Haryana

Yamunanagar

CC/316/2012

M/s Prem Chand Joginder Singh - Complainant(s)

Versus

Axis Bank Ltd. - Opp.Party(s)

V.S.Chauhan

17 Apr 2017

ORDER

BEFORE THE DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, YAMUNA NAGAR

                                                                                               Complaint No…316  of 2012.

                                                                                               Date of institution: 26.03.2012

                                                                                               Date of decision: 17.04.2017

M/s Prem Chand Joginder Singh, Grain Market, Rasoolpur, Tehsil Bilaspur, District Yamuna Nagar through its Partner Shri Joginder Singh.                                                                                                                                                           

                                                                                                                          …Complainant.

                                    Versus

Axis Bank Limited, Branch Sadhaura, through its Manager Tehsil Bilaspur, District Yamuna Nagar.   

                                                                                                                         …Respondent.

 

BEFORE:       SH. ASHOK KUMAR GARG PRESIDENT,

                        SH. S.C.SHARMA, MEMBER.

 

Present:  Sh. Vikrant Singh Chauhan Advocate, counsel for complainant.  

               Sh. P.K.Kashyap, Advocate, counsel for respondent.            

 

ORDER

1                      The present complaint has been filed by the Firm M/s Prem Chand Joginder Singh (hereinafter referred as Complainant firm) under section 12 of the Consumer Protection Act. 1986  amended up to date. 

2.                     Brief facts of the present complaint, as alleged by the complainant Firm, are that complainant firm is a partnership firm and had availed the cash credit limit from the respondent Bank (hereinafter respondent will be referred as OP Bank) vide account No. 496010300001939  for the last so many years and the account of the firm is running satisfactorily. Some time back, the official of the Op Bank approached the complainant and stated that they had given a target to open a large number of accounts of customers in a particular period, as such a current account bearing No. 496010200001915 was opened by the official of the Op Bank in the name of complainant’s firm. At the time of opening this current account, the official of the OP Bank assured the complainant that he will not be required to maintain any minimum balance in the said account. On 25.03.2011, a cheque bearing No. 393323 dated 25.03.2011 for Rs. 32030/- was deposited by the complainant in cash credit account bearing No. 496010300001939 for collection but the proceeds of the said cheque was deposited by the Op Bank in the current account bearing No. 496010200001915 instead of cash credit account bearing No. 496010300001939 due to malafide intention, though, the complainant used to perform his routine transactions from his another account and as such written instructions were given to the OP Bank by the complainant regarding the said transaction, so, it is clear that the official of the Op Bank defraud the complainant. When on 19.08.2011, complainant visited the OP Bank for encashment/ withdrawal of the amount from his CC current account bearing No. 49601030000 1939, he was stunned to note that the proceeds of the abovesaid cheque has not been credited in the cash credit account. Upon enquiry, complainant was told that the  proceeds of the cheque in question has been deposited in the current account and further it was told that the Op Bank had debited their charges to the tune of Rs. 14,000/- approximately during the period from April, 2011 to July, 2011 on account of charges for not maintaining the minimum balance etc. After that, complainant visited the official of the Op Bank and requested to refund the same and finding no other alternative the complainant served a legal notice dated 19.09.2011 asking the OP Bank to refund the amount of charges deducted from the account of the complainant and also to pay compensation as well as litigation expenses. Hence this complaint.

3                      Upon notice, OP Bank appeared and filed its written statement by taking some preliminary objections such as complaint is not maintainable; complainant has no locus standi to file the present complaint; complainant is estopped from filing the present complaint by his own act and conduct; complainant has concealed the true and material facts and on merit all the allegations mentioned in the complaint have been denied. It has been further submitted that cheque No. 393323 dated 25.03.2011 was issued to the complainant on account of refund of income tax in which it was specifically mentioned that the said refund voucher must be credited in account No. 496010200001915 i.e. current account of the complainant but while filling the pay in slip, the complainant has wrongly mentioned the account No. 496010300001939 (Cash Credit Limit account of the complainant), but when the officials of the Op Bank processed the said cheque they found that the same must be credited in account No. 496010200001915 i.e. current account, which was rightly credited in the said account. Therefore, contention raised by the complainant is totally wrong and incorrect. It has been further mentioned that cheque in question was received from Government Department and it was an account payee cheque and a particular account number was mentioned on the said cheque, therefore, the said cheque was rightly deposited in the proper account by the official of the Op Bank. Further, it has also been mentioned that the complainant has remained failed to maintain minimum balance in his current account bearing No. 496010200001915 so, the charges were levied as per rules and regulations of the Op Bank. Lastly, prayed for dismissal of complaint as there was no deficiency or unfair trade practice on the part of OP Bank.

4                      In support of case, counsel for the complainant tendered into evidence short affidavit of Joginder Singh partner as Annexure CW/A and documents such as photo copy of pay in slip dated 25.03.2011 as Annexure C-1, Photo copy of pass book of current account bearing No. 496010200001915 as Annexure C-2 and C-3, Photo copy of postal receipt as Annexure C-4, Photo copy of legal notice as Annexure C-5, Photo copy of application given to the Bank as Annexure C-6 and closed the evidence on behalf of complainant firm.

5                      On the other hand, counsel for the Op Bank tendered into evidence affidavit of Sh. Ashish Mittal, Manager Axis Bank as Annexure RW/A and documents such as Photo copy of cheque bearing No. 393323 (income tax refund) as Annexure R-1, Photo copy of account statement of current account bearing No. 496010200001915 as Anenxure R-2 and closed the evidence on behalf of OP Bank.

6                      We have heard the learned counsel for both the parties and have gone through the pleadings as well as documents placed on file very minutely and carefully.

7                      The only version of the complainant is that the cheque bearing No. 393323 dated 25.03.2011 has been wrongly credited in the current account bearing No. 496010200001915 by the official of the Op Bank whereas the complainant deposited the cheque in question ( refund of TDS) in his cash credit account bearing No. 496010300001939. Learned counsel for the complainant draw our attention towards the pay in slip dated 25.03.2011 (Annexure C-1 and photo copy of statement of account bearing No. 496010200001915 and argued that from these documents it is duly evident that official of the OP Bank has wrongly credited the cheque amount in wrong account i.e. against the written instructions of the complainant.

8                      On the other hand, learned counsel for the OP Bank argued at length that the amount of cheque in question i.e. refund of income tax has been rightly credited in his current account bearing No. 496010200001915 as in the said cheque it was specifically mentioned that the said refund voucher must be credited in account bearing No. 496010200001915 i.e in current account, not in the cash credit account. Learned counsel for the OP Bank further argued that as the cheque in question was received from Government Department and was account payee cheque of a particular account, so, the said cheque was rightly deposited by the official of the Op Bank as per instruction of the Government. Learned counsel for the OP Bank further argued that the charges have been rightly levied in the current account of the complainant as the complainant remained failed to maintain the minimum balance in this account. Lastly, learned counsel for the OP Bank argued that as both the accounts of the complainant firm were opened to run the business of the firm for doing the commercial activities, hence, the present complaint is liable to be dismissed on this score also.

9                      After hearing both the parties, we are of the considered view that there is no negligence or deficiency in service or unfair trade practice on the part of OP Bank. We have perused the disputed cheque i.e. refund of the income tax Annexure R-1 in which account bearing No. 496010200001915 i.e. current account of the complainant has been specifically mentioned. The amount of this cheque/refund of income tax has been duly credited by the official of the OP Bank in this account i.e. 496010200001915 as per instructions of Government. So, argument advanced by the counsel for the complainant that official of the Op Bank has wrongly and illegally with malafide intention has credited the amount of this cheque in its current account instead of cash credit account is not tenable. These facts have not been rebutted by the complainant that in the refund voucher/ income tax refund cheque, the current account number was not mentioned, so, on this account, we are of the considered view that there was no negligence or deficiency in service on the part of the official of the OP Bank. The second grievances of the complainant is that official of the Op Bank has wrongly and illegally debited the charges to the tune of Rs. 14,000/- from April 2011 to July, 2011 on account of not maintaining the minimum balance in the account is also not tenable as the complainant has totally failed to file any evidence or any copy of agreement or opening form of the account to prove that the Op Bank was not entitled to get the charges on account of minimum balance etc. and in the absence of any cogent evidence this Forum is unable to hold that the OP Bank wrongly and illegally and with malafide intention has debited the charges in the account of the complainant. On the other angle also, the present complaint has been filed by  M/s Prem Chand Joginder Singh claiming itself to be a “Consumer” which is also not tenable as the complainant firm does not fall under the definition of consumer. The term consumer has been defined under section 2(1)(d) of the C.P.Act 1986 which reads as under:

                        “Consumer” means any person who-

(i)                     buys any goods for a consideration which has been paid or promised or partly paid any partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

                        (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]

                        [ Explanation- For the purposes of this clause, “ commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self- employment]”       

10.                   Since the services of the OP Bank have been availed by the complainant firm for business/ commercial purposes, so complaint is not maintainable before the Consumer Forum under the Consumer Protection Act, 1986 in view of the provisions of section 2(1)(d)(ii) reproduced above. Although the explanation appended to section 2(1)(d)(ii) of the Act provides that the “commercial purpose” does not include the services availed by the person exclusively for the purpose of earning his livelihood by means of self employment. However, the above noted explanation restricting the scope of the commercial purpose is of no avail to the complainant because complainant is a body corporate and not a natural person who needs to indulge to earn his livelihood.

11                    In the circumstances noted above, we are of the considered view that complainant failed to prove his case that there is any deficiency in service on the part of OP Bank. Hence, we have no option except to dismiss the complaint.

12.                   Resultantly, we find no merit in the present complaint and the same is hereby dismissed with no order as to costs. Copies of this order be sent to the parties concerned free of costs as per rules. File be consigned to the record room after due compliance.

Announced in open court. 17.04.2017

 

 

                                                                                                (ASHOK KUMAR GARG )

                                                                                                PRESIDENT

                                                                                                DCDRF,YAMUNANAGAR

 

 

                                                (S.C.SHARMA )          

                                                MEMBER