BETWEEN:

Bojja Raghava Rao,

S/o. late Krishna Murthy,

Proprietor, Professional Cargo Carriers,

10-298, Sri Nagar Colony, Yerrabalem,

Mangalagiri, Guntur District.                                 …  Complainant

                                                      AND

1. The Branch Manager,

    ING Vysya Bank Limited,

    Door No.59-13-39, Polyclinic Road,

    Gayathri Nagar,

    Vijayawada – 520008.

2. The General Manager,

    ING Vysya Bank Limited,

    No.22, MG Road,

    Bangalore – 560001

    Karnataka State.                                           … Opposite Parties

        This complaint coming up before us for final hearing on                      04-05-11 in the presence of Smt.I.Anuradha, Advocate for complainant and of Sri M.V.Subba Rao, advocate for OP1, OP2 remained exparte, upon perusing the material on record, hearing both sides and having stood over till this day for consideration, this Forum made the following: 

O R D E R

PER SMT.T.SUNEETHA, LADY MEMBER:

                This complaint is filed under section 12 of the Consumer Protection Act, 1986 by the complainant seeking directions on opposite parties to return the deposit of Rs.1,00,000/- with interest @ 24% p.a. from 10-07-05 till the date of realization after deducting interest paid by opposite party and to award Rs.1,05,000/- towards compensation and costs.

2.      The brief facts of complaint are as follows:

                The complainant is the Proprietor of single window logistic services (transport carriers) under the name and style of Professional Cargo Carriers, Sri Nagar Colony, Yerrabalem, Mangalagiri.  The nature of business is transportation of movables, goods etc. when the complainant undertakes a contract with a firm or Governmental Department or agency, he may have to obtain bank guarantee as per the stipulations incorporated in the terms of contract as a measure of security.  The complainant entered into a contract with Rajasthan State Seeds Corporation, Rajasthan on 21-03-05 for the transportation of seeds from AP to Rajasthan.  In that connection, he deposited Rs.1,00,000/- with 1^st opposite party by way of transfer from his current account cheque bearing No.015454 drawn on ING Vysya Bank, Gayathri Nagar, Vijayawada dt.07-04-05 which lasts only for 3 months i.e., from 10-04-05 to 10-07-05.  The complainant in the later course could not undertake the transportation of seeds as the complainant partners by name Mr.Gopiram Jena, Pathan Ameer Khan and Mr.P.Rama Rao went out of the partnership by executing resolution deed on 31-03-05, which made him incapacitated to mobilize capital and the contract became unattended.  The complainant informed Rajasthan State Seeds Corporation to extend the time of contract but no reply emanated from them.  The bank guarantee became in operation for three months and expired on 10-07-05.  The 1^st opposite party informed Rajasthan State Seeds Corporation by way of four letters on 09-09-05, 20-10-05, 22-12-05 and 01-03-06 stating that the bank guarantee has become in operated and to return the unused bank guarantee document which was duly executed by banker on         11-04-05. 

                The complainant approached the banker’s ombudsman on 17-12-08, which stood time barred and was not maintainable in terms of clause 14 (1) and 9(3)(d) of the BOS.  The complainant alleges in the event of bank guarantee not invoked by the creditor usually bankers return the fixed deposit covered under bank guarantee.  But the opposite parties failed to return the FDR even after lapse of four years, which amounts to deficiency of service.  Hence, the complaint.

3.     The 1^st opposite party filed its version, which is brief as follows:

                The complainant is not a consumer as defined under Consumer Protection Act, 1986 as it is admittedly carrying on commercial activity and therefore, the complaint deserves to be dismissed.  All the complaint mentioned transactions have taken place at Vijayawada.  Therefore, this Forum does not have any territorial jurisdiction to entertain this complaint and deserves to be dismissed.

                The complainant is representing in his individual capacity and contending on behalf of firm and the said firm is a partnership concern as per the records of this opposite party and that the other partners of the said firm M/s. Professional Cargo Carriers caused a letter not to entertain any withdrawals by the complainant.  The bank guarantee issued against the contract entered by the firm M/s. Professional Cargo Carriers with M/s. Rajasthan State Seeds Corporation (RSSC) in respect of transportation relating to the said firm.  It was specifically stated in clause 7 of the conditions of the bank guarantee that “We ING Vysya Bank Limited branch, Gayathri Nagar, Vijayawada lastly undertake not be revoke this guarantee during the currency except with the previous consent of the RSSC in writing.”  The original bank guarantee is hold by RSSC and it is not returned till today to this opposite party.  The complainant intentionally failed to implead RSSC as a party to the proceedings. 

                It is fact that the complainant has been receiving the periodical interest without protest and now claiming interest at 24% in the complaint.  It shows the malafied intention of complainant.  The complaint can be considered to be a false a frivolous complaint and shall be dismissed in limini.                

4.             The 2^nd opposite party remained exparte.  The complainant and 1^st opposite party have filed their respective affidavits.  Ex.A1 to  A12 on behalf of complainant and Ex.B1 to B12 on behalf of 1^st opposite party were marked.

5.      Now the points for consideration are

1. Whether the Forum has jurisdiction to entertain the complaint?
2. Whether the opposite parties have committed deficiency of service?
3. To what relief the complainant is entitled to?

6.      POINT No.1

                Originally M/s.Professional Cargo Carriers was a partnership firm doing business at Vijayawada comprising the complainant and three others as partners as seen from the resolution deed dt.18-01-06.

7.             The bank guarantee bond dt.06-04-08 marked as Ex.A3 was obtained on 11-04-05 at Vijayawada.  By the date of Ex.A3          M/s.Professional Cargo Carriers was doing business at Vijayawada, the same was collaborated by Ex.A7 correspondence by the 1^st opposite party with complainant as partner of M/s. Professional Cargo Carriers.  The deed of dissolution was executed on 18-01-06 and it revealed that the partnership was dissolved with effect from 31-03-05.                      

8.               The National Commission in 2005 CTJ 836 (NC) between Prakash Air Freight Pvt. Ltd. Vs. Widia (India) Ltd. and another, observed

                    “Branch office occurring clause (a) of subsection (2) of sec.11 is relatable to the place where a part of cause of action arises.  In a case of short delivery of consignment of goods entrusted by the complainant at Bangalore for carriage by road complaint cannot be entertained at Chennai merely because the carrier maintained a branch office at Chennai, where no part of cause of action arose”.

9.             The Hon’ble Supreme Court of India in 2010 CTJ 2 (SC) between Sonie Surgical Vs. National Insurance Company Limited, while interpreting amended Sec.17 clause 2 of C. P. Act, held,

                        “In our opinion, an interpretation has to be given to the amended Section 17(2)(b) of the Act, which does not lead to an absurd consequence.  If the contention of the learned counsel for the appellant is accepted, it will mean that even if a cause of action has arisen in Ambala, then too the complainant can file a claim petition even in Tamil Nadu or Guwahati or anywhere in India where a branch office of the insurance company is situated.   We cannot agree with this contention.   It will lead to absurd consequences and lead to bench hunting.   In our opinion, the expression ‘branch office’ in the amended Section 17(2) would mean the branch office where the cause of action has arisen.  No doubt this would be departing from the plain and literal words of Section 17(2)(b) of the Act but such departure is sometimes necessary (as it is in this case) to avoid absurdity”.     

10.           In view of the above decisions of National Commission and Supreme Court of India, this Forum has no territorial jurisdiction to entertain the complaint. Therefore, the decisions relied upon by the complainant need not be looked into. The complainant intentionally avoided the cause of action para to bring this case before this Forum.  Hence, this complaint is returned for presentation in the appropriate Court.

11.    POINT No.2       

                Since the case does not fall under the territorial jurisdiction of the Forum, this point need not be answered. 

12.   POINT No.3       

                In the result, the complaint is returned for presentation in appropriate court. 

Typed to my dictation by the Junior Steno, corrected by us and pronounced in the open Forum, this the 18^th day of May, 2011.     

          MEMBER                               MEMBER                            PRESIDENT          

 APPENDIX OF EVIDENCE

                                        DOCUMENTS MARKED

For Complainant:         

For 1^st opposite party: 

                                                                                              Sd/-XXXX

                                                                                                PRESIDENT