Punjab

StateCommission

A/710/2016

Axis Bank Ltd. - Complainant(s)

Versus

Pushpa Jindal - Opp.Party(s)

Pardeep Sharma

25 Sep 2017

ORDER

                                                               FIRST ADDITIONAL BENCH

 

 

STATE  CONSUMER  DISPUTES  REDRESSAL COMMISSION,      PUNJAB

          SECTOR 37-A, DAKSHIN MARG, CHANDIGARH.

 

                   First Appeal No.710 of 2016

 

 

                                                          Date of Institution: 16.09.2016

                                                          Order Reserved on : 20.09.2017

                                                          Date of Decision   : 25.09.2017

 

 

1.      Axis Bank Ltd., SCO 30-31, Guru Ram Dass, Divine Tower,    Opposite Tehsil Complex, Ladowali Road, Jalandhar through          its Manager/Authorized Signatory.

 

2.      AXIS Bank Ltd., 5th Floor, Solaris Opposite Landed T Gate No.        6, Saki Vihar, Mumbai, through its Authorized Officer.

 

                                                Appellants/Opposite parties no.2 &4

                 Versus

 

 

1. Pushap Jindal, s/o Baij Nath Jindal, R/o 36, Ice Fields Road, Brampton, Ontario, Canada L6R3 G8.

 

                                                Respondent no.1/Complainant

 

2. Capital Local Area Bank, Sultanpur, Lodhi District Kapurthala, through its Manager/Authorized Signatory.
3. Capital Local Area Bank, head office, Head Office, situated at 3td Floor, 37, G.T Road, Jalandhar

 

 

                              Respondent no.2 &3/Opposite parties no.1 and 5

 

 

                                           

First Appeal against order dated 09.08.2016 passed by the District Consumer Disputes Redressal Forum,  Jalandhar.

 

Quorum:-

 

          Shri J. S. Klar, Presiding Judicial Member.

            Smt.Surinder Pal Kaur, Member

 

Present:-

 

          For appellants                 : Sh.Pardeep Sharma, Advocate

          For respondent no.1      : Sh. Piyush Bansal, Advocate

          For respondents no.2&3  : Sh. Kiran Kumar, Advocate

 

 

J.S KLAR, PRESIDING JUDICIAL MEMBER :-

         

          Challenge in this appeal is to order dated 09.08.2016 of District Consumer Disputes Redressed Forum Jalandhar, directing the appellants to pay a sum of Rs. 1,12,500/- to respondent Pushpal Jindal of this appeal in his account within one month from receipt of copy of order, failing which to pay interest @ 9% p.a. The appellants are further directed to pay cost of Rs. 3000/- to him. The appellants of this appeal are opposite parties no.2 and 4 in the complaint and respondent no.1 of this appeal is complainant in the complaint and respondents no.2 and 3 of this appeal are opposite parties no.1 and 5 in the complaint and they be referred as such, hereinafter for the sake of convenience. OP no.3 has not been impleaded as party by the appellants in the appeal.

2.      The complainant has filed complaint U/s 12 of The Consumer Protection Act, 1986 (in short, "the Act") against OPs on the averments, that he is non-resident Indian and visited India in March 2014 for purchasing property. He got wire transfer of Rs.1,25,000/- Canadian dollars from his Canadian Bank i.e. Bank of Motreal to his local bank  having NRI account with Capital Local Area Bank Ltd i.e. OP No.1. He contacted his local bank/OP no.1 for getting swift code and other details  from it, which were sent in his bank in Canada. Canadian dollars were transferred by the bank of Montreal Canada, to OP no.2, which further transferred the same to their local branch i.e. OP no.2 at Jalandahr. OP no.1 did not have forex account and funds were wire transferred through Axis Bank Ltd and OPs no.2 and 4 acted as agents of OP no.1. Bank of Motreal Canada and transferred the funds on 14.03.2014 with reference no. 0470-91946, which was received by OP no.4 on 17.03.2014, which further transferred it to their branch at Jalandhar/OP no.2, which was confirmed by OPs no.2 and 4, as per email to the Canadian Bank. OPs no.2 and 4 delayed for asking disposal instructions and confirmation from OP no.1 for two days, because OP no.2 demanded the disposal instructions and confirmations from OP no.1, vide email on 19.03.2014, which was provided by OP no.1, vide email on 20.03.2014 after delay of one day and funds were transferred in the account of complainant by OP no.2 on 21.03.2014 after delay of one day more and delay of four days took place. The money was wire transferred on 17.03.2014, but was credited to the account of the complainant on 21.03.2014 with four day's delay. OP no.1 provided disposal instructions on the next day i.e. 20.03.2014 and OP no.2, instead of transferring the funds on the same day, transferred the same to the account of the complainant on 21.03.2014. There was delay of four days due to negligence of OPs. The exchange rate fell substantially between 17.3.2014 to 21.03.2014 from INR Rs.55.24 to INR Rs. 54.55. The complainant suffered loss of Rs. 1 lac. OPs adopted unfair trade practice besides negligence in this regard. Even on 21.03.2014, a low exchange rate was applied, while converting Canadian Dollars 1,25,000 to Indian rupees of Rs.66,93,254.34 paise, whereas rate of Canadian Dollars on that day was INR Rs.54.55 paisa, whereby keeping 90 paisa spread, whereas all other international  bank, the spread was usually about 10-15 paisa, due to which the complainant suffered loss of Rs.1,12,500/-. The complainant sent several email to OPs. OPs kept on shifting liability of each other to avoid their own liabilities only. The complainant has, thus, filed complaint against OPs for compensation of Rs.2,12,500/- for monetary loss suffered by him due to delay of four days in crediting the amount and additionally exchange rate fell from Rs.55.24 to Rs.54.55 in this delayed period causing further loss to complainant. The complainant also prayed for Rs.2 lac as compensation for deficiency in service and unfair trade practice and Rs.2 lac as compensation  for mental harassment and Rs.21,000/- as costs of litigation.

3.      Upon notice, OP no.1 and 5 filed separate written reply and contested the complaint of the complainant on preliminary objections that complainant is estopped by his act and conduct from filing the complaint.. The complaint has been presented with incorrect facts and it cannot be decided in summary manner by Consumer Forum, as it requires elaborate evidence for its adjudication. On merits, OPs no.1 and 5 pleaded that complainant is NRI and with NRI account with OP no.1, vide account no. 019235000005 and he does not have Forex Account and bank carries limited foreign exchange related business through its professional tie ups with various banks like Axis Bank and HDFC Bank etc. Whatever information was sought by the complainant, the same was provided by OP no.1. Certain documents were called from OP no.2 by OP no.1, vide email dated 19.03.2014 for processing the inward remittance of Canadian dollars, as detailed in the email dated 19.03.2014. OPs no.1 and 5 acted diligently and procured the necessary information/documents from relevant quarters and responded to the email on 20.03.2014 at 11.46 am, which was provided to OP no.2. OP no.2 vide correspondence has further contended that requisite details at the time of remitting the money at Canada were not furnished and different mode of remittance was used other than normal NOSTRO channel. OP no.1 acted as loco parentis to complainant and pursued the matter with OP no.2. This fact was denied that delay took place due to negligence of OPs no.1 and 5. OP no.1 & 5 denied any negligence or unfair trade practice on their part by pleading that whatever remittance was received by OP no.1 from OP no.2 after conversion, the same was credited in the account of the complainant. OP no.1 and 5 prayed for dismissal of the complaint.

4.      Opposite party no.2 and 4 filed separate written reply and contested the complaint of the complainant vehemently. It was averred that OP no.2 is maintaining bank account of OP no.1.OPs no.2 and 4 having bilateral arrangement with Bank of Montreal in Canada to process cross border remittance to beneficiary account. As per process, the credited amount received from Bank of Montreal was transferred to beneficiary account after receiving the required documents/disposal instructions from the beneficiary bank. The credit which was received by Axis Bank for transfer was instructed via swift message, which contained the complete payment details and instructions, which was to be given by Bank of Montreal. The wire transfer was made by Bank of Montreal for 1,25,000 Canadian Dollars and same was reflected into Nostro Account of Axis Bank on 18.03.2014. As soon as, the Central Remittance Hub of Axis Bank Ltd at Mumbai received the above said credit, it sent swift message to Bank of Montreal, on the same i.e. 18.03.2014 for obtaining disposal instructions and confirmation from the beneficiary bank that required statutory compliance and KYC norms have been adhered to, as per the  regulatory guidelines of RBI and as per the provisions of FEMA.  The said transaction seems to be commercial in nature.  OP no.1 furnished the requisite details and annexures as required on 20.03.2014. Soon on the next i.e. 21.03.2014, the Axis Bank CRH Mumbai immediately credited 1,25,000 Canadian Dollars in the account of the complainant, which was maintained by OP no.1. OPs no.2 and 4 denied any delay on its part. Rest of the averments have been denied by OPs no.2 and 4 and they prayed for dismissal of the complaint.  Case against OP no.3 was withdrawn by complainant by getting his complaint dismissed against it only in District Forum, vide order dated 10.03.2015.

5.      The complainant tendered in evidence his affidavit Ex.CW1-A along with copies of documents Ex.C-1 to Ex.C-21. As against it; OPs no. 1 and 5 tendered in evidence the affidavit of  Sahil Vijay Deputy Vice President Treasury Capital Local Area Bank Ltd Ex.OP-1/A   along with copies of documents Ex.O-1 to Ex.O-4 and closed evidence. OPs no.2 and 4 tendered in evidence affidavit of Rajiv Sharma Branch Manager Axis Bank Ltd Ex.OP2&4/A along with copies of documents Ex.OP2/1 to Ex.OP2/6 and closed the evidence. On conclusion of evidence and arguments, the District Forum Jalandhar accepted the complaint of the complainant against OPs no.2 and 4 only by virtue of order dated 09.08.2016. Dissatisfied with the order of the District Forum Jalandhar dated 09.08.2016, opposite party nos.2 and 4 now appellants, carried this appeal against the same.

6.      We have heard learned counsel for the parties and also examined the record of the case.

7.      Admittedly, the complainant is non-resident Indian to purchase the property in India. He obtained got wire transfer of 1,25,000 of Canadian Dollars from his Canadian Bank to his local bank with NRI account at OP no.1. OP no.1 gave swift code, which was sent by the complainant to Bank of Montreal Canada. Then, Canadian Dollars were transferred by Bank of Montreal Canada to OP no.2 Axis Bank Limited, Mumbai, which further transferred the same to their local branch i.e. OP no.2 Axis Bank Limited Jalandhar, as OP no.1 did not have forex account, hence funds were wire transferred through Axis Bank Limited because there was mutual arrangement with OP no.1, OPs no.2 and 4 in this regard. Funds were transferred by Bank of Montreal on 14.03.2014, vide reference no. 047091946, which was transferred to their branch at Jalandhar/OP no.2. The grievance of the complainant is that delay of four days in release of funds to him on the ground of asking disposal instructions and confirmations from OP no.1 for two days, which were provided by OP no.1 through email on 20.03.2014 after delay of one day and funds were transferred to the account of the complainant by OP no.2 on 21.03.2014 with one day's more delay. The money was transferred to the account of the complainant on 21.03.2014 despite the fact that it was wire transferred on 17.03.2014. OP no.2 had not asked for  disposal instructions from OP no.1 for two day's due to the negligence. OP no.2 instead of transfer of funds on the same day, transferred them to account of the complainant on 21.03.2014 by causing delay. The exchange rate fell substantially between 17.03.2014 to 21.03.2014 from INR Rs.55.24 to INR Rs.54.45 causing further loss to the complainant. Even low exchange rate was applied on 21.03.2014, while converting Canadian Dollars 1,25,000 to Indian rupees of Rs.66,93,254.34 paise, whereas rate of Canadian Dollars on that day was INR Rs.54.55 paisa, whereby keeping 90 paisa spread, whereas all other international  bank, the spread was usually about 10-15 paisa. The complainant alleged loss of Rs.1,12,500/- suffered by him due to negligence of OPs. OP no.1 pleaded that it has no forex account and  carries limited foreign exchange related business through its professional tie ups with various banks like Axis Bank and HDFC Bank etc. It was denied that OPs no.2 and 4 are acting agents of OPs no.1 and 5, as alleged by the complainant. Vide email dated 19.03.2014, certain documents were called/demanded by OP no.2 from OP no.1 for processing the inward remittance of Canadian Dollars 1,25,000 in favour of complainant. Disposal instructions from the customer are to be duly counter signed by bank official with stamp. OP no.1 was requested to provide MHA/FCRA. Both hard copies and email scanned copy of disposal instructions were required. The case of OPs no.2 and 4 is that complainant is consumer of OP no.1. OP no.2 maintained bank account of Capital Local Area Bank i.e. OP no.1. OPs no.2 and 4 having bilateral arrangement with Bank of Montreal to process cross border remittance to beneficiary account. As per process, the credit received from Bank of Montreal was transferred to the beneficiary account after receiving the required documents/disposal instructions from the beneficiary bank. The credit was received by Axis Bank for transfer and was instructed via swift message, which contained the complete payment details and instructions, were to be given by Bank of Montreal. In the present case, the wire transfer was made by Bank of Montreal  for 1,25,000 Canadian Dollars and same was reflected into the Nostro Account of Axis Bank on 18.03.2014. As soon as, the Central Remittance Hub of Axis Bank Limited at Mumbai received the above said credit, it sent swift message to Bank of Montreal on the same day i.e. 18.03.2014 for obtaining disposal instructions and confirmation from the beneficiary bank that requisite statutory compliance and KYC norms have been adhered to, as per the regularity guidelines of RBI and as per the provisions of FEMA etc, which were necessary to be complied with. OP nos. 2 and 4 alleged that as per swift message sent by Bank of Montreal to Axis Bank. This transaction seems to be commercial in nature. OP no.1 furnished the requisite details and annexures, as required on 20.03.2014. On 21.03.2014 the Axis Bank CRM Mumbai immediate credited 1,25,000 Canadian Dollars in the account of complainant, which was maintained by OP no.1. OPs no.2 and 4 submitted that there is no delay of any kind whatsoever on the part of OPs no.2 and 4. The emails and communication between Axis Bank and OP no.1 and Bank of Montreal Canada transpired. Counsel for OPs no.2 and 4 admitted that it was binding on OPs no.2 and 4 to give/remit the money i.e. foreign exchange at the rate, which was prevalent in the market.  The payments/cross boarder credits were to be made after deducting service tax etc. OPs no. 2 and 4 denied that on 21.03.2014, a very low exchange rate was applied while converting Canadian Dollars 1,25,000 to Indian rupees of Rs.66,93,254.34 paisa at the rate of only Rs.53,546/-, whereas the rate of Canadian Dollar on that day was Rs.54.55 as alleged by the complainant, whereby keeping about 90 paisa spread, due to which complainant suffered loss of Rs.1,12,500/-. OPs no.2 and 4 alleged that before making the payment, the exchange rate was duly informed to the beneficiary and to his bank.

8.      From the entire above discussion, we have come to the conclusion that the complainant got wire transfer of 1,25,000 Canadian Dollars from his Canadian Bank i.e. Bank of Montreal, Canada to his local bank having account of complainant i.e. OP no.1. Consequently, Bank of Montreal, Canada transferred 1,25,000 Canadian Dollars to OP no.4, which further transferred the same to OP no.2 bank at Jalandhar, as OP no.1 did not have forex account. OP no.1 has arrangement with OP no.2 regarding transfer of foreign exchange through wire transfer. The bank of Montreal, Canada transferred the funds on 14.03.2014 by reference no. 0470-91946, which was received by OP no.4 on 17.03.2014 late in the evening.  However, the same was reflected in the Nostro Account of Axis Bank Limited on 18.03.2014. As soon as, the Central Remittance Hub of Axis Bank Limited at Mumbai received the above said credit, it sent swift message to Bank of Montreal on the same day i.e. 18.03.2014. 9.     From analysis of above referred evidence on file and discussions, it is established that complainant sought wire transfer of 1,25,000 canadian dollars from bank of Montreal at Canada to his local bank in his account maintained by OP no.1/bank. The amount of 1,25,000 dollar was remitted by the bank of Montreal to OP no.4, which further transferred it to OP no.2 bank at Jalandhar because OP no.1 bank did not have forex account. OP no.1 has arrangement with OP no.2 regarding transfer of foreign exchange through wire transfer. The bank of Montreal at Canada transferred the funds on 14.03.2014, vide reference no. 0470-91946, which was received by OP no.4 on 17.03.2014. The same were shown in the nostro account of Axis Bank Limited on 18.03.2014, vide swift message received by Axis Bank Ex.OP-2/1 because Central Remittance Hub of Axis Bank Limited at Mumbai received the  above said credit. OP no.1 has no forex account of complainant and it has tie up with Axis Bank i.e. OPs no.2 and 4 for foreign remittance. Vide email dated 19.03.2014 OP no.2 requisitioned from OP no.1, certain documents /disposal instructions for processing the inward remittance of Canadian dollars 1,25,000 favouring complainant Pushap Jindal in accordance with RBI purpose codes and declaration from beneficiary declaring the purpose of remittance and also MHA/FCRA. OP no.2 after verifying the transaction and following the requisite procedure remitted the  amount of Canadian dollars in Indian currency INR Rs.66,93,254. 34 paisa @ Rs.53,546 per Canadian dollar. The centralized Remittance Hub of OP no.4 immediately sent swift message to bank of Montreal on the same day i.e. 18.03.2014 Ex.OP2/2 for obtaining disposal instructions and confirmation from the beneficiary bank and instructed OP no.2 i.e. Axis Bank branch at Jalandhar for getting disposal instructions and confirmation for requisite compliance and KYC norms were adhered to. Requisite information was called from OP no.1 on 19.03.2014, which was supplied by it for disposal instructions on its letterhead. OP no.2 received information on 20.03.2014 and on 21.03.2014 for remittance of Rs.1,25,000. OP no.2 confirmed the facts from OP no.1 as well as beneficiary. OPs no.2 and 4 have to follow the complete procedure to ensure that there was no illegality in the transaction of foreign exchange. Such delay is taken for examining the legality of transactions under FEMA/RBI instructions. On this point, we concur with the findings of the District Forum that there was not unnecessary delay on the part of OP in remitting 1,25,000 Canadian dollar  to the account of the complainant at OP no.1/Bank.

10.    The first submission advanced before us is that this is commercial transaction and if complainant is consumer or not. The complainant in his capacity received the remittance in his individual account. The complainant is neither a private limited company nor partnership concern. There is no tangible document on the record that complainant dealt in commercial activities. The counsel for the appellants referred to law laid down in Sushma Goel vesus Punjab National Bank, reported in 2011(2) CPJ 270 NC, this authority related to the case where money was transferred from account of the complainant through cheques in someone else's account, where the transaction was decidedly commercial one. The cited authority is not found to be applicable in this case.

11.    The grievance of the complainant is that exchange rates plummeted and he suffered loss. The rate of Canadian dollar in Indian currency was Rs.54.55 on 21.03.2014, whereas OP applied rate Rs.53.546 per Canadian dollar. OPs no.2 and 4 failed to lead any cogent evidence that rate of Canadian dollar at the time of conversion was Rs.53.546 on 21.03.2014 and not 54.45. The complainant has proved on record that the rate of Canadian dollar on that day i.e. 21.03.2014 was INR Rs. 54.55 per Canadian dollar, as per list Ex.C-1. OPs no.2 and 4 has paid 90 paisa less per Canadian dollar to the complainant as a result of which complainant suffered a loss of Rs.1,12,500/- with regard to conversion of Canadian dollars of 1,25,000 to Indian rupees, which was remitted by OPs no.2 and 4 into the account of complainant in OP no.1 Bank. Counsel for OPs no.2 and 4 now appellant relied upon clause 3.2.6 of Remittance Agreement  that Axis Bank will convert funds at the FX Rate on the payment date and such post-conversion funds will then be paid to the beneficiary in INR. Foreign exchange revenue will be retained in CAD. No such rate is recorded in it. Reliance was placed on clause 3.5 that deduction of relevant fee and service charges correctly made by OPs now appellants from the remittance amount. No such rate is recorded in it, to which appellants are entitled on the basis of this agreement. We find that District Forum rightly appreciated the controversy and held that OPs no.2 and 4 now appellants have paid an amount of Rs.1,12,500/- less than actual due to complainant at the time of conversion of currency. We do not find force to disagree with the finding of District Forum. The person who remitted the money might be doing any type of work and if money is legally permissible, it cannot be withheld to be remitted to complainant and complainant is not reflected to be outside the CP Act. Consequently, we find any force in the contention of the appellants on this point that complainant is not consumer.

12.    As a result of our above discussion, we find no merit in the appeal and same is hereby dismissed by affirming the order of District Forum Jalandhar dated 09.08.2016 under challenge in this appeal.

14.    The appellant no.2 had deposited the amount of Rs.25,000/-with this Commission at the time of filing of the appeal.  This amount with interest, which accrued thereon, if any, be  remitted by the registry to the complainant/respondent no.1 of this appeal by  way  of a crossed   cheque /  demand draft   after  the expiry of 45 days. Remaining amount, if any shall be paid to complainant by the appellants, as per order of District Forum within 45 days from receipt of copy of this order.  

15.    Arguments in this appeal were heard on 20.09.2017 and the order was reserved. Certified copies of the order be communicated to the parties as per rules.

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

 

                                                                          (J. S. KLAR)

                                                          PRESIDING JUDICIAL MEMBER

                    

 

                                                               (SURINDER PAL KAUR)

                                                                               MEMBER

September 25, 2017                                                           

(ravi)