Delhi

New Delhi

CC/1267/2010

Sarika Gupta - Complainant(s)

Versus

M/S. HSBC & ORS - Opp.Party(s)

17 Jan 2019

ORDER

 

 

                                     CONSUMER DISPUTES REDRESSAL FORUM-VI

                                   (DISTT. NEW DELHI),

                                         ‘M’ BLOCK, 1^STFLOOR, VIKAS BHAWAN, I.P.ESTATE,

                                                                                NEW DELHI-110001

 

         Case No. 1267/2010                                                          Dated:

          In the matter of:

 Sarika Gupta

R/o 4/8. Nehru Enclave (East)

Kalkaji Extension

New Delhi-110019

Presently residing at;

18, whispering way, werren

N.J. -07059, New Jersey, USA

                                                                                         …… Complainant      

                                              VERSUS

 

1.      Honkong & Shanghai Banking Corporation Ltd.

               2^nd Floor, Birla Tower,

25, Barakhamba Road

New Delhi-110001.

                                                                                                     …..Opposite Party-1

2.         Branch Manager

Honkong & Shanghai Banking Corporation Ltd.

                   2^nd  Floor, Birla Tower,

25, Barakhamba Road

New Delhi-110001.

                                                                                                            …..Opposite Party-2

3.            Mr. Saurabh Dhingra

Relationship Manager, Commercial Banking,

Honkong & Shanghai Banking Corporation Ltd.

                  2^nd  Floor, Birla Tower,

25, Barakhamba Road

New Delhi-110001.…..Opposite Party-3

 

 

4.         Chief Executive Officer,

Honkong & Shanghai Banking Corporation Ltd.

                  2^nd  Floor, Birla Tower,

25, Barakhamba Road

New Delhi-110001.

                                                                                                        …..Opposite Party-4

 

      H.M. VYAS-MEMBER

                                                      ORDER

The complaint has been filed through Sh. Anurag Garg authorised representative holding special power of attorney by the complainant.  The said attorney is executed in USA. The gist of the complaint is that M/s ROYAL OVERSEAS INC. a partnership firm was having a current bank account with the OP1. Serious dispute arose between the partners and the same was informed to OP-1 through OP-3 by email on 05.10.2009. The complainant was in USA at the time of sending the request to OP-1 through OP-3 to freeze or seize the bank account immediately. The email was received by all the OPs but the account was not freezed despite email dated 05.10.2010.  The OP-1 needed signed instructions. As the complainant was not in India She repeatedly made phone calls to freeze the account and warned the OPs to immediately comply the instructions. The OPs in glove with the other partnership with Sh. Anoop Aggarwal entered into a criminal conspiracy and they allowed him to withdraw Rs. 5,75000/- in cash for payment of staff salary. Said withdrawals/ debit were allowed even after instructions after the complainant to freeze the account. Further, the OP-1 credited LC amount of Rs.2,93,7203.76  in the account of partnership firm on 06.10.2009 and thereafter allowed the another partner Sh. Anoop Aggarwal to transfer hug amount of Rs.37 lacs from the partnership firm account to his personal joint account that is Sh. Anoop Aggarwal and his wife. The OP-1 further allowed the other partner to withdrawal Rs.40,000 in cash from the account of the partnership firm and left Rs 1329.94 only. A legal notice dated 26.10.2009 and 08.02.2010 for deficiency in service and huge loss was sent to the OPs. It is alleged that the cheque of Rs..37 lacs did not pertain to any business transaction to the firm and honorary said cheque by OP-1 in spite instructions is cheating and criminal conspiracy. It is further alleged that acts of the opposite parties is not only misappropriation of movable property/fund but it amounts to theft of valuable properties to the complainant. Alleging malafide attitude of the OPs, prayer to hold the OPs  guilty of deficiencies in the services; to recover Rs.44 lacs from Sh. Anoop Aggarwal and deposit the same in the partnership bank account; and to direct OPs to pay Rs. 4 lacs each towards cost compensation and mental agony suffered by the complainant has been made.

The OPs were noticed. The OPs filed version/ written statement denying all allegations. It is stated that in case of Joint account/partnership firm account any change if to be affected, in the operation of the joint account would require signatures of all the parties to the agreement. However, on 06.10.2009 the OP got the said account non-operational due to ongoing dispute between the partners of the firm. The other partner Shri Anoop Aggarwal was also informed accordingly vide letter dated 22.10.2009. It is also alleged that      Shri. Anoop Aggarwal sent a legal notice dated 09.12.2009 through his advocate asking for damages from OP for taking decision of blocking freezing the account without his consent and requested to unblock to/unfreeze the same. The other objections taken are that this forum does not have the pecuniary jurisdiction and therefore cannot adjudicate the complaint. Further, the disputed the questions of facts and law require proper trial and evidence and the same can only be adjudicated by Civil Courts. Any deficiency in service alleged by the complainant has been denied further the issue of limitation has also been raised. Further it is alleged that the complainant is not a consumer and the services of OP for commercial purposes was taken. It is also alleged that at the joint request of the complainant and Shri Anoop Aggarwal and on execution of all prescribed documents for opening the account by both the partners the said account was opened. The email of the complainant was replied by the OP conveying the need of jointly signed instructions. The OP was never concerned with any type of dispute between the partners of the firm. All other allegations have been categorically denied with prayer to dismiss the complaint.

The complainant filed rejoinder affirming the text of complaint and also      filed evidence by way of affidavit. The OP also filed evidence. Both the parties have filed their respective written arguments and also addressed oral arguments.

We have given due consideration to the material placed before us and the arguments of the parties with relevant provisions of law.

Before going into the merits of the case, the preliminary issue of pecuniary jurisdiction as raised by the OP needs to be decided first in the light of judgment/orders dated 23/03/2018 in FA No. 478/2013 of the Hon’ble State Commission in the case titled as United India Insurance Company Ltd. V/s Ashok Kumar Gupta.

A bare perusal of the prayer clause in the complaint clearly reflects that the claimed amount is more than Rs. 44 lacs and this forum has the pecuniary jurisdiction to adjudicate the cases up to Rs. 20 lacs.

On the point of pecuniary jurisdiction we are guided by the law laid down by the Hon’ble National Commission in the case of  Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., Case no. 97 of 2016, decided by Hon’ble NCDRC on 07/10/2016,

The Hon’ble National Commission has taken similar view also in the case of Daimler Financial Services India Vs Laxmi Narayan Biswal (FA No. 1616/2017) decided on 30/08/17 and in the case of Raj Kishore Vs TDI reported as III(2017)CPJ 155.    This view is also adopted by our own Hon’ble State Commission in Complaint Case no. 119/12 Ambica Steel Lts., Vs. The Oriental Insurance Co. Ltd.

In the light of the above factual position & judgment we are of the considered view that this forum lacks pecuniary jurisdiction to adjudicate the case and order return of the complaint to the complainant & annexures with liberty to file before appropriate forum.

Holding so the complaint be returned to the complainant with following particulars in the light of orders of the Hon’ble National Commission in the case of Tushar Batra & Anr. Vs. M/S Unitech Limited decided on 26/04/2017, Case no.-299 of 2014 .

• Presentation of complaint:-

Before this District Forum on 01/11/2010.

• Date of return of complaint :- 17/01/2019.
• The name of complainant(s):- Sarika Gupta.

 

 Brief statement of reasons for returning the complaint.

The judgement in the case of Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd., Case no. 97 of 2016, decided by Hon’ble NCDRC came on 07/10/2016, and the Hon’ble NCDRC has held that in case where even part of deficiency is to be removed, the full value of the subject matter whether goods or services will be taken as the value of goods and services for deciding the pecuniary Jurisdiction. In the present complaint, and the material placed before us it is clear that  the cost of the flat is more than 20 lac as such  the aggregate value of the  alleged flat and reliefs  claimed exceeds the pecuniary jurisdiction of this District Forum. In such set of facts and In the light of  Ambrish Kumar Shukla and Ors. Vs. Ferrous Infrastructure Pvt. Ltd.,( Case no. 97 of 2016, decided by Hon’ble NCDRC on 07/10/2016) we refrain from going into the merits of the case since this Forum does not have the pecuniary jurisdiction and therefore,  the complaint is directed to be returned to the complainant with annexures against acknowledgement & retaining a copy of the same for records. Liberty to the complainant is granted to file Complaint before competent Forum as per the Law. The complaint is disposed of in above terms.

Announced in open Forum on 17/01/2019 .

The orders be uploaded on www.confonet.nic.in.

Copy of the orders be sent to the parties by post free of cost as per statutory requirement.

File be consigned to record room.

 

                                                          (ARUN KUMAR ARYA)

                                                                 PRESIDENT

                 (NIPUR CHANDNA)                                                      (H M VYAS)

                    MEMBER                                                                  MEMBER