Delhi

New Delhi

CC/67/2017

General commerce Ltd - Complainant(s)

Versus

Hong Kong & Shanghai Banking corporation Ltd - Opp.Party(s)

11 Mar 2020

ORDER

 

 

CONSUMER DISPUTES REDRESSAL FORUM-VI

(DISTRICT NEW DELHI,  M-BLOCK, 1^ST FLOOR,

VIKAS BHAWAN, I.P. ESTATE. NEW DELHI-1100001.

 

CC.No.67/2017

 

General Commerce Ltd.,

A company duly incorporated under the

Companies Act, 1956

Having its Regd. Office at:

100-A, Bangla Sahib Marg (Baird Road),

New Delhi-110001.

….Complainant

Vs.

 

Hong Kong & Shanghai Banking Corporation Ltd.,

Branch Barakhamba Road,

25, Birla Tower,

New Delhi-110001.

Through its Chief Manager

.....Opposite Party

 

NIPUR CHANDNA, MEMBER

 

O R D E R

 

The complainant has filed the present complaint against the OP under section 12 of Consumer Protection Act, 1986. The complainant is a Ltd. Co. duly incorporated under Co. Act. 1956.  The complainant’s Co. has been maintaining the Exchanged Earners Foreign Currency account No.166-163311-511 with OP Bank.  The complainant’s Company received an inward remittance of US Dollar 94,533.25 on 29.2.2016 against their Invoice and the same was credited to its EEFC Account on 1.3.2016.  The complainant’s Company  could not convert the aforesaid amount to its current account due to some problem in online conversion.  Subsequently, a written request for the said conversion was sent to OP by the complainant’s Company  vide letter dt. 3.3.2016.  In the said letter, the complainant’s Company  also directed OP Bank to consult its Director, Sh. Aditya Nath about the conversion rate before effecting the conversion. 

2.     On 4.3.2016, complainant’s Company  came to know that the conversion has been effected without contacting the Director and the same has been done @ Rs.66/-per $.  It is alleged that the conversion rate of 66 per $ never reached on 4.3.2016 and the same confirmed from the rate chart downloaded on 5.3.2016 from the website of XELive.com. The complainant wrote various letter to the higher officers of the OP Bank as well as also approached   the Banking Ombudsman for lodging the complaint against the OP that it had cheated the complainant by duping it for an amount of Rs.94,533.25 being the difference of Rs.1 per $   as per prevailing conversion rate for $ Rs.67/- as on 4.3.2016. Since, no satisfactory reply was received from the OP Bank.  Complainant, therefore, approached this Forum for redressal of its grievance.

3.     Complaint has been contested by OP. In its written statement O.P has stated that the present complaint is not maintainable as the complainant cannot be fall in the category of the consumer within the meaning of section (2)1(d) of CP Act 1986.  The complainant is a Ltd. Co. duly incorporated under Co. Act. 1956 working for gain.  The relationship between the complainant and OP is a Commercial relationship.  There is a dispute between the complainant and OP regarding the business transaction and the same has been admitted in the complaint itself, hence, the same is a Commercial dispute not maintainable before this Forum.

4.     Both the parties have filed their evidence by way of affidavit.  

5.     We have heard argument advance at the Bar on behalf of complainant and have perused the record.

 

6.     It is complainant’s own case that it is a company registered under the Companies Act, 1956 and is engaged in the business of export of readymade garments and earning valuable foreign exchange for the country.

 

 7.    It is further an admitted case of the complainant that the complainant’s Co. is having exchanged earners foreign currency account No.166-163311-511 as well as current account No.166-163311-001 with OP Bank.  The complainant is a Ltd. Co. duly incorporated under Co. Act. 1956 working for gain.  The relationship between the complainant and OP is a Commercial relationship.  There is a dispute between the complainant and OP regarding the business transaction and the same has been admitted in the complaint itself.

 

8.    Section 2 (1)(d) of the Consumer Protection Act which defines the term ‘consumer’,  to the extent it is relevant, reads as under:-

    “Consumer” means any person who – 

(i)    buys any goods 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 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 purposes;

 

9.     The purpose behind enactment of the Act was to provide a speedy remedy to small consumers and the Act is not intended for the benefit of large business entities.   Therefore, if a transaction of purchase of goods or availing of services is aimed at earning profits or advancing the business activities of the purchaser, such a transaction will be out of the purview of the Act.  

10.    National Commission in Interfreight Services Pvt. Ltd. Vs. Usha International 1 (1995) CPJ 128 (NC), inter-alia observed that the special remedy before the consumer forums can be invoked only by ordinary consumers, purchasing goods for their private and personal use and consumption and not by business organization buying goods for commercial purposes.

11.    In the instant case also it is complainant’s own case that The complainant’s Company received an inward remittance of US Dollar 94,533.25 on 29.2.2016 against their Invoice and the same was credited to its EEFC Account on 1.3.2016.  The complainant’s Company  could not convert the aforesaid amount to its current account due to some problem in online conversion.  Subsequently, a written request for the said conversion was sent to OP by the complainant’s Company  vide letter dt. 3.3.2016. the OP Bank had cheated the complainant by duping it for an amount of Rs.94,533.25 being the difference of Rs.1 per $   as per prevailing conversion rate for $ Rs.67/- as on 4.3.2016.

12.    Admittedly, the present case pertains to an action related with the services given while operating the current account as well as EEFC Account which was admittedly opened and used for business purposes.  Since, the account itself is connected and related to business transaction and such banking activities required for the functioning offer given business enterprises of the complainant’s Co. , services hired for that purpose would fall within the category hiring services for Commercial purpose(reliance is placed the judgment of Hon’ble National Commission titled as M/s Nidhi Knitwears Pvt. Ltd. Vs. Manager Bank of Maharashtra decided on 23.5.2014.).  

13.    Since the complainant is not a consumer within the meaning of Section 2(1)(d) of the Act as it is hiring the services  in question for commercial purposes, this Forum cannot adjudicate the claim on merits having held that complainant is not a consumer.  Complaint is dismissed being not maintainable before this Forum in view of the judgment cited above.  The complainant may seek other relief in accordance with law and in such a case the complainant can claim benefit of Section 14 of the Limitation Act to exclude the period spent in prosecuting the proceedings under the Consumer Protection Act, while computing the period of limitation prescribed for such a suit or other proceedings.  

 

A copy of this order each be sent to both parties free of cost by post.  Orders be also sent to www.confonet.nic.in. File be consigned to record room.

Pronounced in open Forum on 11/03/2020.

 

 

(ARUN KUMAR ARYA)

PRESIDENT

(NIPUR CHANDNA)                                                                                            (H M VYAS)

       MEMBER                                                                                                       MEMBER