Heard Mr. R. V. Ramani, learned Sr. Advocate at some length on the question of maintainability of the present complaint before a consumer fora like the present Commission.

          Order during the course of the day.

The above named complainant has filed this complaint alleging deficiency in service on the part of the opposite party-Bank claiming the following reliefs:-

“i) Allow the complaint filed by the complainant and hold the Respondent guilty of deficiency in service under the provisions of the Consumer Protection Act, 1986.

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ii) Direct the Respondents to pay the sum of Rs.15,00,000/- towards non delivery of machinery above mentioned and a sum of Rs.17,50,000/- towards the expected net income from the tea estate and a sum of Rs.75,00,000/- towards the expected net income from the Tea Factory.

iii) Direct the respondents to pay a sum of Rs.10,00,000/- towards harassment, mental agony and torture and litigation expenditure and traveling expenses.

iv) Pass such other and further orders as this Hon’ble Commission may deem fit and proper in the facts and circumstances in the present case.”

According to the complainant, the tea estate and tea factory of M/s Kathikal Tea Plantation was put to auction by the opposite party-Bank under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (hereinafter referred to as ‘the Act’) and the complainant purchased the same for a consideration of Rs.75,60,000/- and a sale certificate was issued in his faovur and got registered.  However, the actual physical possession of the said estate/immovable property was not delivered to the complainant uptil 26.10.2009 and due to this delay, the complainant has suffered pecuniary loss and injury for which the opposite party-Bank is liable to pay damages to the complainant on account   of   its   loss of net  income  from the tea estate and tea

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factory for the delayed period.  As per the complainant’s own showing, the owners of the tea estate and tea factory had approached the High Court of Madras and Court of Sessions Judge, Nilgiris at Udhagamandalam. 

We have heard Mr. R. V. Ramani, learned Sr. Advocate representing the complainant at length on the question of maintainability of the present complaint before this Commission and have perused the material placed on record in support of the complaint.  Taking the averments and allegations made in the complaint on their face value at this stage, the question is whether the complainant is entitled to invoke the jurisdiction of this Commission for the redressal of his grievance under the provisions of the Consumer Protection Act, 1986.  Our answer is in the negative and it is for the reasons that neither the complainant can be said to be a ‘consumer’ within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986 (for short, ‘the Act’) as it stands after amendment nor the opposite party-State Bank of India can be said a service provider within the meaning of the Act.   We say so because

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as per the complainant’s own showing, he had purchased the tea estate/tea factory, which was a business/commercial venture and for commercial use only as he claims that due to the delay in getting the actual physical possession of the tea factory, he had suffered a net loss of income to the extent of Rs.75,60,000/-.   Therefore, even if it is assumed that the opposite party-Bank has provided some kind of service to the complainant by sale of the said tea estate to the complainant under the provisions of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, the said service will be deemed to have been provided for commercial purpose and the service availed by a consumer for commercial purpose has been taken out from the purview of the Consumer Protection Act, 1986 by the Amending Act 62 of 2002 effective from 15.03.2003.  By sale of the tea estate/tea factory to the complainant under the provisions of 2002 Act, the opposite party-Bank cannot be said to have rendered any service to the complainant within the meaning of Section 2(o) of the Act because it was a pure, simple transaction of outright sale of immovable and movable properties of the complainant in terms of the

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provisions of Act of 2002.  In this view, we are supported by the decision of the Supreme Court in the case of Administrator, UT, Chandigarh vs. Amarjeet Singh JT 2009 (4) SC 135. The complainant in the present case had purchased the tea estate in an auction held by the opposite party and will be deemed to have done so on ‘as is where is basis’ i.e. after due diligence and knowingfully the fact that the physical possession of the tea estate was not being handed over to the complainant although the sale certificate has been registered in his favour.

That apart, as per the complainant’s own showing the sale certificate was registered in his favour as far back as on 9.4.2007 when the cause of action can be said to have arisen in favour of the complainant but the present complaint was filed in this Commission only on 28.07.2011 i.e. after more than four years of the date of registration of the sale certificate.  Section 24-A of the Consumer Protection Act provides two years limitation for filing a complaint before a consumer fora from the date of accrual of the cause of action.  In this way, the present complaint is also hopelessly barred by limitation.

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For the above stated reasons, we dismiss the present complaint as not maintainable before this Commission as also for the reason that it is barred by limitation, It would however be open to the complainant to work out his remedy before any other competent court/forum.