State Consumer Disputes Redressal Commission
Vijaya Bank, Overseas Branch, ... vs Dmi India Pvt. Ltd. on 10 February, 2010
State Consumer Disputes Redressal Commission State Consumer Disputes Redressal Commission West Bengal BHABANI BHAVAN (GROUND FLOOR) 31, BELVEDERE ROAD, ALIPORE KOLKATA 700 027 S.C. CASE NO. : FA/208/2009 DATE OF FILING : 04.06.2009 DATE OF FINAL ORDER: 10.02.2010 APPELLANTS Vijaya Bank Overseas Branch 125/1, Park Street, AG Towers, 125/1, Park Street Kolkata-700 017 P.S. Park Street. RESPONDENT DMI INDIA PVT. LTD. 53, Sayeed Amir Ali Avenue Kolkata-700 017 P.S. Karaya. BEFORE : MEMBER : MR. P.K.CHATTOPADHYAY MEMBER : MR. S.COARI FOR THE PETITIONER / APPELLANT : Mr. R.D.Bagchi, Ld. Advocate FOR THE RESPONDENT / O.P.S.: Mr. N.B.Maity, Ld. Advocate : O R D E R :
MR.
P.K.CHATTOPADHYAY, LD. MEMBER This Appeal arose out of judgement and order dt.
20.6.08 in DCDRF, Calcutta Unit-I in CDF-1/Case No. 177/2005 where the Complainant, M/s. DMI India (Pvt.) Ltd. filed the complaint against OP, Vijaya Bank, Overseas Branch, alleging deficiency of services in regard to banking operation, praying for directions on the OP to pay Rs. 1,48,212/- being the amount wrongly debited from Complainants current account and for payment of an amount of Rs. 3,00,000/- towards compensation and also for cost and other orders as deemed fit.
Complainants case was that it received an export order for jeans trousers and received a cheque for US $ 3100 on 20.2.03 and sent the same for encashment/collection to the OP/Bank prior to undertaking actual shipment. By a letter dt. 19.3.03 the OP intimated the complainant that the said cheque was encashed and accordingly proceeds thereof were credited to the current account of the complainant. Accordingly, the complainant obtained Foreign Inward Remittance Certificate from the OP and thereafter the complainant commenced shipping of the export items as were ordered. On 9.4.03 the complainant submitted export documents against the said cheque proceeds to the OP along with original FIRC with G.R.Form duly filled in before the Reserve Bank of India, when suddenly the OP intimated the complainant by letter dt. 29.4.03 about return of the given cheque. The OP then debited an amount of Rs. 1,48,212 being equivalent to US $ 3100 plus cheque return charge of US $ 15 against the complainants current account without intimation to the complainant. Alleging this act of the OP of wrongful debit from the complainants current account as deficiency of service, the complaint case was filed, further alleging negligence and wrongdoing when directions were sought for payment of Rs. 1,48,212 with for Rs. 3,00,000/- and cost.
The OP namely Vijaya Bank, Overseas Branch, Kolkata-17, entered appearance and contended inter alia that the complaint was barred by law and the complainant did not come within the definition of Consumer U/S 2(d) of the Consumer Protection Act, 1986, as amended, when it regularly obtained banking service from the OP for commercial purpose. Stating that the case involved elaborate evidence and cross-examination of witness the OP wanted the same to be filed before Civil Court, as the same could not be properly adjudicated before a Consumer Forum. Referring to fact of the case, it was submitted that the given cheque placed for collection was drawn on Charter one Bank USA by one Leonard M.Calabrese, payable to DMI India (P) Ltd. The said cheque was sent for collection on 14.2.03 by OP, through correspondent bank American Express Bank, Kolkata with which the OP maintained an account called NOSTRO account which involved all transactions involving receipts and remittances of monies and collection of proceeds of cheques in foreign currencies, on behalf of OPs constitutents. It was also stated that the OP was informed on 29.4.03 by its Head Office that the cheque for US $3100, earlier referred to was returned by American Express Bank on 25.4.03 with the reason Forged/unauthorized endorsed/altered item, claim was made against ABBL under U.S. law for breach of warranty, alleging that the item bore forged or unauthorized endorsement or was altered.
Upon receipt of aforesaid communication the OP by its letter dt. 29.1.03 called upon the complainant to refund the amount credited to its account as the American Express Bank, upon receipt of such cheque from OP/Bank, pending realization of proceeds from the paying bank on which the cheque was drawn, credited the OPs bank periodically and the OP, in turn, provisionally credited the amount to its constituents account.
The American Express Bank sent a debit note of US $ 3115 which included US $ 15 towards cheque return charges along with a copy of affidavit of forgery dt. 13.3.03 submitted by the drawer of the cheque, Mr. Leonard M Calabrese, stating inter alia that the name of the payee and the amounts were altered and that the cheque in question was drawn in favour of a person in Kenya for a different account. The OP then contended that thus the complainant had no right title or interest on the said cheque which was not legally enforceable as the drawer of the instrument himself confirmed that the instrument was altered in content, stating that the mater was informed to the Ld. Ombudsman who after due process passed order that as forgery of the cheque was detected subsequent to the issuance of FIRC by the bank and no deficiency of service on the part of the Bank in debiting the complainants account in the stated circumstances could be established, the Honble Banking Ombudsman rejected the complaint. Accordingly, the complaint was sought to be dismissed, being barred by limitation and also being barred by the principle of res judicata. The Ld. Forum below after hearing the matter from both sides passed its judgement and order as under :-
The o.p. no. 1 is directed to pay the complainant Rs. 1,48,212/- (Rupees one lakh forty eight thousand two hundred twelve) only with interest @ 8% p.a. from 1.5.03 and litigation cost Rs. 1,000/- (Rupees one thousand) only within two months from date failing which o.p. no. 1 shall be liable to pay an interest @ 8% till recovery.
Being aggrieved and dissatisfied with the judgement and order aforesaid the OP in the Forum namely Vijaya Bank, Overseas Branch, filed this Appeal reiterating the fact of the case and argued inter alia that the Respondent could not be considered as consumer under Consumer Protection Act, 1986 and the complainant could not be decided without detailed evidence where forgery of the given cheque was involved touching foreign shores.
Stating that the Respondent could not claim any title on a fraudulent and/or forged negotiable instrument, the Appellant contended that the Ld. Forum erred allowing the Respondent to unjustly enrich itself causing substantial loss and damage to the Appellant.
Arguing that the Ld. Forum below also erred in holding that there was any windfall in favour of the Respondent it was stated that the amount of credit was always subject to final realization and the same having been vitiated by fraud, the Respodent had no case.
Thus the Appeal for setting aside of the impugned judgement and order and for further orders as deemed necessary.
The Respondent namely M/s. DMI India (Pvt.) Ltd., entered appearance and stated inter alia that subsequent to preferring complaint to the Banking Ombudsman the Respondent filed the complaint case before the District Forum, South 24 Parganas, Alipore, under number 371 of 2003 and post Appellants appearance and filing of written version the matter was heard and the case was dismissed. An Appeal before the State Commission was filed under number SC/32/A/2004 and after hearing the Appeal was disposed on 25.2.05 with direction upon the Ld. District Forum, Alipore, to return the said complaint to the Respondent with liberty to file afresh before appropriate forum within a period of three months from the date of return, which the present Respondent actually did. Stating that the Appellant never stated that the cheque amount was credited provisionally, it went on to provide certificate in the invoice regarding advance payment and also issued FIRC, on the basis of which the Respondent shipped goods.
Referring to the issue of the Respondent/Complainant being a consumer or otherwise, it stated that it had Appellant Banks banking service only and did not do business with the service of the bank and was consumer within the meaning of Section 2(d) of Consumer Protection Act, 1986 and relied on CPR 2005 Vol. 1 Page-1 N.C. On the liability of the Respondent on shipping goods it relied upon AIR 1978 Cal 169 (Para 14 & 15 at Page-174).
The matter was heard from respective sides when both sides filed WNA as well. Citations filed by respective sides are as under :-
Appellant II (2009) CPJ 402 (NC) Respondent
1. CPR 2005 Vol. 1 Page 1 (Para-23)
2. AIR 1978 Cal 169 Para 14 and 15 at Page-174
3. A Xerox copy of order passed by the Ld. District Consumer Forum in D.F. case no. 371 of 2003.
4. AIR 1978 Goa Page-22
5. AIR SC 361 DISCUSSION :-
A. The complaint leading to the present Appeal was filed on 19.5.05 before the Ld. Forum, Calcutta Unit-I, which was subsequent to 2003 amendment of Consumer Protection Act.
Even the earlier complaint filed before the DCDRF, South 24 Parganas, Alipore, was dated 29.9.03 when the amendment took place w.e.f. 15.3.03. The given amendment in vogue has restricted the definition of consumer when commercial activity and service have been given fresh connotation. In the given case, the Respondent Complainant inspite of being pointed out, never sought to come clean as to how exactly it was a consumer as defined in Consumer Protection Act, 1986, as amended, when it was a commercial house engaged in export business and to that purpose hired the services of the bank, towards encashment of one cheque paid in U.S. Dollars, which necessarily mean and include that the same would be required to be finally cleared on foreign shores and there was no evidence that the proceed of such cheque, on being cleared or otherwise would not go to foster the trade/business it is engaged with and that the same would not contribute to the profit or loss of the institution on what no contrary evidence was available. The citations relied upon by the Respondent/Complainant have no application in the fact and circumstances of this case and thus it is held that the Respondent/Complainant is not a consumer for purpose of the Consumer Protection Act, 1986 as amended and Ld. Forum below did err in adjudicating the matter as it did.
B. Referring to the allegation of deficiency of service/negligence on the Appellant/OP by the Respondent/Complainant on the banking service provided by the Appellant/OP on the Respondent/Complainants current account transaction involving foreign currency namely US Dollar and issuance of FIRC, the Respondent/Complainant did not provide the agreement/contract on the basis of which the complainant used to obtain certain banking service and alleged deficiency of service thereon. In absence of the precise terms of the agreement it is simply not feasible to arrive at any alleged departure/violation of the said terms of agreement supposedly culminating in deficiency of service as alleged and this is all the more so, since foreign currency involving foreign party/bank was involved in the given clearance of cheque and issue of FIRC. Therefore, the complaint was bad in law and not maintainable at the very outset.
C. On the issue of the cheque provisionally credited, the same, prima facie turned out to be a forged and overwritten one, so stated on affidavit, which was not countered by any evidence by the Respondent/Complainant. The Respondent also did not cite any provision of contract/agreement that stated that any provision of contract/agreement provided for any provisional credit to be final credit even when the instrument turned out to be forged. This Forum, as per provisions of Consumer Protection Act, 1986 as amended, has no jurisdiction to adjudicate matters involving prima facie forgery/mutilation/overwriting in financial instruments and that too involving foreign currency in overseas and thus, the Ld. Forum below erred in adjudicating the matter, when the complaint was bad in law and not maintainable.
D. In above view, the Appeal is liable to be allowed on contest and the impugned judgement and order of the Ld. Forum below is liable to be set aside, being bad in law and not sustainable.
O R D E R The Appeal is allowed on contest without cost. The impugned judgement and order of the Ld. Forum below is set aside.
MEMBER MEMBER