State Consumer Disputes Redressal Commission
Kotak Mahindra Bank Ltd vs M/S Innovative Tele Services on 29 April, 2023
Details DD MM YY
Date of disposal 29 04 2023
Date of filing 21 08 2014
Duration 08 08 08
BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION
GUJARAT STATE AHMEDABAD.
COURT NO: 03
APPEAL NO. 1193 of 2014
Branch Manager,
Kotak Mahindra Bank Ltd.
Valsad Branch
Jalaram Mandir Road
Valsad. ...Appellant.
V.s
M/s. Innovative Tele Service
Partner
Samir B. Shah
Add: at 6&7, Satabdi Market,
Station Road, Valsad,
Tal. & Dist. Valsad. ...Respondent.
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BEFORE: Mr. I. D. Patel, Judicial Member
APPERANCE: Mr. V. P. Nanavaty, L. A. for the appellant,
Mr. C. R. Kothari, L. A. for the respondent.
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ORDER BY Mr. I. D. PATEL, JUDICIAL MEMBER.
JUDGMENT
1. The appellant Kotak Mahindra Bank Ltd. has filed this appeal Under Section 15 of the Consumer Protection Act, 1986 against the judgment and order dated 22.07.2014 passed by the Ld. Consumer Disputes Redressal Forum, Valsad, in Consumer Protection Case No. 106/2012. The appellant is the original opponent and the respondent is the original complainant in this appeal. Therefore, for the sake of convenience parties are referred to by their original nomenclature/status.
2. Brief facts of the of the complaint are that the complainant M/s.
Innovative Tele Service is a partnership firm and the said partnership firm had opened current account for their business of Telecom Products K.Navlakha A/14/1192 Page 1 of 11 dealership. It is further the case of the complainant that there was a financial transaction of above 45-50lakhs of the business of the complainant and keeping the said amount of the financial transaction of the complainant. The opponent Bank had offered exemption/waiver from cash handling charges to the complainant being a premium customer. Not only that the bank has also offered exemption/waiver of the cash handling charges of the other 3 accounts of the complainant and the said exemption was given from July 2011 to the complainant. It is further, the case of the complainant that thereafter, it came to the notice of the complainant that though the higher Officer of the Bank had given exemption from levying of cash handling charges to the complainant the opponent bank started levying charges of cash handling from the complainant and therefore, the complainant demanded reverse of the said entries of levy of cash handling charges from the complainant but bank officers told the complainant that the bank is changing all branches software throughout the India therefore, after 2 months bank will reverse the entry of levying of cash handling charges from the complainant account but thereafter, the bank had not responded the request of the complainant and not reversed the entries of levying of cash handling charges from the complainant. Therefore, the complainant written a letter dated 30.03.2012 to the bank. However, the bank had not responded the said letter thereafter, the complainant has also issued notice through Advocate as on 23.05.2012 to the bank but the said notice is also not responded by the bank and not redress grievance of the complainant and therefore, the complainant filed the complaint for getting Rs. 65,148/- levied by the bank by way of cash handling charges wrongfully from the complainant by adopting unfair trade practice before, the Ld. Consumer Disputes Redressal Forum.
3. That the bank has filled the written statement against the complainant before the Ld. Consumer District Redressal Forum, Valsad, where in the bank had denied that bank had offered permanent exemption/waiver from levying cash handling charges to the complainant. It is further, contended by the bank in their written statement that the complainant had already informed by the bank at the time of opening of the current account that bank is not offering exemption of levying cash handling charges permanently and bank had also informed complainant that bank can stop the said facility at any time. It is further, contented by the bank that whenever it comes to the notice of the bank that the complainant K.Navlakha A/14/1192 Page 2 of 11 cross the limit of cash deposit of Rs.1.4crore and complainant failed to maintain average quarterly balance then bank has a right to stop the said facility to the complainant. It is also further, contended by the bank that the bank has also informed to the complainant vide letter dated 30.03.2012 reasons of not reversal of the cash handling charges entry and bank had also given reply of the legal notice issued by their advocate as on 13.6.2012. So, as per the contention of the bank the bank has not committed any deficiency in service as well as not adopted any unfair trade practice as alleged by the complainant and bank has also contended in their written statement that as per the facts of the complaint there is a disputes regarding the account between the complainant and bank and therefore, such type of complaint cannot be maintainable as per the provisions of the Consumer Protection Act and therefore, bank prays for the dismissal of the complainant complaint with the costs.
4. That after hearing the Ld. Advocate of the parties and on perusal of the documentary evidence produced by the complainant and bank. The Ld. Consumer District Redressal Forum, Valsad, is pleased to partly allow the complaint of the complainant and directed the opponent bank to pay Rs. 65,148/- to the complainant with 9% interest and also directed to pay Rs. 1,000/- by way of cost of litigation to the complainant vide order dated 22.07.2014 hence, being aggrieved and dissatisfied by the said impugned judgment of the Consumer Protection Case No. 106/2012 dated 22.07.2014. Appellant original opponent has filed this appeal on the ground stated in the appeal memo.
5. That on behalf of the Ld. Advocate of the appellant Mr. V. P. Nanavaty, I have heard Ld. Advocate Mr. Darshil Parikh, and on behalf of respondent original complainant I have heard Ld. Advocate Mr. C. R. Kothari, that the Ld. Advocate Mr. Darshil Parikh, on behalf of Mr. V. P. Nanavaty, has submitted that impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, allowing the partly complaint of the complainant against the appellant bank is not just and proper and the finding record by the Ld. Consumer Disputes Redressal Forum, for allowing partly complaint of the complainant are erroneous and perverse and against the settled principal of law.
K.Navlakha A/14/1192 Page 3 of 116. That the Ld. Advocate Mr. Darshil Parikh has vehemently submitted that the complainant a partnership firm had open a current account in the opponent bank for their business transaction that is for commercial purpose and when the complainant had open the said current account for their commercial purpose the complaint cannot said to be a "consumer" as per the provisions of Section 2 (1)(d) of the Consumer Protection Act and therefore, when the complainant is not a "consumer" then it is not entitled to get any relief as per the provisions of the Consumer Protection Act and in support of the said submission Ld. Advocate Mr. Darshil Parikh, has place reliance upon the decision of this Commission rendered in the Consumer Complaint No. 13/2009 dated 17.03.2023 wherein this Commission has place reliance upon the numerous decisions of the Hon'ble National Commission as well as Hon'ble Apex Court and in the said decision also this Commission held that the complainant opened the current account in the bank for the commercial purpose then the complainant cannot be said to be a "consumer" and therefore, the complaint is not maintainable. Ld. Advocate Mr. Darshil Parikh, has also submitted that when there is a no jurisdiction to the concern Forum, for adjudicating the complaint of the complainant then the order passed by the Ld. Forum, is a nullity and for the said submission Ld. Advocate Mr. Darshil Parikh, has place reliance upon the decision of the Hon'ble Apex Court in the case of Jagmittar Sain Bhagat Vs. Director Health Service Haryana & Ors. reported in III (2013) CPJ 22. That the Ld. Advocate of the appellant has also place reliance on the decision of the Hon'ble National Commission in the case of Union Bank of India Vs. Ramayan Yadav II (2015) CPJ 585 and in Revision Petition No. 1085/2015 in the case of Satya Sai Agencies Vs. Punjab National Bank and decision of Hon'ble National Commission in the case of Syndicate Bank Vs. Laxmi Nivas Plastics Pvt. Ltd. III (2019) CPJ 245 as well as decision of the Hon'ble National Commission in the case of Shankarnarayan Vs. B. T. Jayanthi III (2019) CPJ 249.
7. That the Ld. Advocate Mr. Darshil Parikh has also submitted that in the bank account opening form of the complainant there is a declaration wherein it is specifically mentioned that bank may debit my account for service charges as applicable for time to time. So, as per the submission of the Ld. Advocate Darshil Parikh, Bank has every right to levy cash handling charges at any time from the complainant. Furthermore, Ld. Advocate Mr. Darshil Parikh, has also drawn the attention of this K.Navlakha A/14/1192 Page 4 of 11 Commission towards the general scheduled of features and charges for retail current account and submitted that as per the said general schedule also the Bank has right to levy cash handling charges after 5 times of transaction but in this case the bank has offered free transaction up to 7 times and thereafter, the bank has right to levy the charges for cash handling and he has also drawn the attention on the said general scheduled of features and charges and submitted that there is a terms and conditions whereby the bank can levy the cash handling charges from the complainant. furthermore, Ld. Advocate Mr. Darshil Parikh, has also submitted that the bank has also given reply to the notice of the complainant as on 13.07.2012 wherein also in para 1 bank has specifically stated the reasons for levying of cash handling charges from the complainant that the Ld. Advocate Mr. Darshil Parikh, has also drawn the attention of this Commission on the bank account of the complainant wherein there are some entries which shows exceeding the limit of Rs. 1.4crore deposit the cash by the complainant. So, as per the submission of Ld. Advocate Mr. Darshil Parikh, on behalf of the appellant bank that when the complainant crossed the cash deposit limit of Rs. 1.4crore and failed to maintain the average quarterly balance in his current account then bank has every right to levy cash handling charges from the complainant and accordingly bank has levied the cash handling charges from the complainant. That the Ld. Advocate Mr. Darshil Parikh, has also submitted that even in the written statement filed by the appellant bank has categorically denied that bank had offered permanent exemption/wavier to the complainant from levying of cash handling charges. So, as per the submission of the Ld. Advocate Mr. Darshil Parikh, on behalf of the appellant bank there is no deficiency in service or any unfair trade practice committed by the appellant bank quo complainant and therefore, the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Valsad allowing partly complaint of the complainant requires to be quashed and set aside and appeal of the appellant bank requires to be allowed.
8. Per contra Ld. Advocate Mr. C. R. Kothari, has submitted that the complainant had not opened current account for business to business activity with the bank and the complainant had not suppress the fact that he has opened the current account for the business of the complaint. That he has also submitted that the complainant had availed the services of bank by opening current account and complainant had K.Navlakha A/14/1192 Page 5 of 11 not avail the service of the bank for his business profit. So, there is no any business relation with the bank of the complainant. So, it cannot be said that the complainant had opened current account in the bank for the commercial purpose. Ld. Advocate Mr. C. R. Kothari, has also submitted that the bank had not specifically raised any plea to the effect that the complainant had opened the bank account for the commercial purpose and therefore, the complainant cannot be said to be "consumer" as per the provisions of CP Act and therefore, the complaint is not maintainable even there is no finding on that point by the Ld. Forum, therefore, as per the submission of Ld. Advocate Mr. C. R. Kothari, that when the complainant had not opened the bank account for their commercial purpose then complainant can said to be a Consumer within the meaning of the Section 2(1)(d) of the Consumer Protection Act, and when the bank had not raise any specific plea in the written statement then the bank has no any legal rights to raised such plea in the appeal and in support of the said submission Ld. Advocate Mr. C. R. Kothari, has placed reliance on the following decision of the Hon'ble National Commission as well as Hon'ble Apex Court:-
1. Hon'ble National Commission, Consumer Complaint No. 56/2013 in the case of M/s. V. and S. International, (P) LTD. Vs. Axis Bank.
2. 2018 (3) of All Maharastra MR (General 53) National Commission in the case of Sushila Kumari Vs. LIC of India
3. Hon'ble Apex Court in the case of Laxmi Engineering Vs. PSB National Institute AIR 1995 1428.
4. 2018 (I) All MR 4780 Hon'ble Supreme Court in the case of Shri Shivaji Balaram Deliberately Vs. Shri Avinash Maruti Pawar.
9. Furthermore, Ld. Advocate Mr. C. R. Kothari, on behalf of the respondent original bank has vehemently supported the findings recorded by the Ld. Consumer Disputes Redressal Forum, for allowing the complaint of the complainant and submitted that there is no any perverseness, illegality in the finding recorded by the Ld. Forum, and the said finding recorded by the Ld. Consumer Disputes Redressal Forum, Valsad, are based on the evidence on record and settled principal of law. Furthermore, Ld. Advocate Mr. C. R. Kothari, has submitted that the bank had offered exemption/waiver from levying cash handling charges to the complainant because of huge amount of financial transaction for cash deposit by the complainant in the bank and furthermore, Ld. Advocate Mr. C. R. Kothari, has also submitted that bank had also offered the said facility for other 3 accounts of the complainant from February 2011. Ld. K.Navlakha A/14/1192 Page 6 of 11 Advocate Mr. C. R. Kothari, has also submitted that thereafter, suddenly bank has stop extending the facility of exemption/waiver of the cash handling charges to the complainant and bank had wrongly levy the cash handling charges from the complainant and therefore, the complainant requested the bank for reversal of the said cash handling charges levy entries but the bank officer talked the complainant that the bank is changing their software throughout the country therefore, after 2 months bank will reverse the said entries but thereafter, also the bank had not reversed the said entries of the cash handling charges wrongly levied from the complainant therefore, the complainant filed the complaint against the bank. Ld. Advocate Mr. C. R. Kothari, also submitted that there is no any contract or terms and conditions produced by the complainant that if the complainant cross the limit of 1.4crore deposit of cash in his account and if the complainant failed to maintain average quarterly balance then bank will levy the cash handling charges not only that Ld. Advocate Mr. C. R. Kothari, has also submitted that even looking to the bank account of the complainant. Complainant has not committed any breach of terms and conditions of the exemption/waiver of cash handling charges offered by the bank. Ld. Advocate Mr. C. R. Kothari, has also submitted that the complainant has also filed an affidavit before the Ld. Forum, wherein also he has reiterated the facts stated in the complaint. So, as per the submission of the Ld. Advocate Mr. C. R. Kothari, the bank has wrongly levied cash handling charges from complainant after offering permanent waiver or exemption from levying of charges of cash handling to the complainant and therefore, the bank had adopted unfair trade practice and there is also deficiency in service on the part of the bank.
10. I have considered the oral submission of the Ld. Advocate of the appellant as well as Ld. Advocate of the respondent I have also gone through the judgments/decisions of the Hon'ble Supreme Court as well as Hon'ble National Commission cited by the Ld. Advocate of the parties. That I have also given my anxious thoughts to the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Valsad, as well as the record or the documentary evidence produced by the parties for the adjudication of this appeal.
11. That the appellant bank had preferred this appeal against the impugned judgment and order passed by the Ld. Consumer Protection Case No. 106/2012 dated 22.07.2014 passed by the Ld. Consumer Disputes K.Navlakha A/14/1192 Page 7 of 11 Redressal Forum, Valsad, whereby the Ld. Consumer Disputes Redressal Forum, Valsad, partly allowed the complaint of the complainant and directed the appellant bank to pay Rs. 65,148/- along with the interest at the rate of 9% to the complainant and also pay Rs. 1,000/- to the complainant by way of costs on the ground stated in the appeal memo. Therefore, this Commission has to adjudicate or decide the appeal of the appellant considering the impugned judgment and order passed by the Ld. Forum, as well as documentary evidence produced in this appeal and also has to decide or adjudicate that the finding recorded by the Ld. Consumer Disputes Redressal Forum, are perverse and erroneous and accordingly the appeal filed by the appellant requires to be allowed or not?
12. That the Ld. Advocate of the appellant Bank has first and foremost raised the issue regarding the maintainability of the complaint filed by the complainant on the ground that the complainant has opened the current account in the appellant bank i.e for commercial purpose and when the complainant opened the current account for the commercial purpose then the complainant is not the "Consumer" as per the definition of Section 2(1)(d) of the Consumer Protection Act. 1986, and therefore, the complaint is not maintainable and in support of the said objection the complainant has placed reliance of the judgment of the Hon'ble National Commission as well as Hon'ble Apex Court as referred in the argument advanced by the Ld. Advocate of the appellant. That as against the said objection the Ld. Advocate C. R. Kothari, has specifically submitted that bank had not raised such plea before the Ld. Forum, in their written statement and for the first time bank raised this objection regarding the maintaining the complainant in the appeal and therefore, said objection cannot be tenable or sustained in eye of law and he has also submitted that the complainant had not opened the current account for the commercial purpose and therefore, the complainant is a consumer and for that he has placed reliance upon the judgments as referred in his argument.
13. That it is admitted position that before the Ld. Consumer Disputes Redressal Forum, Valsad, the appellant original opponent had filed the written statement against the complainant complaint wherein the bank had not raised specific plea or preliminary objection to the effect that since the complainant had opened the current account in the bank for their business purpose i.e for commercial purpose and therefore, the K.Navlakha A/14/1192 Page 8 of 11 complaint cannot be said to be a "Consumer" as per the provisions of Section 2(1)(d) of the CP Act and accordingly the complaint is not maintainable. That the issue regarding the complainant is a Consumer or not as per the provisions of Section 2(1)(d) of the Act when complainant had opened the bank account for the commercial purpose is an issue of mix question of facts and law and the said issue cannot be said to be a purely issue of law and for the adjudication of the said issue the opposite party has to specifically raised the contention or objections in their written statement and the forum has to record their finding there on but here in this case the opponent bank had not raised any specific plea in their written statement therefore, there is no finding of the forum and when the complaint is decided on merits by Ld. Forum, and the bank had not raised any plea before the Ld. Forum, regarding the maintainability of the complaint in their written statement therefore submission of appellant in this appeal that since the complainant had opened current account in the bank for commercial purpose hence complainant cannot be said to be a "Consumer" and as such complaint is not maintainable cannot be accepted and it would not be just and proper to accept such submission after lapse of time and more particularly when the complaint is decided on merits. Hence the argument of the Ld. Advocate of the appellant that complainant is not a "Consumer" as per provision of Section 2(1)(d) of the CP Act is devoid of merits and accordingly same is hereby not accepted.
14. That so far the issue of levy of cash handling charges by the appellant bank is concerned it is the case of the complainant in the complaint that the bank had offered permanent exemption/waiver from levying of cash handling charges from the complainant since he is a premier customer depositing or keeping balance of 45-50lakhs in his current account. That as against the said contention of the complaint it is the case of the bank before the Ld. Forum as well as before this Commission that bank had not offered any permanent exemption/waiver from levying of cash handling charges to the complainant and as per the case of the bank when the complainant open the bank account bank had informed the complainant that if the complainant cross the cash deposit limit 1.4crore and complainant failed to maintain average quarterly balance then bank has every right to stop the exemption/waiver for levying cash handling charges to the complainant. That I have gone through the documentary evidence produced in this appeal. That the bank has place reliance upon the reply of the notice dated 13.06.2012 as well as the declaration of the K.Navlakha A/14/1192 Page 9 of 11 bank account form and on the general schedule of features and charges for retail current account as well as on the entries of the current account of the complainant. But on perusal of these documents there is no any terms and conditions which specifically states that if complainant cross cash deposit limit 1.4crore and complainant failed to maintain average quarterly balance then the bank can levy cash handling charges from the complainant. So, from these documents bank has failed to establish that there was such conditions imposed on the complainant while opening of the current account and it was within the knowledge of the complainant and complainant agreed to said terms and conditions. Even there is no any separate contract regarding the levy of cash handling charges between the complainant and opponent bank. So, as per the say of the complainant when the bank had offered exemptions/waiver from levying the cash handling charges being a premier customer and looking to the bank account statement of the complainant it appears that the complainant had maintain the average quarterly balance also and therefore, the bank has no legal right to stop granting exemption from levying cash handling charges to the complainant and accordingly the bank had wrongly stop the said facility and levy the cash handling charges from the complainant and that amounts to the deficiency in service and unfair trade practice on the part of the bank and therefore, the findings recorded by the Ld. Consumer Disputes Redressal Forum, Valsad, while partly allowing the complaint of the complainant cannot be said to perverse and erroneous and on the contrary the said findings of the Ld. Consumer Disputes Redressal Forum, Valsad, are based on the record of the case and as per the settled principal of law and therefore, I do not agree with the submission of the Ld. Advocate of the appellant bank that the impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Valsad, in Consumer Protection Case No.106/2012 dated 22.07.2014 is not just and proper and therefore, according to my considered opinion appeal filed by the appellant bank is devoid of merits and impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Valsad, requires to be upheld and confirmed in this appeal also and the appeal filed by the appellant bank deserves to be dismissed and hence I passed the following final order.
K.Navlakha A/14/1192 Page 10 of 11ORDER
1. The appeal No. 1193/2014 filed by the appellant Kotak Mahindra Bank Ltd. is hereby dismissed.
2. Impugned judgment and order passed by the Ld. Consumer Disputes Redressal Forum, Valsad, in Consumer Protection Case No. 106/2012 dated 22.07.2014 is hereby confirmed.
3. No order as to costs.
4. Appellant is directed to apply to the Account Department of the State Commission with all details of Appeal No. 1193 of 2014, Xerox copy of the receipt to withdraw the amount deposited in the State Commission. The office is hereby ordered to pay deposited amount with occurred interest on proper verification to the appellant by Account payee cheque and the cheque be handed over to the learned advocate for the appellant after obtaining receipt.
5. Registry is hereby instructed to send a copy of this order in PDF format by E-mail to learned District Forum, Valsad, for taking necessary action.
6. Office is directed to forward a free of cost certified copy of this judgment and order to the respective parties.
Pronounced in the open Court today on 29th April 2023.
[I. D. Patel] Judicial Member.
K.Navlakha A/14/1192 Page 11 of 11