M/s Shiva Bitumen, Office at Plot No.959, Industrial Area, Phase-II, Chandigarh, through its Partners G.C. Walia and Jyoti Walia.

……Applicant/Appellant/complainant

V e r s u s

1.State Bank of India, through its Branch Manager, Ram

2.State Bank of India, through its Chief General

Appeal under Section 15 of the Consumer Protection Act, 1986.

BEFORE:  

Argued by:   

PER JUSTICE SHAM SUNDER (RETD.), PRESIDENT

2.            an account payee cheque, amounting to Rs.9,36,769/-, which was dishonoured, with the remarks “wrong account holder name”. The complainant was charged Rs.200/-, for the same, on 19.03.2012.  When the matter was brought to the notice of the Opposite Parties, they corrected their mistake. Thereafter, the cheque was re-deposited, on 23.03.2012, for which the Opposite Parties charged interest, amounting to Rs.2,604.98Ps.

3.            It was stated that, on 20.04.2012, the complainant firm, issued RTGS remittance of Rs.5,99,056/-, to the Indian Oil Corporation Limited (IOCL) Panipat, but the Opposite Parties diverted the said payment to IOCL Bombay, by making entry, in a different account, as a result whereof, release of the raw material was delayed and the supply of tanker to the complainant firm, was held up.   When the matter was taken up with the Opposite Parties, the payment was got reverted and the mistake was rectified.  It was further stated that the Opposite Parties, arbitrarily charged interest, in the sum of Rs.1,107.84Ps., for wrong payment made by them. 

4.          It was further stated that, on 23.04.2012, the complainant firm, issued another RTGS for Rs.3.00 lacs to IOCL Panipat, but the Opposite Parties, committed a blunder, by entering the amount of Rs.30,00,056/-.The said mistake was finally rectified, on 01.05.2012, but the Opposite Parties charged interest of Rs.8,967.67Ps.  Further, on 27.04.2012, the RTGS made by the complainant to M/s Rex Fuel Management Consultant failed, as the Opposite Parties, instead of feeding the beneficiary’s account, fed the sender’s account, in their system, due to which, the remittance was reverted to its (complainant) account. It was further stated that the Opposite Parties, also kept on charging interest, on the previous transactions, without supplying any details.  

5.          ide letters dated 12.05.2012 and 16.05.2012, the Opposite Parties, demanded a sum of Rs.5,67,826/- and Rs.53,074/- respectively, from the complainant.  The complainant requested the Opposite Parties, a number of times, to look into the matter, but to no avail.  Legal notice dated 08.10.2012, was also served upon the Opposite Parties, upon which they simply replied vide letter dated 15.10.2012, that the matter had been forwarded to the Senior Officials, and their remarks/decision would be suitably communicated to the complainant, in due course.  It was further stated that, however, no response was received, from the Opposite Parties. It was further stated that the aforesaid acts of the Opposite Parties, amounted to deficiency, in rendering service, as also indulgence into unfair trade practice. When the grievance of the complainant, was not redressed, left with no alternative, a complaint under Section 12 of the Consumer Protection Act, 1986 (hereinafter to be called as the Act only), was filed, seeking various reliefs, against the Opposite Parties.

6.            It was denied that any financial loss was caused to the complainant. It was further stated that neither there was any deficiency, in rendering service, on the part of the Opposite Parties, nor they indulged into unfair trade practice. The remaining averments, were denied, being wrong.

7.           8.           

9.            

10.        

11.        Alongwith the appeal, an application for condonation of delay of 61 days, as per the applicant/appellant (as per the office report 63 days), in filing the same (appeal), has been moved, stating therein, that, since, 

12.        We have heard the Counsel for the applicant/appellant, on the application, for condonation of delay, as also, in the main appeal, at the preliminary stage, and have gone through the record of the case, carefully.

13.        ,a case decided by a Full Bench of the Punjab and    held as under:-

“No doubt the words “sufficient cause” should receive liberal construction so as to advance substantial justice. However, when it is found that the applicants were most negligent in defending the case and their non-action and want of bonafides are clearly imputable, the Court would not help such a party. After all “sufficient cause” is an elastic expression for which no hard and fast guide-lines can be given and Court has to decide on the facts of each case as to whether, the defendant who has suffered ex-parte decree has been able to satisfactorily show sufficient cause for non- appearance and in examining this aspect, cumulative effect of all the relevant factors is to be seen.”

14.         ,it was held as under:-

“There is no denying the fact that the expression sufficient cause should normally be construed liberally so as to advance substantial justice, but that would be in a case where no negligence or inaction or want of bonafides is imputable to the applicant. The discretion to condone the delay is to be exercised judicially i.e. one is not to be swayed by sympathy or benevolence.”

15.           ,the Supreme Court observed as under:-

“We hold that in each and every case the Court has to examine whether delay in filing the Special Leave Petitions stands properly explained. This is the basic test which needs to be applied. The true guide is whether the petitioner has acted with reasonable diligence in the prosecution of his appeal/petition”.

16.           it was held as under:-

“The party should show that besides acting bona fide, it had taken all possible steps within its 

17.           it was held as under:-

“Section 5 of the Limitation Act is a hard task-master and judicial interpretation has encased it within a narrow compass. A large measure of case-law has grown around Section 5, its highlights being that one ought not easily to take away a right which has accrued to a party by lapse of time and that therefore a litigation who is not vigilant about his rights must explain every days delay”

18.        it was held as under:-

“It is also apposite to observe that while deciding an application filed in such cases for condonation of delay, the Court has to keep in mind that the special period of limitation has been prescribed under the Consumer Protection Act, 1986, for filing appeals and revisions in Consumer matters and the object of expeditious adjudication of the Consumer disputes will get defeated, if this Court was to entertain highly belated petitions filed against the orders of the Consumer Foras”

19.            

20.         Ram Lal and Ors. Vs. Rewa Coalfields Ltd., AIR 1962 Supreme Court 361,it was 

“It is, however, necessary to emphasize that even after sufficient cause has been shown a party is not entitled to the condonation of delay in question as a matter of right. The proof of a sufficient cause is a discretionary jurisdiction vested in the Court by S.5. If sufficient cause is not proved nothing further has to be done; the application for condonation has to be dismissed on that ground alone. If sufficient cause is shown then the Court has to enquire whether in its discretion it should condone the delay. This aspect of the matter naturally introduces the consideration of all relevant facts and it is at this stage that diligence of the party or its bona fides may fall for consideration; but the scope of the enquiry while exercising the discretionary power after sufficient cause is shown would naturally be limited only to such facts as the Court may regard as relevant.”

21.        ,that even if, sufficient cause is shown, then the Court has to enquire, whether, in its discretion, it should condone the delay. This aspect of the matter, requires the Commission, to take into   Ram Lal & Others’ case(supra)is fully applicable to the instant case. This is, therefore, not a fit case, in which this Commission, should exercise its discretion, in favour of the applicant/appellant, in condoning the delay.

22.        

23.        For proper decision of this question, the provisions of Section 2(1)(d) and Section 2(1)(o), defining the `consumer` and ‘service’ respectively, are extracted as under:-

 “(d) "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 then 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]; Added by Act 62 of 2002 w.e.f. 15.03.2003.

[Explanation. For the purposes of this sub-clause "commercial purpose" does not include use by a consumer 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;]

Section 2(1)(o) defines service as under:-

(o) "services" means service of any description which is made available to potential 16[users and includes, but not limited to, the provision of] facilities in connection with banking, Financing insurance, transport, processing, supply of electrical or other energy, board or lodging or both, 17[housing construction] entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service.”

24.        dmittedly, the complainant is a Partnership Firm. There is also, no dispute, with regard to the factum that the complainant is engaged in commercial activity of manufacturing Bitumen and its other allied products, on a large scale. The appellant/complainant, availed of the credit limits, from the Opposite Parties, in crores of rupees, as is evident, from Annexure R-4, copy of the letter written by them (Opposite Parties), to it. The turnover of the complainant is very huge, running into crores. These credit facilities were availed of, in other words, the services of the Opposite Parties were hired by the complainant, for commercial purpose i.e. for manufacturing activity, aforesaid, to earn huge profits,and not for earning livelihood, by way of self-employment. Under these circumstances, the complainant did not qualify as a consumer, as defined by Section 2(1)(d)(i) and (ii) of the Act. It is, therefore, held that the complainant does not fall within the ambit of a consumer, and, as such, the complaint was not maintainable.

25.        , in support of his contention, that the complainant fell within the definition of a consumer. It may be stated here, thatSection 2(1)(d)(ii), was amended by Act 62 of 2002 w.e.f. 15.03.2003, and it was incorporated therein that services availed of, for commercial purpose, were excluded from the ambit of services, and person doing so, did not fall within the definition of a consumer.Doson Chemicals Pvt. Ltd.`s case (supra),was decided onSection 2(1)(d)(ii), i.e. before. 15.03.2003. Similarly, inPunjab National Bank`s case (supra)Section 2(1)(d)(ii), of the Act. Under these circumstances, no help from these cases, can be drawn by the Counsel for the appellant. On the other hand,inEconomic Transport Organization Vs.Charan Spinning Mills (P) Ltd., & Anr., I (2010) CPJ 4 (SC), a Constitution Bench of the Hon`ble Supreme Court held that if the goods are purchased or the services are availed of, by the complainant, for any commercial purpose, then it does not fall within the definition of a consumer, and consequently, the consumer complaint will not be maintainable, in such cases. In, a case decided by a Full Bench of the National Consumer Disputes Redressal Commission, New Delhi, similar principle of law, was laid down. In, it was, in clear-cut terms, held by the National Consumer Disputes Redressal Commission, New Delhi, that the respondent/complainant, being a Private Limited Company, and the commercial activity, being carried on by it, could not be said to be for earning its livelihood, by way of self employment. It was further held that the Private Limited Company, had to act through somebody, and the question of livelihood and self employment, would not arise. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the instant case. It is, therefore, held that since the complainant was engaged in manufacturing activity, aforesaid, on a large scale, to earn huge profits, it did not fall within the definition of a consumer, and, as such, the Consumer Complaint was not maintainable.

26.        

27.        For the reasons, recorded above, the application for condonation of delay of 61 days, (as per the office report 63 days),

28.        

29.        

Pronounced.

3.3.2014

Sd/-

[JUSTICE SHAM SUNDER (RETD.)]

PRESIDENT

Sd/-

(DEV RAJ)

MEMBER

Sd/-

(PADMA PANDEY)

Rg