Punjab

StateCommission

CC/118/2013

M/s Roshan Lal Bachna Ram and another - Complainant(s)

Versus

Punjab and Sind Bank and others - Opp.Party(s)

Pankaj Gupta & R.K. Goyal

12 Jan 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

STATE  CONSUMER  DISPUTES  REDRESSAL  COMMISSION,  PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   Consumer Complaint No.118 of 2013

 

                                                          Date of Institution   :  05.11.2013  

                                                         Order Reserved on : 10.01.2017

                                                          Date of Decision     :  12.01.2017

 

1.       M/s Roshan Lal Bachna Ram, Old Grain Market, Opposite Punjab        and Sind Bank, Sunam, District Sangrur, through its Sole Proprietor,        Mr. Ashok Kumar Singla.

2.       Ashok Kumar Singla s/o Late Shri.Bachna Ram, C/o M/s Roshan         Lal Bachna Ram, Old Grain Market, Opposite Punjab and Sind       Bank, Sunam, District Sangrur.

         

 

                                                                             …..Complainants

                                                Versus

1.       Punjab and Sind Bank House, 21 Rajendra Place, New Delhi,     through its Chairman-cum-Managing Director.

2.       Punjab and Sind Bank, Zonal Office, Rajbaha Road, Patiala,       through its Zonal Manager.

3.       Punjab and Sind Bank, Sunam Branch, District Sangrur, through its     Senior Manager.

4.       Rajinder Kumar Singla s/o late Sh. Bachna Ram, resident of 1st          Floor, Punjab and Sind Bank Building, Gita Bhawan Road, Sunam    District Sangrur.

                                                                                  ….Opposite Parties

         

Consumer Complaint U/s 17(1)(a) of the Consumer Protection Act, 1986 (as amended up to date).

Quorum:-

          Shri J. S. Klar, Presiding Judicial Member.

               Shri J.S Gill, Member.

               Shri.H.S.Guram, Member

         

Present:-

          For complainants                       :  Sh. Ravish Bansal, Advocate

          For opposite parties no.1-3        :  Mrs. Adarshpal Kaur, Advocate

          For opposite party no.4             :  Sh. Nitin Thatai. Advocate

          . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

J. S. KLAR, PRESIDING JUDICIAL MEMBER:-

                                     

           The complainants have filed this complaint U/s 17(1)(a) of the Consumer Protection Act 1986 (in short the "Act) against the OPs on the averments that complainant no.1 is sole proprietorship firm of complainant no.2 dealing in the business of commission agency at Sunam since June 15, 2008. The complainant firm opened current account no. 1685 with the Punjab and Sind Bank Sunam Branch/OP no.3 on June, 19, 2008. It closed the above said account on 12.08.2008. The complainant opened a new cash credit limit account no. 14128970000029 in HDFC Bank Ltd. branch Sunam. It gave an authority letter to HDFC Bank in favour of OP no.4 authorizing him to operate the said account of complainant. OP no.4 has started misusing the authority given by the complainant by misappropriating the amount in the said cash credit account with HDFC bank. The  complainant withdrew the authority from OP no.4 for operation of the referred bank account. The complainant stopped payment of all the cheques, which has been drawn by OP no.4 on behalf of complainant in the above cash credit limit account with HDFC Bank. On 02/4.03.2010, the complainant no.1 opened new current account no. CA1733 with OP no.3, which has been continuing till date. The complainant no.2 is sole proprietor of the firm and he is only authorized signatory to operate the account for withdrawal of the amount. Complainant no.2 met with serious road accident in the month of June 2011 and sustained multiple bodily injuries with bone fractures of ribs, neck, shoulders etc. He was admitted to DMC Ludhiana, where he was operated upon and remained hospitalized for several weeks. Complainant no.2 remained admitted in local nursing home at Sunam and remained confined to bed for a number of months. A sum of Rs. 29.30 lac was deposited in the current account no.1733 of the complainant concern from time to time by complainant. Complainant no.2 was shocked to find that during the period 9.11.2011 to 17/18.11.2011, by drawing the cheque out of CA account no. 1733 under the signatures of complainant, OP no.4 in connivance with officials of OP no.3 usurped the entire amount of the complainant. The complainants had not authorized any person to withdraw any amount, as set out in para no.8 of the complaint in detail. The complainant no.2 made oral inquiry from the officials of OP no.3, but to no effect. The complainant had not withdrawn the above referred amount. OP no. 4 signed the cheques, as proprietor, despite the fact that he could not have withdrawn the amount out of the account of business concern of the complainant. A criminal complaint has been filed against officials of OP nos.3 and 4 by the complainant. OP no.1 to 3 used to charge interest @ 12% per annum on the overdraft of the amount withdrawn by the plaintiff out of his account and as such complainant is entitled to claim interest in this regard which comes to Rs.10,54,800/- up to 31.10.2014. The complainant has prayed that Ops be directed to pay back the amount of Rs.29,30,000/- as principal amount and plus Rs.10,54,800/- as interest thereupon totaling Rs39,84,800/- to complainant with interest @ 12% per annum.

2.      Upon notice, OPs no.1, 2 and 3 appeared and filed written reply raising preliminary objections that complaint is not maintainable, because it has been filed for adjudication of the matter, which is commercial transaction, as carried out by complainants/firm in its business as commission agents. The complainants are not consumers under Section 2(i)(d) of the Consumer Protection Act, 1986. The complainants leveled serious allegations of fraud and connivance against OPs. The complainants are required to prove such allegations with cogent evidence and detailed evidence is required to be led by both the parties for a fair and proper adjudication of the matter. This Forum has no jurisdiction to try and decide the present complaint. The complainants should approach civil/criminal court for redressal of the grievances, because it cannot be adjudicated in summary jurisdiction by consumer forum. The complainants have not approached the Forum with clean hands and suppressed the material facts. On merits, the OPs admitted the fact that complainant is a proprietorship firm since 2008. The fact of opening of current account no. 1685 on 19.06.2008 by complainant was admitted by OPs. It was pleaded that complainants availed cash credit limit  and said current account was converted into cash credit account no. 266, as has been placed on record as  Annexure C-4. The complainants operated the said cash credit account for about two years and then deposited the balance due therein and made a request for cancellation of the cash credit limit by changing of the same account into current account again. A written request of the account holder is required for closing and opening an account. The complainants never gave any request for closing the said account and opening new account. The request was for changing the same account into current account and hence the cash credit account no. 266 was then changed into current account no. 1733. The complainants never cancelled or withdrew the authority letter given to OP no.4 for operation of the accounts. This fact was denied that complainant no.1 opened a new current account no. 1733 on 04.03.2010. The same account was firstly changed into cash credit account and thereafter changed into current account on the request of complainant no.2. Further, for opening a new account request has to be made, account-opening form has to be filled up and submitted and other formalities were required to be completed to open an account. No such form was submitted by the complainant. This fact was denied by OPs that complainant no.2 was only authorized signatory to operate the account. The complainants authorized OP no.4 to operate the current account no. 1685, which changed into cash credit account no. 266 and then after cancellation of cash credit limit, it was changed into current account no. 1733.  The fact of depositing of above amount was not denied by the answering OPs. The amount of Rs.29.30 lac was withdrawn by OP no.4 being authorized person to operate the said account. OP no.4 had been operating the said account regularly and alleged withdrawals are not the only transactions conducted by OP no.4, the authorized agent of the complainants. Had OP no.4 not been the authorized person, the complainants would have given specific instructions to OPs not to allow him to operate the said account and would have withdrawn/cancelled the authority given to OP no.4 about it. But no such action was taken by complainants. The statements of account were regularly obtained by the complainant no.2 from OPs. It was emphatically reiterated that complainant no.2 authorized OP no.4 to operate the said current account. The bank business is carried out under a system and the bank has to comply with all instructions/guidelines governing, opening of new accounts, as laid down by its head office in conformity with the instructions issued by Reserve Bank of India from time to time. The amount was withdrawn by OP no.4 as authorized agent of the complainants. Rest of the averments have been denied by OPs no.1, 2 and 3 and they prayed for dismissal of the complaint.

3.      OP no.4 filed its separate written reply and contested the complaint of the complainants by raising preliminary objections that complaint is not maintainable and is liable to be dismissed as the same has been filed by a firm seeking adjudication of a commercial transaction carried out by complainant firm in its business as commission agent. The complainants have misguided and misled the Forum and  complaint is liable to be dismissed. On merits, it was pleaded that OP no.4 being real brother of complainant was working as a manager of the Firm and carrying on the business well within the knowledge and authority of the complainants. A new account i.e. limit account no. 266 was opened and the transaction/balance of previous account no. 1685 were transferred into account no. 266 and the authority given under the previous account was also transferred into new account for the same purpose. It was further pleaded that at the time of opening of account no.1685, the complainants executed authority letter dated 19.06.2008 (annexure C-5) authorizing OP no.4 to do all the acts i.e. drawing amounts, signing cheque on behalf of complainant-firm and later on transferred said authority into account no. 266 for the purpose of giving same authority to OP no.4 in new account. The account no. 266 was operated upon by complainants and OP no.4 simultaneously to the knowledge of each other and transaction/cheques were made by both the complainants and OP no.4 for carrying out business transactions of the firm and it was well within the knowledge of the complainants, but they never raised any objection. OP no.4 being the manager of the complainant-firm was operating the business of the firm and was duly authorized to deposit and withdraw the amounts from this account. It was further pleaded that OP no.4 was looking after the business of the complainant-firm and amounts were received from PUNGRAIN and WAREHOUSE for the crops sold by the farmers through the firm and amount of Rs.29.30 lacs was withdrawn by answering OP no.4 for paying them to the farmers. The whole amount was paid by OP no.4 to the farmers and J forms were issued to the farmers in this regard. Rest of the averments have been denied by OP no.4 and he prayed for dismissal of the complaint.

4.      The complainant tendered in evidence affidavit of Ashok Kumar Singla Ex.CW-1/A along with copies of documents Ex.C-1 to Ex.C-14 and closed the evidence thereafter. As against it; OPs no.1, 2 and 3 tendered in evidence affidavit of Sh. Chandvir Singh Chuhan Senior Manager Ex.R-1,2,3/A, copy of cheque dated 06.03.2010 Ex.R-3. OP no.4 tendered in evidence his affidavit Rajinder Kumar Singla Ex.OP4/A, affidavit of Amrik Singh son of Baldev Singh Ex.OP4-1, affidavit of Ajmer Singh son of Gurbaksh Singh Ex.OP4/2, affidavit of Chour Singh son of Sansara Singh Ex.OP-4/3, affidavit of Dhana Singh son of Surjeet Singh Ex OP4/4, affidavit of Gobind Singh son of Teja Singh Ex.OP-4/5, affidavit of Gurdian Singh son of Amarjeet Singh Ex.OP4/6, affidavit Gurdeep Singh son of Gulzara Singh Ex.OP-4/7, affidavit of Labh Singh son of Teja Singh Ex.OP-4/8, affidavit of Ram Singh  son of Sansara Singh Ex.OP-4/9, affidavit of Ranjeet Singh son of Mukhtiar Singh Ex.OP-4/10, affidavit of Ram Singh son of Dalip Singh Ex.OP-4/11, affidavit of Sukhdev Singh son of Nachtar Singh Ex.OP4/12 and closed the evidence thereafter.

5.      We have heard learned counsel for the parties and have also examined the evidence on the record.

6.      Firstly, we have to examine this point, as to whether the complainants are the consumers of the OPs or not. The complainants pleaded in paragraph 20 of the complaint that they are consumers under the CP Act 1986. The OPs denied status of the complainants, as consumer under the CP Act on the ground that the complaint has been filed for getting adjudication of commercial transaction carried out by the complainant firm in its business as commission agents. This specific objection has been raised by OPs no.1 to 3 in para no.1 of the preliminary objections in this regard. Similarly, OP no.4 filed separate written reply raising specific objection that complaint has been filed by complainants seeking adjudication of commercial transaction, carried out by the complainant/firm in business of commission agent. The complainants are pleaded to not consumers under Consumer Protection Act, 1986 in paras no.6 and 7 of the preliminary objections in the written reply filed by OP no.4. This point is sine qua non for adjudication in this case to be determined, as to whether the complainants are consumers of the OPs or not. We have also examined the affidavit of Ashok Kumar Singla/ complainant no.2 on the record, vide Ex.CW-1/A. He has simply stated on oath that in his above affidavit complainants are consumers and nothing beyond that. On the other hand, affidavit of Chandvir Singh Chuhan Senior Manager of Punjab and Sind Bank has been filed on record, vide Ex.R-1-2-3/A. He stated on oath that complainants are not consumers of the OPs. We have also examined the affidavit of Rajinder Kumar Singla Ex.OP4/A, wherein he has specifically pleaded on oath in para no.6 of the preliminary objections in affidavit that the complainants are not consumers of the OPs under Consumer Protection Act. We have to examine this point, whether there is relationship of availing the services of OPs by complainant for earning livelihood exclusively by means of self employment or not. As per own pleadings of the complainants embodied in the complaint, they are dealing in business of commission agency at Sunam since June, 15, 2008. OP no.4 is the real brother of complainant  no.1/Ashok Kumar Singla. We have also examined the documents on the record, Ex.C-1 is half -yearly ledger of Punjab and Sind Bank, Ex.C-2 is application for getting information under RTI Act, Ex.C-3 is reply sent thereto, Ex.C-4 is form dated 19.06.2008 of the complainant firm with OP/Bank, Ex.C-5 is authority letter given by the complainant in favour of OP no.4 to operate the account from previous account no. 1685/- which was converted into new account no. 1733, Ex.C-6 is legal notice sent by the complainants to OPs and Ex.C-7 is reply of legal notice sent by OPs to complainants. Ex.C-8 is letter dated 26.08.2012 addressed to complainant no.2 by Public Information Officer. Ex.C-9 is half-yearly ledger. Ex.C-10 is intimation sent by the complainant no.1 to Branch Manager HDFC Bank Sunam Branch on 09.11.2011 for cancellation of authority letter given in favour of OP no.4. Ex.C-11 is copy of cheque no. 514326 dated 09.11.2011.

7.      As against it; OPs no.1 to 3 tendered in evidence affidavit of Sh. Chandvir Singh Senior Manager of Punjab and Sind Bank Sunam Ex.R-1-3/A. Ex.R-3 is copy of cheque no.8413 dated 06.03.2010. OP no.4/ Rajinder Kumar Singla  tendered in evidence his affidavit Ex.OP4/A, affidavit of Amrik Singh son of Baldev Singh Ex.OP4-1, affidavit of Ajmer Singh son of Gurbaksh Singh Ex.OP4/2, affidavit of Chour Singh son of Sansara Singh Ex.OP-4/3, affidavit of Dhana Singh son of Surjeet Singh Ex OP4/4, affidavit of Gobind Singh son of Teja Singh Ex.OP-4/5, affidavit of Gurdian Singh son of Amarjeet Singh Ex.OP4/6, affidavit of Gurdeep Singh son of Gulzara Singh Ex.OP-4/7, affidavit of Labh Singh son of Teja Singh Ex.OP-4/8, affidavit of Ram Singh  son of Sansara Singh Ex.OP-4/9, affidavit of Ranjeet Singh son of Mukhtiar Singh Ex.OP-4/10, affidavit of Ram Singh son of Dalip Singh Ex.OP-4/11, affidavit of Sukhdev Singh son of Nachtar Singh Ex.OP4/12 and J Forms issued by the complainants for marketing their crops.

8.      From appraisal of above referred evidence on the record, we have come to this conclusion that complainants are not proved to be consumers of the OPs, as defined under Section 2(i)(d) of Consumer Protection Act, 1986. The complainants have been dealing in the business of commission agency and various affidavits of persons, as referred to above duly submitted with J Forms have proved this fact that complainants have been dealing in commercial transactions for generating profits by means of commission agency. The complainants were earlier a partnership firm and thereafter converted into sole proprietorship concern and cash credit limit was availed by the complainants for huge amount for carrying on its business for commercial purposes. The Consumer Protection Act has been enacted by the legislature for better protection of the interest of the consumers only. The primary design of this act is to prevent exploitation of the consumers by the big business houses only. The definition of Consumer has been provided under Section 2(i)(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 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.

 

It is, thus, axiomatic from perusal of above section and explanation appended with it that for the purposes 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. There is neither any specific pleading nor any proof by the complainants that they availed the services exclusively for the purpose of earning the livelihood exclusively by means of self employment. The essential ingredients, which bring the case out of the purview of commercial purposes, has not been pleaded and proved on record by the complainants in this case. Services hired for commercial purposes or goods bought for commercial purposes are outside the province of Consumer Protection Act, 1986.

9.      In the absence of specific pleading that complainants hired the services or availed them exclusively for the purpose of earning livelihood by means of self- employment, complainants cannot be held to be consumers. This complaint could have been competent before Consumer Forums, had it been proved in the pleadings and proof that complainants bought goods for consideration or availed services exclusively for the purpose of earning the livelihood exclusively by means of self employment.  Even otherwise, the complainants are commission agent's establishment and deal in business for sole purpose of generating profits. There is, thus, weightage in the submission of counsel for OPs that complainants are not proved to be consumers under CP Act in this case. The arguments of counsel for the complainants to the contrary is not accepted by us in this case.

10.    Once, we have come to the conclusion that complainants are not proved to be consumers under Section 2(i)(d) of the CP Act, 1986, therefore, we have no jurisdiction to further proceed with the matter. The complainants could seek redressal of the grievances before competent court only. This Forum lacks jurisdiction to try the complaint and hence dismiss the complaint being beyond the purview of the CP Act by leaving the complainants at liberty to avail the remedy for redressal of its grievances before the competent Forum of law. The complainants could avail the benefit of provisions of Section 14 of the Limitation Act, 1963 in this regard before competent forum.

11.    In the light of our above discussion, the complaint filed by complainant is hereby dismissed without any order as to costs

12.    Arguments in this complaint were heard on 10.01.2017 and the order was reserved. Now the order be communicated to the parties.

13.    The complaint could not be decided within the statutory period due to heavy pendency of court cases.

 

                                                                          (J. S. KLAR)

                                                             PRESIDING JUDICIAL MEMBER

 

 

                                                                              (J.S GILL)

                                                                                MEMBER

 

                                                         

                                                                              (H.S.GURAM)

                                                                                 MEMBER

 

January 12,   2017                                                         

(ravi)