SUBHASH MOTILAL SHAH (HUF) v. MALEGAON MERCHANTS CO-OP BANK LTD

Per Honble Mr.S.R.Khanzode, Presiding Judicial Member Heard Mr.U.B.Wavikar-Advocate for the appellant and Mr.Harihar Bhave-Advocate for the respondent.

This appeal is directed as against the order dated 04/09/2010 passed in consumer complaint no.87/2008, Subhash Motilal Shah (HUF) and others v/s. Malegaon Merchants Co-operative Bank Ltd. Malegaon, Nasik passed by District Consumer Disputes Redressal Forum, Nasik.

Consumer complaint relates to alleged deficiency in service on the part of respondent/opponent bank (herein after referred as bank) for honouring various cheques, which according to complainant were the cheques not issued by the account holder and signature of the operating person were forged. Forum dismissed the consumer complaint on two counts, on the count of limitation and that the complainants are not consumers since it relates to commercial transaction vis--vis services were hired for commercial purpose. Feeling aggrieved thereby original complainant preferred this appeal.

There was an objection taken on behalf of the bank about misjoinder of causes of action.

Today Ld.counsel appearing for the appellant/original complainant filed an application virtually conceding to the same. Under these circumstances, we asked Ld.counsel for the appellant to elect in respect of which of the complainants, he wants to prosecute this appeal. Accordingly, election is made and the appellant/original complainant wanted to prosecute this appeal only in respect of original complainant no.2- Rainbow Corporation. We heard both the parties accordingly.

As far as point of limitation is concerned, it is alleged by the complainant that for the first time in the month of November 2006 they discovered the negligence on the part of the bank in honouring the cheques which were issued during the period 15/02/2002 to 11/08/2003. Referring to the decision of the Apex Court in the matter of Dr.V.N.Shrikhande v/s. Anita Sena Fernandes and applying the ratio of latent and patent of the cause(2011) 1 SCC 53 decided 20/10/2010 vis--vis, resting upon rule of discovery; we find, prima facie, since complainant himself submits that the alleged deficiency in service on the part of bank came to its knowledge only in November 2006, one has to consider point of limitation from that perspective. Of course, the bank challenged the contention of the complainant about coming to know alleged negligence in the year 2006 but that is the matter which needs to be settled on facts after proper investigation, namely, leading proper evidence on affidavit by both the parties. Therefore, at present we keep the point of limitation open.

Other circumstances on which the complaint stood dismissed is that since the services of the bank admittedly being hired for commercial purpose during the course of business, it is a service hired for commercial purpose and as such complainant cannot be said to be a Consumer. We find some merit in this submission.

Admittedly, since Rainbow Corporation is a firm of Ajay Subhash Shah (HUF), i.e.jurisdic person there arise no question of self employment so as to cover the case under explanation to section 2(1)(d) of the Consumer Protection Act, 1986 (Act for brevity). It is a case relating(ii) to an action related with services given while operating the Current Account of Appellant Rainbow Corporation which was admittedly opened and used for business purpose, of the business of commission agent and business of yarn sale. Therefore, since the account itself is connected and related to the business transactions and such banking activity is required for the functioning of a given business enterprise of the appellant/complainant, services hired for that purpose would fall within the category of hiring services for commercial purpose. A useful reference can be made to free dictionary by FARLEX (on Internet) which defines the Business Activity as the activity undertaken as a part of commercial enterprise. Further, reference can be made to an article available on the internet Website Wise Geek (copy right protected 2003-12 by Conjecture Corporation) and which is written by Alexis.W, edited by Heater Bailey. Under the circumstances, prima facie appellant/complainant Rainbow Corporation cannot be a consumer within the meaning of section 2(1)(d) of the Act. (ii) Ld.counsel appearing for the appellant referred to decision of the National Commission in the matter of . However,Harsolia Motors v/s. National Insurance Co.Ltd. I (2005) CPJ 27 (NC) said decision which relates to services offered by the Insurance Company and is distinguishable in the background of facts of the present case. Apex Court decision in the matter of Economic Transport Organization V/s. Charan Spinning Mills (P) Ltd. & Another, 2010 CTJ 361 (SC) (CP), could be referred with advantage.

Therefore, if the complaint could be dismissed alone on this count, ultimate dismissal of complaint cannot be faulted with. We hold accordingly and pass the following order:- ORDER Appeal is not admitted and stands rejected accordingly.

Pronounced on 27 February, 2012.th [Hon'ble Mr. S.R. Khanzode] PRESIDING MEMBER [Hon'ble Mr. Dhanraj Khamatkar] Member [Hon'ble Mr. Narendra Kawde] MEMBER