S.P. THENAPPAN vs Indian Overseas Bank

THIS appeal is directed against the order dated 6.5.1997 in O.P. 609/1995 on the file of the District Consumer Disputes Redressal Forum, Chennai (South). The appellant is the complainant while the respondents are the opposite parties.

THE complainant is a private money lender. It appears, certain amount is due from the 2nd opposite party by name K. Chockalingam. THE 2nd opposite party is having a Savings Bank Account No. 13211 in Indian Overseas Bank at Manapparai. THE 2nd opposite party, for the amount due to the complainant, appeared to have issued a cheque for Rs. 55,000/- dated 19.1.1995. THE cheque was presented for encashment by the complainant to his banker. THE cheque so presented for encashment returned with the endorsement that the cheque was drawn on Eragudi Branch of Indian Overseas Bank wherein the 2nd opposite party was not having any account. THE Indian Overseas Bank, Manapparai branch, wherein the 2nd opposite party is having his S.B. Account, it appears, was not having adequacy of stock of cheque books. Consequently, the cheque book pertaining to Eragudi Branch of Indian Overseas Bank, it appears, was supplied to the 2nd opposite party for utilisation after striking out Eragudi branch of Indian Overseas Bank and writing as Indian Overseas Bank, Manapparai. THE 2nd opposite party, it appears, without making the necessary correction in the cheque leaf, appeared to have issued the cheque to the complainant. THE complainant, in such a situation, contended that there was deficiency in service on the part of the 1st opposite party Indian Overseas Bank as well as the 2nd opposite party K. Chockalingam. Alleging the factors as above, he knocked at the doors of the Forum below for certain reliefs as prayed for in the compaint.

The 1st and the 2nd opposite parties filed separate counters. In pith and substance what they would contend was that the complainant, on the facts and in the circumstances of the case, cannot at all be construed as a consumer qua the opposite parties 1 and 2. The complaint, as such is liable to be dismissed.

THE Forum below, after taking into consideration the materials placed on record, ultimately recorded a finding the the complainant cannot at all be construed as a consumer, on the facts and in the circumstances of the case, qua the opposite parties 1 and 2 and consequently dismissed the complaint directing the parties to bear their own costs. Aggrieved by the order as above, the complainant resorted to the present action by engaging a Counsel of his choice namely learned Counsel Mr. K. Narayanasamiy.

ON service of process, the respondent No. 1, Indian Overseas Bank, entered appearance through a Counsel of its choice namely learned Counsel Mr. R. Vjayan. Likewise, the 2nd respondent/opposite party also entered appearance through a Counsel of his choice namely Ms. Jayashree. When the matter came up for arguments before us today, both learned Counsel appearing for the respective parties were absent and no representation is made on their behalf. The fact that the said learned Counsel appearing for the parties were absent does not mean that we cannot dispose of the appeal on merits, of course after perusing the materials placed on record and that is exactly what we have done in this case. Even on the averments as incorporated by the complainant, it cannot at all be stated that the complainant can ever be construed as a consumer qua the opposite parties-1 and 2. There is no privity of contract between the complainant and Indian Overseas Bank, 1st opposite party. He has not availed or hired the services of the 1st opposite party for any consideration. Likewise, it cannot at all be stated that the complainant availed or hired of the services of the 2nd opposite party for consideration. It appears from the averments as made in the complaint, certain amounts were due by the 2nd opposite party to the complainant and in discharge of the amount so due by him, he appeared to have issued the cheque in question which was dishonoured for the reasons stated therein. Taking all these aspects of the matter, the Forum below dismissed the complaint holding that the complainant cannot at all be construed as a consumer qua the opposite parties-1 and 2. Such a finding, on the facts and in the circumstances of the case, cannot at all be disturbed. The appeal, as such, deserves to be dismissed.

IN fine, the appeal fails and the same is dismissed. We however make no order as to costs on the facts and in the circumstances of the case. Appeal dismissed.