State Consumer Disputes Redressal Commission
Shri Nawal Kishor Singh, Prop. M/S J.P. ... vs The State Bank Of Patiala (Branch Code ... on 26 November, 2012
STATE CONSUMER DISPUTES REDRESSAL COMMISSION, HARYANA, PANCHKULA Complaint Case No.21 of 2010 Date of Institution: 04.02.2010 Date of Decision: 26.11.2012 Shri Nawal Kishor Singh, Prop. M/s J.P. International, R/o House No.621, Sector 9, Faridabad, Haryana. Complainant Versus The State Bank of Patiala (Branch Code 50582) Faridabbector-133, Sector 9, Faridabad, Haryana through its Manager. Opposite Party BEFORE: Honble Mr. Justice R.S. Madan, President. Mr. B.M. Bedi, Judicial Member. For the Parties: Shri Ravi Bhushan, Advocate for Complainant. Shri Abhineet Taneja, Advocate for Opposite Party. O R D E R
Justice R.S. Madan, President:
Complainant is the Proprietor of M/s J.P. International, which is a 100% export oriental company. The Proprietor has a good reputation in and the business has goodwill in Australia. The complainant used to take the goods from India to sell in the Australian market and for the said purpose, he had kept one of his relative named Azad Singh to do the work in accordance with the regular directions of the complainant. Azad Singh was acting as a Manager in M/s J.P. International.
Azad Singh obtained loan of Rs.30,000/- from Prime Financial and started his own business but without informing the complainant. On coming to know, the complainant visited State Bank of Patiala where the firms account was maintained and found that Rs.3 lcs and 85 thousands had been withdrawn from complainants firm account with the help of forged signatures by Azad Singh. Cheque No.912770 (Annexure P-3) for Rs.1.35 lacs and the said amount was transferred to the account of Azad Singh The withdrawal by second forged cheque bearing No.912769 (Annexure P-3) for Rs.2.5 lacs showed the illegality in connivance with the officials of Bank. Thus, Azad Singh committed forgery and committed fraud with the complainants firm by withdrawing Rs.3.85 lacs from the Bank in connivance with Bank Officials. F.I.R.No.512 dated 21.12.2007 under Sections 420,467,468,471 and 120-B I.P.C. Police Station Sector7/8, Faridabad was lodged against Azad Singh, Sandhya Singh and the Manager of State Bank of Patiala.
On 21.12.2007 the complainant wrote to the Bank that Azad Singh had taken the cheque book 912751 to 912880 from the Bank directly without his written or verbal instructions and cheques from Sr. No.912751 to 912770 had already been illegally transacted and for that reason the complainant requested through letter to stop the payment of the remaining cheques from Sr.No.912771 to 912800. Information with respect to lodging of F.I.R. was also given to the Bank. Azad Singh ran away and continued issuing cheques to different people by forging signatures and distributed all the aforesaid cheques to the suppliers with whom the complainant had some payment disputes. The cheques were issued by Azad singh without any authorization from the complainant. The complainant found one copy of Azad Singhs saving account statement from the office drawer and it was revealed that Azad Singh had opened his bank account in the same branch and huge amount had been deposited in his account during the aforesaid period. Azad Singh used to get most of the goods made from unapproved/local suppliers with the substandard raw materials at half price as compared to the price of approved suppliers. The complainant used to send firms payment funds in te account by TT (Telegraphic Transfer) from Australia.
The grievance of the complainant is that due to negligence or carelessness of the Bank and perhaps in connivance with Bank Officials, the amount was constantly being transferred from the account to the account of Azad Singh and thus Azad Singh cheated the complainant and thus the complainant suffered loss of business due to negligent service of the Bank which granted opportunity to Azad Singh to withdraw the money illegally.
Azad Singh cut his name and put his own name as beneficiary with the forged signature of the complainant on the cutting and deposited the cheque in his own saving account. The total amount of money which was withdrawn illegally from complainants firm is Rs.29,57,828/-.
The complainant sent all the genuine and fake cheques for investigation by the FSL, Madhuban, Haryana Government. The Forensic Science Laboratory, Madhuban, Karnal carried out the investigation. The FSL Report No.08/DOCS-960 dated 9th May, 2008 under FIR No.512 which is Annexure P-9.
Thus, alleging deficiency in service on the part of the opposite party, the complainant filed this complaint with the prayer to issue direction to the opposite party to pay Rs.95,00,000/- to the complainant.
Upon notice, the opposite party appeared and contested the complaint by filing written statement. In the preliminary objections it has been stated that the firm of the complainant in whose favour the account has been opened with the opposite party is 100% export oriented company and is a commercial unit. All the transactions of the commercial organization of the complainant were being done for commercial purpose and therefore the complainant is not the consumer and the complaint cannot be adjudicated upon in view of the judgment rendered by Honble National Commission in case Sushma Goel vs. Punjab National bank, 2011 (II) CPJ 270. It is further stated that the present case would require detailed evidence, cross-examinations, detailed scrutiny of such evidence etc etc which cannot be done in the court of summary jurisdiction. Moreover, the complainant has himself alleged forgery, cheating, tampering and fraud etc in almost all other paras of the complainant, more particularly in para No.7,8,11,13,21,22,24,27 and 37. A bare perusal of the report obtained by the opposite party from the handwriting expert would show that there is no forgery on the cheques whereas the complainant is alleging that the cheques were forged. The complainant has alleged that his manager Azad Singh forged the cheques and got the money transferred in his account. However, surprisingly enough, the said manager has not been made as the party to the case for the reasons best known to the complainant. therefore, a possibility of criminal conspiracy between the complainant and his manager cannot be ruled out. There can be only two reasons for not impleading the manager Azad Singh as the party to the case. First, there could be collusion between the complainant and his manager or secondly, the complainant is scared of the fact that had the manager been impleaded as the party to the case, the same would have put forth the factual position and would have made the true and factual position evidently clear. Denying the claim of the complainant, the opposite party prayed for dismissal of the complaint.
Opposite Party also moved an application for dismissal of the complaint by taking the objection taken by the opposite party in the written statement, the complainant being not a consumer. In reply to the application, the and prayed for dismissal of the application.
We have heard the learned counsel for the parties and perused the case file.
Admittedly, the complainant is the proprietor of M/s J.P. International which is a 100% export oriented company and the firm has its account with the opposite party. In other words, the account of the complainant with the opposite party is with respect to commercial activities and therefore the services availed by the complainant with the opposite party is for commercial activities. Thus, the complainant cannot be termed as a consumer. Reference in this regard is made to case law cited as Birla Technologies Ltd versus Neutral Glass and Allied Industries Ltd, 2011(1) CPR 1 (SC), wherein the Honble Supreme Court has held that:-
(i) Consumer Protection Act, 1986 Section 2(1)(d)(i) A person purchasing goods for commercial purposes is not a consumer. ( Para
6)
(ii) Consumer Protection Act, 1986 Section 2(1)(d)(ii), after amendment- A person availing services for any commercial purpose is not a consumer. ( Para
8)
(iii) Consumer Protection Act, 1986 Section 2(1)(d)(i) and (ii) The complaint filed after amendment of the Act-Goods purchased for commercial purposes-Services were hired or availed of for commercial purposes-Complaint not maintainable.
( Para 9)
(iv) Limitation Act, 1963 Section 14 Period spent in prosecuting proceedings before wrong forum-To be excluded while determining limitation. ( Para 10) In SHUSHMA GOREL versus PUNJAB NATIONAL BANK, II (2011) CPJ 270 (NC) it has been held that:-
7. From this and the evidence produced on behalf of the Complainant before the Fora below, it is abundantly clear that the entire matter in the complaint filed by Smt. Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. The revision petition itself claims in para 3.1 that-
Revisionist is engaged in business of the share trading and is an authorised agent of M/s Bananza Portfolio Ltd. (herein referred to as Company) a company incorporated under Companies Act, 1956 having its registered office at 4353/4C, Ansari Road, Darya Ganj, New Delhi.
8. By this admission, the complaint will fall within the exception clause contained in Section 2(1)(d)(ii) of the Consumer Protection Act, as amended in 2002. In terms of this provision, the RP/Complainant does not qualify to be a consumer for the purposes of the Consumer Protection Act, 1986. Therefore, in our view, the State Consumer Disputes Redressal Commission, Uttrakhand has rightly rejected the Consumer Complaint filed by the Revision Petitioner.
The facts of the instant case are fully attracted to Birla Technologies Ltd versus Neutral Glass and Allied Industries Ltd case (Supra) SHUSHMA GOREL versus PUNJAB NATIONAL BANK case (Supra) because the account of the complainant is for commercial transaction. Complainant in his complaint has stated that he is the proprietor of M/s JP International, which is a 100% export oriented company. Thus, the complainant does not fall within the definition of consumer as defined in Section 2(1)(d) of the Consumer Protection Act, 1986. It has also come on the record that a criminal case has already been registered against Azad Singh as well as the Manager of State Bank of Patiala vide F.I.R.No.512 dated 21.12.2007 under Sections 420,467,468,471 and 120-B I.P.C. Police Station Sector7/8, Faridabad. Thus, under the facts and circumstances of the case the controversy involved in this case is not a consumer dispute and the same cannot be decided under the Consumer Protection Act. Hence, this complaint is not maintainable.
For the reasons recorded above, this complaint is dismissed.
Announced: Justice R.S. Madan 26.11.2012 President B.M. Bedi Judicial Member