Order No. 09     Dated :  05.07.2019

            The instant hearing arising out of an application dated 14.03.2019 filed by the OPs challenging the maintainability of the consumer complaint.

            The Ld. Advocate for the OPs has submitted that the complainant is not a consumer under section 2 (1) (d) of the Consumer Protection Act, 1986 as the services hired by the complainant was for commercial purpose for earning profit. She has further contended that complainant has a Cash Credit Account with the OPs/Bank, the definition of cash credit is a short term source of finance having tenure of up to one year and this allows the customer, typically a business or company with a proven track record of profit, to withdraw money which is more than the balance available in the account. Ld. Advocate for the OPs has further submitted that the consumer complaint involves detailed trial in view of the allegations made and complex issues which requires detailed evidence for determination. Therefore, the matter should be decided by the Civil Court.

            Per-contra, the Ld. Advocate for the complainant has submitted that the impugned application is misconceived and malafide.  she has further contended that the definition of consumer envisaged under section 2 (1) (d) of the C.P. Act and the complainant M/s. Balaji Industrial Corporation is a proprietorship firm represented by its sole proprietor for his livelihood. According to her, the consumer complaint u/section 12 of the C.P. Act, 1986 is maintainable.

In order to appreciate the contention of the Ld. Advocate for the parties, it would be useful to have a look on the definition of “Consumer” as provided under section 2 (1) (d) of the Act as amended up to date. The definition reads as under:-

(d) “consumer” means any person who-

(i) buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised, or under any system or deferred payment when such use is made with the approval of such person, but does not includes a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any beneficiary of such services  other than the person who ‘hires or avails  of the services for consideration paid or promised, or partly paid and partly promised, or under any system of deferred payment, when such services are availed of with the approval of the first mentioned person but does not include a person who avails of such services for any commercial purpose;

Explanation.—For the purpose of this clause, “commercial purpose” does not include use by a person of goods bought and used by him and services availed by him exclusively for the purposes of earning his livelihood by means of self-employment.”

            On reading of the above, it is clear that consumer is a person who buys any goods and hires or avails of any service for consideration either paid or deferred. The section, however has an inbuilt exception that the person who buys goods or hires of avail of service for commercial purpose is not a consumer. It is true that the complainant being a proprietorship firm availed of Cash Credit facility against the account opened in the OPs/Bank in relation to his business. It is also true that the complainant opened a Recurring Deposit Account being No. 914050052291631 with the OP-2 Bank having tenure of 36 months and its maturity value is Rs. 20,70,863/- though the OP-2/Bank credited an amount of Rs. 18,98,680/- to the cash Credit Account of the complainant after deducting Rs. 23,227/- as TDS.

We have gone through the consumer petition and do not find any averment that the service hired by the complainant, a sole proprietorship firm is for earning livelihood and by way of self employment. The object of the Consumer Protection Act is to provide speedy and simple redressal to the consumer disputes relating to deficiency in service or supply of defective goods. The Consumer Fora are courts of limited jurisdiction. The complainant has alleged deficiency in service on the part of the OPs but  in view of the explanation defined U/section 2 (1) (d) of the C.P. Act the consumer case is not maintainable in its present form and in law in absence of any averment in the consumer petition that the proprietor complainant firm is carrying on business for earning livelihood and by way of self employment. Thus, it is clear that the services of the OPs/Bank were availed by the complainant for commercial purpose, that is in respect of his business. That being the case, the complainant is not a consumer as envisaged under section 2 (1) (d) of the C.P. Act.

In view of the above discussion, complainant is not a consumer. That being the case, complainant has no locus-standi to maintain the consumer complaint. The consumer complaint is therefore, liable to be dismissed.

Hence,

ORDERED

That the Miscellaneous Application dated 14.03.2019 filed by the OPs is allowed on contest without any cost.

Thus, the M.A. being No. 131 of 2019 is disposed of.

Consequently, the Consumer Case being No. 505/2018 is dismissed on the ground of non maintainability.