Delhi

North

CC/150/2018

SAIBA FOOTWEAR CO. - Complainant(s)

Versus

KOTAK MAHINDRA BANK LTD. - Opp.Party(s)

VISHAL AGGARWAL, SONA BABBAR

22 Jan 2019

ORDER

ORDER

 

Poonam Malhotra, Member:

 

1.         The brief facts of the present complaint is that the complainant, a sole Proprietorship Firm, opened a Current Account No.523011023090 with the OP Bank.   It is alleged that on 21.03.2018, the complainant received a text message from the OP Bank informing the complainant about the change in the status of its account from “No Freeze to Debit Freeze”.   In this regard, no prior notice was given to the complainant.  On inquiry from the concerned Bank, it came to light that account had been partially freezed for non-compliance of KYC Norms and OP Bank provided the complainant with a Declaration-Non-Individual Customer Form for furnishing of information in compliance of the KYC Norms and for De-freezing of the said account.   Duly filled Declaration-Non-Individual Customer Form was submitted to the OP Bank alongwith the self-attested photocopies of Pan Card and Aadhar Card of the Complainant alongwith a Requisition Letter dated 05.04.2018 for De-freezing of the said account.  The said letter and Form were duly received by the OP Bank on 05.04.2018.  Despite, compliance of the KYC Norms, the Bank did not De-freeze the said account.           Repeated visits & legal notice dated 03.07.2018 on behalf of the complainant were of no consequence.  It is alleged that the Partial/Debit Freezing of the account without prior notice is a gross violation of the Master Direction - Know Your Customer dated 25.02.2016 issued by Reserve Bank of India and amounts to deficiency in service and unfair trade practice on the part of the OP Bank.   In the backdrop of these facts, the present complaint has been filed with a prayer seeking directions against the OP for De-freezing of the Current Account No.523011023090 of the Complainant besides prayer for awarding interest @10% on the amount lying in the freezed account from the date of freezing of the account, compensation of Rs.2,00,000/- for mental harassment and litigation cost of Rs.50,000/-.

 

2.         Heard the arguments of the Ld. Counsel for the complainant on the maintainability of the present complaint and perused the record.

 

3.         Perusal of the record shows that the present complaint revolves around a Current Account opened by the complainant with the OP Bank for the purpose of carrying on its business activities.  It is an admitted position that the complainant is a Sole Proprietorship Firm and the bank account in respect of which deficiency on the part of the OP is alleged is a Current Account.  In this milieu, before admitting the present complaint a query was put to the complainant as to how it falls within the definition of the term “Consumer” as contained in Section 2(1)(d) of the Consumer Protection Act, 1986.

 

4.         Ld. Counsel for the complainant vehemently argued that the complainant herein is a consumer under the Consumer Protection Act, 1986 and placed reliance on the judgment of the Hon’ble NCDRC in the case titled Corporation Bank Vs. M/s I.S.E. Cards India Ltd. in F.A. No.450/2015 decided on 20.04.2018.   He has also drawn our attention on the judgment of the Hon’ble Delhi State Consumer Disputes Redressal Commission Forum in CC. No.39/00 titled M/s. Prashant Associates vs The Bank of Rajasthan Ltd. & Ors. decided on 31.07.2008.  

 

5.         In the judgment of the Hon’ble NCDRC cited supra, a question as to  whether the complainant is a “consumer” was dealt with and it was held that service availed by the Complainant is only for depositing the cheque and collecting the cheque amount.  Anybody having account in the bank can deposit a cheque and can expect its collection in the account of the applicant.  From where the cheque is coming, or for what purpose the collected amount is initialized, are not the questions to be considered in this regard because the service of the bank remains the same.  As the bank charges the commission for collection of the amount, the service is covered U/s 2(1)(o) of the Consumer Protection Act, 1986.

 

6.         It is pertinent to mention here that the issue with regard to the services rendered by the Bank to the Current Account holder has also been dealt by the Hon’ble NCDRC in Sutlej Industries Ltd. Vs. Punjab National Bank in FA.No.306/2012 decided on 08.11.2017 wherein it has been held that the complainant is not a consumer within the meaning of Section 2(1)(d) of the Consumer Protection Act, if he has hired or availed the services of a Bank for a commercial purpose.

 

7.         We shall now examine whether the complainant is a consumer or not and consequently the present complaint is maintainable or not?

 

8.         Article 141 of the Constitution of India  states that “the law declared by the Supreme Court shall be binding on all Courts within the territory of India”. The law declared by the Supreme Court is the law of the land. It is a precedent for itself and for all Courts/ tribunals and authorities in India [Rupa Ashok Hurra v Ashok Hurra (2002) 4 SCC 388]. However, decisions per incuriam and sub-silentio constitute exceptions to the rule of precedents enshrined in Article 141 of the Constitution of India and are thus not binding.  The same has been accepted, approved and adopted by this court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law.  

“A decision which is not express and is not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a binding effect as is contemplated by Article 141.  Any declaration or conclusion arrived without application of mind or preceded without any reason cannot be deemed to be declaration of law or authority of a general nature binding as a precedent.  Restraint in dissenting or overruling is for sake of stability and uniformity but rigidity beyond reasonable limits is inimical to the growth of law.  It is clear that the judgment per incuriam cannot be deemed to be a law declared to have binding effect as is contemplated by Article 141 of the Constitution. 

 

9.         A three Judges bench of the Hon’ble Supreme Court in the case of Municipal Corporation of Delhi vs. Gurnam Kaur (AIR 1989 SC 38) has held that “a decision should be treated as given per incuriam when it is given in ignorance of the terms of the statute or of a rule having the force of a statute.” Pronouncements of law, which are not part of the ratio decidendi are classed as obiter dicta and are not authoritative.  As per the doctrine of `per incuriam', any judgment which has been passed in ignorance of or without considering a statutory provision or a binding precedent is not good law and ought to be ignored. 

10.        The Hon’ble Supreme Court in Government of A.P. and Another v. B. Satyanarayana Rao (dead) by LRs. and Others (2000) 4 SCC 262 observed as under: The rule of per incuriam can be applied where a court omits to consider a binding precedent of the same court or the superior court rendered on the same issue or where a court omits to consider any statute while deciding that issue.

 

11.       It is apposite to mention here that the decision in Sutlej Industries Ltd. case (supra) was prior to the decision in Corporation Bank case (supra).  It is well settled that if a subsequent co-ordinate bench of equal strength wants to take different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength.  Since the decision in Sutlej Industries Ltd. case (supra) was not considered in Corporation Bank case (supra), the decision in Sutlej Industries Ltd. case (supra) was binding on the subsequent bench of equal strength and the law laid down in Sutlej Industries Ltd.  case (supra) holds good.

 

12.       Keeping in view the above facts & circumstances into consideration and especially the ratio of law as laid down by the Hon’ble NCDRC in Sutlej Industries Ltd.  case (supra) discussed above, the present complaint is dismissed as not maintainable under the The Consumer Protection Act, 1986.   It is, however, made clear that dismissal of the complaint will not come in the way of the complainant availing such remedy other than a consumer complaint as may be open to it in law.

 

Copy of the order be given to the complainant as per rules.

Announced on the 22^nd day of January, 2019.

 

 

 

(M.K.GUPTA)                                                                   (POONAM MALHOTRA)

            President                                                                                     Member