Karnataka

Kolar

CC/18/2020

B.Prakashchand - Complainant(s)

Versus

The manager, Corporaion Bank - Opp.Party(s)

Rabindranath Singh

10 Nov 2020

ORDER

Date of Filing: 26.06.2020

Date of Order: 10.11.2020

BEFORE THE KOLAR DISTRICT CONSUMER DISPUTES REDRESSAL COMMISSION, OLD D.C. OFFICE PREMISES, KOLAR.

 

Dated: 10^TH DAY OF NOVEMBER 2020

PRESENT

SRI. K.N. LAKSHMINARAYANA, B.Sc., LLB., …… PRESIDENT

SRI. B.M. NAGARAJA, B.A., LLB., ….. MEMBER

 

CONSUMER COMPLAINT NO. 18 OF 2020

Sri. B. Prakashchand,

Aged About 62 Years,

S/o. Late Baboothmull,

4^th Cross Road, Robertsonpet Post,

K.G.F. – 563 122.                                             ….  COMPLAINANT.

(Rep. by Sri. Rabindranath Singh, Advocate)

- V/s –

1) The Manager,

M/s. Corporation Bank,

Robertsonpet Branch,

KGF-563 122.

(Rep. by Sri. J.Simon, Advocate)

 

2) The General Manager,

M/s. Corporation Bank,

Head Office, Mangaladevi Temple Road,

Pandeshwar, Mangaluru-575001.

(Rep. by Sri. J.Simon, Advocate)

 

3) The Commercial Tax Officer,

(Audit & Recovery), Office of the

Commercial Tax Officer, No.1101,

Narayana Rao Road,

Bangarpet-563 114.

(In-person)                                                                       …. OPPOSITE PARTIES.

     

ORDER

BY SRI. K.N. LAKSHMINARAYANA, PRESIDENT

01.   The complainant has filed this Consumer Complaint against OPs and prays to direct the OP Nos.1 & 2 to refund a sum of Rs.74,468/- along with interest at 16% per annum from the date of deduction i.e., 18.09.2019 till realization with court cost and miscellaneous expenses and allow the complaint.

02.   The brief facts of the complainant case is that, he is a customer of OP No.1 Bank having S.B. Account No.5201010180072638 and had balance amount of Rs.7,09,078/- in his account.  On 11.10.2019 the complainant was shocked after noticing a sum of Rs.74,468/- was withdrawn from his S.B. account on 18.09.2019.  Immediately complainant approached OP No.1 and enquired, but OP No.1 replied that, on the requisition of CTO, Bangarpet, OP No.1 deducted the said amount from the complainant’s S.B. Account and paid the same to CTO, Bangarpet by way of DD dated: 19.09.2019.  The complainant has further contended that, he is not due any amount to the CTO, Bangarpet and the CTO has also not filed any case against him.  The OP No.1 has no right to deduct the said amount from the complainant’s S.B. Account without his consent or knowledge and have not intimated regarding the requisition given by the CTO, Bangarpet and there is no court order in this regard.  The OP No.1 has colluded with the CTO, Bangarpet, and played fraud and misappropriation and OP No.1 is liable to repay the said amount along with interest @ 16% per annum from the date of deduction till realization.  The complainant issued legal notice to OP Nos.1 & 2 and the same was served on them.  OP No.1 has given reply dated: 23.10.2019.  There is negligence and deficiency of service on the part of the OP No.1 and the cause of action arose on 11.10.2019 when the complainant noticed the said withdrawal and on 23.10.2019 when OP No.1 has given reply.  Hence the complainant has filed this complaint seeking the above set-out relief.

03.   On receipt of notice OP Nos.1 & 2 appeared through the counsel and filed version.  OP No.3 appeared in-person and filed version.

04.   The counsel for OP Nos.1 & 2 filed version.  The said version is signed only by OP No.1 and the counsel and contended that, the complaint is not maintainable either in law or on facts and is liable to be rejected in limine.  The averments made in Para-2 and 3 of the complaint are may be admitted as correct.  The averments made in Para-4 & 7 of the complaint are correct.  The averment made in Para-5 of the complaint is not aware of this OP.  The averments made in para-6, 8 & 9 are denied as false and baseless and there is no deficiency of service on the part of OPs and there is no cause of action to file this complaint.  OP No.1 has specifically contended that, on 17.09.2019 the OP-Bank has received notice from Government of Karnataka (Commercial Tax Department), Bangarpet, Under Section 45 of Karnataka Value Added Tax Act 2003.  Wherein it has stated that, Sri.B.Prakash Chand, S/o. Bhaboothmulla, Proprietor of M/s. Baba Fabrics, B.M.Road, Robertsonpet, KGF (TIN-29670280604) whose PAN No. ACUPCO528R, who is arrears due a sum of Rs.74,468/- (Tax, Penalty, Interest) and in exercise of powers conferred by Section 45(1) of KVAT Act, 2003, OP No.1 is directed to out of the money payable to the said dealer shall be paid immediately in favour of SGSTO-182, KGF, and shall be sent within 3 days from the date of receipt of notice and if failed to do so, OP No.1 shall be held personally liable and shall be recovered from OP No.1 as arrears of land revenue.  In the event not holding any money in the account of the said dealer, OP No.1 shall intimate the same within 03 days in writing to the Commercial Tax Officer, Bangarpet.  The CTO has also served the said copy to the notice of the complainant and he is fully aware of the same.  The OP has waited for intimation from the complainant’s side and as there was no response from the complainant the OP had sent Demand Draft No.011672, dated: 18.09.2019 for Rs.74,468/- to CTO to fulfill the obligation as per the notice and provision of law.  There is no fault on the part of OP and has only remitted the said amount to the CTO Government of Karnataka as per the law and OP is not liable to pay any amount to the complainant.  If the complainant insists that, he is not due any amount to the Government, he may sue against Commercial Tax officer, Bangarpet, and shall recover the amount.  The complainant has no legal right to recover the said amount from OP-Bank.  This OP-Bank has only sent the amount which was available in the complainant’s account to the Government as per their order and the complainant is at liberty to proceed against the Government and there is no deficiency of service on the part of OP-Bank and prays to dismiss the complaint.   

05.   OP No.3 has filed version and contended that, the relationship between him and the complainant is defined as a registered dealer and it cannot be construed as a customer or consumer.  As per Section-2(12) of the Taxation Laws which reproduced as ‘Dealer’ means any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration and is under statutory obligation to declare his sales turnover in monthly returns under the relevant Act on every month and to pay taxes thereon.  The complainant was the defaulter in monthly returns under the relevant Act and not paid the taxes thereon.  The complainant was the defaulter and demand notice was sent to the complainant through RPAD and arrears of tax was collected through the Bank.  As the Bank has lien on the due amount and the Bank has remitted the said amount to the OP No.3 department through DD dated: 18.09.2019 and prays to dismiss the complaint.  

06.   The complainant has filed affidavit evidence by way of examination-in-chief and produced 05 original documents i.e., 1) Account Extract-Exhibit-P.1. 2) Legal Notice–Exhibit.P.2, 3) Two postal acknowledgments–Exhibit-P.3. 4) Two Postal receipts–Exhibit-P.4. 5) Reply Notice–Exhibit-P.5. 

07.   The Branch Manager of OP No.1 has filed affidavit evidence by way of examination-in-chief and so also filed Memo with 05 documents i.e., 1) Notice Under Section 45(1) of KVAT Act-Annexure-A. 2) Account Extract-Annexure-B. 3) Letter from OP-Bank to CTO, Bangarpet,-Annexure-C. 4) Legal notice-Annexure-D. 5) Reply Notice-Annexure-E.

08.  OP No.3, the Commercial Tax Officer has filed his affidavit evidence and so also produced 05 documents i.e., 1) Copies of Re-assessment orders & Demand Notices for 2010-11 & 2011-12-Annexure-A. 2) Copies of envelopes containing the re-assessment orders with demand notices-Annexure-B. 3) Copies of envelopes containing re-assessment orders with demand notices-Annexure-C. 4) Copy of DD No.011672, dt:18.09.2019 for Rs.74,468/- of Corporation Bank, Robertsonpet Branch-Annexure-D. 5) Xerox copies of envelopes containing notice U/s.45(1) of KVAT Act, 2003 sent to the dealer-Annexure-E.

09.   Heard arguments on both sides.

10.   Now the points that do arise for our consideration are that:-

(1) Whether the complainant is a Consumer as contemplated Under Section 2(7)(i)(ii) of the Consumer Protection Act, 2019?

 

(2) Whether the complainant has made out deficiency of service on the part of OP Nos.1 & 2 and is entitle for the relief as prayed by him?

(3) What order?

 

11.   Our findings on the above points are that:-

POINT (1):-      In the Negative.

POINT (2):-      Does not arise for consideration.

POINT (3):-      As per the final order

                        for the following:-

 

REASONS

12.   POINT (1):- We have perused the complaint, version, affidavit evidence along with documents produced by both the parties.  It is an admitted fact that, the complainant is a customer of OP No.1 Bank having SB account No.5201010180072638 and had balance amount of Rs.7,09,078/- in his SB account.  It is the specific case of the complainant that, on 11.10.2019 the complainant was shocked after noticing a sum of Rs.74,468/- was withdrawn from his S.B. account on 18.09.2019 and he approached OP No.1 and enquired and OP No.1 replied that, on the requisition of CTO, Bangarpet, OP No.1 have deducted the said amount from the complainant’s SB account and paid the same to CTO, Bangarpet, by way of DD dated: 19.09.2019.  The complainant has also specifically contended that, he is not due any amount to the CTO, Bangarpet and the CTO has not filed any case against him and the OP No.1 has no right to deduct the said amount from his SB account without his knowledge. 

 

13.   On the other hand OP No.1 has specifically contended that, the complaint is not maintainable either in law or on facts and is liable to be rejected.  On 17.09.2019 the OP-Bank has received notice from Government of Karnataka (Commercial Tax Department), Bangarpet, Under Section 45 of Karnataka Value Added Tax Act 2003, wherein it has stated that, Sri.B.Prakash Chand, S/o. Bhaboothmulla, Proprietor of M/s. Baba Fabrics, B.M. Road, Robertsonpet, KGF (TIN-29670280604) whose PAN No.ACUPC0528R, who is arrears due a sum of Rs.74,468/- (Tax, Penalty, Interest) and in exercise of powers conferred by Section 45(1) of KVAT Act, 2003, OP No.1 is directed that out of the money payable by the said dealer shall be paid immediately in favour of SGSTO-182, KGF, and shall be sent within 3 days from the date of receipt of notice and if failed to do so, OP No.1 shall be held personally liable and shall be recovered from OP. No.1 as arrears of land revenue and the OP No.1 has sent Demand Draft No.011672, dated: 18.09.2019 for Rs.74,468/- to CTO to fulfill the obligation as per the said notice and produced copy of notice Under Section 45(1) of Karnataka Value Added Tax Act, CTO, Bangarpet, as Annexure-A. 

 

14.   At the outset it is relevant to state here that, the complainant has not stated about his profession neither in the cause-title nor in the body of the complaint and so also in the affidavit evidence filed by the complainant and further the complainant at para-5 of the complaint has stated that, he is not due any amount to Commercial Tax Officer, Bangarpet, and Commercial Tax officer has not filed any complaint against him are made purposefully only to file this consumer complaint against OP Nos.1 & 2 by suppressing the material facts.  Further OP No.1 in his version has narrated the contents of the notice of Commercial Tax Officer that, Mr. Prakash Chand is the proprietor of M/s. Baba Fabrics, B.M.Road, Robertsonpet, K.G.F, who is none other than the complainant, such being so the complainant is carrying commercial business for making profit.

 

15.   On the said contention of the complainant at Para-5 of the complaint, the District Commission has directed the complainant to implead the Commercial Tax Officer, Bangarpet, as opposite party to the proceedings.  OP No.3 has appeared before this District Commission and filed version stating that, the complainant is a registered dealer and cannot be considered as a customer or consumer for the purpose of definition of Karnataka Value Added Tax 2003 and Karnataka Tax Act, 1979 and as per the definition of Consumer Protection Act of 1986 the complainant does not fall under the purview of State Taxation Act.  OP No.3 has also narrated the definition of dealer Under Section 2(1) of the Taxation laws that, “any person who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration”.  OP No.3 further contended that, the complainant was a defaulter, re-assessment was concluded by raising demand of tax including interest and penalty and demand notices were sent to complainant through RPAD to the last address given by him and recovery proceedings were conducted against him.  To support the above said facts OP No.3 has produced copy of the order Under Section 5(4) read with Sec.7(2) & 7(3) of the KTEG Act 1979 passed by Commercial Tax Officer, Bangarpet as per Annexure-A and Xerox copy of the envelop cover addressed to the complainant and the postal receipts and RPAD envelop as Annexure-B and C.  Wherein in the endorsement it was written that addressee refused – returned to sender.  The above fact goes to show that, the complainant has suppressed material facts and filed this false consumer complaint against OP Nos.1 & 2.  The OP No.3 is only a formal party to the proceedings.

 

16.   Now at the outset it is relevant to state here that, the District Commission can decide whether the complainant is a Consumer as held by the Hon’ble Apex Court reported in AIR 1995 (SC) Page-1428.  Now at this juncture it is relevant to reproduce definition of “Consumer” as contemplated Under Section 2(7)(i)(ii)(a) of the Consumer Protection Act, 2019.

Section 2(7) "Consumer" means any person who—

(i) Buys any goods 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 user of such goods other than the person who buys such

goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment, when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

 

(ii) Hires 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 service other than the person who hires or avails of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person, but does not include a person who avails of such service for any commercial purpose.

 

Explanation.—For the purposes of this clause,—

 

(a) The expression "commercial purpose" does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;

 

(b) The expressions "buys any goods" and "hires or avails any services" includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;

 

17.   Now it is relevant to state here that, as contended by OP No.3, the complainant is a dealer, who carries on the business of buying, selling, supplying or distributing goods, directly or otherwise, whether for cash or for deferred payment, or for commission, remuneration or other valuable consideration.  The dealer/trader means who sells or distributes goods for sale.  The complainant who is the proprietor of M/s. Baba Fabrics, B.M. Road, Robertsonpet, K.G.F, which clearly show that, the complainant is doing commercial business of selling goods and earning profit and he is not a Consumer as per Section 2(7)(i).  The expression “commercial” is that, the purpose and the object or aim is to make profit that is commercial purpose of business activities.  The business of commercial purpose is excluded from the Consumer Protection Act.  The complainant being the proprietor of M/s. Baba Fabrics, B.M. Road, Robertsonpet, K.G.F., carrying business on large scale for profit and it is excluded from the purview of the Consumer Protection Act.  In this regard the Hon’ble Apex Court in Rajkumar –V/s. S.C. Verma case reported in 2001(1) CPR Page-437, wherein his lordship has held that, personally buying goods either for resale or for use in large-scale profit – money activity will not be Consumer under the Act.  Further in 1993(2) CPJ Page-231 (NC) wherein his lordship view that, if a person is carrying on his business on large scale and he purchased goods for earning large profit, the purchase is for commercial purpose.  And so also in CPR 2008 (4) Page-594 of Hon’ble National Commission their view that, when the complainant is not a consumer as per the Act complaint is not maintainable.  In 1999 CLA (3) Page-456 of Hon’ble Calcutta State Commission, wherein his lordship view that seller is not a consumer.  Further Under Section 2(7)(ii)(a) the expression “commercial purpose” does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment.  But here in this case on hand it is not the case of the complainant that, he is doing his business for his livelihood by means of self-employment which clearly goes to show that, the complainant is carrying on his business of selling the goods and earning profit is not come under the purview of the Consumer Protection Act and the complainant is excluded from the purview of Consumer Protection Act.  In this regard, we relay judgment of Hon’ble National Commission reported in 2019 (4) CPR Page-36 and 2019 (2) CPR Page-103, wherein their lordship view is that, commercial activity should not be involved in any consumer complaint.  The business of selling the goods and earning profit is not come under the purview of Consumer Protection Act.      

 

18.   Hence under these circumstances as discussed above, the complainant has suppressed the material fact that, he is the proprietor of M/s. Baba Fabrics, B.M. Road, Robertsonpet, K.G.F. and doing business on large scale on commercial activity and filed this false and frivolous consumer complaint against the OP Nos.1 & 2, only to gain unlawfully.  Hence as discussed above, the complainant is not a Consumer as contemplated under the provision of Consumer Protection Act.  And accordingly the said consumer complaint is not maintainable and it is to be dismissed in limine.  In this regard we relay the judgment of Hon’ble national Commission reported in 2019(2) CPR Page-612 wherein his lordship view is that, false and frivolous complaint should be dismissed with appropriate cost.  The principles of the above said citations are attracted to the facts and circumstances of the case on Point (1).  Hence as discussed above we answer Point (1) is in the Negative.

 

19.   POINT (2):-      In view of the above discussions made thereon on Point (1) question of discussion on Point No.2 does not arise and we answer Point No.2 accordingly.

 

20.   POINT (3):-      In view of the findings on Point Nos.1 & 2 and the discussion made thereon, we proceed to pass the following:-

ORDER

01.   The Consumer Complaint filed by the complainant is dismissed as not maintainable on cost of Rs.5,000/-.

02.   The complainant shall deposit the said amount before District Consumer Welfare Fund within 30 days from the date of this order.  Failing which the said amount will carry 6% interest from the date of filing of this complaint till payment of the amount.

03.   Send a copy of this order to both parties immediately.

 

(Dictated to the Stenographer, transcribed by him, corrected and then pronounced by us on this 10^THDAY OF NOVEMBER 2020)

 

 

 

                  MEMBER                               PRESIDENT