BEFORE THE TELANGANA STATE CONSUMER DISPUTES REDRESSAL COMMISSION: AT HYDERABAD
F.A.No. 274 OF 2017 AGAINST C.C.NO.472 OF 2015 DISTRICT CONSUMER FORUM-II, HYDERABAD
Between
- Kotak Mahindra Bank Limited
(Erstwhile ING Vysya Bank Ltd.,)
House No.22, MG Road,
Near Trinity Metro Station
Opp: HSBC Bank,
- M/s Kotak Mahindra Bank Ltd.,
(Erstwhile ING Vysya Bank Ltd.,)
Abids Road Branch, Bank Street
Hyderabad-500001,
Rep. by its Branch Manager
Appellant/opposite parties
AND
M/s Efficient Road lines Pvt Ltd.,
Rep. by its Executive President
N.M.Krishna (Nanduri Murali Krishna0
R/o 211-212, Raghava Ratna Towers
Chirag Ali Lane, Abids,
-
Respondent/complainant
Counsel for the Appellants M/s V.Sethu Madhava Rao
Counsel for the Respondent Party in Person
QUORUM :
HON’BLE SRI JUSTICE B.N.RAO NALLA, PRESIDENT
&
SRI PATIL VITHAL RAO, MEMBER
MONDAY THE TWENTY THIRD DAY OF APRIL
TWO THOUSAND EIGHTEEN
Oral Order : (per Hon’ble Sri Justice B.N.Rao Nalla, Hon’ble President)
***
This is an appeal filed by the opposite parties aggrieved by the orders of District Consumer Forum-II, Hyderabad, dated 11.05.2017 made in CC No.472 of 2015 wherein it allowed the complaint directing the opposite parties to return an amount of Rs.67,191.44ps with interest @ 9% p.a. from 30.01.2015 till payment together with csots of Rs.5,000/-.
2. For the sake of convenience, the parties are referred to as arrayed in the complaint.
3. The case of the complainants, in brief, is that, the complainant is a Transport Company had Cash Credit Account bearing No.304044011392 in the opposite party no.1 bank since long time. While so, the complainant in order transfer their CC account from the opposite parties to HDFC Bank sent an email dated 11.11.2014 requesting them not to renew their CC limits beyond the expiry period of 31.12.2014. The opposite party no.2 vide its letter dated 31.12.2014 issued a certificate stating the complainant was having an outstanding balance of Rs.99,16,621.06ps and to that effect the complainant deposited the DD for Rs.99,16,000/- along with acceptance letter of the HDFC Bank with the opposite party no.1. But the opposite parties have not deposited the said DD in the complainant’s account nor returned the DD to HDFC Bank Ltd., Hyderabad till 20.01.2015. While so the opposite parties arbitrarily debited a sum of Rs.67,191.44ps to the complainant’s account on 30.01.2015 towards interest against alleged outstanding amount without any prior intimation to the complainant. Thereupon the complainant vide their email dated 29.04.2015 requested for refund of the said amount but the opposite parties rejected the complainant’s request. The complainant approached the Banking Ombudsman and the Ombudsman closed the complaint on the ground that there is no meeting point between the submission made by the complainant and bank. Hence, the complaint praying to direct the opposite parties to refund the amount debited by the opposite parties Rs.67,191.44p with interest @ 18% p.a. from the date of debit to complainant’s account till the date of realization.
4. The opposite parties resisted the case contending that the complainant approached the opposite party no.2 along with HDFC letter and pay order dated 02.01.2015 towards closure of their OD account and requsted for release of all security documents to DFC Bank Limited and confirmation on outstanding BGs issued and acceptance counter guarantee. The official of the opposite party no.2 at the time of receiving the letter informed the complainant that his request shall be subject to the approval from the higher authority and also informed the complainant that they have to pay 2% pre-closure charges and accordingly made endorsement while acknowledging the receipt of the letter and also informed to the complainant that until they receive clarification they will not adjust/credit DD in OD account. Since the complainant will be incurring/losing interest on the amount of the DD the opposite party no.2 returned the pay order/DD to HDFC Bank vide letter dated 05.01.2015. The complainant accepted objections for non-deposit of the DD/pay order of HDFC Bank limited for closure of CC/OD accounts through email dated 06.01.2015 and informed the opposite party no.2 that the complainant was arranging separate FDRs for each BG and further undertake to clear the balance due amount post clearance of DD given by HDFC Bank. The complainant vide its email dated 19.01.2015 informed that the opposite party no.2 its acceptance for the charge of Rs.2.00 lakhs and further requested it to inform the actual outstanding amount payable against the account to enable the complainant to clear the same and cancel the limits. The complainant further requested the opposite party no.2 to allow the operations of OD accounts without charging any fees for attending/clearing the postdated cheqeus issued by the complainant earlier and other contingent transactions. The opposite party no.2 accepted the same and informed the complainant vide email dated 19.01.2015.
5. The opposite parties contended that the officials of the complainant were having knowledge that as per the process part pre-closure is not allowed without giving separate guarantee for the continuation of BG limit and until then the DDs cannot be accepted or adjusted. The complainant requested the opposite party no.2 that till sorting out aforesaid issue to credit/adjust the DDs. Considering the long term relationship with the complainant the opposite party no.2 has charged only Rs.67,191.44. on 23.01.2015 informed the opposite party no.2 regarding completion of takeover of the complainant account by HDFC Bank and further requested to continue operation of the complainant account without charging any fee for attending to the postdated cheques earlier issued by the complainant and other contingent transactions. The opposite party no.2 pursuant to the email of the complainant delivered the original property documents to the HDFC Bank and issued no due certificate to the complainant on 09.03.2015. Hence, the opposite parties prayed for dismissal of the complaint.
6. In proof of the case of the complainant, the Authorized Signatory and Executive President filed his evidence affidavit and got marked Exs.A1 to A12. On behalf the opposite parties , the Regional Head/Authorized Signatory has filed his evidence affidavit and got marked Exs.B1 to B27.
7. The District Forum after considering the material available on record, allowed the complaint bearing CC No.472 of 2015 by orders dated 11.05.2017 as stated in paragraph No.1, supra.
8. Aggrieved by the said decision, the opposite party no.1 preferred the appeal contending that the Dist. Forum did not appreciate the facts in correct perspective. The District Forum failed to see the Exs.B8 to B19 i.e., the letters in between 03.01.2015 to 09.03.2015 which show a continuous correspondence in between the complainant and the opposite partyno.2. If really the complainant wanted to avid to pay interest after take over, the complainant ought to have instructed the HDFC Bank Ltd., to send the takeover proceeds through RTGS to the complainant’s Overdraft account with opposite party and automatically the Overdraft account would come into credit balance and there is no need to charge any interest on the loan account by the opposite parties. The District Forum failed to see that the complainant vide email dated 19.01.2015 informed the opposite party no2. About accepting for the charges of rs.200 lakhs and further quested to debit the said charges to the account after duly crediting the DDs issued by HDFC Bank Ltd., and close the account forthwith. The District Forum failed to see the observations made by the Banking Ombudsman that the adjudication of the complainant requires detailed examination of oral and written evidence for which summary proceedings under Banking Ombudsman are not applicable. The complainant instead of approaching competent Civil Court for adjudication of issues adopted shortcut method by filing the consumer case before the District forum. The complainant opened an Overdraft account for conducting Transport business which is a commercial transaction and therefore the complainant is not a consumer within the meaning of C.P. Act and hence the Consumer Forum has no jurisdiction to entertain the complaint. Therefore, the opposite parties prayed to set-aside the order of the District forum and appeal be accepted.
9. Counsel for the appellant and the respondent party in person present and were heard. Written arguments of both parties have been filed.
10. The point that arises for consideration is whether the impugned orders as passed by the District Forum suffer from any error or irregularity or whether they are liable to be set aside, modified or interfered with, in any manner? To what relief?
11. The counsel for the appellants/opposite parties contended that the complainant is not a consumer as defined in under Section 2(1)(d) of the Act. As is clear from the averments in the complaint in para no.1 of the complaint, it has been mentioned that the complainant is a transport company dealing in transportation business under the name and style of M/s Efficient Road Lines Pvt Ltd . In case the C.C. Limit was taken for business purpose then the complainant does not fall within the definition of consumer as defined under the Consumer Protection Act. For ready reference, the definition of consumer as defined under Section 2(1)(d) of the Act is mentioned as under:-
"2 Definitions.
(1) In this Act, unless the context otherwise requires, -
(d) "consumer" means any person who, -
(i) 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 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
(ii) 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 purposes].
Explanation: For the purposes of sub-clause (i), "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;
12. The allegations are with regard to unnecessary charge debited in the cash credit account. There is no averment in the complaint that the business was being run by the complainant to earn his livelihood by way of self-employment which is necessary requirement to cover the commercial transactions under the definition of consumer as provided under Section 2(1)(d) of the Act as referred above.
13. In this regard, we are fortified by the judgment passed by the Hon'ble National Commission reported in 1(2015) CPJ 326 titled as Oriental Bank of Commerce Vs. Sushil Gulati. In this case, C.C. Limit was taken to run the business and that he nowhere mentioned that he was carrying on the business by means of self-employment for earning livelihood. This judgment fully covers the present case. No contrary judgment was referred by the counsel for the complainant. Therefore, we are of the opinion that complainant does not fall under the definition of consumer, therefore, the complainant is not a consumer.
14. Keeping in view the findings, the complainant is not a consumer which fact was not properly appreciated by the District Forum. Therefore, the order passed by the District Forum is not legally sustainable and is liable to be set aside.
In the result the appeal is allowed by setting aside the order of the District Forum-II, Hyderabad in C.C.No.472 of 2015 dated 11.05.2017 and consequently the complaint is dismissed. While dismissing the complaint as not maintainable reserve the right of the complainant to approach the appropriate Civil Court to seek its remedy. In the event the complainant approaches the Civil Court or competent forum, the period spent between the filing of the claim before this Commission and till disposal of the matter today will be excluded under Section 14 of the Limitation Act, 1963 in the light of the decision of the Honble Supreme Court in Trai Foods Ltd vs National Insurance Company Ltd and others reported in III (2012) CPJ 17. No costs.
PRESIDENT MEMBER
23.04.2018.
