PER JUSTICE R.C.JAIN, PRESIDING MEMBER

            The above-named complainant, a company engaged in the business of manufacture of electrical transformers has filed this complaint against the opposite party-Bank and others alleging deficiency in service on the part of the later in relation to certain bank transactions and for claiming the following reliefs:

“a.        Order and direct IDBI Bank being opposite party no.1 to pay the complainant a sum of Rs.2,77,48,296 being a sum of Rs.2,29,79,166/- being the amount payable under the Irrevocable L/C alongwith a sum of Rs.47,69,130/- being the interest due on such sum at the above interest rate for the period from June 23, 2010 till October 21, 2011; 

b.         Order and direct IDBI Bank, being opposite party 1 to pay the complainant a further sum of Rs.7,67,610/- being a sum of Rs.6,68,568/- borne by the complainant on November 6, 2010 as a direct result of IDBI Bank’s failure to comply with its obligations under the Irrevocable L/C, alongwith a sum of Rs.99,042/- being the interest due on such sum at the above interest rate for the period from November 6, 2010 till October 21, 2011;

c.         Order and direct IDBI, being opposite party 1, to pay the complainant pendent lite and future interest at the aforesaid rate of 14.5% ( on a 360-day year basis and compounded every thirty days);

d.         Order and direct IDBI, being opposite party 1 to pay the complainant an additional sum of Rs.50,00,000 as damages for the severe economic hardship and loss of business opportunity and profit caused by the IDBI Bank’s gross deficiency in service to the complainant;

e.         Order and direct IDBI, being opposite party 1 to pay the complainant the legal fees borne by the complainant in connection with the prior legal notices sent to the opposite party 1, as well as the legal fees and costs incurred in connection with the present complaint, being a sum in the amount of Rs.5,00,000 and

f.          Pass such further orders and directions as this Hon’ble Commission may deem fit and proper”.

2.         We have heard Mrs.Anuradha Mukherjee, learned counsel representing the complainant on the question of maintainability of the present complaint before this Commission and have considered her submissions.  In nutshell, the case of the complainant is that on 01.06.2010, the main branch of IDBI Bank issued an irrevocable 90-day letter of credit bearing no.20101271LCU0382 in favour of the complainant and said issuing bank undertook to pay to the complainant or its negotiating bank a sum of Rs.2,29,79,166 (rupees two crores twenty nine lakhs seventy nine thousand one hundred and sixty six only) within 90 days on presentation of stipulated documents evidencing such shipment of five electrical transformers to any place in Haryana.  The said irrevocable LC was subject to the Uniform Customs and Practices for Documentary Credits 2007 Revision ICC Publication No. 600.  Complainant despatched five transformers to consginees in Haryana and submitted the requisite documents, namely, five consignment notes dated 01.06.2010 issued by Super Sonic Carrier Pvt. Ltd. showing shipment of five transformers by the complainant to consignees in Haryana, three bills of exchange amounting to Rs.2,29,79,166/- (rupees two crores twenty nine lakhs seventy nine thousand one hundred and sixty six only) in favour of opposite party no.3 – SBI, the complainant’s negotiating bank.  The said bank credited the amount of the bill of exchange in the account of the complainant and forwarded the requisite documents to the IDBI Bank for release of the payment in terms of LC dated 01.06.2010.  The said bank, however, did not release the payment pointing out some discrepancies. According to the complainant, the discrepancies in the documents were removed within short time but still the payment was not released by the issuing bank and thereafter, the complainant’s negotiating bank debited the amount of the irrevocable LC and an additional amount of Rs.6,68,568/- (rupees six lakhs sixty eight thousand five hundred and sixty eight) in the account of the complainant.  In the above transactions, the complainant has alleged the following deficiency on the part of the opposite parties:

“a.        The failure by IDBI Bank to promptly pay the full amount under the Irrevocable L/C after the complying presentations were made on June 23, 2010 ( and well before the Irrevocable L/C expired) in accordance with terms of the Irrevocable L/C;

b.         The inexplicable and gross delay by IDBI Bank in only notifying the negotiating bank, SBI, of the refusal and return of the documents in September 2010, nearly three months after a complying presentation was made, and almost two months after the Irrevocable L/C had expired on July 16, 2010; and

c.         The continuing failure by IDBI Bank to provide any reasons or explanations to the complainant for the aforesaid refusal

d.         By its express terms, the Irrevocable L/C was subject to the provisions of UCP 600.  The above failures and gross delays by IDBI Bank are clearly inconsistent with the provisions of UCP 600, including without limitation, Articles 4.a, 5, 7.b, 7.c, 14.b, 16.d and 16.f of UCP 600.  Therefore, the aforesaid shortcomings in the nature, quality and manner of performance required by UCP 600, which performance was expressly contractually undertaken by IDBI Bank under the Irrevocable L/C, amount to deficiency within the meaning of section 2 (1) (g) of the Consumer Protection Act, 1986”.

3.         Going by the averments and allegations made in the complaint and the nature of dispute raised in the present complaint, the main question which needs to be considered is as to whether the present Commission is the appropriate forum for adjudicating on the dispute raised and for redressal of the grievance of the complainant in the present complaint and for the grant of reliefs prayed by it.  In other words, the question is as to whether the complainant is well within its rights to invoke the original jurisdiction of this  Commission vested in it under section 21 (a) (i) of the Consumer Protection Act, 1986 ( in short, ‘the Act’).  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 the said Act as  it stands after its amendment by the Amending Act 62 of 2002 effective from 15.03.2003. There cannot be any denial of the legal position that complainant in the present case would have certainly qualified to be a ‘consumer’ under the Act as it stood prior to amendment.  However the Amending Act has brought a sea change in the definition of ‘consumer’ by incorporating the phrase ‘but does not include a person who avails of such services for any commercial purpose’ in sub-clause (ii) of Section 2 (1) (d) of the Act.  This clause unambiguously points out that any person who avails of services for any commercial purpose can no longer be treated as consumer.  We must, therefore, examine the next question as to whether the complainant  has availed the services of the opposite party for commercial purpose or otherwise.  Taking the averments and allegations made by the complainant for the deficiency on the part of the opposite party as alleged in connection with an irrevocable letter of credit  established at the said bank for ensuring the payment of the five transformers sold by the complainant to certain purchasers in the state of Haryana for a sum of Rs.2,29,79,166/- on their face value, it cannot be denied that complainant had availed the services of the opposite party-bank for purely commercial purpose in furtherance of their business etc.

4.         Learned counsel for the complainant has vehemently argued that services availed by the complainant cannot be said to be for commercial purpose and at best it can be said that it was for anciliary purpose to the business of the complainant.  In support of the contention, she has heavily relied upon the decision of the Supreme Court in the case of Kishore Lal Vs. Chairman, Employees State Insurance Corporation (2007) 4 SCC 579 and in particular to the observations made by the Bench in para 7 of the said decision, which is to the following effect:

“The definition of ‘consumer’ in the CP Act is apparently wide enough and encompasses within its fold not only the goods but also the services, bought or hired, for consideration. Such consideration may be paid or promised or partly paid or partly promised under any system of deferred payment and includes any beneficiary of such person other than the person who hires the service for consideration. The Act being a beneficial legislation, aims to protect the  interests of a consumer as understood in the business parlance.  The important characterstics of goods and services under the Act are that they are supplied at a price to cover the costs and generate profit or income for the seller of goods or provider of services. The comprehensive definition aims at covering every man who pays money as the price or cost of goods and services.  However, by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded but the services hired for consideration even for commercial purposes are not excluded.  The term ‘service’ unambiguously indicated in the definition that the definition is not restrictive and includes within its ambit such services as well which are specified therein.  However, a service hired or availed which does not cost anything or can be said free of charge or under a contract of personal service is not included within the meaning of ‘service’ for the purposes of the CP Act”.

            Learned counsel laid great emphasis on the sentence, “by virtue of the definition, the person who obtains goods for resale or for any commercial purpose is excluded but the services hired for consideration even for commercial purposes are not excluded appearing in the above paragraph.  In our view the said observation must be in context  of the provisions of section 2 (1) (d) as it appeared before amendment of the clause (ii) thereof and  could not be in context of the amended clause (ii) which has specifically excluded the person(s) availing services for commercial purpose from the purview of definition of ‘consumer’ appearing in that section.  The judgment of the Supreme Court is to be read as whole and not in isolation.  On a careful reading of the judgment, it cannot be said that Supreme Court laid down that any person who avails the services for any commercial purpose can still be considered as ‘consumer’ and is entitled to invoke the jurisdiction of a consumer fora.  Such an interpretation and meaning would render the amendment made in clause (ii) of Section 2 (1) (d) totally redundant which could never be the intention of the Supreme Court in making the said observations.

5.         Reliance was then placed on the Supreme Court decision in the case of Trans Mediterranean Airways Vs. Universal Exports and Anr. (Civil Appeal No. 1909 of 2004) and M/s Autocade Vs. Standard Chartered Bank & Ors. (First Appeal No. 551 of 2007) (of this Commission).  The said judgments were rendered on the facts of those cases and do not advance the plea of the complainant in any manner.

6.         Having considered the matter in its entirety and going by the nature of the transactions which the complainant had with the opposite party-Bank, there cannot be any escape from the conclusion that complainant had availed the services of the opposite party-bank for purely commercial purpose.   It cannot be said that services were availed by the complainant for anciliary purpose.  We are, therefore, of the view that complainant is not a consumer within the meaning of section 2 (1) (d) of the Act and is not entitled to invoke the jurisdiction of this Commission for the redressal of its grievance.  That apart we may notice that gamut of controversy raised in the present case cannot be decided by a Consumer Forum established under the Act in its summary jurisdiction.

7.         For the above reasons, we hold that present complaint is misconceived before this Commission and is accordingly dismissed.  Complainant would however, be free to work out its remedy before any appropriate Court / Forum in accordance with law.