JUSTICE V.K. JAIN, PRESIDING MEMBER

           The complainant, which was initially registered as a society under the provisions of Societies Registration Act, 1860, was later registered as a Public Charitable Trust under the provisions of the Bombay Public Trusts Act, 1950 (now known as the Maharashtra Public Trust Act) and the rules made thereunder.  It is alleged that as a Public Charitable Trust, the complainant is required to invest their funds in instruments approved by the Office of Charity Commissioner and since instrument in fixed deposits of Nationalized and Scheduled Banks is one of the modes of investment specified in Section 11 (3) of the Income Tax Act, 1961 the complainant has been investing its funds in such fixed deposits.   The complainant claims to be a consumer of the opposite party banks and is aggrieved on account of the banks having allowed allegedly fraudulent over draft facilities against the fixed deposits made by it with the said banks.  The complainant is alleging defects / deficiencies in the service rendered to it by the said banks and is seeking return of the amount deposited with the banks along with interest and compensation. 

2.      The complaints have been resisted by the banks which have taken a preliminary objection that a Civil Court and not a Consumer Forum is the appropriate Forum for complaints of this nature involving complicated / disputed questions of facts which cannot be decided in summary proceedings, particularly when there are allegations of forgery and conspiracy.

3.      When this complaint came up for hearing on 24.1.2018, the learned counsel for the complainant sought an adjournment to make his submissions on the question as to whether in view of the decision of the Hon’ble Supreme Court in Pratibha Pratisthan & Ors. Vs. Manager, Canara Bank & Ors., Civil Appeal No. 3560 of 2008 which had been rendered on 07.3.2017, the complainant can be said to be a consumer and competent to institute a complaint under the Consumer Protection Act.  Vide subsequent order dated 12.2.2018, the complainant was directed to file an affidavit, disclosing therein as to whether it was maintaining a separate account in respect of the funds related to its activities as a Trust or it was maintaining a composite account comprising of funds related to its activities as a society as well as funds related to its activities as a Trust.  An affidavit of its Joint Secretary was filed by the complainant in compliance of the said order.  Thereafter, vide order dated 01.3.2018, the complainant was directed to file an affidavit stating therein as to whether it had been filing income tax return as a society since Financial Year 2014-2015 onwards or not.  Another affidavit was filed by the complainant in compliance of the said direction.

4.      When this matter came up for hearing on 10.9.2018, the learned counsel for the opposite party sought liberty to file an application for treating the issue as to whether the complainant can be said to be a consumer within the Consumer Protection Act or not, as a preliminary issue.  Thereupon, the learned senior counsel for the complainant stated on instructions that the complainant would have no objection to the aforesaid issue being treated and decided as a preliminary issue, even without the opposite party having to move an application for this purpose.  Hence, the arguments on the above referred preliminary issue have been heard.

5.      In Pratibha Pratisthan (supra), the Hon’ble Supreme Court considered the question as to whether a complaint can be filed by a Trust under the provisions of the Consumer Protection Act, 1986.  Answering the question in negative, the Hon’ble Supreme Court inter-alia observed and held as under:

          “2.     Section 2(c) of the Act provides for a complainant making a complaint, inter-alia for an unfair trade practice r a restrictive trade practice adopted by any trader or service provider; a complaint in respect of goods (brought by a complainant)suffering from one or more defects; a complaint of deficiency in services hired or availed of aby a complainant and so on.  A complainant is defined in Section 2(b) of the Act in the following words:

          b)      “complainant” means –

          (i)      a consumer; or

          (ii)      any voluntary consumer association registered under the Companies Act, 1956 (1 of 1956) or under any other law for the time being in force; or

1. the Central Government or any State Government; or

2. one or more consumers, where there are numerous

   consumers having the same interest;

3. in case of death of a consumer, his legal heir or

   representative; who or which makes a complaint;

3.      It is quite clear from the above definition of a complainant that it does not include a Trust.  But does a Trust come within the definition of a consumer?

          A consumer has been defined in Section 2(d) of the Act as follows:

          (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 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 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 of any commercial purpose;

          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;

4.      A reading of the definition of the words ‘complaint’, ‘complainant’ and ‘consumer’ makes it clear that a Trust cannot invoke the provisions of the Act in respect of any allegation on the basis of which a complaint could be made. To put this beyond any doubt, the word ‘person’ has also been defined in the Act and Section 2(m) thereof defines a person as follows:

          (m)    ‘person’ includes, -

          (i)      a firm whether registered or not;

          (ii)      a Hindu undivided family;

          (iii)     a co-operative society;

          (iv)    every other association of persons whether registered under the Societies Registration Act, 1860 (21 of 1860) or not; 

5.      On a plain and simple reading of all the above provisions of the Act it is clear that a Trust is not a person and therefore not a consumer.  Consequently, it cannot be a complainant and cannot file a consumer dispute under the provisions of the Act.

6.      In view of the above, we are of the opinion that the National Commission was quite right in holding that the complainant filed by the Appellant Trust was not maintainable”.

6.      In his affidavit dated 15.2.2018, the Joint Hony. Secretary of the complainant has inter-alia stated that the complainant was issued a certificate of registration under the Societies Registration Act, 1860 on 21.04.1932.  It is further stated in the said affidavit that thereafter, in exercise of the powers under Section 1(4) of the Bombay Public Trust Act, Government of Maharashtra made the provisions of the said Act applicable to the societies registered under the Societies Registration Act, 1860, with effect from 01.2.1961, subject to the provisions of Section 87 of the said Act.  It is further stated that the societies formed for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860 are liable to be registered under Bombay Public Trust Act, 1950 and the complainant therefore was required to register itself as a Public Charitable Trust.  It is therefore an admitted position that the complainant has also been registered as a Public Charitable Trust under the provisions of the Bombay Public Trust Act, 1950.

7.      In his affidavit dated 09.3.2018, Mr. Shankaran Ghosh, Secretary of the complainant inter-alia stated that he was filing copies of ITR-7 which is the income tax return of the complainant for the Assessment Year 2014-15 and 2015-16 and that the complainant has also obtained exemption under Section 11 and 12 of the Income Tax Act, 1961.  It is evident from the said affidavit and the documents annexed thereto that the complainant has been filing income tax return using form ITR-7.  In the column meant for disclosing the status of the assesse, the complainant is shown as “AOP (Trust)”.  During the course of arguments, it was not disputed before me that the complainant is not filing income tax return using the ITR form meant for societies simpliciter, which are not registered as Public Trust. 

8.      It is thus evident that though the complainant has not been deregistered as a society, it has got itself registered under the provisions of the Bombay Public Trust Act and the rules framed thereunder.  The term ‘consumer’ has been defined in Section 2(1)(d) of the Consumer Protection Act and means a person buying goods or hiring or availing services for a consideration.  Therefore, proceeding on the premise that the complainant functions in two capacities, one as a society registered under the Societies Registration Act and the second as a Public Trust registered under the provisions of the Bombay Public Trust Act, the question for consideration is as to whether the services of the banks were hired or availed by the complainant as a Trust or as a Society.  Though, as rightly contended by the learned senior counsel for the complainant, a Society being an association of persons is included in the definition of ‘person’ given in Section 2(1)(m) of the Consumer Protection Act,  it would not qualify as a ‘consumer’ within the meaning of Consumer Protection Act, if it is shown that it is also registered as a Public Trust and the services of the bank were hired or availed by it in its capacity as a Public Trust.

9.      In para 4(a) of the consumer complaint, the complainant has stated as under:

          “As a public charitable trust, the complainant is required to invest their funds in instruments approved by the office of the Charity Commissioner, and as specified in S.11(3) of the Income Tax Act, 1961 and investments in fixed deposits in public sector banks is one of the approved modes of investments. The complainant has been investing their funds in fixed deposits with various nationalized and scheduled banks, to safely maximize the returns on their funds”.

          It would thus be seen that the funds invested by the complainant were the funds available to it in its capacity as a Public Charitable Trust.  Therefore, it can hardly be disputed that the services of the banks were hired or availed by the complainant in its capacity as a Public Charitable Trust    registered under the Bombay Public Trust Act and not as a society, registered under the provisions of the Societies Registration Act, 1860.  Therefore, in view of the decision rendered by the Hon’ble Supreme Court in Pratibha Pratisthan (supra), the complainant, it being a Public Trust, cannot be said to be a consumer.

10.    It was submitted by the learned senior counsel for the complainant that the office of Charity Commissioner is required to maintain a Directory of Public Trusts and has divided them into six categories including a category comprising only the societies registered under the Societies Registration Act, 1860, which indicates difference between a Trust Simpliciter and a society additionally registered as a Trust.  The aforesaid segregation of Trusts by the Charity Commissioner, in my view is of no consequence since despite the said segregation a society registered as a Public Trust clothes itself with the character of a Trust, as far as its activities as a Trust are concerned. 

11.    It was also pointed out by the learned senior counsel for the complainant that while allocating Permanent Account Numbers to an assesse the Income Tax Department uses the character T as the fourth character of the PAN whereas the character A is used while allocating PAN Number to a society.  It is pointed out that PAN issued to the complainant is AAAAS6062R using the character A and not the character T as the fourth character of the PAN, which signifies that the complainant is an Association of a person and not a Trust.  I however, find no merit in the contention since in its income tax return itself, the complainant declared its status as AOP (Trust), meaning thereby that it was a Trust falling under the category of Association of persons.  Not only that, the complainant has also availed exemption available to a Trust under Section 11 and 12 of the Income Tax Act, 1961.  Therefore, there is no escape from the conclusion that despite being initially registered as a Society, the complainant is also a Trust and in view of the decision of the Hon’ble Supreme Court in Pratibha Pratisthan (supra), it cannot invoke the provisions of Consumer Protection Act where the services, subject matter of the consumer complaint were hired or availed as a Trust and not as a Society. 

12.    Both the parties relied upon the decision of the Bombay High Court in Shyamabai & Ors. Vs. Madan Mohan Mandir Sanstha [2010 (2) Mh. L.J., where one of the issues was whether in the absence of registration of a Public Trust, in addition, under the Societies Registration Act, the provisions of the said Act would apply to such a Public Trust.  It was held that so far as Public Trusts defined in the first part of the Section 2 (13) of the Bombay Public Trust Act is concerned, the provisions of the Societies Registration Act, 1860 are neither attracted nor have any applications and therefore, this is not the requirement of the said provision that the Public Trust should be registered under the provisions of the Societies Registration Act.  It was further held that a society formed for religious or charitable purposes or both and registered under the Societies Registration Act by itself will not get the status of Public Trust within the meaning of Section 2(13) unless it receives a certificate under Rule 8 of the Bombay Public Trust Rules, 1951.   This judgment, in my opinion, does not in any manner help the Commission in deciding as to whether the complainant can maintain a complaint under the provisions of Consumer Protection Act, as the complainant has received a certificate under Rule 8 of the aforesaid Rules.

13.    For the reasons stated hereinabove, I hold that in view of the decision of the Hon’ble Supreme Court in Pratibha Pratisthan (supra), the complainant cannot institute a consumer complaint as the services of the bank were hired or availed by it in its capacity as a Public Trust and not in its capacity as a Society registered under the provisions of the Societies Registration Act.  The complaints are consequently dismissed, with no order as to costs, with liberty to the complainant to avail such remedy other than a Consumer Complaint, as may be open to it in law for the redressal of its grievances.