T.K. GOSWAMI vs State Bank of India

IT is an appeal against an order dated 7.7.1994 passed by the Calcutta District Forum in C.D.F. Case No. 3255/93. By the said order the learned C.D.F. had dismissed a complaint filed by the appellant claiming damages against the responent-State Bank of India. The complainant''s case in the Lower Forum was that he had given a power of attorney in favour of the State Bank of India, Main Branch, for transferring shares on his behalf and that in pursuance of the said power it had acted malafide causing loss to the complainant and creating a bad debt against the complainant. He had, therefore, claimed comensation against the State Bank of India for deficiency in service.

THE learned District Forum dismissed the complaint on the grounds that the service of selling the shares to others hired by the complainant was not a banking service and that it was a service under personal contract. As such the complainant was not a consumer as defined scope of Consumer Protection Act, 1986. Another ground pf dismissal of the complaint was that purchase and sale of shares were purely comerical transactions and as such outside the scope of the Consumer Protection Act, 1986. THE C.D.F. had further remarked that the deduction of an amount from the account of the complainant for which he had made allegation against the bank was a matter of evidence which could not be effected by the consumer forum in a summary procedure. On the above grounds complaint filed by the appellant before the District Forum was found to be not maintainable and was dismissed. THE only point for determination in this appeal is if the complaint filed by the appellant in the lower forum is maintainable and if the order of dismissal is correct. The first question raised is whether the service of the bank hired by the appellant in this case was actually a banking service. The service undertaken by a bank on behalf of a customer, if one for consideration, is actually a banking service. Such service may include works even outside the usual banking operation, e.g., payment of insurance premium on behalf of the customer, payment of house rent or taking other works on behalf of the customer financed by the accounts maintained by them. If selling of shares or purchasing the same out of the accounts maintained by a customer is undertaken by the bank for consideration, the same should also be include in the service of the bank. There is no reason to exclude such services from a banking service as against a customer.

As regards the question whether such service is undertaken against consideration, it may be noted that the bank accepts deposit from a customer for profits. Moreover work of selling and purchasing shares on behalf of a customer when such a customer is an N.R.I, is regulated by the Rules. So it is not a free contract by an ordinary person for selling his shares. The service is definitely against consideration particularly when the bank takes a huge amount of deposit from an N.R.I, for such work.

WE now proceed to examine whether there was a contract of personal service between the complainant and the bank. To examine this point it is necessary to examine what a contract of personal service means. So far as the service meaning a service for a particular person is concerned, it is always a personal service in contra-distinction to service rendered to a representative body. A contract of personal service as mentioned in Section 2(1)(o) of the Act actually denotes a service which is dependent on the personal qualification or volition of the parties. Such contracts are not specifically enforceable under Section 14(1)(b) of the Specification Relief Act, 1963. For example such contract may be one for singing a song or for painting a picture. It seems that the contract of personal service which has been excluded from the definition of "service" is actually a contract which by virtue of being a personal contract of the above nature is not specifically enforceable. The contracted alleged in this case is certainly not a contract of that type and it cannot be said to be a contract of personal service. Next ground of objection on which the complaint has been found to be not maintainable is that the purchase and sale of shares are purely a commercial transaction. Under Section 2(1)(o) of the Consumer Protection Act, 1986 a consumer does not include a person who obtains goods for resale or for any commercial purpose. This definition of a consumer is in respect of a person who buys any goods for consideration. In such cases if there is any defect in the goods purchased and the purchase is for resale or for commercial purpose of the goods he shall not be treated as a consumer. In the instant case the complaint is not for any defect in the goods purchased. The appellant had made the complaint for deficiency of service hired by him and is apparently covered by Sub-clause (ii) of Clause (d) of Sub-Section (1) of Section 2 of the C.P. Act. In other words, he is a hirer-consumer and not a purchaser-consumer. A share is always meant for sale. It is not otherwise consumable by a person. So if the acquiring of shares is involved in any transaction the same must be for commercial purpose. The defects in the purchased goods as such are certainly covered by the first clause of the definition of a consumer. But here the allegation is not in respect of the goods purchased, but in respect of the service hired from the bank to deal with such goods. That being so, even if the shares purchased or sold involve commercial purpose, it does not debar the complainant from being a consumer. In our opinion, therefore, the District Forum ought to have considered the case on merits without dismissing the complaint as not maintainable. The appeal, therefore, succeeds. The order dated 7.7.1994 passed in C.D.F. is set aside and the case is remanded back for a fresh disposal on merits according to law. There will be no order for cost. Appeal succeeds.