Delhi

StateCommission

A/285/2015

RAKESH GUPTA - Complainant(s)

Versus

INDIAN BANK & ORS. - Opp.Party(s)

SANJAY GUPTA

30 May 2019

ORDER

IN THE STATE COMMISSION: DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

 

Date of Decision:30.05.2019

 

First Appeal-285/2015

 (Arising out of the order dated 30.03.2015 passed in Complainant Case No. 60/2015 by the District Consumer Disputes Redressal Forum (North), Tis Hazari, Delhi)

 

Rakesh Gupta (Proprietorship),

M/s. Gaurav Enterprise,

R/o A-38, New Friends Colony,

New Delhi-110025.

…..Appellant

 

Versus

1. Indian Bank,

Chandni Chowk,

309, Main Road Chandni Chowk,

New Delhi.

 

2.       Bharti Airtel Ltd.,

Bharti Enterprises Limited,

Bharti Crescent,

1, Nelson Mandela Road,

Vasant Kunj, Phase-II,

New Delhi-110070.

 

3.       ICICI Bank Ltd.,

          Landmark Race Course Circle,

          Vadodara 390 007,

          Gujrat.

 

4.       The Hongkong and Shanghai,

          Banking Corporation of India,

          52/60 Mahatma Gandhi Road,

          Fort, Mumbai-400001.

.….Respondents

 

 

CORAM

 

Justice Veena Birbal, President

Salma Noor, Member

 

 

1.      Whether reporters of local newspaper be allowed to see the judgment?

2.      To be referred to the reporter or not?

 

 

Justice Veena Birbal, President

 

1. This is an appeal under Section 15 of the Consumer Protection Act, 1986 (in short, the “Act”) wherein challenge is made to order dated 30.3.15 passed by the Consumer Disputes Redressal Forum (North), Tis Hazari, Delhi (in short, the “District Forum”) in Complaint Case No.60/2015 whereby the aforesaid complaint has been dismissed in limine.
2. Briefly the facts are as under:

The appellant herein was the complainant before the District Forum. A complaint under Section 12 of the Act was filed by appellant/complainant before the District Forum stating therein that he is the sole proprietor of M/s. Gaurav Enterprises.  It was stated that appellant/complainant was holding a mobile phone Blackberry handset since December 2010 with registered mobile number provided by respondent-2/OP-2. The appellant/complainant had been using net banking facility with respondent-1/OP-1 for his account at Indian Bank, Chandni Chowk, Delhi.  The aforesaid net banking facility was used by appellant/complainant for paying Government dues and had never used the same for transfer into any other non-government account.  It was alleged that on 4^th December, 2012 appellant/complainant had received a SMS whereby he was informed that his request for SIM change had been processed.  Again at around 12 midnight on the aforesaid date, appellant/complainant received a message “SIM not provisioned for”.  Thereupon on 5^th December, 2012, appellant/complainant came to know that there was a call forwarding facility activated on the said SIM and appellant/complainant requested for cancellation of the same. It was alleged that on 6^th December and 7^th December, the same set of events got repeated.  Again on 11^th December, 2012 appellant/complainant through bank statement came to know that a sum of Rs.10 lacs had been illegally transferred from his account during the period of 4^th December to 11^th December, 2012 by way of transfer of Rs. 2.50 lacs each.  Appellant/complainant had filed a police complaint and also reported the matter to respondent-1/OP-1. However, no action was taken by respondent-1/OP-1.  Appellant/complainant had alleged that with the connivance of respondents/OPs, amount was transferred from his account and withdrawn by unscrupulous persons.  Appellant/complainant had alleged that respondent-3/OP-3 and respondent-4/OP-4 had not followed the RBI guidelines for KYC of the account holders in where the account money was transferred. It was alleged that even alleged account holders were not traceable. Alleging deficiency in service on the part of respondents/OPs, aforesaid complaint was filed.

3.       Perusal of impugned order shows that the Ld. District Forum has dismissed the complaint in limine on the ground that appellant/complainant is not a ‘consumer’. Ld. District Forum observed that it is nowhere pleaded in the complaint that complainant is running a business to earn his livelihood by way of ‘self-employment’.

4.       Aggrieved with the aforesaid order, present appeal is filed.

5.       Ld. Counsel for appellant/complainant has submitted that the complaint is filed by an individual Shri Rakesh Gupta, Proprietor of M/s. Gaurav Enterprises.  It is contended that Proprietor could be a ‘consumer’ under the Act. It is stated that the main allegations in the complaint are about deficiency in service on the part of respondents/OPs.  It is stated that appellant has suffered on account of deficient services provided by respondents/OPs causing loss to him. Ld. Counsel for appellant/complainant has also relied upon judgement of National Commission titled Vijaya Bank vs Rupesh Sisodia and Others, 1 (2016) CPJ 608 NC.

6.       On the other hand, respondents/OPs have submitted that the order passed by the Ld. District Forum is correct and the complaint is not maintainable.

7.       We have perused the impugned order. The complaint has been dismissed in limine without issuing notice to respondents/OPs.  The Ld. District Forum has not passed a speaking order while dismissing the complaint.  Even the factual ground of the complaint case has not been discussed in the impugned order.  District Forum was not justified in dismissing the complaint at the threshold. Ld. District Forum ought to have discussed as to what was the nature of account opened by appellant/complainant.  The allegations are of deficiency in service on the part of respondents/OPs as according to appellant/complainant, money had been illegally transferred from his account in favour of persons whose accounts had been opened without following RBI guidelines.  In these circumstances, the District Forum ought to have issued notice to respondents/OPs and considered their stand and thereafter could have passed the impugned order. Further whether there is a commercial purpose or not is a subject matter of evidence. In the facts and circumstances of the case, Ld. District Forum was not justified in dismissing the complaint in limine. 

8.       Consequently the appeal is allowed, impugned order is set aside and the complaint is restored to its original position for adjudication on merits after giving due opportunity to the parties to place on record their respective stand and evidence in support thereof.

9.       The Ld. District Forum shall be free to examine the question as to whether appellant/complainant is a ‘consumer’ after considering the entire material on record.  It is clarified that nothing stated herein shall have any bearing on the findings to be given by Ld. District Forum.

10.     Parties to appear before the District Forum on 31.7.19.

11.     Appeal stands disposed of accordingly.

12.     A copy of this order as per the statutory requirements be forwarded to the parties free of charge and also to the concerned District Forum for information.  The record of the District Forum be also sent back forthwith.  Thereafter the file be consigned to record room.

 

(Justice Veena Birbal)

•  

 

(Salma Noor)

Member

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