The complainant’s case, in a nutshell, is that he is a resident of Subhashpally, Hamiltonganj under P.S. Kalchini, Dist- Alipurduar whose occupation is business being Proprietor of M/S. Maa Tara Trading . He opened a current account being No. 11128916846 with State Bank of India, Hasimara Branch and he issued an account payee cheque being cheque No.909867 dated 12/02/2015 amounting to Rs. 1, 50,000/- in favour of M/S. Bazari Steel Corporation, Siliguri for supplying of materials for an urgent work site in Ministry of Defence Sector at Hasimara. But, unfortunately the said cheque has not been cleared by S.B.I NBMC Branch Code No.10421 with a remarks mentioned in reason sheet serial No. 25 and 26 “Ret to drawer, not respond through mobile “and “Mobile No. given wrong “Due to nonpayment of said amount of money, the complainant’s work had been badly hampered for the unnecessary harassment and his goodwill has been affected. Moreover, an amount of Rs.393/- was debited from his account of 13/02/2015 against the dishonor of cheque.
It has been further alleged by the complainant that Mobile No. 91269-20426 was given in his account till date with facility of SMS system. As the goodwill of complainant has been affected, being a good businessman and valued customer of S. B. I, he claimed for return of Rs. 393/- (Debited amount) + litigation cost + Conveyance + loss of goodwill. Accordingly, the complainant has claimed amounting to Rs.20, 000/- (twenty thousand only).
The O.P.No.1 and 2 after receiving notices appeared before this Forum and filed W/V separately.
The O.P.No.1 denying the material allegations of the instant case alleged that there is no cause of action and the case is not maintainable in law. According to O.P.No.1 the complainant is not entitled to get any relief. The O.P.No.1 admitted that a ‘non-home’ cheque was submitted before him on 12/02/2015 but the said cheque was not cleared and returned with a reasons but nothing was intentional harassment or to hamper the goodwill of the complainant.
It is further case of the O.P that R. B.I Circular Ref – RB/2014-15/294-DBS. CFNC.BC No.006/23,04.001/2014-15 dated 05/11/2014 cause title as ‘cheque related fraud cases preventive measures’ (Annexure-B) and as per Circular-2(a) “alerting the customer by a phone call and getting the confirmation from the payee/drawer is mandatory. S.B.I e-circular dated 29/06/2015 also measures Mandatory Restrictions to prevent frauds. As per Annexure-C as the cheque was ‘Non-Home’ cheque the O.P asked the complainant through mobile phone No. 91269-20426 on 13/02/2015 on several occasion about the genuinity of the cheque issued by complainant but no response was received. Non response of the complainant case it creats some doubt in the mind of O.P and as such, the said cheque was returned back without any payment. The O.P deducted the amount of Rs.393/- from the bank account of the complainant according to the rules of banking law. The O.P tried to make confirmation before payment of the amount as per R.B.I Rules specially in case of ‘Non-Home’ cheque to avoid frauds. The O.P. had done it for protection of the amount of the complainant which lying in the bank.
According, to O.P No.1, there is no deficiency in service on the part of him. As such, he has prayed for dismissal of the case with cost.
According to O.P.No.2 there is no deficiency in service on the part of him. As such, the O.P has prayed for dismissal of the case with cost.
The O.P.No.2 has also filed W/V denying the material allegations contending, inter alia, that the petition filed by the complainant against him is not tenable in the eye of law. It is a harassing one against him. He admitted the fact that the complainant has a bank account being A/C. No.11128916846. He admitted that the alleged cheque was issued by complainant in favour of M/S. Bazari Steel Corporation amounting to Rs.1,50,000/- on 12/02/2015 and the same was dishonoured and subsequently an amount of Rs.393/- was deducted on 13/02/2015. It has been alleged by O.P No.2 that being Manager of S.B.I he is in no way responsible for the above transaction. There is no laches or deficiency in service on the part of O.P. He admitted that as per policy of the bank, telephonic confirmation of drawer in respect of high value cheque is required before clearance of cheque. As such, the O.P prays for dismissal of the case with exemplary cost.
The complainant and the O.Ps separately filed evidence on affidavit which appears to be the reiterated version of complaint and W/V filed by the parties. The complainant and the O.Ps have separately filed written argument in respect of their cases. Heard argument as advanced by the Ld. Agents for the parties.
In this context, the following points have necessarily come up for consideration to reach just decision of the case.HH
POINTS FOR CONSIDERATION
- Whether the Forum has jurisdiction to entertain the instant case?
- Is the complainant a consumer u/s.2(1)(d)(ii) of the C.P.Act,1986 ?
- Have the O.Ps any deficiency in service as alleged by the complainant?
- To what other relief or reliefs, the complainant is entitled?
DECISIONS WITH REASON
Point No. 1, 2, 3,and 4 –
All the points are taken up together for the sake of convenience and brevity.
The complainant in order to establish the instant case has produced some documents besides evidence on affidavit. The photocopy of alleged cheque, reason for dishonor of cheque, statement of account and a driving license which have been marked as Appendix- A, B, C and D respectively . Subsequently, the complainant has filed some documents on 16/11/2016 i.e Photocopy of R.B.I Circular dated 05/11/2014, Photocopy of SBI e-circular banking Operation Department dated 29/06/2015, photocopy of work orders of Military Engineering Service and a photocopy of Enlistment certificate of Military Engineering Service.
On the contrary, O.P.No.1 filed some documents which marked herein as Annexure- A. B. C and D i.e Xerox copy of notice of this case, Xerox copy of R.B.I letter dated 05/11/2014, Xerox copy of e-circular Banking Operation Department dated 29/06/2015 and a reason for return of cheque dated 13/02/2015.
We have meticulously gone through the evidence of complainant and the documents files by the parties.
On going through the complaint itself it appears to us that the complainant had current account being No.11128916846 with the S. B.I, Hasimara Branch, District- Alipurduar. At first it is to be looked into whether the complainant being a business man can he be able to file the instant case against the O.Ps?. Answer would certainly be come up that complainant is not entitled to get any relief before this Forum. It is palpably clear from the complaint itself as well as the other materials on record that the complainant has been operating the said account at Hasimara Branch. It is still in existence and continuing for commercial purpose.
If we go through the definition of consumer u/s. 2(1)(d) of C.P.Act it would be found that the consumer is a person who buys goods and hires or avail of services for consideration. The section, however, has carved out exception to the aforesaid definition by providing that the person who buys goods or hires or avails of services for commercial purpose shall not be included in the definition of consumer. In the instant case it appears to us that the alleged cheque was issued for the business purpose in between the complainant and M/S. Bazari Steel Corporation,Siliguri in relation for supply of materials.
The explanation restricts the definition of commercial purpose by providing that commercial purpose does not include use by a person of goods bought or services availed exclusively for the purpose of earning his livelihood by means of self-employment. But, we do not find any such averment in complaint which is lying in four corners of the complainant’s case.
Therefore, in view of the above discussions, we hold that the complainant is not a consumer as envisaged u/s. 2(1) (d) of C. P. Act, 1986.
On proper scrutiny of record it reflects that the S. B. I has properly deducted the amount of money according to rules of bank and dishonored the cheque as the preventive measure was taken by the R.B.I according to rules of Bank.
Therefore, having heard the Ld. Agents of the parties and on considering the facts and circumstances, as well as the materials on record, it cannot be said that O.Ps had deficiency in service. The transaction itself does not constitute any deficiency in service on the part of the bank.
In view of the facts and circumstances and the materials on record, we are constrained to hold that the complainant’s case is liable to be dismissed.
As the cause of action has been arised out within the jurisdiction of this Forum and pecuniary limit exists herein, so, the point No.1 is determined as affirmative i.e. in favour of the complainant and the other points are determined as negative i.e. against the complainant.
Hence, it is,
ORDERED
that the C.C No.21 of 2016 be and the same is dismissed on contest without any costs against the O.Ps.
Let a plain copy of this Final Order be supplied to the concerned parties by hand/be sent under registered post with A/D forthwith for information and necessary action.
Dictated & Corrected by me
