BEFORE THE CONSUMER DISPUTES REDRESSAL COMMISSION, ERNAKULAM.
Dated the 17th day of January, 2023.
Filed on 26/03/2019
PRESENT:
Shri.D.B.Binu President
Shri.V.Ramachandran Member
Smt. Sreevidhia T.N., Member
I.A. NO. 98/2022 IN C.C. NO. 140/2019
Between
Petitioners/Opposite Parties
1. The Branch Manager South Indian Bank, Kanjiramattom Branch Moolamkuzhy Arcade, Millungal Junction, Kanjiramattom, PIN-682315
2. The Authorized Signatory, Customer Care Unit of South Indian Bank, Elias Chambers, Banerji Road, Ernakulam North P.O., Ernakulam PIN-682018
(OP No. 1 & 2 Rep. by Adv. P.A. Augustine (Areekattel), 91, DD Tex World, market Road, Kochi – 11)
Respondents/Complainants
1. Mahima Jewellery Works Millungal Junction, Kanjiramattom, PIN-682315, Ernakulam Represented by Proprietor, M.M.Hassan, S/o Moitheen, Mudilumpallayil House, Kanjiramattom PO, Marithazham, Amballoor Village, Ernakulam.
2. Mahima Jewellery, Millungal Junction, Kanjiramattom PIN-682315, Ernakulam Represented by Managing Partner, M.M.Hassan, S/o Moitheen Mudilumpallayil House, Kanjiramattom PO, Marithazham, Amballoor Village, Ernakulam.
(Rep. by Adv. Joseph Shylan T.M., Lawyer’s Combine, Mahakavi G Road, Ernakulam, Kochi – 11)
FINAL ORDER
D.B.Binu, President.
The opposite parties had filed this I.A. to hear the maintainability of the above case as a preliminary issue. The complainants had not filed a counter affidavit in the 1.A.
The counsel for the opposite parties submitted that the above petition is that this Commission has no jurisdiction to entertain the above case since the complainants are not consumers as defined in Section 2 (d) of The Consumer Protection Act 1986. The complainants are big business establishments having various businesses running by appointing Managers and other staffs. The loans which are the subject matter of the above complaint were availed by the complainants for their commercial purpose. The loans were sanctioned for maintaining working capital of the business of the complainants. The 1st complainant is a proprietary concern and the 2nd complainant is a partnership firm doing business in manufacturing the Jewellery and Jewellery business respectively. The service of the opposite parties had availed by the complainants for their commercial purpose and not exclusively for the purpose of earning their lively hood by means of self-employment. Hence the complainants will not come under the definition of 'consumer' as defined in Section 2 (d) of The Consumer Protection Act 1986 as held by the Hon'ble Supreme Court in the case of Shrikant G. Mantri Vs Panjab National Bank.
The counsel for the complainants submitted that both the complainants are customers within the definition of the Consumer Protection Act, and are constrained to approach this commission against the gross acts of the opposite parties wherein, they have committed serious deficiency of service and unfair trade practices.
The short question, therefore, that would have to be answered in the present case is, as to whether the services availed by the complainants from the opposite parties - Bank would fall within the term 'commercial purpose'. The other question that would also have to be answered is, as to whether such services are exclusively availed by the complainants for the purposes of earning their livelihood by means of self-employment.
The purpose of the said Act has been succinctly described by the Apex Court in the cases of Laxmi Engineering Works vs. P.S.G. Industrial Institute (1995 (3) SCC 583) and Shrikant G. Mantri v. Punjab National Bank, , decided on 22.02.2022.
“33. It could thus be seen that this Court has clearly held that the idea of enacting the said Act was to help the consumers get justice and fair treatment in the matter of goods and services purchased and availed by them in a market dominated by large trading and manufacturing bodies. It has been held that the entire Act revolves round the consumer and is designed to protect his interest. It provides for "business to consumer" disputes and not for "business-to-business" disputes. It has been held that forums / commissions provided by the said Act are not supposed to supplant but supplement the existing judicial system. The idea was to provide an additional forum providing inexpensive and speedy resolution of disputes arising between consumers and suppliers of goods and services.”
The Court affirmed the said ruling and held that the relations between the appellant and the respondent is purely “business to business” relationship. As such, transactions would clearly come within the ambit of ‘commercial purpose’. It cannot be said that the services were availed “exclusively for the purposes of earning his livelihood” “by means of self-employment”. [Shrikant G. Mantri v. Punjab National Bank, , decided on 22.02.2022].
"When a person avails a service for a commercial purpose, to come within the meaning of 'consumer' as defined in the said Act, he will have to establish that the services were availed exclusively for the purposes of earning his livelihood by means of self-employment,” the bench said in the above case.
It was held by the Hon’ble National Consumer Disputes Redressal Commission in Sanjay D. Ghodawat Vs. R.R.B Energy Ltd. ( IV 2010 CPJ 178(NC).
“ Under Section 2(1) (d) (i) any person who buys goods for consideration for commercial purpose is excluded from the ambit of consumer. Besides this, the services of opposite party were availed by the complainant for commercial purpose for augmentation of profit by increasing the efficiency and thereby the output of the Company with the help of the software. After lifting the veil, it is clear that the complainant has put in the forefront efficiency card though actually the whole exercise is increasing the profit. All this goes to show that the software in question is sale of goods by the opposite party to the complainant for commercial purpose on account of which the complainant would be excluded for being considered as consumer in terms of provisions of Section 2(1) (d) (i) of the Consumer Protection Act. The complainant in our opinion does not qualify to be a consumer in view of the provisions of Section 2 (1) (d) (i) of the Consumer Protection Act.”
It was held by the Hon’ble National Consumer Dispute Redressal Commission in Gowhar Riyaz Khan vs. Ansal Housing & Construction Ltd. and Ors. ( MANU/CF/0275/2018).
“To put it differently, one while purchasing a commercial unit would be a consumer within the meaning of Section 2(1) (d) only if one is not having already business establishment. Booking of a shop for the purpose of expansion of business, as is the object in the given case, envisage existence of business establishment already, in which case one would not be covered within the exception clause of Section 2(1) (d) of the Act (Supra) and if that be the case, availing of service would tantamount to for commercial purpose and in such event complainant would not be a consumer.”
It was held by the Hon’ble Madhyapradesh State Consumer Disputes Redressal Commission in Narendra Hammad Vs. Dodia Dryotech and Ors ( IV (2017) CPJ 41 SS).
“The explanation attached to Section 2(1) (d) of the Consumer Protection Act clearly states that for the purpose of this clause, ‘commercial purpose’ does 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. The reading of explanation makes it clear that the benefit of explanation is only available to the person who avails the services exclusively for the purpose of earning livelihood by way of self-employment. The onus of proving that the complainant is covered by the explanation is upon him. From the record adduced in the case it is apparent that about 10 employees are working in the Firm of the complainant. Though the complainant averred that being an unemployed person he started business for the purpose of earning livelihood, but merely by making this bald statement, it cannot be concluded that the purpose of establishing the plant by him is not commercial. The span of activities undertaken by the complainant clearly indicate that he intended to generate the profits which is the main indicator of the commercial purpose. It seems that in view of the fact that the project of the complainant involved employment of about 10 persons, he deliberately omitted to plead that he wished to earn his livelihood by means of self-employment. Even if a bald statement has been made that complainant wished to establish the dehydration plant for earning his livelihood, it cannot be accepted in view of the fact that turnover of the complainant had been worth lacs of rupees and he employed or needed employment of about 10 persons in the establishment.”
It was held by the Hon’ble National Consumer Disputes Redressal Commission in Prithipal Singh Arora and Ors Vs. Emaar MGF Land Limited. ( MANU/CF/0133/2018)
“ On bare reading of the above, it is clear that both the complainants are gainfully employed. Complainant No.1 is engaged in business of operation and maintenance of industrial equipments and at present he has 181 regular employees. Further , complainant No. 2 is stated to be a retired banker currently engaged as a financial advisor with respect to the investment in different portfolios. Thus, it is clear that both the complainants are gainfully employed and earning livelihood. Consequently, it cannot be said that they had booked the subject shops exclusively for the purpose of earning livelihood by way of self-employment.”
In the present case, the complainants had opened an account with the opposite parties - Bank, took a cash credit premium card facility (Over Draft) and FSL facility to expand their business profits, and subsequently, from time to time the overdraft facility was enhanced so as to further expand the business and increase the profits of the complainants. The relations between the complainants and the opposite parties are pure "business to business" relationships. As such, the transactions would clearly come within the ambit of 'commercial purpose'. It cannot be said that the services were availed "exclusively for the purposes of earning his livelihood" "by means of self-employment". If the interpretation as sought to be placed by the complainants is to be accepted, then the ' business-to-business disputes would also have to be construed as consumer disputes, thereby defeating the very purpose of the Act.
In the result, I.A allowed. The complaint is dismissed as not maintainable. No cost.
Pronounced in the open Commission on this the 17th day of January 2023.
Sd/-
D.B.Binu, President
Sd/-
V. Ramachandran, Member
Sd/-
Sreevidhia.T.N, Member
Forwarded/by Order
Assistant Registrar
Despatch date:
By hand: By post
kp/
CC No. 140/2019
Order Date: 17/01/2023
