DISTRICT CONSUMER DISPUTES REDRESSAL FORUM  PALAKKAD

Dated this the  30^th day of  January 2017

Present   : Smt.Shiny.P.R. President

               : Smt.Suma.K.P.  Member                                  Date of filing: 07/04/2014

               : Sri.V.P.Anantha Narayanan, Member

                                                      (C.C.No.55/2014)         

K.N.Moidu,

Karuvathinalil House,

Mala Post, kakkattiri, Trithala,

Palakkad District

Managing Partner,

M/s.Manukkas Wedding Centre,

Koottanad.                                                             -       Complainant

(By Adv.K.Dhananjayan)

V/s

1.The Union Bank of India

    Regd.Office, Head Office

    239, Vidhan Bhavan Marg

    Central Office, Nariman Point

    Mumbai – 400 021

2.The M.D./Chairman

   The Union Bank of India,

    Regd.Office, Head Office 239,

    Vidhan Bhavan, Marg,

   Central Office, Nariman Point,

   Mumbai – 400 021

3.The Branch Manager

    M/s.Union Bank of India

    Pattithara Branch, Aloor P.O

    Pattithara via, Trithala,

    Palakkad – 679 540                                              -        Opposite parties

  (By Adv.S.T.Suresh)

O R D E R

By Smt.Shiny.P.R.  President.

Brief facts of complaint.

Complainant is doing and running  M/s Manukkas  Wedding Centre  for his livelihood and the income derived from it is the only source of his income to earn his bread for himself and his family. He is working as the proprietor and also the salesman in the said shop. He is not having fleet of shops.

The complainant is having a current account with over draft facility in the 3^rd opposite party bank bearing account No.447105040002102 for the purpose of doing financial and bank transaction.

 At the time of availing and opening the bank account, the opposite party bank has not provided or issued a pass book. So when he took the statement of accounts on 10/4/2012, he has noticed this glaring discrepancy and irregularity done by the opposite party. The 3^rd opposite party bank has unauthorisedly withdrawn Rs.54,927/- on 24/3/2012 in the head of processing 2010 and interest difference by auditors. This glaring anomaly irregularity and unfair trade practice have being noticed only when the complainant have taken the statement of accounts on 10/4/2014.

Unauthorized withdrawal of an amount by 3^rd opposite party would amount to the violation of all relevant laws and is glaring example of unfair trade practice. Thus the complainant has sustained huge financial loss and has also caused for mental agony too.

As the discrepancy and ultra various act had been found out, the complainant has sent a lawyer notice through his counsel demanding to redeposit the said amount in the account of the counsel. But the opposite parties have not done it. But instead of that they have sent a reply justifying their illegal acts.  Hence this compliant.

Complainant prays for order directing 3^rd opposite party to re-deposit Rs.54,927/- and Rs.1,00,000/- as compensation to the mental agony and unfair trade practice done by opposite parties.  

Complaint was admitted and issued notice to opposite parties.  Opposite parties filed version contending the following:

The complaint is not maintainable and Forum has no jurisdiction to entertain this complaint. The proper statutory Forum to adjudicate these type of complaints are banking Ombudsman having jurisdiction in the state of Kerala.

Opposite parties contended that the complainant is conducting two shops, one at Koottanad Junction and other at Pattambi Junction in his own three storied building , dealing with jewellery and textile items. It is incorrect to state that he is doing and running this jewellery exclusively for his livelihood and the income derived from it is the only source of his income to earn his bread for himself and his family. He has several business establishments including series of jewellery shops in abroad such as 1.AL Saker Jewellery at Al Furshan Street, 2.New Alsaker Jewellery at Al Salam Street 3.Bin Saheem Jewellery at al Salaqm Street. Further Bin Saheem Readymade & Electronics at  Al Salam Street Bin Saheem Luggage Palace, Muhammed Salam Shoe Centre ETC shops at Salalah, Oman. He is having real estate business also. It is quite incorrect to state that he is the proprietor and also the salesman in the said jewellery shop. The conduct of his business is a pure commercial purpose. Since the business he runs is a commercial activity this complaint is legally unsustainable. 

An amount of Rs.54,927/- had recovered from the A/c No.447105040002102 having CCH limit of Rs.60 lakhs maintained by M/s.Manukkas Wedding Centre which is a partnership firm. The complainant Sri.Moidu is only a partner in the above firm. He has filed this complaint in his individual capacity, therefore the complaint has no legal standing and is liable to be dismissed inliminae without going to the merits. There is no passbook facility for cash credit transactions. Only periodical statement of accounts are provided for the customers. The statement that the complainant has noticed glaring discrepancy and irregularity while he took the statement of accounts on 10/4/2012 is totally false and against the facts. The auditors of the bank found out at the time of periodical audit that the interest charged is insufficient and there was  a deficit of Rs.30,109/- in interest and Rs.24,818/- towards processing fee collection from the account of the complainant. So naturally the bank has to set right the discrepancy and it has done so. Being a loan account the bank has authority to do so as per sanction terms and conditions. This was found out by the auditors and immediately corrected and intimated to the complainant. The action from the side of the bank cannot be termed as an anomaly, irregularity or unfair trade practice. When a discrepancy in accounting is found out by the auditors of the bank, it is the responsibility and duty of the 3^rd opposite party to set right and make it in order. This was properly explained to the complainant and there is nothing unusual thereon.

There is no violation of laws or unfair trade practice.  The lawyer notice sent by the Advocate for the complainant was replied by the bank. The complainant is not at all entitled to get any compensation from the opposite parties.

Evidence of the complainant consists of his chief affidavit and Ext A1 to A5 documents. Ext.B1 to B6 were marked on the side of opposite parties.  Complainant was examined as PW1. Opposite party examined as DW1.

The following issues are considered

1.Whether the complaint is maintainable?

2.Whether there is any deficiency in service on the part of opposite parties ?

3.If so, what is the relief?

Issue 1

Heard. We have perused the documents filed by both the parties. Ext A5 partnership deed shows that the M/s.Manukkas Wedding Centre is a partnership firm. In the present case as a Managing Partner, Moidu filed complaint before the Forum on behalf of  M/s.Manukkas Wedding Centre. As the partnership firm does not have any  legal entity, its managing  partner can file the consumer complaint by way of implied authority. Hence we are of the view that Mr.Moidu has locus standi to file the complaint.

 Admittedly complainant had availed over draft facility from the 3^rd opposite party bank.   The complainant stated in his complaint that he is doing and running this wedding centre for his livelihood and income derived from it is the only source of his income to earn his bread for himself and his family.  But on the contrary, at the time of cross examination he deposed that Rm³  Cu lcnPn sImSp¯n«pÅXv ]mÀ«WÀ F¶ \nebv¡mWv. Rm³ ]mÀ«WÀjn¸v t^w BWv \S¯p¶Xv. s{]m¸À«n  I¬tk¬ AÃ. A^nUhnÁn ]dª tkmÄ s{]mss{]ÁÀ F¶Xv sXÁmWv. PzÃdn \S¯p¶Xv ]mÀ«WÀjn¸nsâ kz´w _nÂUnwKnemWv. F\n¡v IqÁ\mSv PwKvj\nepw ]«m¼n PwKvj\nepw ISIfp­v.IqÁ\mSv PwKvj\nepÅ IS {Xo tÌmdoUv _nÂUnwKv BWv.      Opposite parties also contended that the complainant is conducting two shops, one at Koottanad Junction and other at Pattambi Junction in his own three storied building, dealing with jewellery and textile items.   He has several business establishments including series of jewellery shops in abroad such as 1.AL Saker Jewellery at Al Furshan Street, 2.New Alsaker Jewellery at Al Salam Street 3.Bin Saheem Jewellery at al Salaqm Street. Further Bin Saheem Readymade & Electronics at  Al Salam Street Bin Saheem Luggage Palace, Muhammed Salam Shoe Centre ETC shops at Salalah, Oman. Complainant did not deny these contentions either by filing rejoinder  or  affidavit.  In the above circumstances we are of the view that complainant has some  other source of income for his livelihood.

Sec 2(1) d (ii) of the Consumer Protection Act defines the term ‘consumer’ in respect of services hired or availed  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 services 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 payments, when such services are availed of  with the approval of the first mentioned person (but does not include a person who avails of such services for any commercial purpose).

[Explanation : For the purposes of this clause, “Commercial Purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment.]

          On reading of the above explanation, it is clear that the benefit of explanation is available to the person who avails the services exclusively for the purpose of earning his lively hood by means of self employment. Since the explanation is in the nature of exception to the main rule, the onus of proving that the complaint, is covered by the explanation is on the complainant. The complainant therefore required to prove that the services of bank were availed exclusively for the purpose of earning livelihood by way of self employment. In State Bank of India V Anurag Textiles Rakesh  brothers, the Hon’ble National Commission had also considered the above aspect.III (2015) CPJ 86 NC

     On perusing the documents, there is no evidence to prove that the services of bank were availed exclusively for the purpose of earning livelihood by way of self employment.  It is clear that person is a consumer if he hires or avails a service of some one. The section, however, has an inbuilt exclusion clause providing that if the service has been availed in respect of the commercial purpose, the person concerned would not be treated as consumer. In the instant case, services of opposite parties were availed by the complainant for commercial purpose i.e, availed over draft facility for his business concern. As such complainant in view of exclusion clause is not a consumer as envisaged under section 2 (1) d of the Act. In view of the above discussion we are of the view that complaint is not maintainable.  Since issue No1 is found against the complainant, the rest of the issues need not be looked into.

      Pronounced in the open court on this the 30^th  day of  January 2017.

                                                                                              Sd/-

                      Shiny.P.R.

                      President   

                            Sd/-

                      Suma.K.P.

                      Member

                          Sd/-

    V.P.Anantha Narayanan

                 Member

Appendix

Exhibits marked on the side of complainant

Ext.A1 series  – Statement of account of the complainant issued by 3^rd opposite party

                        dated 10/4/12 (3 Nos)

Ext.A2 series –  Copy of lawyer notice alongwith postal receipt and acknowledgment

                       card dated 18/4/13

Ext.A3 – Reply notice sent by opposite party to the counsel of the complainant dated

              5/5/13

Ext.A4 Series – Account Statement from 01/4/2010 to 19/02/2016 of Manukkas Wedding Centre

Ext.A5 – Photocopy of Partnership retirement cum reconstitution deed

Witness examined on the side of complainant

PW1 – Moidu

Exhibits marked on the side of Opposite parties

Ext.B1 – Hypothecation agreement (certified copy) of goods and debts executed by

             M/s.Manukkas Wedding Centre dated 28/7/09

Ext.B2 – Certified copy of letter of guarantee executed by partners of M/s.Manukkas

             Wedding Centre dtd.28/7/09

Ext.B3 – Certified copy of letter executed by Partners of M/s.Manukkas Wedding

             Centre dated 28/7/09

Ext.B4 – Certified copy of letter of undertaking from borrowers and partners dated

             28/7/09

Ext.B5 – Certified copy of demand promissory note executed by borrowers dated

             28/7/09

Ext.B6 – Certified copy of statement of accounts for the period from 1/3/12 to

              30/9/12 of the account of Manukkas Wedding Centre  

Witness examined on the side of opposite parties

DW1 – Sreedhar.J

Cost   

 No cost allowed.