Dated this the 10^th day of July  2012

 

Present : Smt.Seena H, President

R.G.Venkitesh,

M/s.N.R.Srinivasan,

Bharath Petroleum Dealers,

XII/531, Coimbatore Road,

Chandranagar, Palakkad                       -        Complainant

(By Adv.Dhananjayan)

V/s

 

The Branch Manager,

H.D.F.C. Bank Ltd.,

Chandranagar Branch,

Palakkad                                            -        Opposite party          

            By Smt.SEENA.H. PRESIDENT

 

Complaint in brief:

 

Complainant is a dealer of Bharath Petroleum. Complainant maintains an account with the opposite party bank, having a closing balance of Rs.53,792/- as on 24/12/04. But a cheque for Rs.45,000/- dated 14/12/2004  issued by complainant in favour of RJP combines was returned by the opposite party stating ‘fund on holds’. On receiving the intimation about the return of the cheque from the RJP Combines, a lawyer notice was served to the opposite party on 3/1/2005. The complainant submits that the opposite party did not care to send even a reply till the date of filing this complaint. It is further submitted in the complaint that opposite party had sent a letter on 3/1/05 to the complainant requesting for the details of transactions dated 15/12/04 amounting to Rs.48,687.50/-. In fact, the total amount of transaction transacted on 15/12/2004 was Rs.48,603/- and the transaction which was put on hold was Rs.47,500/- and not for Rs.48,687.50/- as stated in the letter. The complainant alleges that the opposite party has without his knowledge, or without his approval debited from his account a sum of Rs.47,500/- on 12/1/05 and a sum of Rs.630/- on 30/1/05. It is also added in the complaint that the above mentioned debits by the opposite party were in violation of the provisions of the banking. Neither banking regulation act nor the law of contract permitted the opposite party to adopt such a course viewed from any angle. The aforesaid action of opposite party was against the principle of natural justice and hence the service rendered by the opposite party to the complainant was perse deficient. The complainant alleges that the opposite party has committed deficiency in service as defined under the C.P.Act because opposite party service suffered from several short comings, imperfections and was a restrictive trade practice. It is stated in the complaint that the complainant had to undergo severe mental agony because of the recalcitrant attitude of the opposite party. The complainant has no other means except to file a complaint before this Forum praying for an order to direct the opposite party to credit to his account the amounts unauthorizedly debited, to direct the opposite party to pay a sum of Rs.25,000/- as compensation for the mental agony caused to the complainant and to pass any other reliefs which the Hon’ble Forum in the circumstances deem fit to grant.

 

Opposite party admit that the complainant maintained an account with opposite party and closing balance as on 24/12/2004 is Rs.53,792.51 and the cheque dated 24/12/04 for Rs.45,000/- is returned to them stating fund on holds. It is submitted that opposite party and complainant entered into a Merchant Establishment Agreement by which opposite party has approved the complainant as an establishment for the purpose of processing payments on valid cards. According to opposite party when a card holder purchase his card for the purpose of payment before the complainant, complainant should confirm

 

 

Opposite party averred that the credit card transaction done by the complainant and card holder on 14/12/04 for Rs.47,500/- (Card No.4941300119907863) has been confirmed by the card issuing bank as fraudulent transaction. The aforesaid intimation was received by them on 20/12/04. Since the complainant violated the terms and conditions of the agreement between the complainant and the opposite party, they returned cheque stating fund on holds. Opposite party has also replied to the notice dated 1/1/05 requesting for the details of transactions dated 14/12/04. It is stated in the version that the opposite party has communicated to the complainant in person and by phone that the transaction was not a valid transaction. But the complainant did not give the details of the transactions or send a reply to their letter dated 3/1/05. Opposite party alleges in their version that the complainant has not produced the charge slip as requested in their letter dated 3/1/05. Hence they debited from the complainants account a sum of Rs.47,500/- on 12/1/05 and a sum of Rs.630/- on 3/1/05 and the above said fact was already informed to the complainant personally because the transaction taken place on 14/12/04 was a fraudulent one. Opposite party denied  the allegation in para 8 & 9 of the complaint. They further submit that the complainant had filed the complaint suppressing the material fact that the transaction done on 14/12/04 was fraudulent transaction. It is also averred in the version that the opposite party had received a charge back (dispute of transaction) from the original card holder which was intimated to the complainant (letter on 3/1/04 and 12/1/05) requesting to produce the charge slip for providing the transaction. The opposite party is entitled to refuse payment to the complainant if the charge slip was not produced as per the agreement. The complainant is bad for non joinder of necessary and proper party as the card holder was not a party to the complainant. Opposite party in their version alleges that the present complaint is exclusively triable by a Civil Court and as such is liable to be dismissed summarily. The allegation of deficiency in service is wholly misconceived, groundless, false, untenable in law besides being extraneous and irrelevant having regard to the fact and circumstances of the matter under reference. Opposite party states that there was no merits in the complaint and the complainant was not entitled for any relief as claimed for in the complaint. The complainant is liable to pay compensatory cost to the opposite party besides cost of the complaint as the complainant has dragged the opposite party unnecessarily to a court by filing a false complaint. Opposite party requests that his contentions be accepted and the complaint be dismissed with costs.

 

Complaint was once allowed by the Forum directing opposite party to credit a sum of Rs.48,130/- to the complainant and pay Rs.1,000/- as cost. Matter was taken up in appeal. Hon’ble State Commission has remanded back the matter for fresh disposal. Hon’ble State Commission has directed to consider the maintainability of the matter before the Forum in view of the 2003 amendment of the Consumer Protection Act. Accordingly both parties were heard regarding the preliminary issue of maintainability of the case before the Forum.

Chief affidavit of both parties filed. Ext.A1 to A7 documents and Ext.B1 & B3 series were received in evidence. After remand no further evidence adduced.

Heard both parties. Complainant is a partner of a partnership firm as per Ext.B3 documents. The counsel for the complainant has vehemently argued for the that as per the Consumer Protection Act Section (2)(1)(m) person includes a firm whether registered or not, so a partner has ample capacity to file a complaint before the Forum. Also argued for the position that characteristic of a partnership firm is profit making and if the Act specifically included a firm entitled to file complaint, the present complaint is maintainable before the Forum. Opposite party from the first instance of filing the version itself has stated that complaint is not maintainable before the Forum.

 

It is true that a partnership firm can file a complaint as a consumer before the Forum, but as per Sec 2(1)(d) Cl.(ii) of Consumer Protection Act, consumer means any person who heirs or avails of any service 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 (heirs or avails of) the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payments, when such services are availed of with the approval of the first mentioned person (but not include a person who avails of such service for any commercial purpose)

So the real issue here is whether the service availed by the firm is for any commercial purpose. Going through the evidence on record it is seen that complainant has availed the service of opposite party, for maintaining the accounts for the purpose of its business activity. So clearly the transaction is relatable to its business activity and therefore falls under the category of commercial purpose. There is no plea for the complainant that it is not for commercial purpose. Hence we find the preliminary issue against the complainant.

Preliminary issue having found against the complainant, we are not going into the other issues of deficiency in service etc.,

 

In the result we dismiss the complaint reserving the right of the complainant to approach appropriate Court to seek remedy. Complainant shall also have the liberty to seek extension of the time spent for prosecuting this complaint.

 

Pronounced in the open court on this the 10^th  day of July 2012.

Seena.H

President

Preetha G Nair

Member

  Sd/-

Bhanumathi.A.K.

Member

 

 

Ext.A1 – Original cheque dated 24/12/04

Ext.A2 – Cheque returned memo dated 27/12/04

Ext.A3 series 3 nos – Copy of Lawyer notice alongwith postal receipt

Ext.A4 – Statement of accounts from 1/12/04 to 24/12/04

Ext.A5 – Statement of accounts from 1/1/05 to 31/1/05

Ext.A6 – Letter issued by opposite party dated 3/1/05 to complainant

Ext.A7 series 4 nos – Details of credit card transactions, Carbon copy

 

 

Ext.B1series – Letter signed by complainant alongwith consignment note

Ext.B2 series – Letter signed by opposite party to complainant alongwith

Ext.B3 – Copy of Merchant Application Agreement Form