State Consumer Disputes Redressal Commission
Data Steel Sales vs Union Bank Of India And Others on 18 April, 2012
PUNJAB STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
DAKSHIN MARG, SECTOR 37-A, CHANDIGARH
First Appeal No.1750 of 2009
Date of institution: 14.12.2009
Date of decision : 18.04.2012
Data Steel Sales Corporation, Loha Bazar, Mandi Gobindgarh through its
partner Sh.Dev Parkash Data s/o late Sh.Gangadeen Data.
.....Appellants
Versus
1. Union Bank of India, Head Office, Vidhan Sabha Marg, Nariman
Point, Mumbai - 400021 through its Chairman-cum-Managing
Director.
2. Union Bank of India, Motia Khan, Mandi Gobindgarh through its
Branch Manager.
.....Respondents
First Appeal against the order dated 25.09.2009
passed by the District Consumer Disputes
Redressal Forum, Fatehgarh Sahib.
Before:-
Mr.Jagroop Singh Mahal, Presiding Judicial Member
Mr.Jasbir Singh Gill, Member Mr.Vinod Kumar Gupta, Member Present:-
For the appellants : Sh.N.K.Nagar, Advocate
For the respondents : Sh.A.P.Jagga, Advocate
JAGROOP SINGH MAHAL, PRESIDING JUDICIAL MEMBER
This order will dispose of the following 3 appeals filed against the order dated 25.9.2009 passed by the learned District Consumer Disputes Redressal Forum, Fatehgarh Sahib (in short the District Forum) in 3 complaints filed by the complainant-appellants against the OP-respondent bank : -
1. First Appeal No.1750 of 2009 (Data Steel Sales Corporation v. Union Bank of India and another) First Appeal No.1750 of 2009 2
2. First Appeal No.1751 of 2009 (Data Steel Sales Corporation v. Union Bank of India and another)
3. First Appeal No.1752 of 2009 (Data Steel Sales Corporation v. Union Bank of India and another) The similar questions of law and facts are involved in all these three appeals, these are, therefore, being decided through this single order.
The facts are being taken from First Appeal No.1750 of 2009 and the parties would be referred by their status in this appeal.
2. The case of the complainant-appellants is that it is a partnership firm doing business in Iron & Steel trading in Mandi Gobindgarh in Punjab and Faridabad in Haryana. It had an overdraft account with OP respondent No.2 which is the authorised branch of OP No.1 at Mandi Gobindgarh. It was alleged that OP respondent No.2 had been providing banking facilities to the complainant-appellants allowing overdraft by charging interest and the complainant-appellants are, therefore, their consumer. The overdraft account was used by the complainant firm for payments against purchases to the traders from the Local Branch of Mandi Gobindgarh as well as the inter- branch fund transfer for smooth functioning of its business at both the branches of the complainant-appellants. According to the complainant- appellants, at the time of sanctioning of the overdraft account, they assured that there shall not be any charges on inter branch transfer having same constitution and same set of signatories and it was on this assurance that the overdraft facility was obtained from the OPs. However, the OPs debited an amount of Rs.1,19,665/- in the months of February-April, 2007 on account of inter-sol charges for inter branch transfers without any detail or intimation and notice to the complainant-appellants. It was recovered with retrospective effect without any authority. The complainant-appellants came to know of it First Appeal No.1750 of 2009 3 on receipt of statement of account and, thereafter, sent a request to the OP- respondents for reversing the said charges but they did not. The complainant-appellants then filed a complaint to the Banking Ombudsman at Chandigarh on 11.10.2007 but his complaint was rejected and, thereafter, they filed a complaint to the Reserve Bank of India, New Delhi on 15.7.2008 and to the CMD, Union Bank of India on 25.8.2007. It was alleged that a consumer complaint was filed by Khanaujia Sales Corporation, Faridabad on the same grounds against the OP-respondents, on which, the Reserve Bank of India directed the OPs to reimburse the excess charges to them. According to the complainant-appellants, the OP-respondents have illegally debited the said Inter Sol charges to the complainant-appellants, to which, they are not entitled and, therefore, they be directed to reimburse the amount of Rs.1,19,665/- along with interest and pay Rs.80,000/- as damages for the loss of business and mental agony.
3. The complaint was opposed by the OP-respondents alleging that the complainant-appellants is maintaining the overdraft limit for the purpose of commercial transactions which excludes him from the purview of consumer and, therefore, the complaint is not maintainable. It was alleged that the OPs are providing numerous facilities to the complainant-appellants and other clients and the complainants are, therefore, liable to pay for the same. The ISO (Inter Sol) charges were said to have been notified by the concerned branches to its customers including the complainant-appellants who used to visit the same. Knowing fully well, the complainant-appellants opted to continue the overdraft facility with them. According to the OP- respondents, they have recovered the charges in accordance with the guidelines/directions of the higher authorities and in accordance with the agreement with due knowledge and consent of the complainant-appellants. First Appeal No.1750 of 2009 4 The complainant-appellants having earlier filed the complaints and the same having been rejected, disentitles them to pursue the present complaint. It was alleged that the complainant-appellants are estopped from filing the present complaint by their own act and conduct; that the complaint is bad for non- joinder of necessary parties; that it is false and frivolous and is a misuse of position by them.
4. On merits, it was admitted that the complainant-appellants is a partnership firm and is doing business in iron and steel trading at Mandi Gobindgarh. It was also admitted that they are maintaining the overdraft account of the said firm with OP-respondent No.1 and are availing the banking services having agreed to pay/abide by the rules, regulations and guidelines of the bank. It was admitted that a sum of Rs.1,19,665/- was debited during the months of Februayr-April, 2007 on account of ISO charges which was in accordance with the rules, regulations and directions and was perfectly legal and binding on the complainants. The other allegations were denied and they prayed for dismissal of the complaint.
5. Both the parties were given opportunity to produce evidence in support of their contentions.
6. After hearing the arguments of the learned counsel for the parties and perusing the evidence, the learned District Forum vide impugned order dated 25.9.2009, dismissed the complaint. The complainant-appellants have challenged the same through this appeal.
7. We have heard the arguments of the learned counsel for the parties and have perused the record.
8. The learned counsel for the appellants has argued that the deduction of inter sole charges by the OP-respondents is contrary to the agreement between the parties and the OP-respondents are not entitled to First Appeal No.1750 of 2009 5 deduct the said amount. The learned District Forum did not agree with this contention and came to the conclusion that the said charges have been deducted in accordance with the Rules and Regulations, to which, the complainant-appellants had agreed while opening the overdraft account with them. Ex.R3 is the circular letter issued by the bank prescribing different charges for different banking facilities provided by the OP-respondents. An oral agreement alleging that no ISO charges shall be levied would not be accepted in view of the undertaking given by the complainant-appellants while opening the account with the OP Bank vide Ex.R1. Through declaration/undertaking, they agreed to be bound by the terms and conditions outlined in the Rules which governs account including the directions made thereto from time to time relating to various services including but not limited to ATM card/Telebanking. It was also agreed that the bank may debit any amount for the service charges as applicable from time to time. In view of this undertaking Ex.R1 given at the time of opening the overdraft account, the complainant-appellants agreed for the deduction of ISO charges and all other which are fully justified in view of the Notification Ex.R5.
9. There is another aspect of the case which the learned District Forum failed to examine. The OP-respondents have taken a specific ground that the account was opened by the complainant-appellants with them for commercial purpose and the service being rendered by the OP-respondents is of commercial nature and, therefore, the complainant-appellants do not fall under the definition of consumer provided under Section 2(1)(d) of the Act. In fact, the complainant-appellants in their complaint itself admitted that it is a partnership firm and is doing business in Iron and Steel trading. It was also admitted in para 3 of the complaint that the account was used by First Appeal No.1750 of 2009 6 the complainant-appellants for payment against the purchases to the traders from the local branch at Mandi Gobindgarh as well as inter branch fund transfer for smooth functioning of its business at both the branches of the complainant-appellants. Clause d(ii) of Section 2(1) of the Act provides as follows : -
"(d) "consumer" means any person who,--
(i) X X X X
(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 purpose;
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;"
It is, therefore, clear from the admission of OP themselves that the services of the OPs were availed by them for a commercial purpose. The First Appeal No.1750 of 2009 7 complainant-appellants, therefore, no longer fall under the definition of a consumer and is not competent to file a complaint before the District Forum under the Act.
10. The learned counsel for the respondents has also argued that before approaching the Consumer Forum, the complainant-appellants had approached different authorities including the Insurance Ombudsman, Reserve Bank of India and the CMD and all his complaints have since been dismissed and, therefore, he is estopped from filing the present complaint. We, however, do not find any merit in this argument because none of those authorities is a statutory authority before whom a complaint was filed by the complainants. The complainants are, therefore, not precluded from filing the complaint before the Consumer Forum simply because he had earlier complained against the OP-respondents, to the CMD or to the Insurance Ombudsman and the Reserve Bank of India.
11. It is also argued by the OP-respondents that the complaint is barred by time. According to them, the charges were debited to their account in February to April, 2007 and the present complaint should have been filed within 2 years thereof. However, the complaint was filed on 8.4.2009 which according to him is beyond the period of 2 years and is, therefore, barred by time. We do not find any merit in this contention. When the amount was debited by the OP-respondents, no intimation thereof was given to the complainants. When the complainants came to know of it from the account statement Ex.C1, they moved an application Ex.C2 on 4.5.2007 for reimbursing the charges levied by them. The OPs have not so far sent any reply to the same which means their complaints were pending when the present complaint was filed on 8.4.2009. It, therefore, cannot be said to be barred by time.
First Appeal No.1750 of 2009 8First Appeal No.1751 of 2009
12. In this case, the ISO charges of Rs.60,603/- were deducted in the month of February, 2007 regarding which application Ex.C2 was moved by the complainant-appellants on 4.5.2007, to which, no reply was sent. The complaint was filed by the complainant-appellants on 26.2.2007. First Appeal No.1752 of 2009
13. In this complaint, an amount of Rs.2,57,428/- was debited by the OP-respondents in the months of February to April, 2007 against which an application Ex.C2 was moved on 4.5.2007, to which, no reply was received. The present complaint was filed on 8.4.2009. First Appeal No.1750 of 2009
14. In view of the above discussions, we are of the opinion that the complainant-appellants are not consumer, competent to file the complaints before the District Forum. The charges have been validly deducted by the OP-respondents, the learned District Forum has, therefore, rightly dismissed the complaint. The impugned order is perfectly legal and valid, there is no merit in all the three appeals and the same are , accordingly, dismissed. The appellants shall pay Rs.5000/- as costs of litigation to the OPs in each appeal.
14. Copies of the orders be supplied to the parties free of costs.
(JAGROOP SINGH MAHAL) PRESIDING JUDICIAL MEMBER (JASBIR SINGH GILL) MEMBER (VINOD KUMAR GUPTA) MEMBER April 18, 2012.
Paritosh