DEVA PRIYA DEV vs CITI BANK

-THIS is an Appeal directed against the judgment and order passed by the learned District Forum, CDF-I, in CDF-1/case No. 234/2005 on 7. 3. 2007 directing the Respondent No. 1 OP No. 1 to pay compensation of Rs. 4,000 together with cost of Rs. 1,000. However, though the award went in favour of the Complainant, not being satisfied with it he preferred the present Appeal.

THE facts of the case briefly are that the Appellant received a cheque for Rs. 47,795 on 2. 7. 1999 issued by the Respondent No. 3 towards compensation in respect of the land acquired by them for Rajarhat Project, which was drawn on State Bank of India, Barasat Branch. The said cheque was deposited to the account number G. O. 265266002 of the Appellant with the CITI Bank, Kolkata, for credit to his account. Allegedly the cheque in question did not contain the signature of the Appellant and, therefore, the cheque was sent by the Respondent No. 1 to the Appellant''s address at London. However, the cheque was lost in transit and consequently the proceeds of the cheque could not be credited to his account. Being aggrieved by the alleged loss of the cheque in transit by the Respondent No. 1, he filed a complaint before the Forum below praying for compensation and cost and also for payment of the cheque amount. The learned Forum after hearing all the sides passed an order directing the Respondent No. 3, i. e. the cheque issuing authority, to issue a fresh cheque in favour of the Appellant/complainant after obtaining necessary Certificate from the drawee bank. It also passed an order for payment of compensation of Rs. 4,000 together with cost of Rs. 1,000 by the Respondent No. 1 to the Appellant. The Appellant in his Memo of Appeal contended that for the purpose of his profession he is permanently settled at U. K. He has executed a Power of Attorney in favour of his sister, Smt. Dipanjana Choudhury, for institution of the instant complaint against the Respondents for redressal of his grievances. He further contended that in his prayer before the Forum below he had prayed for payment of the cheque amount and also for payment of compensation of Rs. 30,000 together with Litigation Cost of Rs. 20,000. But the learned Forum had passed an order allowing a small amount of compensation and cost without proper consideration of the facts and circumstances of the case and the suffering and mental agony he has faced. He, therefore, prays for payment of compensation of Rs. 30,000 as also Litigation Cost of Rs. 20,000 in addition to the cheque amount. He further contended that though he had made several correspondences with the Respondent Nos. 1 and 2, no action had been taken to recover the cheque amount and there was an attempt for shifting of responsibility by both the Respondents. He had prayed before the learned Forum for directing the OP Nos. 1 and 2 for furnishing the details of dispatch of the cheque and the Forum passed an order accordingly. But the OP Nos. 1 and 2 had nevertheless failed to furnish those details, as a result of which it became difficult to pin-point as to who is actually responsible for deficiency in service on account of loss of the cheque. He also contended that the cheque should have been sent by registered post, but the OP Nos. 1 and 2 failed to satisfy the Court as to how they had dispatched the cheque to the address of the Appellant. Having failed to elicit the response regarding supply of details relating to the dispatch of the cheque he sent a Lawyer''s Notice on 31. 8. 2004 to the Respondent Nos. 1 and 2. But even then there was no response from the Respondents. He contended further that in view of the facts and circumstances of the case the deficiency of service in terms of Section 2 (1) (g) of the Act was writ large on the face of the complaint and the learned Forum had passed an order accordingly though it should have directed the OP Nos. 1 and 2 to pay the cheque amount also. However, the other reliefs as prayed for by him are very small amount considering the harassment and mental agony suffered by him. Hence, he has come up with the prayer for considering his original prayer for relief as contained in the complaint.

The Respondent No. 2 in their written argument contended that the said cheque was deposited in the account of the complainant around 12. 7. 1999 and the same being unsigned they had to send it to the complainant and in that process the cheque got lost. Therefore, they are not responsible for loss of the cheque as it was the Postal Department from whose custody it was lost. They contended that they were ready to help the Appellant to obtain a fresh cheque from the issuing authority. They further contended that they had asked the Appellant to ascertain the status of payment of the cheque from the Respondent Nos. 3 and 4, but the Appellant failed to do so. The learned Forum also passed an order directing the Respondent No. 4 to furnish the status in respect of the lost cheque, but they also failed to do it. Therefore, the learned Forum was fully justified in issuing a direction on the Respondent No. 4 to issue a fresh cheque for the like amount. The Respondents contended that the Appeal filed by the complainant should be dismissed.

WE have perused the Memo of Appeal and the written arguments filed by the Respondent Nos. 2 and 4 and the impugned judgment passed by the learned Forum. Though the Respondent Nos. 3 had appeared, they did not finally contest the case. We find that the Appellant had deposited a cheque of Rs. 44,795 being Cheque No. 449876 drawn on State Bank of India, Barasat Branch, issued by the Respondent No. 3. The said cheque was allegedly sent by the Respondent No. 1 to the address of the Complainant at U. K. for his signature as the cheque did not contain his signature on the reverse side. The cheque got lost in transit and, therefore, the whole dispute had arisen. The loss of cheque is certainly an act of deficiency on the part of the Respondent Nos. 1 and 2 as the Appellant had deposited the same to his account maintained with the Respondent No. 1. The contention of the Respondent Nos. 1 and 2 that the postal authority was responsible for the loss of the cheque since it was lost in transit is not acceptable to us. The Respondent No. 1 had chosen to send the cheque to the Appellant through a particular mode of dispatch and it is entirely their responsibility if the cheque does not reach the addressee. In this context, we are inclined to refer to a decision in II (2006) CPJ 185 (NC)=2006 CTJ 429 (CP) (NCDRC), Mohd. Ayub v. Central Bank of India and Anr. , wherein the OP-Bank was found negligent on account of deficiency in service due to misplacement of a bank draft paid by the petitioner to the OP-Bank which ultimately lapsed. The OP was directed to pay the equivalent amount in Indian currency for $ 1400. 92. In 2007 CTJ 273 (CP) (NCDRC), Oriental Bank of Commerce v. Jasbinder Singh, wherein it was held by the Hon''ble National Commission that loss of cheque from the custody of the OP-Bank is a clear instance of deficiency of service on the part of the OP-Bank and it was directed to pay compensation of Rs. 20,000. In the present case, considering the fact that the amount of the cheque was only around Rs. 47,000, we are inclined to say that the amount of compensation passed by the learned Forum appears to be reasonable. However, we are of the view that the learned Forum had overlooked the prayer of the complainant for payment of interest @ 18% p. a. on the cheque amount. Since the cheque amount had not been received by the Appellant-Complainant long after the issuance of the cheque due to proven deficiency on the part of the Respondent Nos. 1 and 2, the Appellant deserves to be compensated by way of payment of interest. It is accordingly ordered that in addition to the compensation as ordered by the Forum below, the Respondent Nos. 1 and 2 shall pay interest on the cheque amount @ 9% (nine per cent) p. a. with effect from 1. 9. 1999, i. e. after the receipt of the legal notice from the complainant, till the amount is paid in full to the Appellant. We are also of the view that the order passed by the Forum below directing the Respondent No. 3 to issue a fresh cheque after obtaining necessary certificate from its banker, the Respondent No. 4, is a reasoned order. Since the cheque could not be encashed, the Respondent No. 3-drawer is morally as well as legally in obligation to issue a fresh cheque in favour of the Appellant as they retained the entire amount of the cheque with them till now without paying any interest thereon. The Appeal is allowed in part on contest against the Respondent Nos. 1, 2 and 4 and ex parte against the Respondent No. 3 without cost. The order of the Forum below dated 7. 3. 2007 be affirmed subject to the above modification. The amounts as ordered shall be paid within 30 (thirty) days from the date of communication of the order, failing which the amount will carry interest @ 10% (ten per cent) p. a. till they are paid in full. Appeal partly allowed.