Delhi

North East

CC/401/2015

Sarfaraz Ahmed - Complainant(s)

Versus

Syndicate Bank - Opp.Party(s)

04 Feb 2019

ORDER

 DISTRICT CONSUMER DISPUTES REDRESSAL FORUM: NORTH-EAST

GOVT. OF NCT OF DELHI

D.C. OFFICE COMPLEX, BUNKAR VIHAR, NAND NAGRI, DELHI-93

 

Complaint Case No. 401/15

 

In the matter of:

 

	Shri Sarfaraz Ahmad Flat No. 1/10392/A-4 Top floor, C Block, DDA Colony, West Gorakh Park, Shahdara, Delhi-110032.	Complainant
	Versus
	Syndicate Bank D.T.C. Depot, Nand Nagri, Delhi-110093.	Opposite Party

 

DATE OF INSTITUTION:    JUDGMENT RESERVED ON:               DATE OF DECISION      :

13.10.2015 04.02.2019 04.02.2019

 

 

N.K. Sharma, President

Ms. Sonica Mehrotra, Member

 

Order passed by Ms. Sonica Mehrotra, Member

 

ORDER

1. Briefly put, the facts in the instant case are that the complainant was maintaining an Over Draft account bearing no 91171250000200 with OP bank and was in urgent need of loan and was looking for some agents for sanctioned of the same when he chanced upon one Mr. Raju who representative himself as Head Branch Manager of HDFC Bank, Gurgaon Branch and assured the complainant of loan of Rs. 10Lacs on completion of certain formalities and paper work by way of submission of ID proof, ITR of three years, three original cancelled cheques and two original passport size photographs. On 17.09.2015, Mr. Raju came to the complainant and collected the said documents including cancelled cheques numbers 451144, 451145 and 451146 drawn on OP bank. However, the complainant received a message on his mobile on 18.09.2015 that a sum of Rs. 2,40,000/- has been withdrawn from his account with OP bank. The complainant immediately rush to OP bank where the said withdrawal was confirmed by OP officials. The complainant lodged a police complaint with PS Nand Nagri and DCP Nand Nagri on 18.09.2015 and complaint to SHO PS Welcome and DCP EOW on 21.09.2015 regarding the wrongful / fraudulent withdrawal by one Manish against cheque no. 451145. However no action was taken against the erring person (s) by the concerned police. Therefore feeling aggrieved at the inaction on the part of the police authorities and deficiency of service on the part of OP for having allowed such a huge withdrawal from the complainant’s account without any verification or permission, the complainant was compelled to file the present complaint against the OP praying for issuance of direction against the OP to remit the wrongfully debited amount of Rs. 2,40,000/- back in his OD account held with OP bank and prayed for compensation of Rs. 2,00,000/- for mental harassment and Rs. 20,000/- towards litigation charges.

Complainant has attached copy of cancelled cheques no. 451144 to 46 in favour of HDFC Bank issued by Sonu Medial Store signed by the complainant there against, copy of complaint dated 18.09.2015 to SHO PS Nand Nagri and DCP Nand Nagri, copy of police complaint dated 21.09.2015 PS welcome and DCP EOW.

2. Notice was issued to OP on 14.12.2015 and despite service effected on OP on 24.11.2015 and 14.12.2015, none appeared on behalf of OP and therefore proceeded against ex-parte vide order dated 22.02.2016.
3. Complainant filed ex-parte evidence by way of affidavit on 14.03.2016 in which the complainant stated that he had handed over the documents for processing of loan on 17.09.2015 to two persons namely Manish and Hemant and it was Manish who had filled the cancelled cheque bearing no. 451145 for Rs. 2,40,000/- and presented the same for encashment with OP bank which had allowed withdrawal without the consent of the complainant and the message for the same was also received after 30 minutes from the time of withdrawal. The complainant exhibited the cheques as exhibit CW1/A to CW1/C.
4. Written argument was filed by the complainant on 15.10.2018 alongwith accounts statement highlighted the disputed withdrawal. The complainant reiterated his grievance against the OP alleging it to be in collusion with the offenders with the motive of causing wrongful loss to the complainant.

The complainant further argued that it was a clear case of deficiency of service since OP ignored the correctness and authenticity of an instrument which is being presented by an unauthorized person for withdrawal of money and relied upon RBI Guidelines vide Circular dated 06.07.2017 with directives to the Bank to make good the entire loss if the customer notifies about unauthorized / fraudulent transaction within a stipulated period in which cases customer has Zero Liability. Complainant further cited a news article in Times of India where a cancelled cheque ofRs. 40,000/- was fraudulently encashed as reported in Naupada, Thane. Therefore complainant, praying in capacity of considering himself as a bonafide consumer under Section 2 (1) (d) of the Consumer Protection Act reasserted his grievance against the OP and relief sought there against.  

5. We have heard the arguments addressed by complainant in person. The key issue for consideration before us is whether the complainant is a consumer within the meaning of Section 2 (1) (d) of CPA.

The word ‘consumer’ is the fulcrum of the Consumer Protection Act (the Act) and is defined in Section 2 (1)(d) of the Act meaning any person who

1. buys and goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other that the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
2. hires or avails of any services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose.

Explanation:- for the purposes of this clause, “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.

 

The term ‘consumer’ has, thus, been defined to mean, a person who  is-

1. a buyer, or
2. with the approval of the buyer, the user of the goods in question, or    
3. a hirer or person otherwise availing, or
4. with the approval of such aforesaid persons, the beneficiary, of the service(s) in question

 

with the condition super added that such buying of the goods or hiring or availing of any such service, is for a consideration, -

1. paid, or
2. promised, or
3. partly paid or promised, or
4. covered by any system of deferred payment

 

6. On bare reading of the above, it is clear that consumer is a person who buys goods or hires/avails of services for consideration but excludes a person who does the same for commercial purpose. Admittedly in the instant case, the complainant is running a business firm of M/s Sonu Medical Store in which name the OD account with OP was opened. OD facility is like a temporary loan given to the customer to clear/ honour cheques already issued by him (in case of insufficient balance in the current account of the customer) meaning thereby, it is a credit facility offered to current account holder and is kind of a temporary loan so even if the balance in the current account is zero, a person having OD facility in his current account can still avail of loan which he can later repay to the bank against charges / interest levied thereon. Thus such facility is offered for current account which is generally meant for businessman given high frequency and multiplicity of bank transaction.
7. The Hon’ble National Commission in the judgment of Union Bank of India and Anr. Vs Learning Spiral Pvt Ltd III (2018) CPJ 514 (NC) in which the Hon’ble National Commission was faced with a similar complaint of illegal encashment of cheque from current account for business purpose and after considering the key question whether the complainant maintaining a current account with the bank can be said to be a consumer within the meaning of CPA, the Hon’ble National Commission following the view taken by itself in its previous decisions of Sutlej Industries Vs PNB I (2018) CPJ 593 (NC), Subhash Motilal Shah Vs Malegaon Merchants Co-op Bank Ltd in RP No. 2571/2012 decided on 12.02.2013, M/s Sam Fine O Cam Ltd Vs UBI in CC No. 39/13 decided on 12.04.2013 and Samkit Art and Craft Pvt Ltd Vs SBI and Ors in CC No. 11/2007 decided on 14.10.2014, held that the complainant cannot be said to be a consumer within the meaning of Consumer Protection Act as it had hired / availed of service of the bank for commercial purpose i.e. for running a current account for business purposes. Therefore, the Hon’ble National Commission had dismissed the complaint with liberty to the complainant to approach the appropriate Civil Court for redressal. In the present case, it is admitted position that the complainant had opened an over draft account with OP for business transaction for his firm M/s Sonu Medical Store which can be proved from the statement of account furnished by complainant himself for the period 01.09.2015 to 31.10.2015. It is also an admitted position that it is in respect of this OD account and withdrawal made therefrom that the present complaint has been filed alleging negligence / fraud / deficiency of service. Since the account itself was connected and related to the business transaction of the complainant, service hired for that purpose would fall within the category of hiring services for commercial purpose. Therefore, it is clear that the services of OP were hired by the complainant for commercial purpose in course of business by virtue of having availed of over draft facility in current account with OP bank for the purpose of carrying out his business activities. The purpose behind opening the said account therefore was to serve the commercial interest of his medical store for which the alleged loan was probably applied for but i.e. subject matter to be decided on merits not by this Forum. Requirements of restricted meaning of “Commercial Purpose” are that the complainant ought to have availed the services of OP exclusively for purpose of earning livelihood by way of self employment. Undisputedly in the present case however, the complainant is a businessman running a Medical Store. 
8. We are guided by the above settled principle of law as laid down by Hon’ble NCDRC in catena of judgments cited in forgoing paras and can be safely applied in the present case specially after appreciating the nature of transaction entered into between complainant and OP and the perusal of OD statement of account placed on record by complainant himself.
9. We therefore dismiss the present complaint as non maintainable and barred under section 2 (1)(d)(ii) of Consumer Protection Act as complainant herein is not a consumer having any locus standi to press the present complaint under Consumer Protection Act. It is however made clear that dismissal of the complaint shall not come in the way of the complainant availing alternate remedy by way of approaching Civil Court in which event he may also seek benefit of provision of Section 14 of Limitation Act for condonation of delay for time spent before this Forum. 
10.  Let a copy of this order be sent to each party free of cost as per regulation 21 of the Consumer Protection Regulations, 2005.
11.   File be consigned to record room.
12.   Announced on 04.02.2019 

 

(N.K. Sharma)     President

(Sonica Mehrotra)  Member