Order No. 3 date: 17-11-2016
Sri Debasis Bhattacharya, Member
The record is put up today for passing order in respect of the admissibility of this case.
The factual score that is essential to be depicted is that the OP bank, against the loan application of the Complainant made on 24-08-2009, sanctioned loan amounting to Rs. 19,00,000/- on 01-12-2010, i.e., after 16 months from the date of his loan application. As a result, the project cost shot up rapidly. It is alleged that due to delayed disbursement of loan by the OP bank, Complainant’s family ruined. As the factual matrix further unfurls, aggrieved by such lackadaisical approach of the OP bank, the Complainant filed two writ petitions before the Hon’ble High Court at Calcutta being W.P. No. 23816 (W) of 2010 and 3288 of 2014. It is alleged that despite the solemn order of the Hon’ble Court, the OP bank did not refrain from creating obstacles in one form or the other and even refused to sanction additional cash credit loan. It is contended by the Complainant that he is entitled to get compensation for the assured amount of loan along with compensation for his mental agony, pain, sufferings and loss of income apart from the interest of the claim amount. In order to get these reliefs, Complainant filed this case.
We have heard the submissions averred by the Ld. Advocate of the Complainant. We have also glanced through the materials on record carefully.
To appreciate the heart of the dispute, we think it apposite to x-ray the definition of the term “consumer” as defined under Sec. 2(1)(d) of the Consumer Protection Act, 1986.
"consumer" means 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 or partly promised, or under any system of deferred payment when such use is made with the 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 a 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 of such services for any commercial purposes;
Explanation.— For the purposes 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 his livelihood by means of self-employment”.
Now let us consider some of the critical observations made by Hon’ble Apex Court as well as Hon’ble National Commission pertaining to “commercial purpose”.
In the case of Laxmi Engineering Works v. P.S.G. Industrial Institute, reported in (1995) 3 SCC 583, the Hon’ble Apex Court elaborately dealt with the definition of “consumer” under Section 2(1)(d). Because of what we are going to ultimately say in this case, we think seemly to reproduce the relevant discussion from the said authority:-
“11. Now coming back to the definition of the expression ‘consumer’ in Section 2(d), a consumer means insofar as is relevant for the purpose of this appeal, (i) a person who buys any goods for consideration; it is immaterial whether the consideration is paid or promised, or partly paid and partly promised, or whether the payment of consideration is deferred; (ii) a person who uses such goods with the approval of the person who buys such goods for consideration; (iii) but does not include a person who buys such goods for resale or for any commercial purpose. The expression ‘resale’ is clear enough. Controversy has, however, arisen with respect to meaning of the expression “commercial purpose”. It is also not defined in the Act. In the absence of a definition, we have to go by its ordinary meaning. ‘Commercial’ denotes 14 “pertaining to commerce” (Chamber’s Twentieth Century Dictionary); it means “connected with, or engaged in commerce; mercantile; having profit as the main aim” (Collins English Dictionary) whereas the word ‘commerce’ means “financial transactions especially buying and selling of merchandise, on a large scale” (Concise Oxford Dictionary). The National Commission appears to have been taking a consistent view that where a person purchases goods “with a view to using such goods for carrying on any activity on a large scale for the purpose of earning profit” he will not be a ‘consumer’ within the meaning of Section 2(d)(i) of the Act. Broadly affirming the said view and more particularly with a view to obviate any confusion — the expression “large scale” is not a very precise expression — Parliament stepped in and added the explanation to Section 2(d)(i) by Ordinance/Amendment Act, 1993. The explanation excludes certain purposes from the purview of the expression “commercial purpose” — a case of exception to an exception. Let us elaborate: a person who buys a typewriter or a car and uses them for his personal use is certainly a consumer but a person who buys a typewriter or a car for typing others’ work for consideration or for plying the car as a taxi can be said to be using the typewriter/car for a commercial purpose. The explanation however clarifies that in certain situations, purchase of goods for “commercial purpose” would not yet take the purchaser out of the definition of expression ‘consumer’. If the commercial use is by the purchaser himself for the purpose of earning his livelihood by means of self-employment, such purchaser of goods is yet a ‘consumer’. In the illustration given above, if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods 15 uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a “commercial purpose” and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a “commercial purpose”, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to.”
In Super Engineering Corporation Vs Sanjay Vinayak Pant & Anr [1992 CPJ (1) 95 NC], the Hon'ble National Commission observed that the intention behind the amendment of the Parliament is to deny the benefits of the Act to persons purchasing goods either for the purpose of resale or for the purpose of being used in profit making activity engaged on a large scale. Thus, the persons who purchase goods for consumption or use in the manufacture of goods or commodities on a large scale with a view to make profit, will all fall outside the scope of the definition of "consumer".
In Synco Textiles Pvt. Ltd. v. Greaves Cotton & Co. Ltd., reported in I (1991) CPJ 499 (NC), the Hon’ble Commission while emphasizing on the word "commercial purpose" laid down that "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".
The Hon’ble National Commission in the matter of M/S. Richa & Co. vs DLF Universal Ltd. (C. C. No.), has gone at great length to illustrate the circumstances where a commercial venture can be adjudicated under the 1986 Act and where not. Relevant portion of the solemn observation of the Hon’ble Commission is stated hereunder:
“….if the purchaser himself works on typewriter or plies the car as a taxi himself, he does not cease to be a consumer. In other words, if the buyer of goods uses them himself, i.e., by self-employment, for earning his livelihood, it would not be treated as a commercial purpose and he does not cease to be a consumer for the purposes of the Act. The explanation reduces the question, what is a commercial purpose, to a question of fact to be decided in the facts of each case. It is not the value of the goods that matters but the purpose to which the goods bought are put to. The several words employed in the explanation, viz., uses them by himself, exclusively for the purpose of earning his livelihood and by means of self-employment make the intention of Parliament abundantly clear, that the goods bought must be used by the buyer himself by employing himself for earning his livelihood. A few more illustrations would serve to emphasise what we say. A person who purchases an auto-rickshaw to ply it himself on hire for earning his livelihood would be a consumer. Similarly, a purchaser of a truck who purchases it for plying it as a public carrier by himself would be a consumer. A person who purchases a lathe machine or other machine to operate it himself for earning his livelihood would be a consumer. (In the above illustrations, if such buyer takes the assistance of one or two persons to assist/help him in operating the vehicle or machinery, he does not cease to be a consumer.) As against this a person who purchases an auto-rickshaw, a car or a lathe machine or other machine to be plied or operated exclusively by another person would not be a consumer. This is the necessary limitation flowing from the expression used by him, and by means of self-employment in the explanation. The ambiguity in the meaning of the words for the purpose of earning his livelihood is explained and clarified by the other two sets of words”.
Now let us concentrate on the emerging facts of this case.
It appears, the Complainant approached the OP Bank in August, 2009, for financing his Plywood and Saw Mill project for making plywood cot, almirah, dining table, ordinary table, chair, bench, steel almirah etc. for which total capital investment was estimated at Rs. 24,36,000/-. On going through the photocopy of Project Report, we find that, for the purpose of running this project, he envisaged requirement of 21 nos. persons that include Supervisor – 1, Skilled Staff – 5, Semi skilled staff – 5, labour – 10. It also transpires that the projected Salary and Wages cost per month was calculated at Rs. 70,000/-. Another discerning fact of this case is that nowhere in the petition of complaint, any such averment has been made by the Complainant that he ventured into this project by means of self-employment for the exclusive purpose of his livelihood.
On a studied scrutiny of the definition of “consumer” under the Consumer Protection Act, 1986 and also giving a thoughtful consideration into the observations made by Hon’ble Supreme Court and Hon’ble National Commission, it appears to us that the Plywood and Saw Mill Project, as started by the Complainant is purely a commercial venture with the ostensible purpose for earning profit and such venture has not been initiated by means of self-employment. Therefore, we are constrained to hold that the Complainant is not a consumer. Having said this, we, however, make it clear that we have not expressed any opinion on the merits of the case.
Hence,
O R D E R E D
that CC/428/2016 be and the same is dismissed being not maintainable. The Complainant is at liberty to seek remedy of his grievance before the court having competent jurisdiction. For the purposes of limitation, the time spent in the present proceedings shall be excluded. No costs.
