MS. NIPUR CHANDNA, MEMBER

ORDER

10.07.2024

1.       The complainant has filed the present complaint alleging deficiency in service on the part of OPs. The complainant is the proprietor of M/s S.K. Construction Company. Due to business operations the complainant closed the cash credit account with OP1 and started to avail the cash credit as well as bank guarantee facility from OP2 w.e.f. 03.12.2018 to 19.08.2021. Due to sudden moratorium of banking operation of OP2 the complainant suffered big banking and financial struggle to make the payment on daily basis and as such he shifted the banking facility from OP2 to OP1. On the request of the complainant OP1 sanctioned the credit limit of Rs. 2 crore and bank guarantee of Rs. 5 crore and agreed to take over the aforesaid facilities from OP2. OP1 charged processing fee of Rs. 3,43,595.70/- for providing the aforesaid facility.

2.       The OP2 prepared the demand draft of Rs. 1.5 crore on 19.03.2020 for forwarding to OP2 but due to Corona Pandemic the OP2 was unable to accept the same and finally the demand draft has been cancelled on 25.06.2020. The OP1 charged and deducted the bank interest of Rs. 5,09,812/- for the period from 19.03.2020 to 03.07.2020 from the current account  of the complainant. It is further alleged that  the demand draft of Rs. 1.5 crore had not been credited in the bank account of OP2 till 26.06.2020 but OP1 arbitrarily charged the interest on it and on the request of the complainant OP1 refunded Rs. 3,38,005/- but arbitrarily deducted Rs. 1,71,807/-.  It is further alleged by the complainant that in pursuant to the sanctioned letter dated 27.01.2021 OP1 commence the cash credit limit and bank guarantee facility after crediting the demand draft of Rs. 2 crore to the account of OP2 on 19.08.2021. Despite receiving the payment OP2 failed to release the original title documents of the property mortgage as well as NOC  and as such OP1 did not allow the bank guarantee facility as per sanctioned letter dated 27.01.2021 even after repeated reminder. In a compelling situation the complainant was forced to obtain two bank guarantee of Rs. 13,24,269.55/- each on 11.01.2022 from ICICI Bank. It is further alleged by the complainant that the OP1 blocked the OD facility in the CC account of the complainant on 16.01.2022 resulting in the huge financial loss to him. It is alleged by the complainant that due to deficiency in service on the part of both OP1 & 2 he has to suffer huge financial loss and burden of interest as well as other charges which needs to be refunded by both the OP1 & 2 along with interest as well as with the compensation, hence, this complaint.

3.       The present complaint case is on admission stage. We have heard ld. Counsel for complainant Sh. J.S Rawat on admission and have perused the record.

4.       The only question that falls for our consideration while admitting the present complaint is whether the Complainant is a consumer as defined under the Consumer Protection Act, 2019.

5.       To resolve this issue, we deem it appropriate to refer to Section 2 (7) (a) of Consumer Protection Act, 2019:

“Section 2(7)(a) 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 for any commercial purpose. Explanation – For the purpose 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;

6.       As per the aforesaid provision of the Consumer Protection Act, 2019, it is clear that “commercial purpose” does not include services availed exclusively for the purposes of earning livelihood by means of self-employment.

7.       In the present case, the complainant is the proprietor of M/s S.K. Construction Co. The complainant firm applied for cash credit limit with OP1 & 2 Bank. Subsequently initially OP1 Bank granted the cash credit as well as bank guarantee facility for a sum of Rs. 1.5 Crore and 5.5 Crore respectively w.e.f. 03.12.2018 to 19.08.2021. In the month of March, 2020 OP2 sanctioned the credit limit of Rs. 2 Crore and bank guarantee of Rs. 5 Crore to the complainant and thereafter as OP1 blocked the OD facility in the CC account of the complainant , the complainant was forced to obtain two bank guarantee of Rs. 13,24,269.55/- each on 11.01.2022 from ICICI Bank. Admittedly, complainant has availed the services of the Opposite Parties for a commercial purpose.

8.       It is pertinent to mention that the transactions in the instant case relate to profit-making of the Company to be construed as ‘commercial’…”, as the complainant has availed the cash credit facility and Bank Guarantee from OP1 & 2 Bank for running its business, and no where the complainant has pleaded in the entire complaint that he availed the services of OP1 & 2 Bank for self employment or for earning livelihood, the services availed is for commercial purpose.

9.       In view of the above discussion, we are of the considered opinion that the complainant has availed the services of OP for commercial purpose and as such he does not fall under the definition of consumer. The present complaint is therefore not maintainable before this Commission, hence, dismissed.

          File be consigned to record room.

10.     Copy of the order be given to the parties free of cost as per order dated 04.04.2022 of Hon’ble State Commission after receiving the application from the parties in the registry. Order be uploaded on www.confonet.nic.in.

Announced in open Commission on   10.07.2024.

          SANJAY KUMAR                 NIPUR CHANDNA                           RAJESH

            PRESIDENT                                MEMBER                                  MEMBER