JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      We have heard the learned counsel for the complainant at a considerable length.  To our mind, at least two questions have to be answered at the stage of admission of this case.  First of all, whether the petitioner is a ‘consumer’?  Lastly, in view of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, whether this Commission has jurisdiction to try this case?

2.      The facts of the case are these.  Shiv Shankar Lal Gupta, the complainant in this case is a promoter of Clarity Gold Mint Ltd., a unit falling under SME Sector for the purpose of setting up of its project of mint of gold and silver coins and manufacturing of semi precious and precious stones studded jewellery.  The complainant on account of his requirement approached the Kotak Mahindra Bank, opposite party in this case, at its Jaipur Branch for grant of loan interalia against the collateral security of immovable property situated at plot No. 4 Sardar Patel Marg, C-Scheme, Jaipur.

3.      The opposite party-bank vide its letter dated 25.9.2008 conveyed the sanction of term loan of Rs.500 lakh to the complainant carrying rate of interest i.e. flat rate of 9.18% which was to be repaid within a period of 60 months.  The complainant had to mortgage his property in favour of opposite party bank.  The petitioner spent Rs. 5 lakh and registration charges in the sum of Rs.25,000/-.  The opposite party paid back Rs.16.40 lakh per month during the period from 1.12.2008 to 23.1.2010 i.e. in aggregate Rs.196.80 lakh.  He further paid Rs.87 lakh during the period from 24.1.2010 to 28.7.2010.  The amount of Rs.283.80 lakh stood deposited.  The disbursement of Rs.500 lakh took place on 24.10.2008.

4.      In the meantime, the complainant received communication dated 8.9.2010 christened as notice under Section 13(2) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 from opposite party No. 3.         In the meantime, credit facility from State Bank of Indore which stands mortgaged into State Bank of India were obtained and second charge of the same property was extended or which the opposite party, bank having the first charge.  The State Bank of India opposite party eluded to be straight about issuing No Objection Letter for sale of the immovable property.  The complainant filed a writ petition before the High Court. 

5.      The complainant being 80 years old wants to get out of the debts and liability owed by the complainant and other institutions by disposal of the said property.  The opposite parties have charged more interest than it was agreed between the parties.  The complainant had made payment of Rs.4,16,81,775/- to the opposite party.  After the said payment, further payment of Rs.11,03,531/- was also to be made.  It also came to the notice of the complainant that the exorbitant charge in the name of pre closure charges being Rs.16,14,361.44 was levied which the opposite party bank made the demand under Section 13(2) of the SARFAESI Act, 2002 intending to seek payment before end of the tenure of the loan i.e. 60 months which was to expire only in September, 2014.  It is stated that statement of account filed by the petitioner is not correct.  The petitioner sent a notice dated 16.8.2011 through its counsel where it was stated that there was over charge of interest being 41.96 lakh and the bank is under an obligation to refund the said amount alonwith interest @15% per annum from 4.11.2011.  The opposite party bank replied that the statement of account was correct.  A notice was sent again and similar kind of reply was received.  It is contended that the judgment of the Bombay High Court in respect of this case is not applicable. 

6.      The present compliant was filed with the following prayers.

“(a) award principal amount of Rs.1,77,91,718/- (Rupees One Crore Seventy Lac Ninety One Thousand Seven Hundred Eighteen) towards the loss and damages suffered by the complainant on various counts as mentioned herein above.

(b) award interest in favour of the complainant and against the Respondents the rate of 15% per annum on the aforesaid principal amount of Rs.1,77,91,718/- (Rupees One Crore Seventy Seven Lac Ninety One Thousand Seven Hundred Eighteen) from the date of filing of this complaint upto the date of actual and final payments by the Respondents and realization thereof by the complainant.

(c) award a sum of Rs.2.50 lac towards the fees of the Advocate for contesting the present complaint.

(d) award other litigation expenses as may be deemed just and expedient in the facts and circumstances of the present case.

(e) award any other relief/s, as may be deemed just and expedient in the facts and circumstances of the present case so as to give full relief to the complaints.”

7.      We have heard learned counsel for the complainant.  He has reiterated the above said pleadings.  He argued that the house of the petitioner had been mortgaged and this fact brings the complainant in the category of consumer as the question of house will bring the case under the term earning his livelihood by means of self employment.

8.      We are unable to clap any significance to these arguments.   All his assumptions are all wet.  The definition of consumer clearly specifically and unequivocally makes it clear that it does not include a person who avails of such services for any commercial purpose.  The

facts of the complainant itself speaks for themselves.  By no stretch of imagination, it can be held that the above said loan was obtained by the complainant exclusively for the purpose of earning his livelihood by means of self-employment.  One even with half an eye can see that this is a commercial transaction/loan simplicitor.   The property which has been mortgaged for obtaining the loan for commercial purpose has got no connection with this aspect. 

9.      This is an indisputable fact that against the petitioner a case is pending under the SARFAESI Act, 2002.n  The law puts a crimp in invoking the jurisdiction of Consumer Commission.

10.    Section 34 of the Secuiritisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 reads as under:-

“34. Civil Court not to have jurisdiction.-No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which a Debts Recovery Tribunal or the Appellate Tribunal is empowered by or under this Act to determine and no injunction shall be granted by any Court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act or under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993.

11.    The civil court mentioned here also includes Tribunals and Commissions dealing with civil matters.  There lies a rub and we cannot entertain this complaint.

12.    The complaint is therefore, dismissed.  It has become necessary to discourage the institution of such like frivolous complaints.  These entail too much precious time of National Commission.  We, therefore, impose costs in the sum of Rs.10,000/- to be deposited with the Consumer Welfare Fund established by the Central Government under Section 12(3) read with Rule 10(a) of the Consumer Protection Act, 1986, of the Central Excise Act, 1944 within three months from today, failing which it will carry interest @9% per annum till its realization.  Learned Registrar of this Commission shall see compliance of the order under Section 25 of the Consumer Protection Act, 1986.