State Consumer Disputes Redressal Commission
Mr.H. Suryaprakasa Rao, vs 1.The Branch Manager, Axis Bank on 16 May, 2024
1
BEFORE THE TELANGANA STATE CONSUMER DISPUTES
REDRESSAL COMMISSION: HYDERABAD.
C.C.NO.225 OF 2017
Between:
Mr.H.Suryaprakasa Rao,
S/o.Late Nagabhushanam,
Aged : 68 years, Occ:Business,
R/o.H.No.12-10-335/2,
Seethafalmandi,
Secunderabad - 500 061. ... Complainant
And
1.The Branch Manager, Axis Bank , Tarnaka Branch, Secunderabad.
2. The Managing Director, Axis Bank , Registered Office, Trishul, Ellisbridge, Ahmedabad -380 006. ... Opposite parties Counsel for the Complainant : Mr.K.V.Rao Counsel for the Opposite Parties : M/S.T.V.L.Narasimha Rao QUORUM: Hon'ble Sri K.Ranga Rao, M ember-(J), & Hon'ble Smt.R.S.Rajeshree, M ember (N-J).
THURSDAY, THE SIXTEENTH DAY OF MAY, TWO THOUSAND TWENTY FOUR.
Order : (Per Hon'ble Smt.R.S.Rajeshree, M ember-Non -
Judicial) ******
01). This is a complaint filed by the Complainant u/s. 17(1)(a)(i) of Consumer Protection Act,1986 on 11.11.2017 against the opposite parties to direct them as follows:
i. to refund an amount of Rs.38,00,000/- ( Rupees Thirty Eight Lakhs Only) being the amount of cheque no.279428;
ii. to pay compensation of forged cheque no.279428 Rs.38,00,000/- ; and iii. to award costs of the complaint.2
02). The brief facts of the case :
The case of the complainant is that he maintains the current account bearing customer I.D.no.843984701 in opposite party no.1 bank i.e. Tarnaka Branch, Secunderabad in the name and style of M/s.Supreme Laundromat LLP account which was operated by him independently, but later one of his partner Mr.G.Srinivas was allowed to operate the same. But when he saw the statement of account for the period from 1.6.2016 to 26.9.2016 he was surprised to see that he had issued a cheque bearing no.279428 for a sum of Rs.28 lakhs whereas as per the said statement an amount of Rs.38 lakhs was paid to the payee on 29.8.2016; that immediately he approached the branch and requested for a xerox copy of the cheque, but the bank officers refused to give a xerox copy, but howe ver permitted him to see the cheque. On seeing the cheque, he noticed that the cheque was materially altered without any proper authentication; that the said material alterations to the cheque have been facilitated by the opposite party bank officials in collusion with the culprits; that the erstwhile partners Mr.Yashodhar and Mr.Sreenivas created the false documents by forgery in collusion with the opposite party bank officials. As such, the complainant had sent notices to the bank on two occasions i.e. on 17.10.2016 and 30.11.2016. The opposite party bank had replied to the said notices on 19.1.2017 evasively without there being any specific denials which amounts to admission of the guilt. After giving reply, the opposite party had supplied the copy of the cheque no.279428 which was altered to Rs.38 lakhs illegally i.e. when the complainant has learnt that there is an alteration in words and figures; that as per Sec.87 of Negotiable Instrument Act any cheque with any alternations becomes void inspite of having the said knowledge, the opposite party bank officials proceeded to make the payments under the cheque which is nothing but gross negligence and deficiency of service committed by the opposite party bank; that due to such acts of the opposite party the present complaint is filed seeking refund of amount of Rs.38 lakhs being the cheque amount along with compensation and costs.
03). The opposite party filed their written version by denying all the allegations made in the complaint and had taken a preliminary 3 objection that the complainant has no locus standi to file the present complaint since the alleged transaction pertains to current account of M/s Supreme Laundromat LLP which is an independent corporate entity and not the account of the complainant independently; that the complaint is bad for mis- joinder of opposite party no.2 since there is no privity to the subject transaction with opposite party no.1; that the grievance of the complainant does not pertain to him individually, but it is the grievance of M/s.Supreme Laundromat LLP which has 5 partners as on 13.10.2016 namely Yashodhar Vallala, Mr.Gandham Srinivas, Mr.Nanduri Gopi Krishna, M/s.Surya Jyothi Venkata Bhiminani and complainant. None of these partners have joined with the complainant to file the present complaint. Further the signatory of the impugned cheque conveyed his confirmation about genuine status and its payment in due course; that the present complaint is filed with a malafide intention since the same is in contrary to the legal notice issued by the complainant . The contentions made in para nos.2 to 8 of legal notice dt.30.11.2016 are absent in the present complaint; that in legal notice, the complainant had stated that an amount of Rs.32.50 lakhs was deposited by him to use the said amount in export market, whereas in the present complaint he stated that the said amount was deposited with a plan to use the said funds for establishing a new subsidiary in Seethaphalmandi. Further , the co-signatory Mr.Gandham Srinivas of the subject cheque is not made a party to the present complaint and payee Mr.V.Yashodhar is also not made a party to this complaint.
The opposite party further pleads that the complainant was confused with regard to his grievance whether there was an 'offence of material alternation' or the 'offence of forgery'. Infact, the present complaint is nothing but a counter blast to the criminal case filed before the Secunderabad Court for the alleged offence of mis-appropriation of funds belonging to M/s.Supreme Laundromat LLP ; that the present complaint is only an after thought , since the complainant had received SMS alert on 29.8.2016 at 16:12:39 pm. on his mobile whereas the present dispute is raised on 30.11.2016 i.e. after a lapse of 3 months . Had the complainant had any genuine claim, he would have filed a criminal complaint immediately.
4The opposite party further pleads that the account bearing no.912020020465782 belongs to M/s.Supreme Laundromat LLP in which the complainant is one of the partner and said account was operated by complainant himself along with another partner Mr.G.Srinivas until 12.8.2015. Thereafter, the said current account was operated by the complainant independently from 13.8.2015 to 7.11.2016. Presently the account is being jointly operated by Mr.Vallala Yashodhar and Mr.Gandham Srinivas since 8.11.2016. Hence it is denied that the afore said current account was under operation jointly by complainant and Mr.G.Srinivas as on the date of the complaint ; that the cheque bearing no.279428 was legally altered from Rs.28 lakhs to Rs.38 lakhs and the said alternation was confirmed with full signature by Mr.G.Srinivas who is one of the operating signatories of the drawer, and the amount mentioned in words is Rs.38 lakhs and it is valid by virtue of Section 18 of Negotiable Instruments Act. The complainant claim that he had deposited Rs.32.50 lakhs on 24.6.2015 in the current account no. 912020020465782 of M/s.Supreme Laundromat LLP to use the said funds for establishing a new subsidiary in Seethaphalmandi is against the agreement of the Supreme Laundromat LLP , since the said agreement does not provide for any partners to floa t subsidiary individually. Further the said amount was received by Mr.Vallala Yashodhar who is one of the partner of Supreme Laundromat LLP, but not from the complainant. The ownership for the funds coming into the account of Supreme Laundromat cannot be attributed to the depositor of the funds in individual capacity; that the present complaint is filed by the complainant only to enrich himself and that there is no deficiency of service on the part of the opposite parties. Hence prayed that the complaint be dismissed with exemplary costs.
04). The complainant filed evidence affidavit and got marked Exs.A1 to A5. Mr.Darbha Sridhar, Branch Head - opposite party no.1 filed his evidence affidavit as RW.1 . Exs.B1 to B4 are marked on behalf of the opposite parties.
505). Heard both sides and perused the record.
06). The points for consideration are :
i. Whether the complainant is a 'Consumer' as defined under C.P. Act ?
ii. Whether the complaint is maintainable under the Consumer Protection Act ?
iii. Whether the opposite parties have been deficient in their services?
iv. Whether the complainant is entitled for the reliefs sought for in the complaint?
v. If yes, to what relief? 07). Point No.i: The specific case of the complainant is that he
has a current account in the opposite party no.1 bank by name M/s Supreme Laundromat LLP, which was operated by him independently; later Mr.G.Srinivas one of the partner was permitted to operate the said account along with the complainant; The complainant after receipt of statement of account for the period from 1.6.2016 to 26.9.2016, was surprised to see that though he issued cheque no.279428 for Rs.28,00,000/- but it was shown as Rs.38,00,000/- and was paid to the payee on 29.8.2016; that immediately he approached the branch and requested for a xerox copy of the cheque and he noticed that the cheque was materially altered without any proper authentication;
that the said material alterations to the cheque have been facilitated by the opposite party bank officials in collusion with the culprits; that as per Sec.87 of Negotiable Instrument Act any material alteration of a cheque renders it void and hence the opposite parpty bank committd gross negligence and committed deficiency of service . Hence the present complaint is filed by the complainant and in support of his case the complainant got marked Exs.A1 to A5.
On the other hand the opposite party had denied all the allegations made by the complainant and had taken a preliminary objection that, since the alleged transaction pertains to a current account of M/s.Supreme Laundromat LLP which is a corporate entity and not an individual account, the same is not maintainable before the Consumer Commission. Secondly that since allegations pertain to alterations in cheque, criminal conspiracy and gross negligence, the said allegations need to be addressed by a trial 6 court by conducting full-fledged trial and that the same cannot be tried under summary procedure.
08). Admittedly the disputed transaction pertains to a current account; that apart the complainant has not disclosed any details of purpose of opening a current account and as to what type of transactions are done in the said current account so as to ascertain the purpose of the account. It is settled law that a current account holder who uses the said account for his business purpose does not fall within the ambit of the 'Consumer' as defined under the C P. Act. In PPS International vs. Punjab National Bank the Hon'ble NCDRC had discussed the preliminary issue, whether the current account holder falls within the ambit of the definition of Consumer and had held that the current account holder is not a 'Consumer; and dismissed the complaint as not maintainable without even going into the merits of the case. The said case squarely applies to the present case.
In the instant case the complainant himself states that the current account is opened in the name of M/s.Supreme Laundromat LLP but there is no whisper in the complaint that the said Supreme Laundromat LLP is established by the complainant for eking out his livelihood. In the absence of any such specific plea, it has to be presumed that the same is for commercial purpose i.e. for generating profit and that the transactions in the current account are that of business to business transactions. Therefore, we have no hesitation to hold that since the complainant is holding a current account he does not fall within the ambit of the 'Consumer' as defined under the C.P. Act.
09). Point no.ii: The other preliminary objection raised by the opposite party is that since the grievance of the complainant involves issues pertaining to forgery, criminal conspiracy and gross negligence the same has to be decided by trial court and that the same cannot be decided under summary procedure. The case of the complainant is that the cheque no.279428 issued by him for Rs.28,00,000/- was altered to Rs.38,00,00/- and that the opposite party Bank officials in collusion with the culprits had passed the said cheque. In a very recent case decided on 27.03.2023 the Hon'ble Supreme Court in The Chairman & 7 Managing Director, City Union Bank Vs. R. Chrandramohan, 2023 Livelaw (SC) 251 had held as follows:
"Complaints involving highly disputed questions of facts or cases involving tortuous acts or crimina lity like fraud or cheating could not be decided by SCDRC or NCDRC respecting the summary nature of proceedings."
In view of the nature of the allegations made in the instant complaint and the settled legal position as stated above, we are of the view that the complaint is not maintainable before the Consumer Commission and since we have arrived at a conclusion that the complaint is not maintainable before this Commission, it would not be proper to discuss the merits of the case since if any observation of finding is given, the same would cause prejudice to the parties who intend to approach the competent authority. Therefore, we are not discussing the merits of the case and we have no hesitation to conclude that the present complaint is not maintainable before the Consumer Commission. Hence both the points are answered against the complainant.
10). In the result the complaint is dismissed as not maintainable.
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M EMBER(J) MEMBER(NJ)
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Dated : 16.5.2024 APPENDIX OF EVIDENCE W itnesses Examined For the complainant For the opposite parties Complainant filed evidence Opp.party no.1 filed evidence Aff. aff.
Exhibits marked on behalf of the complainant:
Ex.A1 : Statement of account of Supreme Laundromat LLP for the period from 1.1.2016 to 31.12.2016 issued by opp.party bank.
Ex.A2 : Photostat copy of cheque bearing no.279428;
Dt.28.8.2016.
Ex.A3 : Copy of legal notice dt.30.11.2016 issued on behalf of complainant to opp.party no.1;
Ex.A4 : Photostat copies of postal receipts ; Ex.A5 : Reply legal notice dt.19.1.2017;8
Exhibits marked on behalf of opposite parties :
Ex.B1 : Copy of lr.dt.16.2.2018 from Supreme Laundromat LLP to opp.party no.1;
Ex.B2 : Photostat copy of Cheque bearing no.279428; Ex.B3 : Photostat copy of Pay in slip Dt.29.8.2016; Ex.B4 : Details with regard to RTGS remittance.
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MEMBER(J) M EMBER(NJ)
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Dated : 16.5.2024