National Consumer Disputes Redressal
M/S. Edit Ii Productions vs Standard Chartered Bank Ltd on 10 April, 2015
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI CONSUMER CASE NO. 168 OF 2009 1. M/S. EDIT II PRODUCTIONS B-7, Khar Shakti Building, 20th Road, Khar (W) Mumbai - 400 052 ...........Complainant(s) Versus 1. STANDARD CHARTERED BANK Ltd 23-25, M.G. Road, Fort, Mumbai - 400 054 ...........Opp.Party(s) BEFORE: HON'BLE MR. JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER HON'BLE MRS. REKHA GUPTA, MEMBER
For the Complainant : Mr. Anand Patwardhan, Advocate For the Opp.Party : Mr. Ajay Monga, Advocate Dated : 10 Apr 2015 ORDER JUSTICE AJIT BHARIHOKE, PRESIDING MEMBER Complainant M/s Edit II Productions is a partnership concern engaged in production of TV serials. Initially M/s Edit II Productions was a proprietorship concern of Binaifer S Kohli and she had opened a cash credit account with the opposite party bank. On 3.10.2006, the proprietorship business was taken over by the partnership comprising of two partners, namely, Mrs. Binaifer S Kohli and Sanjay R Kohli. The opposite party bank was apprised of change in constitution of the complainant firm and all the accounts and business of the proprietorship concern was transferred to the partnership firm. Since the inception, the complainant firm has been maintaining cash credit account with the opposite party bank. It is the case of the complainant that during the period w.e.f. April 2005 till 21.11.2008 one Shoeb Mohammed Taj Mohammed Shaikh, account of the complainant firm managed to get hold of blank unsigned cheque books of the complainant firm and he unauthorizedly withdrew a sum of Rs.2,37,64,090/- by presenting forged cheques. When the complainant came to know about unauthorised withdrawals from the account of the firm, they approached the bank for reimbursement but in vain. Claiming this to be deficiency in service, the complainant filed consumer complaint. It is pertinent to note that in para 21 of the complaint, the complainant reserved its right to invoke the jurisdiction of the Civil Court for recovery of amount wrongfully withdrawn against the opposite party bank as also the accountant and other benami property holders who had acquired the property from the proceeds of the above noted forgery. Subsequent to filing of consumer complaint, a civil suit for recovery was filed in Bombay High Court which is still pending.
2. The opposite party contested the complaint on merits. The allegations on merits need not be reproduced. Besides, the opposite party raised preliminary objection regarding the maintainability of the complaint particularly in view of the fact that complainant has also filed Civil suit for recovery in Bombay High Court on the same cause of action. It is also pleaded by the opposite party that the complaint involves detailed trial in view of the allegations made and complex issues which requires detailed evidence for determination. Therefore, the matter should be decided by the Civil Court. Apart from the above noted preliminary objections, there is another issue which need determination i.e. whether the complainant is a 'consumer' as envisaged under section 2 (1) (d) of the Consumer Protection Act, 1986.
3. Since serious issues of maintainability of complaint are involved in this case, we have heard the parties on maintainability.
4. In order to find out answer to the question as to whether M/s Edit II Production is a consumer for the purpose of Consumer Protection Act, it is necessary to have a look on the definition of 'consumer' as provided under section 2 (1) (d) of the Consumer Protection Act. The definition reads as under:
(d) "consumer" means any person who--
(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 other than the person who '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 purposes;
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;
5. Since the instant complaint is based upon the allegations of deficiency in service, section 2 (1) (d) (ii) is relevant which provides that consumer is a person who hires or avails of service for consideration whether paid or deferred but does not include a person who hires of avails of such service for any commercial purpose.
6. In the instant case, on reading of the complaint it is evident that complainant is a partnership firm and complaint is based upon the allegations of deficiency in service in relation to cash credit account extended by the opposite party bank to the complainant. Obviously, the cash credit account was opened in connection with the production business of the complainant firm, therefore, it cannot be disputed that services of the opposite party bank were availed by the partnership firm w.e.f. 03.10.2006 for commercial purpose. Thus the case of the complainant is covered within the exception to the definition of consumer which was introduced by way of amendment to the original clause on 15.03.2003.
7. Mr. Anand Patwardhan, Advocate for the complainant has tried to wriggle out of the situation by submitting that the deficiency in service which is the basis of this complaint is nothing to do with the profit making or business interest of the complainant. The opposite party bank was under obligation to match the signatures on the cheque before honouring those cheques and had the bank officials been diligent, they would not have honoured the forged cheques. We do not find merit in this contention. In order to find answer to the question whether the complainant falls within the exception to definition of 'consumer', what is relevant is the purpose for which the services of the bank were hired? Admittedly, the complainant opened account with cash credit facility with the bank in relation to its production business. Therefore, in view of the exception to the definition of consumer carved out in the section, the complainant is not a consumer. That being the case, the complainant has no locus standi to maintain the consumer complaint. On this count alone, the complaint is liable to be dismissed.
8. Otherwise also the case of the complainant is that the opposite party Bank has committed deficiency in service in honouring hundreds of forged cheques for total amount of Rs.2,37,64,090/- as detailed in annexures A & B. the opposite party Bank has disputed this allegation and contended that the subject cheques were signed by the partner of the firm, namely, Sanjay R. Kohli whose signatures invariably did not tally with the specimen signatures with the bank and that once on this account when his cheque was dishonoured, he got angry and instructed that in future in the event of any suspicion regarding the correctness of his signatures, the position should be clarified with the Accountant incharge, namely, Shoeb Mohd. Taj Mohd. and in the event of confirmation of issuance of cheque, the same should be cleared immediately without further investigation.
9 From the aforesaid contradictory stands taken by the parties, it is obvious that the dispute raised by the parties involves a complex question of fact relating to forgery which obviously would need voluminous evidence for determination and cannot be decided in summary proceedings. Thus, in our view, it would be appropriate that the dispute in question should be decided by the Civil Court of competent jurisdiction. In fact, it is admitted case of the complainant that he has already filed a civil suit for recovery in Bombay High Court on the same cause of action.
10. During the course of proceedings, we called upon the complainant to make a choice whether he wanted to proceed with the complaint or the civil suit. The complainant instead of opting between the two options insisted on pursuing this complaint parallel with the civil suit. This reflects on the bona fides of the complainant. On perusal of the copy of the plaint filed before the Bombay High Court we find that the reliefs sought in the present complaint as also the civil suit are almost similar. The complainant, in our view, cannot be permitted to pursue the same remedy before the two forums because there is a possibility of contradictory findings resulting in anomalous situation. It is pertinent to note that Indian judicial system, which includes the quasi- judicial tribunals, is burdened with huge pendency. Permitting the luxury of extending parallel proceedings on the same cause of action under two jurisdictions would amount to further adding to the burden on the system. Therefore, also, the complainant cannot be permitted to pursue its remedy simultaneously before two fora. Since complainant has opted not to withdraw the civil suit and also that the instant complaint raises complex question of fact, we are of the view that it would be appropriate that the matter is decided by the Civil Court particularly when the complainant has no locus standi to maintain the consumer complaint.
11. In view of the discussion above, the complainant not being the consumer has no locus standi to maintain the complaint. Consumer complainant is, therefore, dismissed. It is made clear that this order shall not affect the right of the complainant to pursue its remedy before the Civil Court.
......................J AJIT BHARIHOKE PRESIDING MEMBER ...................... REKHA GUPTA MEMBER