A. K. BHATTACHARYYA, PRESIDENT
In short, the facts giving rise to this case are that the complainant who runs his business under the name and style as ‘Raj Electricals’ at Tamluk, is an Account holder being no. 186050002633 of the OP Bank. The complainant issued a cheque being no. 980069 dtd. 14.05.2012 for a sum of Rs.41198/- from his said account in favour of Usha International Ltd. The said cheque was presented by Usha International Ltd. on 16.05.2012 before the OP through its own Banker (H.D.F.C., Kolkata Branch) for encashment, but the said cheque was returned dishonoured by the OP to the said H.D.F.C. Bank with the endorsement “insufficient of fund“, although, according to the complainant he had sufficient balance in his said account on the said date of presentation of the said cheque.
The complainant served two letters dtd. 21.06.2012 and 29.06.2012 upon the OP Bank with a request to inform him about the reasons for bouncing the above mentioned cheque and to supply the details of statement of accounts mentioning the terms of transaction. From the statement supplied by the OP vide its letter dtd. 09.07.2012 it would be clear that on the date of presentation of the cheque the complainant had sufficient balance for encashment of the said cheque. For such intentional, illegal act on the part of the OP as to dishonour of the cheque, complainant’s goodwill has been spoiled, hence the case seeking relief.
The OP no.1 contested the case by filing W/V wherein all the material allegations made against them by the complainant have been denied. It is stated interalia therein that the case is not maintainable. It is further stated that three cheques of Rs.23070/-, Rs.34525/- and Rs.41198/- were lodged at Kolkata for clearing at the beginning of the day in question when the balance in the account of the complainant was Rs.71509/- and that the OP found no sufficient balance to honour the said cheque for Rs.41198/-. Subsequently, the complainant deposited cash of Rs.15000/- and then Rs.13500/- to his said account, hence their prayer for dismissal of the case. The OP no.2 did not contest the case even after service of notice upon them.
POINTS FOR DECISION
- Whether the case is maintainable as alleged by the OP no.1?
- Whether the complainant is entitled to get any relief as prayed for?
DECISIONS WITH REASONS
We have carefully gone through the evidence adduced by the complainant and materials produced by the parties on record. Considered the submissions of the ld. Advocates for the parties including the each W/N/A filed by them.
Point nos. 1 & 2:
Both these points are taken up together for the convenience of discussion.
It is urged on behalf of the OP no.1 that the complainant is not a ‘Consumer’ of the OP Bank u/s 2(1)(d)(ii) of the C.P. Act, 1986 because his bank account in the name of ‘Raj Electricals’ is a Current A/c with the bank and the same is commercial transaction in nature, that the complaint is bad for nonjoinder of necessary party, i.e. M/s Usha International Ltd., and that there was insufficient fund in the said Current A/c of the complainant at the time of presentation of the cheque in question with the bank for which the bank rightly returned the same and there was no deficiency in service on the part of the OP no.1. In support of his contention the following decisions have been cited on behalf of the OP no.1:
- IV(2009) CPJ 107 (Maharashtra State C.D.R. Commission, Mumbai)
- II(2011) CPJ 270 (NC) (National Consumer Disputes Redressal Commission, New Delhi)
- I(2012) CPJ 55 (Punjab State C.D.R. Commission, Chandigarh)
The ld. Advocate appearing on behalf of the complainant has opposed the contentions as urged on behalf of the OP no.1. The ld. Advocate for the complainant has submitted that there is no commercial transaction in between the complainant and the OP Bank with regard to the current A/c of the case, that the complainant is a ‘Consumer’ u/s 2(1)(d)(ii) of the C.P. Act, 1986 and that at the time of presentation of the cheque in question with the OP Bank, the complainant had sufficient fund with the balance account in his said Current A/c which would be found from the statement supplied by the Bank Authority and despite the sufficient balance in the said Current A/c, the Op no.1 whimsically returned the cheque amounting to Rs.41198/- for which complainant’s goodwill has been hampered and his dignity has been lowered down before his client. To support the above mentioned argument, the following rulings have been placed on behalf of the complainant:
- II(2006) CPJ 345 (NC) (National Consumer Disputes Redressal Commission, New Delhi)
- II(2006) CPJ 194 (NC) (National Consumer Disputes Redressal Commission, New Delhi)
On careful perusal of the decision reported in IV(2009) CPJ 107 (Maharashtra State C.D.R. Commission, Mumbai) cited on behalf of the OP no.1 it appears that Hon’ble State Commission, Maharashtra has been pleased to observe that the Current A/c opened by the complainant with the OP (ICICI Bank) was for business purpose. He is having commercial activity in running Resorts, so he (the said complainant) in not a ‘Consumer’. In the decision reported in II(2011) CPJ 270 (NC) (National Consumer Disputes Redressal Commission, New Delhi) cited on behalf of the OP no.1 the Hon’ble National Commission upheld the decision of Uttarakhand State Commission with observation that the complaint relates to operation of Bank A/c maintained for commercial purpose and the complainant in not a ‘Consumer’. In the decision reported in I(2012) CPJ 55 (Punjab State C.D.R. Commission, Chandigarh) it has been observed that the complainant had availed services of OP, IDBI Bank, for purely commercial purpose and complainant is not a ‘Consumer’ within the meaning of Provision of C.P. Act, 1986.
The Hon’ble National Commission in respect of decision reported in II(2006) CPJ 345 (NC) (National Consumer Disputes Redressal Commission, New Delhi) cited on behalf of the complainant has been pleased to observe that cheque returned unpaid by issuing Bank in respect of Current A/c due to first signature on it being irregular. Bank’s liability to pay compensation cannot be escaped. It is to be noted that in the said decision there is no whisper with regard to any matter of business purpose. In the decision reported in II(2006) CPJ 194 (NC) (National Consumer Disputes Redressal Commission, New Delhi) it has been observed by the Hon’ble National Commission that complainant beneficiary under the scheme of Bank rendering service within the meaning of C.P. Act for consideration and the order passed by the State Commission is set aside where it was found that the complainant was not a ’Consumer’. In this decision also there is no whisper as to any business matter, rather, the grievance of the complainant therein was that the Bank was not collecting and crediting the pension to his account. In our considered view, the above two decisions cited by the complainant is not applicable in the facts of the present case.
On going through the Annexure ‘E’ (statement of account for the period of 15.05.2012 to 17.05.2012 issued by OP in respect of A/c holder ‘Raj Electricals’), it is found that the complainant has a Current A/c in the name and style of ‘Raj Electricals’ with regard to complainant’s business transaction, but not in his name. In the complaint, the complainant did not make any statement that he runs his said business by way of self employment for earning his livelihood, rather he specifically stated that he is carrying a business of electrical goods having its several customer and he runs the said business in the name and style of ‘Raj Electricals’.
From the materials placed on record prima facie it could not be seen that he is running such business for the purpose of his livelihood by way of self employment. Therefore, having regard to the facts and circumstances of the case, the materials on record and in view of the decisions cited on behalf of the OP no.1, we feel that the complainant does not come as ‘Consumer’ within the meaning of Sec 2(1)(d)(ii) of the C.P. Act, 1986. That apart, there is no material on record produced on behalf of the complainant to show that for such return of cheque as contended by the complainant he suffered from any loss or reputation towards his business. For the above reasons, we are of the view that the instant complaint is not maintainable and is liable to be dismissed and as such the complainant is not entitled to any relief as sought for.
The above two points are, thus, disposed of against the complainant.
Hence, it is,
ORDERED
that the case being no. CC-33/2012 be and the same is dismissed on contest against the OP no.1 and exparte against the OP no.2. in the facts and circumstances of the case the parties do bear their own cost.
S.S. Ali Dr. S. Dutta A.K. Bhattacharyya
Member Member President
