Rajasthan

StateCommission

A/1073/2016

Shagun Saree Jariye Propwritter - Complainant(s)

Versus

Citi Bank & Oth. - Opp.Party(s)

Virendra Saraswat

05 Sep 2017

ORDER

BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION,RAJASTHAN,JAIPUR BENCH NO.1

 

FIRST APPEAL NO: 1052/2016

 

ICICI Bank Ltd., EDU Section through Manager, Upasana Tower, Near Ahinsa Circle, C-Scheme,Jaipur & ors.

Vs.

Shagun Sarees through Prop. Lakshmi Swaroop Mundra r/o 670 Adarsh Nagar, Jaipur & ors.

 

FIRST APPEAL NO: 1073/2016

 

Shagun Sarees through Prop. Lakshmi Swaroop Mundra r/o 670 Adarsh Nagar, Jaipur & ors.

Vs.

Citi Bank through Manager, Consumer Divine Card Centre, Annslat, Chennai & ors.

 

FIRST APPEAL NO: 298 /2017

 

Citi Bank N.A. Bhagwati Bhawan, Ground floor, Govt. Hostel crossing, M.I.Road, Jaipur.

Vs.

Shagun Sarees through Prop. Lakshmi Swaroop Mundra

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r/o 670 Adarsh Nagar, Jaipur & ors.

 

 

Date of Order 5.9.2017

 

Before:

 

Hon'ble Mrs. Justice Nisha Gupta- President

 

Mr.Ajayraj Tantia & Mr.Vinod Sharma counsel for ICICI Bank

Mr. Pramod Kumar counsel for CITI Bank

Mr. Virendra Saraswat counsel for the complainant Shagun Sarees

 

BY THE STATE COMMISSION ( PER HON'BLE MRS. JUSTICE NISHA GUPTA,PRESIDENT):

 

All these appeals have been filed against single order hence, are decided by this common order.

 

The contention of the ICICI Bank is that the claim could not have been entertained before the Forum below as it was

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delayed one and further a commercial transaction. Hence, the claim should have been dismissed.

 

The contention of the CITI Bank is that no deficiency has been proved against the CITI Bank as they have furnished the successful transaction report and not committed any deficiency.

 

The contention of the consumer is that the claim should have been enhanced.

 

Heard the counsel for the parties and perused the impugned judgment as well as original record of the case.

 

There is no dispute about the fact that the Electrical Data Capture Terminal was installed at the shop of the consumer by the ICICI Bank. It has been stated by the consumer that on 3.3.2004 transaction of Rs. 2,64,010/- and on 6.3.2004 transaction of Rs. 30,000/- were credited but inspite of the successful transaction report given by the CITI Bank this amount has not been credited in his account and deficiency has been committed.

 

The contention of the ICICI Bank is that this being the

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commercial transaction the complaint could not lie before the Forum below. A bare perusal of the complaint goes to show that the complaint was filed on behalf of Shagun Sarees being Prop. Lakshmi Swaroop Mundra. It has also been stated that the firm is having business in dress material etc. and Electrical Data Capture Terminal was installed for commercial purpose and when the services were rendered for commercial purpose the complaint could not be submitted before the Forum below. Reliance has rightly been placed on the judgment passed by the National Commission in Consumer Case No. 447/2015 Richi Richi Agro Foods Vs. State Bank of India where after considering the number of cases the National Commission was of the view that when service is availed for business purpose the complainant did not fall within the definition of 'consumer'.

 

Per contra the consumer has placed reliance on (2011) 1 CPJ 119 Techno Mukund Constructions Vs. Mercedes Benz India Ltd. where the car was purchased for personal use which is not the case here. Further reliance has been placed on (2005) 2 CPJ 60 Sunita Sharma Vs. U.S.Thakur & ors., (2014) 4 RCR (Civil) 832 Sanjay Kumar Joshi Vs. Municipal Board where the product was purchased for the purpose of earning livelihood which is not the case here. Hence, in view of the above the

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appeal is liable to be allowed on this ground alone.

 

The other contention of the bank is that complaint has been filed with delay of seven years. Per contra the contention of the consumer is that he moved an application u/s 5 of the Limitation Act as he was pursuing the matter bonafidely in another court which was not having jurisdiction and the Forum below has rightly condone the delay.

 

The Forum below has condoned the delay as application u/s 5 of the Limitation Act was preferred. A bare perusal of original complaint goes to show that on 3.3.2004 the transactions have taken place and approval settlement report was also sent by the CITI Bank on the same day. Ex. 1 sale report has been submitted and if money has not been credited in the account of the consumer the cause of action has arisen on 3.3.2014 and for Rs. 30,000/- on 6.3.2014 but this complaint has been filed on 2.3.2011 after more than seven years.

 

In application u/s. 5 of the Limitation Act it has been stated that a criminal complaint was filed against which CITI Bank went into writ petition which was decided on 15.3.2011. Thereafter without any delay the complaint has been filed. It is

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not in dispute that writ was disposed of on 15.3.2011 but thereafter the complaint has been filed with delay of more than 1 ½ month for which no explaination has been submitted. Further the contention of the consumer is that he was pursuing the matter in another court bonafidely. The order passed in writ petition has also been submitted in which it has been stated that the present complainant want to invoke jurisdiction of Consumer Forum after withdrawing their complaint but contention of the bank is that still criminal complaint is pending meaning thereby that the consumer has not moved before a wrong court with good faith but he was having two remedies. One raise the claim for compensation and other criminal liability. He moved before the criminal court but has chosen not to move before the Consumer Forum for having compensation and it cannot be said that in view of section 14 of the Limitation Act he was pursuing the matter in good faith in a court which was not having jurisdiction as he still pursuing the matter with the criminal court and no reason has been assigned by the consumer for not moving the claim before the Consumer Forum for seven long years. Hence, delay cannot be said to be bonafide and claim should have been dismissed on this ground also.

 

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In view of the above the appeal of ICICI Bank is liabale to be allowed.

 

The award has also been passed against the CITI Bank inspite of the fact that the CITI Bank has furnished the successful settlement report hence, the complainant could not show any deficiency on the part of CITI Bank and consequently the appeal of CITI Bank is also liable to be allowed.

 

As both these appeals are allowed, the appeal of the consumer is liable to be dismissed.

 

In view of the above the appeals filed by the ICICI Bank and CITI Bank are allowed and the order of the Forum below dated 29.7.2016 is set aside and the appeal filed by the consumer is dismissed.

(Nisha Gupta) President

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