Complaint Under Section 35 of Consumer Protection Act, 2019.
QUORUM:
SH. SANJEEV BATRA, PRESIDENT
MS. MONIKA BHAGAT, MEMBER
COUNSEL FOR THE PARTIES:
For complainants : Sh. G.S. Pahwa, Advocate.
For OP : Exparte.
ORDER
PER SANJEEV BATRA, PRESIDENT
1. Briefly stated, the facts of the case are that complainant No.2 is the proprietor of complainant No.1, who is maintaining bank account No.132025600002505 with OP bank under trade name of complainant No.1. The said account was earlier opened with Bank of Punjab which was merged with Centurion Bank of Punjab and thereafter, merged with HDFC Bank. The complainants have been maintaining the said account for more than 27 years and the average balance in the account was between Rs.30 lac to Rs.40 lac from the year 2017 to March 2020 due to which the OP bank has given imperia status to the complainant which supposed to provide the complainant with rich banking experience, privileges, great discounts and personalized services. But the bank did not provide any services despite enjoying the huge balance always remained in the account of the complainant as the OP bank remained beneficiary with the huge deposit in the account of the complainant.
The complainant stated that they utilized the said amount for construction of godown for gas agency and after withdrawal of the huge amounts, the bank started levying cash deposit charges on the said current account, the detail of which is given as under:-
- February, 2021 Rs.8719/-
- March 2021 Rs.7746/-
- April, 2021 Rs.13,006/-
- May 2021, Rs.6160/-
- June, 2021 RS.15,330/-
- Sept 2021 Rs.7854/-
- October 2021, Rs.11,045/-
- Nov 2021 Rs.13,792/-
- Dec 2021 Rs.14,362/-
- Jan, 2022 Rs.18,146/-
- Feb 2022 Rs.14,202/-
According to the complainants, the said levy of cash deposit charges is without any intimation to them and the bank deducted the amount arbitrarily without any reason knowing fully well that the complainant is their customer for more than 27 years and always had a huge balance in the said account. The complainants went Emails to the different authorities of the OP with regard to cash deposit charges and on the request of the complainants, out of total amount of Rs.1,36,607/-, and amount of Rs.39,195/- was reversed on four different dates i.e. Rs.7575/- on 16.03.2021, Rs.11,022/- on 22.04.2021, Rs.15,378/- on 22.06.2022 and Rs.5220/- on 21.10.2022 but they failed to refund balance sum of Rs.97,412/-. The complainants further stated that as the OP realized its mistake and reversed the said amount but failed to make reversal of balance amount. The complainant made request to senior officers and approached Banking Ombudsman. The Banking Ombudsman rejected the complaint of the complainant without considering their genuine request and only on the information of the bank which informed that as a service gesture, the bank had reversed the charges of Rs.15,338/- in June 2022 and Rs.5220/- in October 2022 and showed their inability to reverse the other charges. The complainants further stated that due to withholding of remaining amounts by the OP, they had to close the account. The complainants claimed to have suffered mental pain, agony and loss to reputation and financial loss due to deficiency in service on the part of the OP for which they are entitled to compensation. In the end, the complainants prayed for issuing directions to the OP to reverse/refund the balance amount of Rs.97,412/- of deposit charges deducted during the period 08.01.2021 to 28.05.2022 and to pay compensation of Rs.1,00,000/- and litigation expenses of Rs.30,000/-.
2. Upon notice, none appeared on behalf of OP despite service and as such, OP was proceeded against exparte vide order dated 03.04.2023.
3. In exparte evidence, complainant No.2 Sh. Ravinder Pal Singh, Pannu, Proprietor of complainant No.1 tendered his affidavit as Ex. CA and reiterated the averments of the complaint. The complainants also placed on record documents i.e. Ex. C1 is the copy of account statement from 01.04.2019 to 31.03.2020, Ex. C2 is the copy of detail of cash deposit charges, Ex. C3 is the copy of Emails, Ex. C4 is the copy of closure intimation of complaint, Ex. C5 is the copy of cheque, Ex. C6 is the copy of information regarding imperia account HDFC holder meaning and closed the evidence.
4. We have heard exparte arguments of the counsel for the complainants and also gone through the complaint, affidavit and annexed documents produced on record by the complainants.
5. Before adverting to the merits of the case, it is desirable to adjudicate whether the complainants are consumer within meaning of Section 2(7) of the Consumer Protection Act, 2019 or not. The bare provision reads as under:-
“Consumer” means any person who:
(i) of the Consumer Protection Act, 2019 the consumer means a person who 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 service for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and include any beneficiary of such service 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 service for any commercial purpose.”
Explanation. For the purposes of this clause,
(a) the expression "commercial purpose " does not include use by a person of goods bought and used by him exclusively for the purpose of earning his livelihood, by means of self-employment;
(b) the expressions "buys any goods " and "hires or avails any services " includes offline or online transactions through electronic means or by teleshopping or direct selling or multi-level marketing;
Although statutory definition of “consumer” is wide and is having efficacious coverage but each case has to be determined on the basis of peculiar facts and circumstances. In Cheema Engineering Services Vs Rajan Singh (1997) 1 SCC 131 and in Sanjay Bansal Vs Vipul Ltd. And others 2019(15) SCC 568 whereby the Hon’ble Supreme Court of India held the word “self employment” and “commercial purpose” are matter of fact and these to be decided on the basis of evidence.
6. At the very outset, it is observed that the complainants did not plead and prove that complainant No.1 is running the business in the trace name of complainant No.1 exclusively for the purpose of earning his livelihood by means of self employment. Perusal of account statement Ex. C1 shows that complainant No.1 M/s. Pannu Gas Service has been maintaining a current account bearing No.132025600002505 with OP bank since 10.09.2007. The said account was having Imperia Premium Banking Regular status. Further account statement Ex. C1 shows that huge transactions, even in lacs, were made through this account, which shows that the dealings of M/s. Pannu Gas Service with the OP were purely business to business relationship and banking facilities were availed to augment profit generation activity. The Hon’ble Supreme Court in its judgment Shrikant G. Mantri Vs Punjab National Bank in Civil Appeal No.11397 of 2016 vide its decision dated 22.02.2022 made the following observations:-
“33. It could thus be seen that this Court has clearly held that the idea of enacting the said Act was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. It has been held that the entire Act revolves round the consumer and is designed to protect his interest. It provides for “business to consumer” disputes and not for “business to business” disputes. It has been held that forums/commissions provided by the said Act are not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.
47. In the present case, the Commission has come to a finding that the appellant had opened an account with the respondent Bank, took overdraft facility to expand his business profits, and subsequently from time to time the overdraft facility was enhanced so as to further expand his business and increase his profits. The relations between the appellant and the respondent is purely “business to business” relationship. As such, the transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self employment”. If the interpretation as sought to be placed by the appellant is to be accepted, then the ‘business to business’ disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of providing speedy and simple redressal to consumer disputes.”
So applying the ratio of above cited case, the complainant is not a consumer of the opposite parties within purview of Section 2(7) of the Consumer Protection Act and as such, the complaint is liable to be dismissed.
7. As a result of above discussion, the complaint fails and the same is hereby dismissed. However, there shall be no order as to costs. Copies of order be supplied to parties free of costs as per rules. File be indexed and consigned to record room.
8. Due to huge pendency of cases, the complaint could not be decided within statutory period.
(Monika Bhagat) (Sanjeev Batra) Member President
Announced in Open Commission.
Dated:25.11.2024.
Gobind Ram.
