PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
Complainant M/s. Gulu Impex is the Proprietary concern of Mr. Faisal Khan and carrying on business of car hire. M/s. Gulu Impex has current account no.01320100000786 with Opposite Party No.1 - Development Credit Bank Ltd., Hasnabad Branch. Opposite Party No.2 & 4 are financial institute and Opposite Party No.3 is a client of the Complainant.
2) It is case of the Complainant that Opposite Party No.3 had issued a cheque in the name of Complainant bearing cheque no.399478 for Rs.11,848/- drawn by Opposite Party No.2 in respect of bills raised by the Complainant on the Opposite Party No.3.
3) On 11th April, 2009 as per usual practice, the Complainant deposited the said cheque of Rs.11,848/- with Opposite Party No.1, dropping in the local clearing cheque Drop Box kept inside the branch premises. Alongwith complaint, the Complainant has produced copy of the pay-in-slip issued by the Opposite Party No.3 in receipt of the said cheque in the name of M/s.Gulu Impex.
4) It is submitted that on 21/04/09 the Complainant came to know that the said cheque is neither credited in its account nor it shows as uncleared or returned unpaid. Therefore, on 23/04/09 the Complainant wrote a letter to Opposite Party No.1 with a request to look into the matter.
5) Thereafter, Opposite Party No.1 made enquiry and it was revealed that said cheque was not credited to Complainant’s account but the cheque was debited in account of drawer i.e. Opposite Party No.3. It also came to their knowledge that on the said cheque, the payees name was changed by canceling name M/s. Gulu Impex to Imran Supariwala Account No.06530030022462, and deposited with Kotak Mahindra Bank i.e. Opposite Party No.4. The cheque was bearing forged signature, which is different from the original signature. The Complainant made complaint to Opposite Party No.1 and then Opposite Party NO.1 wrote a letter dtd.25/04/09 to Opposite Party No.2 with the request to refund the amount of Rs.11,848/- wrongly paid to Opposite Party No.2. Then Opposite Party No.2 by reply dtd.08/05/09 requested to make independent inquiry that how the said cheque deposited in the drop box has been stolen/misappropriated.
6) On 20/05/09 the Complainant lodged complaint to Byculla Police Station. It is alleged that Opposite Party No.1 has illegally and unauthorized misappropriated funds of the Complainants by giving false reasons. Therefore, the Complainant has filed this complaint before this Forum. The Complainant has prayed to direct Opposite Party Nos.1, 2 & 4 jointly and severally to make payment of Rs.11,848/- being a cheque the amount to the Complainant together with interest @ 12 % p.a. from the date of misappropriation till realization of entire amount to the Complainant. The Complainant has requested to direct Opposite Parties to pay jointly and severally Rs.1 Lac to the Complainant towards compensation for harassment and mental torture. Alongwith complaint, the Complainant has produced documents as per list of document.
7) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending that allegations made in the complaint are false. Opposite Party No.1 is neither a collecting banker nor the paying banker. Opposite Party No.1 has only provided additional service in the form of keeping a cheque drop box for its customers. Near the drop box notice is exhibited and thereby customers are warned that Opposite Party No.1 is not liable for any loss/ theft and/or misappropriation of the cheque from the drop box. Complaint filed against Opposite Party No.1 is false and frivolous. Complaint lodged against Opposite Party No.1 is devoid of any merit and the same be dismissed with cost.
8) Opposite Party No.3 has filed written statement and thereby raised contention that, he is carrying on business of providing cars on rental basis and the Complainant is also carrying on business on similar business. In emergency Opposite Party No.3 had often taken car from the Complainant to provide car services to its client. Few month back Opposite Party No.3 had hired the car from the Complainant and therefore, Complainant raised bill on Opposite Party No.3. Accordingly, Opposite Party No.3 issued a cheque bearing no.399478 dtd.11/04/09 for Rs.11,848/- in favour of the Complainant which was drawn on Opposite Party No.2 - Central Bank of India. The said cheque was personally collected by the Complainant. On 21/04/09 Complainant reported Opposite Party No.3 that till that day the amount of the said cheque was not realised. The Complainant had also written letter to his bankers. On enquiry made by the Opposite Party No.3 with the bankers it was reported that said cheque has been created in the account of one Mr. Imran Supariwala whose bank account is with Kotak Mahindra Bank at Crawford Market Branch, Mumbai. As per Opposite Party No.3, the said cheque was issued in favour of M/s.Gulu Impex but on verifying xerox copy of the said cheque, he noticed that name of the Complainant was cancelled and in that place the name of Imran Supariwala was inserted. It is contended that Imran Supariwala and his associates both have committed forgery and criminal breach of trust. Opposite Party No.3 has denied allegations made against him in the complaint.
9) Opposite Party No.4 has filed written statement and thereby denied allegations made by the Complainant contending that complaint is false and frivolous. It is contended that there is no privity of contract between the Complainant and Opposite Party No.4 and therefore, complaint is not maintainable against Opposite Party No.4.
10) According to the Opposite Party No.4, Complainant is engaged in the business of car hire and therefore, Complainant is not a consumer. Hence, complaint is liable to be dismissed with cost.
11) According to the Opposite Party No.4, there is no deficiency in service on the part of Opposite Party No.4. Cheque amount was credited in the account of Mr. Imran Supariwala. Opposite Party No.4 has denied allegations made in the complaint and therefore, complaint is liable to be dismissed with cost.
12) In this case, Complainant, Opposite Party Nos.1-4 have filed their written arguments. Heard oral submissions of Ld.Advocate Mr.S.K.Pise for the Complainant, Manager, Mr.Amin for Opposite Party No.1. Opposite Party No.2-4 were absent. At the time of oral submissions, it is vehemently submitted on behalf of Opposite Party No.1 that the Complainant is a businessman and he had utilized services for business purpose and therefore, Complainant is not a ‘consumer’ as defined under the Consumer Protection Act, 1986. Mr. Imran Supariwala in whose account amount is credited is not joined as a party so, complaint deserves to be dismissed. The Opposite Party Nos.2 & 4 have also raised similar contentions in their respective written arguments.
13) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 ?
Findings : No
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Party Nos.1, 2 & 3 ?
Findings : No
Point No.3 : Whether the Complainant is entitle for relief as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Following fact are admitted fact that Complainant M/s. Gula Impex is a Proprietary concern of Mr. Faisal Khan and its carrying on business of car hire. It appears from the record that Opposite Party No.3 M/s. Bombay Travel is also carrying on business of providing cars on rental basis. From the complaint and written statement it appears that Opposite Party No.3 had hired cars from the Complainant and so the Opposite Party No.3 had issued cheque bearing no.399478 dtd.11/04/09 for Rs.11,848/- in favour of Complainant and the said cheque drawn on Opposite Party No.2 – Central Bank of India. Opposite Party No.1 is Development Credit Bank Ltd. and its office at Hasnabad Branch at Mazgaon, Mumbai. Opposite Party No.4 - Kotak Mahindra Bank. According to the Complainant, he had dropped the aforesaid cheque for Rs.11,848/- on 11/04/09 in the local clearing cheque Drop Box kept inside the branch premises Opposite Party No.1. It is alleged by the Complainant that due to the negligence and deficiency in service on the part of Opposite Party No.1 somebody took away the said cheque from the drop box and by deleting Complainant’s name inserted name of Mr. Imran Supariwala. It appears that said cheque was credited in the account of Mr. Imran Supariwala with Opposite Party No.4 – Kotak Mahindra Bank of Crawford Market Branch.
In this case Mr. Imran Supariwala in whose name amount of the disputed cheque was credited is not joined as a party to this proceeding. According to the Opposite Party No.1-4, that the Complainant is carrying on a business and utilized services of the Banks for business purpose and therefore, Complainant is not a ‘consumer’ as defined under Sec.2(1)(d) of the Consumer Protection Act, 1986.
Provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 amended w.e.f.15/03/2003 runs as under –
“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).”
By the aforesaid amended a person who avails services for commercial purpose is excluded from the definition of ‘Consumer’ U/s.2(1)(d)(ii). In this case admittedly the Complainant is carrying on business of car hire and Opposite Party No.3 is also carrying on business of car hire. In connection with the business transaction between Complainant and Opposite Party No.3, Opposite Party No.3 had issued cheque in question in favour of M/s. Gulu Impex, Proprietary concern of Complainant and for realization of the said cheque Complainant had obtained services of the Opposite Parties Banks. As mentioned above as per the Complainant, due to negligence and deficiency in service on the part of Opposite Party No.1 the cheque was stolen from the drop box of Opposite Party No.1 and Opposite Party No.4 without making necessary enquiry honoured false and fabricated cheque. The Complainant has not claimed any relief against Opposite Party No.3. The Complainant has availed services of Opposite Party Banks for commercial purpose.
In the instance case, the Complainant has made allegations of theft, forgery of cheque and misappropriation of the amount and for that purpose he has lodged complaint to Byculla Police Station. The Complainant has not joined Mr. Imran Supariwala as a party to this proceeding. It appears that complaint is misconceived. Nowhere in the complaint, Complainant as alleged that M/s. Gula Impex is a only source of his income. From the averment made in the complaint and written statement of the Opposite Party, it appears that the Complainant is carrying on business of car rental on large scale. As discussed above, the Complainant had obtained services of the Opposite Party Banks for commercial purpose and therefore, we hold that Complainant is not a ‘consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. In the result, we answer point no.1 in the negative.
Point Nos.2 & 3 :- The Complainant is not a ‘consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 and therefore, present complaint is not maintainable before this Forum. Therefore, point no.2 does not survive and Complainant is not entitled to any relief from the Opposite Parties. Hence, we answer point no.3 accordingly.
For the reasons discussed above, the complaint deserves to be dismissed. Therefore, we pass following order -
O R D E R
i.Complaint No.169/2009 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
