PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer dispute is as under –
The Complainant is dealing in Fabrics as a Proprietor of firm by name Em Gee Fabrics. The Complainant sold and supplied textile materials to M/s. Kiran Textile at Renukut, Dist. Sonbhadra, U.P. – Opposite Party No.2. As per the understanding between the Complainant and the Opposite Party No.2 it was agreed that the Complainant would sent documents i.e. bills, lorry receipts, etc. through State Bank of India, Renukut i.e. Opposite Party No.1 and Opposite Party No.2 was required to discharge the said documents from the branch office of State Bank of India at Renukut by making payment of the goods supplied by the Complainant so that the Complainant can get price of the goods supplied by him through Opposite Party No.1.
2) It is averred that on the basis of aforesaid understanding the Complainant had sent all the documents alongwith his letter dtd.20/06/06 to the Manager of State Bank of India, Renukut – Opposite Party No.1 by RPAD with clear cut direction in the said letter to the bank to handover the said documents to Opposite Party only on receiving payment of Rs.63,516/- within the 7 days from the date of Hundi. The Complainant has produced copy of the said letter dtd.20/06/2006 and postal receipts alongwith complaint at Exh.1 & 2 respectively.
3) The Complainant vide letter dtd.20/07/06 reminded Opposite Party No.1 about the said documents and also reminded Opposite Party No.1 that the Complainant has not received the said payment from Opposite Party No.2. It is submitted that by letter dtd.29/07/06, Opposite Party No.1 informed the Complainant that Opposite Party No.1 had not received letter from the Complainant bearing Registration No.4249, dtd.20/06/2006 and it was falsely alleged in the said letter by Opposite Party No.1 that they received a letter from Krishna Pipe Fittings Industries from Kalbadevi, dtd.20/06/06 under the same registration no.4249.
4) Thereupon the Complainant sent letter dtd.17/07/06 to the Chief Post Master, GPO, and another letter dtd.30/08/06 to Sr. Superintendent of Post Office, Mumbai City, South Division, GPO, interalia requesting Post Office to inform the Complainant as to when the said registered letter sent by the Complainant to Opposite Party No.1 at Renukut was delivered by the postal authority. Then the Complainant received letter dtd.27/09/06 in the form of Certificate from the office of the Senior Superintendent of Post Office, Mumbai, informing the Complainant that registered packet bearing no.4249, dtd.20/06/06 was delivered to the State Bank of India, Renukut on 27/06/06. The Complainant has produced copy of the said letter alongwith complaint at Exh.‘7’.
5) Thereafter, the Complainant sent letter to Opposite Party No.1 on 11/10/2006 through his advocate and called upon Opposite Party No.1 to pay to the Complainant Rs.63,516/- together with interest thereof as mentioned in the letter. The Opposite Party No.1, vide their letter dtd.04/11/2006, falsely denied having received the said registered letter of the Complainant dtd.20/06/06 and further falsely denied claim of the Complainant. In the mean time, the Complainant received another letter dtd.23/11/06 from the Department of Post interalia informing the Complainant that the registered article no.4249, dtd.20/06/2006 was delivered to the Branch Office of Opposite Party No.1 at Renukut on 27/06/06 and alongwith letter, Postal Department sent xerox copy of the proof of delivery. The Complainant has produced said letter dtd.23/11/2006 alongwith complaint at Exh.‘10’.
6) It is alleged by the Complainant that despite receipt of said registered packet, Officer of Opposite Party No.1 at Renukut, gave documents – discharge without receiving the amount of the Hundi and paying the said amount to the Complainant. Aforesaid act of Opposite Party No.1 amounts to deficiency in service. It is submitted that to cover up their wrong the officer of Opposite Party No.1 cooked up stories and falsely denied that they did not receive article of dtd.20/06/2006. No inquiry was initiated by Opposite Party No.1 at their end. Opposite Party No.1 has also not lodged any complaint with local police station after Opposite Party No.1 was made aware about the fraud practiced upon the Complainant. According to the Complainant, Opposite Party No.1 has guilty of unfair trade practice.
7) The Complainant has claimed that he is a consumer as per the definition of ‘Consumer’ in the Consumer Protection Act, 1986. The Complainant has prayed to direct Opposite Party No.1 to pay some of Rs.63,516/- alongwith interest @12% from the date of claim till payment. The Complainant has further claimed Rs.10,000/- towards compensation for harassment, inconvenience & mental agony and Rs.10,000/- towards the cost of this proceeding. Alongwith complaint, the Complainant has filed copies of documents at page nos.8 to 26.
8) Opposite Party No.1 has filed written statement and thereby resisted claim of the Complainant contending that there is no deficiency in service on the part of Opposite Party and therefore, complaint deserves to be dismissed with cost. It is submitted by the Opposite Party No.1, the documents which were allegedly sent by the Complainant by letter dtd.20/06/06 was not received by Opposite Party No.1. Therefore, question of acknowledgement does not arise. When Opposite Party No.1 received letter dtd.20/07/06 for the first time they learnt about the transactions mentioned in the complaint. Opposite Party No.1 immediately informed the Complainant vide letter dtd.29/07/06 that registered letter bearing no.4249 received by the Branch on 27/06/06 was sent by one M/s. Krishna Pipe Fittings Industries, Shop No.16, Kalbadevi Road, Mumbai. Copy of the said letter was also sent to the Complainant.
9) Opposite Party No.1 has denied correctness of certificates given by the postal authorities regarding delivery of registered letter. As per Opposite Party No.1, Complainant has filed this false complaint even knowing the real and actual facts. It is submitted by Opposite Party No.1 that Opposite Party No.1 Bank has neither received an amount of consignment nor commission and the Complainant has unnecessarily been dragged Opposite Party No.1 in this complaint. It is contended that Complainant is not a ‘Consumer’ as defined under the Consumer Protection Act, and therefore, complaint is liable to be dismissed.
10) Notice of complaint was sent to the Opposite Party No.2 by RPAD, but postal envelop sent to the Opposite Party No.2 was returned un-served with postal endorsement that M/s. Kiran Textiles was not found at given address. Subsequently, the Complainant requested to grant permission to delete name of Opposite Party No.2 and permission was granted as prayed. Then the Complainant has deleted name of Opposite Party No.2 from the complaint.
11) The Complainant has filed affidavit of evidence and written argument. Opposite Party No.1 has also field written argument. From 24/07/2011, the Opposite Party No.1 has not appeared before this Forum. So we heard oral submissions of Complainant and complaint was closed for orders.
12) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainant is a ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act,
1986 ?
Findings : No
Point No.2 : Whether the Complainant has proved deficiency in service on the part of Opposite Party ?
Findings : Does not survive.
Point No.3 : Whether the Complainant is entitled to reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- According to the Complainant, he is a Proprietor of firm by name Em Gee Fabrics, which is dealing in fabric. It is submitted by the Complainant that he had sold and supplied textile materials to M/s. Kiran Textile at Renukut, Dist. Sonbhadra, U.P. It was understanding between the Complainant and M/s. Kiran Textile that Complainant would sent documents i.e. bill, lorry receipts, etc. through Opposite Party No.1 – State Bank of India, Branch Renukut and M/s. Kiran Textile was required to discharge the said documents from Opposite Party No.1 Branch at Renukut by making payment of goods supplied by the Complainant. He has submitted that in view of the aforesaid understanding he sold and supplied goods worth Rs.63,516/- to M/s. Kiran Taxtiles at Renukut by Bills No.3852, 3853 and 3854, dtd.19/06/06. Then on 20/06/06, he had sent all the documents i.e. bills, lorry receipts etc. On 20/06/2006 by registered post to Opposite Party No.1 with a directions that Opposite Party No.1 Bank should handover the said documents to M/s. Kiran Textile only on receiving payment of Rs.63,516/-. It is grievance of the Complainant that Opposite Party No.1 has not remitted aforesaid amount of Rs.63,516/-. Thereafter, when he made inquiry with the Opposite Party No.1, Opposite Party No.1 gave false reply informing that they have not received Complainant’s letter but they have received registered article bearing no.4249, dtd.20/07/06 from Kiran Pipe Fittings Industries, Kalbadevi, Mumbai. The Complainant has alleged that there is deficiency in service on the part of Opposite Party No.1 and Opposite Party No.1 is also guilty of unfair trade practice and therefore, he has requested to direct Opposite Party No.1 to pay to the Complainant amount of Rs.63,516/- with interest, compensation and cost of this proceeding. The Opposite Party has raised contention that the Complainant is not a ‘Consumer’ and therefore, this Forum has no jurisdiction to entertain and try this complaint. It is submitted that Opposite Party No.1 State Bank of India has neither received amount of consignment nor commission even then the Complainant has unnecessarily dragged Opposite Party No.1 in this complaint.
It is clear from the averments made in the complaint and submissions made in the written argument of the Complainant that Complainant is carrying on business of fabrics under the names and styles of his firm Em Gee Fabrics. The Complainant has sold and supplied textile materials worth Rs.63,516/- to M/s. Kiran Textile at Renukut and in connection with that business transactions, the Complainant had availed services of Opposite Party No.1.
As per amended provisions of Sec.2(1)(d(ii), a person who availed services for commercial purpose, he is not a ‘Consumer’. As mentioned above in the instance case undisputedly the Complainant had availed services of the Opposite Party No.1 in connection with his business transactions and as such, the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d)(ii). Therefore, we answer point no.1 in the negative.
Point No.2 & 3 :- As discussed above, the Complainant is not a Consumer as defined under Consumer Protection Act, point no.2 does not survive. The Complainant is not entitled to claim any relief from this Consumer Forum as present complaint is not a consumer complaint. In the result we answer point No.2 & 3 accordingly.
For the reasons discussed above, complaint is liable to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.04/2008 is dismissed with not order as to cost.
ii.Certified copies of this order be furnished to the parties.
