Delhi

StateCommission

CC/468/2017

ARUN KUMAR GUPTA - Complainant(s)

Versus

CENTRAL BANK OF INDIA - Opp.Party(s)

SHALLU CHAWLA

10 Apr 2017

ORDER

IN THE STATE COMMISSION : DELHI

(Constituted under Section 9 of the Consumer Protection Act, 1986)

                                              Date of Arguments: 10.04.2017

     Date of Decision: 25.04.2017

Complaint No. 468/2017

 

In the matter of:

Shri Arun Kumar Gupta

Proprietor

M/s Akrish Print Pack

AT: B-15 (Second Floor)

Green Field Colony

Faridabad, Haryana                                                                                                        ……..Complainant

                                                            Versus

Central Bank of India

OKHIND

Okhla Industrial Estate

Okhla Industrial Area

272 Captain Gaur Marg

New Delhi-110020

Through its Chairman

Service through its Branch Manager                                                                       …Opposite Party

 

CORAM

 

Hon’ble Sh. O.P.Gupta, Member(Judicial)

Hon’ble Sh. Anil Srivastava, Member (Non-Judicial)

1.     Whether reporters of local newspaper be allowed to see the judgment?  Yes

2.      To be referred to the reporter or not? Yes

 

HON’BLE SHRI ANIL SRIVASTAVA

JUDGEMENT

          Shri  Anil Kumar Gupta, Proprietor has filed a complaint before this Commission against Central Bank of India, Okhla Industrial Estate, 272, Captain Gaur Marg, New Delhi-110020 hereinafter referred as complainant and opposite party respectively. The complainant had sought to avail the term loan , credit limit offered by the OP Bank against the charge of hypothecation on the machinery purchased for printing job. OP bank had obtained insurance cover for the purpose though the amount of the insurance done was not categorically indicated.  The insurance policy was insured in OP’s name as the insured person although premium/ charges thereof were debited to the account of the complainant.

2.      Thereafter heavy losses followed resulting in the bad debt of Rs. One crore suffered by the complainant and subsequently the account became bad.  The complainant was compelled to close down the business in April 2015. However there is nothing on record to show the date on which the business was infact closed.

3.  The complainant had requested OP to get the losses surveyed through the authorized officers of the insurance company and lodge insurance claim and adjust the proceeds/receipt of insurance claim towards its account under intimation to the complainant, which intimation and copy of insurance claim with the insurance policy/cover has not been received by the complainant till date, which indicates that OP has not lodged the insurance claim with the insurance company amounting to deficiency in service, the fact which came to the knowledge of the complainant only on 20.12.15.

4.      OP has been debiting the account of the complainant since inception with guarantee fee and paying the same to the guarantee corporation.  In view of the havoc and losses clamped on the complainant, the guarantee corporation was required to pay the Guarantee amount as per agreement but it appears that the OP has not submitted the claim for the same, despite the requests made.

5.      This according to the complainant, was an act by the opposite party  willful , deliberate , gross negligence to avoid its responsibility as service provider.

6.      OP had also filed an application before the Debt Recovery Tribunal Delhi for recovery of Rs. 35,37,779/-  which application as reported is still pending.

7.      The complainant has alleged that suffering caused to him is result of administrative deficiency or post-operative or condition environment oriented deficiency on the part of the OP for which the OP alone is  responsible and liable.  Legal notice served also looked no response. OP on the other hand is still claiming a huge amount even after adjusting the sale proceeds.  It is because of the facts and circumstances and the deficiencies of the Opposite Party that the complainant has suffered irreparable loss and accordingly prayed for the compensation as under:

i)            Compensation for the losses

on account of non-filing of claim

with guarantee corporation of India

under credit guarantee funds scheme                 Rs. 50,00,000/-

 

ii)          Compensation for the losses on account

             of non-filing of claim with insurance

             company                                                                    Rs. 30,00,000/-

 

iii)         Compensation for the mental Agony,

              harassment and litigation                                       Rs.   4,50,000/-

 

                                                              ___________________

                                                                       Rs. 84,50,000/-

 

 

8.      The complaint has been filed for the compensation,  as also costs of litigation and expenses as may be deemed fit and proper and finally the interest @ 2% p.m. from the date of complaint till actual realization.

 

9.      We have heard the Ld. Counsel and perused the records. In the first instance we find that the complainant is not a consumer owing to the fact that loan was procured for commercial purpose.  As per section 2 of the Consumer Act commercial transactions are outside the ambit of the Consumer Protection Act 1986.

 

Section 2 (1) (d) (i) of the Consumer Protection Act 1986 posits as under:-

“Consumer” means any person who—

 

i)        buys any goods for 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 iuse is made with the approval of such person, but {does not include a person who avails of obtains such goods for resale or for any commercial purpose;

ii)       {hires or avails of) any services for 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 or with the approval of the first mentioned person { but does not include a person who avails of such services for any commercial purpose}.  Keeping in view the provision of law and the facts of the case and relying on the judgements of the Hon’ble Apex Court and Hon’ble National Consumer Commission, the complainant is not a consumer within the meaning of section 2(Supra).  If that be the case the complainant is not entitled for the relief by this Commission and we hold accordingly.

 

10.    Besides we also note on perusal of the records in the matter that cause of action in the matter arose in Feb., 2014 but this complaint has been filed on 9^th April 2017.  This is barred by limitation.

 

11.    For this purpose reliance is placed on the provision of section 24(A) of the Consumer Protection Act which shows as under:

 

Limitation period:- (1) The District Forum, the State Commission or the National Commission shall not admit  a complaint unless it is filed within two years from the date on which the cause of action has arisen.

 

(2) Notwithstanding anything contained in sub-section (1), a complaint may be entertained after the period specified in sub-section (1), if the complainant satisfies the District Forum, the State Commission or the National Commission, as the case may be, that he had sufficient cause for not filing the complaint within such period:

          Provided that no such complaint shall be entertained unless the National Commission, the State Commission or the District Forum, as the case may be, records its reasons for condoning such delay.}

 

The Supreme Court of India in the matter of  Ram Lal and Ors v. Rewa Coalfields Ltd. 1961 (SLT Soft) 51 AIR 1962 Supreme Court 361  has  observed as under:-

 

          It is however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by Section 5.  If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay.  This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the inquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

 

Hon’ble Supreme Court in Anshul Aggarwal v. New Okhla Industrial Development Authority, IV (2011) CPJ 63 (SC), has laid down that:

“ It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer disputes will get defeated if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras.”

 

12.    Counsel for the complainant submitted that complainant came to know about the sale of plant and machinery by the OP on 17.03.16 and so limitation would start from the said date.  We do not agree.  The cause of action arose when the bank issued notice dated 31.12.13 and limitation started from the said date.

 

13.    Moreover,  there is no application for condonation of delay.

 

14.    Another hurdle in the way of the complainant is loan was taken for purchasing machinery in connection with his business. Such loan is outside the purview of Consumer Protection Act as per decision of National Commission in Volume II (2013) CPJ 56 titled as Tamil Nadu Housing Board Vs. N.Venketesan and Volume II (2014) CPJ 137 titled as Saurabh Gupta & Ors. Vs. Hasti Petro Chemicals and Shipping Ltd.

 

15.    There is another aspect involved in this case. The OP has already initiated proceedings before Debt Recovery Tribunal.  In view of the same the jurisdiction of consumer court is barred by SARFASI Act as per decision of National Commission in Shiv Shankar Lal Gupta vs. Kotak Mahindra Bank Vol. II (2013) CPJ 56.

 

16. For this reason also the case is not maintainable.

 

          We order accordingly.

 

         

 

(ANIL SRIVASTAVA)                                                                     (O.P.GUPTA)

MEMBER                                                                                          MEMBER(JUDICIAL)