28.07.2017
MR. UTPAL KUMAR BHATTACHARYA, HON’BLE MEMBER.
Instant appeal under Section 15 of the C. P. Act, 1986 has been filed by the Appellant/Complainant challenging the judgment and order dated 06.11.2013 passed by the Ld. District Forum, Kolkata, Unit – II in Complaint Case No. 155/2010 dismissing the complaint on contest against the Complainant with punitive damage of Rs.10,000/- to be deposited with the S.C.W.F. within 15 days from the date on which the impugned judgment and order was passed. The order was explicit about penal action including initiation of prosecution against the Appellant/Complainant if the above order is not complied with within the given deadline.
The case, in brief, was that the Appellant/Complainant, as alleged, used to run a sole proprietorship concern “P. K. Traders” for earning his livelihood by means of self-employment. He also used to maintain a current account with the Respondent/O.P. No. 1 Bank. The Appellant/Complainant, in his complaint, targeted a transaction where an amount of Rs.43,537/- was reversed as interest in the account that the Appellant/Complainant maintained with the Respondent/O.P. No. 1. The reason for such reversal beyond the knowledge of the Appellant/Complainant, being best known to the Respondent/O.P. No. 1, the Appellant/Complainant rushed to the Respondent/O.P. No. 1 and sought for clarification for such unauthorized transaction. No satisfactory explanation, however, was received by him. The Respondents/O.Ps, instead, issued one legal notice demanding from the Appellant/Complainant a repayment of outstanding amount of Rs.4,72,685/- against a loan allegedly sanctioned to the Appellant/Complainant by the Respondents/O.Ps on signing one agreement by the parties involved.
The Appellant/Complainant responded to the aforesaid legal notice through a legal notice denying taking any loan from the Respondents/O.Ps on signing any agreement.
On perusal of the statement in respect of the said current account, it was derived that the Respondents/O.Ps deducted an amount of Rs.56,634/- in five instalments as interest and subsequently reversed an amount of Rs.43,537/- and the account was showing a debit balance of Rs.4,72,685/- out of loan which the Appellant/Complainant repudiated to have taken and where, as alleged, there was no agreement signed by him.
Claiming the aforementioned deduction as unauthorized and arbitrary and also the debit balance amount shown in the account as false and fabricated, the aggrieved Appellant/Complainant filed the complaint case before the Ld. District Forum with the prayers – (1) for making good the loss of Rs.2,18,000/- as per break-up shown below:-
(i) Loss of money due to the various illegal and
Irregular entries in the account of Complainant - Rs. 13,117
(ii) Cost of mental suffering due to unfounded
Allegations made by the Respondents/O.Ps - Rs.2,00,000
(iii) Cost of writing different letters through
Advocates of the Complainant - Rs. 5,000
(2) For passing an order directing the Respondents/O.Ps for recalling the letter of 7th May, 2008 and withdraw as well the illegal demand of Rs.4,72,684/- made therein.
The impugned judgment and order arises from the said complaint case.
Heard the Ld. Advocates on behalf of both sides.
The Ld. Advocate appearing on behalf of the Appellant/Complainant submitted that the Appellant/Complainant used to maintain a current account in the Respondents/O.Ps Bank for running a business of his own but the said business, as averred at para 3 of the complaint, running page 16, the Appellant/Complainant used to run exclusively for earning livelihood by way of self-employment.
The Ld. Advocate was critical about unauthorized debiting of an amount of Rs.56,634/- in 5 instalments as interest by the Respondents/O.Ps from the current account of the Appellant/Complainant being maintained with the Respondents/O.Ps Bank. He was more critical about the illegal demand of an outstanding loan of Rs.4,72,685/- as shown as debit balance in the said current account in connection with a loan when, in fact, no loan was sanctioned and no agreement for loan was signed between the Appellant/Complainant and the Respondents/O.Ps Bank.
Drawing attention of the Bench to running page No. 33 being the replies by the Respondents/O.Ps Bank against queries under Right to Information Act, 2005 communicated by the Appellant/Complainant, running page 29, the Ld. Advocate submitted that the Respondents/O.Ps Bank failed to furnish the documents substantiating the loan that they claimed to have sanctioned to the Appellant/Complainant.
In fact, as submitted, the Respondents/O.Ps had made a ploy to extract from the Appellant/Complainant the aforesaid amount in a deceptive manner and thereby resorted to illegal trade practice.
With the above submission, the Ld. Advocate prayed for the appeal to be allowed setting aside the impugned judgment and order.
The Ld. Advocate appearing on behalf of the Respondents/O.Ps, per contra, submitted that the transactions, since made with the “P. K. Traders”, the said organization should be treated as Complainant and not Manoj Agarwal, the sole proprietor of the aforesaid firm. The said P. K. Trader, being a private limited company, should not be treated as consumer since the company should not be treated as an individual.
The plea of earning livelihood as averred in the complaint, in the light of the above, should not be decided on the basis of mere averment, rather, it should be decided on the question of facts. The Ld. Advocate maintained that the decision of the Hon’ble Supreme Court in 11(1995) CPJ 1 (SC) was relevant in this regard.
Further, the Ld. Advocate continued that the facts and circumstances in the instant case were nil. Documents towards payment of income tax, balance sheet of the business, the list of members of the family and their dependence on the income derived from the business were not furnished by the Appellant/Complainant. the Appellant/Complainant, as submitted, not even filed any undertaking to the effect that he did not have any other source of income.
In the instant case, as the Ld. Advocate maintained, the Appellant/Complainant opened the current account for business purpose. The debit balance in the Current Account and the statement of transaction in respect of the said account, only revealed that the Respondents/O.Ps issued cheques even on occasions when the said account did not hold sufficient balance.
As submitted, admittedly, there were no documents substantiating the agreement between the parties and admittedly, there was no formal application with prayer for sanction of loan but the statement showing transaction was well within the knowledge of the Appellant/Complainant. It was in his knowledge that the subject account was showing debit balance as he had paid the outstanding dues from time to time without raising objeciton reducing the same to Rs.4,72,685/- which at one point of time was much bigger an amount. The reason for his contradicting the statement, as the Ld. Advocate continued, is unexpected and unacceptable at this stage.
The Ld. Advocate, drawing the attention of the Bench to para 10 of inner page 3 of the written version at running page 63, submitted that the instant business was not the sole source of income of the Appellant/Complainant as he was also a partner of another business called “Balaji Traders” of given address in the said paragraph. In the said paragraph, it was stated further that the Appellant/Complainant, in addition to above, had one construction business too. The above points, since remained uncontroverted by the Appellant/Complainant, left no reason to disbelieve the above facts.
The Ld. Advocate, with his submission as above, prayed for the appeal to be dismissed affirming the impugned judgment and order.
Perused the papers on record. It appeared that the Appellant/Complainant is the sole proprietor of “P. K. Traders”, a private limited company. Although, there was an averment that the Appellant/Complainant used to do the business for earning his livelihood, the same lacked acceptability in the light of the observation of the Hon’ble National Commission cited by the Ld. Advocate for the Respondents/O.Ps in Consumer Case No. 210 of 2012 reported in 2017 (2) CPR 354 (NC) [Unisource Trading (India) Pvt. Ltd. – vs. – Continental Airline Cargo (United Cargo and Continental Cargos and Anr.]. The Hon’ble National Commission, in the said decision, observed that a private limited company which is no natural person, could not indulge in any commercial activity for earning his livelihood and accordingly, should not be treated as a consumer.
Further, the Respondents/O.Ps, in his written version, at para 10, had detailed an uncontroverted fact that the Appellant/Complainant had more business apart from the proprietorship of the instant private limited company. The instant business, therefore, cannot be the sole source of income for earning livelihood as claimed by the Appellant/Complainant in his complaint.
It was admitted by the Respondents/O.Ps that the Respondents/O.Ps failed to provide the Appellant/Complainant with the application or the agreement for sanction of loan on demand. The statement showing transaction in the current account, however, established that the Appellant/Complainant had knowledge of the loan and the cheques issued by him without sufficient balance were allowed encashment by the Respondents/O.Ps causing a huge debit balance in the account in question which was reduced partly through repayment of certain amount by the Appellant/Complainant.
As regards reversing part interest of Rs.43,537/-, we fail to understand why the act on the part of the Respondents/O.Ps should be considered as deficiency. We, rather, find in the said action, the Respondent/O.P’s good gesture of refunding the amount deducted innocently as interest in excess out of their own.
Facts and circumstances narrated above, lead us to the conclusion that there is no deficiency on the part of the Respondents/O.Ps. We, therefore, are of considered view that the impugned order does not deserve any intervention from our end.
Hence, ordered, that the appeal fails. The impugned judgment and order stands affirmed. No order as to cost.
