Per Shri P.N. Kashalkar, Hon’ble Presiding Judicial Member
Heard Mr.Atul Tungare, Advocate for the complainant and Mr.Ashutosh Marathe, Advocate for opponent on the point of admission of the complaint.
2. The complaint has been filed by Aatish Industries and Mr.Atish Praful Mehta has been impleaded as complainant No.2. Complainant No.1 being partnership firm, complainant No.2 is cited as Managing Partner. The complainants asserted that they are carrying on business as exporter of Psyllium Husk, Spices Guar Gum and like other agricultural products. Opponent is the Bank and they had availed banking services of HDFC Bank. They had taken services of opponent as regards ascertaining creditworthiness of the bankers named by the consignees abroad. They pleaded that they undertook the export deal with the parties stationed in foreign countries with the advice of the opponent by ascertaining rating of Parties Bank and to pay to the opponent its service charges. The complainant further pleaded that buyers of the complainant’s goods stationed in foreign countries place orders with the complainant giving details of product required, quantity, quality, price, destination port, name of its bankers for collection and swift code of its bankers etc. After shipping the goods ordered by the buyers, complainant would approach banker and furnish details of the bankers of the consignees i.e. name of the bank, its swift code, branch number, etc. and sought advice of opponent/Bank as regard authentication of the particulars provided by the consignee. The opponent thereupon verifies the credentials of such bankers in foreign countries with reference to swift code provided by the complainant. After verifying the authenticity of the information provided by the complainants, opponent/Bank used to advise complainant either by confirming the particulars or rejecting the same. On the basis of advice received from the opponent/Bank, the complainant would ship the goods for being exported and deliver one set of documents to the opponent/Bank containing export consignment with the instructions to deliver such documents to the bankers named by the consignee on “cash against delivery” basis. In this process, in respect of some consignments, the opponent/Bank committed deficiency in service and therefore, they sustained loss. As such they filed consumer complaint claiming amount of `39,32,259.31 being the price of exported goods with interest @ 21% p.a. from the date of complaint till the date of payment. They also claimed cost of `2,00,637/- incurred by them for tracing the wrongful delivery of the documents in respect of exported goods made by the opponent. They further claimed from opponent `2,50,000/- by way of damages for causing mental agony, anxiety and harassment to the complainants for deficiency in service.
3. Opponent/Bank filed reply opposing admission of the complaint. According to the opponent/Bank, complainant is not a consumer and they are is in the export business as per their own showing in the opening paras of the complaint. No where in the pleadings or in the complaint, they have mentioned that they are running this Aatish Industries for earning livelihood by way of self employment. Hence, opponent/Bank submitted that the consumer complaint is in respect of commercial transaction and they are not covered within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 and on this count complaint should not be admitted. They further pleaded that the complainant/Company is having huge business. They are exporting agricultural products and their bank statement shows that cumulative credit of `40,23,72,658/- to the account maintained with the opponent/Bank. Therefore, opponent/Bank contended that they are profit earning firm and all these transactions are pertaining to commercial transactions the firm had undertaken with foreign buyers. Therefore, consumer complaint as filed by them must be rejected at the stage of admission itself.
4. We are finding that there is substance in the objection taken to the admission by the opponent/bank. Advocate Mr.Ashutosh Marathe rightly contended that the business of complainant is export business and the deficiency in service alleged on the part of opponent/Bank is pertaining to their export business. It is surely a commercial activity and for commercial purpose, they are in the business of export. The firm is carrying on their business and not the individual person by way of self employment for earning his livelihood. Advocate Mr.Marathe specifically took us through the pleadings of the complainant, no where the complainant has asserted that they were engaged in the business as exporters for the purpose of earning livelihood by way of self employment on the part of complainant No.2-Mr.Atish Praful Mehta who is Managing Partner of complainant No.1-firm. In this view of the matter, the objection taken to the maintainability of the complaint by opponent/HDFC Bank is appearing to be sustainable in law. The complainant cannot be said to be consumers within meaning of Section 2(1)(d) of Consumer Protection Act, 1986. In as much as, taking definition as a whole, we are not finding any pleadings to hold that complainants can take benefits of explanation appended to Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. The explanation clearly laid down that – “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.” This wording or pleading to this aspect is silent if we peruse whole of the complaint filed by the complainants. So, in clause 2(1)(d)(ii) of the Consumer Protection Act, 1986, it has been clearly laid down that the consumer would not include a person who obtained goods for resale or for any commercial purpose or who hires or avails of services for consideration for any commercial purposes. So, in our considered view, the complaint as filed by the complainants is not maintainable in law since the complainants cannot be said to be consumers within meaning of Section 2(1)(d)(ii) of the Consumer Protection Act, 1986. They are completely hit by the fact that they had availed of services of the opponent/Bank for commercial purpose and no where they had mentioned in the complaint that they were engaged in the export business for earning livelihood by means of self-employment. In these circumstances, at the stage of admission itself, we are inclined to reject the complaint and hence, pass the following order :-
-: ORDER :-
1. Complaint stands rejected in view of definition of Section 2(1)(d) of Consumer Protection Act, 1986.
2. No order as to costs.
3. Copies of the order be furnished to the parties.
Pronounced
Dated 17th September 2012.
