State Consumer Disputes Redressal Commission
Mr. S.A. Narayan, vs Corporation Bank, on 16 June, 2010
BEFORE THE HON
BEFORE THE HONBLE STATE CONSUMER DISPUTES
REDRESSAL COMMISSION, MAHARASHTRA, MUMBAI
First Appeal No.409 of
2010 Date of filing: 13/04/2010
In Complaint
No.26/2008 Date of order: 16/06/2010
District Consumer Disputes
Redressal Forum, South Mumbai.
1.
2.
Mr. S.A. Narayan,
Proprietor of M/s.
Texgar Trading Company,
Deepsh Apartment,
Ground Floor, Room No.1,
Second Rabodi Koliwada,
Thane West 400 601.
M/s. Texgar Trading
Company,
A Proprietor Firm
having its address at
Unit Nos. 109 & 124,
Guru Nanak Udyog Bhavan,
L.B.S. Marg, Bhandup,
Mumbai 400 078
..Appellant/
(Org. Complainants)
V/s.
1.
2.
3.
Corporation Bank,
Having its Head Office
at Mangalore 575 001.
And also amongst other
branches, having one of its Branch Office at Earnest House,
Overseas Branch,
Nariman Point,
Mumbai 400 021.
Guru Nanak Udyog Bhavan
Industries Premises Co-op. Society Limited,
Having its address at
L.B.S. Marg,
Bhandup, Mumbai 400
078.
The Honble Presiding
Officer,
Debts Recovery Tribunal
II, Mumbai.
..Respondent
(Org. Opp. Parties)
Quorum:
Shri P. N. Kashalkar, Honble Presiding Judicial Member.
Smt. S. P. Lale, Honble Member.
Present:
Appellant in person.
Mr. S. Hussain, Advocate for Respondent No.1.
-: ORAL ORDER :-
Per Shri P.N. Kashalkar, Honble Presiding Judicial Member:
1) This appeal is filed by Original Complainant whose Consumer Complaint No.23/2008 has been dismissed by District Consumer Disputes Redressal Forum, South Mumbai, by judgement dated 23.02.2010 in Complaint No.26/2008.
2) Facts to the extent material may be stated as under:
Complainant No.1 appears to be partner of M/s. Texgar Trading Co. and Partnership firm was also impleaded as Complainant No.2 by Mr. Narayan Shetty. According to Complainant, he is partner of Complainant No.2 and Company is carrying on business from Gala No. 109 and 122. Complainant No.2 is in the business of manufacturing and they are also exporters and Complainant No.2 is member of Apparels Export Promotion Council, Cotton Textiles Export Promotion Council, Silk & Art Export Promotion Council. He is also member of Clothing Manufacturers Association and Indo German Chamber of Commerce, Mumbai. Complainant No.2 is a registered partnership firm and it is also registered as Small Scale Industrial Unit with the Director of Industries Unit with the Directorate of Industries, Government of Maharashtra. According to Complainants, in the year 1981-82 Complainant submitted number of export bills to the tune ofRs.6,40,000/- on various dates for collection from the overseas buyers and also advised the Opposite Party No.1 to adjust PCL and SSL from the credit received against the same. Complainant alleged that after nationalization of Opposite Party No.1 Corporation Bank, the entire management was changed and new management failed to carry out the systematic working resulting in deterioration in their service, which seriously affected the business of the Complainants Partnership firm.
Complainant No.2 Company ceased functioning due to the fire took place in its office/business premises in the month of May, 1986. The Opposite Party No.1 filed Suit No.1450/1986 in the Honble High Court and took out notice of motion for recovery of Rs.2,63,30.55 against the Complainant. Complainant sent a letter to the Opposite Party Bank on 05.08.1986 requesting to arrange supply of Statement of Accounts for the period 01.04.1981 to 31.03.1986. The Opposite Party failed and neglected to comply the same with ulterior and malafide motive and by letter dated 08.06.1986 recorded misbehavior on their Branch Manager with the representative of the Complainant No.2 and refusal of the Bank to furnish requisite information/documents and further requested to provide Statement of Accounts for the period from 01.04.1981 to 31.3.1986. Opposite party failed to comply with the said demand. It appears that Complainant No.1 approached Honble High Court and also Honble D.R.T., Mumbai for getting statement of accounts for the period 01.01.1981 to 31.12.1986 as the information on the bills pending for realization was required by him. He had also moved an application under R.T.I. Commission under R.T.I. Commission had directed Bank to supply requisite documents, but, Corporation Bank told Commission that, since the documents asked were beyond the period of 20 years from the date of request, the same could not be furnished. Thereafter, he sent several letters to the Central Information Commission, New Delhi alleging that Opposite Party No.1 had deliberately neglected to supply information to the Complainant and that amounted to deficiency in service and it had caused tremendous mental agony to the Complainant No.1 and financial loss and therefore, he alleged that Opposite Party No.1 is liable to pay compensation and damages and hence, he filed this consumer complaint. In the said complaint he also prayed that Opposite party No.1 should be held guilty for deficiency in service and for unfair trade practice. He requested that Opposite Parties should be directed to compensate for Rs.10,00,000/- for deficiency in service.
3) Opposite Party No.1 Corporation Bank filed written statement and contested the claim. According to Opposite Party No.1 the complaint filed by the Complainant is false and devoid of any merit and therefore it should be dismissed with cost. Opposite Party No.1 further pleaded that the complaint is hopelessly time barred and it is liable to be dismissed with exemplary cost. Opposite Party No.1 also pleaded that complaint is bad in non-joinder of necessary parties.
According to Opposite Party No.1 Complainant had availed credit facility such as Packing Credit Loan, Secured Shipping Loan, Discounting of Foreign Documentary Bills and Temporary Overdrawing in Current Account of the Complainant No.2 firm and since the beginning Complainant failed and neglected to clear the outstanding dues of the Opposite Party No.1 and therefore, Opposite Party No.1 was required to file Recovery Suit No.1450/1986 against the Complainants in the Honble High Court for recovery of Rs.2,54,682.50. Complainant had appeared in the said suit before the Honble High Court and contested the claim by appointing Advocates. Honble High Court had appointed Court Receiver to take possession of Complainants firm premises and Honble High Court decreed the suit by its judgement dated 03.04.2003 for amount of Rs.10,99,709.55. The Opposite Party No.1 then filed Recovery Proceeding before the DRT-II Tribunal who issued Recovery Certificate by order dated 26.05.2004 in favour of Opposite Party No.1 and against the Complainant and Complainant had moved an application under RTI Act, seeking information regarding bills for realization. According to Opposite Party No.1, the said information was received by the Complainant from time to time and details were also filed in the Honble High Court in the Civil Suit. Opposite Party No.1 denied each and every allegation made by the Complainant and pleaded that Complainant cannot be termed as a Consumer since partnership firm is carrying its business activities for commercial transactions. As such, Opposite Party No.1 pleaded that complaint should be dismissed with cost.
4) Opposite Party Nos.2 and 3 were served, but, they remained absent and therefore, complaint was proceeded ex-parte against them.
5) On perusal of affidavits, documents, written arguments and on hearing submissions advanced by the Ld. Advocates for the Complainant and Opposite Party No.1, Forum below raised two issues for consideration. One was, whether complaint can be termed as consumer complaint u/sec.2(1)(d) of the Consumer Protection Act, 1986, Answer given is No and second, issue of limitation, Answer given is No. As such the Forum below was pleased to dismiss the complaint. Aggrieved thereby the Original Complainant has filed this appeal.
6) We heard Appellant in person and Mr. S. Hussain, Advocate for Respondent No.1 Bank.
7) We are finding that the consumer complaint as filed by the Appellant was absolutely barred by limitation. Because, after the High Court had disposed of the Suit in 2003, the Complainant herein had moved application before R.T.I. and thereafter, he filed consumer complaint alleging that some statements were not given to him by Opposite Party No.1 Bank. He had asked the information on the bills pending for the Accounts for the period from 01.01.1981 to 31.12.1986. The said information he had asked in 2007. If those were the vital statements and if Bank had not provided those statements, nothing prevented the Appellant herein from bringing this fact to the notice of Honble High Court in Recovery Suit filed by the Opposite Party No.1 when it was pending. Ultimately, the said suit was decreed against the Complainant by the Honble High Court. This goes to show that Bank had produced before the Honble High Court all the requisite material and the Honble High Court had decreed the said Suit against the Complainant. In the circumstances, we are finding that the allegation of the Appellant that there was deficiency in service on the part of Opposite Party No.1 Bank, is devoid of any merit, because, if they had not produced statement of accounts before Honble High Court, the Honble High Court would not have decreed the suit.
8) That apart, consumer complaint is required to be filed within two years form the date of accrual of cause of action and on Complainants own showing he was asking for statements of accounts from the Bank somewhere in 1986, pertaining to period 1981 to 1986. So, for deficiency of service made by the Respondent No.1 Bank, the Complainant should have knocked the doors of Consumer Forum only in 1986 or at the latest in 1988, because, period of limitation is of two years for filing consumer complaint. This complaint came to be filed as late as on 18.08.2008. Therefore, it was absolutely barred by limitation and therefore, the Forum below would have been justified dismissing the complaint at the time of admission itself. Secondly, we are finding that the complaint has been filed by Complainant as the Partner of M/s. Texgar Trading Company along with Partnership Firm as Complainant No.2. So, this partnership firm and Complainant No.1, both are engaged in export business and nowhere in the consumer complaint they had mentioned that this firm is being run by him for self employment to earn his livelihood. Therefore, this consumer complaint filed by the partnership firm, which is engaged in export business, is not tenable in law u/sec. 2(1)(d) of the Consumer Protection Act, since, the Complainant Nos.1 and 2 are engaged in commercial activities. As such, agreeing with the findings given by Ld. District Forum, we hold that consumer complaint filed before the Forum below is not tenable in law. In the circumstances, we pass the following order:
O R D E R
(i) Appeal stands dismissed with cost of Rs.5,000/- payable by the Appellant to the Respondent No.1 only.
(ii) Inform the parties accordingly.
(S.P. Lale) (P. N. Kashalkar) Member Presiding Judicial Member