PER MR. JUSTICE V.B.GUPTA, PRESIDING MEMBER Present revision petition has been filed under section 21(b) of the Consumer Protection Act, 1986 (short, ct praying for setting aside order dated 22.4.2008, passed in (First Appeal No.155 of 2007) by Maharashtra State Consumer Disputes Redressal Commission, Mumbai (short, tate Commission. 2. Respondent/complainant had filed a consumer complaint under section 12 of the Act on the allegations that he is having business of hardware and steel in the Kolhapur City. He is customer of Petitioner Bank/Opposite Party. It is stated that respondent is having his loan share account with the Petitioner. Respondent had purchased shares of many well-known companies and has opened the share Mortgage Account with the Petitioner. Further, respondent had taken loan against the said shares from the Petitioner. As per written instructions of the Petitioner, some of the shares have been sold and have maintained the said account in a proper manner. It is also stated that respondent has given the oral as well as written permission to the petitioner for selling the shares from the said account. As per fluctuations of the price of the shares in the share market and due to the same, if the overdraft facility limit is reduced from the specific stage, then the shares of the said amount shall be sold out in the market or the cash amount lying depositing in the said account. However, if respondent failed to maintain the said account properly, then Petitioner has the right to sell the shares out the amount of deficit in the said account. However, petitioner had no right to sell or exchange any of the shares without the written permission of the respondent from the said account. 3. As there was sudden fall in the value of the shares and inspite of intimation, respondent could not maintain his account properly. Therefore, petitioner sold the shares to which respondent raised strong objection on the ground, that without proper intimation and without waiting for seven days as per terms of the contract, Petitioner sold the shares and thereby caused financial loss to him. 4. It is further stated that shares of Hero Honda were sold for Rs.95,212/- and shares of Glaxo Smithkline Pharmaceutical Ltd. were sold for Rs.59,820/- on 9.6.2004, as there was shortfall in the account of the respondent. The respondent deposited additional amount of Rs.20,000/- to make the account regular. This was in response to the notice sent by the Petitioner on 17.5.2004. The petitioner sold the shares on 15.6.2004. The intimation by telegram was given to the respondent on 13.6.2004. In fact, Petitioner sold the shares within two days from the telegraphic notice. As per the contract, Petitioner was required to wait for seven days, but it did not wait for seven days and sold the shares within two days from the date of service of telegraphic notice. This is a serious deficiency on the part of the Petitioner. With these allegations, respondent filed a complaint before District Consumer Disputes Redressal Forum, Kolhapur (short, istrict Forum with following prayers ; (a) That the Opposite Party Bank has sold the shares from the share account of the complainant and owned by him of the alaxo Smithkline Pharmaceuticals Ltd.and ata Chemicals Ltd.on 17.6.2004 and caused the loss and damage to the complainant amounting to Rs.47,260/- be ordered to be paid by the Opposite Party Bank to the complainant viz. Rs.47,260/- together with interest on the same at the rate of 18% per annum, being the loss caused to him. (b) The amount of Rs.5,000/- also be ordered to be paid by the Opposite Party Bank to the complainant towards the compensation for mental tortures and loss ; (c) The cost of the complaint amount to Rs.1,000/- be ordered to be paid by the Opposite Party to the Complainant as he has been compelled to file the same due to fault on their part in acting illegally. 5. The complaint was contested by the petitioner, who in its written statement took the plea, that respondent had never run his account on regular basis. Respondent gave proposal of Rs.20 lakh loan on share hypothecation to the petitioner. The loan amount was sanctioned to the respondent on share market value. The respondent was well aware of the condition to make payment in cash or deposit amount, if the amount was in excess of the loan account of share market value. An agreement was reached between the petitioner and respondent on 2.8.2004. It is further stated that during May, 2004, price of hypothecated shares came down and the respondent had made use of total amount of Rs.20,19,061.31, though he had the permissible limit of Rs.18,50,000/-. Hence, the excess amount came to Rs.1,69,061.31, due to lowering price of respondent shares. Therefore, vide letter dated 17.5.2004, it was intimated to the respondent to regularize his account. Upon this, respondent only deposited a sum of Rs.20,000/- by cheque. Hence, the petitioner sold out respondent hypothecated 200 shares of Hero Honda Company for Rs.95,212/- on 9.7.2004 as also sold out 100 shares of Glaxo Smithklean Pharmaceuticals Ltd. for Rs.59,820/- on 15.6.2004 and proceeds of these shares deposited in the account of the respondent. In the circumstances, the petitioner has not committed any default in rendering services. 6. District Forum, vide their order dated 29.12.2006, allowed the complaint and passed the following directions ; 2) Respondents Bank is directed to pay the sum of Rs.46,260/- to the complainant and interest be paid at 9% from 17.6.2004 till receipt of final payment. (3) The Respondents Bank is directed to pay Rs.500/- towards cost of this complaint to the complainant. 7. Aggrieved by the order of District Forum, Petitioner filed an appeal before the State Commission, which dismissed the same. Hence, the present revision. 8. We have heard the learned counsel for the parties and gone through the record as well as written submissions filed by the respondent. 9. In support of its contentions, learned counsel for respondent has relied upon the following judgments ; (i) U.Bhikamchand K. & B.Nirmal Kumar Jain Vs. The Chief Manager, HDFC Bank Ltd., (FA No.74 of 2007) decided by this Commission and (ii) Unit Trust of India Vs. Sri Shankar Das, Civil Appeal No.7604 of 2002, decided by the Apex Court on 28.4.2009. 10. The short question which arises for consideration in the present case is as to whether respondent comes within the ambit of a onsumeras defined under the Consumer Protection Act, 1986 (for short as Act). 11. Expression onsumerhas been defined in Section 2 (1) (d) of the Act, which reads as under; onsumermeans 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 purpose. Explanation------ For the purpose of this clause, ommercial purposedoes 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. 12. As per averments made in Para No.1 (C) of the complaint, it is manifestly clear that respondent had been regularly trading in business of shares, which read as under ; C) That the complainant has opened the share account No.1642100000471 with the opposite party No.1 Bank and the said account has been maintained and kept in a proper manner since the beginning. The complainant has withdrawn the amount credited to the said account from time to time and as and when there is deficiency, then the complainant has sold some of the shares and credited the said amount in the said account. Further, if it is needed, then the complainant has given the oral as well as written permission to the opposite party Bank for selling the shares from the said account. As per the fluctuations in the price of the shares in the share market, and due to the same, if the overdraft facility limit is reduced from the specific stage, then the shares of the said amount shall be sold out in the market or the cash amount is being deposited in the said account and maintain the said account. But however, if the complainant has failed to maintain the said account properly thereby maintaining the balance amount, then the opposite party Bank has the right to sell the shares out the amount of deficit in the said account. However, on maintaining the said account properly keeping the balance in the said account, then the opposite party Bank has no right to sell or exchange any of the shares without the written permission of the complainant from the said account. 13. It is an admitted fact that respondent had availed ver draft facilityfrom the petitioner for Rs.20 lakhs by mortgage of shares with the Petitioner Bank, as per Loan Agreement-Cum-Guarantee. The respondent in his written submission filed before this Commission has not specifically denied that the loan was not used for his business of selling the hardware and steel or for trading in shares. Even in his complaint filed before the District Forum, respondent has failed to mention the purpose of availing of the loan of Rs.20 lakhs. In fact, the respondent has mentioned that he is having loan share account with the petitioner and that the respondent has purchased shares of very well-known companies. He has also admitted that he is in the business of selling the hardware and steel. Nowhere in his complaint has he pleaded that the loan was taken for any purpose other than commercial. 14. Under such circumstances, the respondent would not be a consumer as per Section 2 (1) (d) (ii) of the Act. 15. Both the fora below did not deal with the point at all as to whether respondent is a onsumeror not. For the reasons stated above, the present revision petition is allowed and the order passed by the fora below are set aside. Consequently, the complaint filed by the respondent before the District Forum stands dismissed. 16. No order as to cost.