V S A SUBRAMANIAM AND ORS Vs. GENERAL MANAGER INTERNATIONAL BANKING DIVISION,VIJAYA BANK AND ORS

JUDGEMENT

(1.) THE complainants are the husband and wife/the second complainant being the Power of Attorney Holder of the first complainant who then was working abroad. It was submitted that the first complainant died on 07 -03 -2003. Copy of the death certificate was produced. The case of the complainants are as follows:

(2.) THE first complainant was employed at Dubai. The first complainant had entrusted cheque dated 01 -12 -1999 drawn on Abudhabi Commercial Bank by one Ahmed Saif Khamis Magid Almarri for a sum of UAE Dirhams 20,000 to the second opposite party bank for collection and crediting the same into his account on 01 -12 -1999. On enquires it was found that the amount has not been credited. From 20 -01 -2000 he was making enquiry. Vide letter dated 30 -03 -2000 the first complainant, the International Banking Division of the second opposite party bank informed that there is a possibility that the instrument could have been lost in transit and that efforts are being made to obtain payment at the earliest and also advised the first complainant to take up the matter with the drawer of the cheque to place stop payment order and obtain fresh cheque. The first complainant vide letter dated 12 -04 -2000 informed the opposite parties that fresh cheque could not be obtained from the drawer unless the instrument is returned to him. The second complainant had also written to the Managing Director of the opposite party bank in this regard. Again, the second complainant had intimated the urgency, as she has to repay outstanding loans, penal interest etc. On 22 -05 -2000, the second complainant was informed by the opposite parties that the matter has been taken up with the postal authorities to obtain documentary proof of evidence of delivering the cheque to the drawee bank. On 23 -05 -2000 the second complainant was informed that the instrument has been lost in transit between Kochi and Al Quasis and not received at Al Quasis Branch of Abudhabi Commercial Bank and that there are no means to obtain payment of the cheque. The complainant s had to make a lot of enquires, travel to various offices of the bank and make long distance telephone calls etc. and suffered severe and untold mental agony. State Bank of Travancore, Kesavadasapuram Branch was putting pressure for the closure of the house loan and there were other creditors also to the complainants. The first complainant filed a petition before the Banking Ombudsman which was disposed of vide letter dated 13 -05 -2000 stating that the Ombudsman has no jurisdiction to proceed against a Foreign Bank. There is laches and negligence on the part of the opposite parties. The complainants have claimed a sum of Rs. 2,50,000/ - equivalent in Indian rupee of 20000 Dirham; Rs. 75,000/ - as interest at 18% up to 8/00; Rs. 30,000/ - towards penal interest paid to the State Bank of Travancore towards the housing loan; Rs. 30,000/ - the expenses incurred for travel, STD calls etc., Rs. 2,000/ - towards notice and legal expenses; Rs. 2,00,000/ - for mental agony, loss of estimation before creditors etc; altogether a sum of Rs. 5,87,000/ -.

(3.) THE General Manager of the International Banking Division of the Bank and the Branch Manager of the Kesavadasapuram, Thiruvananthapuram Branch of Vijaya Bank have filed a joint version contending that the complaint is bad for non -joinder of necessary parties, ie, the drawer and the drawee bank viz. Abudhabi Commercial Bank, A Quasis, Dubai. It is also alleged that the complaint has been instituted in collusion with the drawer of the cheque. It is admitted that the first complainant on 01 -12 -1999 presented the cheque to be credited to the complainants Savings Bank Account. It is contended that as per the banking custom, practice and precedent, the cheque was sent for encashment to the Abudhabi Commercial Bank, Al Quasis through their Cochin Foreign Exchange Branch on 09 -12 -1999. Inspite of lapse of sufficient time as the proceeds of the cheque was not credited enquires were made and it was informed by the Al Quasis Branch of Abudhabi Commercial Bank that they have not received any such cheque. The same has been lost in transit. The opposite parties had requested the drawee bank to debit from the account of the issuer of the cheque on the basis of the photocopy of the cheque provided by the opposite parties, as there was such practice in few countries like UK and USA. The Abudhabi Commercial Bank has refused to do so on the ground that such practice does not exist in UAE. The opposite parties have requested the above bank to personally meet the drawer of the cheque and obtain authorization to debit in his account the payment of the transaction. The Abudhabi Commercial Bank Branch contacted their customer, the drawer of the cheque and informed the opposite parties that their request has been refused by the drawer. Hence it is clear that the drawer has no intention to pay the cheque amount and that even if the cheque is not lost in transit it is not likely that the cheque would have been honoured. The complaint has been deliberately instituted to make illegal gains without resorting to recover the amount due from the debtors. The postal authorities are also necessary parties. The postal authorities inspite of several correspondences, have turned a deaf ear. The complainant ought to have proceeded to obtain a duplicate cheque from the drawer. There is no negligence on the part of the opposite parties as the cheque has been despatched with all reasonable skill and care and the loss of the cheque by the postal authorities is not on account of deficiency of service committed by the opposite parties. They have sought for compensation of Rs. 10,000/ - vide Section 26(A) of the Consumer Protection Act as the complaint is frivolous and vexatious.