22.09.2016

MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.

              Present Appeal has been preferred by the Appellant/complainant under section 15 of the C P Act, 1986 against the judgment and order dated 15/01/2015 passed by the Ld. District Forum, Kolkata Unit II in Complaint Case No. 261 of 2014 dismissing the complaint with the directions as under:-

              “That the Complaint be and the same is dismissed without any cost against the OP on the ground that the present dispute is not related to consumer dispute but it is completely a civil dispute and in fact without any order of the civil court, the matter cannot be properly adjudicated not even by the bank.”

             The facts of the case, in a nutshell, are that the Appellant/Complainant, a partner of the partnership firms jointly operated with his cousin under the name and style M/S Amkay International and M/S Enaar Enterprises, opened two current Bank Accounts bearing numbers 1354250701 and 100068 respectively in respect of the said two firms with the Respondent/OP Bank branch.

             Subsequently, due to certain disputes and differences of opinion between the partners, the Appellant/Complainant wrote one letter dated 14/05/2008 to the Respondent/O.P. Bank requesting therein to stop operation of the Account No.1354250701. The Appellant/complainant, in a further communication on the same day, informed the Respondent/OP Bank that the Power of Attorney which was executed by him on 21/08/2001 empowering one Mihir Kotari to operate the Current Account No.100068 being maintained in the Respondent/OP Bank has since been revoked. Accordingly, the Respondent/OP Bank was requested not to allow Sri Mihir Kotari to operate the said Account and also not to allow the fixed deposit of Rs.2,00,000/-in the name of M/S Enaar Enterprise, his proprietorship business, to be encashed by the said Mihir Kotari.

            The Respondent/OP, allegedly, in spite of the aforesaid communication being duly served upon him by the Appellant/Complainant, allowed the Accounts mentioned above to be operated which resulted in an, allegedly, illegal withdrawal of Rs.10,15,251/-including the aforesaid fixed deposit of Rs.2,00,000/-.

             The Appellant/Complainant requested the Respondent/OP Bank through his letter dated 15/03/2011 to produce the statement showing transaction of his Bank Accounts which, on receipt, unveiled the fact that the Accounts were operated even after the letters dated 14/05/2008 were served upon the Respondent/OP Bank. The original copies of the letters dated 14/05/2008, however, as submitted, could not be obtained on request for verification from the Respondent/OP Bank by the Appellant/Complainant.

             The Complaint dated 21/08/2012 filed by the Appellant/Complainant before the Banking Ombudsman also proved futile as the Bank Ombudsman, allegedly, to save the Bank, passed an unreasonable order dated 24/09/2012 rejecting the claim of the petitioner.

            The aggrieved Appellant/Complainant then filed the complaint case before the Ld. District Forum which the impugned judgment and order relates to.

            Heard the Ld. Advocate appearing on behalf of the Appellant/Complainant who submitted that the Respondent/OP Bank allowed the subject account to be operated illegally in collusion with some others although it was formally instructed not to operate the said Accounts through two letters dated 14/05/2008.

            The Respondent/OP Bank, as submitted, could not explain the reason for his illegal action. No fruitful result could be obtained even after lodging complaint with the Bank Ombudsman.

            Moreover, as submitted, admittedly the subject Accounts were current ones and opened by the joint proprietary firms for commercial transactions in connection with their business. The Appellant/Complainant who made no clear pleading as to the earning of livelihood by means of self-employment through the subject proprietary firms in the complaint, as submitted, was not a consumer within the meaning of the section 2(1)(d)(ii) read with explanatory notes of the C P Act,1986.

           The Ld. Advocate, with the above submission, prayed for passing the appropriate order setting aside the impugned judgment and order of the Ld. District Forum.

           There was none to represent the Respondent/OP.

           Perused the papers on record. It appears that the subject Bank Accounts were the Current Accounts opened by the two joint proprietary firms and the same were meant for commercial transactions in connection with the business of the said two firms. We did not find any averment in the complaint to the effect that the joint proprietary firms were created and run by the Appellant/Complainant for earning livelihood by means of self-employment.

           The Appellant/ Complainant, in view of the above, was not a consumer within the meaning of the C P Act, 1986 and the complaint, therefore, is not maintainable.

          The question on maintainability of the case being conclusively decided against the Appellant/Complainant of the case, we refrain ourselves from adjudicating on any further point raised in the complaint or in course of argument.

          Hence, ordered that the Appeal stands dismissed.  We make no order as to costs.