Order no. 3              

The authorized representative of the complainant is present.

The case is taken up for admission hearing.

Perused and considered the complaint application. Heard.

The case of the complainant is that he carries on a business of building construction/development under the name and style “Shikha Enclave” as sole proprietor. He runs business of construction of flats and sells of the same exclusively for the purpose of earning his livelihood as self-employment. For the purpose of the business he maintain a business account bearing Current Account no.1532050001601 with Punjab National Bank (formerly U.B.I. India), BESUS Branch, Howrah. As the complainant constructs residential flats, the intended purchasers who avails home loan from banks disburse the amount through the bank to his Current Account as mentioned above. The complainant via SMS from bank came to know that on different dates a total sum of Rs.5,10,000/- (Rupees five lakh ten thousand) only had been withdrawn from his account on 23.08.2019, 30.09.2019 and 30.10.2019 by the bank. Opposite party no.3 verbally informed the complainant that the said amount had been withdrawn from his account as the borrower, namely Krishna Halder, who purchased a flat from the complainant has not paid the EMI.

The complainant repeatedly request the Branch Manager to revert the said unauthorized withdrawn amount in his current account, but no result yielded  till date.

It is further stated that the complainant also runs a business of retail women’s garment under the trade name and style “Shikha sree”. The complainant took a cash credit loan of Rs.40,00,000/- (Rupees forty lakh) only from the said bank by creating an equitable mortgage of immovable properties. Due to Covid 19 pandemic, the condition of the business deteriorated and he suffered loss due to various other reasons. In such situation, the complainant was unable to continue transaction in his cash credit account being no.0171250000408. On 01.07.2021 the opposite party no.2 served a notice upon the complainant under section 13(2) of the securitization and Reconstruction of Financial Assets and Enforcement of security Interest Act, 2002 demanding Rs.47,07,946.12 (Rupees forty seven lakh seven thousand nine hundred forty six point twelve) only with interest due from 01.07.2021.

The complainant vide his reply dated 13.07.2021 raised the issue of unauthorised withdrawal of Rs.5,10,000/- from his Current Account maintained in the BESUS branch of opposite party no.1 and called upon the bank to transfer the said amount in his Cash Credit Account to enable him to reduce the debit balance of the said account but the clarification given by the bank in its reply dated 12.08.2021 is not sustainable in the eye of law. The complainant submitted a RTI application to which the bank admitted such deduction from the account of the complainant on the ground that registration processes of the flat was not completed by the borrower and the same was credited in the home loan account of the borrower. According to the complainant, the act done by the bank is unlawful trade practice and amounts to deficiency in service. Hence this case.

The complainant himself disclosed in his complaint application that he has multiple businesses of his own. He runs a business under the name and style “Shikha Enclave”of constructing building and selling of flats etc. to intending purchasers for which he maintain a current account being no. 1532050001601 with Punjab National Bank BESUS Branch, Howrah. He also runs another retail women’s Garment business under the trade name and style “Shikha sree” for which he took a cash credit loan of Rs.40,00,000/- (Rupees forty lakhs) only from the same bank.

From the averment made above and the photocopies of current account transaction, the magnitude of the multiple businesses of the complainant is clearly visible. By mere stating that the complainant is running businesses for his livelihood as self employment would not be sufficient to eliminate ‘commercial purpose’ as stated in the Act. The magnitude of the multiple businesses and the money involved therein clearly suggest that such businesses cannot be runned by the complainant on self employment and the Current Account is being used by the complainant for as commercial purpose to gain profit from his business.

That apart, the borrower who obtained loan and the amount was credited by the bank has not been made party to this case. So, the case also suffers for want of necessary party.

It appears from the material on record that Ld. Advocate for the bank vide letter dated 19.07.2021 disclosed that as per payment schedule mentioned in the agreement for sale of the flat the bank has disbursed the loan amount in the current account of the complainant. This agreement for sale has also been withheld for the reason best known to the complainant. The complainant has not alleged in a single sentence that he had not been intimated about the reversal of the said amount from his current account by the bank. The complainant has not come before this Commission with clean hands.

It is needless to reiterate that the current account in question is being used by the complainant  for generating income/profit from his business which is being run by him but not certainly on ‘self employment’.

Therefore the complainant is not a consumer in terms of section 2(7) of the Consumer Protection Act, 2019.

Having considered the discussion made above, it is crystal clear that the case is not maintainable in the eye of law and liable to be dismissed.

Hence, it is

O R D E R E D

that the complaint case be and the same is dismissed as not maintainable in law.

Dictated by me

….....................

  President