Rattan Chand vs State Bank of India

-ADMITTED facts giving rise to this case are, that the appellant as a customer of the respondentbank, was having current account "along with" one Smt. Manorma Devi at its Bilaspur branch. It is further not in dispute that on 30. 10. 1999, he deposited a cheque of Rs. 1,07,000 in his account for being collected through the drawee Bank i. e. Punjab National Bank at its Bilaspur branch. It was dishonoured. As per stand of the respondent-Bank, the memo, issued by the Bank of the drawer of the cheque was that its payment was stopped. Further case of the respondent as set out in its reply was that the cheque in question was sent by ordinary post on 3. 11. 1999.

WHEN the account of the appellant was not credited with the amount in question nor did he receive any information regarding dishonouring of the cheque, he got a legal notice issued, Annexure C. 4, on 16. 11. 1999 and it was replied to by the bank on 20. 11. 1999. Stand of the bank is precisely the same as noted hereinabove. In this background, appellant was entitled to atleast return of the dishonoured cheque so that he could think of dealing with it in the manner he liked. On the other hand, case of the appellant is that the dishonoured cheque was not received by him even after issuance of legal notice. In these circumstances, he filed the complaint before the District Forum below which has been dismissed. Hence, this appeal.

When hearing in this case commenced, learned Counsel for the appellant stated at the bar that her client has been paid a sum of Rs. 1,07,000 on 31. 5. 2006 by the drawer of the cheque. As such, she prayed for allowing interest, compensation for undue harassment and cost of litigation. On the other hand, learned Counsel for the respondent Mr. Sharma submitted that Annexure R. 3 is the copy of the Postage Book of the bank where at Sr. No. 15, there is a mention of dispatch of dishonoured cheque to the appellant. In this view of the matter, according to him, averments to the contrary without basis in the facts of this case and thus the impugned order calls for no interference. Further, according to him, the complaint was bad for non-joinder of other joint account holder as well as the drawee bank i. e. Punjab National Bank, Bilaspur, and lastly he urged that the appellant was informed on 6. 11. 1999 vide Annexure C. 3 regarding dispatch of dishonoured cheque by ordinary post. So, no loss having been suffered by the appellant, consequently there was no deficiency in service on the part of his client. He thus prayed for dismissing the appeal by upholding the impugned order.

IN the face of the admitted facts as well as the stand of the appellant and documents filed by him on record, we are satisfied that it was the duty of the respondent to have handed over the dishonoured cheque along with the memo of the drawee bank i. e. Punjab National Bank, Bilaspur. There could be different modes of delivering the cheque; one being by handing it over against receipt; and the other could be, sending the same through safer mode like registered post prepaid at his correct address to which presumption is attached in law. None of these modes were adopted for the purpose of ensuring delivery of the dishonoured cheque to the appellant. Under law, it is well known that there is no presumption attached to a letter sent by ordinary post. Therefore, plea based on Annexure R. 3 and reply to notice vide Annexure C. 6, does not advance the case of the respondent so far actual delivery of cheque to the appellant through ordinary post is concerned. The cheque being a negotiable instrument and of substantive value in this case i. e. Rs. 1,07,000, why it was sent through ordinary post and not by a proper mode for ensuring its delivery and also with a view to raise presumption regarding its delivery to the appellant, Mr. Sharma had no explanation except for reiterating what has been noted hereinabove. In this view of the matter, the plea based on Annexure R. 3, Postage Book of the Bank, has no merit and it is hereby rejected. So far the submission of Mr. Sharma that the complaint was bad for non-joinder of other joint account holder as well as of the drawee bank is concerned, in our considered view, both these pleas are wholly misconceived, for the simple reason that the appellant has not claimed anything adverse to the interest of the other joint account holder and it is also not the case of the respondentbank that the amount was being claimed by the appellant for himself exclusively. To the contrary, it was deposited in the joint account by the appellant.

SIMILARLY, the drawee bank is also not a necessary much less a proper party in this case. Reason being that appellant as a ''consumer'' having account with the respondentbank and had banking dealing with it. Bank as a service provider was the agent of the appellant through whom cheque was sent for clearance. In these circumstances, it was incumbent upon the respondent to have ensured that in the event of cheque having been encashed, it was duly credited to the account. Similarly in the event of dishonour of the cheque, it ought to have been returned to the appellant "along with" the memo of the drawee bank. Return of dishonoured cheque by the respondent bank is not made out. Moreover, no relief could have been claimed by the appellant against the drawee bank, because its duty was only to have paid the cheque if the account holder had money in it, otherwise it was to return the cheque as having been dishonoured for whatever reason. Thus both these pleas based on non-joinder are devoid of any force and are accordingly rejected. Next submission of Mr. Sharma that on 6. 11. 1999 appellant having been informed regarding dispatch of dishonoured cheque and after being satisfied, he suffered no loss. This plea is being noted simply to be rejected. We have no hesitation in observing that as a prudent banker as well as on sound business principles, it was incumbent upon the respondent to have ensured that the delivery of dishonoured cheque is promptly ensured by the respondent to the appellant. As a banker, duty upon the respondent was of a higher degree of care and caution in which the bank failed. As such, this plea also has no merit and is accordingly rejected. With a view to support the case of the respondentbank, Mr. Ashwani Sharma, referred to two decisions, one of National Commission in the case of Nina Arora v. Sr. Manager, Canara Bank, II (1994) CPJ 109 (NC) and the other of Madhya Pradesh State Commission in the case of Central Bank of India and Another v. Dinesh Kumar Malya, I (1994) CPJ 483. So far as decision of National Commission is concerned, it is totally distinguishable on its facts inasmuch as that in the instant case, on deposit of 10 cheques by the appellant in anticipation of their realization, those were credited to her account by the bank. However, after those were dishonoured, those were debited from some other account due to error. When the error was detected after one year, complainant/appellant''s account was debited. In these circumstances, the National Commission held that there was no deficiency in service in debiting the amount nor was there any consumer dispute. Whereas in the appeal before us, question is regarding non-return of the dishonoured cheque with memo. of the bank so as to enable the appellant to proceed further in the matter as he might have been advised. We have already held that the mode adopted as per admission of the respondent bank does not carry any presumption in law and it is not the case of the respondent that at any point of time thereafter, it was handed over to the appellant "along with" memo. of the drawee bank. As such, this decision relied upon by Mr. Ashwani Sharma is on its own facts.

SO far as decision of Madhya Pradesh State Commission is concerned, again the question was that bank was issuing pay orders to complainant in course of its normal banking practice. It stopped issuing pay orders. Complaint was then filed. In these circumstances, it was observed by the State Commission that burden to prove under banking rules was upon the complainant. Facility was being enjoyed by the complainant as an unusual grace by the Bank Manager. In these circumstances, refusal to issue pay orders did not amount to deficiency in service. Again, in the matter in appeal before us, there is no question of any grace being shown by the respondentbank. To the contrary, it could not be disputed by Mr. Ashwani Sharma that accepting cheques for getting those cleared of its customers like appellant in this appeal was a regular part and parcel of the banking business of his client, though he made an attempt to show that there is no deficiency in service. As such, no benefit can be derived by the respondent from these two decisions.

NO other point was urged. Now the question arises as to what relief can be provided to the appellant in the peculiar facts and circumstances of this case as he has received the amount of the cheque in question on 31. 5. 2006 as per statement of the learned Counsel for the appellant made at the bar at the time of hearing. At this stage, Mr. Sharma submitted that it is not known as to how the amount was received i. e. whether it was after filing of the complaint or by other mode like filing of suit for recovery. This plea is likewise being noted to be rejected. Reason being that appellant could have said that the amount has been recently received, but through his learned Counsel, he has given the specific date. Whether it was received after filing of the complaint or otherwise, it is wholly irrelevant in the context of the present case.

On the facts of this case we are of the view that the appellant having been deprived of the fruits of utilizing Rs. 1,07,000 between the date of deposit i. e. 30. 10. 1999 till 31. 5. 2006 when the appellant received the amount, interest of justice will be well served if it is ordered that the bank shall pay interest on Rs. 1,07,000 at the rate of 6% per annum. Ordered accordingly. The appeal is disposed of by setting aside the order of the District Forum below and directing the appellant to pay interest on the sum of Rs. 1,07,000 from the date of dishonour i. e. 1. 11. 1999 upto 30. 5. 2006 @ 6% per annum by or before 30. 4. 2008. It is further clarified that in case if the amount is not paid by or before this date, interest payable will be 9% per annum for the entire above period. Office is directed to make copy of this order available to the parties free of cost as per rules. Appeal disposed of.