THE CONSUMER DISPUTES REDRESSAL FORUM, KOZHIKODE.
I.A.231/2016 IN C.C.220/2014
Dated this the 30th day of November, 2016
(Smt. Rose Jose, B.Sc, LLB. : President)
Smt.Beena Joseph, M.A : Member
Sri. Joseph Mathew, M.A., L.L.B. : Member
ORDER
Present: Rose Jose, President:
This petition is filed under Section 12 of Consumer Protection Act, 1986for getting an order directing the opposite party Bank to pay them the cheque amount of Rs.1,70,000/- with 12% interest per annum, a compensation of Rs.20,000/- for the mental agony and inconvenience suffered by them and cost of the legal proceedings.
The fact of the case is that the complainant is a business concern doing transport finance business. In the course of their business activities there will be cheque transactions. It is stated that a cheque issued by one Abelnra Himan, one of their client, bearing No. 166601 dated 15/10/2013 for Rs.1,70,000/- was presented before the opposite party bank for encashment through the collecting bank M/s. Axis Bank, Calicut Branch. The opposite party had returned the cheque on 14/11/2013 with endorsement “kindly contact drawer”. It is stated by the petitioner that a cheque shall not be returned without a specific reason and the reason shown is not a valid reason for returning the cheque. The opposite party bank ought to have mentioned, whether there is lack of sufficient fund or whether the account is closed or any other valid reason in the memo. As the cheque is returned with such an endorsement in the memo, they could not take prosecution measures against the drawer under Section 138 of Negotiable Instrument Act.
It is further stated that though they have requested the opposite party bank to inform the correct reason and to issue another memo showing the valid reason for its return, instead of complying the request, they informed that they are not bound to issue a memo as desired by the complainant. Thereupon they have issued a lawyer notice to the opposite party demanding for their loss due to the deficiency in service and unfair trade practice committed by the opposite party bank but that was not replied. The above said act of the opposite party caused much hardship, mental agony and huge financial loss and that amount to deficiency in service. Hence this petition.
The opposite party filed version, questioning the maintainability of this petition. It is admitted that the said cheque was presented before them by the complainant on 15/10/2013 for collection through Axis Bank, Kozhikode. It is submitted that the said account was a dormant account due to non operation and there was only zero balance in the account. Since the above account was a dormant account, the cheque was returned in the CTS clearing stating the reason as “kindly contact drawer”. The reason shown for returning the cheque is valid and not frivolous as alleged and the complainant can very well proceed with prosecution measures under Section 138 of Negotiable Instrument Act against the drawer. Opposite party further submitted that they have replied to the lawyer notice on 04/02/2014 stating the true and correct facts and the reply was received by complainant’s counsel on 05/02/2014. In short, they are not liable to pay any compensation sought for in the complaint as there is no deficiency in service on our part as alleged. Hence prayed to dismiss the same with their cost.
At the time of evidence opposite party filed an I.A.23/2016 challenging the maintainability of this complaint before this Forum and they prayed to decide the maintainability issue as a preliminary issue. Hence we decided to consider this matter as a preliminary issue at this stage before going into the merits of this case.
According to the opposite party the petitioner is a Company engaged in the business activities ie. doing transport finance and that is commercial in nature, would not come under the definition of “Consumer” as defined in Consumer Protection Act. Section 2-1(d) of Consumer Protection Act excluded the transactions for commercial purpose from the purview of Consumer Protection Act. In the petition complainant themselves admitted that they are “Business concern doing Transport Finance Business” for profit making. There is no case or pleading that this transport finance business is for earning his livelihood by means of self employment, hence it is clearly commercial. As the complainant is not a consumer as per the Consumer Protection Act, 1986, complaint filed by the petitioner is not maintainable. Hence the complaint is liable to be dismissed before going to the merits of the case.
In view of the facts stated above and as per the purview of Consumer Protection Act, 1986 we are of the opinion that the petitioner is not a consumer. Hence the I.A. with regard to the issue of maintainability is allowed and original petition is dismissed as not maintainable before this Forum. The petitioner can approach the proper Forum having authority to hear and decide the matter, if they want so. No order as to cost.
Dated this the 30th day of November, 2016
Date of filing: 24/04/2014
SD/-MEMBER SD/- PRESIDENT SD/- MEMBER
(Forwarded/By Order)
SENIOR SUPERINTENDENT
