THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
ORDER IN I.A.1/17 IN C.C.NO.218/14
Dated this the 3rd day of January 2018.
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, MA, LLB : Member
ORDER
Present: Rose Jose, President:
This petition is filed by the petitioner under Section 12 of Consumer Protection Act, 1986 for getting an order directing the opposite parties to pay them the cheque amount of Rs.1,00,000/- along with Rs.20,000/- as compensation for their inconveniences with 12% interest per annum and also for the cost of the proceedings.
The petitioner is a business concern in the name and style M/s.Shriram Transport Finance Company Ltd. doing Transport Finance business. It is stated that during the course of business activities there will be cheque transactions as part of their business. The fact of the case is that, the cheque issued by one Mr. Anoop was presented for enhancement before the opposite party Bank through the collecting bank M/s. Axis Bank. The Cheque No.204882 dtd.15.10.13 was for Rs.1,00,000/-. The opposite party bank had returned the cheque on 13.12.13 with the reason “kindly contact Drawer”. It is stated by the petitioner that this is very strange to note that a cheque shall not be returned without a specific reason and the reason shown is not a valid reason. Due to the said act of the opposite party, they could not take prosecution measures under section 138 of Negotiable Instrument Act against the person who had issued the cheque. Though they have requested the opposite party to inform the correct reason and to issue a memo stating the valid reason for dishonor of the cheque, the opposite party has not complied the said request. More over they informed that, they are not bound to issue a memo as desired by the petitioner. The opposite party also stated that the petitioner company is not aware of the banking practices and that is why they had made such a request.
It is further stated that fed up with the partisan attitude of the opposite party bank, they had issue a Lawyer notice, demanding cheque amount and compensation, but the opposite party has not responded to that notice. This is clear example of deficiency in service on the part of the opposite party and so they are bound to pay the cheque amount as they could not recover the amount from the party who had issued the cheque. Hence this petition seeking relief.
The opposite party filed version contenting that, this petition is not maintainable either in Law or on facts of the case. This petitioner is not come under the definition of Consumer as envisaged under Consumer Protection Act. It is admitted that the said cheque was presented before them for collection, but it was returned for the reason “kindly contact Drawer” This means it can be either insufficient funds or exceeds arrangements etc. The said reason is usual in all the cheque return memos of various banks. The petitioner can very well initiate the prosecution under section 138 of Negotiable Instrument Act based on the aforesaid reason stated in the Memo and if necessary, the petitioner is entitled to summon the concerned official from the bank in order to substantiate the same.
It is further contended that, the petitioner without initiating any steps for prosecution Under Section138 of Negotiable Instrument Act within the statutory period, is now blaming them to redress their grievances. The reason put by them in the memo is not a strange reason as alleged in the petition. They are not supposed to give any further memo to the petitioner unless and until the cheque is presented again. The petitioner has no case that the said cheque has been presented before them more than once. There is no loss or injury sustained to the petitioner due to any of their acts as alleged. Instead of following the procedures and legal as well as statutory formalities under section 138 of Negotiable Instrument Act and other laws applicable in this matter for recovery of the cheque amount, the petitioner had initiated this frivolous and vexations litigation against them. It is only with the malafide intention to extract money illegally from them. There is no deficiency in service or unfair trade practice on their side as alleged and so they are not liable to compensate the petitioner in any manner. The petitioner is not entitled to get any of the reliefs sought for in the petition and hence prayed to dismiss the petition with compensatory cost.
After filing version by the opposite party the case was posted for evidence of the petitioner. At this stage the opposite party filed IA.1/17 challenging maintainability of this petition before this Forum as according to them the petitioner is not a consumer of them as well as not a consumer under section 2(1) d of the consumer Protection Act. They prayed to hear and decide this matter as a preliminary issue before going to the merits of this petition. Hence we decided to consider this matter as a preliminary issue.
The petitioner didn’t file counter to this IA and so after hearing the opposite party the IA is taken for orders.
Section 2(1)d of Consumer Protection Act excluded transactions for commercial purposes from the purview of Consumer Protection Act. In this case the petitioner themselves admitted that they are engaged in “Transport Finance Business”. Business is for earning profit and thus commercial in nature. It was also admitted that the cheque presented was in connection with their business activities. So as per section 2(1)d of Consumer Protection Act, the petitioner does not come under the definition of Consumer. Only a consumer can file complaint before the Fora under sections of Consumer Protection Act. More over as the petitioner is engaged in a large scale business having transactions of crores of rupees they cannot claim the benefit of exclusion clause under section 2(1)d(ii) of the Act also.
In view of the said findings, we are of the opinion that the petitioner is not a consumer as per section 2(1)d of Consumer protection Act and hence this petition is not maintainable before this forum. Hence the petition is liable to be dismissed without going to the merits of this case.
In the result IA.1/17 is allowed and the original petition is found not maintainable before this forum. Hence the complaint is dismissed. Parties will bear their own costs.
Dated this 3rd day of January 2018.
Date of filing: 24.04.2014.
SD/-MEMBER SD/- PRESIDENT SD/-MEMBER
APPENDIX
Documents exhibited for the complainant:
Nil
Documents exhibited for the opposite party:
Nil
Witness examined for the complainant:
Nil
Witness examined for the opposite party:
None
Sd/-President
//True copy//
(Forwarded/By Order)
SENIOR SUPERINTENDENT
