The complainants case, in short, is that as per approach of Pro-O.P/Rabindra Nath Roy, the complainant entered into a partnership with said Pro-O.P for completion of work which provided by the N.F.Railway vide letter No.WB/407/Pipeline/NCB/AP/W-21 (i) dated 09/09/2010. Deed of partnership was executed in between the complainant and the Proforma O.P on 04/11/2010. The photocopy of deed marked as Annexure ‘A’. In terms of Clause (5) of the partnership deed a joint Bank Account had been opened in the Axis Bank at Alipurduar by showing the deed of partnership being account No.910010037607268. The photocopy of the same is marked as Annexure- ‘B’. The complainant invested the entire working capital for the contractual work and he time to time deposited the amount in the said joint account. The photocopy of depositing P.G Bond and others are marked as Annexure- ‘C’ and ‘C’/1.
According to complainant, all the transaction of work is being done through the said joint Bank account. The N.F.Railway has been releasing the amount mentioning the above said account. The complainant had performed the work but the cheques which disbursed by N.F.Railway has not been deposited in the said joint account. Subsequently the complainant came to know on 25/05/2014 that Pro-O.P has opened another account in the Central Bank of India, Cooch Behar, Bazar Branch and he managed to get the cheque from the Department of N.F. Railway mentioning the new account.
The Pro-O.P with the help of other O.Ps did the said act with a view to deprive the complainant who invested capital and share provided of Rs.13 Lakhs. (Rupees thirteen Lakhs).
The complainant on enquiry came to know that Pro-O.P surreptitiously made correspondence with the Divisional Manager (W), N.F.Railway, Alipurduar Junction for changing the bank account. The photocopy of that letter marked as Annexure- ‘D’. The Senior Divisional Engineer -1,Alipurduar Junction issued a letter to the Branch Manager, Axis Bank, Alipurduar Branch to know the correct status of the account or whether about ‘No Objection’. The photocopy of it is Annexure- ‘E’. Accordingly, the Axis Bank, Alipurduar in connivance with the Pro-O.P issued a letter on 23/03/2012 to the Senior Divisional Engineer, N.F. Railway, Alipurduar that they have no objection if the bank account from Axis Bank be transferred to Central Bank of India, Cooch Behar Branch. The photocopy of the said letter dated 23/03/2012 is marked as Annexure- ‘F’. The Senior Divisional Engineer by his letter dated 29/03/2012 made to Senior DFM/APDJ stated that the bill in question is re-submitted for passing the same in the new Bank account of Central Bank of India, Cooch Behar being account No. 170016077 (Copy of it is Annexure- ‘G’). All the above said activities were done behind the back of the complainant.
According to complainant, the O.P-Bank willfully prior to issuing no objection certificate did not inform the complainant. The complainant could have raised objection if the above said matter be informed to him. In view of the above activities, the Pro- O.P encashed the amount which paid by N. F. Railway through the new bank account of Pro- O.P i.e. the account which was opened at Central Bank of India, Cooch Behar. The complainant has been cheated to the tune of Rs. 13 ( thirteen) lakhs in connivance with the O.P/Bank who made negligence and deficiency in service on their part. As such, the O.P-Bank has to indemnify the said loss suffered by the complainant. The complainant has become financially handicapped due to activities of the O.Ps for which they are liable to compensate the complainant.
In the facts and circumstances, the complainant has prayed for directing the O.P No.1 and 2 to pay compensation amounting to Rs.13 (thirteen ) Lakhs for their negligence and deficiency in service, and a cost of litigation amounting to Rs.20,000/- and an amount of Rs. 1,00,000/- for causing mental sufferings.
The O.P.No.1 and 2 appeared through their Ld. Agent and filed a Written Version to contest the instant case denying the materials allegation contained therein to the effect that the complaint is not maintainable and the complainant has no locus-standi to file this complaint. The complaint is false, frivolous and mala-fide. The transactions are clearly commercial in nature and it debars the Forum from exercising jurisdiction. According to O.P the bone of contention of this matter is a letter dated 23/03/2012. So, this case is required to be filed within the statutory period of this Act. As the instant case has not been filed within the statutory period, the case is barred by limitation. The N.F. Rly. is the necessary party as the dispute arose in this case. But the complainant did not array N. F. Railway as party. The Bank is not at all concerned regarding the business activities and dealings in between any of the holders with third person i.e. N.F.Railway.
The O.P admitted the letter dated 23/03/2012 and it clearly mentioned therein that the status of the aforesaid account is active and the conduct of the account is satisfactory and as such the bank observed that they had no objection for change of bank account to Central Bank of India at Cooch Behar for bank transaction by Pro- O.P/Rabindra Nath Roy. It has been further averred that the O.Ps have no knowledge regarding the transactions of the complainant, Pro-O.P and N.F.Railway. The bank is not duty bound to inform the complainant regarding the letter dated 06/03/2012 and 23/03/2012. The O.Ps have also stated that Pro-O.P had sent a legal notice to the complainant on 09/01/2012 for dissolution of the partnership and the Pro-O.P had also informed the N.F .Railway that upon expiry of 10 days after dispatch of the legal notice, he had continued to work alone and he has prayed that all transactions may be done in his name in respect of the contract and as such the complainant and the Pro-O.P were entangled in a dispute in between themselves and the complainant has falsely implicated the O.P-bank. The O.P has stated that the terms and conditions of the partnership, if any, are not binding upon the O.P-bank. The O.Ps have also stated that the deed of partnership clearly shows in order to complete the work, the parties entered into an informal arrangement between themselves which has no binding authority on any third person and the said partnership is unregistered one and hence the partners are prohibited under the provision of Partnership Act.
The O.P-bank has also stated that they have no responsibility to take care of the dispute in between the complainant and the Pro-O.P. The O.Ps have further stated that, if the account was not shifted to Cooch Behar, the Pro-O.P could have obtained the said payment as because the letter dated 30/01/2012 depicts a cloud on the partnership itself and it also brings out that the Pro- O.P: was claiming release of payment in his name individually, in total exclusion of the complainant and as such the O.P-bank has no negligence and deficiency in service. The question of indemnify does not arise at all as there is no agreement to indemnify the complainant. The O.Ps do not have any liabilities to compensate the complainant. The O.P-bank has prayed for dismissal of the instant case with exemplary costs.
In the instant case in spite of issuing notice to Pro-O.P/Rabindra Nath Roy through post as well as through daily News Paper ‘Pratidin’ dated 26/05/2016 he did not turn up to contest the case. That’s why the instant case is being proceeded against the Pro- O.P in exparte.
The complainant and O.P.No.1 and 2 have filed evidence on affidavit which appears to be the reiterated version of complaint as well as W/V. The complainant and O.P No.1 and 2 have also filed written argument in support of their respective cases.
Heard the argument of Ld. Agent for the complainant and also the Ld. Agent for the O.Ps. amHaHH
In this context, the following points have necessarily come up for consideration to reach a just decision of the case.
POINTS FOR CONSIDERATION
- Is the complainant a consumer u/s. 2(1) (d) (ii) of the C.P.Act, 1986?
- Whether the Forum has jurisdiction to entertain the instant case?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- To what other relief or reliefs, the complainant is entitled?
DECISIONS WITH REASON
Point No. 1 & 2
It appears from the complaint that the complainant is a customer of Axis Bank, Alipurduar Branch who had a Bank Account No.910010037607268 opened on 05/10/2010. Annexure-B clearly shows that the said account was opened jointly in the name of the Pro-O.P/Rabindra Nath Roy as well as complainant.
It further appears from the case record that the alleged fact happened within the jurisdiction of this Consumer Forum and the compensation as claimed by the complainant shows below the pecuniary jurisdiction of this Forum.
Therefore, having heard and on considering the facts and circumstances, we are in view that the complainant is a consumer under 2(1)(d)(ii) of the C.P.Act and this Forum has territorial as well as pecuniary jurisdiction to entertain the instant case.
As such, the points are decided in favour of the complainant.
POINT NO. 3 AND 4 –
Both the points are taken up conjointly as the same are inter linked with each other.
Perused the case record as well as the evidence on affidavit filed by the parties. Seen the documents filed by the complainant which have been marked as Annexure-A, B, C, C/1,D ,E ,F and G.
Annexure- A is the Photocopy of deed of partnership executed in between complainant and Pro-O.P/Rabindra Nath Roy on 04/11/2010 before Notary Public, Jalpaiguri, Annexure-B is a blank cheque of the joint account of complainant and Pro-O.P, Annexure-C and C/1 are the photocopy of P.G.Bond and Pay-in-Slip of Axis Bank, Alipurduar Branch, Annexure- D is the photocopy of letter of Pro-O.P addressed to D.R.M,N.F .Railway ,Alipurduar dated 30/01/2012, Annexure- E is a photocopy of a letter of Sn. Divisional Engineer, Alipurduar Junction addressed to Manager, Axis Bank dated 06/03/2012, Annexure-F is a photocopy of a letter issued by Axis Bank on 23/03/2012 address to Sn.Divisional Engineer, N. F .Railway, Alipurduar Junction and Annexure - G is the photocopy of a letter issued by Sn.Divisional Engineer, Alipurduar Jn. on 29/03/2012 address to Sn.DFM/APDJ.
The complainant’s grievances, as it appears from the complaint that he made a partnership deed with Pro-O.P/Rabindra Nath Roy on 04/11/2010 to perform some works of Pipe Line under N. F. Railway and it was averred that the contribution of investment would be in equal share. The First partner i.e Pro-O.P would get 50% of profit and the complainant also would get rest 50% of profit. It was also mentioned therein that a joint bank account shall be opened and the same shall be operated by the partner jointly or severally as per their desire. The partner shall alert to complete the contractual works smoothly. If, any dispute arises then the matter shall be referred to Arbitrator for lawful decisions.
Fact remains that without giving any intimation by the Pro-O.P/Rabindra nath Roy to the complainant, he opened another account at Central Bank of India, Cooch Behar Branch to operate the money which was received from N. F. Railway.
It is also the grievance of the complainant that without intimation to him the O.Ps i.e. Axis Bank authorities had given NOC while asked for by N. F. Railway. According to complainant a joint bank account was opened in Axis Bank, Alipurduar on the basis o f the deposit of the said partnership deed. The complainant did not actually aware when the Axis Bank had given ‘NOC’ to the N. F. Railway and transferred the bank account to Central Bank of India, Cooch Behar Branch. It is absolutely untrue that at the time of opening bank account in Axis Bank, Alipurduar the parties deposited the partnership deed as because bank account was opened on 05/10/2010 and partnership deed was executed on 04/11/2010 i.e. bank account was opened prior to partnership deed (Annexure- F and A).
Though the complainant has made a prayer for compensation amounting to Rs.13 (thirteen) lakhs for the negligence and deficiency in service of Axis Bank and also cost of litigation and causing mental suffering amounting to Rs. 20,000/-and Rs.1,00,000/- respectively. But, he did not file any chit of paper to show about the investment of money according to the said partnership deed for the performance of work as mentioned therein. There is also no chit of paper to show that sometimes the complainant got his share i.e. profit from the work as alleged herein. We have already mentioned that the partnership deed which has been filed herein goes to show it is an unregistered deed.
It has been averred by O.P that the parties entered into an informal agreement and it has no binding capacity to any third person i.e. O.P/Axis Bank. Contesting O.Ps averred that Pro-O.P informed the matter to N. F. Railway upon expiry of 10 days of the dispatch of legal notice he had continued to work alone. The contesting O.P has rightly pointed out that the terms and condition of the partnership are not binding upon them.
Actually regarding the performance of some work in N. F. Railway a work order was given in the name of Pro-O.P who is an enlisted contractor of N. F. Railway. To get profit from the said work, the present complainant joined hands with the Pro-O.P and that’s why the authority i.e. N. F. Railway released the payment in the name of Pro-O.P in the bank account situated at Central Bank of India, CoochBehar.
It is not out of place to mention that in partnership deed it has been mentioned that, if any, dispute raises then the matter shall be referred to the Arbitrator for decisions. There is no agreement to indemnify the complainant. Annexure-D goes to show that the Pro-O.P sent a legal notice on 09/01/2012 to the complainant for dissolving the partnership deed. It further appears that Pro-O.P had prayed for changing the back account in his name, so that the all transaction be done accordingly. If we go through Annexure-A (Partnership deed) it clearly mentioned Vide Para No.5 that the Bank Account be operated by the partners jointly or severally. In reply (Annexure-E) of the Pro-O.P’s letter Sn .Divisional Engineer of N. F. Railway desires to know the current status of the Bank’s account of Pro-O.P and complainant from Axis Bank ,Alipurduar as well as to issue he NOC. Annexure-F goes to show that Axis Bank clarified the status of account and sent NOC to N. F. Railway to the effect that they have no objection relating to changing the bank account from Axis Bank, Alipurduar to Central Bank of India, Cooch Behar.
It appears in Annexure-G that N. F. Railway accepted the NOC of Axis Bank and N. F. Railway ordered to pay the bill to the account of Pro-O.P at Central Bank of India, Cooch Behar.
On meticulous scrutiny of the case record, it reflects that Pro-O.P is an enlisted contractor of N. F. Railway. On the contrary, the complainant is not in any way connected with said work except the deed of partnership as alleged. The matter in question, is a business transaction in between the complainant and Pro-O.P.
Therefore, on meticulous scrutiny of the record and the documents filed herein, we are in view that in no case it can be said the contesting O.Ps i.e. Axis Bank had any negligence or deficiency in service as alleged herein. We are unable to allow the prayer of the complainant as sought for.
Thus, the points are decided against the complainant.
Hence, it is,
ORDERED
that the C.C No. 25 of 2015 be and the same is dismissed exparte against Pro-O.P/Rabindra Nath Roy and dismissed on contest against the other O.Ps without any cost.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me-
