State Consumer Disputes Redressal Commission
Branch Manager, Syndicate Bank, ... vs Anil Kumar Jain & Another on 30 December, 2014
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, UTTARAKHAND, DEHRADUN
FIRST APPEAL NO. 204 / 2010
Branch Manager
Syndicate Bank, Branch Kankhal, Haridwar
......Appellant / Opposite Party No. 1
Versus
1. Sh. Anil Kumar Jain
R/o Vishnu Garden, Kankhal, Haridwar
......Respondent No. 1/ Complainant
2. Branch Manager
Union Bank of India, Muni Ki-Reti, Tehri Garhwal
......Respondent No. 2/ Opposite Party No. 2
Mr. Deepak Ahluwalia, Learned Counsel for the Appellant
None for the Respondent Nos. 1 & 2
Coram: Hon'ble Mr. Justice B.C. Kandpal, President
Mr. D.K. Tyagi, H.J.S., Member
Mrs. Veena Sharma, Member
Dated: 30/12/2014
ORDER
(Per: Mr. D.K. Tyagi, Member):
This is an appeal, under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 01.06.2010 passed by the District Forum, Haridwar in consumer complaint No. 177 of 2009; Sh. Anil Kumar Jain vs. Syndicate Bank, Branch Kankhal, Haridwar and another. By the impugned order, the District Forum has allowed the consumer complaint and directed the opposite parties-banks to pay the amount of cheque and also Rs. 5,000/- towards damages to the complainant.
2. Briefly stated the facts of the case, as mentioned in the consumer complaint, are that the complainant's savings bank account No. 8732/220/30366 is running with the opposite party No. 1-Syndicate Bank, Branch Kankhal, Haridwar. Sh. Anil Kumar Jain-complainant presented a 2 cheque No. 152466 of Union Bank of India, Tehri Garhwal-opposite party No. 2 to the opposite party No. 1 for collection, but he has not received any payment in this regard so far. The complainant visited several times in the bank-opposite party No. 1, but the bank has neither paid the amount of cheque nor gave any information about the said cheque to the complainant. Later on opposite party No. 1 advised the complainant to visit the opposite party No. 2 and enquire about the said cheque. The complainant visited the opposite party No. 2, but the bank did not pay any heed to the complainant and advised him to go to his banker, where he presented the said cheque. The complainant visited in the offices of the opposite party Nos. 1 & 2 several times, even then he did not get payment of cheque and the opposite parties did not give any information about the cheque. This conduct of the banks-opposite party Nos. 1 & 2 amounts to deficiency in service, which is in the jurisdiction of the District Forum, Haridwar, therefore, the complainant filed a consumer complaint before the District Forum, Haridwar.
3. The opposite party No. 1 filed written statement before the District Forum and pleaded that the bank neither charge any service charge regarding cheque No. 152466 nor any such demand was made. Therefore, there is no deficiency in service on the part of the opposite party No. 1 and the consumer complaint does not come within the ambit of provisions of Consumer Protection Act, 1986 and legally not maintainable. The complainant has no cause of action against the opposite party No. 1-bank and no mental or financial loss has been committed to the complainant. The opposite party No. 1 has admitted in the written statement that the complainant presented the aforesaid cheque in the bank on 30.10.2007 for collection of money from Union Bank of India, Tehri Garhwal-opposite party No. 2. The opposite party No. 1 bank has pleaded that the aforesaid cheque of the complainant was sent to the opposite party No. 2 at the risk and consent of the complainant for clearing, but despite several requests and reminders dated 28.12.07, 22.01.08, 22.02.08 and 02.05.08 and also after due information to the Regional Office of the opposite party No. 2, 3 they neither replied the letters nor issued any demand-draft or cheque. There is no irregularity and illegality and deficiency in service on the part of opposite party No. 1 bank. The opposite party No. 1 apprised about the correspondence to the complainant time to time. It is wrong to say that the complainant suffered mental and financial loss due to the conduct of opposite party No. 1 bank, rather the opposite party No. 1 took immediate action. As oral and voluminous documentary evidence is needed to decide the matter, therefore, this matter can be tried in Civil Court only.
4. From the perusal of the record of the District Forum, Haridwar, it is evident that the opposite party No. 2-Union Bank of India has also filed written statement/objections before the District Forum and pleaded that opposite party No. 2 received a cheque from opposite party No. 1- Syndicate Bank and its clearance was sent by the opposite party No. 2 through courier service on 20.11.2007 to the opposite party No. 1. The opposite party No. 2 has also filed certified copy of P.O.D., i.e. copy of courier's receipt with the written statement alongwith an affidavit of Smt. Vibha Joshi, Branch Manager of Union Bank of India, Tehri Garhwal- opposite party No. 2.
5. The District Forum on an appreciation of the material on record, allowed the consumer complaint vide its order dated 01.06.2010. Aggrieved by the said order, the opposite party No. 1-appellant has filed the present appeal.
6. We have heard learned counsel for the appellant and perused the record. We have also perused the written arguments filed by the complainant-respondent No. 1 Sh. Anil Kumar Jain. None has appeared on behalf of the respondent Nos. 1 & 2.
7. There is no dispute with regard to the fact that the respondent No. 1- complainant presented a cheque No. 152466 on 30.10.2007 for a sum of Rs. 10,000/- with the appellant-opposite party No. 1. There is also no dispute that the appellant-Syndicate Bank has forwarded the aforesaid 4 cheque of the complainant for clearance to respondent No. 2-opposite party No. 2 Union Bank of India, Tehri Garhwal.
8. Learned counsel for the appellant has submitted that the cheque presented by the respondent No. 1 in the appellant-bank was forwarded to the respondent No. 2 for clearance, but respondent No. 2 has not given any information about the said cheque. Learned counsel also submitted that regarding the complainant's cheque, the appellant bank had sent four reminders to the respondent No. 2, thus, there is no inaction and no deficiency in service on the part of appellant, because respondent No. 2 has not sent any reply or cheque to the appellant.
9. Respondent No. 1-complainant has filed written arguments before this Commission and pleaded in support of his complaint that he has presented a cheque No. 152466 in his savings bank account No. 8732/220/30366 on 30.10.2007 for payment to the appellant, but the appellant bank did not made any payment of his cheque amount to him. Respondent No. 1 visited several times in the bank, but the appellant bank did not give any satisfactory answer to him about the payment of cheque. The appellant bank advised respondent No. 1 to visit the respondent No. 2 bank and on advice the respondent No. 1 visited the respondent No. 2 bank, where no heed was paid to him and advised him to go to the appellant bank. Respondent No. 1 visited both the banks, but both the banks did not give him any information about the cheque till date. This shows the deficiency in service on the part of the appellant as well as respondent No.
2. As no payment of cheque amount received by the respondent No. 1, therefore, it amounts to misappropriation of money, for which the respondent No. 1 suffered mental agony as well as financial loss for last more than three years. None has appeared for respondent No. 2 for oral submissions.
10. The respondent No. 1 Sh. Anil Kumar Jain presented a cheque of Rs. 10,000/- with the appellant bank on 30.10.2007 for encashment/ collection, but the appellant bank did not receive the amount of the cheque 5 till date. Learned counsel for the appellant has argued that the appellant bank had merely acted as an agent of respondent No. 1 and had submitted the cheque for realization immediately and since the amount of the said cheque was not received despite reminders and the appellant bank neither received the amount of said cheque nor the cheque was returned hence as no amount under the cheque having been received by the appellant bank, no amount could be credited to the account of respondent No. 1.
11. Contrary to it respondent No. 2 in its written statement/objections, filed before the District Forum, Haridwar, has categorically stated that the said cheque of respondent No.1-complainant, which was sent by the appellant bank to the respondent No. 2 for clearance, was sent to the appellant bank through courier service on 20.11.2007. Certified copy of P.O.D./courier's receipt (Paper No. 13/3 on record of District Forum) has also been filed alongwith the affidavit of Smt. Vibha Joshi, the then Branch Manager of Union Bank of India, Tehri Garhwal-respondent No. 2. From the perusal of said P.O.D./courier's receipt dated 20.11.2007, it is evident that the respondent No. 2 bank had sent clearance of the cheque which is supported by the affidavit of Smt. Vibha Joshi, Branch Manager of respondent No. 2 bank (Paper Nos. 13/1 to 13/2 on record of District Forum). The appellant bank sent reminders dated 28.12.07, 22.01.08, 22.02.08 and also a letter dated 02.05.08 (Paper Nos. 19/3 to 19/6 on record of District Forum) to the respondent No. 2 bank, but the appellant bank as well as respondent No. 1-complainant have not controverted the facts of the written statement as well as affidavit of Smt. Vibha Joshi, Branch Manager of respondent No. 2 bank by filing replication by the complainant or additional written statement by the appellant bank before the District Forum. This appears that the clearance of the said cheque sent by the respondent No. 2 has been received in the appellant bank which either may be misplaced or lost, resulting non-payment of the amount of cheque in the account of respondent No. 1.
12. Learned counsel for the appellant has cited the following decisions:-
61. Canara Bank vs. Sudhir Ahuja; I (2007) CPJ 1 (NC)
2. HDFC Bank Limited vs. Sachit Kumar; III (2013) CPJ 5A (CN) (Punj.)
13. In the case of Canara Bank vs. Sudhir Ahuja (supra), the Hon'ble National Commission has held that in case of cheque lost in transit, neither amount credited nor cheque returned, deficiency in service proved. The bank is liable to pay some amount of compensation and not entire amount of cheque. Order of State Commission directing opposite party to pay entire cheque amount not legally sustainable. The opposite party liable to pay Rs. 5,000/- as compensation. In the case of HDFC Bank Limited vs. Sachit Kumar (supra), the Hon'ble Punjab State Commission, Chandigarh has held that in case of cheque lost during transaction and cheque amount and compensation sought, bank to whom a cheque is presented, if lost during transaction then bank is liable to pay compensation only and not cheque amount.
14. In the present case, the cheque has been presented by the complainant to the appellant-Syndicate Bank, who forwarded the cheque for clearance/collection and the other bank cleared the cheque and sent back clearance of said cheque to the appellant bank. Therefore, with due respect to the Hon'ble National Commission and Punjab State Commission, Chandigarh, these citations are only partly applicable in this case. The appellant to whom a cheque was presented and cheque was cleared by the other bank, then deficiency in service is proved against the appellant. Therefore, the appellant is liable to pay the cheque amount received after clearance from the respondent No. 2 bank alongwith compensation.
15. The District Forum, Haridwar has not properly considered the facts and circumstances of the case and has erred in allowing the consumer complaint per impugned order against the opposite party No. 2-respondent No. 2-Union Bank of India, Muni Ki-Reti, Tehri Garhwal.
716. For the reasons aforesaid, the appeal is dismissed. Impugned order dated 01.06.2010 passed by the District Forum, Haridwar is modified to the extent that the appellant-Syndicate Bank, Branch Kankhal, Haridwar is directed to pay the amount of cheque No. 152466 within one month from the date of order and Rs. 2,500/- towards damages to the respondent No. 1- complainant. No order as to costs.
(MRS. VEENA SHARMA) (D.K. TYAGI) (JUSTICE B.C. KANDPAL)