State Consumer Disputes Redressal Commission
Pnb vs Rajinder Singh on 16 January, 2015
FIRST ADDITIONAL BENCH
STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PUNJAB
SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.
First Appeal No.205 OF 2013
Date of Institution: 22.02.2010
Date of Decision : 16.01.2015
The Punjab National Bank, a body Corporate, constituted under the
Banking Companies (Acquisition and Transfer of Undertakings) Act,
1970 having its Head Office at 7 Bhikhaji Cama Place, New Delhi
and Branch Office, amongst others, at Nadala, Tehsil Bholath,
District Kapurthala, Punjab through its Manager, Principal Officer of
the Bank and GPA holder
....Appellant/OP......
........Versus........
Nirmal Singh S/o Gajjan Singh, R/o Village Dalla, PO Raipur
Peerbaxwala, Tehsil Bholath, District Kapurthala, Punjab.
...... Respondent/Complainant
First Appeal against order dated
15.01.2013 passed by the District
Consumer Disputes Redressal Forum,
Kapurthala.
Quorum:-
Sh.Baldev Singh Sekhon, Presiding Member.
Sh.Harcharan Singh Guram, Member
Present:-
For the appellant : Sh.R.S.Bhatia, Advocate
For the respondent : Ex-parte.
..........................................................
First Appeal No.205 of 2013 2
HARCHARAN SINGH GURAM, MEMBER:-
ORDER
This appeal has been filed by the appellant on behalf of OP against the order dated 15.01.2013 passed by the District Consumer Disputes Redressal Forum (in short, "the District Forum"), Kapurthala, vide which complaint of the respondent/complainant was allowed with a direction to the OP to pay Rs.10,000/- to the complainant as compensation for mental agony and harassment and Rs.5,000/- as litigation costs within a period of 30 days failing which the total amount of Rs.15,000/- was ordered to carry interest @ 9% p.a from the date of receipt of the information as to loss of cheque as noted under letter dated 20.7.2012 till date of realization of said amount by the complainant.
2 Brief facts of the case are that Nirmal Singh, complainant was having a saving bank account No.52922 with the bank of OP. On 02.08.2011, he deposited a cheque bearing no.187553 dated 17.06.2011 amounting to Rs.95,000 drawn on Corporation Bank Branch, Kapurthala issued by one Amarjit Singh S/o Sharam Singh resident of Ajit Nagar, Kapurthala with OP-Bank. The OP sent this cheque for encashment to the drawee bank namely Corporation Bank branch, Kapurthala. However, the amount of the cheque was not credited in the complainant's account. Complainant made several visits to OP to know about the fate of the cheque but failed to get any fruitful result. He also wrote a letter dated 29.03.2012 to the manager of the OP in this respect, but of no use. It was pleaded that he had First Appeal No.205 of 2013 3 got issued the said cheque from Amarjit Singh in lieu of the amount which the latter had taken from him for depositing in a company named Zee Start Multi Club Tours Pvt. Ltd, which was found to be bogus one and when he lodged complaint against said Amarjit Singh in police station, he admitted his liability and had issued cheque in question, in the name of complainant. It is further alleged that in spite of passing more than one year, OP had failed to credit the amount of the cheque in his account. Rather the officials of OP told complainant that said cheque had lost in transit. This act of the OP caused great loss to the complainant, as Amarjit Singh had now flatly refused to issue any further cheque to him. It was clear-cut case of deficiency in service, unfair trade practice and negligence on the part of OP, for which complainant was not only entitled to get amount of cheque in question, but also to the damages to the tune of Rs.50,000/- for mental agony and harassment besides costs of litigation.
3 Upon notice, OP raising certain preliminary objections that complaint was not maintainable ; that complainant was not having locus standi/cause of action to file the complaint against OP and that complainant was estopped by his own act and conduct, omission and commission, to file the present complaint. On merits, plea taken up by the OP is that complainant was informed about the fact that cheque was not going to be honoured for its defect as the cheque amount mentioned in figures and words was different. In figures, it was mentioned as Rs.9,50,000/-, whereas in words, it was mentioned as ninety five thousand only. Therefore, OP advised him First Appeal No.205 of 2013 4 to get rectified the said mistake. But complainant pressurized the officials of the OP bank to entertain the same at his own risk and liability. It was further pleaded and that cheque, in question, along with other cheques, was sent for collection to drawee bank through M/s Akash Ganga Couriers Ltd., vide consignment No.1754 through Sanjeev Enterprises, but later on it transpired that packet containing the said cheque along with other cheques, was lost/misplaced by the courier in transit and the said courier lodged DDR No.43 dated 23.08.2011 with the police station. OP further submitted that as per clause no.3 of conditions of pay-in-slip, neither the bank nor agent of the bank would be responsible for any loss or placement of the cheque or for any delay in collection, transmission. The said pay-in- slip was duly acknowledged by the complainant. However, the complainant has not made the courier service as party. It was submitted that complainant was duly informed about the loss of cheque in question, therefore, there was neither any deficiency in service on its part nor same was a case of unfair trade practice. OP prayed for dismissal of the present complaint.
4. Parties led their evidence by way of affidavits and documents before the District Forum, which after going through the same, allowed the complaint as stated above.
5 Aggrieved with the order of the District Forum, the appeal has been filed by OP on the ground that U/s 24-A of the Negotiable Instrument Act, the complainant was entitled to receive the duplicate cheque in lieu of the cheque lost in transit. Hence, there was no deficiency in service on their part. The appellant/bank had sent the First Appeal No.205 of 2013 5 cheque for collection and there was no mistake on their part as the cheque was lost in transit. No reason was discussed by the Ld. Forum in order to put the blame on the bank. It has been further submitted that cheque given for collection was having discrepancy in it as amount in words was written as Rs.95,000/- only whereas in figure same was written as Rs.9,50,000/-. The bank had entered into cheque collection arrangement with M/s Akash Ganga Courier Ltd and the said courier lodged DDR No.43 dated 23.08.2011 with the Police Station stating that the entire consignment of their company along with cheque was lost. It was further submitted that there were conditions printed on the reverse side of the pay-in-slip voucher, which was filled up by the complainant and he was therefore, bound by the said conditions. This point was not discussed by the District Forum in its order. It prayed that the impugned order passed by the District Forum be set aside.
6 We have heard Ld.Counsel for the parties and have gone through the documents placed on the file.
7 A specific question was raised to the counsel for the appellant that when they received information regarding loss of cheque from their agent i.e. Courier Company, did they inform the complainant that his cheque had been lost. Further, another query was raised whether OP had written to the drawee bank to mark the caution in their books that the said cheque was lost so as to get a non-payment certificate from that bank which would enable the complainant to get a duplicate cheque issued in his favour from original drawer of the cheque. The counsel at bar was unable to give First Appeal No.205 of 2013 6 any confirmation of the action taken on the part of the OPs. He rather stated that the complainant was informed orally about of the loss of the cheque and no letter was written by the appellant to the drawee bank for noting caution in their book of accounts. As per Negotiable Instrument Act, a cheque is to be honoured when presented, even if, there is a difference in amount in words and the amount in figures. The amount to be paid on presentation of said cheque to the drawee bank will be to the extent of amount written in words. It has been contended by the appellants that at the first instance the bank official advised the complainant/respondent not to send the cheque for collection and that the same was sent only when insisted by him. As such, when no intimation letter was received from OP, complainant was compelled to lodge his complaint. Once the appellant sent the cheque for collection, it was their responsibility to ensure its collection or to indemnify the loss of the instrument. They were also required to take up the matter with the drawee bank for noting caution. District Forum had appreciated the facts in detail on the file and had found that though the amount of cheque claimed by the complainant for the amount of Rs.95,000 and compensation of Rs.50,000/- was not payable as per the demand of the complainant but there was a deficiency in service on the part of OP-Bank.
8 During the course of arguments, counsel for the appellant relied upon a judgment of the Apex Court passed in the case titled as "Branch Manager, Federal Bank Ltd.... Versus... N.S. Sabastian" in Civil Appeal No.43 of 2009 (Arising out of S.L.P ( C) First Appeal No.205 of 2013 7 No.21204 of 2007) decided on 7 January 2009 in which it was held by the Hon'ble Apex Court that the payee can obtain duplicate cheque from the drawer under Section 45(a) of Negotiable Instrument Act. Whereas in the present case, no such intimation was given by the OP in writing to the complainant nor any letter was written by the OP bank to drawee bank to mark the caution regarding loss of cheque in transit in their book of accounts. Even no letter was written by the OP to the drawee bank to issue a non-payment certificate in favour of the complainant so as to enable the complainant to get a duplicate cheque from the drawer of the cheque.
9 However, the counsel for the appellant prayed for reducing the compensation of amount awarded by the District Forum against them on the ground that they had obtained a statement of account of the drawer of the cheque from the drawee bank, which shows that there was no balance in his account on the date when the disputed cheque was issued. But no such statement was placed on record.
10 In view of the above findings, the appeal of the appellant is dismissed. The order of the District Forum is upheld 11 The appellant had deposited a sum of Rs.7500/- at the time of filing of the appeal in this commission. The registry is hereby directed to remit the said amount along with interest, if any, to the respondent/complainant after 45 days from the receipt of this order. The appellant is directed to pay the remaining amount as per order of the District Forum.
First Appeal No.205 of 2013 812 Arguments in this appeal were heard on 13.01.2015 and the order was reserved. Now the order be communicated to the parties.
13 The appeal could not be decided within the statutory period due to heavy pendency of court cases.
(BALDEV SINGH SEKHON) PRESIDING MEMBER (HARCHARAN SINGH GURAM) MEMBER January, 16 2015 RAVI