Per Mr.Justice S.B.Mhase, Hon’ble President
Heard Mrs.Aarti Bhide-Advocate for the complainant.
Complainant –Kamat Hotels India Ltd. is a Public limited company. There was another company by name M/s.Himco (India) Ltd. which was amalgamated in the complainant company by order of the High Court dated 09/12/2005. Said M/s.Himco (India) Ltd. company had invested an amount of `20 lakhs with the opponent under Deep Discount Bond (99-B) Scheme thereby purchasing 400 numbers of IDBI Deep Discount Bonds. Each bond was for `5000/- and it was taken on 11/09/1999. These bonds were listed on the stocks and, therefore, they were running a market risk after fluctuating NAV. After the amalgamation, these bonds have been given to the complainant and since the price of the said bonds has not been released, consumer complaint is filed. Basically, complainant is in the business of Hotels and their main business is providing service of hospitability by running a chain of hotels in the Maharashtra. M/s.Himco (India) Ltd. was also having identical business. Therefore, both the companies are in the hotel business and the profit which they have earned in the business has been invested into the bonds so as to get more profit. What is important is that that all these investments are for commercial purpose and to increase the assets of the company. Though under definition u/sec.2(1)(m) Company can be considered as a ‘person’ and/or ‘juridical person’ yet such companies commercial activities and such company if avails service of other agencies for the purpose of their business and investment purpose, such availment of service would not convert them into a ‘consumer’. Definition specifically excludes the commercial transaction of any person. Only exception which has been made in respect of individual is that if the commercial transaction is carried out by the individual for the purpose of ‘self employment’ and principally for his livelihood, then though his transaction is of commercial transaction, he will be covered under the Consumer Protection Act, 1986 being a ‘consumer’. However, both these exceptions are not applicable in case of juridical person because juridical person like complainant cannot be said to be carrying out commercial transaction with the opponents for the purpose of their self employment and for the purpose of earning their livelihood. Both these ingredients which are required for holding person as consumer will be absent in case of Corporate Sector companies. Therefore, definition of section 2(1)(m) cannot be read in isolation. It has to be read along with section 2(1)(d), which contemplates individual and not the corporate sector because company will not have livelihood and company will not have self employment and, therefore, complaint by such persons for breach of service cannot be entertained by this Commission or Consumer Fora. Since we find that complainant is not a ‘consumer’, complaint is not tenable. It is hereby rejected. In fact, remedy of the complainant is elsewhere, they have selected a wrong forum.
Dictated in the open court.
Copies of the order be furnished to the parties.
Pronounced on 22nd September, 2011.
