State Consumer Disputes Redressal Commission
State Bank Of India. & Anr. vs Sh. Keshav Thakur. on 18 April, 2019
H. P. STATE CONSUMER DISPUTES REDRESSAL
COMMISSION SHIMLA
First Appeal No. : 123/2018
Date of Presentation: 18.05.2018
Order Reserved on : 12.12.2018
Date of Order : 18.04.2019
......
1. State Bank of India (through its Branch Manager) Bhojpur
Branch Sunder Nagar District Mandi H.P.
...... Appellant/Opposite Party No.2
2. State Bank of India (through its Branch Manager)
C.C.P.C. 11 Sansad Marg New Delhi-1.
...... Appellant/Opposite Party No.1
Versus
Keshav Thakur son of Shri Manohar Lal Village Dharnda Post
Office Meramasit Tehsil Sunder Nagar District Mandi H.P.
......Respondent/Complainant
Coram
Hon'ble Justice P.S. Rana (R) President
Hon'ble Mr. Vijay Pal Khachi Member
Hon'ble Ms. Sunita Sharma Member
Whether approved for reporting?1 Yes.
For Appellant s : Mr. Arvind Sharma Advocate.
For Respondent : Mr. Kirti Thakur vice Mr. Raj Negi
Advocate.
JUSTICE P.S. RANA (R) PRESIDENT:
O R D E R :-
1. Present appeal is filed under section 15 of Consumer Protection Act 1986 against order dated 17.04. 1 Whether reporters of the local papers may be allowed to see the order? Yes.
State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 2018 passed by Learned District Forum in consumer complaint No.46/2017 titled Keshav Thakur Versus State Bank of India & Anr.
Brief facts of consumer complaint:
2. Sh. Keshav Thakur complainant filed consumer complaint under section 12 of Consumer Protection Act 1986 pleaded therein that one Shri Tushar Chaudhary issued cheque No.029689 to complainant for amount of Rs.200000/- (Two lac) which was payable by ICICI Bank Ltd. Sushant Lok Branch Gurgaon. It is pleaded that complainant presented the cheque to State Bank of India Bhojpur Branch Sunder Nagar District Mandi H.P for collection. It is pleaded that cheque in question was sent by opposite party No.2 to opposite party No.1 for collection on dated 03.04.2016 to its branch situated at Delhi. It is pleaded that cheque in question reached in branch of opposite party No.1 on dated 11.04.2016. It is pleaded that on dated 18.04.2018 opposite party No.1 rejected the cheque on the ground that cheque was outdated despite the fact that cheque reached in the office of opposite party No.1 on dated 11.04.2016 seven days prior to validity date. It is pleaded that opposite parties illegally and negligently withheld the cheque for seven days and did not present the cheque for encashment to drawee bank i.e. ICICI Bank Gurgaon. It is pleaded that due to deficiency in service on the part of opposite parties complainant could not sought 2 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 relief under section 138 of Negotiable Instruments Act 1881. Complainant sought relief of Rs.200000/-(Two lac) alongwith interest @ 12% per annum from the date of dishonour of cheque. In addition complainant sought relief of compensation to the tune of Rs.30000/-(Thirty thousand) for mental agony and harassment. In addition complainant sought relief of payment of Rs.20000/-(Twenty thousand) on account of litigation costs. Prayer for acceptance of consumer complaint sought.
3. Per contra version filed on behalf of opposite parties pleaded therein that ICICI Bank Branch Sushant Lok Gurgaon has closed the account of Sh. Tushar Chaudhary drawer on dated 17.11.2011 and same fact was informed to complainant when earlier cheques were dishonoured. It is pleaded that complainant has no cause of action. It is pleaded that complicated questions of facts and laws are involved in the present matter and complainant be relegated to civil court. It is pleaded that opposite parties did not commit any deficiency in service. Prayer for dismissal of consumer complaint sought.
4. Complainant filed rejoinder and reasserted the allegations mentioned in the complaint. Learned District Forum ordered opposite parties jointly and severally to pay a sum of Rs.50000/-(Fifty thousand) to complainant alongwith interest @ 9% per annum from the date of complaint till 3 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 payment. Learned District Forum further ordered that in addition opposite parties would pay compensation to the tune of Rs.10000/-(Ten thousand) for harassment etc. In addition learned District Forum further ordered that opposite parties would pay litigation costs to complainant to the tune of Rs.5000/-(Five thousand). Feeling aggrieved against order passed by Learned District Forum opposite parties filed present appeal before State Commission.
5. We have heard learned Advocates appearing on behalf of parties and we have also perused entire record carefully.
6. Following points arise for determination in present appeal.
1. Whether appeal filed by appellants is liable to be accepted as mentioned in memorandum of grounds of appeal and whether opposite party No.1 i.e. intermediate bank has negligently and improperly kept the cheque in question and did not present the cheque in question for encashment to drawee bank i.e. ICICI Bank Gurgaon within validity period of cheque and committed deficiency in service?
2. Final order.
Findings upon point No.1 with reasons:
7. Complainant filed affidavit in evidence. There is recital in affidavit that Sh. Tushar Chaudhary issued cheque No.029689 to complainant for an amount of Rs.200000/-(Two lac) on dated 15.01.2016 which was payable at ICICI Bank Gurgaon. There is recital in affidavit that deponent present 4 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 the cheque before opposite party No.2 for collection of the amount in his account. There is recital in affidavit that cheque in question was sent by opposite party No.2 to opposite party No.1 at Delhi on dated 03.04.2016. There is recital in affidavit that opposite party No.1 on dated 18.04.2016 rejected the cheque on the ground that cheque was outdated. There is recital in affidavit that complainant could not file complaint under section 138 of Negotiable Instruments Act 1881 against drawer. There is recital in affidavit that opposite parties have committed deficiency in service. State Commission has carefully perused all the annexures filed by complainant.
8. Opposite parties filed affidavit of Shri Narender Ahuja Branch Manager State Bank of India Bhojpur Tehsil Sundar Nagar District Mandi H.P. There is recital in affidavit that earlier two cheques presented by complainant issued by the same drawer were dishonoured. There is recital in affidavit that complainant has no cause of action and opposite parties did not commit any deficiency in service. There is recital in affidavit that complicated question of facts and laws are involved in the present matter and complainant be relegated to civil court. State Commission has carefully perused all the annexures filed by opposite parties.
9. Submission of learned Advocate appearing on behalf of appellants that Sh. Tushar Chaudhary is necessary 5 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 party in the present consumer complaint and on this ground appeal filed by appellants be allowed is decided accordingly. In the present matter complainant did not seek any relief against Shri Tushar Chaudhary. It is well settled law that party against whom no relief is sought by complainant is not a necessary party to adjudicate dispute inter se two parties.
10. Submission of learned Advocate appearing on behalf of appellants that account of Shri Tushar Chaudhary was closed in the year 2011 and cheque in question was issued by Sh. Tushar Chaudhary in the year 2016 after lapse of more than five years with malafide intention of the drawer and on this ground appeal filed by appellants be allowed is decided accordingly. It is proved on record that cheque No.029689 was issued by Shri Tushar Chaudhary on dated 15.01.2016 to the tune of Rs.200000/-(Two lac) in favour of complainant. In the cheque name of drawee bank has been mentioned as ICICI Bank Ltd. Sushant Lok Branch 005 A Unitech Trade Centre Sector Road Sushant Lok Phase-1 Gurgaon-122002. It is well settled law that validity of cheque remains continuous for three months after issuance of cheque. State Commission is of the opinion that opposite parties were only intermediate authorities because drawer of cheque was Sh. Tushar Chaudhary and drawee bank was ICICI Bank Gurgaon and payee was complainant. It is proved 6 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 on record that beneficiary was complainant because name of complainant as payee has been mentioned in cheque in question in a positive manner. It is well settled law that beneficiary falls within the definition of consumer as defined under section 2(d)(ii) of Consumer Protection Act 1986. Section 2(d)(ii) was incorporated in Consumer Protection Act 1986 w.e.f. 18.06.1993.
11. Submission of the learned Advocate appearing on behalf of appellants that appellants are located at a distance of about 500 KMs and order of learned District Forum warrants interference by State Commission is decided accordingly. State Commission is of the opinion that there was sufficient time to transmit the cheque to drawee bank i.e. ICICI Bank Gurgaon. It is proved on record that appellants did not transmit the cheque in question for encashment to drawee bank and kept the cheque in question in their own official custody. State Commission is of the opinion that laxity and inaction on the part of appellants is writ large in present matter. It is well settled law that party could not be allowed to take benefits of its own laxity and wrongs. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to allow the appellants to take benefits of its own wrongs and laxity. No reasons assigned by appellants as to why appellants did not transmit the cheque in question to drawee bank i.e. ICICI 7 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 Bank Ltd. within validity period of cheque in question. There is no memo on record on behalf of ICICI Bank that cheque No.029689 dated 15.01.2016 was dishonoured by ICICI Bank on the ground of insufficient funds. It is well settled law that drawer could deposit amount in the bank during the working hours of the bank at any time. There is no presumption under law that if earlier cheques were dishonoured then subsequent cheque would also be deemed to be dishonoured automatically unless contrary written report is submitted by drawee bank.
12. Submission of learned Advocate appearing on behalf of appellants that complicated question of facts and laws are involved in the present matter and complainant be relegated to civil court is decided accordingly. State Commission is of the opinion that as per section 2(o) of Consumer Protection Act 1986 service of any description rendered by banking authority falls within the domain of Consumer Protection Act 1986. State Commission is of the opinion that it is not expedient in the ends of justice and on the principle of natural justice to relegate the complainant to civil court. In the present matter it is proved on record that appellants did not transmit the cheque in question for encashment to ICICI drawee bank.
13. Submission of learned Advocate appearing on behalf of appellants that complainant has no locus standi and 8 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 cause of action to file consumer complaint against opposite parties is decided accordingly. State Commission is of the opinion that cause of action accrued to complainant when opposite parties did not transmit cheque in question for encashment to drawee bank i.e. ICICI Bank within validity period of cheque in question. It is proved on record that opposite party No.2 sent cheque to opposite party No.1 on dated 03.04.2016 and it is also proved on record that cheque in question reached in office of opposite party No.1 for collection on 11.04.2016 and it is also proved on record that validity of cheque was till 15.04.2016. Opposite party No.1 did not send cheque for encashment to drawee bank i.e. ICICI Bank before expiry period of three months and kept the cheque in question in official custody till the validity of cheque stood expired. State Commission is of the opinion that validity of cheque stood expired due to laxity and inaction of opposite party No.1. It is proved on record that thereafter opposite party No.1 returned the cheque in question to complainant on the ground that it is outdated cheque and the word rejected outdated cheque was written by opposite party No.1 on dated 18.04.2016. It is also proved on record that cheque in question was received in the office of opposite party No.1 on 11.04.2016. It is proved on record that cheque in question was received in office of opposite party No.1 within period of its validity but opposite party No.1 9 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 kept the cheque in question in non-action mode till expiry of its validity. State Commission is of the opinion that opposite parties could not be allowed to take benefit of its own wrongs and laxity. See 2006(IV) CPJ 274 NC titled P.S. Sawhney Versus Canara Bank & Anr. See 2006(2) CPJ 345 NC titled State Bank of Mysore & Anr. Versus K. Vasanth Kumar & Anr.
14. Submission of learned Advocate appearing on behalf of complainant that order of learned District Forum does not warrant interference by State Commission is decided accordingly. State Commission is of the opinion that order of learned District Forum is strictly in accordance with law and is accordance with proved facts because deficiency in service on behalf of appellants is writ large in the present matter. It is proved on record that appellants were not drawee bank and it is also proved on record that appellants were only intermediate bank. As per section 77 of Negotiable Instruments Act 1881 intermediate bank is legally liable for laxity and non action within stipulated period. In the present matter it is proved on record that appellants improperly kept the cheque in question in their official custody and did not send cheque in question to drawee Bank i.e. ICICI Bank Gurgaon within three months from date of issuance. It is held that appellants' bank flouted section 77 of Negotiable Instruments Act 1881 and could not be exonerated from their 10 State Bank of India & Anr. Versus Keshav Thakur F.A. No.123/2018 liability. In view of above stated facts point No.1 is decided accordingly.
Point No.2: Final Order
15. In view of findings upon point No.1 above appeal is dismissed. Order passed by learned District Forum is affirmed. Parties are left to bear their own litigation costs before State Commission. Cheque No.029689 dated 15.01.2016 and endorsement of appellants' bank dated 18.04.2016 whereby appellants' bank rejected the cheque in question on the ground of outdated cheque shall form part and parcel of order. File of learned District Forum alongwith certified copy of order be sent back forthwith and file of State Commission be consigned to record room after due completion forthwith. Certified copy of order be transmitted to parties forthwith free of costs strictly as per rules. Appeal is disposed of. Pending application(s) if any also disposed of.
Justice P.S. Rana (R) President Vijay Pal Khachi Member Sunita Sharma Member 18.04.2019 KD* 11