PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief consumer case is as under –
The Complainant M/s. Kanji Manji Kothari & Co. has filed this complaint alleging that even though Stop Payment instructions were issued by the Complainant in respect of the cheques issued in favour of M/s. Vishal Tradig Co., the Opposite Party Bank debited amount of said cheques in the Complainant’s Account and thus, over loading of Complainant’s account to fall in NPA Zone. The Complainant has prayed to direct Opposite Party to pay Rs.8,99,000/- towards cheque amount to the Complainant with interest @ 18 % p.a. from September, 2004 till the date of realization of the actual amount. The Complainant has prayed for compensation of Rs.5 Lacs towards mental and physical agony and Rs.25,000/- towards cost of this litigation. Alongwith complaint, the Complainant has filed copies of number of documents.
2)Opposite Party has filed preliminary objection to the maintainability of the complaint contending that present complaint is misconceived and the Complainant has approached this Forum with unclean hands by suppressing material facts and on this ground complaint be dismissed with cost. The Complainant has filed various legal cases against the Opposite Party in various Courts & Tribunals also before Hon’ble Bombay High Court with motive to defame the bank by making false and baseless allegations. The Opposite Party has given details of various cases field by the Complainant before Debt of Recovery Tribunal, Appellate Tribunal and before the Hon’ble Bombay High Court contending that compliant is barred by principle of Res-judicata. It is submitted that Debt Recovery Appellate Tribunal is special law and Tribunal established under the said Act have exclusive jurisdiction and so this Forum has no jurisdiction to entertain and try this complaint.
3) The Opposite Party’s have also filed detail written statement and thereby resisted claim of the Complainant contending interalia that complaint is false, baseless and deserves to be dismissed with cost. There is no deficiency in service on the part of Opposite Party. The Complainant is misconceived. In receipt of present subject matter the Complainant has already filed proceeding before DRT and in view of decision of DRT, complaint is barred by principle of Res-judicata. The Complainant has filed write petition against Opposite Party before the Hon’ble High Court which was dismissed, as such, present Complaint is not maintainable. It is submitted that this Forum has no jurisdiction to entertain and try this complaint and therefore, complaint be dismissed with cost.
4) Alongwith written statement the Opposite Party has produced copies of numbers of documents. Both the parties have filed number of documents. The Complainant has filed written argument. The Opposite Party has also filed written argument. Heard oral submissions of Ld.Advocate Mr.Kiran Patil for the Complainant and Ld.Advocate Mr. Vishal Khanavkar for the Opposite Party.
5) Following points arises of our consideration and our findings thereon are as under -
Point No.1 : Whether Complainant is a Consumer as defined U/s.2(1)(d)(ii) of the Consumer Protection Act ?
Findings : No
Point No.2 : Whether Complainant is entitled for relief’s as prayed for ?
Findings : No
Reasons :-
Point No.1 :- The Complainant M/s. Kanji Manji Kothari & Co. is a partnership firm carrying on business. On 10/05/04 the Complainant issued 2 cheques to Vishal Trading Co. having their account with Federal Bank, Crowford Market, Mumbai. First cheque bearing no.891423 was for Rs.4,15,000/- and second cheque bearing no.891425 was for Rs.4,84,000/-. Total amount of both cheque was Rs.8,99,000/-. According to the Complainant, the deal for which aforesaid cheques were issued to M/s.Vishal Trading Co. could not take place and therefore, the Complainant issued instructions to the Opposite Party – UCO Bank to stop payment of said cheques by their letter dtd.08/0504. Initially the Opposite Party has acted upon their instructions and stopped payment of Rs.8,99,000/- to M/s.Vishal Trading Co. The Opposite Party has also leveled charges of stop payment and recovered Rs.1,350/- by way of debiting amount in Complainant’s account. The Complainant has filed this complaint alleging that even though Stop Payment instructions were issued by the Complainant in respect of the cheques, the Opposite Party Bank debited amount in the Complainant’s Account No.100541. The Opposite Party also recovered Rs.60/- towards service charges for services of stop payment. In support of the contentions Complainant has produced bank statement. In a statement of account submitted to the Complainant in response to their letter dtd.28/0/04, Opposite Party by letter dtd.29/07/07 showed Rs.8,99,000/- as pending cheques/bills and added same outstanding totals. Subsequently the Opposite Party served the Complainant with NPA notice dtd.07/04/05 in which aforesaid amount Rs.8,99,000/- was showed outstanding dues. Inspite of repeated correspondence, Opposite Party did not pay any head to the Complainant’s request and therefore, the Complainant has filed this complaint. Ld.Advocate for the Complainant has pointed out stop payment instructions given to the Opposite Party.
Ld.Advocate for the Opposite Party has submitted that this Forum has no jurisdiction to entertain and try this complaint as present Complainant is not a ‘Consumer’ as defined U/s.2(1)(d) of the Consumer Protection Act. It is submitted that the Complainant M/s. Kanji Manji Kothari & Co. is a partnership firm doing business. For business purpose, the Complainant opened account in question with the Opposite Party Bank. The Complainant has availed services of the Opposite Party Bank for commercial purpose and therefore, in view of amended Section 2(1)(d) of the Consumer Protection Act, the Complainant is not a ‘Consumer’.
Undisputedly, the Complainant is a partnership firm doing business. For business purpose the Complainant has opened an account with the Opposite Party Bank. It appears that on 105/05/04, the Complainant issued two cheques mentioned in the complaint in favour of M/s.Vishal Trading Co. and subsequently by letter dtd.08/05/04 issued stop payment instructions to the Opposite Party. As per the provisions of Sec.2(1)(d) of the Consumer Protection Act, after the amendment w.e.f.15/03/2003 a person who availed services for commercial purpose is not a consumer.
Recently the Constitutional Bench of Hon’ble Supreme Court in the matter of Economic Transport Organization V/s. M/s.Charan Spinning Mills (P) Ltd. reported in 2010(2)(C.P.R.)181SC have clearly stated in paragraph no.25 of the judgement that –
“We may also notice that Sec.2(d) of the Act was amended by amendment Act, 62/2002 with effect from 15/03/03 by adding the words “but does not include a person who avails of such services for any commercial purpose” in the definition of Consumer.
In view of the facts stated in the complaint and aforesaid decision of the Hon’ble Supreme Court, we hold that the Complainant has availed service for the commercial purpose and therefore, the Complainant is not a ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act. Hence, we answer point no.1 in the negative.
Point No.2 :- It is submitted on behalf of Opposite Party that the Complainant has filed this complaint by making false allegations. Complaint is devoid of merits. The Complainant has suppressed material facts from this Forum and therefore, complaint is liable to be dismissed with heavy cost. According to the Ld.Advocate for the Opposite Party, after issuance of aforesaid cheques in favour of M/s.Vishal Trading Co., the Complainant had given instructions of stop payment to the Opposite Party and accordingly Opposite Party stopped payment of aforesaid cheques. Ld.Advocate for the Opposite Party has referred to the statement of account of the Complainant and submitted that amount of the aforesaid 2 cheques was not debited in the name of the Complainant during relevant period. Ld.Advocate for the Complainant has referred statement of account of M/s. Vishal Trading Co. submitting that amount of aforesaid two cheques were credited in the name of M/s.Vishal Trading Co. Ld.Advocate for the Opposite Party has submitted that instead of debiting amount of disputed cheques in the name of Complainant, Opposite Party sanctioned financial assistance to M/s.Vishal Traing Co. independently and aforesaid amount was credited in the name of M/s.Vishal Trading Co. which has no connection with the cheques issued by the Complainant. It is submitted on behalf of the Opposite Party that the Complainant subsequently vide letter dtd.28/09/04 informed Opposite Party to treat instructions of stop payment as withdrawn further stating that since both the cheques were issued by them for business dealing and requested to pay the amount of cheques to the concerned parties and irregularity so corrected by passing of aforesaid cheques may be converted in WCTL. The Complainant assured Opposite Party to repay the amount in prescribed terms and conditions. The Complainant has not disputed aforesaid letter written to the Opposite Party withdrawing stop payment instructions. Therefore, we do not find any substance in the allegations made by the Complainant. By referring to the judgment of DRT, it is submitted that the Complainant had filed complaint before DRT in respect of cheques in question and DRT has rejected the Complainant’s claim. Prima facie, it appears that even on merits there is no substance in the contention raised by the Complainant therefore, we hold that the Complainant is not entitled to recover Rs.8,99,000/- as prayed for. The Complainant is also not entitled interest and compensation as cost of proceeding hence, we answer point no.2 accordingly.
For the reasons discussed above, the complaint deserves to be dismissed therefore, we pass following order -
O R D E R
i.Complaint No.397/2006 is hereby dismissed with no order as to cost.
ii.Certified copies of this order be furnished to the parties.
