Alleging deficiency in service on the part of the opposite party-SBI for not remitting a sum of Rs.US $15,000/- to M/s Renew Plastics, KFTZ, M/s Aradhna Plastic Industries, a registered partnership firm dealing in import and export of raw material for plastic material has filed this complaint seeking a total compensation of Rs.5,96,50, 500/- . Although, in para 35 of the complaint, a break-up of under six heads makes out a total compensation of Rs.7,96,50,000/-. 2. The facts which led to the filing of the complaint may be briefly noted thus. Complainant-firm had an account with the opposite party-bank and had been availing facilities like LC ( Letter of Credit), C.C (Cash Credit), overdraft, bill discounting, guarantee, negotiation of various import / export documents etc. In the year 1997, they being made aware that if the import of the goods was made through Kandla Free Trade Zone, Gandhidham, the CVD levied @ 25% on the consignment imported through other parts will not be levied as items imported through Kandla Free Trade Zone are exempted from levy of CVD duty and the complainant can sell the consignment through other parts and can earn higher profit by saving CVD duty @ 25% which was payable through other ports. The complainant-firm accordingly entered into an agreement / arrangement with M/s Renew Plastics, a well known unit carrying on their business at Kandla Free Trade Zone, Gandhidham, Kutch and placed an order with them for supply of following raw material valued at US $ 15000. S.No. Description of goods Qty. Rate in USD Per MT 1. HIPS Recycled high impact 500 MT 290.00 polysterene agglomerated granules 2. HIPS-de-agglomerate 500 MT 280.00 3. CAB recycled cellulose acetate 500 MT 270.00 butrate granules 4. CAB-de-agglomate 500 MT 260.00 3. M/s Renew plastics obtained requisite permission for carrying on the said transaction which was granted by the Development Commissioner, Kandla Free Trade Zone vide their letter dated 13.08.97 subject to certain conditions. As per the arrangement, complainant was required to remit US $ 15000 to M/s Renew Plastics for which remittance, permission of RBI was required. The SBI Goregaon, where the complainant was maintaining its account accordingly addressed a communication to RBI and sought permission for remittance of foreign exchange of US $ 15000 to M/s Renew Plastic KFTZ. It would appear that vide communication dated 26.09.97, RBI gave its approval to the proposal in the following manner: “From : Reserve Bank of India, Exchange Control Department Mumbai Regional Office Post Box No. 10127 Amar Building, 6th Floor, Mumbai-400 001 To The Manager State Bank of India Goregaon (E) Branch Mumbai- 400 063 Reg: Permission to make payment in free foreign exchange A/c M/s Aradhana Plastic Ind. Ref No: Exporter’s Letter dated 16.09.07. With reference to above, we advise that we are agreeable to your making payment in US $15,000/- to M/s Renew Plastics, KFTZ, subject to fulfilling conditions of Development Commissioner’s letter dated 18.08.97.” 4. It would appear that despite receipt of the said permission / approval, the opposite party-bank had some reservations / doubt, which they sought to be clarified from the RBI vide their communication dated 07.10.97 seeking a specific approval to remit the foreign exchange to the above named exporter. Vide another communication of the even date, RBI gave its approval reiterating the condition mentioned in their earlier communication dated 26.09.97. Despite receipt of this communication / approval, the opposite party-bank did not remit a sum of US $ 15000/- to the account of M/s Renew Plastics and informed the complainant that they are agreeable to making payment of US $ 15000 to M/s Renew subject of fulfilling the conditions of Development Commissioner’s letter dated 18.08.97. However, within a few days there was a somersault in the stand of the opposite party-bank and vide their communication dated 15.10.97 wrote to the complainant-bank that they were unable to accept the request of the complainant for effecting payment of US $ 15000/- to M/s Renew Plastics without RBI’s specific unconditional approval. Matter rested there. Neither the complainant approached the RBI to seek their specific unconditional approval as was insisted by the SBI nor the complainant approached Development Commissioner in order to find out as to what were the conditions which were required to be complied with nor they made any contact with M/s Renew Plastics in order to know what were the conditions which had been laid down by the Development Commissioner. After issuing a legal notice, the complaint was filed which was resisted by the opposite party-bank raising a number of preliminary objections in regard to the maintainability of the complaint as also the jurisdiction of this Commission to entertain the complaint. The opposite party has denied any deficiency in service and has tried to justify its action on the premise that complainant failed to comply with the conditions laid down by the Development Commissioner in its letter dated 18.08.97. Liability to pay any compensation much less the compensation asked of by the complainant is specifically denied. In the rejoinder, the complainant controverted the objections and pleas raised in the written version and reiterated the averments and allegations already made in the complaint. 5. In support of its complaint, the complainant has filed affidavit of Ganeshmal C. Jain, partner of the complainant and also sought to rely upon several documents, mostly the correspondence exchanged between the parties and the RBI. On the other hand, opposite party filed affidavit of Jaya Virendera Chhabra, Chief Manager, SBI, Nariman Point, Mumbai in support of its plea. We have carefully gone through the entire evidence and material and have heard counsel for the parties and have given our thoughtful consideration to their submissions. 5. Before we dwell on the real issue whether the opposite party has been deficient in providing service as was expected of them, we would like to deal with certain objections raised by the complainant in regard to the maintainability of the complaint before this Commission i.e. consumer fora. The main plank of this objection is that complainant being a commercial entity, a partnership firm dealing in the business of import and export of plastic raw material does not fall within the ambit of the term ‘consumer’ as defined in section 2 (1) (d) of the Consumer Protection Act, 1986, and even if it is presumed that respondent has provided any service, the complainant cannot file complaint before a consumer fora. In support of its contention, learned counsel for the respondent has placed reliance on the decision of this Commission in the case of M/s Noah Industries Vs. Karnataka State Principal Corporation & Anr. II (1992) CPJ 455 (NC). In our opinion that decision hardly throws any light on this question. The settled legal position is that prior to the amendment of Consumer Protection Act by the Amending Act of 62 of 2002 which came into force from 15.03.2003, even a person ( complainant) who had availed services from a service provider even for commercial purpose was entitled to invoke the jurisdiction of consumer fora for the redressal of its grievance. The cause of action in the present case is stated to have arisen in or around October 1997 and therefore, the definition as it stood prior to the amendment will govern the present complaint rather than the amended one. We have therefore no manner of doubt that even if the complainant had obtained the services of the respondent purely for commercial purpose, even then he can lay the present complaint and the complaint has been rightly admitted by this Commission. Therefore, objection raised by the opposite party in regard to the non maintainability has no merits. 6. Having said so, we proceed to examine the main question as to whether there has been deficiency in service on the part of the opposite party-bank. We have already referred to most of the correspondence exchanged between the parties. On going through the above referred correspondence exchanged between the SBI and RBI and vice versa, we have no hesitation in that SBI has failed to appreciate the contents of the approval letter issued by the RBI. RBI in no certain terms had given its approval / no objection for making the remittance of sum of US $15000/-in free foreign exchange to M/s Renew Plastics subject to the conditions laid down by the Development Commissioner in its letter dated 13.08.97 and 22.08.97. 7. A perusal of the said letters by the Development Commissioner to M/s Renew Plastics would show that following conditions were laid down : a. The permission apply to the finished goods manufactured in your unit KAFTZ. b. The payment against the above supplies shall be received in free foreign exchange. c. You shall also follow the stipulated clearance procedure as prescribed by the custom authorities. d. You shall produce custom authorities import license if required for the removal under the Exim Policy provisions before clearance are effected. e. You shall fulfill the added value and other related conditions as stipulated in the letter of permission No. KFTZ/IA/1607/95/2845 dated 25.01.1996 issued by Development Commissioner, KFTZ. f. Other than counting of the supplies above towards fulfillment of export obligations no other export benefits shall be admissible on these supplies. g. The clearance is permitted subject to such review / revision and curtailment as the government may consider necessary. This permission valid for 6 months only shall be in accordance with our circular no. 01/96-97 dated 17.09.1996. h. You shall not sell the above goods permitted for clearance in and around Gandhidham or any other places in the district Kutch unless specifically permitted by DC, KAFTZ in advance. 8. From a bare perusal of the said communication and the conditions contained in letter dated 13.08.1997, it is manifest that going by the nature and extent of the conditions , the same were required to be complied by the exporter M/s Renew Plastics rather than by the complainant. It appears to us that SBI had misguided itself about the conditions by presuming that complainant was required to fulfill certain conditions before they could remit the amount of free foreign exchange to M/s Renew Plastics. It would appear to us that they had some reservations about the approval given by RBI and that is why they insisted for a specific unconditional approval of the RBI. We fail to understand what prompted the opposite party to take such a stand when RBI, the competent regulatory authority of the foreign exchange in the country had already given its approval for remittance of the amount of US $ 15000/-. The SBI ought to have realized that they were merely required to carry out the instructions given by the complainant for which they had already received the approval of the RBI. They failed to notify to the complainant as to what conditions were required to be fulfilled by the complainant before they could allow the remittance of US $15000/- to M/s Renew Plastics. In our view the stand of the opposite party and their insistence for RBI specific unconditional approval were wholly unjustified and unwarranted and it clearly tentamounts to deficiency in service on their part. 9. Having held that the OP-bank has not discharged its function in the manner it was required and has been found deficient in rendering the service to the complainant, the ultimate question is as to what compensation the complainant can legitimately be granted in this matter. In para 11, the complainant has claimed a sum of Rs.7.96.50,000/- under the following heads. 1. Rs.4,00,00,000/- Difference between the sale price-purchase price. 2. Rs.71,00,000/- Interest @ 18% from the date of refusal by SBI till the date of this application. 3. Rs. 25,00,000/- Amount claimed by M/s Renew Plastics. 4. Rs.2,00,00,000/- Amount claimed by M/s Shobha Plastics Pvt. Ltd. 5. Rs.1,00,00,000/- Damage (mental tension / agony) 6. Rs. 50,000/- Legal and other expenses incurred _____________ Rs.7,96,50,000/- Total 10. Complainant has miserably failed to establish on record that it has actually suffered the pecuniary loss to the above extent. As regards the claim of Rs.2,00,00,000/- ( at sl. No.4 supra), learned counsel for the complainant has invited our attention to letter received by them from M/s Shobha Plastics Pvt. Ltd., claiming a sum of Rs.2,00,00,000/- as damages. In our view, no importance can be attached to such a communication because neither the same was realized by filing any proceedings against the complainant nor the complainant had paid any amount to M/s Shobha Plastics Pvt. Ltd. for their alleged failure to supply the goods. Infact the complainant has not been able to establish any pecuniary loss suffered by them due to the failure of the opposite party-bank in remitting the sum of US $15000/- to M/s Renew Plastics. Nevertheless, we can safely presume that complainant must have suffered some loss or injury or atleast some loss of their goodwill due to the failure of the opposite party-bank in remitting the sum to M/s Renew Plastics. In our view, even if the complainant cannot be awarded any compensation for the loss or injury suffered by them, they are certainly entitled to some token compensation. In our view, it will adequately meet the ends of justice if taking into account the entirety of the facts and circumstances of the case, opposite party-bank is directed to pay a sum of Rs.1,00,000/- as nominal compensation to the complainant. 11. In the result, complaint is partly allowed and the opposite party-bank is hereby directed to pay a lumpsum compensation of Rs.1,00,000/- to the complainant. The amount shall be paid within a period of six weeks from today, failing which it shall carry interest @ 9% p.a. Parties to bear their own costs. | 
