Order Below Exh.1
PER SHRI. S.B. DHUMAL - HON’BLE PRESIDENT :
1) The Complainant has filed this compliant before this Forum on 14/02/2006 alongwith an application for condonation of delay. The then President and Member of this Forum issued Show-cause Notice to the Opposite Party. It appears that after receipt of notice Opposite Party filed reply to the delay condonation application and thereby resisted Complainant’s prayer for condonation of delay caused in filing of this complaint. On 07/09/2006, after hearing both the parties this Forum allowed delay condonation application and passed following order in the order sheet.
“Complainant in person present. His Advocate Mr. Ankush Bansal present. Advocate Shri. Perineer Javalkar, for O.P./Bank present. O.P.’s affidavit in reply to condonation of delay is on record. Forum has heard both the Advocates on condonation of delay. Finally, Advocate for O.P./Bank submitted that he has objection for condoning the delay on cost. Advocate Bansal for Complainant humbly pray for minimizing cost. Taking into consideration this, Forum heard both the parties and in the interest of justice to the Complainant, hereby passed the order condoning the delay on the cost of Rs.500/-. The matter is now adjourned for written statement as well as affidavit of evidence of O.P. and affidavit of evidence of complainant alongwith documents he wants to reply upon. Adjourned to 27/11/2006.”
2) It appears that after condonation of delay Opposite Party willfully remained absent and then this Forum on 10/12/07 decided the complaint in absence of Opposite Party. The complaint was allowed and the Opposite Party was directed to pay to the Complainant Rs.5,500/- together with interest @ 12% p.a. form the date of complaint i.e. from 14/02/2006 till realization. Further, Opposite Party was directed to pay Rs.50,000/- towards compensation and Rs.15,000/- as cost of this proceeding.
3) Being aggrieved by the aforesaid decision, Opposite Party had preferred an appeal before the Hon’ble State Commission which was numbered as First Appeal No.A/08/35. The Hon’ble State Commission, after hearing both the parties, have allowed the appeal and quashed and set aside order dtd.10/12/2007 passed by this Forum. The matter is remitted back to this Forum with following observations –
“- O R D E R –
1. Appeal is allowed. The impugned order dated 10/12/2007 is quashed and set aside.
2. Matter is remitted back to the Forum below in the light of observations made in the body of the order.
3. Forum below shall give an opportunity to both the parties to amend the pleadings, if they so desire. Correct the description
or substitute or add the party, if they so desire, but subject to provisions of law (the point if arises to be settled by the Forum
below after hearing the parties); hear the parties on admission and if admitted, after giving an opportunity to the O.P. to file
its written version and duly following the procedure as per Section 13(4) of the Act, settle the dispute.
4.Hearing of the consumer complaint be expedited and as far as possible be completed within period of four months from the
date of appearance.
5.Both the parties shall appear in the Forum below on 22/11/2010.
6.Appeal stands disposed of accordingly.
7.Record & Proceeding be sent back to the Forum below.
8.Copies of the order be furnished to the parties.”
4) While setting aside order passed by this Forum, the Hon’ble State Commission has referred order sheet dtd.07/09/2006 in original complaint case proceeding no.475/2006 and observed that “From the above referred order-sheet, it could be seen that after the delay condonation without following any procedure as required under Sec.13(2) of the Consumer Protection Act, 1986 (hereinafter referred as ‘the Act’) i.e. precisely without admitting the complaint, Forum below proceeded further – to settle the dispute. This lapse on the part of Forum below cannot be overlooked.” It is further observed that “In the instant case, it is not only wrongly assuming jurisdiction to proceed further without admitting the complaint, but other aspects, infra, also assumes importance. In the given circumstances, it is HDFC Bank which is a service provider and the consumer complaint is not filed against said institution, but filed against the Manager i.e. one of the official of the said institution. He is admittedly, not a service provider. Since we found it just and proper to remit back the complaint, Complainant is to take care of it, if find it proper to do so.”
5) As per the provisions of Sec.13(2) of the Consumer Protection Act, 1986, the District Forum shall, if the (complaint admitted) by it under Sec.12 relates to goods in receipt of which the procedure specified in Sub Section (1) cannot be followed, or if the complaint relates to any services, - (a) refer a copy of such complaint to the Opposite Party, directing him to give his version of the case within a period of 30 days or such extend period not extending 15 days as may be granted by the District Forum;
(b) whether the Opposite Party, on receipt of a copy of the complaint referred to him under clause (a) denied or disputes the allegations contend in the complaint, or omits or fails to take any action to represent his case within the time given by the District Forum, the District Forum shall proceeded to settle the Consumer Dispute
6) We have seen original complaint. There is no endorsement on the complaint to the effect that complaint is admitted or allowed the complaint to be proceeded with. Our Ld. Predecessor after deciding application for delay condonation ought to have considered as to whether this complaint is maintainable under the provisions of Consumer Protection Act, 1986 and recorded endorsement to that effect complaint is admitted. After admission of complaint copy of such compliant ought to have furnished to the Opposite Party with a direction to give his version within stipulated period. Instead of considering admissibility of the complaint our Ld. Predecessor proceeded to settle the dispute. In view of the observations made by the Hon’ble State Commission, the Complainant has filed application for amendment of complaint on 20/10/2011 and thereby requested to delete the word ‘Manager’ from the cause title of the complaint. Ld.Advocate for the Opposite Party has requested to firstly consider as to whether this complaint is maintainable under the provisions of Consumer Protection Act, 1986.
7) We heard Ld.Advocate Mr. Ankush Bansal i/b. I.B. Juris for the Complainant and Ld.Advocate Mr. B. Manik i/b. M/s. Wadia Ghandy & Co., Ld.Advocate for the Opposite Party.
8) It is submitted on behalf of Complainant that Opposite Party HDFC Bank is a service provider. The Complainant had opened Current Account bearing No.0723200 00554 with the Opposite Party. At the time of opening of the account the Complainant had filed application under signatures of its Directors by name Mr. Umedmal P. Shah, Mr. Kamlesh U. Shah, Mr. Hemendra U. Shah and Mrs. Urmila U. Shah who were duly authorized and competent to operate the said account by the Board of Directors of the Complainant Company. It is submitted that in the month of May, 2003, an amount of Rs.5,50,000/- was withdrawn from the Complainant’s account vide two different cheques both dtd.06/05/2003. On 20/05/2003, a Complainant came to know about this withdrawal and after inspection of the copies of the said cheques on the record of the Bank, found that signatures of Director Mr. Hemendra U. Shah were forged. Thereafter the Complainant came to know that their employee – Mr. Suresh, Clerk has forged signatures and withdrawn money on 06/05/2003 from Crawford Market Branch. Subsequently, police complaint was registered with L.T. Marg Police Station. According to the Complainant, due to the negligence and deficiency in service on the part of Opposite Party, on the basis of forged cheques on 06/05/2003, an amount of Rs.5,50,000/- was withdrawn from the Complainant’s account and therefore, the Complainant has filed this complaint.
9) Ld.Advocate for the Opposite Party has submitted that from the averment made in the complaint itself, it is clear that the Complainant Mrs. PNJ Polyknits Pvt. Ltd. is a Company having their manufacturing plant at Plot No.3. The Complainant is carrying on business for earning profit. It is submitted that the Complainant opened Current Account No.072320000554 with Opposite Party for commercial activity. It is submitted that the Complainant admittedly availed services of Opposite Party H.D.F.C. Bank for commercial purpose after amendment of Sec.2(1)(d)(ii). Therefore, Complainant is not a ‘Consumer’ as defined under amended Sec.2(1)(d)(ii) of the Consumer Protection Act. Ld.Advocate for the Opposite Party has vehemently submitted that as a Complainant is not a consumer, present complaint is not maintainable under the provisions of Consumer Protection Act, and deserves to be rejected.
10) As averred in the complaint, that the Complainant Mrs. PNJ Polyknits Pvt. Ltd. is a Company carrying on business activities. The Complainant had opened Current Account with the Opposite Party. The Complainant is carrying on business for earning profit. According to the Complainant, one of their employee by name Suresh, forged signatures of their Directors – Hemendra U. Shah, on two cheques, both dtd.06/05/03 and withdrawn total amount of Rs.5,50,000/- from the Current Account of the Complainant. It is clear from the facts alleged in the complaint that the Complainant had availed services of the Opposite Party Bank for commercial purpose. By the Amended Act 62/2002, amendment in Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986, is carried out and by the said amendment “person who avails such services for any commercial purpose is excluded from the definition of Consumer.” Aforesaid amendment came into effect from 15/03/2003. In the instant case cause of action took place on 06/05/03. According to the Complainant, on the basis of forged two cheques an amount of Rs.5,50,000/- was withdrawn from the Complainant’s Current Account. Considering the facts of the case, an amended provision Sec.2(1)(d)(ii), we hold that present Complainant is not a consumer as per amended provision of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986. Therefore, present complaint is not maintainable the under Consumer Protection Act, 1986, hence, complaint is rejected. No order as to cost.
