State Consumer Disputes Redressal Commission
Hdfc Bank Limited, vs Sachit Kumar on 23 April, 2013
First Additional Bench
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, PUNJAB,
DAKSHIN MARG, SECTOR-37A, CHANDIGARH
First Appeal No. 506 of 2010
Date of Institution: 30.03.2010
Date of Decision: 23.04.2013
HDFC Bank Limited, Court Road, Jagraon-142026, District Ludhiana
through its Manager/Principal Officer.
.....Appellant/Opposite Party
VERSUS
Sachit Kumar son of Shri Raj Kumar, resident of House No.475, near Old
Grain Market, Shahstri Nagar Jagraon, District Ludhiana.
.....Respondent/Complainant
First Appeal against the order dated
12.11.2009 passed by the District
Consumer Disputes Redressal
Forum, Ludhiana.
Before:
Sh. Inderjit Kaushik, Presiding Judicial Member
Sh. Vinod Kumar Gupta, Member Present:
For the appellant : Sh. Sandeep Suri, Advocate
For respondent : Sh. Pardeep Bajaj, Advocate
--------- ---------------------------------- INDERJIT KAUSHIK, PRESIDING JUDICIAL MEMBER This appeal has been filed by the HDFC Bank Limited, appellant/opposite party (hereinafter referred to as "appellant") against the order dated 12.11.2009, passed by the District Consumer Disputes Redressal Forum, Ludhiana (in short "District Forum").
2. Facts in brief are that Sh. Sachit Kumar, respondent/complainant (hereinafter called "the respondent") filed a complaint under section 12 of the Consumer Protection Act, 1986 (in short, "the Act") against the appellant, making averments that he is having a saving account no.111201000113281 in his name with the appellant and there was no complaint. One account payee cheque no.943900 dated 03.04.2008 for First Appeal No. 506 of 2010 Page 2 Rs.21,300/- drawn on ICICI Bank Limited issued in favour of the respondent by Jaswant Singh, Partner of M/s Pioneers Consultant was presented to the appellant, but the same was dishonoured and was returned to the respondent on 23.08.2008. The respondent again presented the original cheque to the appellant for its encashment and collection on 27.09.2008. Till date, the respondent is unaware about the said cheque as neither the cheque has been credited in the account nor the same has been returned to the respondent. The respondent approached the officials of the appellant and demanded the cheque, but he was put off on one pretext or the other. The validity of the cheque was upto 02.10.2008 and the same has expired. The original cheque has not been returned and that amounts to deficiency in service on the part of the appellant. The appellant is liable to pay Rs.21,300/- being the amount of cheque along with interest @ 18% p.a. and Rs.50,000/- as compensation besides Rs.11,000/- as litigation expenses and accordingly, it was prayed.
3. In the written version filed on behalf of the appellant, preliminary objections were taken that the complaint is false and frivolous. Timely and efficient services were provided to the respondent and there is no cause to file the present complaint. The respondent presented the cheque in question only once in his account and it was dishonoured and returned to the respondent.
4. On merits, it was admitted that the respondent presented the cheque dated 03.04.2008 on 23.08.2008 and the same was dishonoured and was returned to the respondent. It was denied that the respondent again presented the cheque on 27.09.2008. Denying the allegations of the complaint, it was prayed that the complaint may be dismissed with costs.
5. Parties led evidence in support of their respective versions by way of affidavits and documents.
First Appeal No. 506 of 2010 Page 3
6. The learned District Forum after hearing the counsel for the parties and going through the record, observed that the certificate Ex.C-2 contains admission of the appellant that it returned the cheque in question on 23.08.2008 and the respondent again presented it in the bank on 29.09.2008, but the cheque was misplaced in the courier. The admission of the appellant belies its defence that the cheque was never presented on 29.09.2008 by the respondent. By not crediting the amount of the cheque or by not giving any intimation amount to deficiency in service. The complaint was allowed and the appellant was directed to pay Rs.21,300/- being the amount of the cheque with interest @ 9% p.a. from 15.10.2008 till payment and Rs.2,000/- as compensation and litigation expenses.
7. Aggrieved by the impugned order dated 12.11.2009, the appellant has come up in the present appeal.
8. We have gone through the pleadings of the parties, perused the record of the District Forum and have perused the written arguments filed on behalf of the appellant and the respondent.
9. In the written arguments filed on behalf of the appellant, it was submitted that vide letter Ex.C-2, it was mentioned that the cheque was presented again by the customer on 29.09.2008, but was misplaced by the courier and the same was confirmed by the courier person. The District Forum held that the courier is the agent of the bank and held the bank liable, which is incorrect. It was further submitted that the bank cannot be held liable to pay the cheque amount and only the compensation can be awarded.
10. In the written arguments filed on behalf of the respondent, pleadings were repeated. It was further submitted that the cheque was presented with the bank and the bank admitted that the same was lost and the order passed by the District Forum is correct and the bank cannot First Appeal No. 506 of 2010 Page 4 escape its liability. The respondent could not file the complaint U/s 138 of the Negotiable Instruments Act, as the original was lost and the appeal may be dismissed.
11. We have considered the respective written submissions of the parties and have minutely examined the entire record.
12. The appellant bank denied its liability in the pleadings and gave the reply against its own record. Letter Ex.C-2 reads as follows:-
"This is to confirm that we have returned one cheque of ICICI Bank with cheque no.943900 of amount Rs.21300/- drawn in favour of Mr. Sachit Kumar on 23/08/2008. The cheque was presented again by the customer on 29/09/2008 but was misplaced in the courier and the same has been confirmed by the courier personnel".
13. From the above, it is clear that the appellant bank admitted that the cheque was presented again on 29.09.2008, but was misplaced in the courier and the same was confirmed by the courier person.
14. The only question to be decided is whether the respondent is entitled to the cheque amount, or the reasonable compensation for loss of the cheque by the appellant bank. The appellant bank itself has relied upon the authority of the Humble National Commission reported as "State Bank of India Vs Muntha Lakshmi Kumar", Revision Petition No.3438 of 2004 decided in 12/2008 wherein the order to pay the cheque amount was set aside and the compensation was awarded.
15. Hon'ble National Commission in another case 'State Bank of Patiala Vs Vishwas Ahuja', 2007(1) ISJ (Banking)-432(NC) observed in Para-3(relevant portion) 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 First Appeal No. 506 of 2010 Page 5 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. Similar law has been laid down by the Hon'ble National Commission in case "Canara Bank Vs B. Muraleedharan Nair Aswathi Enterprises", II (2008) CPJ-1 (NC).
16. In view of the law laid down in above authorities, the settled proposition of law is that the bank to whom a cheque is presented, if loses it during transaction, then the bank is liable to pay compensation only and not the cheque amount. The order passed by the District Forum is not sustainable in the eyes of law and is liable to be set aside.
17. Accordingly, the appeal is accepted and the impugned order under appeal dated 12.11.2009 passed by the District Forum is modified to the extent that the appellant shall pay Rs.10,000/- (Rupees Ten Thousand) as compensation to the respondent and not the cheque amount as ordered by the District Forum. The respondent is also entitled to Rs.2,000/- as litigation expenses.
18. The appellant had deposited an amount of Rs.13,000/- with this Commission at the time of filing of the appeal. Out of this amount, a sum of Rs.12,000/- (aforementioned) 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. Remaining amount with interest accrued thereon, if any, be remitted by the registry to the appellant by way of a crossed cheque/demand draft after the expiry of 45.
19. The arguments in the case were heard on 11.4.2013 and the order was reserved. Now, the order be communicated to the parties.
First Appeal No. 506 of 2010 Page 6
20. The appeal could not be decided within the statutory period because of the heavy pendency of the court cases.
(Inderjit Kaushik) Presiding Judicial Member (Vinod Kumar Gupta) Member April 23, 2013 (Gurmeet S)