19.12.2014.

MRIDULA ROY, MEMBER.

The instant appeal is directed against the order being No. 33 dated 28.06.2013 passed by Ld. District Forum, Hooghly in respect of maintainability of the complaint case being No. CC/44/2010 holding the same as not maintainable under the C. P. Act.

Being aggrieved by the order, the Complainant has preferred the instant appeal on the grounds, inter alia, that the Ld. District Forum ought to have heard the petition for amendment filed by the Complainant on 15.06.2011.  But the Ld. District Forum heard the petition filed by the O.P., challenging maintainability of the petition of complaint for which the impugned order suffers from material irregularity.

The case of the Complainant before the Ld. District Forum, in short, is that the Complainant has been carrying on a business under the name and style “Tripti Traders” and he opened a cash credit account being A/c No. 10490968953 with the State Bank of India, Konnagar Branch to the limit of Rs.5,00,000/- only with drawing capacity of Rs.5,00,000/- only.  However, the Complainant has found that the O.P. – bank sent a statement of account dated 26.02.2008 showing the transaction on and from 01.04.2007 to 26.02.2008, amount for debit as Rs.3,50,302.84 and amount for closing balance as Rs.5,32,755.98.  Thereafter, the Complainant made correspondences on several occasions requesting the O.P. to reduce the outstanding amount by depositing Rs.2,50,000/- in form of four special term deposits the maturity value of which is Rs.3,00,000/-.  The Complainant by a letter dated 18.09.2008 asked to O.P. to adjust with the four STDRs with the interest accrued thereon towards the outstanding amount.  The Complainant conveyed his inability to pay any further amount towards the outstanding.  Subsequently, several correspondences were made from the end of the Complainant to the O.P. requesting to adjust the outstanding amount on certain terms.  However, on 15.01.2010, a letter was issued by the O.P. – bank to the guarantor contending that the account of the Complainant had turned into NPA and, therefore, was transferred to ‘recalled asset account’ and made request for immediate payment informing that the TDR account and the SB account had been noted as lien to the bank and thereafter blocked the account of the Complainant which caused tremendous inconvenience to the Complainant since he could not run his business and all transactions were closed.  Hence, the Complainant, stating that the cause of action arose on 08.11.2007 filed the petition of complaint praying for direction of the Ld. District Forum declaring that the amount due in Nov. 2007 was Rs.2,50,000/- and the O.P. has no right to claim interest on the aforesaid amount after November, 2007 and all the claimed amount by the O.P. are illegal, to declare further that due to illegal act of the O.P. the Complainant had to stop his business, to pay Rs.1,00,000/- to the Complainant for making him unemployed and for not acting as per request of the letter dated 18.11.2007, to pay further damage of Rs.1,00,000/- for depriving the Complainant to operate Savings Bank Account, to allow the father of the Complainant to operate both the accounts and an order of all costs and to pay Rs.50,000/- for mental agony.

The O.P. filed a petition challenging maintainability of the petition of complaint on the grounds that – (i) The loan facility availed by the Complainant was for commercial purpose and (ii) The complaint was filed beyond the stipulated time and, therefore, the same was barred by time limit.

Heard both sides the Ld. District Forum and passed the impugned order.

In course of hearing of the appeal the Ld. Advocate for the Appellant has submitted that the Appellant availed the service of loan facility provided by the Respondent and, thus, the Appellant became a consumer under the O.P.  Ld. Advocate for the Appellant has further stated that due to typographical mistake the date of cause of action was stated as 08.11.2007 whereas the actual date of cause of action was 17.10.2009 and the Complainant filed a petition before the Ld. District Forum for amendment of such mistake but the Ld. District Forum did not hear the petition.

Ld. Advocate for the Respondent has submitted that the Complainant mentioned the date of cause of action synchronizing the other events with it and, therefore, the same cannot be a typographical mistake.  Ld. Advocate for the Respondent has further stated that the Complainant himself mentioned in the petition of complaint that he obtained the bank loan to run his business and, therefore, it should be considered for commercial purpose for which the Complainant could not be termed as consumer as per provision of the Section 2(1)(d).  In support of his contention Ld. Advocate for the Respondent has relied upon the following decisions reported in – (1) 2013 (3) CPR 397 (NC) M/s. Tolani Shipping Co. Ltd. Through its Authorised Signatory Seeta Venkatraman – vs. – Sterling Holiday Resort (I) Ltd. (2) 2014 (3) CPR 158 (NC) – Niloba Ghanshyam Naik & Anr. – vs. – Lodha Pranik Developers Pvt. Ltd. (Earlier known as Pranik Landmark Associates) & Ors.

Having heard the submissions made by the Ld. Advocates for the parties and on perusal of the papers on record it appears that the Appellant availed the cash-credit loan sanctioned by the Respondent for running of his business.  The Appellant – Complainant never averred within four corners of the petition of complaint that he runs the business for earning his livelihood by means of self employment.  Further, in the petition of complaint the Complainant averred that the cause of action arose on 08.11.2007 although subsequently, as he submitted, filed a petition for amending the date of cause of action which the Ld. District Forum did not entertain.  It appears that the complaint was filed on 13.04.2010.

Under these state of affairs, we are of opinion that the Ld. District Forum has rightly held that the petition of complaint was not maintainable under the C. P. Act.

In the result, the appeal fails.

Hence, ORDERED that the appeal is dismissed on contest but without any order as to cost.  The impugned judgment is affirmed.