Punjab National Bank vs DHIMANT J.RAVAL

THIS appeal arises from order dated 24.6.1996 rendered by the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad in Complaint No. 770/94.

THE complainant applied for six right debentures and three additional debentures of Arvind Mills Ltd. through Bank of Baroda being opponent No. 1 in the complaint and issued cheque for the application money in the sum of Rs. 2,160/- drawn on Punjab National Bank, Maninagar Branch [Punjab National Bank being opponent No. 2 and appellant herein). THE cheque- was returned by Punjab National Bank, Sanjivni Road Branch with endorsement "Not drawn on our office". THE complainant sought for the details about the return of the cheque. THEreafter, on 20.11.1992 the complainant applied again for the debentures but the cheque was returned on account of the fact that the issue for the debenture was closed. THE result was the complainant could not get right debentures. THE complainant, therefore, claimed damages in the sum of Rs. 12,000/-, cost of Rs. 3,000/- and compensation in the sum of Rs. 3,000/-, totalling to Rs. 18,000/-. The first opponent did not file reply or written statement but the second opponent being Punjab National Bank contested the complaint inter alia on the ground that the cheque was sent by the opponent Bank of Baroda to Sanjivni Branch and the same was returned with endorsement "not drawn on our office" and, therefore, opponent No. 2 would not be responsible or answerable for such dishonour of the cheque. The learned Forum, dealing with this contention observed that even if the cheque was sent to wrong branch of Punjab National Bank being opponent No. 2, the said Bank could have transmitted the cheque to the correct branch and in not doing so the Bank was guilty of deficiency of service vis-a-vis the complainant. That is-how the learned Forum has granted the complaint directing the opponent No. 2 to pay to the complainant Rs. 12,000/- with interest at the rate of 18% from 1.6.1993 till payment and cost and damages in the sum of Rs. 2,500/-.

We have heard learned Advocates for the parties. Mr. Keshwani, learned Advocate appearing for the appellant made the same submissions. According to him the negligence, if any, was on the part of the first opponent being Bank of Baroda in not sending the cheque for clearance to the correct branch of Punjab National Bank. Besides, the complainant also did not issue any notice to Punjab National Bank prior to the complaint and it was only on account of the suggestion of the Bank of Baroda that the complainant joined Punjab National Bank as party opponent in the complaint. It is not in dispute that the complainant had the account with Punjab National Bank, Maninagar Branch and he drew the cheque from that account. Therefore, prima facie, it was the duty of Punjab National Bank to see that the cheque was honoured if there was balance and the signature of the drawer tallied with the specimen signature. If for some reason or the other the cheque went to Sanjivni Road Branch, in the ordinary course of banking business that branch could have transmitted the cheque to the correct branch. It has been submitted by Mr. H.R. Shah, learned Advocate appearing for Bank of Baroda that the cheque was handed over to the clearing agent of the Punjab National Bank in the clearing house and, therefore, in no manner Bank of Baroda could be said to be deficient in rendering of service with regard to sending the cheque for clearance. As a cumulative effect of all these facts it would be apparent that there is deficiency in service on the part of Punjab National Bank itself with whom the complainant had the account from which the cheque was drawn. We do not find any flaw in the ultimate conclusion rendered by the learned Forum with regard to opponent No. 2 being deficient in service in this matter. Mr. Keshwani read certain averments in the complaint as well as pointed out absence of Bank of Baroda''s reply before the learned Forum. That takes the matter neither here nor there inasmuch as the fact that the complainant had account with Punjab National Bank, Maninagar Branch and that the complainant drew the cheque from that account is not in dispute. It was next submitted that the cheque was returned on 16.10.1992 and there was no reason for Bank of Baroda not to present it again on the next date so that before the closure of the issue on 20.10.1992 the cheque could have been cleared. Now, this flaw alleged by the opponent No. 2 against opponent No. 1 would relate to the cause that might arise in favour of opponent No. 2 when opponent No. 2 has an occasion to deposit the amount that might be approved by this Commission. That in legal parlance relates to the principle of contribution between the joint tort-feasors. We do not express any opinion on this aspect of the matter because it would be premature to do so inasmuch as when such a case is set up by Punjab National Bank in any proceedings it will have to be decided after considering the rival cases of such parties. Therefore, in the absence of any appeal by the complainant against Bank of Baroda, the question is not required to be decided and need not be decided as aforesaid.

THAT would take us to the question of damages. On a plain reading of the complaint we did not find any averment with regard to how the complainant sustained damages. There is no material to show that there was particular difference between the price at which the complainant applied for the debentures and the prevailing market price. There is no averment on the part of the complainant that he wanted to avail right debentures for the purpose of re-sale in order to earn profit. Admittedly, the complainant has not purchased the right debentures from the market for the purpose of seeing that the damages, if any, might be mitigated [See Section 73 of the Contract Act]. It may be noted that it was only the cheque of application money which the complainant tendered and further payment as per the application for right debentures was to ensue in future. It is not in dispute that he has also received the amount of cheque back in his account inasmuch as the cheque was never honoured. Therefore, there is no loss 11th regard to application money also. It is settled position of law that damages have not only to be pleaded but also have to be established and the party seeking damages has also to show that he takes steps to mitigate the damages. All that is missing in so far the present case is concerned right from the complaint till the matter was decided by the learned Forum. The learned Forum has not assigned any reason for awarding Rs. 12,000/-. Therefore, the direction with regard to claim of Rs. 12,000/- will have to be set aside. Insofar as cost and compensation for harassment is concerned, the combined sum of Rs. 2,500/- appears to be quite reasonable and we do not propose to interfere with that part of the order. In the result, we pass following order.

THE impugned order dated 24.6.1996 rendered by the Consumer Disputes Redressal Forum, Ahmedabad City, Ahmedabad in Complaint No. 770/94 is hereby modified to the effect that instead of Rs. 12,000/- and Rs. 2,500/-, the opponent No. 2 being the appellant herein shall pay to the complainant Rs. 2,500/- with running interest @ 12% from the date of the complaint till payment with a rider that by way of concession if the amount of Rs. 2,500/- is paid by opponent No. 2, i.e. appellant herein within 4 weeks from today, the running interest on that amount shall be waived. This appeal is accordingly partly allowed, with no order as to costs. Appeal partly allowed.