PER SHRI. S.B.DHUMAL - HON’BLE PRESIDENT :
1) In brief present dispute is as under –
That the Complainants No.1 & 2 are registered partnership firm interalia carrying on the business of distribution of fire protection, fluid supply, drainage & electrical products, turnkey installation of fire protection, etc. Concept Combined (India) Pvt. Ltd. is a partner in both the Complainant No.1 & 2. Mr. Murtuza Zoomkhawalla is a Director of Concept Combined (India) Pvt. Ltd. The Opposite Party Bank of Baroda is carrying on banking business under the provisions of the Banking Regulation Act, 1949.
2) It is averred that in complaint para No.2, that the Complainant have for their business purposes from time to time availed of several facilities including cash credit, overdraft facilities, etc. from the Opposite Party and for that purpose executed several documents in favour of Opposite Party as security for the facilities availed by the Complainants.
3) According to the Complainant on 11/10/06, the Complainants availed overdraft facility drawing against un-cleared effects and cheque purchase facility. Condition precedent to availing of the aforesaid facilities was execution of following documents namely 1) Demand Promissory Note, 2) Letter of continuing security, 3) Composite Hypothecation Agreement for stock, machinery, etc. and 4) Charge by way of equitable mortgage of office premises being B/216, International Technology Centre, Tower 10, 3rd Floor, C.B.D. Belapur, Navi Mumbai, belonging to the Complainants’ partner Concept Combined (India) Pvt. Ltd. in favour of the Opposite Party. In compliance of the sanction letters, on 26/10/06, the Complainant by way of collateral security deposited the duly registered Lease Deed dtd.07/04/06 executed between C.I.D.CO. and the Complainants’ partner Concept Combined (India) Pvt. Ltd. in respect of the said premises together with the original registration receipt in respect of the said Lease Deed with the Opposite Party.
4) It is submitted that on or around February, 2008, the Complainants requested the Branch Manager of the Opposite Party that their Auditors wanted to inspect the said Lease Deed and the original registration receipt thereof. Initially the Branch Manager of the Opposite Party informed the Complainants that since the original documents mortgaged with the Opposite Party were preserved in the safe custody/ vault and it would require at least 2 working days to make the same available for inspection. However, then the said Lease Deed, Original registration receipt were not produced for inspection for over 2 months on the flimsy grounds. Therefore, on 08/04/08, the Concept Combined (India) Pvt. Ltd. addressed a letter to the Opposite Party requesting for immediate inspection for original Lease Deed and Registration receipt. However, despite aforesaid letter the Opposite Party failed and neglected to comply with the same, causing immense hardship to the Complainant. The aforesaid conduct of Opposite Party has caused the Complainants to believe that the Opposite Party has either lost or misplaced the said Lease Deed and Registration receipt. The Opposite Party has not acted with the due diligence and with utmost care and precaution as would have been expected of a prudent bank.
5) It is submitted that the Complainant No.1 has a measure of last resort and also suspecting some foul play by the Opposite Party through their advocates issued notice dtd.12/05/2008 to the Opposite Party and called upon to produce aforesaid documents for inspection. However, despite the receipt of advocate’s legal notice, the Opposite Party failed and neglected to comply with the requirements. The Opposite Party belatedly and byway of after thought forwarded its advocate’s letter dtd.09/07/08 admitting that the documents were lost from the Banks custody. Then the Complainants through their advocate sent letter dtd.05/08/08 to the Opposite Party and thereby brought to the notice of Opposite Party that misplacing of original documents due to the carelessness and negligence act is a disservice on the part of Opposite Party and it has resulted into immense loss and hardship to the Complainant which amounts to deficiency in service on the part of Opposite Party.
6) It is submitted that due to the deficiency in service on the part of Opposite Party the Complainants have suffered grave harm, loss and have undergone mental agony as the Complainants are unable to comply with the audit formalities as required by the Auditor. The Complainants will also suffer monitory loss in view of loss of original Title Deeds of the said property. The said premises of which, market value is about 55 Lacs. As a Title Deed are lost price offered for the said premises is only Rs.40 Lacs. Therefore, the Complainants have filed this complaint. The Complainants have prayed to direct Opposite Party to pay compensation of Rs.15 Lacs to the Complainants or such other amount as this Forum deems fit and proper, as and by way of the monetary loss which is caused due to the negligent act of Opposite Party in losing the title deeds in respect of the said premises. The Complainants have also prayed to direct Opposite Party to pay to the Complainant compensation of Rs.2,50,000/- for mental agony, hardship and suffering caused to the Complainants and Rs.50,000/- towards the cost of this proceeding including advocate’s fees.
7) Alongwith complaint the Complainants have filed copies of documents at Exh. ‘A’ to ‘G’ and affidavit of Murtuza Zoomkhawalla, in support of the complaint.
8) Opposite Party has filed written statement and thereby resisted claim of the Complainant contending interalia that the Complainant is not a ‘Consumer’ as defined under Consumer Protection Act, 1986 and therefore, complaint is liable to be dismissed. It is contended that complaint is not maintainable on the ground of non joinder of necessary party and on this ground also complaint is liable to be dismissed.
9) Opposite Party has admitted that the Complainant had availed various facilities from the Opposite Party Bank in connection with their business. It is denied that there is deficiency in service of whatsoever nature on the part of Opposite Party. According to the Opposite Party, allegations made in the complaint are false and flimsy and complaint is baseless, devoid of merits and therefore, deserves to be dismissed with cost.
10) It is admitted by the Opposite Party that the Complainants had availed cash credit facility from the Opposite Party and accordingly credit facilities were sanctioned to the Complainants on 11/10/06 for the amount of Rs.10 Lacs in favour of M/s. Concept Delta and Rs.15 Lacs in favour of M/s. Engineering Concept and for the security of loan, the Complainant gave collateral security by creating charge by way of equitable mortgage of the premises located at ‘B-216, 2nd floor, Belapur Railway Station, owned by M/s. Concept Combined (India) Pvt. Ltd., in favour of the bank and deposited title deeds of the said property with the Opposite Party bank in October, 06.
11) It is alleged by the Opposite Party that the Complainants failed and neglected to make the payment of loan availed by them on respective due dates, as a result outstanding in Complainants loan account goes on mounting which remain unpaid and accordingly Complainants loan accounts were declare NPA on 30/06/08. The outstanding in the Complainants loan account of Rs.10,69,763.34 paise in account of M/s. Concept Delta and Rs.11,67,671.71 paise in account of M/s. Engineering Concepts as on 13/03/09, which Opposite Party demanded from the Complainants from time to time but the Complainants failed and neglected to clear the outstanding dues.
12) It is submitted that in the month of August, 08, M/s. Concept Combined (India) Pvt. Ltd. approached Opposite Party Bank to give inspection of original Lease Deed deposited with the bank on October, 06, in respect of property being shop premises No.b-216, on 2nd floor, Belapur Complex, CBD Belapur, Navi Mumbai, Thane. The Opposite Party’s bank official had search record but could not lay their hand on original title deed of above mentioned premises. According to the Opposite Party, somewhere in 2007, renovation work of Opposite Parties concerned branch was under taken and all documents of the bank customers shifted from one place to another within the branch premises and during that time the original title deed of M/s. Concept Combined (India) Pvt. Ltd. would have been wrongly placed. As a result bank officer could not trace the document. The Opposite Party was ready to give inspection of the xerox copy on Lease Deed dtd.07/04/06 of the said property which was available with them but M/s. Concept Combined (India) Pvt. Ltd. declined to inspect said xerox copy. Subsequently, M/s. Concept Combined (India) Pvt.Ltd. through their advocate’s notice made allegation by giving threats of filing civil and criminal proceeding. According to the Opposite Party, certified copy of the original Lease Deed is available with them and they are ready to follow proper procedure in respect of loss of original documents by issuing public notice in Newspaper. It is submitted that certified copy of Lease Deed can be treated as an Original for all practical purpose. It is denied that in that of loss document in respect of the said premises has resulted into reduction of purchase price. The Opposite Party has denied their liability to pay compensation for loss and also compensation of mental agony, harassment, etc. contending that complaint is liable to be dismissed with cost.
13) The Complainant has field affidavit of evidence. The Opposite Party has also filed affidavit of evidence. The Complainant has filed written argument. Opposite Party has also filed written argument. We heard oral submissions of Ld.Advocate Mr. Bhavik Mane i.b. Wadia Ghandy & Co., for the Complainant and Ld.Advocate Ms. Pradnya Lade i.b. M.V. Kini & Co., for the Opposite Party.
14) Following points arises for our consideration and our findings thereon are as under -
Point No.1 : Whether the Complainants are ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act,
1986 ?
Findings : No
Point No.2 : Whether the Complainants are entitled for reliefs as prayed for ?
Findings : No
Reasons :-
Point No.1 :- Ld.Advocate for the Opposite Party has vehemently submitted that the Complainants are not ‘Consumer’ as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, 1986 as they have availed services of the Opposite Party Bank for commercial purposes. On the contrary, Ld.Advocate Shri. Bhavik Mane has submitted that Opposite Party - Bank of Baroda is a service provider. The Complainant have availed their services on payment of consideration for business purpose. According to the Complainant’s Ld.Advocate, the Complainants are carrying on their business for the purpose of earning livelihood by means of self employment. It is submitted that original Lease Deed in respect of the Shop No.B-216, on 2nd floor, Belapur Commercial Complex, CBD-Belapur, Navi Mumbai, was given in the custody of Opposite Party as a collateral security but Opposite Party, however, due negligence have lost the documents and it amount to deficiency in service, therefore, the Complainants have filed this complaint. In support of his contention, Ld.Advocate for the Complainant has relied upon decision of the Hon’ble Supreme Court in Laxmi Engineering Works V/s. P.S.G. Industrial Institute, AIR 1995 SC 1428, decision of the National Consumer Disputes Redressal Commission, New Delhi in C.L. Khanna V/s. Dena Bank. Decision in Doson Chemical Pvt. Ltd., & Ors. V/s. United Bank of India and Anr., decided on 09/12/2002, decision of the Hon’ble State Commission, Jammu & Kashmir in Pal Construction Co. V/s. International Tractors Ltd. & Anr.
Case of Laxmi Engineering Works V/s. P.S.G. Industrial Institute was decided by the Hon’ble Supreme Court on 04/04/95 i.e. prior to the amendment of Sec.2(1)(d)(ii) which came into effect on 15/03/2003. In aforesaid decision the Hon’ble Supreme Court has explained meaning of the expression “Commercial Purpose” as under “Controversy has, however, arisen with respect to meaning of the expression “Commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. “Commercial” denotes “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collies English Directory) whereas the word “commerce” means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a “consumer” within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion – the expression “large- scale” is not a very precise expression – the Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” – a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for playing the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression “consumer”. If the commercial use is by the purchase himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a “consumer”. In the illustration given above, if the purchaser himself works on typewriter or piles the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods brought are put to. The several words employed in the explanation, viz., “uses them by himself, “exclusively for the purpose of earning his livelihood” and “by means of self-employment” make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself, by employing himself for earning his livelihood. A few more illustrations would serve to emphasize what we say. A Person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expressions “used by him”, and “by means of self-employment” in the explanation. The ambiguity in the meaning of the words “for the purpose of earning his livelihood”, is explained and clarified by the other two sets of words.
The Hon’ble Supreme Court in aforesaid decision has further held that “Indeed, the entire Act revolves round the consumer and is designed to protect his interest. The Act provides for “business-to-consumer” disputes and not for “business-to-business” disputes.”
In this case the Complainants are two registered partnership firms interalia carrying on business of distribution of fire protection, fluid supply, drainage & electrical produces, turnkey installation of fire protection, etc. Nowhere in the complaint it is averred that the Complainants are carrying on their business exclusively for the purpose of earning their livelihood by means of self-employment. On the contrary in the complaint para no.2 it is specifically averred that “the Complainants have for their business purposes from time to time availed of several facilities including cash credit, overdraft facilities, etc. from the Opposite Party.” In the prayer column the Complainants have claimed recovery of Rs.15 Lacs from the Opposite Party by monetary loss caused to the Complainant due to the negligent act of the Opposite Party. It appears from the averment made in the written statement that Opposite Party has sanctioned credit facility of Rs.10 Lacs in favour of Concept Delta and Rs.15 Lacs in favour of M/s. Engineering Concept. It appears that the Complainants are carrying on their business on large scale for the purpose of earning profit. Therefore, above cited decision in Laxmi Engineering Works is not applicable to the present case. From the facts of the case C.L. Khanna V/s. Dena Bank, it appears that original title deeds were deposited by Complainant with Dena Bank on 19/01/1973. The Complainants offered to Dena Bank by its letter dtd.26/06/1989 for repayment of the loan account on title deeds being returned. Dispute between the parties had taken place about in the month of November, 1998 i.e. prior to the amendment of Sec.2(1)(d)(ii) of the Consumer Protection Act. From the judgement para no.2, it appears that Complainant was the proprietor of A.P. Industries which was small scale unit and the bank had given financial assistance. Sanctioned term loan limit was Rs.75,000/- only. It appears that Mrs. C.L. Khanna was running his small scale unit, P.S.G Industries for earning his livelihood and therefore, decision in C.L. Khanna V/s. Dena Bank is also not applicable to the present case. Facts of the other cases relied upon by the Ld.Advocate for Complainant are also different from the facts of the present case. Therefore, the decision relied upon by the Complainant are not applicable to the present case.
By the amendment Act, 62 of 2002, Section 2(1)(d)(ii) was amended w.e.f. 15/03/2003. By the said amendment the person who avail services for any commercial purpose is excluded from the definition of consumer. In this case as mentioned above, the Complainants M/s. Concept Delta and M/s. Engineering Concepts are registered partnership firms interalia carrying on business of distribution of fire protection, fluid supply, drainage & electrical produces, turnkey installation of fire protection, etc. on large scale. It is specifically averred in complaint para no.2 that the Complainant availed services of the Opposite Party bank for their business purpose. In view of the amended provisions of Sec.2(1)(d)(ii), we hold that the Complainants are not ‘Complainants’ as defined under amended provisions of Sec.2(1)(d)(ii) of the Consumer Protection Act. Hence, we answer point no.1 in the negative.
Point No.2 :- As discussed above, the Complainants are not Consumer as defined under Sec.2(1)(d)(ii) of the Consumer Protection Act, therefore, present complaint is not maintainable before this Consumer Forum and as the Complainants are not entitled for any relief claimed against Opposite Party from this Consumer Forum. Hence we answer point no.2 in the negative.
For the reasons discussed above, complaint is deserves to be dismissed. Hence, we pass following order -
O R D E R
i.Complaint No.35/2009 is dismissed with not order as to cost.
ii.Certified copies of this order be furnished to the parties.
