Document Fragment View

Matching Fragments

5. On merits, it was admitted that the respondent firm is having a Current Account with the appellant bank, but the respondent is not a consumer under the Act. Other similar pleas as taken in preliminary objections were repeated and denying allegations of the complaint, it was prayed that the complaint may be dismissed with costs.

7. Parties led evidence in support of their respective contentions by way of affidavits and documents.

8. After going through the documents and material placed on file and after hearing the learned counsel for the parties, the learned District Forum observed that as per memo Ex.C-3, the cheque in question was dishonoured with the remarks that it has become outdated, because it is not even presented within the period of validity. Since the cheque has not been dishonoured due to insufficient funds, therefore, the relief to the respondent cannot be denied merely because the earlier two cheques have been dishonoured by the banker of the drawer and he has filed a complaint u/s 138 of the Negotiable Instruments Act. The appellant cannot escape the liability and is liable to make good the loss suffered by the respondent due to late presentation of the cheque, if any, because the complaint u/s 138 of Negotiable Instruments Act is not maintainable if the cheque is dishonoured by the banker of the drawer, on the ground that it has been presented after the expiry date of validity. The right of the respondent to recover the amount of the cheque may be frustrated if the civil suit fails on any technical ground, or drawer is declared insolvent. The appellant cannot escape the liability to compensate the respondent due to pecuniary loss caused to him due to deficiency in service on its part. The complaint was allowed and the appellant was directed to pay Rs.1.50 lacs to the respondent for deficiency in service along with interest @ 9% p.a. from the date of filing of the complaint i.e. 03.09.2007 till realization and Rs.1,000/- as costs.

13. We have considered the submissions advanced on behalf of the appellant and have thoroughly scanned the entire record and other material placed on the file.

14. The cheque Ex.C-5 dated 15.01.2007 was presented by the respondent to the appellant bank and the appellant bank sent the same to Punjab National Bank, Gagret, Distt. Una (HP), but the same was received back with the memo 'Instruments outdated'. Earlier also, two cheque were sent by the respondent, but the same were dishonoured and for the same, the complaints u/s 138 of the Negotiable Instruments Act Ex.OP-4 and Ex.OP-5 were filed, but in the present case, no complaint could be filed as it was not dishonoured. The appellant bank has not placed on record any document to prove as to when the cheque was sent to the Punjab National Bank for collection and who delayed the sending of the cheque and ultimately, the validity period of the cheque expired and it was sent back with remarks 'it is outdated'. There is deficiency in service on the part of the appellant bank, but as per the settled law, for the deficiency in service on the part of the appellant, the cheque amount cannot be ordered to be paid. Even in some cases, the cheque is lost and in those cases also, the amount of the cheque is not directed to be paid, only the compensation is paid. Sending of the cheque late as well as the loss of the cheque are almost on same footing and reflect the deficiency in service on the part of the appellant, but the appellant bank cannot be held to pay the cheque amount and is liable to pay only the compensation. We are fortified in this respect from the decision of the Hon'ble National Commission in case "State Bank of Patiala Vs Vishwas Ahula", 2007(1) ISJ (Banking)-432(NC) in which in Para- 3(relevant portion), it was observed as follows:-