STATE BANK OF BIKANER AND JAIPUR vs PURUSHOTTAM

THIS appeal has been filed by the appellant bank SBBJ against the order dated 25. 5. 2007 passed by the District Forum, Rajsamond in complaint case No. 63/05, by which the complaint of the respondent was allowed against the appellant in the manner that the appellant-bank was directed to pay a sum of Rs. 50,000 to the complainant-respondent and further to pay Rs. 500 as amount of cost and Rs. 500 as amount of compensation for mental agony, with interest @ 9% p. a.

IT arises in the following circumstances: that the complainant-respondent had filed a complaint against the appellant before the District Forum on 17. 6. 2005 and amended on 29. 10. 2005 inter alia stating that the complainant-respondent had paid Rs. 50,000 to one Radha Kishan and in lieu of that Radha Kishan had issued a cheque No. 569262 for a sum of Rs. 50,000 of SBBJ, Branch Nathdwara payable to the complainant-respondent. It was further stated in the complaint that the said cheque was presented by the complainant-respondent with the appellant bank for encashment on 9. 2. 2005 but the payment of that cheque could not be made to the complainant-respondent and the cheque was lost in transit. There is no dispute on the point that the appellant-bank had issued a certificate that the cheque in question had been lost in transit and thus certificate of non-payment of that cheque was also issued by the appellant-bank in favour of the complainant-respondent. It was further stated in the complaint that Radha Kishan had refused to issue another cheque, therefore, the present complaint was filed against the appellant-bank.

A reply was filed by the appellant bank admitting the fact that the cheque in question submitted by the complainant-respondent had been lost in transit and for that certificate had also been issued and further it has been stated that had the cheque would have not been lost in transit, the amount of that cheque could not have been credited in the account of the complainant-respondent as there was no sufficient fund in the account of Radha Kishan who had issued the cheque in question in favour of the complainant-respondent. Hence no case complaint be dismissed.

AFTER hearing both the parties, the District Forum, Rajsamond through the impugned order dated 25. 5. 2007 had allowed the complaint as stated above inter alia holding that since the cheque in question which was presented by the complainant-respondent with the appellant-bank had not been returned to the complainant-respondent and since no amount of that cheque had been credited in the account of the complainant-respondent and since the cheque which was sent by the appellant bank to SBBJ, Nathdwara has been lost in transit, therefore, the complainant respondent was entitled to the full amount of the cheque. Aggrieved from that order of the District Forum, this appeal has been filed by the appellant-bank and the main contention of the learned Counsel for the appellant is that no doubt the cheque in question had been lost in transit but the findings by which full amount of the cheque was ordered to be paid by the appellant-bank are erroneous one and should be set aside and appeal be allowed.

ON the other hand, the learned Counsel for the respondent has supported the impugned order and has prayed that the appeal be dismissed. We have heard the learned Counsel for the parties. Since in this case facts are not in dispute and thus the only question for consideration is whether in the facts and circumstances as mentioned above, findings recorded by the District Forum by which full amount of cheque was ordered to be paid by the appellant to the complainant-respondent in case of cheque lost in transit should be sustained or not.

THE position of law is very much clear that on point that in case of loss of cheque in transit where the cheque was sent for collection and the cheque was lost in transit, the bank is held negligent as the bank did not take proper care as was expected from it. A banker, in collecting the cheque, is required to exercise the same care which a reasonable businessman would bring to bear in handling valuable negotiable instruments.

THUS the fact that since the cheque was lost in transit, therefore, the appellant -bank was rightly held negligent in delivering services to the complainant-respondent. On point of compensation There are series of judgments delivered by Hon''ble the National Commission indicating the position of law in the manner that in case cheque is lost in transit and where the amount was not credited in the account of the complainant and further the cheque in question had not been returned by the bank, the bank would be liable to pay some amount of compensation and not entire amount of cheque and for that following judgments delivered by the Hon''ble National Commission may be referred to: 1. Revision Petition No. 3363/04 decided on 4. 12. 2006, Canara Bank v. Sudhir Ahuja, reported in I (2007) CPJ 1 (NC ). 2. Revision Petition No. 2808/04 decided on 17. 7. 2006, Corporation Bank v. NCS Films, III (2007) CPJ 30 (NC)

Taking that into consideration the findings recorded by the District Forum by which the entire amount of cheque was ordered to be paid by the appellant-bank to the complainant-respondent could not be sustained and thus the complainant-respondent is entitled to some sort of compensation from the appellant bank and not full amount of the cheque.

THE appellant-bank while preferring this appeal had deposited a sum of Rs. 25,000 before the District Forum, Rajsamond. In our considered opinion, the above amount of Rs. 25,000 would be just, proper and equitable compensation for the deficiency committed by the appellant-bank and thus on point of compensation, this appeal deserves to be allowed partly.

ACCORDINGLY, the appeal is allowed partly in the manner that the appellant-bank would pay only a sum of Rs. 25,000 as amount of compensation to the complainant-respondent in lump sum in place of Rs. 50,000, as ordered by the District Forum and to that extent the impugned order dated 25. 5. 2007 passed by the District Forum shall be treated as modified. Since that amount had already been deposited by the appellant-bank with the District Forum, Rajsamond, the complainant-respondent is free to withdraw that amount from the office of the District Forum, Rajsamond. The impugned order be treated as notified as indicated above. Appeal partly allowed.