For the Complainant : Smt.Joshi, Advocate
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Per :- Mr. J. L. Deshpande, President Place : Bandra
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Order regarding admission of the complaint:-
The Complainant is a Company registered under Indian Companies Act, 1956 and carries on business as a trader supplier and exporter of Designer Sarees and Dress Materials having various shops all over Mumbai and India. The Complainant had corporate account with the Opposite party –Bank. It is alleged of the Complainant that certain amount was unauthorizedly transferred by the Opposite party –Bank in favour of the One-M/s. Gourav Trading Company, Mumbai. Present complaint pertains to that transaction.
2 During the course of the hearing on admission, we expressed doubt about the maintainability of the complaint under Consumer Protection Act, 1986, on account of the fact that the allegations made in the complaint, prima-facie, pertains to commercial transaction. We have extensively heard learned advocate for the Complainant and she tried to convince us that the Complainant becomes “consumer” under Consumer Protection Act, 1986 and the complaint is maintainable. We have gone through various case laws relied upon learned advocate for the Complainant.
3 In paragraph no.1 of the complaint, the Complainant has made following averments regarding nature of the business conducted by the Complainant –Company.
“The Complainant is a Company registered under the Indian Companies Act, 1956 having its registered office at 207, Crystal Centre, Raheja Vihar, Powai, Mumbai- 400 072. The Complainant carries on business as a trader, supplier and exporter of Designer Sarees and dress materials having various shops all over Mumbai and India. The Complainant is enjoying immense reputation for last more than 10 years. The Complainants are filing the present complaint through their authorized officer Shri, Raheja Kumar Chaturvedi who is authorized vide board resolution, dated, 03.09.2011 to sign the complaint, applications, affidavits, to swear or affirm affidavit in replies, verify pleadings and generally all other documents connected with the present complaint, etc.”
4 In paragraph no.3 of the complaint, the Complainant has alleged that the Complainant –Company is having corporate account with the Opposite party no.1-Bank branch. This shows that the Complainant had availed services of the Opposite party no.1-Bank for the purpose of the running its business. The disputed transaction pertains to the said account with the Opposite party –Bank.
5 According to the provisions, contained in section-2(1)(d) of Consumer Protection Act, 1986, any person who avails services for any commercial purpose does not become a consumer. There is explanation which is in the form of the exception appended to section-2(1)(d) of the Consumer Protection Act, 1986, which reads as follows,
“Explanation – 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-employments”.
6 It is not the case of the Complainant that it is running the business exclusively for the purpose of the earning his livelihood. It could not be because the word “his” which appears in the explanation shows that it pertains to living person and not artificial person. In this context, we refer to Apex Court Judgment in the case of Cheema Engineering Services Versus Rajan Singh (1997) 1 SCC 131. In which Apex Court observed as follows,
“The word self-employment is not defined. Therefore, it is matter of the evidence. Unless there is evidence and on consideration it is concluded that the machine was used only for self-employment to his livelihood without a sense of commercial purpose by employing on regular basis employees or workmen for trade in the manufacture and sale of bricks, it would be for self-employment. Manufacturer and sale of bricks in a commercial way may also be to earn livelihood, but merely earning livelihood in commercial business does not mean that it is not for commercial purpose. Self-employment connotes altogether a different concept, namely, he alone uses the machinery purchased for the purpose of the manufacture by employing himself been working out or producing the goods for earning his livelihood. He includes the members of the family. Whether the respondent is using the machine exclusively by himself and the members of his family for preparation, manufacture and sale of bricks or whether he employed any workmen and if so, how many, are matters of evidence. The burden is on the respondent to prove them”. (underline offered)
7 Observations of the Apex Court and illustrations given in the case of the Laxmi Engineering Works Versus PSG Industrial Institute (1995) 3 SCC 583 are also material.
8 Learned advocate for the Complainant has relied upon Hon’ble Supreme Court decision in the case of the Vimalchandra Grover Versus Bank of India (2000) 5 Supreme Court Cases, 122.
He next relied upon the judgment of Hon’ble State Commission, Pondichery, 2005(1) CPR 189.
9 In both these cases, the transactions had taken place before the amendment of 2002 effected to section-2(1)(d) of the Consumer Protection Act, 1986. Thus, above referred amendment, concept of ‘commercial purpose’ was introduced for the first time in section provisions section-2(1)(d) of the Consumer Protection Act, 1986. Above referred cases relied upon the learned advocate for the Complainant do not taken into account amended provisions section-2(1)(d) of the Consumer Protection Act, 1986, therefore, they are not applicable.
10 Learned advocate for the Complainant next relied upon the decision of the Hon’ble State Commission, Mumbai in Complaint Case No.183/2009, dated, 03.02.2011. In that case, the Complainant was Insurance Company and it had filed complaint against ICICI Bank of India and dispute pertained to two cheques, which were realised and debited into account of the Complainant with the Opposite party –Bank. It was the case of the Complainant that without informing the Complainant the cheques where realised. In that case also the objection as regards commercial transaction was raised. It was not brought on the record that the account of the Complainant-Company with the Opposite party –Bank was exclusively for commercial transaction. In that case, the Complainant was Insurance Company not exclusively dealing in commercial transactions whereas in the present case, the Complainant is a Company registered under the Companies Act, 1956. Moreover, in the synopses of the complaint, the Complainant had admitted that the Complainant’s are obtaining this account to facilitate their day-to-day commercial transactions. Thus, there is an admission by the Complainant that the account was being used exclusively for commercial transactions. Moreover, before Hon’ble State Commission, the Complainant was Life Insurance Corporation which does not undertake its activity exclusively for commercial purpose. These are the distinguishing factors. Furthermore, as laid down by Hon’ble Supreme Court in Laxmi Engineering Works Versus PSG Industrial Institute (1995) 3 SCC 583, the question of commercial transaction is to be decided on the basis of facts of each case. Here in this case, the Complainant has admitted that it was corporate account and the Complainant used to operate the same for their business. Thus, obviously, services of the Opposite party-Bank were extracted for commercial purpose. In this scenario, decision of the Hon’ble State Commission is distinguishable
11 The view of which, we have taken get support from recent Hon’ble Supreme Court decision in the case of Birla Technologies Ltd. Versus Neutral Glass and Allied Industries Ltd. I(2011) CPJ 1 (SC).
12 In view of the above discussion, we hold that the Complainant does not become a consumer under section-2(1)(d) of the Consumer Protection Act, 1986 and present complaint, therefore, is not maintainable.
In view of the above discussion, we proceed to pass the following order.
::::: ORDER :::::
(1) Complaint is rejected under section-12(3) of the Consumer Protection Act, 1986.
(2) Copy served to the Complainant, only.
