Per Sri A. Hazarath Rao, President:-
The complainant filed this complaint u/s 12 of the Consumer Protection Act seeking payment of Rs.1,00,000/- towards cheque amount; Rs.9600/- as interest from 19-01-12 to 30-07-12 at 18% p.a.,; Rs.20,000/- towards mental agony and deficiency of service and for costs.
2. In brief the averments of the complaint are these:
The complainant is having SB account bearing No.01891700008730 with the opposite party since 2008. The complainant presented the cheque bearing No.640401 dated 19-01-12 for Rs.1,00,000/- drawn on Punjab National Bank given by his debtor B. Ramesh of Guntur. After verification the complainant came to know that the cheque amount was not credited into his account. Through enquiries the complainant came to know that the opposite party had returned the said cheque to him through M/s Maruthi couriers on 28-01-12 vide receipt No.118261000527. The complainant thereafter enquired with M/s Maruthi couriers who inturn informed that the opposite party did not entrust such cover to them. The opposite party did not respond or acted promptly when the complainant brought the same to its notice. The complainant approached the opposite party on several occasions and requested the opposite party to return the cheque for taking legal action against the person who gave that cheque as the period of six months is going to be expired. The complainant had lost the opportunity of taking any legal steps against his debtor Ramesh. Taking advantage of the above things the said Ramesh is not accepting to issue fresh cheque in favour of the complainant. The complainant issued a legal notice to the opposite party requiring him to compensate with the cheque amount. The opposite party neither returned the cheque to the complainant nor credited the cheque amount to his account. The said conduct of the opposite party amounted to deficiency of service. The complaint therefore be allowed.
3. The contention of the opposite party in nutshell is hereunder:
The complainant is having SB account with the opposite party at its Guntur branch vide account No.01891700008730. The complainant on 25-01-12 presented the cheque bearing No.640409 drawn on Punjab National Bank, Guntur. The opposite party sent the said cheque to its branch at Vijayawada for clearance. Subsequently the Punjab National Bank returned the said cheque as unpaid. As per its practice and procedure the opposite party directly sent the said cheque to the complainant along with a letter dated 28-01-12 through M/s Maruthi Courier service under receipt No.118261000527 dated 28-01-12. After depositing the said cheque with it the complainant neither approached nor made any complaint to the opposite party. The complainant was silent for about six months and at the nick of moment i.e., ten days short of expiry of six months the opposite party received a legal notice dated 09-07-12 from the complainant. After receipt of legal notice the opposite party made enquiries with M/s Maruthi Couriers who in turn informed that the complainant duly received the said cover and handed over its proof. It is mere negligence on the part of the complainant in responding at a belated stage. The complainant did not initiate any legal action u/s 138 of The Negotiable Instruments Act against the drawer of the said cheque. As the complainant lost limitation in filing a complaint against drawer of the said cheque he filed this false complaint. The terms and conditions agreed upon by the complainant while opening an SB account are binding on him. As per clause 1.15 of the terms and conditions the complainant has no right to involve the opposite party for any delay that may be happened in delivery of the letter or communication sent through a courier to the complainant. The complainant did not approach ombudsman within time as per clause 1.31 of the terms and conditions of the agreement. The complainant is quite aware of the fact about the opposite party returning the cheque to him through M/s Maruthi courier service. The complainant instead of taking action against the said courier approached this Forum with false allegations to extract money. This Forum has no territorial jurisdiction to entertain the complaint. The complaint is bad for misjoinder of M/s Maruthi courier services. The opposite party did not commit any deficiency of service. The complaint therefore be dismissed.
4. Exs.A-1 to A-5 and Exs.B-1 to B-4 were marked on behalf of the complainant and opposite party respectively.
5. Now the points that arose for consideration in this complaint are these:
- Whether this Forum has territorial jurisdiction to entertain the complaint?
- Whether the opposite party committed deficiency of service by not returning the dishonored cheque to the complainant?
- Whether the complainant is entitled to compensation?
- To what relief?
6. Admitted facts in this complaint are these:
a. The complainant is having SB account with the opposite party vide account No.01891700008730 (Ex.B1,B4 and A2).
b. The complainant on 25-01-12 presented the cheque bearing No.640401 dated 19-01-12 for Rs.1,00,000/- (Ex.A1).
c. The complainant issued a notice to the opposite party who received it (Ex.A3 and A4).
7. POINT No.1:- Ex.B2 is terms and conditions of the opposite party bank issued in 2012. Clause 21.40.1 says that the card holder hereby submits to the non-exclusive jurisdiction of the courts at Mumbai. A complaint can be instituted at a place where the cause of action wholly or in part arises as envisaged under section 11(2)(c) of Consumer Protection Act. The opposite party is doing business in banking at Guntur where the complainant opened an account and presented the cheque in question. Therefore the whole cause of action arose at Guntur. The said clause was not exclusive jurisdiction but non-exclusive jurisdiction. Under those circumstances, the said contention of the opposite party is devoid of merit and we therefore answer this point against the opposite party.
8. POINT No.2:- The complainant filed IA 17 of 2013 to receive the CD said to have been containing the conversation between the officials of opposite party and M/s Maruthi Courier Service personnel. This Forum on 11-02-13 allowed the said petition for the limited purpose of marking compact disc as an exhibit. That is why the compact disc was marked as Ex.A-5. The learned counsel for the complainant requested this Forum to hear the conversation recorded in Ex.A-5. The opposite party in its counter to IA 17 of 2013 contended that Ex.A-5 was a created one. Under those circumstances mere hearing of conversation itself is not sufficient unless the voice recorded in Ex.A-5 was sent to expert in order to compare the voice recorded in it and it is a complicated procedure. Therefore the said request of the complainant cannot be considered.
9. Burden is on the opposite party to prove that it returned the said cheque to the complainant through M/s Maruthi Couriers as a negative aspect cannot be proved. In order to discharge its burden the opposite party relied on the averments made in the complaint itself. The complainant in 1st page of the complaint mentioned the following:
“When the complainant after verification of the account the said amount was not credited into his account by the opposite party’s bank and the complainant made several enquiries with the opposite party bank and came to know through the persons in the opposite party that the said cheque was returned to the complainant through Maruthi courier under receipt No.118261000527 on 28-1-2012. Later the complainant has enquired with the Maruthi courier service, Guntur and inturn they informed that there is no such cover was entrusted by the bank persons at any point of time much less on 28-01-12. When the said fact was brought to the notice of the opposite party they neither responded or acted properly nor taken any steps in realisation of the amount”.
10. The same was also mentioned in Ex.A-3 notice. The said averments revealed that the complainant looked into his account with the opposite party and came to know about sending the bounced cheque through M/s Maruthi Couriers. Ex.B-4 revealed that the opposite party though initially credited Rs.1,00,000/- (cheque proceeds) on 27-01-12 but reverted the entry on 28-01-12 and also charged Rs.100/- on 28-01-12 as RTN charges. Inspite of that the complainant did not issue notice to the said couriers for the reasons best known to him.
11. The complainant got issued Ex.A-3 legal notice on 09-07-12 i.e., after a period of more than five months as rightly contended by the opposite party. The opposite party discharged its obligation by returning the bounced cheque through M/s Maruthi couriers as seen from Ex.B-3 coupled with the averments made in the complaint as extracted supra. The complainant during the course of argument denied the signature on Ex.B-3 said to have been issued by M/s Maruthi Courier. It is for the Maruthi courier to establish the signature on Ex.B-3 to whom it belonged to. The complainant did not choose to take any action against the said courier for the reasons best known to him.
12. The complainant also failed to initiate action against his debtor as rightly contended by the opposite party because the bouncing of cheque or non debiting Rs.1,00,000/- from the account of complainant’s debtor can easily be established as rightly contended by the learned counsel for the opposite party.
13. The contention of the opposite party about returning bounced cheque to the complainant is well established by Ex.A-3. Under those circumstances the deficiency of service coined by the complainant cannot be accepted. We therefore answer this point against the complainant.
14. POINT No.3:- In view of above findings, the complainant is not entitled to any compensation. The complainant’s occupation was described as business in cause title and his evidence affidavit. The cheque in question was issued by his debtor Ramesh. The complainant in 1st page of his complaint mentioned the following:
“The complainant had an savings bank account bearing no.01891700008730 in opposite party’s bank since 2008 onwards and operating the said account regularly. In his transactions he presented a cheque bearing No.640401 dt.19-01-2012 for Rs.1,00,000/- of Punjab National Bank, Guntur which was given to complainant by one Sri B. Ramesh of Guntur who has indebted to him. The complainant has presented the said cheque in the opposite party’s bank for crediting the amount into his account.”
The said averments revealed that the complainant opened SB account with the opposite party for his business transactions and used services of the opposite party for commercial transactions. Any person hiring service rendered by a service provider for commercial purpose is outside the scope of the Consumer Protection Act.
15. In Economic Transport Organisation vs. Charan Spinning Mills (P) Limited and another 2010 II CPR 181 (SC)(FB) = 2010 CTJ 361 (SC) it was held:
Section 2 (1) (d) of Act was amended by Amendment Act 62 of 2002 with effect from 15-03-03, by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of ‘consumer’. After the said amendment, if the service of the carrier had been availed for any commercial purpose, then the person availing the service will not be a ‘consumer’ and consequently, complaints will not be maintainable in such cases. But the said amendment will not apply to complaints filed before the amendment.
16. In Smt Sushma Goel vs. Punjab National Bank 2011 (2) CPR 376 (NC) it was held:
“From this and the evidence produced on behalf of the complainant before the fora below, it is abundantly clear that the entire matter in the complaint filed by Smt Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. The revision petition itself claims in para 3.1 that:
“Revisionist is engaged in business of the share trading and is an authorized agent of M/s Bonanza Portfolio Limited (herein referred to as “company”) a company incorporated under Companies Act 1956 having its registered office at 4353/4C, Ansari Road, Darya Ganj, New Delhi.”
By this admission, the complaint will fall within the exception clause contained in Section 2(1)(d)(ii) of the Consumer Protection Act, as amended in 2002. In terms of this provision, the RP/Complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986. Therefore, in our view, the State Consumer Disputes Redressal Commission, Uttarakand has rightly rejected the Consumer complaint filed by the Revision Petitioner”.
Taking a clue from the above decisions, we are of the considered opinion that the complainant does not fall under the definition of consumer as defined under Section 2(1)(d)(ii) of the Consumer Protection Act and as such the complaint is not maintainable. Even on this count also the complaint has to fail.
17. POINT No.3:- In view of above findings, in the result the complaint is dismissed without costs.
Typed to my dictation by Junior Stenographer, corrected by me and pronounced in the open Forum dated this the 8th day of March, 2013.
MEMBER PRESIDENT
APPENDIX OF EVIDENCE
DOCUMENTS MARKED
For Complainant :
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
A1 | 19-01-12 | Copy of counterfoil |
A2 | 30-06-12 | Computerized account copy of the complainant |
A3 | 09-07-12 | o/c of registered legal notice |
A4 | - | Acknowledgment |
A5 | - | Compact disc |
For opposite party:
Ex.No | DATE | DESCRIPTION OF DOCUMENTS |
B1 | - | Account opening form along with pay-in-slip |
B2 | - | Terms and condition of the HDFC bank |
B3 | - | Courier consignment note |
B4 | - | Copy of statement of account of the complainant |
PRESIDENT
NB: The parties are required to collect the extra sets within a month after receipt of this order either personally or through their advocate as otherwise the extra sets shall be weeded out.
