CANARA BANK vs TUSHAR SHANKARBHAI PATEL

THIS appeal has been correctly listed on our today''s Board under the caption of final hearing. However, none is present on behalf of appellants although being aware of today''s date.

IT is noted that the Consumer dispute being the subject matter of the appeal herein is lingering since 1995 initially before the District Forum and from 1997 before this Commission. As is the position being a consumer dispute Statute viz. Consumer Protection Act, 1986, mandates disposal of the consumer dispute with quick despatch. As seen earlier, the dispute is pending for nearly 9 years, that we proceed to dispose of the same on the basis of material available before us. As stated none is present on behalf of appellants. (For brevity''s sake appellant is original O.P., is referred to as ''Bank'' and respondent/original complainant as ''complainant'').

Bank is appellant in this appeal who is challenging the legality and validity of order dated 15.10.1996 passed by the Mumbai Suburban District Forum holding it deficient in the matter of cheque for a sum of Rs. 29,000/- and debiting the amount thereof in the account of the complainant without exercising proper precaution and care when the cheque in question was forged one apparent on face of it. So holding the Forum has ordered to pay an amount of Rs. 29,000/- wrongfully debited in the account of the complainant with 12% interest from the date of debit plus Rs. 1,000/- cost. Few relevant facts:

IT is noted that the complainant was an account holder with the Bank as such a consumer. On 27.9.1994 one Mr. Shivaji Ganpat Shinde presented the cheque of Rs. 29,000/- bearing No. 0858333 purported to have been issued and signed by the complainant in his account with the Bank and the bank without proper verification/care paid the amount to the said Mr. Shinde accepting it as a bearer cheque on the very day.

WHEN the complainant received the statement of account he noticed debit entry of Rs. 29,000/- and on inquiry it turned out to be that the amount was paid in a manner as above on the footing that it was a bearer cheque favouring Shri Shinde. The complainant pointed out that the cheque in question was issued by him was for Rs. 21,000/- favour of M/s. Patel On Board Couriers Pvt. Ltd., in connection with payment of share amount. The cheque was made "Accounts Payee only". Complainant when enquired he was shown the cheque by the Bank and complainant realised that tamperings were done on the cheque in question which were so apparently visible even with naked eye. However, Bank did not exercise due precaution and wrongfully made payment. Hence the complaint.

BEFORE the District Forum Bank responded and denied it being negligent and deficient and pointed out the person viz. Shri Shinde to whom the amount was paid used to represent the complainant and, therefore, the payment was made to him.

SUCH explanation was not found acceptable to the District Forum and in our view it is right. We notice that the District Forum referring Section 89 of Negotiable Instruments Act which envisages the Bank to be diligent and exercise precaution before allowing negotiation and clearance of Negotiable Instrument like the cheque herein, has failed in its duty.

It is noticed that the District Forum also examined the Cheque in questioned and what it observed is also reflected in the body of the judgment.

THE District Forum observed that bare glance showed that the cheque in question was tampered. In our view with the facts as above, conclusion made by the District Forum requires to be confirmed with.

APART from the fact, Section 89 of Negotiable Instrument Act casts against duty upon the Banks to be cautious and diligent in allowing negotiation of the instruments, like cheque herein which is a Negotiable Instrument. When tamperings were apparent to the bare glance, it was duty of the Bank to be careful in allowing negotiation of the cheque. We do not find any merit in this matter. There is only one point which requires consideration. The District Forum has given 12% interest which in our view appears to be on higher side, as the bank is a Financial Institution, in our view interest at the rate of 7% will be fair and reasonable and we modify the same. ORDER Appeal is partially allowed to the extent as under: 1. Findings of the District Forum holding O.P. Bank being deficient in services stands confirmed. 2. Order of the District Forum to refund a sum of Rs. 20,000/- stands confirmed. 3. Rate of interest of 12% p.a. stands reduced to 7% with effect from 27.9.1994 till realisation i.e., 31.7.1997. 4. Cost as awarded also stands confirmed. 5. As far as this appeal is concerned No orders to cost. 6. Office to furnish copies of the order to the parties.

Appeal partially allowed.