Punjab

Ludhiana

CC/19/573

Munish Kumar - Complainant(s)

Versus

Punjab National Bank - Opp.Party(s)

Kunal Vohra Adv.

21 Nov 2023

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, LUDHIANA.

                                                Complaint No:573 dated 12.12.2019.                                                         Date of decision: 21.11.2023.

 

Munish Kumar Dhir son of Sh. Vijay Inder Prakash Dhir, R/o.C-172, Focal Point, Phase-V, Dhandari Kalan, Ludhiana.                                                                                                                                            ..…Complainant

                                                Versus

1. The Managing Director, Punjab National Bank, Head Office Plot No.4, Sector-10, Dwarka, New Delhi.
2. Punjab National Bank, Feroze Gandhi Market, Ludhiana through its Branch Manager.
3. Sh. J.S. Pawar, the then Chief Manager, Punjab National Bank, Feroze Gandhi Market, Ludhiana.
4. Jagjit Singh Ghumman son of Sh. Raghbir Singh Ghumman, c/o. Jagjit Driving, R/o.B-20-1533, News Prem Nagar, Adjoining Las Vegas, Ludhiana.      
5. Amit Jain son of Sh. Rishabh Kumar Jain, C/o. M/s. S.K.A. Enterprises, B-11-2040/10-E, Jain Nagar, Shivpuri Road, Ludhiana.                                                                                                         …..Opposite parties 

Complaint Under section 12 of the Consumer Protection Act, 1986.

QUORUM:

SH. SANJEEV BATRA, PRESIDENT

SH. JASWINDER SINGH, MEMBER

MS. MONIKA BHAGAT, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant             :         Sh. Kunal Vohra, Advocate.

For OP1                         :         Exparte.

For OP2                         :         Sh. Damandeep Singh, Advocate.

For OP3                         :         None (Defense of OP3 already struck vide order                                         dated 07.09.2022)

For OP4 and OP5          :         Complaint against OP4 and OP5 stands already                                           dismissed vide order dated 07.09.2022.

 

ORDER

PER SANJEEV BATRA, PRESIDENT

1.                Briefly stated, the facts of the case are that the complainant along with his wife Smt. Neeta Dhir  has been maintaining joint bank account No.2057009900000033 with Punjab National Bank, Feroze Gandhi Market, Ludhiana. In the year 2016-17, OP3 was Chief Manager with Punjab National Bank, Feroze Gandhi Market, Ludhiana then on 30.12.2016, OP1 to OP3 illegally and arbitrarily debited the amount of Rs.4,00,000/- from his account in connivance with OP4 and OP5 without his knowledge and consent. The complainant further stated that again on 16.02.2017, OP1 to OP3 in connivance with OP4 and OP5 deducted an amount of Rs.4,00,000/- from his account without his knowledge and consent. According to the complainant, he is old retired person and usually lives in Gurgaon and very rarely visits Ludhiana and OPs in connivance with each other have taken advantage of the same. The complainant further stated that on 30.03.2017 and 13.04.2017, OP1 to OP3 illegally and arbitrarily in connivance with OP4 and OP5 debited an amount of Rs.3,13,000/- and Rs.3,00,000/- from his bank account without his knowledge and consent. The complainant claimed to have know about said illegal transactions at much later stage when he thoroughly checked his bank statement and then he moved an application to OP1 on 02.04.2019 but with no response. The complainant moved applications dated 10.06.2019, 15.09.2019 and 30.10.2019 to OP1 for returning his money but OP1 rejected his claim alleging that the transactions have been given by the complainant to OP1 to OP3. The complainant moved an application to Banking Ombudsman on 10.07.2019 followed by reminder dated 24.09.2019 and 14.10.2019, which is pending for enquiry. The complainant sent a legal notice dated 07.11.2019 upon the OPs for returning the amount of Rs.14,13,000/- and upon receipt of the legal notice, the OPs approached the complainant and after admitting their guilt, assured the complainant that they will make the payment within a week. According to the complainant, the OPs returned the amount of Rs.10,13,000/- but an amount of Rs.4,00,000/- is due against the OPs which has not been paid by the OPs. In the end, the complainant prayed for issuing direction to the Ops to pay the amount of Rs.4,00,000/- along with interest and compensation of Rs.2,00,000/- and litigation costs.

2.                Initially, none turned up for OP1 to OP3 despite service of notice through registered post dated 06.08.2020 and as such, OP1 to OP3 were proceeded against exparte vide order dated 27.10.2020.  Thereafter, OP2 and OP3 filed application for permission to join the proceedings, which was allowed vide order dated 29.07.2021. However, OP3 did not file written statement despite availing sufficient opportunities and as such, defense of OP3 was struck of vide order dated 07.09.2022.

                   Even the complaint against OP4 and OP5 was dismissed for non-filing of correct address by the complainant, vide order dated 07.09.2022.

3.                OP2 filed written statement and assailed the complaint by taking preliminary objections on the ground of maintainability of complaint; suppression of material facts, complaint being time barred; bad for mis-joinder and non-joinder of necessary parties etc. OP2 stated that the complainant is not a consumer as he had obtained OD limit from them for commercial purposes and is using the said credit facilities for commercial purposes.

                   On merits, OP2 reiterated the crux of averments made in the preliminary objections and facts of the case. OP2 averred that the complainant is having dealings with OP4 and OP5 and the said amount was transferred at the instructions of the complainant. The complainant is having SMS-alert facility and SMS with regard to transfer of amount was delivered to him on his registered mobile number and as such, he was aware of the facts of transfer of the above said amount. OP2 further averred that an amount of Rs.15,25,000/- against the transfer of amount of Rs.14,13,000/- has been duly credited to the account of the complainant from same accounts which shows business dealings of the complainant with OP4 and OP5. Moreover, the complainant has intentionally concealed the fact regarding other transactions made through cheques. According to OP2, all the transactions were done at the instructions of the complainant. Rather is the complainant it is the complainant who in connivance with OP4 and OP5 committed fraud with OP2 regarding which a complaint dated 27.12.2019 has been filed with Commissioner of Police, Ludhiana against complainant as well as OP4 and OP5.  OP2 has denied that there is any deficiency of service and has also prayed for dismissal of the complaint.

4.                In support of their claim, complainant No.1 tendered his affidavit Ex. CA in which he reiterated the allegations and the claim of compensation as stated in the complaint. The complainant also tendered documents Ex. C1 is the copy of account statement, Ex. C2 to Ex. C5 are the copies of letters dated 02.04.2019, 10.06.2019, 15.09.2019, 30.10.2019 of the complainant, Ex. C6 to Ex. C8 are the copies of letters dated 10.07.2019, 24.09.2019, 14.10.2019 written to Banking Ombudsman, Chandigarh, Ex. C9 is the copy of legal notice dated 07.11.2019, Ex. C10 to Ex. C14 are the postal receipt, Ex. 15 is the certificate U/s.65-B of Indian Evidence Act of Munish Kumar Dhir, Ex. C16 is the copy of Email dated 06.11.2019 and closed the evidence.

5.                On the other hand, counsel for OP2 tendered affidavit Ex. RA of Sh. Naveen Behal, Senior Manager of OP2 bank along with documents Ex.  R1 to Ex. R4 are the copies of transaction details, Ex. R5 is the copy of complaint dated 27.12.2019 moved to Commissioner of Police, Ludhiana, Ex. R6 is the copy of postal receipt and closed the evidence.

6.                We have heard the arguments of the counsel for the parties and also gone through the complaint, replication, affidavit and annexed documents and written reply along with documents produced on record by both the parties.

7.                Admittedly, the complainant along with his wife Smt. Neeta Dhir is holder of account No.2057009900000033 being maintained with OP2. The counsel for the complainant contended that OP1 to OP3 unauthorizedly debited an amount of Rs.4,00,000/- on 30.12.2016, Rs.4,00,000/- on 16.02.2017, Rs.3,13,000/- on 30.03.2017 and Rs.3,00,000/- on 13.04.2017 i.e. total Rs.14,13,000/- and out of which Rs.10,13,000/- was reversed when the complainant persuaded his case before the Banking Ombudsman, Chandigarh. The counsel for the complainant further contended that Rs.4,00,000/- left to be credited into his account by the OPs as well as also claimed interest.

8.                On the other hand, the counsel for the OP2 stated that an amount of Rs.15,25,000/- was transferred as against Rs.14,13,000/-. In fact, the complainant in connivance with OP4 and OP5 has committed fraud with the bank for which a complaint before Commissioner of Police, Ludhiana is still pending for inquiry. The counsel for OP2 further contended that the complainant is not a consumer of OP2.

9.                Before adverting to the merits of the case, it is desirable to adjudicate whether the complainant is consumer within meaning of Section 2(7) of the Consumer Protection Act, 2019 or not. The bare provision reads as under:-

       “Consumer” means any person who:-

(i) of the Consumer Protection Act, 2019 the consumer means a 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 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 service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service 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 service for any commercial purpose.”

Explanation -For the purposes of this clause -

(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 (b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

                   Although statutory definition of “consumer” is wide and is having efficacious coverage but each case has to be determined on the basis of peculiar facts and circumstances. In Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 and in Sanjay Bansal Vs Vipul Ltd. And others 2019(15) SCC 568 whereby the Hon’ble Supreme Court of India held the word “self employment” and “commercial purpose” are matter of fact and these to be decided on the basis of evidence.

10.              Admittedly, the complainant along with his wife is maintaining an account No.2057009900000033 with OP2. Both the parties have attached the statements of account of different periods, perusal of which shows that it is a current account having facility of overdraft. The entries which have been stated to be made unauthorized were actually made by availing overdraft facility by the complainant in favour of the beneficiary including OP4 and OP5. The complainant did not divulge their correct address and the complaint was dismissed against OP4 and OP5 for non-filing of their correct address. This gives credence to the version of OP2 that these transactions were made on the verbal instructions of the complainant. The connivance of the then bank officials including the bank Manager OP3with the complainant is not ruled out. The complainant has concealed the nature of the account in his complaint as well as in the affidavit. It is not the case of the complainant that the account was being maintained by him for earning his livelihood. It appears from the transactions that the complainant had been advancing huge loan amounts to the persons by using overdraft facility in order to unjustly enrich himself. In fact, such dealings of the complainant were apparently business to business transactions and overdraft facilities were availed to augment profit generation activity. The Hon’ble Supreme Court in its judgment Shrikant G. Mantri Vs Punjab National Bank in Civil Appeal No.11397 of 2016 vide its decision dated 22.02.2022 made the following observations:-

“33. It could thus be seen that this Court has clearly held that the idea of enacting the said Act was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. It has been held that the entire Act revolves round the consumer and is designed to protect his interest. It provides for “business ­to­ consumer” disputes and not for “business­ to­ business” disputes. It has been held that forums/commissions provided by the said Act are not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.

47. In the present case, the Commission has come to a finding that the appellant had opened an account with the respondent­ Bank, took overdraft facility to expand his business profits, and subsequently from time to time the overdraft facility was enhanced so as to further expand his business and increase his profits. The relations between the appellant and the respondent is purely “business to business” relationship. As such, the transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self­ employment”. If the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes.”

 So applying the ratio of above cited case, the complainant is not a consumer of the opposite parties within purview of Section 2(7) of the Consumer Protection Act and as such, the complaint is liable to be dismissed and the same is hereby dismissed.

11.              As a result of above discussion, the complaint is hereby dismissed being devoid of any merits. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.

12.              Due to huge pendency of cases, the complaint could not be decided within statutory period.

 

(Monika Bhagat)          (Jaswinder Singh)             (Sanjeev Batra)

Member                         Member                              President        

 

Announced in Open Commission.

Dated:21.11.2023.

Gobind Ram.