Acórdão nº 1937/08.4TBOAZ.P3.S1 de Supremo Tribunal de Justiça, 26 de Setembro de 2013
Magistrado Responsável | SERRA BAPTISTA |
Data da Resolução | 26 de Setembro de 2013 |
Emissor | Supremo Tribunal de Justiça |
ACORDAM NO SUPREMO TRIBUNAL DE JUSTIÇA AA veio intentar acção, com processo ordinário, contra BANCO BB, S. A., pedindo a condenação deste no pagamento da quantia de € 27.100, 00 acrescida dos juros vencidos até à data de propositura da acção, no montante de € 3.252,00 e dos juros vincendos até integral e efectivo pagamento.
Alegando, para tanto e em uma: A quantia peticionada corresponde ao valor titulado pelo cheque de que era legítima portadora e que apresentou a pagamento dentro do prazo previsto no art. 29º, n.º 1, da LUCH, tendo o mesmo sido recusado com o fundamento em ter sido revogado pelo sacador por falta ou vício na formação da vontade, o que era falso, sendo que o R., ao aceitar esse pedido de revogação violou o disposto no art. 32º da LUCH e no art. 14º do DL n.º 13.004, de 12-01-1927.
Mais referindo que o Réu, perante a ordem de revogação, não cuidou de contactar a Autora no sentido de saber se esta aceitava como verdadeiro o motivo invocado por aquele para revogar a ordem de pagamento do cheque.
E que, se à data de 30.11.2005 a conta bancária porventura não tivesse fundos suficientes que assegurassem o pagamento do cheque, o Réu recusaria o pagamento por falta de provisão.
O Réu, ao agir da forma descrita, contornou todo o procedimento previsto na lei com vista a obter o pagamento do cheque por falta de provisão, afastando o sacador do mesmo das consequências legais inerentes à devolução de um cheque por falta de provisão, comprometendo a hipótese da Autora receber o respectivo valor.
Em consequência disso a autora ainda não recebeu o valor titulado pelo cheque, sendo que para além de ter ficado sem título que lhe permitisse instaurar de imediato a acção executiva, o sacador não possui bens em seu nome, pelo que a hipótese de obter o pagamento do cheque são nulas.
Citado o R. contestou, recusando qualquer responsabilidade da sua parte, uma vez que tendo o cheque sido emitido em 30-11-2005, apenas foi apresentado a pagamento a 09-12-2005, ou seja, após o prazo de oito dias previsto no citado art. 29º, prazo esse que começa a contar-se no dia indicado no cheque como data de emissão (n.º 3 do mesmo preceito). Assim, tinha necessariamente de acatar a ordem de revogação, uma vez que nos termos do art. 32º da LUCH, esta produz efeitos decorrido o prazo de apresentação a pagamento.
Conclui que não ocorreu nenhum facto ilícito praticado pelo Banco sacado, uma vez que o cheque foi apresentado a pagamento após o prazo legal e existia ordem de revogação do seu emitente.
A autora replicou, sustentando que o cheque foi apresentado a pagamento dentro do prazo legal, uma vez que de acordo com o art. 56º da LUCH o dia a partir do qual se conta o prazo não conta na sua contagem, pelo que, sendo o dia 08 de Dezembro feriado, o termo daquele prazo transferiu-se para o dia 09. Assim, conclui como na petição inicial.
Foi proferido despacho saneador, no qual, alem do mais, se julgou improcedente a excepção de falta de apresentação do cheque a pagamento no prazo previsto no art. 29º da LUCH, considerando-a tempestiva.
Inconformado, veio dele o réu interpor recurso, que não foi admitido por se considerar que a decisão recorrida só pode ser impugnada com o recurso que viesse a ser interposto da decisão final (despacho de fls. 157).
- Procedeu-se à selecção da matéria de facto dada como assente, tendo, ainda, sido elaborada a base instrutória.
Realizado o julgamento foi proferido despacho com as respostas dadas à matéria de facto da base instrutória.
Foi proferida a sentença que, julgando a acção procedente, condenou o réu Banco BB, SA a pagar à autora AA a quantia de € 27 100,00 (vinte e sete mil e cem euros), acrescida de juros de mora, desde 09.12.2005 até integral pagamento, à taxa legal de 4%.
Ainda não conformado, interpôs o réu recurso para o Tribunal da Relação do Porto, julgado extinto por inutilidade superveniente da lide, dado que um outro...
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