Delhi

North

CC/41/2024

M/S SIMRAN EXPORT - Complainant(s)

Versus

CANARA BANK - Opp.Party(s)

29 Feb 2024

ORDER

District Consumer Disputes Redressal Commission-I (North District)

[Govt. of NCT of Delhi]

Ground Floor, Court Annexe -2 Building, Tis Hazari Court Complex, Delhi- 110054

 

Consumer Complaint No.41/2024

In the matter of

M/s Simran  Export

Prop. Of Shri Vinod Kumar

S/o Late Sh. Kalyan Das

R/o 30/15, GF Shakti Nagar,

North Delhi, Delhi-110007.                        …      Complainant

 

Vs.

Branch Manager, Canara Bank

W 2, 259A, Shaheed Chander Marg,

Uttam Nagar Branch, New Delhi.                …     Opposite Party No.1

 

The General Manager & Secretary to the Board

Canara Bank, MD & CEO’s Secretariat

Head Office,112, JC Road, Bengaluru

State of Karnataka, Pin-560002                            …     Opposite Party No.2

 

General Manager, Canara Bank,

Circle Office, 9^th floor,

38 Ansal tower,

Nehru Place, Delhi-110019.                        …     Opposite Party No.3

 

 

ORDER

29.02.2024

 

(Divya Jyoti Jaipuriar)

1. We have heard the arguments of Shri Vishnu Kant, Ld. Advocate for Complainant, on admissibility of the complaint yesterday and reserved our orders on admissibility of the complaint.  This complaint has been filed by one Shri Vinod Kumar, said to be sole proprietor of the Complainant Firm namely M/s Simran Exports. However there is no document on record to indicate that Shri Vinod Kumar is the proprietor of the Complainant firm M/s Simran Exports. When we enquired about the same, it was argued by Ld. Advocate that the registration of proprietorship firm is not mandatory; hence there is no registration document.
2. Although registration of the proprietor firm is not mandatory, but for running a business by a proprietorship firm, obtaining of GST registration is necessary. In such registration, the name of the sole proprietor is clearly indicated. In the case in hand, no such GST registration is placed on record. We have also made an attempt to search the details of the proprietorship firm on the official GST portal (www.gst.gov.in) using the PAN of Shri Vinod Kumar, which is filed along with the complaint. But the name of the Complainant firm did not appear in the search result on the GSTN portal. Hence, we could not verify even from the GSTN portal that Shri Vinod Kumar is the proprietor of the Complainant firm namely M/s Simran Exports. Once the relationship between the proprietorship firm M/s Simran Exports and the alleged proprietor Shri Vinod Kumar is not established, the complaint cannot be entertained. This is a sufficient ground to dismiss the complaint.
3. Even otherwise, assuming that Shri Vinod Kumar is the sole proprietor of the Complainant firm, the complaint is liable to be dismissed two grounds- (i) the Complainant firm herein is not a consumer as defined in section 2(7) of the Consumer Protection Act, 2019; (ii) the document so filed by the Complainant do not prima facie establish any deficiency of service on part of the OP Bank; and (iii) there is inordinate delay in filing this complaint. We will be dealing with all these three aspects in this order.
4. The Complainant Firm is having a current bank account with M/s Canara Bank Uttam Nagar Branch, Delhi (OP-1 herein) OP-2 and OP-3 are different functionaries/ offices of Canara Bank. It is stated in the complaint that the said OP bank is deducting tax at source on the interest payments, but is the depositing the same with the Income Tax Authorities and the OP Bank has not issued the mandatory TDS certificates for different financial years to the Complainant Firm. It is also argued that the same default of the OP is continuing since the year 2012. The Complainant firm has pleaded that the OP Bank has deducted a sum of Rs. 3,68,772/- during the period 2012-2023, but there is no document on record to substantiate such claim.
5. On the issue that whether the Complainant Firm herein is a consumer within the meaning of definition of “Consumer” as defined in section 2 (7) of the CPA, 2019, we are of the opinion that this complaint is not maintainable before this Commission particularly in view of the fact that maintaining a current account by the Proprietorship firm was being utilised by the Complainant firm for commercial purposes. Section 2(7) of the Consumer Protection Act, 2019 clearly prohibits the transaction for commercial purposes from being adjudicated under the provisions of the Consumer Protection Act. Further the said commercial purpose cannot be said to be for the purpose of earning the livelihood by means of self-employment as the expressions “livelihood” and “self-employment” are relates to natural person and not to a juristic person.
6. In this context we would like to refer to judgement of Hon’ble National Commission in the matter of M/s Shanon Restaurant Vs Emaar MGF Land Ltd. (Consumer Case No. 1867 of 2016 decided on December 1, 2016), in which Hon’ble National Commission has clearly held that the livelihood and the self-employment only relates to a natural person and not to a juristic person. In the said judgement Hon’ble National Commission has held as under:

“5. We are not convinced with the aforesaid submission. In order to take benefit of the explanation, the complainant is required to establish that the services of the opposite party were availed exclusively for the purpose of earning “livelihood” by means of self-employment”. The user of the words, “livelihood” and “self-employment” by itself imply that this explanation relates to a natural person. If the interpretation sought to be given by Ld. Counsel for the Complainant is accepted then every company will come and say that it has bought the goods for consideration or hired or availed services for consideration for the purpose of livelihood of the company by means of self-employment. That will make the entire exception carved out in the definition redundant. It appears that the instant complaint has been filed only with a view to avoid payment of court fee, which would require to be paid for filing a civil suit. Thus, in our view, the complaint is frivolous and mala-fide. It is accordingly dismissed with cost of Rs.10,000/- to be deposited by the Complainant company with “Consumer Legal Aid Account-NCDRC” within four weeks.”

7. On the issue of availing the current account facility, Hon’ble National Commission has also explained that such a facility is commercial in nature and Consumer Protection Act cannot be invoked in such dispute. Hon’ble National Commission in the matter of Subhash Motilal Shah Vs Melegaon Merchants Co-op Bank Ltd. [I (2013) 1 CPJ 34A (NC)] has upheld the judgement of Hon’ble Maharashtra National Commission and held as under:

3. We have heard the learned counsel for the petitioner. The State Commission was pleased to hold:-

“Admittedly, since Rainbow Corporation is a firm of Ajay Subhash Shah (HUF), i.e., juristic person, there arise no question of self-employment so as to cover the case under explanation to section 2(1)(d)(ii) of the Consumer Protection Act, 1986 (Act for brevity). It is a case relating 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 (copyright 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)(ii) of the Act’’.

4. Learned counsel for the petitioner vehemently argued that the view taken by the State Commission is erroneous, because, even commercial Transaction can be taken into consideration. He has cited a Supreme Courts authority in support of his case which is reported in Regional Provident Fund Commissioner Vs. Shiv Kumar Joshi, (2000) 1 SCC 98, wherein it was held that the combined reading of the definitions of consumer and service under the Act and looking at the aims and object for which the Act was enacted, it is imperative that the words consumer and service as defined under the Act should be construed to comprehend consumer and services of commercial and trade-oriented nature only. Thus any person who is found to have hired services for consideration shall be deemed to be a consumer notwithstanding that the services were in connection with any goods or their user. Such services may be for any connected commercial activity and may also relate to the services as indicated in Section 2(1)(o) of the Act.

5. As a matter of fact, there was amendment in the Act. By the Act No.62 of 2002, w.e.f. 15.03.2003, the said Amendment, runs as follows:-

Section 2(d)(ii) : hires or avails of any services 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. 

[Inserted by Act 62 of 2002, sec.2 (w.e.f. 15.03.2003)]

Explanation  For the purposes 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.

[Subs.by Act 62 of 2002, sec.2, for Explanation (w.e.f.15.03.2003)].

Consequently, this authority has no application to the present case.

6. The revision petition is without merit and the same is, therefore, dismissed.”

8. Further, in the case in hand, the current account is in the name of the Complainant Firm and the same is used for receiving remittance of proceeds received from business activities of the Complainant Firm. Such usage of the bank account for the sole purpose of running the business activities of the Complainant Firm which has a direct nexus with the profit generating activities of the Complainant Firm, is not covered within the purview of the Consumer Protection Act, 2019.
9. In this context, we would like to refer to the judgment of Hon’ble Supreme Court in the matter of Lilavati Kirtilal Mehta Medical Trust v. Unique Shanti Developers [(2020) 10 SCC 274], in which Hon’ble Supreme Court has laid down broad principles to determine any activity as “Commercial Activity”. Hon’ble Supreme Court in Lilavati Hospital case (supra) has held as under:

“19. To summarise from the above discussion, though a strait jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is “for a commercial purpose”:

19.1. The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities.

19.2. The purchase of the good or service should have a close and direct nexus with a profit-generating activity.

19.3. The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary.

19.4. If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of “generating livelihood by means of self-employment” need not be looked into.”

10. While applying the said principles, Hon’ble Supreme Court in the matter of Shrikant G. Mantri vs. Punjab National Bank [(2022) 5 SCC 42] has examined the overdraft facility being utilised by a stockbroker has held that relations between the appellant [Stockbroker] and the respondent [Bank] is purely “business to business” relationship. Hon’ble Supreme Court, therefore concluded that as such, the transactions would clearly come within the ambit of ‘commercial purpose’ and it cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”. If the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes, Hon’ble Supreme Court opined.
11. In the case in hand, the relationship between the Complainant Firm and the OP Bank is also purely “business to business” and the same is commercial in nature. The relationship between the Complainant Firm and the OP Bank cannot be construed as consumer dispute.
12. In view of the above, we are of the considered opinion that the availing current bank account facility availed by the Complainant Firm herein is for commercial purposes and this Commission is not an appropriate forum to adjudicate this complaint.
13. Even on merits, there is no document on record that the OP Bank has deducted the TDS from the bank account of the Complainant Firm as alleged. The Complainant has alleged that the OP Bank has deducted during the period of 2012-2023, a sum of Rs. 3,68,772/- as TDS. However except for pleading to that effect, there is no document including the bank statement of the relevant period to substantiate the claim of the Complainant Firm that the OP Bank has deducted the TDS from its bank account. In absence of any document on record, Complainant Firm herein is unable to establish any prima facie deficiency of service attributed to the OP Bank.
14. On the aspect of delay, admittedly, the OP Bank is not issuing TDS certificate since the year 2012. Although the Complainant Firm has pleaded and argued that the said deficiency is still continuing, and there is continuous cause of action, the laws does not support the Complainant. The limitation period for filing a consumer complaint is two years since the date of cause of action. There is different cause of action for every year in the case in hand. Even if the OP Bank has not issued the TDS certificates in all these years since 2012, all non- issuance of TDS certificates become separate cause of action which cannot be clubbed in one complaint. Even otherwise, Hon’ble Supreme Court in the matter of Kandimalla Raghavaiah Vs. National Insurance Company Ltd. [(2009) 7 SCC 768], has held that for the purpose of calculating the limitation under the provisions of Consumer Protection Act, the date on which first cause of action has arisen should be considered. Even if we accept the contention that the OP Bank is not issuing the TDS certificates since 2012, the first default by the OP Bank is to be considered to calculate the limitation period in view of the judgment of Hon’ble Supreme Court in Kandimalla Raghavaiah case (supra).
15. Further, in Kandimalla Raghavaiah case (Supra), Hon’ble Supreme Court has also held that the complaint is liable to be dismissed, if the delay is not duly explained. In the case in hand, the Complainant has not explained the reasons for the delay in filing this complaint. In the matter of State Bank of India vs B S Agriculture (I) [(2009) 5 SCC 121], Hon’ble Supreme Court has held that Consumer Forum should deal with the merit of the case only if the complaint is filed within the limitation period or if the Complainant has explained the cause of delay. In such case, the Consumer Forum is required to pass a reasoned order condoning a delay.
16. In the case in hand, there is neither any application seeking condonation of delay nor the Complainant Firm has explained any reason for coming to this Commission at so belated stage since the default on part of the OP Bank is alleged since the year 2012. Hence in view of the judgment of Hon’ble Supreme Court in Kandimalla Raghavaiah case (Supra) and B S Agriculture (I) (supra), this complaint is liable to be dismissed even on the ground of delay.
17. In view of the detailed observations above, this complaint is liable to be dismissed on following grounds:
    1. The Proprietor/ AR of the Complainant Firm could not establish the relationship between him and the Complainant Firm.
    2. The Complainant Firm is not a consumer as defined under section 2 (7) of the CPA, 2019 in view of business to business relationship between the Complainant Firm and OP Bank.
    3. The Complainant Firm could not establish alleged deficiency of service as no documents in support of such allegation of deficiency of service have been filed.
    4. There is an inordinate delay of more than nine years since first cause of action arose, which is neither explained nor any condonation of delay application has been filed by the Complainant.
18. As a result, this complaint is dismissed at admission stage itself on all the four grounds innumerate above. Office is directed to supply the copy of this order to the parties in accordance with the rules. Thereafter file be consigned to the record room.

 

 

 

___________________________

Divya Jyoti Jaipuriar, President

 

 

 

___________________________

Ashwani Kumar Mehta, Member

 

 

 

___________________________

Harpreet Kaur Charya, Member