CONSUMER DISPUTES REDRESSAL FORUM – X
GOVERNMENT OF N.C.T. OF DELHI
Udyog Sadan, C – 22 & 23, Institutional Area
(Behind Qutub Hotel)x
New Delhi – 110 016
Case No. 69/2010
M/S S.VASANT KUMAR & CO.
12/16, OLD HANUMAN 1ST CROSS LANE
2ND FLOOR SHOP NO. 23,
KALBA DEVI ROAD,
MUMBAI -400002
THROUGH ITS AUTHOSISED REPRESENTATIVE
SHRI BHUPENDRA S. PROHIT
………. COMPLAINANT
Vs.
- ING VYASA BANK LTD.
E-220, EAST OF KAILASH,
NEW DELHI-110065
- ING VYSA BANK LTD
382/384, NARSINGH SREET
KATHA BAZAR, MANDVI
-
- JAMMU & KASHMIR BANK LTD.
9, LSC, 1ST FLOOR,
OKHLA INDUSTRIAL AREA PHASE II
NEW DELHI-110029
- THE DELHI STATE COOP. BANK LTD.
BHAJAN PURA BRANCH,
AT F-398, KHAJURI KHAS EXTN.COLONY
MAIN WAZIRABAD ROAD,
PO GOKUL PURI,
-
- VASANT KUMAR
S/O SH. VIRENDER KUMAR
R/O D-10, KARAWAL NAGAR
-
- SMT. SUNITA SHARMA
A-511/14, PART-5,
NEAR CRPF CAMP
SONIA VIHAR, DELHI.
- M/S VARDHMAN FABRICS
THROUGH ITS PARTNER
SHRI NITIN JAIN
G-6, SKIPPER CORNER,
88, NEHRU PLACE,
NEW DELHI-110019
………….RESPONDENTS
Date of Order: 27/08/2018
O R D E R
Ritu Garodia-Member
The complainant is a proprietorship concern having its proprietor as Sh. Vasant J.Ranka. The complainant was carrying on business with OP7. The complainant had a bank account with OP1 & 2. OP7 issued a cheque to the complainant bearing no. 741818 dated 4/12/2009 for Rs. 2,14,260/- from its current account in OP3 bank. The cheque was dropped by OP7 at the request of complainant in a drop box of OP 1 and 2. When OP7 reconciled its bank statement, it was discovered that the cheque was presented in an account maintained with OP4.
On enquiry, it was found from the photocopy of the said cheque that it was tampered and the name has been changed to Sh. Vansant Kumar 6394 from S.Vansant kumar & Co. OP7 had retained the carbon copy of the disputed cheque. It is alleged that said cheque was fabricated by OP5 who had opened an account with OP4 bank. OP6 was the introducer while opening the said bank account. It is also alleged that the police after inquiry discovered that were another incident of cancellation of cheque from drop box and the same was encashed from OP4 bank. FIR had been registered.
It is alleged that OP1 &2 are responsible for all cheques dropped at the bank’s drop box and are liable for any loss suffered by the customers. It is also imputed that OP4 bank should be liable as a fraudulent account has opened in the name of OP5 on basis of forged documents. It is further imputed that OP3 is liable as it encashed the cheque despite overwriting/tampering. The complainant prays for refund of amount of the cheque along with compensation. The complainant has filed FIR, complaint by OP7, photocopy of original cheque and tampered cheque and the copy of complaint made by the complainant to OP1 bank.
OP1 & 2 bank in their reply has admitted that the account no. 505011005373 is maintained by complainant. OP1 &2 has also denied that any cheque was ever dropped in the drop box or misappropriated by its officer.
OP3 in its reply has stated that cheque was cleared as per the procedure laid down by the Reserve Bank of India which is known as cheque truncation system. OP3 has specifically denied any tampering or overwriting of cheque in question. It is contended that the cheque in question was issued in the name of Sh. Vasant Kumar 6934.
OP4 in its reply has stated that the complaint is not maintainable and the complainant is not a consumer. It is contended that over writing or any tampering of the cheque in question is not visible to naked eyes. It is admitted that a fraudulent account was open in the name of OP5 on the basis of forged document.
OP5 failed to appear and was proceeded ex-parte on 18/10/2016.
OP6 in her reply has stated she has a saving bank account with OP4 without facility of cheque book and ATM card. It is further stated that two fake accounts were opened in OP4 bank in name of Sh. Vasant Kumar and Shri Jagdish Kumar. It is emphasised that she had not introduced any account holder and OP4 bank is responsible for opening a fake account. It is further stated that no compliance towards KYC norms have been undertaken by OP4 bank while opening the fake bank account. She has made several complaints to the bank stating that she does not know the account holders.
OP7 in its reply has stated that it is maintaining a current account with OP3 bank. It had issued the cheque in question in the name of OP1 towards discharge of its liability. The said cheque was deposited at the drop box of ATM counter of OP1 bank. It was only at the time of reconciliation of bank statement, it was found the cheque was tampered and name of Sh. Vasant Kumar 6394 had replaced S. Vasant Kumar.
OP6 has filed a final report from police in FIR no. 6/10.
We have perused the pleadings filed by both the parties. It is admitted by complainant that it is proprietorship concern which was carrying on business with OP7. It is admitted by the complainant and OP7 that the cheque in dispute was issued in the name of the complainant from its current account towards discharge of his liability.
Section 2(1) d of Consumer Protection Act as follows:
2(1)(d) “Consumer” means 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 user of such goods other than the person who buys 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; or
- (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 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 explanation leaves no doubt that aforesaid provision is made for people who earn their livelihood by means of self-employment. The complainant has never stated in any of his pleadings that proprietorship concern was being run for the purpose of earning his livelihood. Even the account from which the cheque was issued was a current account and admittedly related to the business transactions. Therefore, such bank activity required for the functioning of any given business/ enterprise falls within category of hiring services for commercial purposes.
Reference is in this regard is placed on the judgement Hon’ble National Commission in case of Hardesh Kumar Vs Chairman-cum-Managing Director, Allahabad Bank & Ors.–II (2016) CPJ 647 (NC) – decided on 24/02/2016- In that case the complainant was running business and availed cash credit facility. It was held by the Hon’ble National Commission that in the entire complaint, it was nowhere averred that the cash credit facility was taken by the complainant for the purpose of earning of his livelihood by means of self employment hence complainant is not a consumer.
Moreover this complaint is filed by M/s S. Vasant Kumar & Co. through its authorised representative. There cannot be an authorised representative of a proprietorship concern because it is not a legal entity Mr Vasant Kumar Ranka is the proprietor. The complaint should have been filed in his name as proprietor of M/s Vasant Kumar & co.
Also the entire complaint is based on forgery. FIR already lodged by the complainant as question of complicated law and fact is involved hence cannot be decided in the summery procedure . It requires examination and cross examination of witness as forgery is involved.
The complainant is therefore, dismissed for reasons mention hereinabove. The complaint stands disposed of accordingly.
Copy of order be sent to the parties, free of cost, and thereafter file be consigned to record room.
(RITU GARODIA) (H.C SURI) (A.S YADAV)
MEMBER MEMBER PRESIDENT
