1) This Complaint has been filed by the Complainant against the Opposite Party alleging them for arbitrarily and illegally making payment for the Letter of Credit in collusion with the seller (beneficiary) and the foreign bank inspite of defective document and apparent fraud brought to the notice of the Opposite Party bank and thereby holding them for deficiency in service and for directions to the Opposite Party to pay Rs.13,73,470/- towards value of goods received short, legal expense of Rs.5,00,000/- paid to M/s.Sitara Shipping Ltd. for IGM amendment, Rs.49,144/- towards foreign bank charges and Rs.76,386/- towards of avoidable excess expenditure to the Complainant.
 

2) In facts of the case in a nut shell are as follows –

        The Complainant is dealing in import of Petroleum products. In 2002 the Complainant requested the Central Bank of India on 05/11/2002 for opening Letter of Credit of 60 days against 100 % margin money in favour of M/s.Alco Shipping Service for import furnace oil from Dubai (hereinafter the Central Bank of India and M/s.Alco Shipping Service for the sake of brevity and convenience shall be referred as to Opposite Party and the beneficiary). It is the case of the Complainant that the Opposite Party Bank issued the said L.C. in favour of the beneficiary and advised the Mashraq Bank with certain stipulation. However, the Mashraq Bank/Beneficiary at Dubai requested for amendment. The Complainant alleges that the Opposite Party despite bringing the discrepancy regarding the various documents submitted to the Opposite Party and also the fraud exercised upon the Opposite Party transferred the funds to the beneficiary and thereby causing loss to the Complainant with regard to the foreign exchange due to the bad quality and short supply of material.
 

3) Pursuant to issuance of notice the Opposite Party appeared and filed their written statement denying all the allegations made against them in the complaint. It is the contention of the Opposite Party that the complaint is barred by limitation and that the cause of action as pleaded in the complaint accrued on 30/11/2002 when the Opposite Party Bank expressly denied the Complainant’s demand/claim not to relieve the payment covered under the subject letter of credit. It further contended by the Opposite Party Bank that the Complainant has suppressed material facts from this Forum like the Complainant has filed a suit in the City Civil Court at Mumbai and the Hon’ble City Civil Court vide its order dated 5/12/2002 restrained the Opposite Party Bank from releasing the payment under letter of credit. Aggrieved by the said order the Opposite Party Bank filed an appeal being no.19/2003. The Hon’ble High Court vide its order dated 10/01/2003 vacated the said injunction granted by the City Civil Court. It is further contended by the Opposite Party that the Complainant on 16/01/2003 filed a substantive suit no.1316/2003 in the Hon’ble High Court seeking alleged compensation from the beneficiary of the subject letter of credit and the Opposite Party Bank. The ad-interim relief sought by the Complainant was rejected by the Hon’ble High Court vide its order dated 17/01/2003 and the Complainant withdraw the said suit on 24/01/2003. Thereafter the Complainant also filed a complaint being no.196/2003-2004 before the Banking Ombudsman Maharashtra and Goa. The Ombudsman vide its order dated 29/11/2005 rejected the contentions raised by the Complainant. Raising the above pleas the Opposite Party Bank said that they have not colluded with the beneficiary and the foreign bank and that the payment was made as per the letter of credit documents and that the Hon’ble High Court has recorded a finding that no case of fraud was even pleaded by the Complainant in the City Civil Court proceedings. Therefore, the Opposite Party Bank denied any deficiency of service as alleged against them and prayed for dismissal for the same with cost.
 

4) We perused the complaint, written statement, rejoinder, affidavit in evidence filed by the both the parties, written arguments filed by both the parties and all the other documents filed by both the parties. So also heard the Chairman of the Complainant Company and the Ld.Advocate for Opposite Party Bank at length and considered all the rival contentions raised by both the parties. Our observations, reasons and findings are as follows –
 

The first and foremost question which arises for our consideration is whether the Complainant is a consumer within the meaning of section 2(1)(d)(ii) of the Consumer Protection Act, 1986 ?

It is pertinent to note that the definition of the term consumer u/s.2(1)(d) has been amended in the year 2002 and w.e.f. 15/03/2003 any person who obtains goods for resale or for commercial purpose or avails any services for commercial purpose is excluded from the the definition of the term consumer under the Consumer Protection Act, 1986

       (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 of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or
 

       (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 persons 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.]
 

      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.
 

5) It is clearly reflected from the averments in the complaint and so also documentary evidence produced on record that the Complainant was running a business. Further it is also pertinent to note that not a single averment is made in the complaint regarding availing of services for doing business for his livelihood by means of self employment. The Complainant contended that he was doing this business for earning his livelihood but when we queried him regarding the turnover of his company during at the relevant period when the cause of action accrued he said it was 8-10 crores at the relevant time. Bearing all this in mind we are of well considered view that the Complainant was doing business of import as per his own saying in the complaint and had therefore, hired the services of the Opposite Party Bank for commercial purpose and therefore will not be a consumer within the meaning of section 2(1)(d)(ii) as reproduced above after the amendment of the Consumer Protection Act, 1986. In our view therefore, it is not necessary to go into the other contentions raised by the Complainant as the complaint is not maintainable on this count itself. However, we make it clear that the time spent before us prosecuting this complaint shall not come in way of the Complainant for the purpose of limitation and the Complainant is at a liberty to file appropriate proceedings before the appropriate Forum. Hence, the following order –

 

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