PER  JAGROOP  SINGH   MAHAL, MEMBER

                        According to the complainant the officers of the OP bank arranged a meeting of their Chairman and Managing Director with the complainant and the representatives of two other firms, who were availing sufficient credit facilities from the HDFC Bank.  In the meeting the OP bank offered to charge interest as minus 2% of BPLR and that no processing fee would be charged, upon which the complainant agreed to shift business to the OP Bank.  Even though formal sanction letter was not received, yet the bank released Rs.8.00 crores on 29.2.2008 for clearance of the outstanding with the HDFC Bank. However, contrary to their commitments, the OP bank charged higher interest than agreed to in the meeting held in February 2008 whereafter a letter dated 18.3.2008 was sent by the complainant requesting for refund.  Thereafter a post facto sanction letter dated 3.4.2008 was received by the complainant from the OP giving the stipulated interest rate as BPLR minus 2%, but the waiver for processing fee was allowed only for the first year.  After close of first year of the business, the OP bank sanctioned and disbursed fresh and enhanced facility to the extent of Rs.11.90 crores and also got necessary documents executed.  The complainant was also made to sign a sanction letter dated 6.4.2009.  Thereafter, it was brought to the  notice of the OP that the interest mentioned was not as per the terms agreed to in the meeting and post facto sanction dated 3.4.2008 but the OP assured that the same would be sorted out.  However, without any authorization, the OP debited an amount of Rs.3,93,771/- in the account of the complainant. The complainant immediately represented vide letter dated 22.7.2009 and the bank vide its letter dated 29.9.2010 assured to refund the excess interest and processing fee. The complainant was again shocked to notice that another amount of Rs.6,56,285/- stood debited in their account on 31.3.2010 under processing fee. The complainant again sent representations dated 6.4.2010 and 17.5.2010 for refund of the entire erroneous and excessive processing fee but the same was not done despite protracted correspondence and even the account of the complainant was declared as NPA by the OP w.e.f. 30.9.2010.  Hence this complaint alleging that the aforesaid acts of the OP amounts to deficiency in service and unfair trade practice. The complainant prayed for refund of excess amount of Rs.56.00 lacs charged by the OP on account of processing fee and interest alongwith compensation of Rs.12.00 lacs.

2.                           The OP in their written reply submitted that the processing fee and the interest was charged as per the terms and conditions of the loan facilities.  It has been submitted that the concessional rate of interest i.e. BPLR minus 2% and non charging of processing fee was for the first year only and said concession was offered by the competent authority i.e. the head office.   It has been denied that blank documents were got executed from the complainant or that any assurance was ever given to the complainant for restoration of interest @ BPLR minus 2%. It has been admitted that the amount of Rs.3,93,771/- and Rs.6,56,285/- were debited in the account of the complainant in terms of the sanction letter and the same was not in contravention of any guidelines or circulars of the RBI. It has been submitted that the interest @ BPLR was offered at the time of renewal as it was within the powers of GM, LHO and for any concessional rate of interest less than BPLR, the head office was the competent authority.  It has been denied that the complainant supplied the documents demanded through its letter dated 24.5.2010.  It has been stated that since the complainant violated the terms and conditions of the loan, the account was rightly declared NPA on 30.9.2010 as per the RBI guidelines. It was alleged that the complainant is a commercial organization and it was a commercial transaction and the complaint is not covered under the definition of consumer to take advantage of the provisions of the Act. It was also alleged that the complainant first filed an application u/s 17(1) of the Securitizations and Reconstruction of Financial Assets and Enforcement of Security Interest Act (in short SARFAESI Act) and also filed a Civil Writ Petition seeking similar relief and the present complaint cannot be maintained. This Commission was alleged to be having no jurisdiction to try the dispute. All other material pleadings of the complainant were denied being wrong.  Pleading that there has been no deficiency in service or unfair trade practice on its part, prayer for dismissal of the complaint has been made.

3.                             Parties led evidence in support of their case.

4.                           We have heard the ld. Counsel for the parties and have gone through the evidence on record of the case carefully. 

5.                           The contention of the learned Counsel for the OP  against the present complaint is that the complainant is not a consumer and the present complaint cannot be filed under the Act in view of the fact that the complainant is a commercial organization and the loan had been taken by it for a commercial purpose, the dispute is therefore, excluded from the purview of the Act.  As against it the learned  Counsel for the complainant argued that the complainant would be excluded only if there is any intention to earn profit, which fact has not been proved in the present case.  The learned Counsel referred to the case of Punjab National Bank and another vs. Chandigarh Housing Board III (2009) CPJ 153 in which case this Commission held that banking services being provided to even commercial concern fall within the ambit of the Act. It was observed that the bank is not a service provider qua the commercial concern which generates profits from the money taken as a loan or even otherwise from the bank. In that case the services of the bank had been utilized for the purpose of receipt of the amount from the applicants due to the Chandigarh Housing Board which did not contribute to any generation of profit by the complainant/Chandigarh Housing Board. It is not so in the present case. A business is run by a commercial organization for earning profits and for that purpose, as in the present case, the complainant took loan from the OP-bank,  it is therefore, a commercial transaction and the complainant would be excluded from the purview of clause (d) of Section 2(1) of the Act.

6.                           In support of his contention the learned Counsel for the complainant also referred to the case of Mike’s (P) Limited Vs. State Bank of Bikaner & Jaipur II(1995) CPJ  97 (NC). In that case the factory was started in 1984 and after taking credit limit of Rs.14.00 lac and another limit of Rs.10.00, the complainant started production during the year 1986.  When the bank started harassing the complainant a complaint was filed before the Hon’ble National Commission in 1992 and the same was decided on 16.1.1995. The question whether the complainant which was a commercial organization, was a consumer entitled to approach the Hon’ble National Commission, was neither raised nor decided in that case.  It may however be due to the reason that at that time there was no clause excluding such person from the definition of consumer  who avails such services for any commercial purpose because this exclusion clause was introduced vide Act No.68 of 2002, which came into force much later than the decision of the said case by the Hon’ble National Commission. This authority is therefore, not applicable to the present case. The learned Counsel for the complainant has also cited the case of State Bank of Hyderabad Vs. Shri Bairi Lingam I (1991) CPJ 332 that case was decided by State Consumer Disputes Redressal Commission Hyderabad on 21.7.1990 much before the amendment referred to above. On the other hand we have the authority of Sushma Goel  Vs. Punjab National Bank II(2011) CPJ 270 (NC),   in that case the complainant opened a current account with the Punjab National Bank in the name of Bonanza Portfolio Ltd. and when she updated her passbook she found that money transfer has been made from her account through cheques upon which she filed the complaint before the District Forum which was allowed.  However, the State Commission allowed the appeal of OP and dismissed the complaint on the ground of maintainability. Thereafter the complainant filed revision petition before the Hon’ble National Commission, which was dismissed and the Hon’ble National Commission observed as follows

          7.       From this and the evidence produced on behalf of the complainant before the Fora below, it is abundantly clear that the entire matter in the complaint filed by Smt. Sushma Goel relates to operation of a bank account maintained by a commercial organization for a commercial purpose. The revision petition itself claims in para 3.1 that-

                         “Revisionist is engaged in business of the share trading and is an authorized agent of M/s Bonanza Portfolio Ltd. (herein referred to as “Company”) a company incorporated under Companies Act, 1956 having its office at 4353/4C, Ansari Road, Darya Ganj, New Delhi.

8        By this admission the complaint will fall within the exception clause contained in Section 2(1)(d) (ii) of the Consumer Protection Act, as amended in 2002. In terms of this provision, the RP/complainant does not qualify to be a consumer for the purpose of the Consumer Protection Act, 1986.Therefore, in our view, the State Consumer Disputes Redressal Commission, Uttrakhand has rightly rejected the Consumer complaint filed by the Revision Petitioner.  

            This authority applies on all fours to the present case. We are therefore, of the opinion that the complainant does not fall under the definition of consumer and the present complaint does not lie as the loan was taken by the complainant for commercial purpose.

7.                           The next objection against the maintainability of the complaint raised by the OP is that the complainant had earlier filed a Civil Writ Petition No.507 of 2011, before the Punjab and Haryana High Court which is fixed for 10.11.2011 The complainant has also approached Debt Recovery Tribunal, Chandigarh by filing an application under Section 17(1) of the SARFAESI Act. It is argued that the complainant is taking recourse to multiple/parallel proceedings to attain his objective and therefore, the present complaint is not maintainable.  As against it the learned Counsel for the complainant while admitting the filing of the application before the  Debt Recovery Tribunal and the Civil Writ Petition before the Hon’ble Punjab and Haryana High Court maintained that the same do not debar him from filing the complaint before this Commission for deficiency in service on their part. In support of his contention the learned Counsel referred to the case Viswa Lakshimi Sasidharan & Ors Vs. The Branch Manager, Syndicate Bank III (1997) CPJ 8 (SC) in that case a loan was taken by the complainant but the total amount was not disbursed to him. The complainant filed a complaint for damages against the bank alleging that total amount of loan was not paid to him due to which it could not carry the business and discharge the obligations to pay labour charges and therefore, could not manufacture the product and suffered losses.  On the other hand the bank had filed a Civil Suit for recovery of the amount from the complainant.  It was in those circumstances held that mere filing of suit for recovery of the amount by the OP may not be an absolute bar on the Commission to go into that question for the reason that the issue before the Civil Court is not the deficiency in service unless it is specifically raised as a defence in the suit. In the present case the facts are different because here the application under SARFAESI Act and the Writ Petition before the Hon’ble High Court have been filed by the complainant himself and not by the OP.  The facts and the relief claimed is also similar in all these three cases.

                    In para No. 5.13 of the application it was mentioned by the complainant that the OPs debited an amount of Rs.3,93,771.00 in their account without any authorization under the nomenclature of processing fee.  In para No.5.16 the complainant mentioned regarding change of interest from BPLR- 2% to BPLR-1% and further to BPLR, which according to him is arbitrary and irrational.  In para No. 5.17 the demand of Rs.6,56,285/-  on 31.3.2010 as processing fee was said to be without any basis.  In para 5.28 it was alleged that the OP has wrongly charged an amount of Rs.10.00 lacs towards processing fee and Rs.46.00 lacs towards interest. In the prayer clause again a mention was made about the interest and process fee, which according to the complainant have been unauthorizedly debited to his account. The complainant therefore, prayed for quashing of the notice and to recast their account and to apply interest and other charges strictly in accordance with the contract. 

                    The complainant then filed a Writ Petition before the Hon’ble Punjab and Haryana High Court, in para No.12 of which it was mentioned  that the OP-bank has changed the rate of interest from BPLR-2% to BPLR-1% and further to BPLR, which was arbitrary and irrational.  In para 13 the complainant mentioned about the notice demanding Rs.6,56,285/- as process fee. In para No. 14 the amount of Rs.3,93,771/- demanded as processing fee was said to be wrong. In para No.24 the complainant mentioned that the OP have erroneously recovered interest amount of Rs.46.00  lacs and processing fee of Rs.10.00 lacs, a total of 56.00 lacs.  In the prayer clause the complainant prayed for quashing the notice dated 12.10.2010; for placing on record documents vide which the complainant was liable to pay interest @BPLR minus 2%.

8.                           As regards the present complaint, the same facts are mentioned to prove the deficiency in service on the part of the OP.  In para 6 of the complaint it is mentioned that the interest rate was stipulated as BPLR minus 2%,  that the OP bank charged processing fee and recovered an amount of RS.3,93,771.00 without any authorization. In para 12 again interest rate of BPLR minus 2%, was mentioned and the change to BPLR minus 1% and further to BPLR were alleged to be arbitrary and irrational.  In para 13 the charges of Rs.6,56,285/- as processing fee on 31.3.2010 was mentioned as illegal and wrong.  In para No. 23 of the complainant it was mentioned that the OP bank has charged Rs.10.00 lacs as processing fee and Rs.46.00 lacs towards interest erroneously. In the prayer clause the complainant demanded the refund of aforesaid amount of Rs.56.00 lacs towards interest and processing fee and further compensation of Rs.12.00 lacs has been made.

9.                           A comparative reading of the application before the Debt Recovery Tribunal, Civil Writ Petition before the Hon’ble Punjab and Haryana High Court and the present complaint show that the dispute between the parties is, as to whether the rate of interest was validly changed/enhanced by the OP-bank and whether the processing fee was correctly recovered from the complainant. Before the Debt Recovery Tribunal his contention is that if this amount is reduced then nothing would be payable by him and his account is not NPA and therefore, the proceedings against him are liable to be set aside.  He went to the Hon’ble High Court in the Civil Writ Petition with the same request and has also come to this Commission alleging that the said act of the OP amounts to deficiency in service.  The same question is to be determined before all the three authorities. It is the contention of the complainant that the bank has acted wrongly on both the accounts. Now the question is whether the complainant should be allowed to agitate the matter before three different authorities or not.  His contention based on the authority Viswa Lakshimi Sasidharan & Ors Vs. The Branch Manager, Syndicate Bank III (1997) CPJ 8 (SC) is not applicable in the present case because in that case the Civil Suit was filed by the bank(OP), whereas in the present case all the three lis have been filed by the complainant himself.

10.                       In case of Life Insurance Corporation of India Vs Jagan Nath Goel 2000 (I) CPC 164 a writ petition was filed by the complainant against the repudiation of his claim by the Insurance Company but the same was dismissed by the Hon’ble High Court. The complainant then filed a complaint before the Consumer Forum. It was held that parallel proceedings on the same subject cannot be allowed to proceed and the complaint was accordingly dismissed. In case of Kotak Mohindra Primus Limited and others Vs. Mohan Lal 2010 (2) CLT 683 and U Rajendran Vs. Tamilnadu Mercantile Bank. CPC 1992 167 (NC) the complainant had also filed civil suits in addition to the complaint under the Act to enforce his right and it was held that parallel proceedings for the same cause of action cannot be sustained.  In case of State Bank of India Vs. Shaildender Chaudhary IV(2010) CPJ 234 the complaint was dismissed for this reason even when the civil suit had been filed by the OP. We are of the opinion that when the complainant has already taken recourse to Debt Recovery Tribunal and the Hon’ble High Court  in the Writ Petition, this matter would be agitated by him in those proceedings and the present complaint before this Commission would not be maintainable.

11.                       Otherwise also this Commission under its limited jurisdiction would not be in a position to analyze the facts and evidence adduced by the parties. It has been noticed that the complainant alongwith his complaint has submitted 68 documents for consideration. On the other hand the OP has filed its reply alongwith documents covering 431 pages. It may be mentioned again for the sake of repetition that the complainant has taken a loan from the OP bank, the amount was disbursed on different dates, as per the complainant the interest rate was initially BPLR minus 2%, which was wrongly enhanced to BPLR minus 1% and thereafter to BPLR. His further contention is that he was not liable to pay processing fee but the OP-bank wrongly charged an amount of Rs.6,56,285/- and 3,93,771/-. The disposal of the complaint requires detailed analyses of the facts and documents of the case which in these summary proceedings would not be possible by this Commission to undertake. In this respect, we may refer to Oriental Insurance Co. Ltd. Vs. Munimahesh Patel (2006) 7 (SC) 655 and Synco Industries Vs. State Bank of Bikaner and Jaipur and others AIR 2002 (SC) 568. This Commission in case of C.B. Singh (Dr) VS. HDFC bank and another 2009(4) CLT 563 and Samed Laboratories Vs. State Bank of India complaint case No.19 of 2009 decided on 25.11.2010 has taken the same view. We are therefore, of the opinion that due to this reason also the complaint before this Commission is not maintainable.

12.                  In view of the above discussion, we are of the opinion that this complaint cannot succeed and the same is accordingly dismissed.  The complainant would be at liberty to approach the appropriate forum for redressal of his grievance if so advised. The parties are left to bear their own costs.

                    Copies of this order be sent to the parties free of charge.

Pronounced.

17^th October, 2011                                       

             [JUSTICE SHAM SUNDER]

PRESIDENT

[NEENA SANDHU]

MEMBER

[JAGROOP SINGH MAHAL]

MEMBER

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