In the Court of the
Consumer Disputes Redressal Forum, Unit -I, Kolkata,
8B, Nelie Sengupta Sarani, Kolkata-700087.
CDF/Unit-I/Case No.364/2010
1) M/S. Kalika Cement Ltd.
Reg. Office-23A, Netaji Subhas Road, Kolkata-700001. ---------- Complainant
---Versus---
1) State Bank of India, SSI Branch,
Bhawanipur, 39, Shakespeare Sarani,
Kolkata-17, P.S. Shakespeare Sarani.
2) General Manger, State Bank of India,
Kolkata Region, Head Office- Samiriddhi Brawan,
1st floor, 1, Strand Road, Kolkata-1, P.S. Hare Street.
3) The Chairman, State Bank of India,
State Bank Bhawan, Central Office- 8th floor,
Madame Cama Marg, Nariman Point, Mumbai-400021. ------------ Opposite Parties.
Present : Sri Sankar Nath Das, President.
Dr. Subir Kumar Chaudhuri, Member
Smt. Sharmi Basu, Member
Order No. 21 Dated 31/12/2012.
The petition of complaint has been filed by the complainant Kalika Cement Ltd. against the o.ps. State Bank of India. The case of the complainant in short is that complainant is a limited company incorporated and registered under the Companies Act 1956, having its regd. office at 23A, N.S. Bose Road, Kolkata-1. O.p. no.1 is a banking financial institution having its one of the branch at 39, Shakespeare Sarani, Kolkata-17, in the name and style SSI Branch, Bhawanipore, whereas the o.p. no.2 the General Manager of State Bank of India, Head Office, Kolkata Region and the o.p. no.3 is the Chairman of State Bank of India. Complainant company deals in manufacturing and supply of cement used to sale its product in cash, against cheque and/or draft and/or against a bank guarantee to its customers. O.p. no.1 being a banking financial institution represented by its branch manager issued a bank guarantee being no.0483308 BG0000692 dt.22.7.08 for Rs.10 lakhs on behalf of its one of the constituent M/s. Zeeshan Enterprise of Reckjawani Hospital Road, Rajarhat, Kolkata-700135 and also of Village-Parijat, P.O. Uluberia, Dist. Hooghly, W.B. in favour of the complainant company.
By virtue of the said bank guarantee the o.p. no.1 undertook to pay a sum of Rs.10 lakhs to the complainant company. O.p. no.1 also agreed and affirmed in the said bank guarantee that the beneficiary i.e. the complainant company shall be sole judge as to whether the said distributor (M/s Zeeshan Enterprise) has committed any breach or breaches of any of the terms or condition s as agreed between them. The said bank guarantee was valid for one year from 22.7.08 to 21.7.09 and/or it shall continue to be enforceable till any notice of no claim is given by the beneficiary. O.p. no.1 also undertook not to cancel or revoke the said bank guarantee in case of any change in th constitute
on the distributor and also undertook not to revoke the aid bank guarantee during its currency except with the previous consent of the beneficiary in writing. When the said distributor failed to make payment to the complainant company of the goods supplied to him, the complainant company claimed and demanded the whole amount of Rs.10 lakhs covered under the said bank guarantee from o.p. no.1 by a letter dt.23.4.09 and the same was served together with the original bank guarantee and received by o.p. no.1, on 24.4.09 duly acknowledging the said letter with seal and signature. More than 40 days lapsed (from 24.4.09 to 4.6.09) but in spite of several visits by the representative of the complainant company, o.p. no.1 failed and neglected to invoke/release and/or make any payment out of the aid bank guarantee to the beneficiary. Complainant company repeatedly claimed and demanded the amount of bank guarantee by that period but o.p. no.1 failed and neglected to do that, though the o.p. n o.1 was supposed to release the said bank guarantee in favour of beneficiary by 24 hrs from the date and time of th demand letter, as such the beneficiary was entitled to get the same honoured latest by 27.4.09. Hence the case was filed by complainant with the prayer contained in the petition of complaint.
All the o.ps. had entered their appearance in this case by filing w/v and denied all the material allegations labeled against them. Ld lawyer of o.ps. in the course of argument submitted that the instant case is not maintainable since the matter raised in the petition of complaint is commercial purpose and this Forum has got no jurisdiction to entertain the matter and the instant case is liable to be dismissed.
Decision with reasons:
We have gone through the pleadings of the parties, evidence and documents in particular. From para 1 of the petition of complaint there is no averment of the complainant that complainant is a limited company incorporated and registered under the Companies Act, 1956 having its registered office at 23A, N.S. Bose Road, Kolkata-1 and para 3 discloses that complainant’s company deals in manufacturing and supply of cement used to sale it products on cash, against cheque and/or draft and/or against bank guarantee to its customers and o.p. no.1 vide letter dt.22.7.08 addressed to complainant company confirmed and extended bank guarantee in favour of the complainant company for Rs.10 lakhs.
In view of the above findings and on perusal of the entire materials on record we are constrained to hold that complainant cannot be construed as a ‘consumer’ within the scope and ambit as defined in the C.P. Act, 1986 and as such, instant case is liable to be rejected.
Hence, ordered,
That the instant case is dismissed on contest without cost against the o.ps. for want of jurisdiction.
Complainant is at liberty to agitate the issue before the appropriate Forum on the self-same cause of action.
Supply certified copy of this order to the parties free of cost.
