BEFORE THE CONSUMER DISPUTES REDRESSAL FORUM,
ERNAKULAM.
Date of filing : 20/10/2014
Date of Order : 01/04/2015
Present :-
Shri. Cherian. K. Kuriakose, President.
Smt. V.K. Beena Kumari, Member.
C.C. No. 789/2014
Between
S.S. Chandran, | :: | Complainant |
Manager, M/s. ASK Rathnasamy Nadar, Madackel Tower, Soumya Nagar Road, Alinchuvadu, Kochi – 24. | (By Adv. Thomas Abraham, Soumya Nagar, Alinchuvadu, Palarivattom, Edappally. P.O., Kochi – 24.) |
And
1. South Indian Bank Ltd., | :: | Opposite Parties |
Head Office, T.B. Road, Mission Quarters, Thrissur – 698 001, Rep. by its Chairman and Managing Director. 2. Senior Manager, South India Bank Ltd., Vennala Branch, Door No. 34/585 (C2, C4), Ward No. 41, Krishna Towers, Civil Lines Road, Padivattom, Edappally. P.O., Cochin – 682 028. | (Op.pts. by Adv. P.A. Augustine, 91/DD Tex World, Market Road, Near Convent Jn., Kochi – 682 011.) |
O R D E R
Cherian. K. Kuriakose, President.
1. The complainant Sri. S.S. Chandran, is the Manager of M/s. ASK Rathnasamy Nadar, aged 64 years, a firm distributing of various products of the companies like Bosch, JK files (India) Ltd. etc. The firm maintains its current account with over draft facility, in the opposite party M/s. South Indian Bank, Vennala Branch. The complaint has been filed alleging that a hefty sum of money amounting to Rs. 3,76,406/- was fraudulently encashed in respect of a cheque issued in the name of M/s. J.K. Files (India) Ltd., Chennai. The prayer of the complainant is to declare that the opposite party is M/s. South Indian Bank Ltd. and it is the Senior Manager, Vennala Branch are liable to pay Rs.6,50,000/- as compensation for the loss sustained by the complainant with interest at the rate of 12% p.a. from the date of unauthorised payment of the cheque and to declare that the opposite parties are liable to pay damages for the mental stress and agony. The complainant also seeks for realisation of costs of the proceedings to this complaint.
2. The opposite parties appeared and filed their version that the preliminary objection to hear the maintainability of the case before this Forum as a first issue. Accordingly, the matter is taken up for hearing the issue for maintainability.
3. The learned counsel for the opposite parties argued that the complainant is not a consumer as defined in Section 2 (1) (d) of the Consumer Protection Act 1986. The complainant is a partnership firm having a turn over of more than Rs. 18 to 20 Crores functioning with hundreds of employees. The cheques involved in this case were used for the commercial purpose. It is alleged that the firm is a partnership firm. It has to be represented by the Managing Partner or all the partners. The complaint is filed by the Manager of the firm, who is not competent to file this complaint, since the transaction with regard to the cheque stems out of a commercial transaction, according to the learned counsel, the complaint is not maintainable before this Forum and the grievances, if any of the complainant is to be aired before the appropriate Civil Court. The cheque was sent to courier service and the cheque is said to have been lost during transit and that was due to the negligence of the employees of the courier service. They are not made a party to these proceedings. On that score also the complaint, according to the learned counsel for the opposite party is not maintainable.
4. We have gone through the materials produced before this Forum and the averments in the complaint and the version filed by the opposite parties. On going through the documents and on hearing the parties, we are of the firm view that the transaction with regard to the cheque in question was clearly and admittedly for the business transaction for the purpose of purchasing articles for commercial use. The complainant is a firm which does not have been properly represented by the competent person. The complainant firm will not come within the purview of Section 2 (1) (d) of the Consumer Protection Act 1986. Nowhere in the complaint it is stated that the complainant was conducting the commercial transaction exclusively for the purpose of earning his livelihood by means of self-employment. For the above reasons stated, we find that the filing of the complaint against the opposite parties before this Forum is an abuse of process of law and is not maintainable before this Forum, which should entail dismissal of the complaint in limine. The complaint, therefore stands dismissed. Considering the nature of the contentions, in the above circumstances, it is needless to say that there must be payment of costs which we estimate at Rs. 2,000/- to be paid to the opposite parties by the complainant.
Pronounced in the open Forum on this the 1st day of April 2015.
Forwarded/By order Sd/- Cherian. K. Kuriakose, President.
Sd/- V.K. Beena Kumari, Member.
Senior Superintendent.
