Rajasthan

StateCommission

A/406/2023

MANDIR, THIKANA GALTA THROUGH SANYASI & MAHANT AVDHESH KUMAR MISHRA S/O LATE SHRI RAMODARACHARYA JI - Complainant(s)

Versus

ICICI BANLK LTD. THROUGH BRANCH MANAGER - Opp.Party(s)

GOPAL SHASTRY

14 Jun 2024

ORDER

RAJASTHAN STATE CONSUMER DISPUTES REDRESSAL COMMISSION, JAIPUR

 

 

FIRST APPEAL NO: 406/2023

 

Mandir Thikana Galta, Jaipur Add- Mandir Shri Sitaramji, Shri Galta Dham, Galav Ashram, Jaipur (Rajasthan) through Aikal Prayansi & Mahant Avdhesh Kumar Mishra alias Swami Avdheshacharya s/o Lt. Ramodaracharyaji.

 

….. Appellant/ Complainant

Vs.

1. ICICI Bank Ltd. Br. University Campus, Bapu Nagar, Jaipur 302004 (Raj.) through Br. Manager

2. ICICI Bank Ltd. Regional Office C-3, Sardar Patel Marg, C-Scheme, Jaipur 302001 through Regional Manager.

….Respondents/Opposite parties

 

Date of Order 14.06.2024

 

 

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Before:

Hon'ble Mr. Justice Devendra Kachhawaha-President

Hon'ble Mr.Atul Kumar Chatterjee- Member (Judicial)

 

Present:

Mr. Gopal Shastri Advocate for the appellant/complainnt

Mr. Mitesh Sharma Advocate for the respondents/opposite parties

 

BY THE STATE COMMISSION ( PER HON'BLE MR. ATUL KUMAR CHATTERJEE, MEMBER (JUDICIAL):

 

This appeal has been preferred by the appellant/complainant against the judgment of learned District Consumer Commission, Jaipur 3^rd Jaipur dated 31.8.2023 passed in its Complaint Case No.135/2020, wherein the learned DCC has held that since this matter involves complicated issue relating to the title of the trust and the same can be decided by the competent civil court on the basis of evidence, testimony and affidavits of the parties and not by the District Consumer Commission under the Consumer Protection Act. Besides this it has also been held that the bank account

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involved in this matter is a current account as such the account has been opened for commercial purpose and for this reason also this case is not amenable to the jurisdiction of the District Consumer Commission. Resultantly the District Commission has ordered to return the complaint to the complainant for seeking legal remedies before the competent civil court.

 

Before pondering upon the impugned judgment dated 31.8.2023 it is worthwhile to mention the history of the consumer complaint during its pendency before the learned DCC. In this respect it is revealed from the record that an application was filed by the third party namely Suresh Kumar Mishra in the capacity of Treasurer and one of the trustees of the Thikana Galta Trust on 14.9.2020. In the application the applicant has disputed the authority and title of the complainant and has as such, alleging himself to be a necessary party for determination of the dispute, prayed for impleading himself as one of the opposite parties. This application was allowed by the learned DCC despite being contested by appellant/complainant, vide order dated 27.11.2020, holding the applicant Sh. Suresh Kumar Mishra to be a necessary party in the matter.

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The order dated 27.11.2020 of learned DCC was challenged before this Commission as First Appeal No. 439/2020 by the complainant. In that appeal besides the original opposite parties no. 1 & 2 , ICICI Bank Ltd., Sh. Suresh Kumar Mishra was also impleaded as respondent no. 3. This appeal was decided by this Commission vide order dated 5.7.2021. It is revealed that the respondent no. 3 Sh.Suresh Kumar Mishra remained absent despite service of notice of that appeal and this Commission after hearing the contentions of the learned counsel for the appellant/complainant as well as learned counsel for the respondents/opposite parties no. 1 & 2, the bank, allowed the appeal and while opining that Sh.Suresh Kumar Mishra was neither a necessary party nor a proper party consequently set aside the impugned order dated 27.11.2020. This Commission has also opined that respondent no. 3 Suresh Kumar Mishra if had any grievance regarding the bank account opened by the complainant was free to take legal action before the competent court.

 

In the order dated 5.7.2021 this Commission has elaborately appreciated the contentions of the rival parties and has taken into consideration the rule regarding opening of

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bank account by a Trust. In this regard Master Direction- Know your Customer (KYC) Direction, 2016, produced on behalf of the respondent nos. 1 & 2, the bank, as per the direction of this Commission dt: 7.4.2021, was considered. This Commission has taken into consideration Rule 32 of the abovementioned Direction of 2016. It was admitted on behalf of the respondent bank that it did not ask the complainant to submit the trust deed and in absence of trust deed on the basis of the documents given by the complainant the bank account was opened by the bank. The dispute raised by the appellant/complainant before the learned DCC was whether the respondent bank had caused deficiency in service by debit freezing the account of the complainant trust at the behest of the third party namely Sh.Suresh Kumar Mishra who claimed himself to be the Treasurer of the Trust? According to this Commission virtually the dispute was confined between the appellant/ complainant Trust and the bank only and the said third party abovementioned Suresh Kumar Mishra was, in the given circumstances neither a necessary nor a proper party in the matter.

 

The learned counsel for the appellant/complainant has

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that the view of the learned DCC is unsustainable whereby it has concluded that this matter involves serious questions relating to the title over the Trust, as such it being a complicated issue the matter requires determination on the basis of evidence, statement and affidavit by a civil court. According to him already this Commission has given its opinion on this point in its order dated 5.7.2021 in First Appeal No. 439/2020.

 

The learned counsel for the appellant/complainant further contends that the view given by the learned DCC that since the account was a current account as such was opened for commercial purpose and for this reason the complaint was not maintainable under the C.P.Act is also not correct because admittedly the complainant trust has not opened the account for the purpose of carrying out any business or commerce.

 

The learned counsel for the appellant/complainant further contends that admittedly the appellant/complainant trust is a charitable trust and has submitted requisite documents for opening the account before the respondent bank and the bank in turn, after finding that the documents submitted by

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the appellant/complainant were in order and the bank account could be opened and has consequently, opened the account. The bank could not debit freeze this account simply because third party (Suresh Kumar Mishra the said Treasurer of the Trust) has questioned the authority of the complainant and has claimed himself to be one of the trustees and treasurer of the trust. He further contends that the bank has assumed an adjudicatory role on the basis of the dispute created by third party which was not permissible under the law. The bank should have asked the third party Sh.Suresh Kumar Mishra to bring the order of debit freezing from a competent court.

 

The learned counsel for the appellant/complainant has referred the judgments of Hon'ble Supreme Court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers & ors ( 2020) 2 Supreme Court Cases 265) , Dr. J.J. Merchant & ors. Vs. Shrinath Chaturvedi (Civil Appeal No. 7975 of 2001 decided on 12.8.2002 ) and Administrator Sh. Tara Bai Desai Charitable Opthalmic Trust Hospital, Jodhpur Vs. Managing Director, Supreme Elevators India Pvt.Ltd. & ors. ( Special Leve Petition (Civil ) No. 18636 of 2019 decided on 4.10.2019).

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Per contra the learned counsel for the respondent bank, while vehemently opposing the contentions of the learned counsel for the appellant/complainant, has contended that the impugned judgment dated 31.8.2023 of learned DCC Jaipur 3^rd Jaipur is, in the given circumstances, perfect in the eye of law and it cannot be interfered with on the basis of the grounds raised in the appeal. He further contends that the complainant trust being a trust is not a person under the C.P.Act as such this complaint is not maintainable itself.

 

He further contends that since a third party Sh.Suresh Kumar Mishra has questioned the title of the complainant over the trust and has stated himself to be one of the trustee and treasurer of the Trust by submitting an application alongwith documents and in view of the dispute the respondent bank was

very much correct in debit freezing the account of the appellant/ complainant.

 

It has further been contended that admittedly the appellant/complainant has taken remedy before the Hon'ble Rajasthan High Court wherein the bank account involved in the present matter is involved, as such the

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appellant/complainant was debarred/ estopped from filing a consumer complaint in the same matter.

 

Lastly the learned counsel for the respondent bank contends that in the reply of the application for granting interim relief filed by the appellant/complainant at the very outset, the bank has conceded that if the learned Commission orders to re-operate the account, the bank has no objection. In view of this submission he has again submitted before this Commission that if this Commission orders to re-operate the debit freeze account of the appellant/complainant, it does not have any objection whatsoever.

 

In view of the above contentions of the rival parties,we find that in this appeal this Commission has to ponder upon the

following issues:-

 

1. Whether the District Commission is right in not deciding the case on merit and instead directing the appellant/complainant to take recourse to competent court for deciding the complicated question of title etc.?

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(2) Whether the District Commission is right in holding that since the disputed bank account is a current account, as such has been opened for commercial purpose and in view of this the complaint is not maintainable under the C.P.Act?

 

3. Whether the appellant/complainant being a trust is not a 'consumer' under the Consumer Protection Act and in view of this the complaint is not maintainable?

(4) Whether the appellant/complainant is debarred/estopped from filing consumer complaint because he has already filed a writ petition before Hon'ble the Rajasthan High Court in respect of the same account?

 

Our considered finding on these issues is as follows:-

 

Issue No. 1

 

In our humble opinion the view of learned DCC Jaipur 3^rd' that this case needs to be considered by a competent civil

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court and has to be decided on the basis of evidence, statement and affidavits of the rival parties cannot be said to be sustainable in the eye of law because this Commission has already given its view in the judgment dated 5.7.2021 wherein the order dated 27.11.2020 of learned DCC Jaipur 3^rd Jaipur for impleadment of third party namely Suresh Kumar Mishra who claimed himself to be one of the trustee and treasurer of the trust was quashed and set aside and this Commission has directed the learned DCC to confine to the issue but the learned DCC has without adhering to the findings of this Commission in the judgment dated 5.7.2021 has in a cursory manner observed that the matter needs serious consideration by a civil court and cannot be decided summarily under the C.P.Act.

 

Our view finds support from the judgment of Hon'ble the apex court given in Dr. J.J. Merchant & ors. Vs. Shrinath Chaturvedi (supra). Judgment of a coordinate bench of this Commission in Appeal No. 629/2018 is also relevant. In this matter the complainant had alleged against the agent of the insurance company that by forging the signatures of the complainant and her daughter in the proposal form the

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insurance policy was issued and prayed for refund of the premium amount. The insurance company had contended that this matter could not be decided by a summary procedure envisaged in the C.P.Act and the learned DCC has dismissed the complaint saying that the matter needs elaborate investigation/trial by a civil /criminal court. This Commission held that in view of the fact that the insurance company has contended that the complainant could have declined to accept the insurance policy within 15 days and could request for refund of the premium amount, this matter could be decided as a 'consumer dispute' by the District Consumer Commission and the matter was remanded with the direction to the learned DCC to decide the case on merits.

 

On the basis of above discussions since this Commission has already given its finding that the way in which the third party namely Suresh Kumar Mishra was impleaded as a necessary party in this matter, the matter takes shape of determining the issue relating to the Trust's Constitution and such issue could not be determined by the learned DCC and the limited issue to be considered by the learned DCC was as to “whether the act of debit freezing account, opened by

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the appellant/complainant trust which was allowed by the respondent bank itself, at the behest of third party amounted to deficiency in service or not?

 

As such the finding of the learned DCC, to direct the appellant/complainant to take re-course to a competent civil court is, in our humble view, is hereby held not sustainable in the eye of law.

 

Issue No. 2

 

Admittedly the appellant/complainant trust is a charitable trust and is not carrying out any commercial activities or business of any kind. As per record it is nobody's case that the appellant/complainant trust has opened the account for commercial purpose. The respondent bank has simply contended that since the account is a current account, therefore, it is deemed that a commercial purpose is involved in the matter. In this regard Hon'ble the apex court in Lilavati Kirtilal Mehta Medical Trust Vs. Unique Shanti Developers & ors (supra) has held that even a commercial entity may also be a 'consumer' depending on the facts of the

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case. It is also been held that it is not the identity of the person, but the purpose of transaction which is relevant.

 

In our humble view, admittedly the appellant trust has not opened the disputed account with the respondent bank for operating it from Business to Business, therefore, the finding of the learned DCC, that since the bank account was a current account as such a commercial purpose is involved therein and the complaint is not maintainable under the C.P.Act is also found to be unsustainable in the eye of law.

 

Issue No. 3

 

The learned counsel for the respondent bank has during the course of arguments raised this issue whereas from the record we find that the respondent bank has in its reply to the complaint filed by the appellant/complainant has not raised this plea that the complaint was not maintainable in the capacity of a Trust. As such no such issue arises from the rival pleadings.

 

The learned counsel for the appellant/complainant has referred the judgment of Hon'ble the apex court in

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Administrator Sh. Tara Bai Desai Charitable Opthalmic Trust Hospital, Jodhpur Vs. Managing Director, Supreme Elevators India Pvt.Ltd. & ors.(supra) wherein Hon'ble the apex court has differed from the earlier view given by the previous co-ordinate bench of Hon'ble the apex court and has held that it is difficult to accept that a 'trust' would not come within the definition of a 'consumer'.

 

As such in view of the fact that virtually no such objection has been raised in the reply by the respondent bank and Hon'ble the apex court in the above mentioned judgment in Administrator Sh. Tara Bai Desai Charitable Opthalmic Trust Hospital, Jodhpur given the view that a 'trust' falls within the purview of 'consumer'. We find no force in the contention of the learned counsel for the respondent bank.

 

Issue No. 4

 

In our humble view even if the appellant/complainant has filed a writ petition before Hon'ble the Rajasthan High Court, his right as 'consumer' against the respondent bank, the 'service provider' can still be enforced by filing a complaint.

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Both the remedies viz. before Hon'ble the Rajasthan High Court as well as before the learned District Commission can at the most be said to be co-existent not exclusive . As such we do not find any force in the contention of the learned counsel for the respondent bank that the appellant/complainant is debarred/estopped from filing a consumer complaint.

 

On the basis of above discussions, we arrive at a conclusion that the impugned judgment dated 31.8.2023 is not sustainable in the eye of law and in our humble view this matter is definitely one which can be decided on merits on the basis of pleadings and evidence of the rival parties.

 

In our humble view from the pleadings and evidence of the rival parties, it becomes crystal clear that the act of debit freezing the account of the appellant/complainant by the respondent bank on the dispute created by a third party namely Suresh Kumar Mishra, the said trustee and treasurer of the trust was nothing but causing deficiency in service.

 

On the basis of above discussions, we allow the appeal of the appellant/ complainant and while setting aside the

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impugned judgment of the learned DCC dated 31.8.2023 allow the complaint of the appellant/ complainant in the following manner:-

1.  

(1) The respondent bank shall forthwith discontinue with the debit freezing of the account and allow the appellant/complainant to operate the account as was done prior to the debit freezing.

(2) The respondent bank shall pay Rs. 50,000/- as amount in lieu of compensation and cost of litigation to the appellant/complainant within 45 days of order of this appeal.

 

Copy of judgment alongwith the record be sent to the learned DCC Jaipur 3^rd Jaipur.

 

(A.K.Chatterjee) (Devendra Kachhawaha)

Member(Judicial) President

 

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