M/S.Msh Sarees Pvt. Ltd. Vs. Icici Bank Ltd. - Court Judgment

SooperKanoon Citationsooperkanoon.com/1148946
CourtMaharashtra State Consumer Disputes Redressal Commission SCDRC Mumbai
Decided OnJan-06-2014
Case NumberFirst Appeal No. A/12 of 601
JudgeR.C. CHAVAN, PRESIDENT & THE HONOURABLE MR. DHANRAJ KHAMATKAR, MEMBER
AppellantM/S.Msh Sarees Pvt. Ltd.
Respondenticici Bank Ltd.
Excerpt:
r.c. chavan, president: this appeal is directed against the order passed by the mumbai suburban district forum whereby the forum rejected the consumer complaint no.476/2011 filed by the appellant against the respondent bank. the complainant is a private limited company which carried on business as a trader, supplier and exporter of designer sarees and dress materials.  the complainant has shops all over mumbai and in india. the complainant was having a corporate banking account no.054405002215 with the respondent bank.  a cheque with a forged signature bearing no.36039 dated 20/10/2009 drawn in favour of m/s.gourav trading company was honoured by the respondent bank.  this cheque was for a sum of rs.25,00,000/-.  after the complainant company informed the bank officers that such a cheque was not issued, it was found that a sum of rs.9,90,000/- had already been withdrawn from the account of the payee.  however, disbursement of further sum of rs.10,00,000/- was prevented. a police complaint was also subsequently filed. a sum of rs.15,50,000/- was recovered from the account of m/s.gourav trading company and a sum of rs.15,08,730.42 was refunded to the complainant leaving a balance of rs.9,91,269.68ps. to be recovered by the complainant from the respondent bank. since the bank did not pay this amount in spite of repeated demands, complainant filed a complaint for recovery of this amount along with compensation of rs.5,00,000/- and rs.1,00,000/- towards costs. it was this complaint which was rejected at the threshold by the district forum by the impugned order in exercise of powers u/sec.12(3) of the consumer protection act, 1986.  aggrieved thereby, complainant is before us. we have heard the learned counsel for the appellant as also learned counsel for the respondent bank. learned counsel for the complainant submitted that the complainant was not maintaining an account with the respondent bank in order to make any profit.  it was stated that though the complainant is a commercial entity, the transactions with the bank were not of commercial nature and, therefore, complainant was a consumer as defined in section 2(1)(d) of the act even after the amendment to the said section which came into force on 15/03/2003.  learned counsel relied on judgement of this commission in complaint case no.cc/09/183 decided on 03/02/2011 in support of their contention that the complaint was tenable. on the other hand, learned counsel for the respondent submitted that since the complainant is a commercial entity, the banking services obtained by the complainant were for a commercial purpose as defined under section 2(1)(d) of the act.  he submitted that this commission had in fact taken such a view in two subsequent judgements in complaint no.c/12/27 decided on 18/09/2012 and c/11/196 decided on 22/09/2011.  he submitted that the judgement in c/11/196 is by three member bench of this commission of which president and one of the members were the same who had decided complaint no.183/09. learned counsel for the appellant submitted that the judgement of three member bench in c/11/196 may not be useful since in that case the question was about the investment in idbis deep discount bond and, therefore, could be said to be investment for commercial purpose. she also submitted that the judgement in consumer complaint no.c/12/27 may also be unhelpful since it is not clear as to what was the nature of deficiency of service alleged in that complaint and, therefore, submitted that the judgement of this commission in consumer complaint no.c/09/183 on which she relies would govern the case at hand. we have carefully gone through the rival contentions and the judgements on which the learned counsel has placed reliance.  though in judgement in case no.c/09/183 this commission had made an observation that though the complainant was a commercial entity, the banking transactions of the complainant with the same respondent did not amount to a commercial activity, we find that these observations would have to be restricted to the facts in that case. it may be useful to reproduce the observations of this commission made in para 9 of the order which are relied on by the learned counsel for the appellant as under:- œsecondly, so far as the claim in respect commercial transaction is concerned, we are not accepting submission of ld.counsel for the opponents.  the complainant has opened account with the opponents.  under that account the opponent is supposed to render banking service to them and in that account the complainant may carry various transactions which may be commercial or may not be commercial one also.  therefore, we find that this is not a banking account wherein exclusively commercial transactions were dealt with.  apart from that commercial transactions contemplates the transactions carried out for profit.  the account has been opened for the business purposes or making payment to the parties to whom the complainant desires to make payment.  but by opening an account with the opponents no profit is generated in favour of the complainant and therefore, simplicitor opening of an account by a company like complainant cannot be said to be a commercial transaction unless and until it is shown that by operating or opening such account itself, the profit is generated in favour of the complainant.  no such material is placed on record.  in the result, we do not find any substance in the contention raised that bank account was opened for commercial purpose and therefore, complainant is not a consumer.  in the present facts and circumstances there is relationship of consumer and service provider between the complainant and opponent.? it may be seen that in spite of these observations, the complaint itself was dismissed because of the complainants failure to make out a case of deficiency in service. learned counsel for the respondent is therefore right in submitting that since the observations had not contributed to the ultimate conclusion reached, they could not be termed as ratio of the judgement.  in any case, we may observe that neither the state commission nor the national commission are courts of record and, therefore, value of the judgements rendered by these commissions is only persuasive.  we may also point out that the observations of the commission that the account in the said complaint may have been used to carry on commercial as well as non commercial transactions may be based on the facts of that case.  in this case, there is nothing to show that any non commercial transactions were routed through the bank account in question.  the account was operated by the appellant obviously for running the business and, therefore, the services availed of were for commercial purpose.  we also note that the crucial factor to be considered is not whether any profits were generated from the activity in question but whether the activity was commercial in nature. commercial activity need not always result in yielding profits. therefore, first, since the observations in para 9 quoted above do not contribute to the ultimate result of the case and so cannot qualify to the ratio of the judgement; secondly, since the judgements of the consumer commission have only persuasive value and do not create binding precedent and, thirdly, since the transactions in the account in question in the case at hand which resulted into the alleged deficiency in service was obviously retained for commercial purpose, we see no error in the order of the district forum in refusing to entertain the complaint.  in view of this, we see no force in the appeal and dismiss it.
Judgment:

R.C. Chavan, President: This appeal is directed against the order passed by the Mumbai Suburban District Forum whereby the forum rejected the consumer complaint no.476/2011 filed by the appellant against the respondent bank.

The complainant is a Private Limited company which carried on business as a Trader, Supplier and exporter of designer sarees and dress materials.  The complainant has shops all over Mumbai and in India. The complainant was having a corporate banking account no.054405002215 with the respondent bank.  A cheque with a forged signature bearing no.36039 dated 20/10/2009 drawn in favour of M/s.Gourav Trading Company was honoured by the respondent bank.  This cheque was for a sum of Rs.25,00,000/-.  After the complainant company informed the bank officers that such a cheque was not issued, it was found that a sum of Rs.9,90,000/- had already been withdrawn from the account of the payee.  However, disbursement of further sum of Rs.10,00,000/- was prevented. A police complaint was also subsequently filed. A sum of Rs.15,50,000/- was recovered from the account of M/s.Gourav Trading Company and a sum of Rs.15,08,730.42 was refunded to the complainant leaving a balance of Rs.9,91,269.68ps. to be recovered by the complainant from the respondent bank. Since the bank did not pay this amount in spite of repeated demands, complainant filed a complaint for recovery of this amount along with compensation of Rs.5,00,000/- and Rs.1,00,000/- towards costs.

It was this complaint which was rejected at the threshold by the District Forum by the impugned order in exercise of powers u/sec.12(3) of the Consumer Protection Act, 1986.  Aggrieved thereby, complainant is before us.

We have heard the learned counsel for the appellant as also learned counsel for the respondent bank.

Learned counsel for the complainant submitted that the complainant was not maintaining an account with the respondent bank in order to make any profit.  It was stated that though the complainant is a commercial entity, the transactions with the bank were not of commercial nature and, therefore, complainant was a consumer as defined in section 2(1)(d) of the Act even after the amendment to the said section which came into force on 15/03/2003.  Learned counsel relied on judgement of this Commission in complaint case no.CC/09/183 decided on 03/02/2011 in support of their contention that the complaint was tenable. On the other hand, learned counsel for the respondent submitted that since the complainant is a commercial entity, the banking services obtained by the complainant were for a commercial purpose as defined under section 2(1)(d) of the Act.  He submitted that this Commission had in fact taken such a view in two subsequent judgements in complaint no.C/12/27 decided on 18/09/2012 and C/11/196 decided on 22/09/2011.  He submitted that the judgement in C/11/196 is by three member bench of this Commission of which President and one of the members were the same who had decided complaint no.183/09.

Learned counsel for the appellant submitted that the judgement of three member bench in C/11/196 may not be useful since in that case the question was about the investment in IDBIs Deep Discount bond and, therefore, could be said to be investment for commercial purpose. She also submitted that the judgement in consumer complaint no.C/12/27 may also be unhelpful since it is not clear as to what was the nature of deficiency of service alleged in that complaint and, therefore, submitted that the judgement of this Commission in consumer complaint no.C/09/183 on which she relies would govern the case at hand.

We have carefully gone through the rival contentions and the judgements on which the learned counsel has placed reliance.  Though in judgement in case no.C/09/183 this Commission had made an observation that though the complainant was a commercial entity, the banking transactions of the complainant with the same respondent did not amount to a commercial activity, we find that these observations would have to be restricted to the facts in that case. It may be useful to reproduce the observations of this Commission made in para 9 of the order which are relied on by the learned counsel for the appellant as under:-

œSecondly, so far as the claim in respect commercial transaction is concerned, we are not accepting submission of Ld.Counsel for the opponents.  The complainant has opened account with the opponents.  Under that account the opponent is supposed to render banking service to them and in that account the complainant may carry various transactions which may be commercial or may not be commercial one also.  Therefore, we find that this is not a banking account wherein exclusively commercial transactions were dealt with.  Apart from that commercial transactions contemplates the transactions carried out for profit.  The account has been opened for the business purposes or making payment to the parties to whom the complainant desires to make payment.  But by opening an account with the opponents no profit is generated in favour of the complainant and therefore, simplicitor opening of an account by a company like complainant cannot be said to be a commercial transaction unless and until it is shown that by operating or opening such account itself, the profit is generated in favour of the complainant.  No such material is placed on record.  In the result, we do not find any substance in the contention raised that bank account was opened for commercial purpose and therefore, complainant is not a consumer.  In the present facts and circumstances there is relationship of consumer and service provider between the complainant and opponent.?

It may be seen that in spite of these observations, the complaint itself was dismissed because of the complainants failure to make out a case of deficiency in service. Learned counsel for the respondent is therefore right in submitting that since the observations had not contributed to the ultimate conclusion reached, they could not be termed as ratio of the judgement.  In any case, we may observe that neither the State Commission nor the National Commission are courts of record and, therefore, value of the judgements rendered by these Commissions is only persuasive.  We may also point out that the observations of the Commission that the account in the said complaint may have been used to carry on commercial as well as non commercial transactions may be based on the facts of that case.  In this case, there is nothing to show that any non commercial transactions were routed through the bank account in question.  The account was operated by the appellant obviously for running the business and, therefore, the services availed of were for commercial purpose.  We also note that the crucial factor to be considered is not whether any profits were generated from the activity in question but whether the activity was commercial in nature. Commercial activity need not always result in yielding profits. Therefore, first, since the observations in para 9 quoted above do not contribute to the ultimate result of the case and so cannot qualify to the ratio of the judgement; secondly, since the judgements of the Consumer Commission have only persuasive value and do not create binding precedent and, thirdly, since the transactions in the account in question in the case at hand which resulted into the alleged deficiency in service was obviously retained for commercial purpose, we see no error in the order of the District Forum in refusing to entertain the complaint.  In view of this, we see no force in the appeal and dismiss it.