(Per Mr.P.N.Kashakar, Hon’ble Presiding Judicial Member)

(1)               The complainant company has filed this complaint against H.D.F.C. Bank alleging deficiency in service.  The complainant company is a private limited company registered under the Companies Act, 1956 and opponent is banking company under the Banking Regulation Act and having its branch office at Nariman Point, Mumbai 400 021.  According to the complainant, they are dealing in shares of various companies being in regular business of the complainants company.  During the course of business of the complainant company, the complainant had hired the service of the opponent being in banking business and also being one of the reputed bank.  The complainant pleaded that they had deposited in the fixed deposit with the opponent a sum of `25,69,000/- with clear understanding that as and when the complainant required overdraft facility the same will be made available to the complainant to the extent of the amounts so overdrawn from the complainant’s current account.  According to the complainant, they had applied for overdraft facility in respect of Current A/c. No.0400119007 against the said fixed deposit deposited with the opponent.  Then, in July 2000, they had applied for resetting of overdraft facility against fixed deposit.  The opponent failed and neglected to honour the cheques issued by the complainant and this was brought to opponent’s notice by the complainant and thereupon the opponent by letter dated 14/08/2000 admitted having made the mistake of not honouring the cheques issued by complainant and tendered apology.  The said letter is at Exhibit ‘A’.   The complainant pleaded that the complainant continuously operated accounts and also continued to keep amounts in fixed deposit with opponent.  The complainant pleaded that the opponent once again committed such an error and has exposed complainants to embarrassments.  The complainant on or before about by letter dated  05/02/2004 had informed the opponent to reset the overdraft facility to their current account and also pointed out the fixed deposit worth `25,69,585/- is with the opponent and further in anticipation that opponent will not once again commit any error.  The complainant requested to reset the overdraft facility by sending letter dated 04/08/2000.  The complainant issued various cheques in favour of third parties, however the complainant learnt that the opponent had dishonoured all the 20 cheques of various amounts issued on 01/03/2004 of various denominations were dishonoured by H.D.F.C. Bank.  Those were the cheques issued in favour of various parties by way of investment in shares, since he complainant is trading in shares.  The complainant pleaded that the opponent dishonoured the cheques, he could not earn handsome profit, which profit by the conduct of opponent has been lost.  The complainant pleaded that because of dishonour of cheques issued by the complainant in favour of third parties, the complainant company suffered loss of `14,41,000/- and therefore the complainant sent advocate’s notice dated 24/08/2004 and called upon the H.D.F.C.Bank to pay a sum of  `14,41,000/- with interest @ 24% p.a. and also the sum of `3,000/- as bank charges and damages.  The notice was received by the opponent but it failed to give reply.  Hence, the complainant filed the consumer complaint claiming an amount of `17,00,359.45 and also `50,00,000/- as damages and also claimed `50,000/- by way of legal charges.  The complainant further claimed an amount of `15,00,000/- for physical torture suffered by the complainant.  He filed his own affidavit and documents in support of the claim. 

(2)               The opponent filed written version and pleaded that the complaint filed by the complainant is totally false and frivolous.  It is filed to cause harassment to the opponent.  The opponent pleaded that the complainant has given of various cheques issued by them for subscribing to initial public offers in favour of third parties and which had been dishonoured by the opponent.  The opponent bank had never sanctioned any overdraft facility to the complainant in April 2004 and same can be proved by the fact that the complainant have not relied upon and/or produced any documents including agreement and/or other necessary security documents executed by them in favour of the opponent for the issuance of overdraft facility in the year 2004.  In view of the fact that after 2000, no documents were executed by the complainant in respect of overdraft facility.  The opponent cannot be held responsible for dishonouring the cheques issued by the complainant in favour of third party.  The bank pleaded that the complainant is not entitled to make multiple application for allotment/purchase of shares and therefore his allegation that he would have been earned handsome profit is meaningless.  According to the bank, the complainant would have suffered a loss of `56,000/- only as per the working calculation attached at Exhibit ‘C’ to the written statement.  The opponent, therefore, requested that the complaint should be dismissed with costs.

(3)               We heard submissions of Mr.Balubhai Sardharam, authorised representative for the complainant and Adv.Satish Shetye for the opponent bank. 

(4)               Following points arise for our determination, the points and their finding are as under:-

(A)              It is argued by the counsel for the HDFC bank that the present complaint as filed by the complainant company is not tenable under law i.e. under Consumer Protection Act, 1986, though the complainant company is alleging about not giving overdraft facility to the complainant company for its business,  He relied upon Sec.2(1)(d) of the Consumer Protection Act, 1986 and argued that the services were hired by the complainant were for commercial purpose, as such the complainant cannot be said to be consumer within the meaning of Sec.2(1)(d) of Consumer Protection Act, 1986.  Referring to amendment effected from 15/03/2006, such persons including company could file complaint if there is deficiency in service by party even in any commercial purpose before amendment.  But after the amendment inserted in the Act 62of 2002 w.e.f. 15/03/2003, the provision has been clearly made that the person who is alleging deficiency in service cannot file consumer complaint, if he has hired or availed of services for commercial purpose.  An explanation is carved in respect of this provision to the effect that if person bought goods or availed of services only for the purpose of earning likelihood by means of self-employment, such person though engaged in any commercial purpose can still file consumer complaint.  In the instant case, admittedly the complainant has alleged deficiency in services against HDFC bank in respect of non-granting overdraft facility for the year 2004.  The case of the complainant company is that it is primarily dealing with shares of various companies having regular business of the complainant company and during the course of business of complainant company, the complainant had hired services of the opponent being a banking business and by depositing `25,69,585/-in FDR with opponent, the complainant was enjoying overdraft facility to the extent of amounts so overdrawn from his current amount.  This pleading in the complaint leaves us in no doubt that complainant company is engaged in a business of dealing with shares of various companies.  So, the complainant company had availed of overdraft facility from HDFC bank for commercial purpose.  It is in regular business of buying and selling shares and for its business, it had opened current account with the HDFC bank and in its current account No.0400119007 from 1995, it had enjoyed overdraft facility right upto 2003 and then 05/02/2004, he had informed the opponent Bank to reset the overdraft facility for their current account and pointed out that deposit of `25,69,585/- already was with the opponent.  The complainant had given 20 cheques on 01/03/2004 for purchasing the shares of Bank of India, Power Trading Corporation of India, they were dishonoured and thereby the opponent bank committed deficiency in service.  So from the pleading itself, it is crystal clear that the complainant company was engaged in business of dealing with shares, it had opened current account with HDFC Bank, it had enjoyed overdraft facility and when overdraft facility was not given to the complainant company in 2004, 20 cheques issued by complainant company were dishonoured by the HDFC Bank, as such complainant company filed consumer complaint.  These facts themselves clearly establish that the complainant company is alleging deficiency in service in respect of the financial services denied by HDFC Bank which they were availing of for commercial purpose and this is clearly beyond the pale or ambit of Sec.2(1)(d) of Consumer Protection Act, 1986.  Under the circumstances, we are of the view that on this count alone, the complaint will have to be dismissed as not tenable in law.  Therefore, we record our finding for Point (A) in negative.  Therefore, we hold that the complainant company cannot file consumer complaint, since it was dealing in shares.

(B)              We are also of the view that even on merits, the complainant company has no case.  The complainant company may be enjoying overdraft facility right from 1995, but giving of overdraft facility is not part of services.  It is a matter of contract between the complainant company on one hand and HDFC Bank on other.  The complainant company was given on contractual terms overdraft facility for the current account on yearly basis.  Every year, overdraft facility is required to be renewed.  Renewal is required to be sent and opponent bank has to either accept or reject it, but unless it is accepted, rejection of the proposal has to be presumed.  The complainant company, no doubt, applied for renewal of overdraft facility by sending letter on 05/02/2004, but that letter was not acted upon by the bank and overdraft facility was not sanctioned to the complainant company.  It is a case of the complainant company that every year, the overdraft facility was renewed without any formal letter of acceptance.  In the year 2004, the complainant company wanted overdraft facility and without rejecting their proposal, the HDFC Bank in a hand handed manner dishonoured 20 cheques issued by the complainant company and prevented the complainant company from applying for shares of Bank of Maharashatra and Power Trading Corporation of India.  Overdraft facility to be given to any party by the bank is not a matter to be presumed.  Every year, it is duty of the complainant company to get overdraft facility sanctioned from the HDFC Bank by taking sanction letter from the bank.  If there is no sanction letter from the bank to their proposal to renew overdraft facility for particular year, one cannot presume acceptance by the bank of overdraft facility already enjoyed by the complainant company.  No such inference cannot be drawn in favour of complainant company.  For renewal of overdraft facility, every year complainant company ought to have taken sanction letter from the HDFC Bank.  If there is no such sanction for overdraft facility by written letter to that effect sent by the bank to the complainant company, then we will have to hold that there has no overdraft facility granted to the complainant company for the year 2004-05.

                   It was tried to be contended by the complainant’s director who argued the case personally that in the year 2002, the bank had committed mistake by dishonouring some cheques, but opponent bank sent apology letter and requested to continue with the current account with it and they assured that no such default shall be committed by the bank henceforth.  But on the basis of 2002 letter of apology issued by the HDFC Bank to the complainant, we cannot presume that bank had sanctioned overdraft facility to the complainant company in the year 2004.  On the basis of letter issued by the complainant on 05/02/2004, we agree with the opponent bank that overdraft facility to the complainant company was not sanctioned for the year 2004.  Overdraft facility is sanctioned only after the party submits application to that effect and party also comply with other requirements of the bank for overdraft facility.  Mere sending a letter dated 05/02/2004 is not sufficient to hold that opponent had sanctioned overdraft facility in favour of complainant for the year 2004-05.  There is nothing on record produced by the complainant company to show that it was sanctioned overdraft facility by the HDFC Bank for the year 2004-05 acting upon complainant’s letter dated 02/02/2004.  So in the absence of proof to that effect there cannot be presumption that bank had already sanctioned overdraft facility simply because the complainant company had not withdrawn FDR of `25,69,585/- from the opponent bank.  In the circumstances, it must be held that HDFC Bank had not given overdraft facility to the complainant company as alleged by the complainant.  It is the case of the complainant that overdraft facility for the year 2002 was reset on 2 line confirmation by the bank vide letter dated 25/02/2002.  Such letter as was given on 25/02/2002 should have been issued by HDFC Bank, in 2004 to infer presumption that overdraft facility was granted to the complainant company.  In absence of any such letter of the HDFC Bank, we cannot hold that bank is guilty of deficiency in service in not resetting the overdraft facility in favour of the complainant company for the year 2004 acting upon complainant’s letter dated 05/02/2004 and therefore we are of considered view that the complainant has failed to prove that there was deficiency in service on the part of HDFC Bank in not granting overdraft facility in respect of dishonouring  20 cheques issued by the complainant company on 01/03/2004 to various parties, since HDFC Bank had not sanctioned overdraft facility to the complainant company acting its letter dated 05/02/2004 and therefore we record our finding for point (B) in negative. 

                   In view of the above discussion, we find that there is no substance in the complaint and such complaint is liable to be dismissed.  Hence, the order.

ORDER

1)       Complaint is dismissed.

2)       Parties to bear their own costs.

3)       Inform the parties accordingly.           

Pronounced on 25^th August, 2011.