HARDROK GRANITES vs INDIAN BANK

IN this complaint, under Sec. 17 r/w Sec. 12 of the Consumer Protection Act, 1986, the complainant has sought compensation in a sum of Rs. 2,31,543/- with interest thereon from the opposite party-INdian Bank.

THE complainant is a business concern, engaged in the business of exporting granites. THE complainant had certain business transactions with M/s. Kaveri Minerals Exports, Bangalore. THE complainant was to receive certain amounts from the said M/s. Kaveri Minerals Exports, towards the supplies effected by the complainant to it. THE said M/s. Kaveri Minerals Exports, delivered to the complainant 4 postdated cheques - Cheque dated 19.5.1991 for a sum of Rs. 56,250 / -, as per Ex. C 1; cheque dated 8.5.1991 for a sum of Rs. 1,02,411/- as per Ex. C2; cheque dated 8.5.1991 for a sum of Rs. 35,437/- as per Ex. C 4 and cheque dated 13.5.1991 for a sum of Rs. 84,375/- as per Ex. C 3 to the complainant drawn on the opposite party-Indian Bank. All the four cheques were account-payee cheques. The complainant presented 3 cheques - Exs. C-2, C-3 and C-4 for payment to the opposite party Bank. It may be mentioned here itself that the complainant had no accounts with the opposite party-Bank. It was only M/s. Kaveri Minerals Exports, had the accounts with the opposite party Bank. So those three cheques were presented to the State Bank of India, Shivaji Nagar Branch, Bangalore, as the complainant had the account in the said bank. The said 3 cheques were sent by the S.B.I., Shivajinagar Branch, to the O.P. Bank for clearance, but those cheques were dishonoured by the opposite party with an endorsement ''Effects not yet cleared please present again''. Thereafter those cheques were presented again. Even at that time those cheques were dishonored with the same endorsement.

Thereafter the executive of the complainant - C.W-1, met the then Manager of the O.P. Bank - R.W-1, had discussions with him with regard to representation of the cheques and as per suggestions of the then Manager - R.W-1, C.W-1 handed over all the 4 cheques Exs. C-l to C-4 to R.W-1 with a request that the O.P. Bank should issue pay orders against the abovesaid unpaid cheques. They were handed over on 27.5.1991 under a covering letter, Ex.C-7.

THE opposite party - Bank issued pay order on 29.5.1991 for a sum of Rs. 56.250/- in respect of cheque under Ex. C 1 and promised to issue pay orders for the remaining cheques. Subsequently the OP-Bank issued a pay order for a sum of Rs. 35,437/- in respect of the cheque under Ex. C 4; but thereafter the opposite party failed to issue pay orders in respect of cheques under Exs. C 2 and C 3. THE complainant sent reminders to the opposite party and when he did not receive any reply from the Bank issued a legal notice to the opposite party demanding the payment, as per Ex. C 12. The complainant nextly averred that dishonour of 3 cheques made by the opposite party-Bank with the endorsement "effects not yet cleared please present again", was a false endorsement issued by the opposite party.

THE opposite party subsequently did neither issued pay orders in respect of cheques under Exs. C 2 and C 3 nor returned those cheques to the complainant thereby the opposite party committed deficiency in service. THE complainant, on the basis of these averments, sought the amounts of the cheques under Exs. C 2 and C 3 with interest thereon from the OP. The opposite party-Bank filed its version and averred that the complaint itself was untenable on the basis of non-joinder of parties as M/s. Kaveri Minerals Exports was not made the party to the proceeding. The opposite party admitted the fact that 3 cheques under Exs. C 2 to C 4, that is, account payee cheques, issued by M/s. Kaveri Minerals Exports in favour of the complainant were sent for payment through the Banker of the complainant, that is. State Bank of India, Shivajinagar Branch, Bangalore. It also admitted that those cheques could not be honoured as the funds were not available in the Bank against the account of M/s. Kaveri Minerals Exports.

THE opposite party further averred that the complainant had handed over 4 cheques on 27.5.1991 with a request to issue pay orders as and when the funds were available in the account of M/s. Kaveri Minerals Exports. When the amount became available the cheque under Ex. C 1 was honoured and subsequently Ex. C 4 was also honoured.

THE opposite party nextly averred that by the month of Nov.,1991 those cheques, under Exs. C 2 and C 3, had become time-barred and as per the instructions of the representative of the complainant and the representative of M/s. Kaveri Minerals Exports, those 2 cheques - Ex. C 2 and C 3, came to be returned to the representative of M/s. Kaveri Minerals Exports. The opposite party further averred that subsequent thereto the complainant had received sums from M/s. Kaveri Minerals Exports against those two cheques, Exs. C 2 and C 3. The opposite party, on the basis of these averments, submitted that it had not committed any deficiency in service and sought the complaint to be dismissed.

During enquiry, the executive of the complainant firm, was examined as C.W 1 and got Exs. C 1 to C 13 marked in evidence. The then Manager of the OP Bank was examined as RW 1; the opposite party also examined RW 2 - the proprietor of M/s. Kaveri Minerals Exports, and got Exs. R 1 to R 9 marked in evidence.

WE have heard the learned Counsel for the parties, perused the pleadings and the material on record. It is not disputed that M/s. Kaveri Minerals Exports had issued 4 post-dated cheques in favour of the complainant. It is also not disputed that all the 4 cheques were account payee cheques. It is also not disputed that the complainant had no accounts with the OP-Bank. So the complainant had presented 3 cheques under Exs. C 2 to C 4 to his Bank that is. State Bank of India, Shivajinagar Branch, Bangalore, for encashment. It is the State Bank of India which had sent those 3 cheques to the OP-Bank for clearance. Those 3 cheques were not honoured and sent back with an endorsement "effects not yet cleared please present again". Those 3 cheques were presented on two occasions and on both the occasions that was the endorsement given by the OP-Bank. It is the case of the complainant that that endorsement was a false endorsement given by the opposite party Bank. On the other hand the opposite party stated that as funds were not available in the account of M/s. Kaveri Minerals Exports, to honour those cheques, so those cheques could not be honoured. The complainant has not placed any material on record to show that that endorsement given by the opposite party-Bank stating that effects not yet cleared please present again, was a false endorsement. So having regard to this fact it cannot be said that the opposite party committed deficiency in service in giving such an endorsement.

THE learned Counsel for the complainant submitted that the opposite party-Bank committed deficiency in service in handing over two cheques under Exs. C 2 and C 3 to M/s. Kaveri Minerals Exports. THE complainant handed over those 4 cheques under Exs. C 1 to C 4 to RW 1 on 27.5.1991; out of those 4 cheques, Exs. C 1 to C 4, the amounts under two cheques, Exs. C-l and C- 4 were paid by the OP-Bank on 29.5.1991 and on 16.11.1991 respectively. THE amounts under other two cheques, Exs. C 2 and C 3, were not paid but those two cheques were returned to the representative of M/''s. Kaveri Minerals Exports as by that time they had become time-barred. As referred above, all the 4 cheques were account payee cheques issued by M/s. Kaveri Minerals Exports in favour of the complainant who had no account with the opposite party-Bank. M/s. Kaveri Minerals Exports had the accounts with the OP-Bank. The complainant, at para 3 of his complaint in this regard, her stated, thus: "3. In the circumstances stated above, the authorised Executive of the complainant-Mr. K.A. Kunja met the then Manager of the 1st respondent namely - Mr. Sunil K. Rao and had discussions with him with regard to re-presentation of cheques. As per the suggestion of Mr. Rao, Mr. Kunja handed over all the four cheques to him with a request that the 1st respondent should issue pay orders against the above unpaid cheques."

This would go to show that those four cheques did not go into the account of the opposite party- Bank, they were handed over to Mr. Sunil K. Rao RW 1 under certain private understanding. There is no material placed on record by the complainant to show that these 4 cheques, when the complainant had handed over them to RW 1, on 27.5.1991, went into account of the OP- Bank. It was only a private understanding between the representative of the complainant and Mr. S.K. Rao. Having regard to this fact, it is very difficult to say that the complainant had either hired or availed the services of the opposite party-Bank. Having regard to these facts, we are constrained to take a view that the complainant had not availed the services of the opposite party-Bank by handing over 4 cheques to RW 1.

THE opposite party has even examined the proprietor of M/s. Kaveri Minerals Exports as RW 2 who has stated that subsequently he had made the payment of the amount to the complainant under those two cheques Exs. C 1 and C 4. THE opposite party has also produced copies of letters, Exs. R 3 to R 8, written by M/s. Kaveri Minerals Exports to the OP to show that certain amounts under those two cheques, Exs. C 2 and C 4 were subsequently paid to the complainant. We are not much concerned with this aspect of the matter as we are of the opinion that the complainant had not availed the services of the opposite party in handing over the cheques to RW 1 when those cheques did not find place as deposited in the accounts of the opposite party Bank.

WE find that RW 1 committed a great mistake in receiving those 4 account payee cheques and keeping them with him without taking those cheques in the account of the opposite party-Bank. It is for the authorities of the Bank to inquire into this callousness committed by RW 1 - a responsible officer, that is. Manager of the Bank by receiving such account payee cheques from the party and keeping them with him without taking those cheques into the account of the Bank. Having regard to these facts and in the circumstances of the case, we are constrained to hold that the complainant has failed to substantiate his grievance. ORDER In the result, therefore, this complaint fails and it is dismissed. The parties are directed to pay and bear their own costs in this proceeding. Complaint dismissed.