Full Judgment
N. KANNADASAN J.
1. The complaint is filed under the following circumstances:
The complainant Tr. Krishnakumar, Proprietor of Central Processor Global Inc. Slofter, has opened a current account with the opposite party bank and a sum of Rs.250/- is being deducted every month towards service charges. The opposite party promised to give mercantile banking service for the Current account and also promised to extend Letter of Credit facility in favour of the suppliers of the complainant for his export business. According to the complainant, after completion of the first transaction with the foreign buyers, he has received a cash order for rice and fertilizer for a quantity of 25000 metric tons each. The complainant through letter in Ex.A6 dt.19.5.2002, requested the opposite party to extend the issuance of letter of credit by sanctioning the credit facilities. Even though, the opposite party has made various correspondences, subsequently, does not extended the said facilities. According to the complainant, the opposite party did not reply to any of his letters about letter of credit and lean mark amount (margin amount), resulting in, he was constrained to approach Banking Ombudsman. The opposite party furnished misleading and false information to the Banking Ombudsman, and accordingly his complaint to the Banking Ombudsman was dismissed. Subsequently, the complainant has again approached the Banking Ombudsman, Reserve Bank of India, Director General of Foreign Trade and Central Vigilance Commission, New Delhi, Directorate of Revenue Intelligence, Chennai, all his efforts proved futile. The opposite party by maintaining discreet silence for several months and refusing to extend the facilities, made the complainant to loose his business with the foreign buyers and the said action amounts to deficiency in service and accordingly claimed compensation of Rs.1 Crore towards business loss in addition to Rs.1 crore as compensation for mental agony, strain, tension, torture and loss of peace of mind.
2. The opposite party resisted the complaint on the ground that the complainant has approached this Forum with an oblique motive of bypassing by filing a suit on payment of huge court fee and the complainant who is the proprietor of a business firm in the name and style of Central Processor Global Inc. Slofter, he is not a consumer within the meaning of the Act, and the averments in the complaint would clearly establish that he had approached the opposite party for commercial transaction and not in his personal capacity. It is further stated that sanctioning of the credit facilities is an executive decision of the Bank and the same cannot be brought within the purview of the deficiency in service. The complainant has chosen to approach various authorities and also approached this Forum belatedly and as such the complaint should be rejected.
3. The complainant appeared in person and argued the matter. On behalf of the complainant Ex.A1 to A58 and on behalf of the opposite parties Ex.B1 to B10 were marked.
4. Complainant while submitting the arguments reiterated as to what is stated in the complaint. He took much pain to persuade us that there is deficiency in service on the part of the opposite party and purely because of non-sanctioning of the facilities and delay in responding to the queries, he has suffered huge loss in his business. That apart, he has raised objections as against the opposite party, about the manner in which the proceedings before this Commission is conducted by pointing out that in the version, proof affidavit and other typeset of documents, it is indicated that as if they are filed before the District Forum and the said documents cannot be construed as the documents filed in the State Commission.
5. The learned senior counsel for the opposite party contended that a mistake in typing the dockets of the documents cannot stand in the way to decide the issues involved herein and the objections raised by the complainant in this regard are highly technical and it has no merit. The learned counsel pointed out that there is no deficiency in service on the part of the opposite party in rendering the services to the complainant and the very fact that the complainant has chosen to approach various other statutory authorities and all his repeated demands having failed, the present action on the part of the complainant is nothing but a harassment. The learned counsel further contended that such vexatious complaints should be dismissed at the threshold with exemplary costs.
6. We have considered the rival claims of the parties and perused the documents.
7. As regards various issues involved in the present complaint, we would like to deal with each objections as set out hereunder:
a) Whether the complainant is a consumer within the meaning of the Consumer Protection Act?
A specific objection is raised by the learned counsel for the opposite party that the complainant is not a consumer within the meaning of the Act. In this connection it is useful to refer the definition of the term âConsumerâ under Sec.2 (d) and 2 (d) (ii). A perusal of the above provision indicates that a person who avails services for any commercial purposes, cannot be construed as a âConsumerâ . In the case on hand, it is an admitted fact that the complainant is carrying on business under the name and style of Central Processor Global Inc. Slofter,, which is a proprietary concern. The said fact is admitted even in paragraph 1 of the complaint (Introduction paragraph). Though the complaint is carefully worded that the complainant is engaged in the business under âSelf employmentâ, the said wordings appears to have been incorporated to overcome the specific exclusion under Sec.2 (d) of the Act. All the correspondences, prior to filing the complaint, are in the name of the proprietary concern. Even the alleged transaction with the foreign buyer is also in the name of the proprietary concern. The lawyers notice dt.9.12.02 under Ex.A23, also proceeds to the effect that the said notice is issued on behalf of the company viz. M/s. Central Processor Global Inc. Slofter. All the complaints addressed to the Banking Ombudsman, Reserve Bank of India and other authorities proceeds to the effect that the transaction in issue is purely a commercial transaction on behalf of the proprietary concern. Under the said circumstances, we hold that the complainant cannot be termed as a âconsumerâ within the meaning of the CP Act. Even though, we have come to the conclusion to this effect, we propose to deal with all the other points urged by both parties as set out hereunder:
(b) Limitation
The complainant has alleged deficiency in service for a transaction, which took place during 2002. As per Ex.A5, dt.18.5.2002, the complainant has received a communication from the buyers that they would proceed further after confirmation of the facilities by the bank. In Ex.A10, dt.8.6.2002, the complainant has informed that it is proposed to initiate legal proceedings as against the bank. Subsequently, the complainant has entered into with various transactions and even notices were addressed through lawyer. The complainant issued lawyers notices under Ex.A18, dt.18.10.2002 and under Ex.A20 is dt.9.12.02, subsequently the complainant chosen to approach the Banking Ombudsman and the Banking Ombudsman has passed final order as early as on 31.3.2003 under Ex.A25. The Banking Ombudsman, while rejecting the complaint has indicated as follows:
âIn this connection, we advise that we had taken up the matter with the respondent bank and on careful examination of the comments offered by them, we observe that there was no deficiency in service rendered by the said bank as indicated in your complaint.
In the circumstances, the complaint has been treated as dealt with accordingly and treated as closed.â
(ii) Even after of the specific stand taken by the Banking Ombudsman in treating the complaint as closed on 31.3.2003, the complainant has continued to correspond with other authorities including Banking Ombudsman. As stated already, in as much as the complainant has chosen to vindicate his grievances, more particularly his intention of initiating legal proceedings in Ex.A10 dt.8.6.2002, the period of limitation would have started from that date on wards viz. 8.6.2002. Even by accepting the stand of the complainant that he has taken genuine efforts to redress his grievances through Banking Ombudsman, when a final decision was rendered by the Banking Ombudsman on 31.3.2003, Ex.A25, the complainant should have approached this commission within a period of two years i.e 30.3.2005. Admittedly, the present complaint is filed only on 7.4.2006, and as per Sec. 24(A) of the Consumer Protection Act, the complaint is liable to be dismissed as barred by limitation. It is also pertinent to note that the complainant has not even chosen to file any application to condone the delay in filing the complaint.
(iii) In this connection, it is useful to rely upon the decision of the Honble Supreme Court, rendered in (2006) I Supreme Court Cases 164 in Haryana Urban Development Authority Vs. B.K.Sood has dealt with the applicability of Sec.24(A) of CP Act and relevant portions are extracted as hereunder:
Sec.24-A of the Consumer Protection Act 1986 expressly casts a duty on the Commission admitting a complaint, to dismiss a complaint unless the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that the complainant had sufficient cause for not filing the complaint within the period of two years from the date on which the cause of action had arisen.
The Section debars any fora set up under the Act, admitting a complaint unless the complaint is filed within two years from the date of which the cause of action has arisen. Neither the National Commission nor the State Commission had considered the preliminary objections raised by the appellant that the claim of the respondent was barred by time. According to the complaint filed by the respondent, the cause of action arose when, according to the respondent, possession was received of the booth site and it was allegedly found that an area less than the area advertised had been given. This happened in January 1987. Furthermore, the bhatties which were alleged to have caused loss and damage to the respondent, as stated in the complaint, had been installed before 1989 and removed in 1994. The complaint before the State Commission was filed by the respondent in 1997, ten years after the taking of possession, eight years after the cause of alleged damage commenced and three years after that cause ceased. There was not even any prayer by the respondent in his complaint for condoning the delay.
In the light of the above decision, considering the fact that the complainant was confronted with the grievances as early as in the year 2002, which has also reached its finality with the Banking Ombudsman on 31.3.2003 under Ex.A25, the present complaint is purely barred by limitation and accordingly the complaint is liable to be dismissed on this ground also.
c) Jurisdiction
The relief claimed in the above complaint is extracted hereunder:
It is therefore most respectfully prayed that this Honble State Consumer Disputes Forum may kindly be pleased to award a compensation of Rs.1,00,00,000/- (Rupees one crore) business loss, in addition Rupees one Crore for the compensation causing me mental agony, stress, tension and âtorture and loss of peace of mind.
A perusal of the above discloses that the present complaint is filed claiming compensation f Rs.1 crore and additional sum of Rs.1 crore for causing mental agony etc., totaling Rs.2 crores. As per Sec.17 of the Act, the pecuniary jurisdiction of the State Commission is upto Rs.1 crore only. Hence we do not have jurisdiction to entertain the above complaint, and accordingly, the complaint is liable to be dismissed on this score also.
d) Merits of the claim
Even though we have held that the complaint is liable to be dismissed on three legal issues as referred above, since the matter was argued at length by both sides on merits, we intend to deal with the same.
(ii) The complainant has approached this Forum alleging grievances of deficiency in service on the ground that the opposite party has not sanctioned the credit facilities/ LCS facilities. A perusal of the documents discloses that the complainant has approached the opposite party seeking such facilities. Except to suggest that the complainant has approached the opposite party seeking facilities, there is nothing on record to suggest that there is any deficiency in service on the part of the opposite party. Sanctioning of credit facility in favour of any party, by bank is admittedly an executive decision of the bank and the bank is entitled to take such decision by considering various factors in accordance with the credit policies and financial and other information furnished by the account holder. Merely because the said facility was not sanctioned, one cannot complain that there is deficiency in service on the part of the bank. That apart, the statutory authorities, such as Banking Ombudsman and Reserve Bank of India have refused to entertain the complaint preferred by the complainant in this regard. The Banking Ombudsman, through their communication dt.31.3.2003 in Ex.A25, held that there is no deficiency in service rendered by the opposite party. Subsequently, the complainant has approached the Reserve Bank of India, which in turn in its communication dt.7.5.2003 in Ex.A27, observed that they cannot interfere with the decision of the Banking Ombudsman. Again the Reserve Bank India in its communication dt.13.6.2003, under Ex.A28, reiterated that Reserve Bank of India does not have powers to sit in over the judgement of the Banking Ombudsman. A further complaint given by the complainant was rejected by the Banking Ombudsman in Ex.A32 dt.3.2.2004. Thereafter the complainant has again approached Reserve Bank of India, which in turn informed the complainant in their communication dt.30.9.2004 in Ex.A37 that it is open to the complainant to seek such remedy as available in law as against the decision of the Banking Ombudsman. The same view was expressed once again by the Reserve Bank of India in their communication dt.12.8.2005 in Ex.A41, and again in their communication dt.17.10.2005 in Ex.A43, and Ex.A55 dt.13.2.2006. The Banking Ombudsman has again informed the complainant on 24.1.2005 in Ex.A57 to the effect that the matter was closed. A similar complaint addressed to the Directorate of Revenue Intelligence, Chennai, was also turned out by the said department on 25.2.2006 in Ex.A58.
(iii) Even though all the above mentioned authorities have taken a stand that there is no merit in the complaint, the complainant has approached this Commission by observing that the Banking Ombudsman have âsmartly rejectedâ the complaint and the other authorities including the Reserve Bank of India have âmechanicallyâ concluded. In the back drop of the above facts, we are of the opinion that there is no merit in the allegations of the complainant and the complainant cannot approach this commission making allegations of deficiency in service.
8. In the light of the above facts, even though a specific request was made by the learned senior counsel on behalf of the opposite party to award an exemplary cost, we do not propose to award the cost as against the complainant, considering the fact that he has approached this commission with the hope that he may get some relief. Hence, we are not inclined to award any costs b.
9. In the result, the complaint is dismissed. There will be no order as to cost.