PER SHRI. S.S. PATIL - HON’BLE MEMBER :
1) This is the complaint regarding deficiency in service on the part of Opposite Party as it wrongly debited the amount of Rs.1,59,459.69 from the account of the Complainant on 18/09/08, without the permission of the Complainant.
2) The facts of the case as stated by the Complainant are that the Complainant is having a bank account No.003605001325 with the Opposite Party Bank at Maratha Mandir Branch. It is further stated by the Complainant that its foreign customers placed an order with it for shipment of consignment at Uganda. The order was placed subject to the realization of cheque against this order. Accordingly, the Complainant received a cheque no.145 dtd.13/05/08 from the foreign customer. The cheque no.145 was for the sum of US $ 3850 drawn on Royal Bank Canada, Burnside & Tillicum Branch.
3) The Complainant has further stated that the above said cheque was deposited in the above said account with Opposite Party Bank on the same day i.e. on 13/05/08. As the cheque being foreign instrument, the Bank obtained a letter of indemnity cum deposit slip, duly signed by the Complainant at the time of remittance of the cheque. The said cheque was then cleared on 17/06/08. The Opposite Party has also debited its clearance charges. Opposite Party has not given any discounting or other facility for pre clearance. After the clearance of the said cheque, a consignment was dispatched on 01/07/08 to the foreign party (customer). Thereafter 3 months of the clearance of the said cheque, the Opposite Party Bank orally informed that the amount of export has to be returned to the advising bank. On receipt of this information, the Complainant immediately wrote a letter to the Opposite Party on the same day clarifying the position as above and informed the Opposite Party that if the shipment has already been effected. The shipment has taken place against the credit of the amount of US $ 3850 (i.e. against the clearance of the cheque). The Complainant has also requested the Opposite Party not to release the amount to its advising Bank.
4) The Complainant has further stated that, inspite of the above said letter explaining the position and instructing (requesting) the Opposite Party not to release the said amount, Opposite Party debited an amount of Rs.1,59,459.69 from the account of the Complainant on 18/09/08. This is the deficiency in service on the part of the Opposite Party. The complainant also made a reference to Bank Ombudsman but it informed the Complainant that the complaint is without any sufficient cause. The Complainant has specifically alleged that, on assurance of the clearance of the cheque by the Opposite Party, the Complainant has dispatched the consignment of the goods to its foreign party in Uganda. If there would have been no clearance, the Complainant would not have acted to export the goods.
5) It is further submitted by the Complainant, that, on scrutiny of enclosures of the Bank Ombudsman letter dtd.12/02/09, a letter dtd.15/01/09 addressed to Mr. J. Fernandes and copy of debits instruction, it is seen that the Royal Bank of Canada refers the deposit dtd.06/02/08 whereas the Complainant had deposited his cheque dtd.13/05/08. The entry–79 Narrative, states that ATTN cash letter investigations regarding your deposit dtd.06/02/08 Ref. CBPPC280508011 Totaling cad 5013.29 please be advised that today we debited your account on our books for CAD 3850.00 reason being cheque No.145 for CAD 3850 included in total deposit is a fraudulent item.
6) The Opposite Party has debited the amount on 15/09/08. The Opposite Party has not checked the above entry. Before making any debit, Opposite Party ought to have furnished foreign bank debits instructions to the Complainant. Without the consent and without showing any documents, the bank unilaterally debited the amount. Thus, the debit entry has been made by the Opposite Party is wrong one and confirms their deficiency.
7) Finally the Complainant has prayed for reimbursement of an amount of Rs.1,59,459.69 with interest from 18/09/2008 and compensation of Rs.40,000/- for the inconvenience, mental agony etc. caused to the Complainant.
8) The Complainant has attached the xerox copies of the following documents in support of its complaint –
a) Pay in slip for depositing total 7,235 US$ in Opposite Party Bank, Cheque for US$ 3,385 and US$ 3,850, Statement of account, Bill No. 2836134, Letter dtd.15/09/08 from the Complainant, Statement of account for Sept., 2008, Letters dtd.29/09/08 from the Complainant, 29/09/08 / 13/11/08 / 05/12/08, Letter from Banking Ombudsman, Letter from Complainant dtd.10/02/09, 12/02/09, Letter from Opposite Party dtd.26/12/08, 15/01/09 alongwith attachment Rule A-4 – Page 2, Indemnity letter-cum-deposit slip.
9) The complaint was admitted and a notice was served on the Opposite Party. However, despite of service of notice, the Opposite Party did not appear before this Forum and hence, an ex-parte order was passed against the Opposite Party vide Roznama dtd.18/02/2010. Thereafter, the Complainant filed its affidavit of evidence and written argument wherein it reiterated the above said facts stated in the complaint.
10) We heard the Ld.Advocate for the Complainant and perused the papers submitted by the Complainant and our findings are as follows –
The Complainant is M/s. Acquavir International. From the affidavit of one John Fernandes, it appears that it is a partnership firm. This Complainant firm has exported some goods to Uganda. Before sending the consignment to Uganda, the Complainant had received a Cheque No.145 dtd.13/05/08 for US $ 3,850. The above said cheque was deposited by the Complainant in its account with Opposite Party Bank. Opposite Party Bank had cleared this cheque on 17/06/08. Complainant is having bank account no.3605001325 with the Opposite Party Bank.
11) Though the Complainant has not disclosed about its business activities, from the facts of this case it is clear that the Complainant is dealing with a export business and it has exported some goods to foreign party in Uganda. Before sending the consignment to abroad, the Complainant has received the cheque. The Opposite Party Bank has provided the service to the Complainant by making clearance of the cheques and other banking services. In view of the facts of this case, the Complainant is engaged in export business and services availed by it are for the commercial purpose. The Opposite Party Bank has provided its service in connection with the commercial activity of the Complainant in order to fulfill the commercial purpose of exporting the goods in foreign country. Therefore, the Complainant is not a ‘Consumer’ within the meaning of Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 as the relevant portion of this section is as under -
(ii)“Consumer means any person who 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].
[Explanation-For the purposes of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment]
12) The other important point in this complaint is that, the Opposite Party, i.e. ICICI Bank, Maratha Mandir Branch, Mumbai, is not situated in the territorial jurisdiction of this Forum. The account of the Complainant is in this branch and the transaction has been done in this branch.
13) Taking into consideration the above two important points in respect of the definition of the term consumer and territorial jurisdiction, this Forum does not have the jurisdiction to entertain this complaint. Hence, we pass the order as follows -
O R D E R
i.Complaint No.335/2009 is hereby dismissed.
ii.There is no order as to cost.
ii Certified copies of this order be furnished to the parties.
