30.10.2015
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the OPs challenging the judgment and order dated 31.12.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C. No. 225 of 2013, directing the OPs to refund, within one month from the date of the order, to the Complainant Rs. 12,04,200/- with interest @ 10% p.a. with effect from 20.7.2012 till payment in full. The Ops were also directed to pay Rs. 1,00,000/- for ‘agony financial loss in his trade’, Rs. 50,000/- as punitive damages and Rs. 10,000/- as cost, apart from payment of penal interest @ Rs. 500/- per day, which, if collected, shall be deposited with the State Consumer Welfare Fund. The OPs were further directed for payment of penalty of Rs. 10,000/- in case of their further reluctance in payment of the amounts mentioned above.
Brief facts of the case are that the Respondent/Complainant used to carry on a ‘business of export and import’ under licence from Ministry of Commerce & Industry, Government of India, ‘for earning his livelihood by means of self-employment and he has no other source of income’ as averred in the Petition of Complaint. In course of carrying on such business the Respondent/Complainant had deposited an amount equivalent to US$ 21600 with the Appellants/OPs-Bank with the instruction for remitting the same to National Bank Limited, Bangladesh, against the payment of bank charges of Rs. 2,783/- for import of a consignment of ‘Duster and similar cleaning cloths’ as per Proforma Invoice No. RT/KRCU/02/2012 dtd. 18.7.2012, but the Appellants/OPs-Bank did not remit the same within the expected time and for such failure on the part of the Appellants/OPs-Bank in remitting the said amount within the expected time, the recipient of the said amount, i.e. M/s. KRC Univerce, Bangladesh, cancelled the transaction of the import concerned. Consequently, the Respondent/Complainant by a letter dated 17.12.2012 requested the Appellants/OPs-Bank for returning the amount in question to the Respondent/Complainant. After issuance of such letter the Respondent/Complainant received in reply a letter dated 24.9.2012 from the Appellants/OPs-Bank to the effect that the amount in question was credited in the ‘VOSTRO’ account of National Bank Ltd., Bangladesh for onward credit to the beneficiary, M/s. KRC Univerce, Bangladesh. Then the Respondent/ Complainant, by several letters to the Appellants/OPs-Bank, demanded refund of the unauthorized remittance of the amount in question, but without success. For such failure on the part of the Appellants/OPs-Bank to remit the money in question within the expected time as also for their failure to not refund the money when the Respondent/Complainant so requested after cancellation of the import transaction in question due to non-remittance of the money in time by the Appellants/OPs-Bank, the Respondent/Complainant moved the Ld. District Forum alleging deficiency in service on the part of the Appellants/OPs-Bank, and the Ld. District Forum passed the impugned order in the manner mentioned at the outset. Aggrieved by such order the OPs have preferred the instant Appeal.
Ld. Advocate for the Appellants/OPs-Bank, in the very beginning, submits that the Ld. District Forum committed error in not appreciating the fact that the transaction in question was related to the Current Account (No. 000605500264) of the Respondent/Complainant and thus connected with commercial purpose, as the transaction of remittance of the money to National Bank Ltd., Bangladesh was related to import of consignment of ‘Duster and Cleaning Cloths’ meant for re-sale, but not for use by the Respondent/Complainant himself to cover the transaction in question under the exclusionary ‘Explanation’ of ‘Commercial purpose’ as appended to Section 2(1)(d) of the Consumer Protection Act, 1986.
The Ld. Advocate further submits that such business-related bank account does not come under the purview of the Consumer Protection Act, 1986. In this connection, the Ld. Advocate has relied on a decision of the Hon’ble National Commission in Subhash Motilal Shah (HUF) Vs. Malegaon Merchants Co-op. Bank Ltd., reported in 2013 (2) CPR 1(NC).
The Ld. Advocate also submits that the Ld. District Forum failed to consider that the Complaint Case in question suffers from non-joinder of party, i.e. National Bank Ltd., Bangladesh, ‘VOSTRO’ account of which was concerned with the complaint.
The Ld. Advocate continues that the delay, if any, in remitting the amount in question to National Bank Ltd., Bangladesh was for an order of injunction dated 11.7.2013 (C.S.No. 113 of 2006) by Hon’ble High Court at Calcutta restraining the Appellants/OPs-Bank from remitting any amount from the account of National Bank Ltd., Bangladesh without leaving a balance therein of US$ 292624 and hence, there was no intentional delay or deficiency in service as alleged on behalf of the Appellants/OPs-Bank.
The Ld. Advocate finally submits that in view of the foregoing facts and circumstances of the case, the instant Appeal should be allowed, the impugned judgment and order be set aside and the Complaint be dismissed.
On the contrary, the Ld. Advocate for the Respondent/Complainant, resisting the aforesaid submission by the Ld. Advocate for the Appellants/OPs-Bank, submits that the transaction in question, even being for commercial purpose, is covered by the ‘Explanation’ appended to the definition of ‘Consumer’ u/s 2(1)(d) of the Consumer Protection Act, 1986 as the transaction was related to earning livelihood by the Respondent/Complainant by means of self-employment. In this connection the Ld. Advocate has referred to the following decisions of Hon’ble Supreme Court and Hon’ble National Commission.
- Standard Chartered Bank Ltd. Vs. B.N.Raman, decided on 14.7.2006 in Civil Appeal No. 2982 of 2006 (Supreme Court);
- M/s. Asia Art Printers Vs. K.P.Dharmaian, reported in 2014(2) CPR 290 (NC);
- Kushal K.Rana Vs. M/s. DLF Commercial Complexes Ltd., reported in 2014 (4) CPR 222 (NC).
The Ld. Advocate continues that the issue of commercial purpose, as raised before this Commission, was not raised before the Ld. District Forum and hence, the same should not be entertained at this appellate stage.
The Ld. Advocate further submits that the failure on the part of the Appellants/OPs-Bank to remit in time the money in question to National Bank Ltd., Bangladesh , which resulted in cancellation by the exporter of Bangladesh the order of import in question and which culminated in financial loss of the Respondent/ Complainant, constitutes deficiency in service as well as unfair trade practice on behalf of the Appellants/OPs-Bank.
The Ld. Advocate finally submits that in view of the submission so put forward and of the decisions referred to, the Respondent/Complainant falls within the definition of ‘Consumer’ as per ‘Explanation’ appended to Section 2(1)(d) of the Consumer Protection Act, 1986 and hence, the impugned judgment and order should be sustained, it being proper and lawful.
In reply to the said submission by the Ld. Advocate for the Respondent/ Complainant, the Ld. Advocate for the Appellants/OPs-Bank submits, that the case on hand being related to resale, is not covered under the ‘Explanation’ appended to Section 2(1)(d) of the Consumer Protection Act, 1986.
We have heard both the sides, considered their rival submissions and perused the materials on records.
The Petition of Complaint and other allied documents connected therewith do not appear to contain any pleading to the effect that the transaction of import from Bangladesh in question was for any purpose other than the purpose of resale, as emphatically contended by the Ld. Advocate for the Appellants/OPs-Bank.
Further, the issue of jurisdiction as arisen out of commercial purpose in the present case, as objected to by the Ld. Advocate for the Appellants/OPs-Bank, can be raised at any stage of proceedings as was settled by the decision of the Hon’ble Supreme Court in Dr. Jagmittar Sain Bhagat Vs. Director, Health Services, Haryana, reported in 2013 (3) CPR 514 (SC).
Furthermore, the use of the phraseology ‘used by him’ in the ‘Explanation’ appended to Section 2(1)(d) of the Consumer Protection Act, 1986, amply clears that the goods involved in resale, as in the present case, is not covered by the ‘Explanation’ appended to the definition of ‘Consumer’ u/s 2(1)(d) of the Consumer Protection Act, 1986 excluding the commercial purpose for a limited purpose of ‘self-employment’. In this connection, reliance is placed on a decision of the Hon’ble National Commission in M/s. NLP Praganics India Ltd. Vs. Indian Bank, decided on 14.7.2014 in Complaint Case No. 158 of 1999, wherein it was observed that the Consumer Protection Act does not provide for ‘business to business dispute’ and the consumer under the Act does not include a person who buys goods for the purpose of resale.
The decisions referred to by the Ld. Advocate for the Respondent/ Complainant are of no help to the Respondent/Complainant as the facts of those decisions are distinguishable from the facts of the case on hand, inasmuch as the facts of those cases were not connected with resale purpose as in the present case.
From the aforesaid facts and circumstances of the case we find more force in the submission of the Ld. Advocate for the Appellants/OPs-Bank than that of the Ld. Advocate for the Respondent/Complainant.
In view of the aforesaid discussion we are inclined to allow the instant Appeal, and accordingly, set aside the impugned judgment and order and dismiss the Petition of Complaint.
In the result, the Appeal is allowed, the impugned judgment and order is set aside and the Petition of Complaint stands dismissed. No order as to costs.
