This is a complaint U/s 12 of the Consumer Protection Act, 1986 with the prayer for a direction upon the O.P./ Bank to handover the original invoice against which Rs.20,00,000/- has been paid to International Tractors Limited on 13.11.2009 and if failed to refund Rs.20,00,000/- to the petitioner.
The case of the petitioner is that he has been carrying dealership of ‘Sonalika’ Tractor of International Tractors Limited. He took loan from SBI, Kaliyaganj Branch, ADB. Petitioner approached O.P./ Axis Bank to grant loan by way of Cash Credit Facility and Bank Guarantee for his business. First he repaid loan of SBI and received ‘No Dues’ certificate. O.P. / Bank granted Cash Credit facility and Bank Guarantee facility up to Rs.20,00,000/-. On 09.06.2009 International Tractors Limited sent a letter to O.P. No.1 claiming a sum of Rs.20,00,000/- against the supply of Tractor to the petitioner with a request to make the payment by demand draft. Subsequently, International Tractors Limited by letter dated 26.06.2009 requested to treat the previous letter dated 09.06.2009 be cancelled and withdraw their claim stating that they would receive the claim from petitioner directly, also requested and to reconfirm the validity period of Bank Guarantee.
Petitioner then sent letter dated 07.07.2009 to O.P. No.1 clearly stating that he will not inform the validity period of Bank Guarantee and the same should be revoked immediately. Subsequently International Tractors Limited again by letter dated 22.10.2009 and also by Fax claimed Rs.20,00,000/- from O.P. against the Bank Guarantee of the petitioner.
The petitioner had a current account in the O.P. No.1/ Bank and against the said claim O.P. No.1 got the said current account lien against the claim of the International Tractors Limited without intimating the petitioner, which is totally illegal, as claimed by the petitioner. In reference to the said claim of O.P. No.1 demanded invoice from International Tractors Limited against the supply the product. The letter dated 22.10.2009 and original Bank Guarantee essential to settle the claim and for releasing the amount dues from the party, the copy of which are also sent to the petitioner vide the letter dated 28.10.2010. Immediately petitioner made application on 06.11.2009 after receiving the said letter dated 28.10.2010 informing that he stood on his earlier letter dated 07.07.2009.
Petitioner alleges that O.P. without informing the petitioner and without receiving any invoice from International Tractors Limited make payment of Rs.20,00,000/- from the current account of the petitioner on 13.11.2009, which petitioner claimed is totally illegal.
Petitioner on several occasions requested the Bank Authority to handover the original invoice, but it failed provide the same and advised the petitioner to close the Cash Credit Account. Finding no other alternative petitioner closed the CC Account and visited again and again demanded to O.P. for the original invoice but without any result. He then informed the Bank in writing on 24.02.2011 and sent letter through NGO on 05.12.2011, but with no result. He applied through provision of RTI, lodged complaint to the banking Ombudsman also on 02.07.2012 and cause of action arose from that date. Therefore petitioner filed this case before this Forum with the above mentioned prayer.
The International Tractors Limited has not supplied any product after 26.06.2009 and there was stipulation that petitioner would make payment of outstanding dues, if any, directly but the bank authority was negligent in making payment without due process of law.
O.P. Bank filed written version to contest the case and denied the allegation of the petitioner and prays for dismissal of this case along with other grounds admitting the fact that petitioner approached O.P. for availing loan by way of Cash Credit Facility and bank Guarantee up to Rs.20,00,000/- in favour of International Tractors Limited as a beneficiary. The said Bank Guarantee was invoked by the beneficiary with a claim of Rs.20,00,000/- from O.P. O.P. stated that International Tractors Limited is a necessary party to adjudicate this case and intentionally was not impleaded in this case. That, the dispute arising out of said guarantee has to be entertained by Civil Court and Forum has no jurisdiction. That, the complainant availed the Cash Credit Facility for his business purpose and is also maintaining a Current Account in the Bank. Petitioner does not fall within the definition of Consumer.
O.P. further stated in written version that for the purpose of getting the facilities from O.P./ Bank he first repaid the loan amount of SBI. The O.P. / Bank by sanction letter granted Cash Credit Facility of Rs.20,00,000/- on behalf of petitioner to International Tractors Limited for supply of Tractors and spear parts. The Bank Guarantee was invoked by the Tractor Company on 22.10.2009 due to non-clearance of overdue by petitioner to the company as shown in their request letter. After receiving of letter of invocation from the company, the Bank Authority had to make payment Rs.20,00,000/- and petitioner had Rs.20,00,000/- in his Current Account. Therefore on the date of received of the written request and in terms of Bank Guarantee mark a lien on Rs.20,00,000/- in the account of petitioner to make payment to the beneficiary, International Tractors Limited. Therefore petitioner may directly take up with the beneficiary and get the invoices and it is not the duty of the Bank to get the invoices before release of payment. The Bank has to honor the Bank Guarantee commitments as per the Bank Guarantee terms issue and therefore Bank is very much in order in honoring Bank Guarantee invocation. There is no deficiency in service. The Bank Guarantee was valid from 12.02.2008 to 12.02.2009 and Clause – 3 specifically mentioned that the O.P. No.1/ Bank undertake to pay the amount claimed under this Guarantee not exceeding Rs.20,00,000/- without any protest on demand by way of a receipt of a letter in writing from the Tractor Company stating that the amount claimed is due. Under Clause – 4 O.P./ Bank undertakes to pay to the company and Bank shall not challenged the correctness of the claim on any ground whatsoever. Further the Bank Guarantee was extended for a period of one year from 11.02.2009 to 09.02.2010. That on 22.10.2009 when International Tractor Limited issued a letter demanding Rs.20,00,000/- from O.P. No.1 against Bank Guarantee of petitioner, then in terms of the same Bank Guarantee, O.P. had to pay the said amount.
That on 04.11.2009 letter was issued from Bank Authority for transferring Rs.20,00,000/- to their account vide No.312010200000709 with Axis Bank at Hosiarpur. O.P. denied that they had advised the petitioner to close the Cash Credit Account and then they will make necessary arrangement for original invoice. O.P. therefore prays that they are not negligent or deficient in service. Petitioner is not a consumer and the present petition is not maintainable and they are not duty bound to supply the original invoice to the petitioner. O.P. therefore prays for dismissal of this case.
To establish the case of the complainant has field the documents, which he relied upon, sanctioned letter issued by OP 1 dated 30.01.18, letter dated 09.06.09 claim for bank guarantee Rs 20,00000/- , with drawl letter dt. 26.02.09 and other letters dt 07.07.09, 24.02.11, 28.10.09(OP Bank), other letters of complainant alleging before NGO, RTI, Banking ombudsman etc. Complainant also examined himself as PW1 and one Uttam Kr. Dutta is also examined as OPW1.
DECISIONS WITH REASONS
Giving due consideration to the contents of the complaint petition, documents relied upon by the parties and evidence of PW1 & OPW1 and after hearing, arguments advanced by the lawyers of both sides, the Ld Forum has come to the findings as follows: -
Admittedly the complainant availed loan by way of Cash Credit Facility and Bank Guarantee up to Rs.20,00,000/- in favour of International Tractors Limited as a beneficiary. This Bank Guarantee was invoked by the beneficiary and claimed Rs.20,00,000/- from O.P. It is also admitted that complainant has a Current Account in the O.P./ Bank. O.Ps. state that he voluntarily closed the CC Account after such payment by the O.P./ Bank. It is clear from the pleadings from the both sides that the dispute between the parties is relating to commercial purpose. Complainant availed the services of the Bank in Cash Credit Facility from O.P./ Bank for regular trading in the purchase and sale of Tractors, which is a commercial transaction with sole motive to earn profit. This activity is purely commercial, which are excluded under the Act. As it is not covered under the Act he would not be a consumer U/s 2 (1)(d)(ii) as viewed by Hon’ble National Commission in Vijay Kumar vs IndusInd Bank reported in 2012 (3) CPR 242 NC.
The grievance of the complainant is that the Bank has committed deficiency in service in releasing the amount of Bank Guarantee, Rs.20,00,000/- to the Tractor Company without informing complainant. The moment Bank Guarantee is invoked, the Bank has no option but to honor the Bank Guarantee and by making payment to International Tractors Limited, O.P./ Bank has not committed any deficiency in service. The Loan Account with Cash Credit limit of Rs.20,00,000/- and the Bank Guarantee to the Tractor Company was opened by the complainant in relation to the business of sale of the Tractors. Thus it is obvious that services of the O.P./ Bank were obtained for commercial purpose and the complainant cannot be termed as consumer as envisaged U/s 2(1)(d)(ii) of the Act. The Section goes to show that such “person as consumer does not include a person who avails of such services for any commercial purposes”. Hon’ble National Commission viewed this fact as reported in 2015 (2) CPR 838 (NC) Union Bank of India vs Ramayana Jadav & Anr. Wherein Hon’ble Commission held that the Union Bank of India has not committed any deficiency in service in releasing the amount of two Bank Guarantees of Rs.15,00,000/- each to M/s International Tractors Limited without informing the complainant, Ramayana Jadav; in the same situation like in our instant case.
Considering all the fact and circumstances this Forum finds that complainant has not been able to prove his case that he is a consumer U/s 2(1)(d)(ii) under the Act. The O.Ps. were neither negligent nor deficient in giving service to the complainant. Therefore the complainant is not entitled for any relief as prayed for.
Fees paid is correct.
Hence, it is
ORDERED,
That the case being No.CC – 59/2014 is dismissed on contest but without cost.
Copies of this order be supplied to the parties free of cost.
