LAKSHMI FABRICATORS vs S.MALLAYYA

THIS appeal is directed against the order dated 29th day of June, 1998 in O.P. No. 505/1994 on the file of the District Consumer Disputes Redressal Forum, Coimbatore.

THE appellant is the complainant; the first respondent is the first opposite party while the second respondent is the second opposite party. Short facts may be related in order to understand the crux of the issue arising for consideration in this action.

The first opposite party issued a cheque dated 15.6.1994 in favour of the complainant for Rs. 47,500/- drawn on the second opposite party. The complainant presented the cheque for collection through their bankers, City Union Bank Limited, Coimbatore. The second opposite party Bank dishonoured the cheque for the reason "alteration in the amount in figures requires authentication from the drawer". The authentication so required by the second opposite party was not procured and obtained by the complainant.

IT is the positive case of the complainant that the dishonour of the cheque by the second opposite party Bank on the facts and in the circumstances of the case would tantamount to deficiency in service on their part. In such a backdrop and setting, the complainant knocked at the doors of the Forum below praying for certain reliefs as against the second opposite party Bank alone impleading the first opposite party as a formal party for effected adjudication.

THE first and the second opposite parties, of course, filed separate versions. THE pith and substance of those versions, which is absolutely necessary for the purpose of the case, bristles to this : THEre was alteration in the amount in figures. THE same required authentication from the drawer. THE authentication so required was not complied with by the complainant. THE dishonour of the cheque in such circumstances is just and proper and according to law. As such, there is no deficiency in service on the part of the second opposite party Bank. THE complaint as such is liable to be dismissed. The Forum below after taking into consideration the materials placed on record, recorded a finding that there was no deficiency in service on the part of the second opposite party Bank and consequently dismissed the complaint without costs. The aggrieved complainant resorted to the present action by engaging a Counsel of his choice namely, learned Counsel M/s. S. Venkatesan and Uma Venkatesan.

ON service of process, the first respondent/first opposite party entered appearance through a Counsel of his choice namely, learned Counsel M/s. M. Sriram and T. Ravi Kumar.

THE second respondent/second opposite party also entered appearance through a Counsel of their choice namely, learned Counsel Mr. K.C. Poulose. We heard the arguments of learned Counsel appearing for the respective parties.

From the pith and submission of learned Counsel appearing for the respective parties, the one and only question that crops up for consideration is as to whether the recording of a finding by the Forum below that there was no deficiency in service on the part of the second opposite party Bank in dishonouring the cheque on the facts and in the circumstances of the case and consequently dismissing the complaint without costs is sustainable in law.

EX. A2 is the cheque dated 15.6.1994 drawn by the first opposite party for Rs. 47,500/- on the State Bank of India, Thallakulam, Madurai in favour of the complainant. The cheque had been presented by the complainant for collection through his bankers, City Union Bank Limited, Coimbatore. Thereafter the complainant got an intimation from the Bank that the cheque so sent for collection had been dishonoured for the reason "alteration in the amount in figures requires authentication from the drawer". It is the positive case of the complainant that such sort of a dishonour of the cheque in question would definitely tantamount to deficiency in service on the part of the second opposite party. The second opposite party Bank on the other hand would contend that they were justified in dishonouring the cheque on the face of the sanguine provision as adumbrated under Section 10 of the Negotiable Instruments Act, 1881 (for short, "the Act, 1881") and, therefore, it is that the dishonour they made of the cheque would not tantamount to deficiency in service on their part at all. The Forum below accepted such a contention of the second opposite party Bank and ultimately dismissed the complaint as earlier stated. In the process of doing so, the Forum below took into consideration certain relevant provisions of Act, 1881 namely Sections 10, 18 and 31 of the Act, 1881. Though the Forum below took into consideration the sections, which ought to have been taken into consideration in arriving at a just decision, yet it thoroughly failed in construing those provisions of the sections of Act, 1881 in the proper perspective. Section 10 of the Act, 1881 deals with the payment in due course. According to the said section, payment in due course means payment in accordance with the apparent tenor of the instrument in good faith and without negligence to any person in possession thereof under circumstances which do not afford a reasonable ground for believing that he is not entitled to receive payment of the amount therein mentioned Section 18 thereof is relatable to amount being stated differently in figures and words. The said section prescribes that if the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words shall be the amount undertaken or ordered to be paid. No doubt true it is that Section 10 precedes Section 18 thereof. The fact that the Section 10 precedes Section 18 by itself is not sufficient to point out that Section 18 is subject to the provisions of Section 10. If Section 18 is subject to Section 10 thereof, it could have been an indication by insertion of a phraseology in the preamble portion of the section itself as "subject to the provision of the section". This sort of a phraseology is significantly absent in Section 10, such being the case, Sections 10 and 18 of the Act, 1881 must have to be read together and a contextual meaning has to be ascribed therefor. If both the sections are read together what is conveyed is that if the amount undertaken or ordered to be paid is stated differently in figures and in words, the amount stated in words, if paid by the banker, shall be construed as payment made in due course. In the case on hand, a cursory perusal or glance or glimpse of the cheque Ex. A2 will make it crystal clear that in the amount in figures, there is some sort of a stroke on the portion of the figure ''5'' in the amount of figures Rs. 47,500/-. Even the presence of the stroke on the figure ''5'' in the figures Rs. 47,500/- is not indicative of the amount to be paid is one other than Rs. 47,500/-. Even assuming for argument sake that it leads to some sort of a thinking or belief that there is some sort of an alteration in figures, then it is incumbent upon the second opposite party Bank to go by the amount given in words in the cheque Ex. A2. The words in Ex. A2 in indicating the amount to be paid is written as "Fourty Seven Thousand Five Hundred Only". Thus in describing the amount in words the spelling for the word "Forty" had been mis-spelt and written as "Fourty". The fact that the spelling of the word "Forty" is mis-spelt as "Fourty" is of no consequence on the facts and in the circumstances of the case. Any person reading the amount to be paid written in words will come to the conclusion that the amount ordered to be paid is Rs. 47,500/- only and not any other amount so as to entertain some sort of a suspicion in the mind of the second opposite party Bank with regard to the amount ordered to be paid on the cheque Ex. A2 issued by the first opposite party. Such being the case, it is incumbent upon the second opposite party banker to honour the cheque without any sort of a murmur or whisper by taking into consideration the cumulative effect of the sanguine provisions of Sections 10 and 18 thereof. Obviously the second opposite party Bank had not done so. The question that we pose for consideration is whether such sort of an act on the part of the second opposite party Bank would tantamount to deficiency in service on their part as relatable to the complainant though it may tantamount to deficiency in service on the part of the second opposite party Bank in relation to the first opposite party.

PERTINENT it is at this juncture to refer to the provisions as adumbrated under Section 31 of the Act, 1881 dealing with the liability of drawee of cheque. The section provides that the drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default. If the section is made applicable to the factual matrix of the case, the position as below would result in. The drawee of the cheque in the case on hand is the second opposite party Bank. If the second opposite party Bank is having sufficient funds of the drawer in his hands must pay the cheque when duly required to do so and in default of such payment must compensate the drawer namely, the first opposite party for any loss or damage caused by such default. It means that the second opposite party is liable to only to compensate the first opposite party drawer of the cheque for improper dishonour of the cheque issued by him. No doubt that nothing is stated in the section as respects the liability of the second opposite party, drawee Bank, to the holder of the cheque namely, the complainant. The fact that the section is silent on such aspect of the matter is of no consequence on the face of the salient provisions as adumbrated under Section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (for short, "the Act, 1986"). Under the said provision, any beneficiary of services other than the person who hires or avails of services for consideration is also a consumer. In other words, the complainant is the beneficiary of the first opposite party consumer. The first opposite party, drawer of the cheque, had issued the cheque for the benefit of the complainant. Such being the case, any benefit which the first opposite party drawer of the cheque/consumer would be entitled to under Section 31 of the Act, 1881, the beneficiary/complainant is also entitled to on the face of the salutary provisions as adumbrated under Section 31 of the Act, 1881 coupled with Sections 2(1)(d)(ii), 2(1)(g), 3 and 14 of the Consumer Protection Act, 1986. The Forum below committed grievous error of construction of those relevant provisions and that perhaps was the reason for its penning down the order now impugned in the present action. Such an order of the Forum below, as such, cannot at all be allowed to stand as it is and the same deserves to be set aside. We accordingly do so. The first opposite party had been impleaded as a formal party for effecting adjudication. This apart, the relationship between the first opposite party and the complainant is that of a consumer and the beneficiary. They sail in the same boat as against the second opposite party Bank. As such the first opposite party cannot at all be mulcted with any liability. Therefore, the question of deficiency in service on the part of the first opposite party will never arise for consideration. Consequently, the question of himself being mulcted with any liability will not also arise for consideration. He, therefore, deserves exoneration. We accordingly exonerated him. Because of the deficiency in service on the part of the second opposite party Bank, the complainant was unable to realise the fruits of the cheque namely, Rs. 47,500/- on and from 15.6.1994, the date of the cheque. The damage or loss sustained by the complainant on and from such date has to be calculated in terms of money. Such calculation in a case of this nature can be computed by award of a reasonable interest on the amount to be paid by the second opposite party, drawee Bank on the cheque Ex. A2 for Rs. 47,500/-. The interest @ 9% per annum on the said amount, if awarded, won''t be besides justice on the facts and in the circumstances of the case inasmuch as the complainant had been deprived of the usage of the money all along. We, therefore, direct the second opposite party, drawee Bank, to pay to the complainant interest @ 9% per annum on Rs. 47,500/- on and from 15.6.1994 till upto the realisation.

IN view of grant of interest, we are not ordering any compensation for the mental agony and anguish said to have been suffered by the complainant.

IN fine, the appeal is partly allowed; the order of the Forum below is set aside and the second opposite party is directed to pay to the complainant interest @ 9% per annum on Rs. 47,500/- on and from 15.6.1994 till realisation. We, however, make no order as to costs in view of the divided success between the parties in the sense of the opposite parties succeeding before the Forum below and the complainant succeeding before us. We, however, make it crystal clear that the order of ours as above is required to be complied with by the second opposite party within a month from the date of receipt of the order, or otherwise, it would be perfectly open to the complainant to invoke jurisdiction of Section 27 of the Act, 1986. Appeal partly allowed.