Tamil Nadu

South Chennai

1040/2009

M/S.Benco Thermal Technologies Pvt. Ltd. rep .Managing Director - Complainant(s)

Versus

The Assistant General Manager, State Bank of India & another - Opp.Party(s)

M/S.R.Ram Ganeshan

02 Dec 2021

ORDER

                                                                                                                                                                 Date of Complaint Filed: 22.12.2009

                                                                                                                                                                 Date of Reservation: 15.11.2021

                                                                                                                                                                 Date of Order: 02.12.2021

                                                                                                       

DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION,

CHENNAI (SOUTH)

Present:

 

                  Thiru. R.V.R. Deenadayalan, B.A., B.L.                                  : President

                 Thiru. T. Vinodh Kumar, B.A., B.L.                                           : Member

 

CONSUMER COMPLAINT No.1040/2009

 

THUSDAY, THE 2^nd DAY OF DECEMBER 2021

                                

M/s.Benco Thermal Technologies Private Limited,

Rep.by it Managing Director Mr.P.Ramachandran,

Plot Nos.236 & 237 Sidco Industrial Estate,

Thirumudivakkam, Chennai – 600 044.                                          .. Complainant.                                                                                          

 

                                                                                   ..Versus..

 

1.The Assistant General Manager,

   State Bank of India,

   Commercial Branch,

   No.65-A, GST Road, Guindy,  Chennai – 600 032.

 

2.The Chief Manager,

   State Bank of India,

   Specialised Small Scale Industrial Branch,

   Ekkaduthangal Branch,

   Chennai – 600 097.                                                                   ..  Opposite parties.

******

Counsel for the complainant                              : M/s.R.Ram Ganeshan, Adv.,

Counsel for the opposite parties                      : Mr.P.D.Audikesavalu, Adv.,

 

 

            On perusal of records and after having heard the oral argument of opposite parties we delivered the following:

 

ORDER

2.Pronounced by the President Thiru. R.V.R. Deenadayalan, B.A., B.L.

            The complainant has filed this complaint under section 12 of the Consumer Protection Act, 1986 and prays to pay a sum of Rs.6,53,681/-with interest at 18% per annum on US Dollar $3546 from the date of debit till the date of payment and to pay a sum of Rs.25,000/- towards legal expenses to the complainant.

3. The complainant submitted his proof affidavit as his evidence and on the side documents Ex.A1 to Ex.A16 were marked and written argument filed but not adduced oral argument on his side.  Hence written argument treated as oral argument of the complainant side. While so, on the side of the opposite parties proof affidavit submitted on their evidence and documents Ex.B1 to Ex.B8 were marked and also written argument filed on his side.

            4. The averments of the complaint in brief are as follows:-

            The complainant M/s. BENCO THERMAL TECHNOLOGIES Private Limited is a private company registered under the companies Act 1956 and they are manufacturers of Industrial Heating, Heat Treatment Furnaces, Galvanising plants and Allied Equipments.  The complainant state that they are having a Cash Credit Account bearing No.10365102107 in the bank of 2^nd opposite party for nearly a decade and during one of its transactions in the year 2003 with the 2^nd opposite party, a demand draft bearing No.460032 for $3546 US Dollars dated 16.12.2003 was received by them from one of their clients Emirates Techno Casting FZE, Sharjah, United Arab Emirates for the supply of Heat Treatment Furnaces and it was deposited into the bank of the 1^st opposite party who collected and credited the value of 3546 US Dollar at Rs.1,53,861 to their account on 19.12.2003 and the said Demand Draft was sent by Thomas Cook Al Rostamani, Exchange Company, Sharjah and the drawee Bank was Wachowin Bank, Yew York.  The complainant further state that they were very much surprised to receive an advice from the 2^nd opposite party 05.03.2008 about the debit of US Dollars 3546 to be made in their account and the debit was actually effected from 15.03.2008. They have neither given any details of such a debit not informed the complainant in advance as to why they were making such a debit for the amount credited to their account in the year 2008 i.e after more than 4 years from 19.12.2003.

            5. The complainant state they have sent several letter on 14.05.2008, 17.07.2008 and 17.03.2009 to the 1^st and 2^nd opposite parties explaining to them that the instrument in question was not a cheque as alleged by the 1^st opposite party and it was a demand draft issued by Sharjah Bank after collecting the amount private limited advance with the commission thereto and therefore, the question of dishonour does not arise at all in this case.  The letter dated 17.07.2008 was addressed to their Zonal Office at Egmore, Chennai 600 008 and the letter 17.03.2009 was addressed to the 1^st opposite party along with a Email.  The copy of the letter was addressed to the Banking Ombudsman also.  Even though the opposite parties acknowledged all the letters, they responded none of their letters.  However, the 2^nd opposite party sent a reply dated 8^th June, 2009 alleging that the cheque was returned on 24.02.2004 itself and the commercial Branch at Guindy debited on 27.03.2007 and the delay is due to non receipt of the advice from their correspondent bank.

            6. The complainant sent another letter on 12.06.2009 and also sent an email on the day itself, which was acknowledged by the customer services team with a copy marked to the banking ombudsman and also to the 2^nd opposite party stressing that it was not a cheque as alleged by them and it was only demand draft.  They have also addressed the ombudsman of 16^th June, 2009 and on 21^st complaint No.F1265G/2008-2009.  Afterwards, the 1^st opposite party sent a reply dated 27^th August 2009 along with a copy of the instrument stating that technically the instrument in question is a cheque and not a demand draft.  But the instrument itself bears the number as a DD No.460032.  It was also replied by the complainant to the opposite parties on 02.09.2009 but no use.  The ombudsman also sent a negative reply to the complainant on 8^th September, 2009 stating that he is not the appropriate person for adjudication of such disputes.  Therefore the complainant caused a lawyer’s notice to the opposite parties hereto on 21.09.2009 and as it was also not replied. Hence this complaint is filed.

7. Witten Version of Opposite Parties in brief:-

 

            The cheque bearing No.460032 dated 19.12.2003 drawn by M/s Thomas Cook Al Rostamani Exchange Company (Thomas Cook) on Wachovia Bank, N.A. New York for US $ 3541 drawn in favour of the complainant was deposited into its aforesaid Current Account with the opposite party at its Specialised SSI (Ekkaduthangal) Branch, which was forwarded to its commercial (GUINDY) Branch for purchase and instant credit into that account.  The said cheque is technically not a Demand Draft, but a cheque drawn by Thomas Cook on a bank in USA as per their internal drawing arrangement.  The said cheque was, in turn, sent to the correspondent Bank of the opposite party, viz., J.P.Morgan Bank, in USA for realization and an amount of US $ 3541/- was credited to the Nostro Account of the opposite party with J.P.Morgan bank on 29.12.2003.

            8. During the year 2007, while reconciling the Nostro Account entries, it was observed that the Nostro Account of the opposite party with J.P.Morgan Bank had been debited with US $ 3,546/.  On taking up the matter with J.P.Morgan Bank, it was understood that the said cheque has been returned by the drawee bank for the reason ‘Refer to Cheque Customer Ref No.0000004500174990. It was also understood from the correspondent Banks of the opposite party in USA that it has been prevalent practice in USA of not returning unpaid cheques, and that a cheque paid by the drawee bank can be disputed by the drawer upto the limitation period for this purpose in USA.

            9. Consequently, the current account of the complainant with the specialised SSI (Ekkaduthangal) Branch of the opposite party was debited after discussing about the same with the complainant. In response to the letter No.GM/CGRC/90017 dated 04.04.2009 received from the complainant in this regard, the opposite party by letter dated 27.08.2009 set out the aforesaid facts and forwarded a copy of the cheque and self-explanatory e-mail dated 03.04.2009 received from its correspondent Bank, viz, J.P Morgan Bank, requesting the complainant to take up its claim with its customer who had given that cheque so as to raise the matter with the drawer of the cheque, viz, M/s Thomas Cook AI Rostamani Exchange Company, Sharjah, and find out the reason for returning that instrument by its drawee bank, viz., Wachovia Bank, N.A.., New York/First Union National Bank. 

            10. In the meanwhile, the opposite party had also simultaneously written to M/s Thomas Cook AI Rostamani Exchange Company, Sharjah, as well as Wachovia Bank, N.A., New York and had indicated to the complainant in that letter that it shall revert to the complainant on receipt of response from them. As could seen from the aforesaid facts borne out of the record, the return of the cheque in question came to the knowledge of the opposite party only while reconciling the Nostro Account entries its Correspondent Bank and hence could not be blamed for that unavoidable delay caused beyond the control of the opposite party.

            11. At the request of M/s AI Rostamani International Exchange (the successor-in-interest of M/s Thomas Cook AI Rostamani Exchange Company) the opposite party has also executed a letter of indemnity dated 13.10.2003 and has sent the same awaiting for the issuance of that demand draft so as to credit the account of the complainant with its proceeds.

            12. As would be apparent from the aforesaid facts borne out of the record, the claim of the complainant against the opposite party arises out of the cash credit facility that has been availed by it exclusively for its business, and hence relates to commercial purpose.  As such the complainant cannot be a consumer of the services of the opposite party with the meaning of section 2(1) (d)(ii) of the Consumer Protection Act, 1986, as amended by  Act No.62 of 2002 with effect from 15.03.2003 and it is not entitled to invoke the provision of that Act against the opposite party to agitate its alleged claims in this regard and hence it is requested to dismiss this complaint.

13.The points for consideration are:-

1) Whether there is any deficiency in service on the part of the opposite parties?

2) Whether the complainant is entitled to get reliefs as claimed in the complaint?

3) To what relief, the complainant is entitled?

14. Point No.1:-

 

            It is an admitted facts that the complainant received a Demand Draft from one M/s Thomas Cook Al Rostamani Exchange Company, Sharjah and the drawee Bank was Wachowin Bank, New York. The complainant presented the Demand Draft for Rs.3546 US $ Dollars on 16.12.2003 with the 2^nd opposite party’s Bank.  The above said Demand Draft was sent to the correspondent Bank of the opposite party viz., J.P.Morgan Bank, in USA for realization and an amount of US $ 3541 was credited to the Nostro Account of the opposite party with J.P.Morgan Bank and thereafter it was given credit in the account of the complainant for Rs.3546US $ Dollars/Indian Rs.1,53,861/- on 19.12.2003.

            15. During the year 2007 that is nearly four years later from the date of transaction the Nostro Account entries was reconciled, while reconciling it is understand that the above said Demand Draft is technically a cheque has been returned by the drawee Bank for the reason ‘Refer to Cheque Customer Ref No.0000004500174990” and therefore the Nostro Account entries of the opposite party J.P.Morgar Bank has been debited US $ 3546.  In turn the 2^nd opposite party also debited US $ 3546 Dollers in the complainant’s account and the debit was actually effected on 15.03.2008.

            16. In short the Demand Draft was treated as cheque. The above cheque was presented for collection and the cheque also honoured by the drawee Bank and the amount of Rs.153861/- credited in the account of the complainant in the year 2003 itself.  But on 15.03.2008 the above amount was debited in the complainant’s account and on enquiry the opposite party told that the cheque was not honoured by the drawee bank and it was returned for some reason and thereby the amount was debited in the account of the complainant.

            17. The complainant is doing business and he had made several transactions with the opposite party’s bank. One Demand Draft was presented in the year 2003 and after verification the amount was credited in the complainant account in the year 2003 itself, but after five years later the same amount was debited in the account of the complainant on the reason as if that the Demand Draft is not Demand Draft but technically it is a cheque and the cheque was returned by the drawee bank and thereby the amount was debited in the account of the complainant.

            18.  From the written version of the opposite party and available records it is seen without knowing the return of the cheque a bank was given credit in the account of the complainant through some usual process. The above mistake was found only in the year 2007 and thereafter in the year 2008 the amount was debited in the account of the complainant. The above version of the opposite party would clearly shows that there was some mistake has been erupted during process with foreign Bank for realization of cheque amount. After lapse of five years without furnishing the details, the above credited amount was debited in the account of the complainant.  If the opposite parties or its Corporate Bank inform the facts in advance, the complainant is having a chance to claim the amount from the M/s. Thomas Cook AI Rostamani, Exchange Company and recover the same.  But the complainant has no possibility to claim the amount after lapse of five years from the date of issuance of Demand Draft or Cheque and thereby the complainant is suffered not only monitory loss but also mental harassment.  Hence we found that the opposite parties are committed deficiency in service on their part.  Accordingly point No.1 is answered.

19.Point Nos.2 & 3:-

 

We have discussed and decided that the opposite parties have committed deficiency in service on their part. Hence the opposite parties are liable to pay a sum of Rs.2,00,000/- toward deficiency in service and compensation for mental agony caused to the complainant and to pay a sum of Rs.10,000/- towards litigation expenses to the complainant. Accordingly point Nos.2 & 3 are answered.

In the result, this complaint is allowed in part.  The 1^st and 2^nd opposite parties are hereby directed to pay a sum of Rs.2,00,000/- (Rupees two lakhs only) toward deficiency in service and compensation for mental agony caused to the complainant along with cost of Rs.10,000/- (Rupees ten thousand only).  The opposite parties are jointly and severely liable to pay the amount within three months from the date of this order, failing which the complainant is entitled to recover the same along with interest at the rate of 9% per annum till the date of realization.

Dictated to Steno-Typist, transcribed and typed by him, corrected and pronounced by us in the Open Commission, on this  the  02^nd   day of December  2021.

 

 

 VINODH KUMAR                                                       R.V.R.DEENADAYALAN                                                                                       

    MEMBER                                                                             PRESIDENT

List of document filed by the complainant:-

 

Ex.A1	05.03.2008	Copy of the letter of the 2nd opposite party	Xerox
Ex.A2	14.05.2008	Copy of the representation by the complainant to 2nd op	Xerox
Ex.A3	28.05.2008	Copy of the representation by the complainant to 2nd op	Xerox
Ex.A4	17.07.2008	Copy of the representation by the complainant to the Zonal Office.	Xerox
Ex.A5	11.12.2008	Copy of the representation by the complainant to 2nd op	Xerox
Ex.A6	17.03.2008	Copy of the representation by the complainant with email copy to opposite parties.	Xerox
Ex.A7	22.04.2009	Acknowledgement from the Banking Ombudsman.	Xerox
Ex.A8	08.06.2009	Reply from the 2nd opposite party.	Xerox
Ex.A9	12.06.2009	Copy of the representation by the complainant to 2nd op	Xerox
Ex.A10	12.06.009	Letter from the Banking Ombudsman	Xerox
Ex.A11	16.06.2009	Representation to the Banking Ombudsman.	Xerox
Ex.A12	21.08.2009	Copy of representation to Ombudsman.	Xerox
Ex.A13	27.08.2009	Reply from the 1st op with a copy the Demand Draft.	Xerox
Ex.A14	02.09.2009	Copy of the representation to 1st op	Xerox
Ex.A15	08.09.2009	Reply from banking Ombudsman.	Xerox
Ex.A16	21.09.2009	Copy of the complainant’s lawyer notice with post act.	Xerox

List of document filed by the opposite parties:-

 

Ex.B1	16.12.2003	M/s.Thomas Cook AI Rostamani Exchange company (Thomas Cook) New York in favour of the complainant.	Xerox
Ex.B2	05.03.2008	Letter of Opposite party to complainant.	Xerox
Ex.B3	03.04.2009	Email M/s. J.P.Morgan to opposite party	Xerox
Ex.B4	10.10.2009	Letter of Opposite party to AI Rostamani Exchange company	Xerox
Ex.B5	13.10.2009	Letter of Indemnity Opposite party to M/s AI Rostamani International Exchange	Xerox
Ex.B6	13.10.2009	Letter of Opposite party to M/s AI Rostamani international Exchange.	Xerox
Ex.B7	18.11.2009	Email of M/s AI Rostamani International Exchange to opposite party.	Xerox
Ex.B8	23.11.2009	Email of M/s. AI Rostamani International Exchange to opposite party.	Xerox

 

 

 

      T.VINODKUMAR                                                        R.V.R.DEENADAYALAN                                                                                       

  MEMBER                                                                             PRESIDENT