(1) SA. 613.2009 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 613 OF 2009 State Bank of India Danabazar Branch, Jalgaon Agricultural Development Branch At/Post Taluka and District Jalgaon .. Appellant VERSUS 1] Ananda Shamrao Mahajan Age : 39 years, Occu.: Business, R/o Gudhe, Tq. Bhadgaon, Dist. Jalgaon 2] Head Post Office, Jalgaon, through Superintendent of Post Office, Jalgaon 3] Govt. of India, Telecommunications, Post and Telegraph Ministry, New Delhi 4] Bank of Baroda, T.T. Nagar Branch, Bhopal (M.P.) .. Respondents WITH CIVIL APPLICATION NO. 19699 OF 2009 IN SECOND APPEAL NO. 613 OF 2009 State Bank of India Danabazar Branch, Jalgaon .. Applicant VERSUS Ananda Shamrao Mahajan and ors. .. Respondents (2) SA. 613.2009 AND CIVIL APPLICATION NO. 10839 OF 2008 IN SECOND APPEAL NO. 613 OF 2009 State Bank of India Danabazar Branch, Jalgaon .. Applicant VERSUS Ananda Shamrao Mahajan and ors. .. Respondents Mr. S.A. Kulkarni, Advocate for the appellant- applicant Mr. S.H. Tripathi, Advocate for the respondent no.1 None present for the respondent no.2 though served CORAM : A.V. NIRGUDE, J. DATED : 7TH SEPTEMBER, 2009 ORAL JUDGMENT:- 1] The appeal can be decided finally at this stage. By consent the appeal is admitted for following substantial questions of law:- I] Whether the appreciation of the evidence by the first appellate Court, was perverse which resulted into ordering of exorbitant compensation amount of Rs.50000/-? II] Whether the compensation deserves to be reduced and to what extent? 2] The factual background:- . The respondent received a cheque of Rs. 1,50,000/- from a party which owed him the said (3) SA. 613.2009 amount. He deposited this cheque in his account with the appellant Bank. The appellant Bank was expected to send the cheque with due care and caution to the drawer’s bank at Bhopal for collection. The cheque, however got lost in the transit. Within one month from the depositing of the cheque i.e. in April, 1990, the respondent no.1 made complaint to the appellant bank about their failure to deposit the cheque amount in his account. The appellant bank made no reply to his complaint. Ultimately, in August, 1990, the respondent no.1 sent a legal notice to the appellant to which they for the first time, disclosed that they had sent the cheque by R.P.A.D. and had not received any reply so far from the concerned Bank at Bhopal. The appellant, then made enquiry about the delivery of the cheque at Bhopal with Postal authorities who surprisingly informed them that they had delivered the registered envelope containing the cheque sent by R.P.A.D. at Bhopal bank. But in December, 1990 to the enquiry of the respondent no.1, the Bhopal bank informed him that they had not received the cheque in question. By this time, it was very clear that the cheque in question was lost in transit. The respondent no.1, then in March, 1991 filed his suit for recovery of the cheque amount and compensation. In the meantime, the party which owed the amount to the appellant, went into winding up and liquidation. Even the payment of the cheque in question was stopped sometime in May, 1990. So, by the time the suit was (4) SA. 613.2009 filed, the respondent no.1 was certain that the cheque would not have fetched him the amount. The trial Court decreed the suit and the appellate Court reversed the finding mainly placing reliance on Section 45(A) of the Negotiable Instruments Act which reads as under:- “S.45-A-- Holder’s right to duplicate of lost bill- . Where a bill of exchange has been lost before it is over-due, the person who was the holder of it may apply to the drawer to give him another bill of the same tenor, giving security to the drawer, if required, to indemnify him against all persons whatever in case the bill alleged to have been lost shall be found again. . If the drawer on request as aforesaid refuses to give such duplicate bill he may be compelled to do so.” 3] Indeed, the answer to the respondent’s predicament lied way back in March, 1991 or earlier to it in the alternative relief suggested in section 45-A of the Negotiable Instruments Act. The lower appellate Court, rightly held that the respondent no.1 also neglected his right to sue the drawer of the cheque within time as suggested by the provisions of section 45-A of the Negotiable Instruments Act. This clearly suggests that for the loss that the respondent no.1 suffered, he too was responsible. The only lapse on the part of the appellant bank was (5) SA. 613.2009 that they did not intimate to the respondent no.1 about the loss of cheque in transit. The appellant Bank, within a month or so, should have realised that the cheque in question was lost in transit and should have immediately intimated this fact to the respondent no.1, suggesting him to get a duplicate cheque. They waited till December, 1990 for giving proper response to the respondent no.1. I think, this lapse on their part was comparatively less injurious than the loss of remedy against the drawer of the cheque. 4] The lower appellate Court in my view made a grave error in appreciating this aspect of the matter. It ought to have appreciated that the respondent No.1 ought to have realised in time that the cheque was lost in transit and that he had the alternate remedy. He unnecessarily depended on the appellant bank. In comparison the negligence of the appellant was rather negligible. In view of this matter the compensation awarded by the lower appellate Court almost to the tune of 1/3rd of the amount represented by the cheque looks exorbitant. 5] I think, an amount of Rs.10000/- along with interest @9% p.a. from 2.3.1990, would be adequate remedy. Impugned judgment and decree should therefore, stand corrected to that extent. Second Appeal is partly allowed. There shall be decree of Rs.10000/- with interest @9% p.a. from 2.3.1990. (6) SA. 613.2009 There shall be no order as to costs. 6] In view of this, an appropriate order on the Civil Application no. 19699 of 2009 would satisfy the decree immediately. There shall be order in terms of prayer clause (A) except the bracketed portion with a rider that the decretal amount shall be paid to the respondent no.1 on or before 16.9.2009. The Office shall also pay the amount of cost to the respondent no.1 immediately, that was payable to him vide order dated 24.8.2009 passed in Civil Application no. 10838 of 2008. 7] In view of the order passed in Second Appeal no. 613 of 2009, Civil Application no. 10839 of 2008 and Civil Application no. 19699 of 2009 also stand disposed of. Interim relief granted in Civil Application no. 10839 of 2008 stands vacated. Sd/- (A.V. NIRGUDE, J.) arp