CENTRAL BANK OF INDIAN vs Ajay Aggarwal

ON account of having lost of three cheques amounting to Rs. 72,175 issued by respondent No. 2, M/s. Janta Trading Company in favour of respondent No. 1, deposited with the appellant bank the appellant Bank has been vide impugned order dated 21. 7. 2005 directed to credit Rs. 72,175 together with cost of Rs. 10,000.

FEELING aggrieved the appellant has preferred this appeal. Admittedly the earlier cheque issued by respondent No. 2 was dishonoured on account of insufficient fund and second cheque of the same amount was deposited with the appellant bank. Respondent No. 2 was given notice but it did not appear to contest the claim of respondent No. 1.

In such type of cases we have taken a view that unless and until there is unauthorised encashment of such cheque by any third person due to negligence of the bank, the bank cannot be directed to pay the amount of the cheque which the party is entitled to receive from the third party. At the most the bank is liable to pay compensation for the negligence in misplacing the cheque.

PARTIES are always governed by the terms of the contract and there is no term of the contract between the parties that if cheque is misplaced, or lost, the bank shall be liable to credit the amount of the cheque. The act of misplacement of cheque amounts to deficiency in service as defined by Section 2 (1) (g) of the Consumer Protection Act, 1986, which means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertake to be performed by a person in pursuance of a contract or otherwise in relation to any service. As there is no evidence as to the encashment of the cheque by some unauthorised person, the order for directing the appellant bank to credit the amount of cheque was unjustified and uncalled for. Respondent No. 1 was entitled to get another cheque from respondent No. 2 by getting the certificate from the appellant bank or from the bank on which it was drawn that the cheque has not been encashed.

IN the given facts and circumstances of the case, we partly allow the appeal by maintaining the amount of compensation of Rs. 10,000 as to the mental agony, harassment suffered by respondent No. 1, and set aside rest of the order. The payment shall be made within one month from the date of receipt of this order. F. D. R. /bank Guarantee, if any, furnished by the appellant be returned forthwith after completion of due formalities. A copy of this order as per the statutory requirements, be forwarded to the parties free of charge and also to the concerned District Forum and thereafter the file be consigned to Record Room. Appeal partly allowed.