DISTRICT CONSUMER DISPUTES REDRESSAL FORUM-II

Udyog Sadan, C-22 & 23, Qutub Institutional Area

(Behind Qutub Hotel), New Delhi-110016

Case No. 119/2016

M/s Royal Mobiles

(Proprietary Firm)

Through Shri Jagjeet Singh

10/127, Malviya Nagar,

New Delhi-110017                                                         ….Complainant

Versus

ICICI Bank Ltd.

N-138, Ground Floor,

Panchsheel Park

Delhi-110017

Also at :-

ICICI Bank Ltd.

“Landmark/”, Race Course Circle

Vadodra-390007

&

ICICI Bank Ltd.

ICICI Bank Towers

Bandra Kurla Complex

Mumbai-400051                                                               ….Opposite Party

                                                  Date of Institution      :         25.04.16        Date of Order              :         27.08.19

Coram:

Ms. Rekha Rani, President

Ms. Kiran Kaushal, Member

ORDER

Member - Kiran Kaushal

1. Brief facts as pleaded by the complainant are that the complainant, M/s Royal Mobiles, is a proprietorship firm being represented through Jagjit Singh who is engaged in the business of selling mobile phones of various brands from his shop. It is averred that the complainant is doing the business to earn his livelihood by means of self employment. The complainant opened a current account with the Panchsheel Park Branch of ICICI Bank Ltd. hereinafter referred to as OP-1.

1.1    It is next averred that the complainant was satisfied with the services of OP-1 for quite a few years but in April, 2015 OP-1 started levying Transaction Charges on his Account. In the beginning the amount charged on the pretext of transaction charges were minimal but increased to a great a extent over short period of six to eight months.

1. It is next averred that OP-1 has virtually deducted an amount of Rs.3,59,788.74p. from the account of the complainant between April 2015 to April 2016. Despite various visits and complaints on the customers care number, OP failed to provide proper reason or any satisfactory reply as to why the wrongful and arbitrary charges were being deducted from the account of the complainant.

1.3    Aggrieved on account of the Transaction Charges, the complainant approached this forum with prayer to direct OPs to refund the amount of Rs.3,59,788.74p. alongwith interest @ 18% per annum. Additionally the complainant seeks directions to OP to pay the compensation of Rs.1,00,000/- for causing mental harassment, agony and to pay Rs.25,000/- towards the litigation expenses.

2. OP-1 resisted the complaint inter-alia stating that the complainant through its proprietor opened Roaming Current Account with OP and the said Current Account was subject to Transaction Charges availed by the complainant in a respective period. OP submits that in the year 2014-15 the Monthly Average Balance (MAB) maintained by the complainant was ranging between Rs.7,000 to Rs.40,000. It is further stated that in the year 2015, there were 40 inward clearing cheque bounces in the account of the complainant resultantly the cheque book facility was discontinued and the same was enabled on the request of the complainant.
   1. It is next submitted that in the month of August-September 2015 the complainant started wholesale trading of mobile resulting in higher value of cash transaction. The OPs duly informed the complainant that the current account maintained by the complainant is of lower variant and the cash transaction of higher amount is taking place in the said current account and was provided with Schedule of Charges of the Transactions. The transactions charges levied on the complainants said current account was based on the extent of the services availed by him and as per the Schedule of Charges applicable to the said account variant.
   2. It is further submitted that the complainant himself realizing that his account is of lower variant gave a request dated 09.12.2015 for upgrading the said Current Account. Pursuant to the request the Current Account was upgraded to Platinum Variant Account with Monthly Average Balance of Rs.5,00,000/- and the same was subject to transaction charges on high value cash transaction as per the Schedule of Charges annexed as Annexure-R1.
   3. It is further submitted that vide letter dated 20.01.16 OPs had duly explained the position of the said current account and as a service gesture offered refunding of Transaction Charges to the tune of Rs. 50,000/- in the said Current Account only after the consent of the complainant. It is further submitted that the complainant had started doing wholesale business from August-September, 2015 resulting in the high value cash transaction and the transaction done by him was nothing but a Commercial Transaction. Therefore, the complainant’s trading account shows that he is a wholesale trader and having commercial banking relations of high value of transaction with OPs. Thus, the complainant is not a Consumer as defined under Section 2(1)(d) of Consumer Protection Act, 1986. Thus, it is prayed that the complaint be dismissed.      
3. Rejoinder to the written statement of OP-1 is filed by the complainant wherein facts of the complaint are reiterated. Evidence by way of affidavit is filed by the complainant whereas evidence of Shri Zarrar Rizvi has been filed on behalf OPs.
4.  Written arguments have been filed by the parties.
5. Arguments of Ld. counsels on behalf of the parties have been heard.
6. Going by the averments and allegations made in the complaint and the nature of dispute raised in the present complaint, the main question that arises before the Forum is whether the complainant is within its rights to invoke the jurisdiction of this Forum. Answer to this would depend on the question as to whether the complainant can be said to be a consumer within the meaning of section 2(1)(d) of Consumer Protection Act, 1986.
7. Learned counsel for the complainant has argued that the complainant is well within the ambit of Consumer Protection Act as he had opened the account with OP as a regular customer not as a commercial customer.
8. In support of the contention the counsel has relied upon the case of Synco Textile Pvt. Ltd. vs. Greaves Cotton and Company Ltd. (1991) 1 CPJ, the court while emphasizing on the word “commercial purpose” laid down that  “for any commercial purpose are wide enough to take in all cases where goods are purchased for being used in any activity directly intended to generate profit”. Synco Textile’s case implicates that “commercial purpose” should be distinguished from commercial organization or commercial activity.
9. Reliance placed on the above case is misplaced as it is noticed from the statement of account, annexed with the complaint as Annexure-I, that the transactions made in the said account are commercial in nature and are directly intended to generate profit.
10. Complainant has further placed reliance on Laxmi Engineering Works vs. PSG Industries, AIR 1995 SC 1428, Bhupendra Guna vs. Regional Manager and others (II 1995 CPJ 139), C.P. Moosa vs. Chowgle Industries Ltd. 2001-CPJ-3-9-NC; 2001-CPR-2-92-NC, Super Computer Centre vs. Globiz Investment Pvt. Ltd. III(2006) CPJ 265 (NC) and Action Construction Equipment Ltd. & Anr vs. Bablu Mridha 4(2012)CPJ245(NC)

Reliance placed on all the above cases is of no help to OP being distinguishable on facts.

11.    As per section 2(1)(d) of the Consumer Protection Act,

Consumer means any person who-

1. 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
2. [hires or avails of] any services 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 beneficiary of such services other than the person who ¹² [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 ¹³ [but does not include a person who avails of such services for any commercial purpose];

(Explanation :- For the purpose of this clause, “commercial purpose” doest not include use by person of goods bought and used by him and services availed by him exclusively for the purpose of earning his livelihood by means of self employment].

12. Now on the facts of the case, the complainant, a proprietorship firm opened a Roaming Current Account with OP for business/ commercial purpose. The transactions done in the said account are commercial in nature. Most of the transactions in the complainant’s account are seen to be with certain firms and companies. Hence, from the statement of account it is clear that the complaint filed by the Royal Mobiles / complainant relates to operation of bank account maintained by a commercial organization for commercial purpose.
13. The Hon’ble State Commission in the matter of Bright Electricals vs. ICICI Ltd. in FA No. 721 of 2012 dated 22.07.2019 has held that the complainant, a partnership firm, a commercial entity having transacted of commercial purpose is not a consumer and thus not entitled to raise a consumer dispute. Similar view was taken by the Hon’ble National Commission in the matter of Sushma Goyal vs. Punjab National Bank as reported in 2(2011) CPJ 270 NC is pleased to hold that ‘the operation of bank account maintained by commercial organization for commercial purpose as is the case of subject matter’ is outside the scope and ambit of Section 2(1)(d). The Hon’ble NCDRC in Sutlej Industries Ltd. vs. Punjab National Bank as reported in 1(2018) CPJ 593 (NC) has clearly opined that “the complainant / appellant had opened a current account with the respondent bank for the purpose of carrying out its business activities. The purpose behind opening the said account therefore was to serve the commercial interests of the company. Therefore, it can hardly be disputed that the services of the bank were hired or availed by the complainant for a commercial purpose”.

14.    In view of the discussion above and the law laid down, we are of the considered opinion that as per the provision of Section 2(1)(d)(ii) of the Consumer Protection Act, complainant is not qualified to be a Consumer as the services of OP were engaged for commercial purpose. Hence, the complainant has no locus-standi to maintain the consumer complaint. The complaint is accordingly dismissed with no order as to cost. 

Let a copy of this order be sent to the parties as per regulation 21 of the Consumer Protection Regulations. Thereafter file be consigned to record room.

Announced on 27.08.19.