Haryana

StateCommission

A/414/2015

PUNJAB AND SIND BANK AND ANOTHER - Complainant(s)

Versus

SHRI KRISHNA HOME FURNISHING - Opp.Party(s)

SIMARPREET KAUR

08 Dec 2015

ORDER

STATE CONSUMER DISPUTES REDRESSAL COMMISSION HARYANA, PANCHKULA

                                                 

First Appeal No  :      414 of 2015

Date of Institution:      05.05.2015

Date of Decision :       08.12.2015

 

1.     Punjab and Sind Bank, Integrated Treasury, 21, Rajindra Palace, 3^rd Floor, Bank House, New Delhi 11008 through its Manager/Authorized signatory.

2.     Punjab and Sind Bank, G.T. Road, Panipat through its Senior Manager.

                                      Appellants/Opposite Parties

Versus

 

Shri Krishna Home Furnishing, Malik Place Lane, Sector-29, Part II, Panipat through its Proprietor Vijay Gupta.

 

                                      Respondent

 

CORAM:             Hon’ble Mr. Justice Nawab Singh, President.

                             Shri B.M. Bedi, Judicial Member.

                             Shri Diwan Singh Chauhan, Member   

 

Present:               Ms. Simanpreet Kaur, Advocate for appellants.

                             Shri Vishal Malik, Advocate for respondent.

 

                                                   O R D E R

 

B.M. BEDI, JUDICIAL MEMBER

 

This appeal has been preferred against the order dated 18^th March, 2015, passed by District Consumer Disputes Redressal Forum, Panipat (for short ‘the District Forum’) whereby complaint filed by Krishna Home Furnishing-Complainant/respondent, was allowed directing the appellant/opposite party as under:-

“….We hereby allow the present complaint with a direction to opposite parties to pay Rs.1,62,909/- with interest @ 9% per annum from the date of filing the complaint till its realization. Cost of litigation quantified at Rs.2200/- is also allowed to eb paid by opposite parties to the complainant.”

2.      The complainant filed complaint under Section 12 of the Consumer Protection Act, 1986, averring that it entered into a forward booking contract with opposite parties on June 28^th, 2012 for the period from 16.11.2012 to 15.12.2012 of 1,00,000 U.S. Dollar at an exchange rate of 58.0000. The complainant utilized 51530.40 US Dollars and the remaining 48629.60 were unitized as on 05.12.2012. On December 15^th, 2012 the exchange rate of U.S. Dollar was 54.65. Therefore, there was a gain on unutilized forward contract which carries gain of Rs.1,62,909/- which the opposite party has to credit in the account of the complainant. A request was made by the complainant to the opposite party No.2 for cancellation of forwarding contract on 15.12.2012 within time and the same was sent to the opposite party No1 through e-mail on the same day, that is, 15.12.2012. But still the amount was not credited in the account of the complainant. 

3.      The opposite parties contested complaint by filing reply taking preliminary objection that the complainant is not a consumer. It was stated that the request of the complainant for cancellation of contract on 15.12.2012, was forwarded to HOFOREX on the same day vide email but the same could not be executed as per foreign exchange rules and consequently the contract was cancelled on 17.12.2012. No exchange difference could be passed to the complainant as the contract was cancelled after the expiry of the contract. Denying the averments made in the complaint, it was prayed that the complaint merited dismissal.

4.      On appraisal of the pleadings of the parties and the evidence produced by the parties, the District Forum accepted complaint and issued direction to the opposite parties as noticed in the opening para of this order. Hence this appeal.

5.      Learned counsel for the complainant/respondent has fairly conceded that it being a forward contract of the complainant with the opposite parties, the complainant does not fall within the definition of “consumer” being a commercial transaction.

6.      In Kotak Securities Limited versus Bharatkumar Motilal Rana & others, 2014(1) CLT 292 (NC), Hon’ble National Commission held as under:-

“12.   Respondents No.1 and 2 have nowhere pleaded in their complaints that they doing the share business for self-employment. Nor, it has been pleaded that the services provided by petitioners-opposite parties were being availed of exclusively for the purpose of earning of their livelihood by means of self-employment. It is well settled that the disputes between the parties relating to commercial purposes, are excluded under the Act.”

“14.   In the present cases, respondents No.1 and 2 have been trading regularly in the share business and the same being a commercial activity. Hence, respondents No.1 and 2 would not fall under the definition of ‘Consumer’ as per the Act. Moreover, regular trading in the sale and purchase of the shares is a purely commercial activity and the only motive is to earn profits. Therefore, this activity being purely commercial one, is not covered under the provisions of the Act.”

7.      Para 3 of the complainant reads as under:-

“3.     That the complainant entered into booking of forward contract with respondent vide contract No.2028/2012 on 28.6.2012 for a period of 16.11.2012 to 15.12.2012 of 1,00,000/- USD at a exchange rate of 58.0000.”

8.      In Bharatkumar Motilal Rana’s case (Supra) it has been held that regular trading in the sale and purchase of the shares is a purely commercial activity and the only motive is to earn profits and therefore, this activity being purely commercial one, is not covered under the provisions of the Act.

9.      Indisputably, the complainant has entered into a forward booking contract which is in the nature of trading. This being so, the complainant does not fall within the domain of consumer. Hence, the appeal is accepted, the impugned order is set aside and the complaint is dismissed. However, the complainant shall have liberty to seek his grievances before the proper forum or civil court, as per law.  He can seek help for condonation of delay in accordance with law laid down in Laxmi Engineering Works Vs. PSG Industrial Institute–1995(3) SCC 583.

10.    The statutory amount of Rs.25,000/- deposited at the time of filing the appeal be refunded to the appellant against proper receipt and identification in accordance with rules, after the expiry of period of appeal/revision, if any.

 

Announced 08.12.2015

(Diwan Singh Chauhan) Member

(B.M. Bedi) Judicial Member

(Nawab Singh) President

CL