State Consumer Disputes Redressal Commission
Icici Bank Ltd. vs Archana Bhatia on 27 May, 2024
FA NO./673/2014 D.O.D.: 27.05.2024
ICICI BANK LTD. VS. MRS. ARCHANA BHATIA
IN THE DELHI STATE CONSUMER DISPUTES
REDRESSAL COMMISSION
Date of Institution: 08.07.2014
Date of Hearing: 16.02.2024
Date of Decision: 27.05.2024
FIRST APPEAL NO.-673/2024
IN THE MATTER OF
ICICI BANK LTD.
CONNAUGHT PLACE,
NEW DELHI-110001.
(Through: K. Datta & Associates)
...Appellant
VERSUS
MRS. ARCHANA BHATIA
PROPRIETOR, AAR BEE EXPORTS
58, HARTHLA INDUSTRIAL AREA,
KANTH ROAD, MURADABAD.
(Through: Mr. Abhishek Singh & Prakhar Singh)
...Respondent
DISMISSED PAGE 1 OF 9
FA NO./673/2014 D.O.D.: 27.05.2024
ICICI BANK LTD. VS. MRS. ARCHANA BHATIA
CORAM:
HON'BLE JUSTICE SANGITA DHINGRA SEHGAL
(PRESIDENT)
HON'BLE MS. PINKI, MEMBER (JUDICIAL)
Present: Ms. Alpana Singh (Enrl. No. D/9005/2022, M: 7906644014,
Email id: [email protected]), counsel for counsel for
the Appellant.
Mr. Abhishek Singh, (Enrl.No. D/3484/2022, M:
9889994763, Email id: [email protected]),
counsel for the Respondent.
PER: HON'BLE JUSTICE SANGITA DHINGRA SEHGAL,
PRESIDENT
JUDGMENT
1. The facts of the case as per the District Commission record are:
"The Complainant is lady entrepreneur dealing with export business through M/s Aar Bee Exports having a current A/c with OP bank bearing no.000705002324 being a proprietor of the firm. The complainant had taken six FDS for 2 year from OP bank as per details in Para4 of the complaint as under:
S.No. FDR Date Amount Maturity
No. in Rs value in
Rs
1. 715224419 23.11.2001 175000 2,07,059
2. 715228943 04.12.2001 170000 2,01,143
3. 715230784 07.12.2001 350000 4,14,118
4. 715254686 04.02.2002 475000 5,62,118
5. 715235656 21.12.2001 180000 2,12,975
6. 715241791 04.01.2002 75000 90,000
7. Total 1425000 16,87,313
DISMISSED PAGE 2 OF 9
FA NO./673/2014 D.O.D.: 27.05.2024
ICICI BANK LTD. VS. MRS. ARCHANA BHATIA
Further complainant had deposited several foreign cheques with OP bank for clearing which were dishonored but Op did not inform the complainant in time. Consequently OP bank adjusted that amount of FDR without consent of complainant before maturity. Further complainant had received remittance of UK pounds the sterling 23,799/- equivalent Rs.16,15,960/- as per Para 11 of the complainant. OP supposed to issue certificate (FIRC) immediately so that overdraft a/c be credited immediately. Consequently, complaint was filed on 31.03.06."
2. The District Commission after taking into consideration the material available on record passed the order dated 11.04.2014, whereby it held as under:
"After going through the pleading, W.S and Evidence of parties, complainant having current a/c which was being used for deposit of foreign cheques is an admitted position by OP. Complainant has attached photocopies of 4 FDRS bearing no.715224419, 715228943, 71523078 and 715254686 amounting to Rs.11,70,000/- with maturity value amounting of Rs. 13,84,338/- having maturity dates in 2003-2004. However, they were en-cashed in 2001-2002 without the consent of complainant. OP is completely silent about encashment of FDR in his W.S, affidavit and written submission. Further 3 foreign cheques of complainant credited on 22.01.02, 19.04.02 and 10.05.02 which due to dishonor of cheques were debited to complainant account on 01.06.02 at a much higher rate leading to a loss of Rs. 18,755/-- OP has defended this action by quoting extract of certain terms and conditions but had not annexed the documents from which these terms and conditions have been DISMISSED PAGE 3 OF 9 FA NO./673/2014 D.O.D.: 27.05.2024 ICICI BANK LTD. VS. MRS. ARCHANA BHATIA derived. The complainant by that term has already shipped goods to her overseas client as she has no knowledge of dishonor of cheques and thereby suffered losses due to negligent action of bank. Further while screening the evidence filed by OP, it is noticed that there is no resolution passed by Board of Director annexed to file by Pankaj Malhotra, branch Operation Manager s/o Nil in hand written which clearly indicated that there is foul play behind the scene which proves deficiency of service/unfair trade practices as well as unauthorized encashment of FDR without consent of complainant and denial of outstanding amount due to complainant. Keeping this in view, OP is directed to refund loss of interest on 4 FDRs amounting to Rs.1,267,338 and Rs. 18,755 as loss occurred of late debit on occurred dishonor of cheques along with % interest from date of encashment till realization. We also award Rs.50,000/- as compensation for harassment and litigation charges.
The order shall be complied within 30 days of the receipt of the copy of the order; otherwise action can be taken under Section 25 / 27 of the Consumer Protection Act."
3. Aggrieved by the aforesaid judgment of the District Commission, the Appellant has preferred the present appeal, contending that the Respondent is not a consumer under the Consumer Protection Act, 1986, as the Respondent is a partnership firm engaged in the commercial activity of exporting goods, which falls outside the scope of Section 2(d) of the Consumer Protection Act, 1986. The counsel for the Appellant further contended that the District Commission erred in holding the Appellant guilty of deficiency of services, as there was no evidence to substantiate this claim. Additionally, the counsel argued that the District DISMISSED PAGE 4 OF 9 FA NO./673/2014 D.O.D.: 27.05.2024 ICICI BANK LTD. VS. MRS. ARCHANA BHATIA Commission incorrectly concluded that there was a delay in informing the Respondent regarding the dishonor of cheques, as the Respondent was notified in a timely manner. The Pressing the aforesaid contentions, the Appellant prayed for setting aside the impugned judgment.
4. The Respondent, on the other hand, denied all the allegations of the Appellant and submitted that there is no error in the impugned order as the entire material available on record was properly scrutinized before passing the said order.
5. We have perused the material available before us.
6. The first question for consideration before us is whether the Respondent is Consumer within the definition of the Consumer Protection Act 1986?
7. To comment on this issue, we deem it appropriate to refer to Section 2(1)(d) of the Consumer Protection Act, 1986, which provides as under:
(i) buys any goods 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 user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
(ii) [hires or avails of] any services 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 DISMISSED PAGE 5 OF 9 FA NO./673/2014 D.O.D.: 27.05.2024 ICICI BANK LTD. VS. MRS. ARCHANA BHATIA other than the person who 10[hires or avails of] the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, 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 purposes of earning his livelihood by means of self-employment"
8. The above statutory provision makes it clear that a person who buys goods or avails services for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment is a consumer but does not include a person who avails of such services for any commercial purpose. However, Commercial purpose doesn't cover a person using things they bought or services they used only to make a living through self-employment.
9. We also deem it appropriate to refer Civil Appeal bearing no. 5204-5205 of 2022 titled as Arun Bhatiya v. HDHC Bak & Ors. Decided on 08.08.2022, wherein apex court held that:
"A person who avails of any service from a bank will fall under the purview of the definition of a 'consumer' under the 1986 Act. As a consequence, it would be open to such a consumer to seek recourse to the remedies provided under the 1986 Act."
10. Therefore, it is clear from the above dicta that a person who avails of any service from a bank fall under the purview of the definition of a DISMISSED PAGE 6 OF 9 FA NO./673/2014 D.O.D.: 27.05.2024 ICICI BANK LTD. VS. MRS. ARCHANA BHATIA 'consumer' under the Consumer Protection Act, 1986. Returning to the facts of the present case, it is evident from the record that the Respondent availed of the services of the bank and had opened six FDs for 2 years with the Appellant, who issued the same (Annexure-A).
11. The Appellant submitted that the Respondent is a partnership firm engaged in the commercial activity of exporting goods, which falls outside the scope of Section 2(d) of the Consumer Protection Act, 1986. However, after examining the facts, this Commission is of the view that the Complainant is an entrepreneur dealing with export business and using said business for their self-usage to earn their sole livelihood by means of self-employment.
12. Moreover, the Appellant has merely made a statement that the Respondent is carrying out the commercial activity of exporting goods. On perusal of record, we fail to find any material evidence showing that the Respondent/Complainant is engaged in the business solely for commercial purposes and not for livelihood. Therefore, the mere allegation that the Complainant/Respondent is engaged in the commercial activity of exporting goods cannot be grounds to reject the present consumer complaint. Consequently, the objection raised on behalf of the Appellant is devoid of any merit and is dismissed.
13. The next question for consideration is whether the District Commission erred holding the Appellant deficient in providing its services to the Respondent.
14. The expression deficiency of services is defined in Section 2 (1) (g) of the Consumer Protection Act, 1986 as:
(g) "deficiency" means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or DISMISSED PAGE 7 OF 9 FA NO./673/2014 D.O.D.: 27.05.2024 ICICI BANK LTD. VS. MRS. ARCHANA BHATIA under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service.
15. The expression 'service' in Section 2(1)(o) of the Consumer Protection Act, 1986 is defined as:
(o)"service" means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service"
16. On perusal of record, it is noted that the Respondent had six Fixed Deposit Receipts (FDRs) with the Appellant, out of which four FDRs bearing numbers 715224419, 715228943, 715230784, and 715254686, amounting to Rs. 11,70,000/- with a maturity value of Rs. 13,84,338/-, were scheduled to mature in 2003-2004. However, these FDRs were encashed prematurely in 2001-2002 without the consent of the Respondent. Furthermore, the Appellant failed to provide any evidence, apart from the FDR receipts, to substantiate its claim that it had the right to withdraw the Respondent's FDRs prematurely without her consent.
17. More so, the Appellant was unable to present any terms and conditions of the bank or guidelines from the Reserve Bank of India (RBI) to justify that the loss incurred due to the dishonor of the Respondent's cheque could be recovered from the Respondent's FDRs without her consent.
DISMISSED PAGE 8 OF 9
FA NO./673/2014 D.O.D.: 27.05.2024
ICICI BANK LTD. VS. MRS. ARCHANA BHATIA
18. Therefore, in the absence of any supporting evidence or documentation, it is concluded that the Appellant is deficient in providing services to the Respondent by unauthorizedly encashing her FDRs without her consent.
19. Accordingly, we do not find any infirmity in the judgment of the District Commission and agree with the reasons given by the District Commission. Consequently, we uphold the judgment dated 11.04.2014 passed by the District Consumer Disputes Redressal Forum -VI, 'M' Block, 1st Floor, Vikas Bhawan, I.P. Estate, New Delhi 110002.
20. No order as to costs.
21. Application(s) pending, if any, stand disposed of in terms of the aforesaid judgment.
22. The judgment be uploaded forthwith on the website of the commission for the perusal of the parties.
23. File be consigned to record room along with a copy of this Judgment.
(JUSTICE SANGITA DHINGRA SEHGAL) PRESIDENT (PINKI) MEMBER (JUDICIAL) Pronounced On:
27.05.2024 LR-ZA DISMISSED PAGE 9 OF 9