For Complainant : Advocate Shri. Bafana
For Opponent : Advocate Shri. J. Shekhar
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Per : MEMBER, Smt. Sujata Patankar
//JUDGMENT//
[1] The facts giving rise to the complaint briefly stated are as follows :-
It is the case of the Complainant that the Complainant is a proprietary firm. He is having Account bearing No. 305010200002776 in the Camp Branch of the Opponent Bank. It is further contended that the another customer/account holder M/s. Mobile Magic Pvt.Ltd. having current account bearing No. 048010200011787 through its Director Shri. Vivek Pallod had deposited Rs.1,00,000/- by cheque No. 399091 dtd.13/8/2008 in the account of the Complainant at Nagpur. On the same date, the said amount was credited to the Complainant’s account at Pune. It is the contention of the Complainant that on 17/9/2008 by seeing the statement dtd. 17/9/2008 showing reversal of entry of debiting the amount without the knowledge of the Complainant, the Complainant came to know that the said amount was debited from his account on the same date without intimation or permission either oral in writing. Thereafter, immediately the Complainant brought this fact to the notice of the Opponent Bank and also to the Director of Mobile Magic Pvt. Ltd., however he has not received any satisfactory reply from both of them. According to the Complainant, the Opponent has no right to transfer i.e. debit the amount without the written instruction from the Complainant. It is alleged by the Complainant that the act of the Opponent Bank is illegal one and beyond its authority. It is also the contention of the Complainant that inspite of repeated requests to the Opponent for crediting the amount in the account of the Complainant which was illegally debited the Opponent paid no heed to the request of the Complainant neither they gave satisfactory reply. It is further contended that he issued a legal notice through the Advocate on 6/5/2009 to which the Opponent has not replied which means that the Opponent had accepted the contentions of the notice. The Complainant further submits that the act of the Opponent to debit the amount without the permission and knowledge was illegal one and there is a breach of trust and also a cheating as contemplated. The Opponent Bank has thus deficient in service and also there is unfair trade practice on the part of the Opponent Bank. Thus according to the Complainant due to the act of the Opponent, the Complainant had suffered great financial loss etc. Thus on all these grounds and as specifically stated in the complaint application, the Complainant has prayed as follows :-
a. The Hon’ble Forum be pleased to direct the Opponent to credit the amount of Rs.1,00,000/- in the account of the complainant.
b. The Hon’ble Forum be pleased to direct to pay the interest @18% p.a. from 13/9/2008 till the crediting of amount by the Opponent Bank.
c. That the Hon’ble Forum be pleased to award the costs of Rs.20,000/- for mental and physical trauma and cost of the proceedings Rs.5,000/-.
d. Any other just and equitable orders may be passed in the interest of justice.
Alongwith the complaint application the Complainant has filed application for condonation of 31 days delay of in filing the complaint application for the reasons mentioned in the application alongwith affidavit. This Forum by order dtd. 22/10/2010 condoned the delay for satisfied reasons. The Complainant has also filed documents comprising copy of account statement of the Complainant, notice dtd.6/5/2009 through Advocate, acknowledgement receipt, discharge card and investigation report, fax by Mobile Magic Pvt. Ltd. to Axis Bank etc..
[2] In pursuance of the notice of appearance issued by this Forum, the Opponent remained present before this Forum, however failed to file written statement. Hence No say order was passed against the Opponent on 18/1/2011. After that the Opponent filed the application for setting aside no say order alongwith affidavit on 31/3/2011. This application was allowed. Thereafter the Opponent has filed written statement and has denied the complaint. It is the contention of the Opponent that the complaint is not tenable in fact or at law. According to the Opponent the contentions in the said complaint are mischievous, false and frivolous and hence the entire complaint deserves to be dismissed in toto. The Opponent Bank admits that the Complainant is maintaining a current account with the Opposite Party Bank. It is further submitted that the Complainant is not a consumer because he had opened the current account with Opposite Party for business purpose. This Opposite Party is relying on the judgment dated 13/8/2009 of Mumbai State Commission in the matter of Shri. Sujit Rameshchandra Jirapure V/s. ICICI Bank Ltd. & Anr. wherein it was held that the Complainant is not a ‘consumer’ since his account is current account and he opened the said account for business purpose. On this ground also the complaint is liable to be dismissed. It is also further stated that the complaint is bad for non-joinder and misjoinder of the parties. The Complainant has not impleaded M/s. Magic Mobile Pvt. Ltd. as party to this complaint. It is necessary to include M/s. Magic Mobile Pvt.Ltd. as a party for the proper adjudication of the present matter. However the Complainant has intentionally failed to implead them as a party. It is submitted that issuing notice to M/s. Magic Mobile Pvt. Ltd. and hearing them is most essential. As such the present complaint is liable to be dismissed with cost on this ground alone. It has denied that the Opponent had debited any amount without the knowledge of the Complainant. The Opponent has no personal knowledge about the same. It is also the contention of the Opponent that all its actions in the said transaction were done under rightful authority and with the knowledge of the Complainant. It is also further stated that the Opponent has not received any notice from the Advocate of the Complainant. The Opponent also further stated that whether or not the account of the Complainant should have been credited by Rs.1,00,000/- by M/s. Mobile Magic Pvt.Ltd. is a question to be determined between the Complainant and the said M/s. Mobile Magic Pvt.Ltd. The Opponent Bank is not privy to the said transaction between the Complainant and M/s. Mobile Magic Pvt. Ltd. and has no knowledge. The Opponent further stated that although the Complainant is having his account at the Pune Branch of the Opponent Bank, but through the use of Core banking facility the entire controverted transaction had taken place at Nagpur, as M/s. Mobile Magic Pvt.Ltd. had deposited the cheque in favour of the Complainant at Nagpur. Thus the entire cause of action as is alleged by the Complainant, denied by the Opponent, has taken place at Nagur. Thus there is no nexus or accrual of the cause of action within the territorial jurisdiction of this Hon’ble Fourm. Hence the Hon’ble Forum has no jurisdiction to try the present matter. The Opponent admits that on 13/9/2008 M/s. Mobile Magic Pvt. Ltd. had issued a cheque bearing No. 399091 in favour of Body Map for Rs.1,00,000/- to be paid in its account bearing No. 3050100002776. The Opponent Bank had acted as per the instructions of M/s. Mobile Magic Pvt.Ltd., however on the same date the Opponent Bank had received written instructions from the said M/s. Mobile Magic Pvt. Ltd. countermanding the said payment. The Opponent Bank states that as per the instructions of M/s. Mobile Magic Pvt. Ltd. the payment credited in the account of M/s. Body map was reversed. Thus according to the Opponent, it has in no manner been guilty or any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by it under any law for the time being in force or has been undertaken to be performed by it in pursuance of a contract or otherwise in relation to service nor has it indulged in any unfair trade practices. It is also the contention of the Opponent that the entire controverted transaction had taken place at Nagpur as M/s. Mobile Magic Pvt. Ltd. had deposited the cheque in favour of the Complainant at Nagpur, the written request countermanding the payment of the cheque was also submitted at Nagpur. Thus the entire cause of action as is alleged by the Complainant denied by the Opponent, has taken place at Nagpur. Thus there is no nexus or accrual of the cause of action within the territorial jurisdiction of this Hon’ble Forum. Nor does the Opponent Bank have its Principal office within the territorial jurisdiction of this Hon’ble Forum and hence the Hon’ble Forum has no jurisdiction to try the present matter. It is the contention of the Opponent that the Complainant has malafidely and with ulterior motive filed this present complaint against the Opponent, thereby causing hardship and harassment to the Opponent by unnecessary making Opponent to go through the lengthy legal procedures etc. on the bases of false, frivolous and untenable allegation, therefore the present complaint deserved to be dismissed in toto with heavy compensatory cost of Rs.25,000/-. The Opponent has also filed affidavit in support of the written statement, adopting all the contentions in the written statement to be a part of affidavit. As also the Opponent has filed list of documents, comprising deposit slip and letter countermanding payment.
[3] After filing written statement by the Opponent, the Complainant has filed affidavit in reply to support his contentions. We have also heard the oral submissions of Advocate Bafana for the Complainant.
[4] On perusal of the entire proceedings, pleadings, documentary evidence, arguments, the following points arouse for our consideration.
Points Answers
1. Whether this Hon’ble Forum has jurisdiction
to try and entertain the present complaint? … Yes.
2. Whether the Complainant is a “consumer”
under the provisions of Consumer Protection
Act ? … No.
3. What order ? … As per final order.
REASONS :-
[5] Point No.1 :- The Opponent has raised the issue of the jurisdiction as specifically mentioned in para (18) of their written statement. According to the Opponent, all these transactions executed at Nagpur hence this Hon’ble Forum has no jurisdiction to try the present matter. Against this after perusal of the documentary evidence it reveals that the Complainant is the accountholder of Opponent Bank at Pune and the transactions came into existence about amount credited and amount transferred on the Account of the Complainant at Pune itself. Which shows that the cause of action arouse at Pune. The Complainant has filed case laws of Hon’ble National Commission on the point of jurisdiction ~ 2011 (2) CPR 244 (NC) in the matter of Munish Sahgal V/s. D.L.F. Home Developers Ltd. as also ~ 2008 (4) CPR 296 (NC) in the matter of R.B. Jagdish Prasad & Co. V/s. Oriental Insurance Co. Ltd.. Relying on the aforesaid judgments and considering the cause of action we opined that this Hon’ble Forum has jurisdiction to try, entertain this complaint. Hence we answer the point No.1 in affirmative.
[6] Points No. 2 & 3 :- It is the contention of the Complainant that M/s. Mobile Magic Pvt.Ltd. through its Director Shri. Vivek Pallod has deposited the amount of Rs.1,00,000/- in the account of the Complainant on 13/9/2008 at Nagpur. On perusal of the Account extract filed by the Complainant at Exh.6/1 shows that on 13/9/2008, the amount of Rs.1,00,000/- was credited in the account of the Complainant bearing Number 3050100002776 by Mobile Magic Pvt. Ltd.. On the very day the amount of Rs.1,00,000/- is shown as reverse of entry dtd.13/9/2008. It means that on 13/9/2008 the amount of Rs.1,00,000/- deposited by cheque through the person and also on whose written instruction the Opponent Bank reversed the said amount of Rs.1,00,000/- from the Account of the Complainant. As against this the Opponent has filed the fax letter dtd.13/9/2008. After perusal of this letter, Mobile Magic Pvt. Ltd. Company intimated to the Opponent Bank as follows :-
“We request you to kindly revert the transfer vide cheque No. 399091 favoring Body Map A/c No. 305010200002776 for Rs.1,00,000/- from our account due to unavoidable circumstances”.
[7] After receiving the fax letter by M/s. Mobile Magic Pvt.Ltd. the Opponent Bank reversed the amount of Rs.1,00,000/-. The Opponent raised the issue of commercial purpose in the written statement and also referred the judgment dated 13/8/2009 of Hon’ble State Commission, Mumbai in the matter of Shri. Sujit Rameshchandra Jirapure V/s. ICICI Bank Ltd. & Anr and contended that on the ground of commercial purpose the complaint is liable to be dismissed. The Complainant filed their reply affidavit, however there is no any satisfactory averment about issue raised by the Opponent regarding commercial purpose. There is no any contentions of the Complainant that the Complainant is running their business only for livelihood. As also in reply affidavit, the Complainant has not raised the issue that the Complainant is running their business only for their livelihood. There is no any contention of the Complainant that their livelihood is depend on their business only.
[8] After perusal of all the documentary evidence on the record it reveals that the Complainant is a proprietary firm (Body Map) running their business. Thus it is very clear that on 13/9/2008 the amount of Rs.1,00,000/- was credited by M/s. Mobile Magic Pvt.Ltd. and on the very same day, the amount was reversed from Account of the Complainant. Such a huge amount of Rs.1,00,000/- itself shows that there is a business transaction going on between the Complainant and M/s. Mobile Magic Pvt.Ltd.. Which fact is not denied by the Complainant anywhere in the entire proceedings. As also the Complainant has not explained the reason as to why M/s. Mobile Magic Pvt.Ltd. has deposited such huge amount of Rs.1,00,000/-. The Complainant has filed vague complaint. Moreover the Account statement produced at Exh.6/1 clearly shows that the name of the Account holder is Body Map. In addition to that the transaction between the Complainant and M/s. Mobile Magic Pvt. Ltd. came into existence for commercial purpose only. Hence the complaint is liable to be dismissed under the provisions of Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986.
[9] As per Consumer Protection Act, Section 2 (1) (d) (ii)
“(ii) [hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who [hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person [but does not include a person who avails of such services for any commercial purpose]”.
[10] It reveals that the transaction between the Complainant and the Opponent took place for commercial purpose only and therefore the complaint application of the Complainant is liable to be dismissed as per the provisions of Section 2 (1) (d) (ii) of the Consumer Protection Act. It is admitted fact by the Complainant that the Complainant is a proprietory firm carrying on its business through its proprietor. There is no any contention of the Complainant that their livelihood is depend on their business only. Therefore we are relied upon the judgment of the Hon’ble National Commission in II (2011) CPJ 270 (NC) in the Revision Petition No. 134 of 2011 decided on 07/4/2011 in the matter of Smt. Sushma Goel V/s. Punjab National Bank.
Consumer Protection Act, 1986 – Sections 2 (1) (d) (ii), 21 (b) – Banking and Financial Institutions Services – Money withdrawn / Transferred – Commercial purpose – Money transferred from account through cheques in some one else’s account – Alleged deficiency in service – District Forum dismissed complaint – State Commission dismissed appeal – Hence revision – Complaint relates to operation of Bank account maintained by commercial organization for commercial purpose – Complainant not a consumer – Order of Fora below upheld.
The complaint will fall within the exception clause contained in Section 2 (1) (d) (ii) of the Consumer Protection Act, as amended in 2002. In terms of this provision, the RP/Complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986”.
[11] The Complainant has filed case law ~ I (2011) CPJ 275 Maharashtra State Consumer Disputes Redressal Commission, Mumbai in the matter of Ravindra Vinayak Kulkarni V/s. Bank Of India & Anr. We have gone through this judgment. After perusal we came to the conclusion that the case ratio is different hence not applicable to the present matter.
[12] With the aforesaid discussions and relying on the judgment of the Apex Court, we opined that the Complainant is not a “consumer” of the Opponent Bank within the definition of Consumer Protection Act, 1986 under the provisions of Section 2 (1) (d) (ii). In our opinion, the complaint liable to be dismissed. Therefore we answer the points No. 2 & 3 accordingly.
Hence we pass the following order :-
// ORDER //
(i) The complaint stands dismissed.
(ii) No order as to costs.
(iv) Certified copies of this order be supplied to
both the parties free of costs.
