Punjab

Ludhiana

CC/17/68

M/s CSD Polymers Pvt.Ltd - Complainant(s)

Versus

HDFC Bank Ltd - Opp.Party(s)

K.S.Gill Adv.

09 Feb 2017

ORDER

DISTRICT CONSUMER DISPUTES REDRESSAL FORUM, LUDHIANA.

 

Consumer Complaint No. 68 of 02.02.2017

Date of Decision            :   09.02.2017

M/s CSD Polymers Pvt. Ltd., Registered Office 201/100 Block J, BRS Nagar, Ludhiana Punjab through Daljit Singh Garewal one of the Directors.

….. Complainant

                                                         Versus

1.HDFC Bank Limited, Barewal Awana adjoining Shamsher Avenue Ferozepur Road, Ludhiana 141012, Punjab through its Branch Manager.

2.HDFC Bank, The Mall Road Civil Lines, Ludhiana through its Relationship Manager Sh.Vaneet Vohra.

3.HDFC Bank, Plot/Shed No.B-XV-168/1, adjoining Manju Cinema Hall, GT Road Miller Ganj, Ludhiana through its Manager Sh.Sulabh Jain.

4.HDFC Bank through its Managing Director Senapati Bapat Marg, Lower Parel (West) Mumbai 400013.

…Opposite parties

 

                   (Complaint U/s 12 of the Consumer Protection Act, 1986)

 

QUORUM:

SH.G.K.DHIR, PRESIDENT

SH.PARAM JIT SINGH BEWLI, MEMBER

 

COUNSEL FOR THE PARTIES:

For complainant                      :        Sh.Kamaljit Singh Gill, Advocate

PER G.K.DHIR, PRESIDENT

 

1.                Heard at the admission stage. As per the case of the complainant, the complainant is a private limited company having Sh.Daljit Singh Garewal and Navjot Singh Garewal as the directors. Complainant applied for credit facility     for setting up a new plant and machinery for the manufacture of plastic caps of plastic bottles and Ops, the financial institution, sanctioned the credit facility vide letter dated 26.8.2015. Sanctioned loan facility was to tune of Rs.11.50 crore. Ops insisted for release of token amount of credit facility to achieve their target for    the third quarter of 2015 and the same was released for one rupee in the complainants account by showing the disbursement in the same quarter of the year 2015. On persistence of Ops, an amount of Rs.2,62,200/- was deposited as processing fee through cheque No.590656 dated 27.8.2015 drawn on State Bank of Patiala from account No.65012158325. This amount was credited in the account of Ops. Complainant submitted email dated 9.12.2015 in response to the sanction letter. After a number of requests on the part of complainant, OP bank reduced commission on buyer’s credit from 1% to 0.75%. On 19.5.2016, fresh sanction letter was issued by Ops, in which, CC limit of Rs.200 lacs was sanctioned to be released before the arrival of the machinery and plant. Complainant vide email dated 9.6.2016, sought clarifications about 25% margin money, which was to be paid in the shape of FDR/RD, in case of buyer’s credit. Complainant through email dated 27.6.2016 intimated Ops as if they are continuously harassing him by not even picking up phone calls and  not replying their emails. Issues raised by the complainant were not resolved and one of non resolved issue is of rate of interest. Another amended sanction letter dated 3.2.2016 was received by the complainant on 16.8.2016, in which, rate of interest was reduced from 11.15% to 10.25%. It is claimed that electricity connection of 100 KV has already been installed and completion of the work of the construction of the building for installation of the manufacturing plant was started at the assurance of Ops. Ops delayed the financial assistance, due to which, agreement with SACMI company of Italy could not subsist and had to be cancelled. Ops returned the property documents to the complainant and also issued NOC, but refund of the deposited processing fee of Rs.2,62,200/- has not taken place. By pleading deficiency in service on the part of Ops in not providing the financial assistance/loan amount for the project to be set up, directions sought for refund of processing fee of Rs.2,62,200/- along with interest and compensation for financial loss of Rs.10 lac. Rs.34,000/- claimed as interest on principal amount of Rs.2,62,200/- and further interest @9% p.a. from the date of filing of complaint till the date of payment of amount sought.

2.                After going through the contents of whole of the complaint, it is made out that processing fee of Rs.2,62,200/- as per claim of the complainant was deposited for availing loan facility of Rs.11.50 crore for setting up a new plant and machinery for the manufacture of plastic caps of plastic bottles. It is also borne from para no.28 of the complaint that construction work started at the assurance of disbursal of loan amount of Rs.11.50 crore. Availing of electricity connection of 100 KV for such installation is also pleaded in para no.28 of the complaint. These facts along with objects of the establishment of the company mentioned in Memorandum of Association (copy of which enclosed with the complaint) reveals that virtually the processing fee deposited for availing loan for commercial purpose. Section C of the Memorandum of Association of complainant’s company provides that complainant’s company to carry on the business of broker, agent and manufacturer’s, dealers, importers, exporters, stockist or distributors or of advertisers or of raising, packing, grading, preparing for market eggs etc. Only that company will avail connection of 100 KV, who is to carry on the commercial activities. So, virtually huge loan of Rs.11.50 crore sought to be availed by the complainant from Ops for carrying on commercial activities for setting up a new plant for manufacture of plastic caps of plastic bottles. Copy of sanction letter dated 26.8.2015 annexed with the complaint reveals that cash credit limit for the company in question is of 100 lac, which availed by the complainant for the purpose of working capital use.  Further, this letter of HDFC Bank shows that the letter of Credit (capex LC) limit is of Rs.1050 lac which availed for the purchase of plant and machinery. Term loan of sub limit is of Rs.900 lac for the purpose of purchase of plant and machinery, whereas, buyer’s credit limit is of Rs.1050 lac which is also for purchase of plant and machinery. Value of property of company in the shape of plot No.156, village Threeke, Nuli, Ludhiana mentioned as Rs.300 lac in this sanctioned letter of 26.8.2015. So, from the produced documents itself it is made out that purpose of availing loan in question was to augment the business of company. Processing fee was deposited for availing loan for commercial purpose. No plea taken in the complaint at all for showing that loan was sought to be availed for earning livelihood. In view of transaction of loan entered into for aggrandizing the commercial activity, complainant is not a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986.

3.                Definition of Section 2(d) of the Consumer Protection Act, 1986 stood amended by amendment Act 62 of 2002 w.e.f.15.3.2002 by adding the words “ but does not include a person who avails such services for any commercial purpose” in the definition of consumer. So, in para no.25 of judgment titled as M/s.Economic Transport Organisation vs. M/s.Charan Spinning Mills(P) Limited-2010(1)CPJ-4(S.C.), it has been specifically held by the Hon’ble Supreme Court of India that if after the amendment, services of the carrier availed for any commercial purpose, then the person availing services will not be a consumer and consumer complaint will not be maintainable. However, the amendment will not apply to the complaints filed before amendment is also laid down in para no.25 of the above cited judgment of Hon’ble Supreme Court of India. Law laid down by the Hon’ble Supreme Court of India is the law of land in view of Article 141 of the Constitution of India. Any law contrary to the law laid down by the Hon’ble Supreme Court of India as such will be a bad law.

4.                Even as per law laid down in case titled as The Branch Manager, Punjab National Bank vs. M/s Bhaskar Textile-2015(1)CLT-89(N.C.), if complainant sends the goods sold by them to another firm through transporter and papers sent through OP firm and bankers required to collect the payment before releasing the bilti to the firm, then the services of OPs virtually availed by the complainant in connection with commercial purposes i.e. in course of business transaction, due to which, consumer complaint will not be maintainable. Ratio of this case is applicable in all respect to the facts of the present case in view of the above discussion and as such, consumer complaint is not maintainable.

5.                Even in case of Birla Technologies Limited vs. Neutral Glass and Allied Industries Limited-(2011)1-Supreme Court Cases-525, it has been held that in case, deficiency in service is in respect of the goods purchased for commercial purposes, then complaint under the Act is not maintainable because of availing of services for commercial purposes, owing to which, the customer concerned stands excluded from the purview of Consumer Protection Act, 1986.

6.                In case, the services of installation of the lift for commercial purpose got, even then Consumer Fora has no jurisdiction to entertain and try the complaint as per law laid down in case of Nikita Cares vs. Surya Palace IV(2015)CPJ-405(N.C.). Likewise, in case, a car is purchased by the company for the Director not exclusively for the purpose of earning livelihood by means of self employment, but for commercial purposes, then Consumer Fora will be having no jurisdiction to entertain the consumer complaint is the proposition of law laid down in case of  Pharos Solution Pvt. Ltd. and others vs.  – Tata Motors Ltd., Bombay House-2015(IV)CLT-265(N.C.). If a software is purchased by a private limited company and the said software used by the Managing Director for running business without mentioning that the same was used for earning livelihood, then consumer complaint will not be maintainable. This in fact is the law laid down in case of Lords Wear Pvt. Ltd. vs. Rance Computer Pvt. Ltd.-I(2014)CPJ-332(N.C.). So, plethora of precedents leans in favour of holding that if services availed for commercial purpose, then customer concerned will not be a consumer.

7.                As per law laid down in case titled as M/s Agro Food vs. Punjab State Power Corporation Limited and others-2014(2)CLT-215(Punjab State Consumer Disputes Redressal Commission, Chandigarh), in case appellant holds electric connection having sanction load of 244.872 KV, then inference is obvious that said connection availed for carrying on large scale industrial concern, due to which, the concern cannot be held to be run for earning livelihood or for self employment. Rather, in view of availing of electric connection having sanction load of 244.782 KV, the industrial unit concern will be inferred to be run for earning huge profit, due to which, the concerned will not be a consumer within the meaning of Section 2(d) of the Consumer Protection Act, 1986. Ratio of this case is fully applicable to the facts of the present case, particularly when turnover of the complainant company is in crores and memorandum of association provides the objects of     the company to be that of running of business alone. Rather, in case of Pharos Solution Pvt. Ltd. and others vs.  – Tata Motors Ltd., Bombay House-(Supra), it has been specifically held that in case, the company allowed to save the court fee,   then very purpose of ordinary consumer as defined by the Act shall stand defeated, due to which, in the event of purchase of car exclusively for the director of the company, the consumer complaint is not maintainable. Complaint before us also filed for saving the court fee because in case, processing charges recovered illegally, then remedy available with the complainant is to approach the Civil Court and not this Forum, particularly when complainant due to availing of loan in question for commercial purpose exclusively, does not fall within the definition of consumer.

8.                Sequel to the above discussion, this complaint being not maintainable, dismissed at admission stage itself with the observation that complainant will be at liberty to avail any other remedy as is available to him as per law. Copies of order be supplied to the complainant free of costs as per rules. 

9.                File be indexed and consigned to record room.

 

                   (Param Jit Singh Bewli)                         (G.K. Dhir)

          Member                                          President

Announced in Open Forum

Dated:09.02.2017

Gurpreet Sharma.