ORDER

(Passed on  19/11/2019)

PER SHRI.ATUL D.ALSI, PRESIDENT.

         The complainant has filed this complaint U/s 12 of the Consumer Protection Act,1986 alleging non crediting of consolidated amount of Rs.7048/- in the firm’s account inspite of issuance of legal notice and thereby claiming compensation of Rs.10,000/- and further Rs.7,000/- towards cost of proceeding.

2.       The complainant is the proprietor of Janata Textiles and is running a cloth shop for earning his livelihood.  Said firm  has a current account bearing No.243005500215  with the OP Bank having electronic data terminal facility. In the month of December,2016, four customers  purchased cloth from the complainant’s shop and paid bills amounting to Rs.1480/-, 2255/-, 680/- and Rs.2633/- total amounting to Rs.7048/- through swipe card machine.  The machine showed successful transactions however, the said consolidated amount  of rs.7048/- was not credited in the above bank account of the firm by the OP. On enquiry, the Branch Manager assured the complainant that shortly the amount will be credited. But since nothing was done till October,2017, the complainant  issued a legal notice to the OP through his advocate Mr.Bhagwat on 17/11/2017, but the OP did not comply. Therefore, the complainant has filed this complaint.

6.       The complaint is admitted and notice was served to the OP. The OP filed its reply and thereby raised preliminary objection that the complainant has employed 12 to 15 employees in the said shop and as such is not running the business for earning his livelihood by way of self employment as envisaged in the Section 2 of C.P.Act and as such the complainant is not the consumer.  However, the OP admitted that the complainant’s firm is having current account with them having data terminal facility bearing No.9705354 for cashless transactions under card swipe system subject to requisite charges.  The complainant has not filed any proof by way of affidavit or otherwise thereby establishing the transactions done by alleged customers.  In such circumstances, those customers are necessary parties to the petition. The OP further mentioned that the OP has already credited the amount of Rs.6148/- in the current account of the firm after deducting necessary charges and as such, the complaint is liable to be dismissed.

8.       Counsel for the complainant argued that the complainant has filed his bank account statement

OP did not fulfill the promise as per agreement and failed to develop the land into non agriculture and to execute sale deed after the receipt of earnest amount of Rs.57,500/- on 16/2/2014 and 26/7/2014 till the receipt of notice through Adv.Abhay Pachpor on 29/3/2016 and till filing of present petition. Therefore the service rendered by OPs amounts to negligence of service. Therefore the petition may be allowed as prayed. 

9.         Counsel for the OPs argued that the Forum has no territorial jurisdiction, the complaint is not within limitation,  the purpose for purchasing the land is Commercial in nature and hence the Forum has no jurisdiction to entertain the complaint and it deserves to be dismissed with cost.

10. We have gone through the complaint, written versions filed by OP No.1 and OP Nos.2 & 3, affidavit, documents and WNA filed by the parties. We have also heard the oral arguments advanced by parties.

                    Points                                                                                     Finding

1. Whether the complainant is a Consumer ?                                      Yes

2.  Whether  the Forum has jurisdiction to entertain the complaint ?     No

3.  What order ?                                                                  As per final order..

As to issue No.1

11.      The O.P.No.1 executed an agreement to sale plot No.24 admeasuring 200  sq.mt. from from field survey No.119 at Mouza Mohgaon,  Tah. Samudrapur, Dist.Wardha in favour of complainant and received Rs.57,500/- towards earnest amount on 16/2/2014 and 26/7/2014 from the complainant against the total agreed consideration of Rs.1,70,000/-.  When there is an agreement between the parties for the execution of sale deed with completion of all formalities including development of plots and all ancillary  facilities, as promised by OPs the complainant is a consumer within the meaning of Section 2(1) D and the services as promised are the services within the meaning of section 2(1)(d)(ii) of CP act. and hence the issue is decided accordingly.

As to issue No.2

12.        The complainant has filed agreement of sale dated 1/3/2014. As per agreement of sale, it was executed between the complainant and OP No.1 at Nagpur. The subjectmatter of property for which the agreement of sale is executed is situated at village Mohgaon, Taluka Samudrapur, Distt.Wardha. The complainant has paid earnest amount of Rs.57,500/- by cash to the OP No.1 at Nagpur as per copies of receipts filed on record as per list of documents dated 31/7/2017. No activity has been carried through the branch of OP No.1 at Chandrapur nor the OP No.2 is the party to the agreement of sale. Therefore, no cause of action has been carried within the jurisdiction of this Forum. Therefore the Forum has no territorial jurisdiction to entertain the petition. Therefore the petition is dismissed with liberty to file afresh before the appropriate Forum. The period of limitation in filing the petition, from 9/7/2018 till the order is excluded for the filing of fresh petition. Hence the order..

Final order

1. The Complaint is dismissed without cost.

2. The main order copy be kept with case No.127/17 and Xerox copies thereof be kept with cases Nos. 128/17, 129/17, 130/17, 131/17, 132/17, 133/17, 134/17, 135/17, 136/17, 137/17, 138/17, 139/17,  140/17, 141/17 and 157/17

3. Copy of the order be furnished to both the parties free of cost.

(Smt.Kalpana Jangade (Kute)  (Smt.Kirti Vaidya (Gadgil)     (Shri.Atul D.Alsi)

               Member                                 Member                                    President