PER SHRI. S.S. PATIL – HON’BLE MEMBER
1) This is the complaint regarding deficiency in service on the part of Opposite Parties as Opposite Party No.1 did not clear 4 cheques of the Complainant inspite of sufficient funds in saving account of the Complainant.
2) The brief facts of the complaint as stated by the Complainant are that the Complainant is an ‘housewife and having a Saving Account No.0350601000277 with Opposite Party No.1. On 06/12/07, the Complainant had applied for Tata Steel Ltd. Right issue and made 6 applications. She also issued 6 cheques in favour of TCL. All cheques were dtd.06/12/07. The total amount of all these cheques was Rs.19,800/-. There was sufficient balance in the above said account at the time of issuing these cheques. In Jan., 2008, she received statement of account for the above said account for the period from 01/10/07 to 31/12/07 from Opposite Party No.1. From this statement she came to know that these cheques were presented to Opposite Party No.1 Bank on 12/12/07 for clearance. Out of these 6 cheques only two cheques for total amount of Rs.6,006/- were cleared by Opposite Party No.1 but remaining 4 cheques were returned with remark “insufficient fund” in Complainant’s account. Thus, Opposite Party No.1 wrongly returned these cheques and debited Complainant’s account for Rs.1,572/- for dishonour of 4 cheques. The Complainant called upon the Opposite Party No.1 to explain, why the 4 cheques were dishonoured when there were sufficient funds in the said account but the Opposite Party No.1 did not give any satisfactory answer to the query of the Complainant. By lette4r dtd.04/02/07, the Complainant informed the TCL that she had purchased the rights issue by paying premium through cheques. Despite having sufficient funds, Opposite Party No.1 wrongly returned the 4 cheques. Complainant also sent reminder to the Opposite Party No.1. The Opposite Party vide its letter dtd.21/02/08 assured the Complainant that steps would be taken to provide correct information still no reason was given for returning the 4 cheques.
3) The Opposite Party vide its letter dtd.28/03/08, informed the Complainant that the charges for dishonouring the cheques (Rs.1,572/-) have been credited to the account of the Complainant on 26/03/08. However, the Opposite Party No.1 failed to reply and reimburse the financial loss suffered by the Complainant. Before that she served legal notice on the Opposite Party vide notice dtd.04/02/08 but Opposite Parties failed to settle the claim. (Actually when we verified this document, the legal notice is dtd.23/04/08 and not dtd.04/02/08 as stated by the Complainant).
4) The Complainant has further stated that vied letter dtd.04/03/08, the Complainant lodged a claim of Rs.25,400/- being the market value of TSL Shares in Dec., 2007. She also made a claim of Rs.50,000/- for mental agony and loss of reputation. It is submitted by the Complainant that by dishonouring the cheques, the Opposite Party failed to provide the obligatory service to the Complainant. Therefore, it is submitted by the Complainant that the Opposite Parties are liable to pay to the Complainant a total sum of Rs.76,400/-with interes from the date of dishonour of the said cheques.
5) The Complainant has attached the xerox copies of the relevant documents in this connection exchanged between the Complainant and the Opposite Party in support of her complaint.The complaint was admitted and Opposite Parties appeared before this Forum and submitted its written statement wherein it denied the allegation that, she is its saving account holder holding saving account no.035601000277. However, she is an online trading account holder and carries on activities of purchase and sale of shares through Opposite Party. She is required to maintain a balance either in terms of credit balance in saving account linked with the online trading activity or shares of equal value.
6) The Complainant’s above saving account is linked with Complainant’s online trading activity. The Opposite Party has clarified that the Complainant has a share trading account with the Opposite Party and there were instructions to mark a lien on the saving account of the Complainant. On 11/12/07, there was a lien of the Opposite Party No.1 Bank on the account in the sum of Rs.2,37,000/-. On 11/12/07 there was a balance of only Rs.1,87,796.75 paise, Rs.1,25,000/- were transferred into the saving account by the Complainant. Two debits of Rs.94,080/- and Rs.97,650/- were made for the purchase of shares 11/12/07. The position of saving account as on 11/12/07 was as Rs.52,066.75. This balance was subject to the lien on account of online trading in shares. The Opposite Parties have further stated that the there was a debit freeze of Rs.2,37,000/- on account of lien due to online trading of shares. The account therefore, to this extent could not be used even if there was a balance upto the lien amount.
The position of lien as on 11/12/07 was as follows -
Opening balance .. .. Rs.2,37,000/-
Purchase of shares :
BGR Energy System .. .. Rs. 94,080/-
& Transformers .. .. Rs. 97,650/-
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Total share value credited .. .. Rs.1,97,730/-
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Therefore, an effective lien of Rs.45,270/- was on the saving bank account of the Complainant. The balance in the saving account would be only Rs.6,796.75. Therefore, it is the contention of the Opposite Party that the Opposite Party No.1 only cleared the two cheques of Rs.6,600/- and dishonoured the remaining cheques which were of more than the amount in the saving account. It is also the contention of the Opposite Parties that these facts have been explained to the Complainant but she suppressed it in her complaint.
7) The Opposite Party has further averred that, as a gesture of goodwill, they have reversed the debit entry of Rs.1,572/- charged for cheque bouncing. Finally the Opposite Parties have submitted that the Complainant is not entitled to any relief as prayed in the complaint.
8) The Opposite Parties also filed affidavit in lieu of evidence and written argument. The Complainant filed her affidavit of evidence and written argument. We heard the Ld. Representative of the Complainant (the son of the Complainant) and the Ld.Advocate of the Opposite Parties. We also perused the papers submitted by both the parties and our findings are as follows.
9) The Complainant is a housewife and having a saving account with Opposite Party No.1 Bank bearing No.035601000277. From the complaint itself it is the fact that she is dealing the sale & purchase of the shares and as part of her activities she has applied for the subscription of shares of Tata Steels Ltd. on 06/12/07, as she wanted to purchase these shares she has made 6 applications and issued 6 cheques drawn on the Opposite Party Bank. Shares transactions are done with intention to earn profit which constitute a commercial purpose. We have carefully scrutinized the earlier transactions of the Complainant wherein she has purchased sheares of BGR Energy and Transformers and Rectifiers. The amounts were Rs.94,080/-, Rs.97,650/-. These transactions certainly indicate that the Complainant is regularly dealing in share in share transactions which are certainly for the commercial purpose. She has not averred anywhere in the complaint or in an affidavit of evidence that she is earning her livelihood from these transactions. Therefore, in our candid view, the Complainant is not a consumer within the meaning of a term ‘Consumer’ defined in Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 as the definition reads as follows –
“Any person who 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 use 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.
i) hires or avails 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 or 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 purpose 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.”
The Hon’ble Supreme Court in Economic Transport Organization V/s. M/s. Charan Spinning Mills (P) Ltd. & Anr., has held as follows –
“We may also notice that Sec.2(d) of the Act was amended by amendment Act, 62/2002 with effect from 15/03/03 by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of Consumer. After the said amendment, if the services of the carrier had been availed for any commercial purpose, then the person availing the services will not be a “Consumers” and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.”
10) In view of the above observations the Complainant has availed the services of the Opposite Parties for commercial purpose and hence, she is not a consumer. Hence, this complaint is not maintainable before this Forum. Hence, we pass the following order-
O R D E R
i)Complaint No.242/2008 is hereby dismissed.
ii)No order as to cost.
iii)Copy of this order be furnished to both the parties.
