant bank cannot be held to pay the cheque amount and is liable to pay only the compensation. We are fortified in this respect from the decision of the Hon'ble National Commission in case "State Bank of Patiala Vs Vishwas Ahula", 2007(1) ISJ (Banking)-432(NC) in which in Para- 3(relevant portion), it was observed as follows:-
"Ratio in RP No.2510 of 2002 'State Bank of Patiala Vs Rajender Lal & Anr.", decided on 13.05.2003(NC) is that the bank cannot be made to pay the entire amount of cheque if it is legally open to the complainant to initiate civil/criminal action based on the cheque against drawer and bank is liable only to pay reasonable compensation to the complainant".
15. In view of above discussion and the law laid down, the order passed by the District Forum, directing the appellant to pay the cheque amount of Rs.1.50 lacs along with interest is liable to be set aside.
First Appeal No.234 of 2009 7
16. Accordingly, the appeal is partly accepted and the impugned order under appeal dated 28.01.2009 passed by the District Forum, directing the appellant to pay Rs.1.50 lacs along with interest @ 9% p.a. is set aside. However, the appellant is directed to pay Rs.50,000/- as compensation in lumpsum to the respondent and Rs.10,000/- as litigation expenses. With this modification, the appeal is disposed of and the remaining part of the impugned order is affirmed and upheld.
17. The appellant had deposited an amount of Rs.25,000/- with this Commission at the time of filing of the appeal. This amount with interest accrued thereon, if any, be remitted by the registry to the respondent/complainant by way of a crossed cheque/demand draft after the expiry of 45 days under intimation to the learned District Forum and to the appellant.
18. Remaining amount as per this order shall be paid by the appellant to the respondent/complainant within 45 days of the receipt of copy of the order.
19. The arguments in this appeal were heard on 22.07.2013 and the order was reserved. Now the order be communicated to the parties.
20. The appeal could not be decided within the stipulated timeframe due to heavy pendency of court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member July 29, 2013.
(Gurmeet S)