26.02.2016
MR. TARAPADA GANGOPADHYAY, HON’BLE MEMBER
The present Appeal u/s 15 of the Consumer Protection Act, 1986 has been filed by the Complainant challenging the judgment and order dt. 25.11.2013 passed by the Ld. District Consumer Disputes Redressal Forum, Kolkata, Unit-II in C.C.Case No. 218 of 2012, dismissing the Complaint showing the ground that the Complainant being a Limited Company does not fall within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986.
Facts of the case are, in brief, that the Appellant/Complainant being a Limited Company used to hold a Current Account No. 3365001032 for the purpose of doing transactions of a business of Motor Spirit, High Speed Diesel, Petroleum products, Tyres & Tubes and other accessories, etc. On 10.7.2009 the Respondent/OP-Bank asked the Appellant/Complainant-Company to furnish some documents in order to comply with the KYC-norms. After receipt of such advice, the Appellant/Complainant-Company sent the requisite documents to the Respondent/OP-Bank firstly on 25.11.2009 and further on 2.12.2009, 26.5.2011 and 19.10.2011, which were acknowledged by the Appellant/OP-Bank, as averred in the Petition of Complaint. Even after such compliance with the requirement of the KYC-norms, the said Current Account of the Appellant/Complainant-Company was ‘blocked’ by the Respondent/OP-Bank showing the reason of non-compliance with the KYC-norms by the Appellant/Complainant-Company, as averred in the Petition of Complaint. At this juncture, the Appellant/Complainant-Company moved the Complaint concerned before the Ld. District Forum which dismissed the Complaint showing the ground as mentioned at the outset.
The Ld. Advocate for the Appellant/Complainant-Company filing BNA submits that as there was no commercial relation involving profit or loss with the Respondent/OP-Bank in dealing with the said Current Account, so the Appellant/Complainant-Company, which is a juristic person, falls within the definition of ‘Consumer’ as defined u/s 2(1)(d) of the Consumer Protection Act, 1986. In this connection, the Ld. Advocate refers to the following decisions:-
- Kaveri Telecom Ltd. Vs. Vijaya Bank, reported in IV (2014) CPJ 302 (NC);
- Branch Manager, ICICI Bank Ltd. Vs. Limenaph Chemicals Pvt. Ltd., reported in 1 (2005) CPJ 635 (NC);
- Madan Kumar Singh (D) through LR. Vs. Distt. Magistrate, Sultanpur and Ors., reported in (2009) 9 SCC 79;
- Canara Bank Vs. M/s. Jain Motor Trading Company and Mr. Virender Kumar Jain, decided by the Hon’ble National Commission on 29.7.2013 in First Appeal No. 432 of 2008.
The Ld. Advocate further submits that for non-compliance with the KYC norms, as alleged by the Respondent/OP-Bank, the transactions in the Bank cannot be stopped. In this connection, the Ld. Advocate refers to a decision of the Hon’ble High Court of Gujarat decided on 30.4.2012 in Cr. Misc. Application No. 5100 of 2012.
The Ld. Advocate finally submits that in view of the submission so advanced the Ld. District Forum erred in dismissing the Complaint and hence, the Appeal should be allowed upon setting aside the impugned judgment and order of the Ld. District Forum as also restoring the Complaint.
On the other hand, the Ld. Advocate for the Respondent/OP-Bank, filing BNA, repels the aforesaid argument of the Ld. Advocate for the Appellant/Complainant-Company advancing the argument that the Current Account in question is undisputedly linked with the commercial transactions of the Appellant/Complainant-Company which has admitted in the Petition of Complaint about its re-sale business of various petroleum products, tyres, tubes and other accessories as evident from the Petition of Complaint.
The Ld. Advocate continues that such admitted commercial purpose without any averment in the Petition of Complaint about self-employment is not covered even by the ‘Explanation’ appended to the definition of ‘Consumer’ u/s 2(1)(d) of the Consumer Protection Act, 1986 including the commercial purpose for a limited purpose of self-employment as is not the case on hand. The Ld. Advocate adds that the involvement of many shareholders in sharing the profit or loss of the Company, as appearing from the materials on record, makes it conspicuous that the business of the Appellant/Complainant-Company is not for the purpose of ‘self-employment’.
The Ld. Advocate adds that the argument by the Ld. Advocate for the Appellant/Complainant-Company about the absence of profit in the banking transactions does not stand to reason as the admitted re-sale business of the Appellant/ Complainant-Company is linked with profit or loss, without which re-sale business would not survive.
The Ld. Advocate further submits that the aforesaid facts and admitted position of the Appellant/Complainant-Company to the effect of involvement of business transactions in the Current Account clearly establish that the Current Account in question of the Appellant/Complainant-Company was linked with ‘commercial purpose’ and thus the Appellant/Complainant-Company does not fall within the definition of ‘Consumer’ and hence, the Ld. District Forum did not commit any illegality or material irregularity in dismissing the Complaint. In this connection, the Ld. Advocate refers to the following decisions:
- Sultej Industries Ltd. Vs. Punjab National Bank, reported in III (2012) CPJ 82; and
- Sam Fine O Chem Limited Vs. Union Bank of India, reported in II (2013) CPJ 490 (NC).
We have heard both the sides, considered their respective submission and perused the materials on records.
The Petition of Complaint reveals that the Appellant/Complainant is a Limited Company with Corporate Identity No. U51909WB1965PTC026355 under the Companies Act, 1956 (Running Page-173 of Memo of Appeal). It is also revealed from the averment in the Petition of Complaint that the Appellant/ Complainant-Company used to carry on re-sale business of Motor Spirit, other petroleum products, tyres, tubes and other accessories etc. (Running Page-20 of Memo of Appeal). In the said Petition of Complaint there is no mention to the effect that the business of the Company is meant for ‘self-employment’. Materials on records further reveal that about nine persons are associated with the Appellant/Complainant-Company as shareholders (Running Page-205 of Memo of Appeal) indicating thereby that the business of the Company was not for ‘self-employment’.
With the above background, the Appellant/Complainant-Company opened the Current Account No. 33605001032 (Running Page-204 of Memo of Appeal) with the Respondent/OP-Bank for financial transactions of the said business. The aforesaid evidence on records clearly indicate that the Appellant/ Complainant-Company had been availing of the services of the Respondent/OP-Bank for ‘commercial purpose’ bereft of ‘self-employment’ as more than one person is associated with the Appellant/Complainant-Company as shareholders. There being no case of ‘self-employment’ the Appellant/Complainant-Company does not fall within the definition of ‘Consumer’ even under the inclusive ‘Explanation’ appended to Section 2(1)(d) of the Consumer Protection Act, 1986.
On the above facts and evidence on records we find strong force in the submission of the Ld. Advocate for the Respondent/OP-Bank as also its reliance on the decisions as referred to hereinbefore.
Apart from the decisions relied upon by the Ld. Advocate for the Respondent/OP-Bank, we also place reliance on another decision of the Hon’ble National Commission in M/s. MCS Computer Services Pvt. Ltd. Vs. M/s. Allena Auto Industries Pvt. Ltd., reported in 2012 (2) CPR 68 (NC), wherein it was held, “Respondent is a private limited company and the commercial activities carried out by it cannot be for its earning livelihood by means of self-employment. Company has to act through somebody and the question of livelihood and self-employment under these circumstances would not arise. Company has judicious identity and it can be sued through a person. Company does the commercial activities for its shareholders. Question of earning livelihood by means of self-employment would not arise.” In another decision of the Hon’ble Supreme Court in Economic Transport Organisation Vs. M/s. Charan Spinning Mills Pvt. Ltd., reported in 1 2010 CPJ 4 (SC) it was laid down that when the services were availed of for ‘commercial purpose’, person availing such services would not be a Consumer u/s 2(1)(d) of the Consumer Protection Act, 1986.
The decisions referred to hereinbefore by the Ld. Advocate for the Appellant/Complainant-Company are of no help to the Appellant/Complainant-Company as the facts of those cases are not squarely identical with the facts of the case on hand.
In view of the foregoing discussions and also having due regard to the decisions cited hereinbefore, we do not find any such illegality or material irregularity in the impugned judgment and order that warrants our interference.
Consequently, the Appeal is dismissed being bereft of merits and the impugned judgment and order is affirmed. No order as to costs.
