1.      Heard Mr. Pallav Sisodia, Sr. Advocate, assisted by Mr. Abhishek Puri, Advocate, for the complainant and Mr. B.B. Sawhney, Sr. Advocate, assisted by Mr. Vipin Jai, Advocate, for the opposite party. 

2.      Jawaharlal Nehru Port Trust has filed above complaint for directing the opposite party to (i) refund Rs.11868418/- with interest @9.67% per annum, compounded quarterly from the date of deposit till the date of refund; (ii) refund Rs.700000000/-, with interest @9.75% per annum, compounded quarterly from the date of deposit till the date of refund; (iii) pay costs of litigation; and (iv) any other relief which is deemed fit and proper in the facts and circumstances of the case.

3.      The complainant stated that Jawaharlal Nehru Port Trust was a statutory authority, constituted under the Major Port Trusts Act, 1963 and was managing the administration and affairs of Jawaharlal Nehru Port, Navi Mumbai, Maharashtra. Oriental Bank of Commerce (the opposite party) was a Government of India undertaking and was rendering banking services. The Branch Manager, Oriental Bank of Commerce, branch Malwani Malad, Mumbai (hereinafter referred to as the OBC) approached B.V. Rao, Manager (Finance) of the complainant on 10.01.2014, soliciting deposits, in its branch. The complainant proposed for investment but it could not be materialized due bank’s employees strike on 10.02.2014. The complainant issued group mail to various banks on 11.02.2014, inviting quotations in respect of rate of interest for a “Term Deposit” for the period of one to two years of Rs.100-120 crores. Various banks gave their quotations, offering rate of interest, in which, the quotation of the OBC was highest @9.67% per annum. The competent authority of the complainant approved the quotation of the OBC on 12.02.2014. Mrs. Seema Nanivadekar, Deputy Manager (Finance) of the complainant communicated the decision and took details of the OBC, for transfer of money through RTGS, which was supplied on 12.02.2014 at 14:04 hours through mail, followed by a fax. The complainant transferred Rs.110/- crores to the Intersol Account of the OBC through RTGS on 12.02.2014. Under joint signatures of Mrs. Seema Nanivadekar, Deputy Manager (Finance) and P.C. Patil, Assistant Manager (Finance), the complainant gave a fax message to the OBC on 12.02.2014 at 14:57 hours, requesting to issue “Term Deposit Receipt” (TDR), for a period of one year, @9.67% per annum, compounded quarterly of above amount of Rs.110/- crores, followed by a letter dated 12.02.2014, in their joint signatures. The OBC acknowledged receipt of Rs.110/- crores and said fax for TDR, through fax dated 12.02.2014 at 15:06 hours, followed by a letter dated 12.02.2014. On 13.02.2014, the complainant contacted the OBC for sending TDR, then the OBC informed that they were negotiating with the higher authorities, for more rate of interest as such TDR was not issued. The complainant issued another group mail to various banks on 15.02.2014, inviting quotations in respect of rate of interest for “Term Deposit” for the period of one to two years of Rs.60/- to Rs.70/- crores. Various banks gave their quotations, offering rate of interest, in which, the quotation of the OBC was highest @9.75% per annum. The competent authority of the complainant approved the quotation of the OBC on 17.02.2014. The complainant transferred Rs.70/- crores to the Intersol Account of the OBC on 17.02.2014 through RTGS. Under joint signatures of Mrs. Seema Nanivadekar, Deputy Manager (Finance) and P.C. Patil, Assistant Manager (Finance), the complainant gave a letter on 17.02.2014, requesting to issue TDR, for a period of one year, @9.75% per annum, compounded quarterly of above amount of Rs.70/- crores. The OBC acknowledged receipt of Rs.70/- crores and said letter for TDR, through letter dated 17.02.2014. Thereafter, the complainant made various communication to the OBC, for issuing TDRs of above amounts but the OBC was making some excuse for not issuing TDRs. Ultimately the OBC demanded copy of PAN card, resolution of the competent authority of the complainant for TDR and dully filled up forms for TDRs, which were supplied on 26.02.2014 along with letter dated 25.02.2014, on which the OBC made endorsement that TDRs would be delivered till Tuesday or Wednesday, followed with a handwritten letter dated 26.02.2014. When the complainant did not receive TDRs up to the time as promised above, the complainant made a complaint to General Manager, Oriental Bank of Commerce, Regional Head (Mumbai North) on 06.03.2014. General Manager called for a comment on the above complaint from the OBC, then the branch manager, Malwani Malad, made an internal noting on above complaint that as per requests of the complainant through letters dated 12.02.2014 and 17.02.2014, respectively, the said amounts were transferred to the current account of M/s. Padmavati International. The complainant came to know about above noting on 07.03.2014. Then the complainant tried to contact with Ms. Suja Kosy, the branch manager, of the OBC who absconded from 07.03.2014. The complainant then realized that its money had been misappropriated. Chief Vigilance Officer of the complainant lodged FIR RC BSM 2014 E 0002 of 2014 dated 08.03.2014 at CBI, BS &FC, Mumbai. The complainant gave a letter to General Manager, Oriental Bank of Commerce, Regional Head (Mumbai North) on 10.03.2014 for issue of TDRs for Rs.110/- crores and Rs.70/- crores respectively, on which a note was made that “already replied to your letter dated 06.03.2014”. The complainant then wrote another letter dated 11.03.2014 to General Manager for return of aforesaid amounts. The complainant gave reminders dated 13.03.2014, 20.03.2014, 21.03.2014 and 28.03.2014. General Manager, vide letter dated 03.04.2014 informed that CBI has seized an amount of Rs.115.29 crores, belonging to the complainant in various banks and advised the complainant to approach the competent court for obtaining order for release of seized amount to its account. The complainant could get transfer/release of Rs.1088131582.20 till 22.07.2014. The complainant was regularly writing to the opposite party to give balance amount with interest but the opposite party did not pay any heed. Then the complainant gave a legal notice dated 06.01.2016 to the opposite party for refunding the amounts. The opposite party gave its reply dated 25.02.2016 and took plea that as in criminal case, charge sheet had been filed, on which cognizance had been taken and the case was pending before competent court, it was unable to act further. Then this complaint was on 21.09.2016, alleging deficiency in service.

4.      The opposite party filed its written reply on 27.12.2016 and contested the complaint. The opposite party stated that the complaint raises complicated issues relating to fraud and misappropriation of money, which requires examination of voluminous evidence and examination/cross-examination of witnesses. These issues cannot be decided in summary jurisdiction of this Commission. Incident of misappropriation of the fund of the complainant took place in February, 2014, while this complaint was filed on 21.09.2016, which is long barred by limitation. The complainant lodged FIR of the incident, on 08.03.2014, which was investigated by Central Bureau of Investigation, who submitted charge sheet on 20.06.2014, on which Special Judge (CBI), Greater Bombay took cognizance and registered Special (CBI) Case No.42 of 2014. Thereafter CBI submitted supplementary charge sheet on 03.01.2015, registered as Special (CBI) Case No.10 of 2015 and second supplementary charge sheet on 14.05.2016, registered as Special (CBI) Case No.32 of 2016. CBI has submitted charge sheet against Atmaram P. Thakur, Assistant Technician, an employee of the complainant also. Investigation reveals that Atmaram P. Thakur visited the office of B. Vasudeva Rao, Manager (Finance) of the complainant in the morning of 13.02.2014. B. Vasudeva Rao handed over original letter dated 12.02.2014 to Atmaram P. Thakur, by which the OBC was instructed to create a TDR for Rs.110/ crores for a period of one year. This original letter dated 12.02.2014 is now untraceable anywhere which shows that misappropriation was done in connivance and active involvement of the employee of the complainant. Investigation further reveals that Suja Koshy, the branch manager of the OBC sent email on 12.02.2014 at 12:03 hours and not at 11:37 hours, while time for bid time was up to 12:00 hours only and it was not liable to be considered. But in connivance of the employees of the complainant, bid received after 12:00 hours was taken into consideration. In spite of the fact that the complainant did not receive TDR of the money transferred on 12.02.2014, it again transferred Rs.70/- crores on 17.02.2014, further strengthen the connivance of the employees of the complainant. The complainant did not insist for issue of TDRs immediately and is guilty of contributory negligence. Transfer of money in the account of M/s. Padmavat International was at the behest of the complainant. The matter is being adjudicated by a court of competent jurisdiction. CBI has recovered an amount of Rs.1088131582/- during investigation up to 22.07.2014 and Rs.35929061/- on 30.09.2016. The complaint is liable to be dismissed.

5.      The complainant filed Rejoinder Reply, Affidavit of Evidence of Gautam Kumar Das and documentary evidence. The opposite party filed Affidavit of Evidence of Ranjan Kumar and documentary evidence. Both the parties have filed their written synopsis. The opposite party filed IA/384/2020, for dismissing the complaint as the complainant is not a consumer and complaint is not maintainable.

6.      We have considered the arguments of the counsel for the parties and examined the record. The word “consumer” has been defined under Section 2 (1) (d) and word “service” has been defined under Section 2 (1) (o) of the Consumer Protection Act, 1986, (hereinafter referred to as the Act) which are quoted below:-

Section-2 (1) (d).- “consumer” mean any person who,-

(i) 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 and partly promised, or under any system of deferred payment, when such use is made with approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose; or

(ii) hires or avails of any services for 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 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, but does not include a person who avails such services for any commercial purpose;

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

Section 2(1) (o):- “service” means service of any description which is made available to potential users and includes, but not limited to, the provision of facilities in connection with banking, financing, insurance, transport, processing, supply of electrical or other energy, board or lodging or both, housing construction, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;”

7.      Initially the Explanation was added by Act No. 50 of 1993 w.e.f. 18.06.1993 to Section-2(1) (d) (i) of the Act. By Act No. 62 of 2002, w.e.f. 15.03.2003, Section-2(1) (d) (ii) was also amended and the term “but does not include a person who avails such services for any commercial purpose” has been added in it and the Explanation was placed in last. Scope of the Explanation as well as expressions “commercial purpose” and “the purposes of earning livelihood by means of self-employment” came up for consideration before Supreme Court in relation to purchase of goods in Laxmi Engineering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583. In which, it has been held that the Explanation was an exception to an exception. Expression “commercial purpose” has not been defined, as such, its dictionary meaning has to be taken into consideration. “Commerce” means financial transaction, especially buying and selling of merchandise on large scale. As in the Explanation, the purposes of earning livelihood by means of self-employment, has been excluded from the purview of commercial purpose as such purchase of commercial goods for earning livelihood by means of self-employment, will not exclude such buyer from the purview of the “consumer” so long as it is used by the buyer or his family members or with the help of one or two other persons. It is question of fact and has to be decided in each case independently. In this case, three generator sets were purchased for the purposes of the factory by the complainant and it was held that it was for commercial purpose.

8.      Supreme Court in Shrikant G. Mantri Vs. Punjab National Bank, (2022) 5 SCC 42, in Para-50 & Para 56, held the following:-

“ 50. It is thus clear, that this Court has held that the question, as to whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, “commercial purpose” is understood to include manufacturing /industrial activity or business­-to-­business transactions between commercial entities; that the purchase of the good or service should have a close and direct nexus with a profit­-generating activity; that the identity of the person making the purchase or the value of the transaction is not conclusive for determining the question as to whether it is for a commercial purpose or not. What is relevant is the dominant intention or dominant purpose for the transaction and as to whether the same was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. It has further been held that if the dominant purpose behind purchasing the good or service was for the personal use and the consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, then the question of whether such a purchase was for the purpose of “generating livelihood by means of self­-employment” need not be looked into.”

56. In the present case, the Commission has come to a finding that the appellant had opened an account with the respondent ­Bank, took overdraft facility to expand his business profits, and subsequently from time to time the overdraft facility was enhanced so as to further expand his business and increase his profits. The relations between the appellant and the respondent are purely “business to business” relationship. 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 appellant 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 providing speedy and simple redressal to consumer disputes.”

9.      A four Members Bench of this Commission in Synco Textiles Pvt. Ltd. Vs. Greaves Colton & Company Ltd., 1990 SCC OnLine NCDRC 3, held that the expression “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. Going to the plain dictionary meaning of the words used in the definition section, the intension of the Parliament must be understood to be to exclude from the scope of the expression ‘consumer’ any person who buys goods for the purposes of their being used in any activity engaged on a large scale for the purposes of making profit. The Parliament wanted to exclude from the scope of the definition not merely persons who obtains goods for resale but also those who purchase goods with a view of using such goods for carrying on any activity on a large scale for the purposes of earning profit. This judgement has been approved in Laxmi Engineering’s case (supra).

10.    The complainant, which is a statutory authority, issued group mail to various banks on 11.02.2014, inviting quotations in respect of rate of interest for a “Term Deposit” for the period of one to two years of Rs.100-120 crores. As the rate of interest in quotation of the OBC was highest, it was approved and the complainant transferred Rs.110/- crores to the Intersol Account of the OBC through RTGS on 12.02.2014. Under joint signatures of Mrs. Seema Nanivadekar, Deputy Manager (Finance) and P.C. Patil, Assistant Manager (Finance), the complainant gave a fax message to the OBC on 12.02.2014 at 14:57 hours, requesting to issue “Term Deposit Receipt” (TDR), for a period of one year, @9.67% per annum, compounded quarterly of above amount of Rs.110/- crores, followed by a letter dated 12.02.2014, in their joint signatures. The complainant issued another group mail to various banks on 15.02.2014, inviting quotations in respect of rate of interest for a “Term Deposit” for the period of one to two years of Rs.60/- to Rs.70/- crores. Various banks gave their quotations, offering rate of interest, in which, the quotation of the OBC was highest @9.75% per annum. The complainant approved the quotation of the OBC on 17.02.2014 and transferred Rs.70/- crores to the Intersol Account of the OBC on 17.02.2014 through RTGS. Under joint signatures of Mrs. Seema Nanivadekar, Deputy Manager (Finance) and P.C. Patil, Assistant Manager (Finance), the complainant gave a letter on 17.02.2014 to the OBC, requesting to issue TDR, for a period of one year, @9.75% per annum, compounded quarterly of above amount of Rs.70/- crores. Aforesaid facts prove that transactions between the complainant and the opposite party were business to business transactions with motive to earn profit and for commercial purpose. The complainant falls within exclusion clause of the definition of “consumer” as defined under the Consumer Protection Act, 1986 and the complaint on its behalf is not maintainable.

O R D E R

In the result, IA/384/2020 is allowed and the complaint is dismissed as not maintainable with liberty to approach appropriate forum for the required relieves.