State Consumer Disputes Redressal Commission
The Chairman,Canara Bank,Bangalore,& ... vs Mr.K.George,Theni Dist. & Others . on 13 October, 2023
1
IN THE CIRCUIT BENCH OF THE TAMILNADU STATE CONSUMER
DISPUTES REDRESSAL COMMISSION, MADURAI.
Present: THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER
Date of appeal filed: 29.01.2014(F.A.No.118/2014) Date of appeal filed: 10.03.2014 (F.A.No.136/2014) F.A.No.118/2014 & F.A.No.136/2014 FRIDAY, THE 13rd DAY OF OCTOBER 2023.
In F.A.No.118/2014:
1. Canara Bank through its Chairman, Head Office, No.1/2, J.C. Road, Bangalore - 560 002. 1st Appellant/1st Opposite Party
2. The Regional Manager, Canara Bank, Circle Office, St.Marry Complex, East Veli Street, Madurai. 2nd Appellant/2nd Opposite Party
3. The Branch Manager, Canara Bank, Royappanpatti, Uthamapalayam Taluk, Theni District. 3rd Appellant/3rd Opposite Party
4. The Branch Manager, Canara Bank, Tiruppur Main Branch, Tiruppur, Tiruppur District. 4th Appellant/4th Opposite Party
-Vs-
1. K.George, S/o K.R.Kulanthai, Door No.180, SUM Palli Street, Royappanpatti, Theni District. 1 st Respondent/Complainant 2
2. Kotak Mahindra Bank Limited, No.27BKC, C27, G.Block, Bandra Kurla Complex, Bandra (E), Mumbai - 400 051. 2 nd Respondent/5th Opposite party
3. The Regional Manager, Kotak Mahindra Bank Limited, Regional Office, No.20, APEX Chamber, 3rd Floor, Sri Thyagaraya Road, T.Nagar, Chennai - 600 017. 3 rd Respondent/6th Opposite Party
4. The Branch Manager, Kotak Mahindra Bank Limited, No.1, Park Avenue, Kumarannagar, Tirupur - 641 603. 4 th Respondent/7th Opposite Party Counsel for Appellants-1to4/Opp.Parties-1to4 : M/s K.Muraleedharan, Advocate.
Counsel for Respondent-1/Complainant : Mr.A.Hajamohideen, Advocate. Counsel for Respondent-2/Opposite Party-5 : Served Called Absent. Counsel for Respondent-3/Opposite Party-6 : Mr.N.Vallinayagam, Advocate. Counsel for Respondent-4/Opposite Party-7 : Served Called Absent. In F.A.No.136/2014:
K.George, S/o K.R.Kulanthai, Door No.180, SUM Palli Street, Royappanpatti, Theni District. Appellant/Complainant
-Vs-
1. Canara Bank through its Chairman, Head Office, No.1/2, J.C. Road, Bangalore - 560 002. 1st Respondent/1st Opposite Party
2. The Regional Manager, Canara Bank, Circle Office, St.Marry Complex, East Veli Street, Madurai. 2nd Respondent/2nd Opposite Party
3. The Branch Manager, Canara Bank, Royappanpatti, Uthamapalayam Taluk, Theni District. 3rd Respondent/3rd Opposite Party 3
4. The Branch Manager, Canara Bank, Tiruppur Main Branch, Tiruppur, Tiruppur District. 4th Respondent/4th Opposite Party
5. ING Vysya Bank Limited, Represented through its Chairman, Head Office, No.22, M.G.Road, Bangalore - 560 001. 5th Respondent/5th Opposite Party
6. The Regional Manager, ING Vysya Bank Limited, Regional Office, 219, Arunachalam Road, D.B.road, R.S.Puram, Coimbatore - 641 002. 6th Respondent/6th Opposite Party
7. The Branch Manager, ING Vysya Bank Limited, Tirupur Branch, 2/3 Valippalayam, Tirupur - 641 601. 7th Respondent/7th Opposite Party Counsel for Appellant/Complainant : Mr. A.Hajamohideen, Advocate.
Counsel for Respondents-1to4/Opp.Parties-1to4 : M/s K.Muraleedharan,Advocate. Counsel for Respondents-5&7/Opp.Parties-5&7 : Mr.Venkatasubramanian, Advocate. Counsel for Respondent-6/Opposite Party-6 : Served Called Absent.
Aggrieved by the order passed by the District Consumer Disputes Redressal Commission, Theni made in C.C.No.62/2011, dated 24.12.2013, the complainant preferred the appeal in F.A.No.136/2014 and the opposite parties 1 to 4 preferred the appeal in F.A.No.118/2014. These two appeals are jointly heard on 28.08.2023 and disposed of by this.
Common ORDER THIRU.S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
1. The complainant's case :
The complainant one K.George, had an account with the third opposite party Canara Bank, at Royappanpatti Branch, Theni. One Andrew Xavier borrowed a loan from the complainant and to discharge the above loan he had issued a cheque dated 30.05.2010 of the 7th opposite party, Tirupur Branch, ING Vysys Bank Limited for an 4 amount of Rs.8,00,000/- . The first and second opposite parties are the Regional and Head office of third opposite party. The complainant presented the cheque on 26.11.2010 through his bank, the third opposite party and it was returned by the seventh opposite party as it is "Out of date". When he requested the third opposite party they did not give any satisfactory reply. The complainant on 22.01.2011 got information through Right to Information Act that his cheque was sent to fourth opposite party on 26.11.2010 and it was received by fourth opposite party on 27.11.2010. It was further revealed that fourth opposite party despatched the same on 29.11.2010 but it was returned on 30.11.2010. So both the payees bank Canara Bank and drawers bank ING Vysya Bank committed deficiency in service in not honouring the cheque within six months time which amounted to deficiency in service. Hence the complaint is filed seeking to direct the opposite parties 1 to 7 to pay cheque amount of Rs.8,00,000/- with 12% interest from 30.05.2010 to the complainant and Rs.50,000/- towards compensation for deficiency in service and Rs.50,000/- towards compensation for mental agony and Rs.10,000/- as costs of the proceedings.
2. The opposite parties 1 to 4 filed their written version stating that the bank was not deficient but the cheque was presented at the fag end of the limitation of six month time and the bank immediately sent the cheque for collection. Because of intervening holidays the branch at Tirupur sent the cheque on 29.11.2010, by the time six months period was over and there is no deficiency on their part. Hence the complaint is liable to be dismissed.
5
3. The seventh opposite party filed the written version stating that they are not service provider of the complainant and they did not receive any consideration from the complainant. The cheque was received by the bank only after the period of six months of date of drawn and hence they legally returned the cheque and there is no deficiency in service on their part. Hence the complaint is liable to be dismissed.
4. The District Commission after perusal of the affidavit, documents Exhibits A1 to A6, Exhibits B1 to B4, finally, partly allowed directing the opposite parties 1 to 4 to pay Rs.30,000/- towards compensation for deficiency in service and to pay Rs.20,000/- towards compensation for mental agony and also to pay Rs.5000/-as costs to the complainant. The complaint was dismissed as against the fifth to seventh opposite parties.
5. Aggrieved with the above order the complainant preferred the appeal in F.A.No.136/2014, claiming enhanced compensation and the opposite parties- 1to4/banks preferred the appeal in F.A.118/2014.
6. In this case, both sides filed their written arguments and this Commission heard the oral arguments of both sides.
7. Now the point for considerations is:
Whether the opposite parties/banks committed any deficiency in service?
8. Discussion on the Point: It is the submission of the learned counsel for the complainant that he presented the cheque dated 30.05.2010 issued by one Andrew Xavier for collection through the bank/the third opposite party on 26.11.2010 but the drawee's bank the seventh opposite party returned the cheque as "Out of date". So it is his contention that though he presented the cheque within 6 six months period due to delay presentation to the seventh opposite party and return by the seventh opposite party he sustained loss of the cheque amount and the loss was due to deficiency of service committed by the opposite parties.
9. It his further contention that though the District Commission correctly found that the opposite parties 1 to 4 have committed deficiency in service but awarded only very nominal amount towards compensation. The District Commission failed to award the cheque amount which was a financial loss to the complainant. So he prayed that the award amount can be enhanced and the opposite parties 5 to 7 are also held liable for the above deficiency. In his appeal the seventh opposite party name was not changed as Kodak Mahindra Bank Limited who took the business but in the connected appeal Kodak Mahindra Bank Limited name were included.
10. Similarly, the learned counsel for the opposite parties-1to4/Canara Bank submitted that the complainant presented the cheque only at the fag end of the validity and they sent the cheque for collection to their Tirupur Branch, on the date itself, and the Tirupur Branch also received the same on 27.11.2010 since on 28.11.2010 being holiday the cheque was sent to the seventh opposite party on 29.11.2010 and the seventh opposite party return the cheque on 30.11.2010 as out of date. So there is no deficiency on their part in taking process for collection of the amount. So they did not commit any deficiency and the order passed by the District commission is liable to be set aside. It is their further contention that the complainant failed to implead the above drawer of the cheque one Andrew Xavier as a party to the proceedings 7
11. This Commission perused their rival contention and the following facts are admitted:
● One Andrew Xavier issued a cheque drawn on seventh opposite party/ING Vysys Bank Limited, Tirupur Branch, dated 30.05.2010 for an amount of Rs.8,00,000/-.
● The complainant is a customer of third opposite party/Canara Bank, Royappanpatti Branch,Theni.
● The complainant presented the above cheque with the third opposite party/Canara bank on 26.11.2010.
● The above cheque was returned by the seventh opposite party on 30.11.2020 as "Out of Date" i.e., it was presented for collection with the bank after six months.
12. All the above factors are proved by both sides documents. In Ex.B2 corresponding to Ex.A6 the Canara Bank replied to 'Right to Information Act' question that the above cheque was despatched to their branch at Tirupur on the same date and it was received by the fourth opposite party Tirupur branch on 27.11.2010 (Saturday) and the next day on 28.11.2010 being a holiday it was presented for clearing to the seventh opposite party/bank, Tirupur Branch i.e., the drawers bank on 29.11.2010. But it was returned on 30.11.2010(Tuesday).
It may be true that the complainant presented the cheque dated 30.05.2010 only on 26.11.2010 i.e., fag end of six months period. But there is no duty cast upon the complainant to present the cheque at any particular period or the cheque has to 8 be presented well before closing of six months period. What is expected from the complainant is he has to present the cheque within the period of six months time to the drawer's bank, that is, here the seventh opposite bank
13. As a service provider of the complainant, the the third opposite party/bank is duty bound to realize the cheque amount when it is presented for collection. Otherwise, they can very well inform the complainant that the cheque was presented to them at the fag end of the limitation period and it is not possible for them to collect the above cheque amount within a period of six months which actually ended on 29.11.2010.
14. By Receiving the cheque on 26.11.2010, impliedly the bank took the responsibility of collecting the above cheque amount through their mechanism with the drawers bank. By this implied undertaking of service the third opposite party/bank is duty bound to discharge the above service to the satisfaction of the complainant. At the risk of repetition this Commission reiterated that as a Collection Agent the third opposite party/bank failed to inform the complainant that it is not possible for them to collect the above cheque amount within six months period and refused to receive the same. If they refused at the time of receiving the cheque the complainant ought to have work out his other remedies. But the third opposite party having received the cheque for collection they impliedly gave a hope to the complainant that they will realize the cheque amount. Now, they cannot say that because of the delay in transit they are unable to realize the amount and it is not their fault.
9
15. Moreover at what time the cheque was received on 26.11.2010 by the third opposite party, and what time it was received by the fourth opposite party on 27.11.2010 is not disclosed to this Commission . It may be true that 28.11.2010 is being a holiday but why they were not able to send the cheque for collection on 27.11.2010 itself was not at all disclosed. If the Canara Bank branch at Tirupur took little bit care in ascertaining the date of cheque and the validity period they can very well present the cheque for collection with the seventh opposite party who is having office in the same locality. Had it been presented on 27.11.2010 itself there won't be any possibility for returning by the seventh opposite party/bank. Suppose they have sent the cheque only on 29.11.2010 it ought to have reached the seventh opposite party on the date itself if it is sent through a messenger. Here the mode of senting the cheque to seventh opposite party was not disclosed. If the Commission assumes that the above cheque was presented on 29.11.2010 there won't be any possibility for the return of such cheque.
16. So the failure on the part of the third and fourth opposite party in not taking proper steps to realize the cheque amount, classified as deficiency in service only. Every customer of the bank expected a personal service and it is the duty of the bank to offer such personal service to each of it's customer. They cannot say that it is the normal practice to send the cheque through courier and there may be delay caused and there was time limit etc., Having accepted the service to do to a customer they cannot fail to discharge the same. On this aspect the finding of the District Commission is to be confirmed.
10
17. Similarly, the seventh opposite party did not do any service after receiving consideration from the complainant. So the seventh opposite party and Regional Head Office, fifth and sixth opposite parties did not commit any deficiency in service and they cannot be prosecuted before the Consumer Forum for any lapse on their part. It is true that the complainant failed to implead the drawer of the cheque one Andrew Xavier as a party to the proceedings. After all this is a consumer complaint alleging deficiency in service committed by the bank. The question before the Commission is whether the opposite parties committed deficiency in service or not. To decide the question the presence of drawer of the cheque is not necessary.
18. Similarly the District Commission did not order to pay the cheque amount to the consumer, and even this point was not found fault by this Commission. The complainant under Section 45A can very well get a duplicate cheque from his debtor by name Andrew Xaviour, or he can get another cheque for the above amount. The complainant also failed to prove that because of the transactions he is unable to recover the above amount by filing civil suit for the recovery of the above amount. The return of cheque did not preclude the complainant from realize the cheque amount through court of law. So the consumer Commission is not a Forum to realize or recover the cheque amount. On the other hand the consumer complaint on proof of deficiency of service is to be suitably compensated only.
19. In this aspect, the National Commission in State Bank of India .Vs. Muntha Lakshmi Kumari, I (2009) CPJ 198 (NC) has held the following:-
"Consumer Protection Act, 1986- Sections 2(1)(g) and 14(1)(d)- Banking and Financial Services- Cheque lost in 11 transit- Deficiency in service alleged- Payment of cheque amount directed- Hence appeal- Complainant failed to get duplicate cheque, in spite of being asked to do so- Cheque misused/encashed, not proved- Bank not liable to pay cheque amount- Order of State Commission set aside- Compensation for deficiency in service on part of Bank awarded." Further The National Commission in S. Ashok Kumar .Vs. Andhra Bank & Anr., III (2009) CPJ 333 has observed the following:
"Consumer Protection Act, 1986- Section 2(1)(g) - Negotiable Instruments Act, 1881- Section 45A- Banking and Financial Services- Cheque lost in transit - No steps taken under Section 45A, Negotiable Act, or approach proper Forum for recovery of amount- Complaint filed against bank- No deficiency in service could be attributed to bank for loss of cheque by courier service- Cheque amount cannot be recovered from bank- Compensation and cost awarded- Order upheld in appeal."12
20. On the same analogy in the present case, it is clear that the total amount of cheque cannot be paid by the appellant bank to the complainant. However, some compensation is to be awarded for the problem and harassment faced by the complainant due to negligence to some extent on the part of the appellant bank in not pursuing the matter, in a right perspective manner.
21. So, as per above Judgement the complainant is not entitled for the cheque amount but entitled only to just compensation. This Commission feels that the District Commission rightly fixed the compensation and there is no necessity either to reduce or enhance the same. So both the appeals are liable to be dismissed and the District Commission order is hereby confirmed without cost and answered the point accordingly.
22. In the result, F.A.No.118/2014:
1. The appeal is dismissed.
2. The order passed by the District Commission, Theni made in C.C.No.62/2011, dated 24.12.2013 is hereby confirmed.
3. There shall be no order as to costs in this appeal.
23. In the result, F.A.No.136/2014:
1. The appeal is dismissed.
2. The order passed by the District Commission, Theni made in C.C.No.62/2011, dated 24.12.2013 is hereby confirmed. 13
3. There shall be no order as to costs in this appeal.
Dictated to the Steno-typist transcribed and typed by her corrected and pronounced by us on this the 13rd day of October 2023.
Sd/-xxxxxxxxx S.KARUPPIAH, PRESIDING JUDICIAL MEMBER.
14Corrected