State Consumer Disputes Redressal Commission
1. Shri. P. K. Anna Patil Janata vs 1. Shri. P. K. Anna Patil Janata on 3 September, 2012
1 F.A.No.: 646-08
STATE CONSUMER DISPUTE REDRESSAL COMMISSION,
MUMBAI, CIRCUIT BENCH AT AURANGABAD.
Date of filing : 06.06.2008
Date of Order: 03.09.2012
FIRST APPEAL NO.: 646 OF 2008
IN COMPLAINT CASE NO.: 12 OF 2008
DISTRICT CONSUMER FORUM: DHULE.
1. Shri. P. K. Anna Patil Janata
Sahakari Bank Ltd., Nandurbar
(Through its General Manager-
Shri. Vijay Parshubhai Patil)
R/o. Aadeshwar Nagar, Tolada Road,
Tal. & Dist. Nandurbar.
2. Sau. Kamalben Purshottam Patil, President,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. 18, Vidya Vihar Colony,
Shahada, Tal. Shahada, Dist. Nandurbar.
3. Hemrajbhai Damjibhai Solanki, Vice-President,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.
R/o. 18, Girivihar Hsg. Society,
Tal. & Dist. Nandurbar.
4. Shri. Annasaheb P. K. Patil President,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.
R/o. 72, Vidya Vihar Colony,
Shahada, Tal. Shahada, Dist. Nandurbar.
5. Prabhakar Bhikkan Chaudhary, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Kolda, Tal. Shahada, Dist. Nandurbar.
6. Hiralal Maganlal Chaudhary, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Chaudhary Galli, Tal & Dist. Nandurbar.
7. Sharadchandra Jagannath Shah, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Nizampur, Tal. Sakri, Dist. Dhule.
2 F.A.No.: 646-08
8. Jitendra Chimanlal Shah, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. 1265, Agra Road, Tal. & Dist. Dhule.
9. Bajirao Gunjarsingh Pawar, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Mogare, Tal. Shahada, Dist. Nandurbar.
10. Gopalkrushna Purshottam Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Aamlad, Tal. Taloda, Dist. Nandurbar.
11.Subhash Babu Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. 18, Sarswati Colony, Tal. Shirpur, Dist. Dhule.
12. Mohan Ramji Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o.Lambole, Bhurkheda,
Tal. Shahada, Dist. Nandurbar.
13. Hiralal Shankar Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Sulwade, Tal. Shahada, Dist. Nandurbar.
14. Sunil Sakharam Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Pingane, Tal. Shahada, Dist. Nandurbar.
15. Ashok Chatur Bagul, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o.Ghee Bazar, Tal. Shahada, Dist. Nandurbar.
16. Gopaldas Kanumal Kukreja, Director,
R/o. Mahalaxmi Agency, Dondaicha,
Tal. Sindkheda, Dist. Nandurbar.
18. Haribhai Shankar Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Tulshinagar, Dongargaon Road,
Tal. Shahada, Dist. Nandurbar.
19. Hitanshu Bhuta Patil, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
3 F.A.No.: 646-08
R/o. 53, Girivihar Housing Society,
Tal & Dist. Nandurbar.
20. Manoj Zverikant Shah, General Manager,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Taloda Road, Tal & Dist. Nandurbar.
21. Mohan Chaudhary, Branch Manager,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Vaibhav Vilas Shopping Complex,
Near Mahanagar Palika, Tq. & Dist. Dhule. ...Appellants
(Org.Respondents)
-Versus-
1. Shri. Samarth Shahakari
Patpedhi Maryadit, Dhule,
(Through it's Chief Executive officer-
Prashant Shekhar Chaudhary)
Nagarpatty, Dhule-424001.
2. Anil Madhusudandas Gujrathi, Director,
Shri. P. K. Anna Patil Janata Sahakari Bank Ltd.,
R/o. Balaji Complex, Tal. Sakri, Dist. Dhule. ...Respondents
(Orig. Complainant &
Org. Respondent No.19)
... Respondent
Coram : Mr. B. A.Shaikh, Hon'ble Presiding Judicial Member
Mr. K. B. Gawali, Hon'ble Member Present: Adv. Shri. N. R. Bhavar for appellant.
Adv. Shri. Mukul Kulkarni for respondents.
- :: ORAL ORDER ::-
Per Mr. B. A. Shaikh, Hon'ble Presiding Judicial Member
1. This appeal is directed against the judgment and order dated 30.04.2008 passed by the District Forum, Dhule in complaint case registered as C.C. No. 12/2008.4 F.A.No.: 646-08
2. The complaint was made by the original complainant i.e. Respondent herein against the appellants in the allegations in brief that, the complainant is a duly registered society and it had kept in fixed deposit an amount of Rs.9,26,00,000/- during different time with the appellant No.1 Cooperative Bank as the complainant was assured on behalf of the said bank that it would got more rate of interest than that of the Nationalized Bank. The complainant was to receive out of the aforesaid amount of fixed deposit, an amount of Rs.5,73,00,000/- including interest by the end of October, 2007. However, the Respondent No.1 Cooperative Bank and rest of the Respondent Nos. 2 to 22 who are President, Vice President, Directors, General Manger and Branch Officers of the said bank have not paid the aforesaid amount to the complainant after the date of maturity in spite of making repeated demands to them. The complainant in the complaint prayed to give direction to the Respondent No.1 to 22 to pay it principal amount of Rs. 15,00,000/- deposited vide three receipts with the Respondent No.1 on 12.09.2006 by it and also to pay interest of Rs. 2,01,564/- i.e. total 17,01,564/- and further to pay compensation of Rs. 10,00,000/- and cost of Rs. 1,00,000/-.
3. Appellant No.1 and 19 who are the original Opponent No.1 and 19 filed written version. The original Opponent Nos. 2, 4,5 & 14 appeared but not filed written version. The Opponent No.3, 6 to 18, 21 & 22 failed to appear in spite of service the notice to them. Hence, complaint proceeded exparte against them.
4. The Opponent No.1 and 19 i.e. appellant No.1 and 19 herein in their written version raised objection to the effect that the complainant does not fall within the definition of consumer given under Consumer Protection Act and that the alleged transaction was made for commercial purpose only, and that the complaint can not be filed without prior permission of Dy. District Registrar under Maharashtra Cooperative Society Act, 1961 and hence 5 F.A.No.: 646-08 complaint is not maintainable. They also contended that only Cooperative Court has got jurisdiction to decide the complaint. They also contended that as prier notice u/s. 164 of Cooperative Society Act is not given to appellant No.1, the complaint, the complaint is not maintainable. They admitted that the complainant is a duly registered society. It also admitted that it is a duly registered Cooperative Bank. They denied rest of the allegations made in the complaint and reproduced above in brief. It also submitted without prejudice to its aforesaid submission that they have refunded Rs. 27,00,000/- to the complainant and nothing of the complainant is due from it. It thus submitted that the complaint may be dismissed.
4. The District Forum below after considering the evidence brought before it by both sides, came to the conclusion that the complainant is a consumer of original Opponent No.1 to 18 and 20 to 22 and that they have committed deficiency in providing service to the complainant and that the complainant is entitled to recover the amount from them. Therefore they gave direction to the original Opponent No. 1 to 18 and 20 to 22 to pay the amount as claimed with interest @ 10.75% p.a. with effect from 18.06.2006 and to also to pay compensation of Rs. 15,000/- towards mental harassment and cost of complaint to the extent of Rs. 15,000/-.
5. We have heard Adv. Shri. N. R. Bhanvar who appeared for the appellant and Adv. Shri. Mukul Kulkanri who appeared for Respondent No.1 i.e. Original Complainant. None for present for rest of the respondent for hearing.
We have also perused the papers. The advocate of the appellants during the course of argument has made same submission as made in the aforesaid written version of Respondent No.1 & 19 which is reproduced in brief above. Hence it is not necessary to reproduce the said submission. He has relied upon the observations made in the following cases in support of his said submission.
6 F.A.No.: 646-08i. Delhi Transport Corporation Employees Provident Fund Trust Vs. Orissa Small Industries and Another, III 2007 CPJ 0 316 (NC). In that case, the complainant had applied for 600 numbers of bonds of Rs.1,00,000/- each amounting to Rs.6 Crores. The bonds were guaranteed by opposite party No.2. The date of maturity of those bonds was 15.03.2005. The Opposite Party No.1 paid interest at the prescribed rate upto Dec. 2002. Despite of repeated request, the opposite party failed to refund the amount of bonds and the interest. Direction was sought for payment by opposite party for amount of Rs.72,62,500/- towards interest upto the date of maturity i.e. 15.03.2005, Rs.18,50,000/- towards overdue interest and Rs.6 cores as principal amount and Rs.10,00,000/- by way of damages, total in Rs.7,01,12,500/- by the complainant.
The Hon'ble National Commission held that, the service provided by opposite party No.1 to the complainant falls within the meaning of commercial activity as the service was not hired or availed of for earning livelihood by means of self employment and the investment was made only to earn higher rate of interest and therefore the complainant was not consumer and complaint was not maintainable. Therefore complaint was dismissed.
ii) Gurjeet Sing Vs. Bank of Punjab Ltd, and others, IV (2008) CPJ 70 (NC). In that case, fixed deposit receipts were given as counter guarantee to Bank guarantee which was not discharged. It is held that, there was no deficiency in serve on the part of Bank and that the transaction was purely for commercial purpose on the part of Bank. It is further held that the jurisdiction of Consumer Fora could not be invoked for reddressal of said grievance and petitioner is at liberty to seek remedy through Civil Court.
7 F.A.No.: 646-086. On the other hand, advocate of the original complainant i.e. Respondent No.1 supported the impugned judgment and order. He also submitted that the District Forum below had jurisdiction to entertain and decide the complaint. He has also relied upon the observation made in bunch of revision petitions in between same parties i.e. Reserve Bank of Indian Vs. Ishwarapp and another decided by the Hon'ble National Commission on 24.07.2008 by common order. In those cases the contention was raised that once a prohibitory order under section 35A of the Banking Regulation Act, 1949 is passed the Consumer Forum would have no jurisdiction to entertain the complaints and pass an order directing the Bank to pay the amount. Hon'ble National Commission held that the said submission is without any subsistence. It observed that mere reading of the aforesaid prohibitory order would indicate that there is no prohibition in filing complaint under Consumer Protection Act, 1986 or suit by a depositor. It only prohibits payment of any amount to the depositors. It is also observed that, such being the case, there is and there can not be any prohibition to the Consumer Fora entertaining a complaint under Consumer Protection Act and crystallyzing the amount due and payable to the aggrieved consumers who are depositors of the bank in question. Considering the facts of that case the Hon'ble National Commission gave direction to the Liquidator to abide by the final order passed by the Consumer Fora to make payment of the amount which is crystalized by the Consumer Fora, within a period of six weeks from the date of that order.
7. It is seen from the perusal of the order passed in the aforesaid revision petition that, it is relating to the contention about the prohibitory order passed u/s 35 (A) of the Bank Regulatory Act, 1975. The dispute in the present matter does not fall under the such order of section 35 (A). Moreover, in the instant case, no order has been passed against any of the liquidator. Thus the facts and circumstances of the present case are totally 8 F.A.No.: 646-08 different from those of the said cases relied upon by the advocate of the original complainant i.e. Respondent No.1 and hence it is not applicable to the present case.
8. On the other hand, we find that the aforesaid two case law's relied upon by the advocate of the appellants are fully applicable to the present case. It is the specific case of the original complainant i.e. respondent No.1 herein as discussed above that it deposited huge amount in crores with the Respondent No.1 Cooperative Bank from time to time so as to earn profit by way of high rate of interest. Therefore hiring of service of the Respondent No.1 by the original complainant society can be said for commercial purpose only.
9. The complaint is maintainable the Consumer Fora only when the complainant who filed the complaint falls within a definition of the consumer given u/s 2 (a) (d) of the Consumer Protection Act. The said section inter alia provides that whenever services are availed of for commercial purpose then the person who hires such services is not a consumer for filing the complaint. The explanation appended to the said section also provides that if the services are availed by such persons exclusively for the purpose of earning his livelihood by means of self employment then such transaction does not fall within the purview of commercial purpose.
10. In the instant case it is not the case of the original complainant i.e. respondent herein that the services were availed by it excessively for the purpose of earning livelihood by means of self employment. Hence applying the aforesaid case law relied upon by the advocate of the appellant we are of the clear view that the services of the respondent hired by the complainant i.e. respondent herein were only exclusively for commercial purpose and 9 F.A.No.: 646-08 therefore the complainant is not a consumer as defined u/s. 2 (1)(d) (II) of Consumer Protection Act. The District Forum has not considered the aforesaid law in correct prospectives which is applicable to the present case. Therefore it committed error in holding that the complainant is a consumer. We therefore hold that on this sole ground the complaint before the District Forum is not maintainable and complaint is liable to be dismissed. Thus without going into other contentions raised before us by both sides we hold that the appeal deserves to be allowed and accordingly following order is passed.
-:: ORDER ::-
1. The appeal is allowed.
2. The impugned judgment and order dated 30.04.2008 passed in C.C. No.12/2008 is hereby quashed and set aside.
3. The said complaint is dismissed.
4. Both parties shall bear their own cost.
5. Copies of the judgment and order be sent to both the parties.
(K. B. Gawali) (B. A. Shaikh) Member Presiding Judicial Member Kalyankar