State Consumer Disputes Redressal Commission
Gagandeep Mittal vs Oriental Bank Of Commerce on 9 January, 2018
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.681 of 2017
Date of Institution : 25.09.2017
Order Reserved on: 08.01.2017
Date of Decision : 09.01.2018
Gagandeep Mittal, aged about 30 years, son of Pawan Kumar,
resident of ward no.3, Aggarwal Colony, Bhikhi, Tehsil and District
Mansa.
.....Appellant/complainant
Versus
1. Oriental Bank of Commerce, Gaushala Road, Mansa, District
Mansa through its Branch Manager.
2. State Bank of Patiala (now State Bank of India), Branch Bhikhi,
District Mansa through its Branch Manager.
3. Oriental Bank of Commerce, Branch Bhikhi, District Mansa
through its Branch Manager.
.....Respondents/opposite parties
First Appeal against order dated
21.07.2017 passed by the District
Consumer Disputes Redressal Forum,
Mansa.
Quorum:-
Shri J. S. Klar, Presiding Judicial Member
Smt. Surinder Pal Kaur, Member Present:-
For the appellant : Sh. Abhishek Singla, Advocate For respondent no.1 : Ex-parte For respondent no.2 : Sh. Umang K. Khosla, Advocate For respondent no.3 : Sh. Vivek Dawar, Advocate with ............................................ J.S. KLAR, PRESIDING JUDICIAL MEMBER :-
Challenge in this appeal by appellant is to order dated 21.07.2017 of District Consumer Disputes Redressal Forum Mansa (in short the 'District Forum'), partly accepting the complaint of appellant by directing respondent no.3 of this appeal to pay compensation of Rs.25,000/- to the appellant for returning the First Appeal No.681 of 2017 2 cheque illegally, besides interest @9% per annum from the date of filing the complaint thereon. The appellant of this appeal is complainant in the complaint before District Forum and respondents of this appeal are opposite parties therein and they be referred as such hereinafter for the sake of convenience.
2. Gagandeep Mittal complainant instituted the complaint U/s 12 of the Consumer Protection Act, 1986 (in short, "the Act") against OPs on the allegations that he was the holder of account number 65031606614 with State Bank of Patiala Branch Bhikhi. One cheque no.768083 dated 14.12.2015 was drawn in the name of complainant by Dream Pro Assets Limited for the sum of Rs.1,07,000/-. It was further averred that on 12.03.2016, it was Saturday and on 13.03.2016, it fell Sunday and bank was closed and hence he presented the cheque with OP no.2 on 14.03.2016. The cheque was sent to Oriental Bank of Commerce Mansa OP no.1 for clearance, but it was not cleared and was returned on the ground that the time limit for its presentation had expired. The report was sent by OP no.2 to OP no.1 in this regard and cheque was returned to complainant by OP no.2. On 14.03.2016, it was still within time to present the cheque. The complainant alleged deficiency in service on the part of OPs in this case. The sister of complainant Kanta Rani was a cancer patient and she was receiving treatment from Patiala Nursing Home Samana Mandi and was referred to Ludhiana for onward treatment. She was operated on 17.03.2016 and complainant was obliged to be there to take care of her. The First Appeal No.681 of 2017 3 complainant, thus, filed the complaint directing OPs to pay the amount of Rs.1,07,000/- and compensation of Rs.50,000/- for deficiency in service on the part of OPs for not clearing the cheque, which was in fact within time on 14.03.2016.
3. Upon notice, OP no.1 appeared and filed written reply and contested the complaint of the complainant by raising preliminary objections that complaint is not maintainable. The complainant has no cause of action to file the complaint. The complaint has been filed to vex and harass OP no.1 on false premises only. The complaint is without cause of action and is also bad for non joinder of necessary parties. On merits, OP no.1 averred that no cheque was presented in account no.05431011001475 by OP no.1 for encashment and it was not returned by it nor it issued any memo dated 14.03.2016 in this regard, nor it sent any report to OP no.2. OP no.1 put up the case of total denial on its part. It prayed for dismissal of the complaint.
4. OP no.2 filed it separate written reply and contested the complaint of the complainant. It was averred in legal objections that complainant has no locus standi to file the complaint and complaint is incompetent. The complaint is bad for misjoinder and non-joinder of necessary parties. The cheque was sent to Oriental Bank of Commerce Branch Bhikhi for clearance, but it has not been impleaded as a party in this case by the complainant. The complaint has been filed just to harass OP no.2. On merits, OP no.2 pleaded that cheque was sent for clearance to Oriental Bank of Commerce First Appeal No.681 of 2017 4 Branch Bhikhi and due intimation was also given to complainant regarding dishonor of cheque. OP no.2 controverted the averments of complainant regarding deficiency in service on its part and prayed for dismissal of complaint.
5. OP no.3 was impleaded as a party during pendency of proceedings, vide order dated 27.07.2016 by the District Forum. OP no.3 filed written version in District Forum raising legal objections that complainant is not consumer of OP no.3, as he has not hired the services of OP no.3. The complainant has no cause of action to file the complaint. The complaint is alleged to be not maintainable. The complaint is alleged to be bad for misjoinder and non joinder of necessary parties. The complaint is alleged to be vexatious and frivolous in nature. It was further averred that cheque no.768083 dated 14.12.2015 remained in the custody of complainant for about three months and he never bothered to present the cheque within the period of its validity. The cheque was presented on 14.03.2015 with State Bank of Patiala Bhikhi Branch OP no.2 on the same day and it was returned with the remarks that instrument was outdated. The cheque was valid counting from the date of its issuance on 14.12.2015 and payment could be received on 14.12.2015. The calculation period of three months expired on 14.03.2016 and it was valid uptil 13.03.2016. The complainant slept over this cheque for a period of three months and presented it beyond the validity period. The complaint was also contested even on merits by OP no.3 on the above referred grounds and it prayed for dismissal of the complaint. First Appeal No.681 of 2017 5
6. The complainant tendered in evidence his affidavit Ex.C-1 alongwith copies of documents Ex.C-2 to C-7 and closed the evidence. As against it, OP no.1 tendered in evidence affidavit of Sh. Rajesh Kumar, Branch of OP no.1 Ex.OP-1/1 and copy of account ledger report Ex.OP-1/2 and closed the evidence. OP no.3 tendered in evidence affidavit of Ramesh Chander, Manager of OBC Bhikhi Ex.OP-3/1 alongwith copies of documents Ex.OP-3/2 to Ex.OP-3/5 and closed the evidence. On conclusion of evidence and arguments, the District Forum partly accepted the complaint of the complainant against OP no.3, as referred to above. Aggrieved by above order, the complainant now appellant has preferred this appeal against the same for claiming the entire amount of cheque.
7. We have heard the learned counsel for the parties and have also examined the record of the case. The submission of counsel for the complainant before us is that cheque was presented within validity period with OP no.2 State Bank of Patiala, but it was returned with the remarks 'instrument is outdated/stale'. The complainant placed on record his affidavit Ex.C-1, testifying that he held bank account no.65031606614 with OP no.2 Bank. He further stated that one cheque no.768083 dated 14.12.2015 was drawn in his name for Rs.1,07,000/- by Dream Pro Assets Limited. He further deposed that he presented the cheque with OP no.2 on 14.03.2016, because it was Saturday on 12.03.2016 and Sunday on 13.03.2016 and hence it could not be presented on the above dates. This witness further maintained in his affidavit that OP no.2 sent the said First Appeal No.681 of 2017 6 cheque to OP no.3 Oriental Bank of Commerce Branch Bhikhi, where it was returned unencashed with the report that cheque is outdated. He further deposed that cheque was returned to him by OP no.2 Bank. This witness deposed that on 14.03.2016 was the last date of validity period and hence there is deficiency in service on the part of OPs. He relied upon photostat copy of said cheque Ex.C-2 recording the date of its drawal on 14.12.2015. Ex.C-3 is copy of memo dated 14.03.2016 sent by OP no.3 to OP no.2 bank that instrument is outdated/stale. The complainant moved an application to Manager of OP no.2 Bank in this regard vide Ex.C-4. Ex.C-5 is intimation sent to complainant by Branch Manager of State Bank of Patiala OP no.2 that his cheque has been dishonored by Oriental Bank of Commerce and memo of OP no.3 Bank was delivered to him on 15.03.2016. Ex.C-6 is the copy of passbook of complainant maintained with State Bank of Patiala Branch Bhikhi. As against it, OP no.1 filed affidavit of Rajesh Kumar Branch Manager of OP no.1 Ex.OP-1/1 on the record putting up the case of total denial on part of OP no.1. The cheque was, in fact, presented by complainant with OP no.2 and it was sent for clearance with OP no.3 Bank and not with OP no.1 Bank. The statement of account is Ex.OP-1/2, wherein this cheque is not entered with OP no.1. OP no.3 tendered in evidence affidavit of Ramesh Chander Manager of OP no.3, testifying that complainant has not hired the services of OP no.3 bank nor he is its consumer. He further deposed that alleged cheque remained in the custody of complainant over three months First Appeal No.681 of 2017 7 and he slept over the same. He suddenly presented the cheque on 14.03.2016 with OP no.2 Bank and it was returned with the remarks that instrument is outdated. He further deposed that validity period of the cheque was for three months, which has been counted from the date of its issuance on 14.12.2015 and it expired on 14.03.2016. It was valid till 13.03.2016 only. Ex.OP-3/2 is the cheque register, where this cheque has been recorded as sent for clearance on 14.03.2016 with OP no.3 Bank. It has been returned to OP no.2 Bank being outdated. Reference may be made to Ex.OP-3/4 and Ex.OP-3/5 in this regard.
8. From analysis of above referred evidence on the record, we find that Section 25 of Negotiable Instruments Act, 1881 lays down that "When day of maturity is a holiday. When the day on which a promissory note or bill of exchange is at maturity is a public holiday, the instrument shall be deemed to be due on the next preceding business day. Explanation- The expression 'Public Holiday' includes Sundays (***) and any other day declared by the [Central Government], by notification in the official Gazette, to be a public holiday."
It is, thus, clear from Section 25 of Negotiable Instruments Act, 1881 that on 13.03.2016, it was Sunday and next business working day was 14.03.2016. The case of the complainant finds weight that last day for presentation of the cheque was on 14.03.2016 and not 13.03.2016. This evidence has gone unrefuted on the file. The cheque was returned by OP no.3 to OP no.2, the sending bank, First Appeal No.681 of 2017 8 despite the fact that it was within the validity period on 14.03.2016. The District Forum has awarded compensation of Rs.25,000/- payable to complainant from OP no.3 for deficiency in service. The complainant now appellant seeks the amount of Rs.1,07,000/- as embodied in this case, being the amount of cheque. We find that cheque has not been lost anywhere and it was returned to him as unencashed. The District Forum has imposed the compensation for deficiency in service. The complainant seeks the entire amount of cheque in this case for deficient service of OP no.3. The amount is still lying where it was and complainant could opt for recovery of the amount from the drawer of the cheque under rules. The District Forum has sufficiently compensated the complainant for deficiency in service on the part of OP no.3 in this case. We do not find any ground to interfere with the order of the District Forum in this case. The complainant is not entitled to the entire amount of cheque, as he has the remedy to recover this from the drawer of the cheque under Rules. Reference be made in this regard to law laid down in "Canara Bank Vs. Sudhir Ahuja 2007(1)CPJ-1 by the National Commission, "Oriental Bank of Commerce & another Vs. Bruno Knitwears"
1998(1)CPJ-296 by our own State Commission and law laid down by the National Commission in "State Bank of Patiala Vs. Rajender Lal & another" 2003(4)CPJ-53. The complainant has been awarded compensation by the District Forum for deficient service of OP no.3. We find no ground to accept this contention of counsel for appellant First Appeal No.681 of 2017 9 on this score. Consequently, the order of the District Forum is just and legal and the same is affirmed in this appeal.
9. We find no merit in the appeal and the same is hereby dismissed.
10. Arguments in this appeal were heard on 08.01.2018 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.
11. The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(J. S. KLAR) PRESIDING JUDICIAL MEMBER (SURINDER PAL KAUR) MEMBER January 09, 2018 MM