MOHAN LAL GUPTA vs BRANCH MANAGER, J And K BANK LTD.

BRIEFLY stated the case of complainant is that opposite party No. 4 is a Colonizer and deals with sales and purchase of land in Delhi. Complainant''s brother Surrinder Gupta happens to be friend of O.P. No. 4 who runs various types of business. O.P. No. 4 was in dire need of money. He requested his friend brother of complainant at Delhi to arrange for Rs. 4.50 lakhs and assured him that the money will be returned after 2 years and 3 months with 1.62 per cent interest per month which comes to Rs. 19.44 per cent p.a. Complainant''s brother Surrinder Gupta requested complainant to pay the said amount to the O.P. No. 4 who had come to Jammu. Complainant came to Jammu and handed over the cheque No. 963665 dated 4.12.2000 for Rs. 6.50 lakhs in the name of complainant. It was on 15.12.2002 that the complainant deposited this cheque in his saving bank account in O.P.''s No. 1 Bank i.e., J & K Bank Ltd., Town Hall Building, Jammu with the request that the money be collected and be credited to his account.

O.P. No. 1 sent this cheque to their office RCC, New Delhi for collection. RCC New Delhi sent it further to O.P. No. 2 i.e., State Bank of India, New Delhi for collection because O.P. No. 4 who had issued the cheque in favour of complainant who had his account in Bikaner Bank, Jaipur. O.P. No. 2 vide their Annexure 2 admitted that the cheque was received by them and was returned for insufficient of funds in the account of O.P. No. 4. They again sent it to RCC, New Delhi who sent it to O.P. No. 1 through Courier O.P. No. 3. This cheque was lost in transit from RCC, New Delhi to O.P. No. 1 Jammu. This is admitted by O.P. No. 3 i.e., Linker Courier Service vide Annexure-C. With the result amount was not paid to the complainant nor the cheque was returned to him. O.P. No. 1 was put to registered notice by the complainant. O.P. No. 1 admitted that the cheque was lost in transit. All the O.Ps. were summoned. It is only O.P. No. 1 who has contested the case. O.P. No. 1 denied liability and deficiency in service on the ground that his job was to send the cheque for collection. He sent it through its office RCC New Delhi to O.P. No. 2 Bikaner Branch and Bikaner Branch O.P. No. 2 also admitted that they received the cheque and returned it for insufficient funds. Complainant ultimately was not returned the original cheque and was thus deprived of filing a complaint under Section 138, Negotiable Instruments Act against O.P. No. 4. He was tossed by the O.Ps. who shifted the liability to one another. Complainant has filed this complaint in which he has requested to be indemnified by making the O.Ps. liable not only to pay Rs. 6.50 lakhs with 18 per cent interest but compensation too.

Heard learned Counsels for complainant and O.P. No. 1. Facts are admitted by O.P. No. 1. Receipt of the cheque was admitted and it was admitted that the cheque was lost in transit. Manager of the Linkers Couriers Service O.P. No. 3 vide communication dated 9.3.2001 addressed to the Manager, JK Bank Ltd. RCC, New Delhi admitted that the document was misplaced by his Delivery Person and has regretted the matter.

NOW the only question is as what is the liability of the O.P. individually and collectively for this mishap. It is also a fact that complainant has been tossed so far and thus was deprived from initiating criminal proceedings. Learned Counsel for the complainant has vehemently argued that it is a liability of both O.P. No. 1 and O.P. No. 3 to indemnify the complainant for whole principal amount, interest and compensation. Learned Counsel for the O.P. has relied on Mrs. Meera Bhat v. Manager, Syndicate Bank, Appeal No. 6 of 1991 dated 6.8.1991, decided by State Consumer Disputes Redressal Commission, Kerala. In this case also cheque was lost in transit. It was held that under rules the Bank was not liable for any delay/lost of an instrument. As per agreement collection of amount was entirely at the risk and responsibility of complainant who also had agreed by way of special contract vide B1 document.

WE have gone through this authority. In this case Exhibit B1 was filed by the Bank which was an agreement between the parties that the collection of amount is entirely at the risk and a responsibility in all respects of the complainant. Here in the case in hand there is no such document placed on record nor is any agreement between the parties. We have given due consideration to the pleas taken by the learned Counsel for the O.Ps. We feel that the cheque was entrusted to O.P. No. 1 by the complainant for collection through their own Branch RCC, New Delhi. RCC, New Delhi further sent it to the Bikaner Branch of State Bank of India, Jaipur which reached to RCC, New Delhi so O.P. No. 2 has done its job. It is explicitly clear that there is no responsibility of O.P. No. 2. Sofar as the O.P. No. 4 is concerned who has originally issued the cheque is nowhere connected with hiring of services by the complainant notwithstanding it apparently seems to be his civil and criminal liability for issuing a cheque when he had no sufficient funds in O.P. No. 2 Bank. However, it is the claim which complainant will have to be proved in a Civil Court or if he wishes he can approach the Criminal Court as well. Rights cannot be determined by this Commission in a summary trial.

SO far as the part of negligence is concerned and the harassment caused to the complainant that is well to be looked into by this Commission. It is explicitly clear that the O.P. No. 1 and O.P. No. 3 have not taken proper measures for the safe transit of this huge amount. Principal amount of Rs. 6.50 lakhs is, no doubt, a huge amount. It should have atleast been insured and should not have been sent in a ordinary manner. RCC, New Delhi should have taken perfect measures to send it through Government Agencies such as Posts and Telegraphs Department and should have insured it. That has not been done which resulted in the loss of the cheque.

O.P. No. 1 here can be equated as bailee of movable property which can be bailed to a person for safe custody under the Contract Act. Under Section 151 if the said goods are lost while in his custody, in order to exonerate, bailee himself must show some circumstances which negatives the idea of negligence on his part. The loss itself prima facie is an evidence of bailee''s negligence and burden is on him to prove otherwise. In this case there is not an iota of evidence on the part of O.P. Nos. 1 and 3 that they have taken sound measures for the safe transit and custody of the cheque which involved huge amount. Here the negligence has started on the part of both the opposite parties i.e. O.P. No. 1 and O.P. No. 3. They have not insured the cheque and have sent it in an ordinary way and they have admitted that their Deliveryman has misplaced the same, with the result complainant has been deprived of this huge amount for near about 2 years which has caused mental agonies to him to a greater extent.

Now the complainant at a very belated stage has either to approach the Criminal Court under Negotiable Instruments Act or has to approach the Civil Court and has to arrange for a huge amount on account of Court-fees and has to wait for years together for the result of the suit. We feel that this Commission is not armless to come to the rescue of the complainant and for not asking O.P. Nos. 1 and 3 to compensate him for the harassment and agonies caused to him. The complainant is within his rights to seek remedy in a Civil Court or a Criminal Court as he wishes for the principal amount and interest thereon. This has been done by the Commission in several cases. See CPJ 232 of 1995, another CPJ 239 of 1995. In this case also the cheque was lost in transit, exemplary damages were given to the complainant.

TAKING the totality of the circumstances into consideration, we feel that the complainant has got remedy for recovery of the principal amount and interest thereon by approaching Civil Court or other remedy which is available to him under law. But for the negligence of O.P. Nos. 1 and 3 which has caused great harassment and sufferings to the complainant sofar, we direct O.Ps. 1 and 3 to pay Rs. 50,000/- as compensation to the complainant. They are equally liable to pay the same within a period of 3 weeks from today failing which they will have to pay 9 per cent interest on this amount. As the complainant has approached this Commission with bona fide intention to get a speedy remedy which ultimately is not given by us for the reasons elucidated above. The Commission, however, at the same time expects the Civil or Criminal Courts or any other Competent Authority to whom the complainant may approach for redressal of his abovesaid grievance may consider the period spent by the complainant before this Commission in prosecuting his complaint and may not deprive him though the remedies available to him before civil or other authorities on point of limitation period.

THE complaint is accordingly disposed of. Complaint disposed of.