State Bank of India vs P. BALAKRISHNAN

IT is to be stated at the outset that the appeal is devoid of merits. The facts of the case are quite simple. The second complainant is the wife of the first complainant. The second complainant had an S.B. Account with the opposite party. The first complainant was given a cheque by his employer for Rs. 40,000/- which was deposited by the first complainant with the opposite party in the account of the second complainant, on 6.7.1996. Till the filing of the complaint, which was on 20.1.1997, the fate of the cheque was not known and, therefore, it was that the complainants had to move the Forum below.

THE opposite party while admitting that the cheque was received by them on 6.7.1996, would say that they sent it for collection to the Catholic Syrian Bank, Chandamangalam. But once it was brought to the knowledge of the opposite party that the cheque was not collected, the opposite party took up the matter with courier service and they have also taken necessary steps to trace the missing cheque and thus there is no deficiency in service. The lower Forum overruled the objections of the opposite party and directed the opposite party to pay a sum of Rs. 40,000/- with interest at 12% from 6.7.1996 till realization along with a cost of Rs. 500/-.

Learned Counsel for the appellant would say that the drawer has not been made a party. We are unable to accept this contention. It is not necessary to implead the drawer because it is not the complainant''s case or the case of the opposite party that there were no funds in the account of the drawer or that the drawer had issued instructions to stop payment. Therefore, as the drawer had no role to play after issuance of the cheque, it is unnecessary to make him a party to the proceedings. The other contention of the appellant that the complainants are not consumers cannot be accepted at all. Admittedly the second complainant was having an S.B. Account with the opposite party. The cheque was drawn in favour of the first complainant, which was sought to be realized through the account held by the second complainant with the opposite party. Thus there is a hiring of service. Hence, the contention that there is no relationship of consumer as between the complainants and the opposite party is really untenable. It is also to be pointed out that such an objection is not raised in the version. The other contention raised in the counter is that the courier has not been made a party. Even, according to the opposite party, the courier, M/s. French Express Courier, Marthandam Branch is their official and authorized courier. It is the opposite party, who handed over the article or the cheque, as the case may be, to the courier for sending it to the Catholic Syrian Bank, Chandamangalam. Therefore, the courier had acted only as an agent of the opposite party and as instructed by them. Therefore, in such circumstances, M/s. French Express Courier, who acted only as an agent of the opposite party and on their instructions, are neither necessary nor proper party to the complaint.

IT is to be pointed out that in their letter dated 24.9.1996, the opposite party has stated that they sent the cheque for payment to Catholic Syrian Bank on 6.7.1996 which was misplaced in the Postal Department. They have not produced any document to show that having come to know that it was misplaced or lost in transit they have taken any effort by addressing the postal authority concerned to find out the fate of the cheque sent in their letter. Nothing has been done by them at all. Though the cheque was handed over to them on 6.7.1996, they did not take any steps at all to find out what had happened to the same and conveniently they say that when it was brought to their notice that the cheque was not collected, the opposite party took up the matter with the courier service. The cheque was handed over to them for collection in the account held by them. If so, it is strange to say that it was brought to their knowledge that the cheque was not collected whereas they should have made inquiries after a lapse of reasonable time to find out what had happened to the cheque. On the other hand, it is only in September, they have chosen to take some steps. IT is also to be pointed out that the cover which contained the cheque was addressed to State Bank of India, Chandamangalam, Vadakkumpuram and is said to have been sent under certificate of posting. But the said certificate of posting is not produced. If the letter was handed over by the opposite party to the courier containing the cheque, one would expect only the opposite party to write down the address of the same. IT is not their case that they have simply handed over the cheque to the courier with instruction to send it. If they say so, it is all the more glaring instance of the deficiency and carelessness on their part. IT is really surprising that the Bank should addressed the cover to State Bank of India, Chandamangalam, Vadakkumpuram whereas the cheque was issued by Catholic Syrian Bank and State Bank of India, Chandamangalam had nothing to do with the same. Therefore, from the very letter of the Courier, Ex. B5, it is clear that the opposite party has been carelessness and negligent in discharge of the duty especially when it related to a cheque for a sum of Rs. 40,000/-. Even while addressing the same, they have addressed it wrongly as State Bank of India, Chandamangalam. The courier also writes to say under Ex. B5 that the cover had the address of the State Bank of India at Chandamangalam, Vadakkumpuram post and not Catholic Syrian Bank, Chandamangalam, Vadakkumpuram post and they had no service centre at Chandamanglam and, therefore, they sent it by post. Here, it is also to be pointed that the courier has not chosen to sent it by registered post. On the other hand, the Bank themselves have written to say that they have given specific instructions to the courier service to send the letters and other correspondences only by registered post. In their letter dated 11.10.1996 they say that the courier has sent it under certificate of posting without their knowledge while they have encouraged only the registered post. Thus, the principal wants to escape by putting the blame on the agent. Proper care has not been taken to see that the cheque is addressed to the proper person and dispatched by a safer postal means namely by registered post. Thus apart, we find that after 6.7.1996, they simply kept quiet and did not take any steps to ascertain as to what had happened to the cheque. Thus at every stage, there has been negligence, lack of care and dereliction of duty. When they are entrusted with the monies of the public that they should adopt some indifferent attitude is quite appalling. Therefore, it is clear that the opposite party has failed in every sphere of their Banking activity. They have failed to take necessary care. They have failed to observe the necessary caution. They have failed miserably to follow the procedure. They were wantonly careless and negligence, as a result, the cheque was lost. In this connection, learned Counsel for the appellant would conveniently say that the complainant would have obtained the duplicate cheque. IT is easily said why should he take the trouble of obtaining a duplicate cheque when it is their duty as the Banker to see that the cheques entrusted to the Bank are collected and deposited in the account of the holders. IT is not an answer to say that the complainant could have obtained the duplicate cheque. For a person failing in his duty, it is not open to say that there are other means or ways of filling up the deficiencies. Even otherwise in this case on hand, from the very letters of the opposite party, we find that the relationship between the first complainant and his employer who gave the cheque was anything but cordial and, in fact, the employer refused to consent for the issuance of the duplicate cheque. Unless the drawer consents or instructs the Bank to issue a duplicate cheque, it will not be possible for the complainants to get out for the situation. Thus, at every stage, we find that there has been inordinate indifference, callousness and lethargy, which has thus contributed to the ultimate loss of the cheque. Lastly, the Counsel for the appellant would rely upon the ruling reported by the National Commission stating that no relief could be granted in such cases to the complainants on mere allegation of loss, or non-delivery of postal article. The ruling reported in 2000 (1) CPR 34 (NC), relates to a case of non-delivery of a postal article. Therefore, the National Commissioner considered the same in the background of the Section 6 of the Act. But, here we find that it has not established that there was any postal failure. The certificate of posting is not produced. The opposite party has not taken steps to address the postal authorities. It is definitely stated by the Catholic Syrian Bank that they have not received any such letter. Therefore, in such circumstances, it is very doubtful whether the letter was sent at all by the courier as claimed by them through post. Even otherwise the opposite party cannot pass on the buck to the postal department and escape. They are in the position of the trustee and Banker. To them, the cheque was entrusted. It is their duty to see that the cheque was properly sent for collection to the Bank issuing the cheque. They have not chosen to sent it by registered post. They have simply handed over it to the courier and even there, they have not properly addressed it, but addressed it to the State Bank of India, Chandamangalam. Therefore, this is not a case where we can say that the postal authority played any part much less a vital role and has to be made a party to the complaint. Moreover, the exemption that is available to a postal department cannot be extended to the opposite party, nor they can rely upon the same to wriggle out of the impasse. Thus, there is absolutely no merit in this appeal.

IN the result, this appeal is dismissed with cost of Rs. 250/- confirming the order passed by the lower Forum. Time for compliance : Two months. Appeal dismissed.