Per Shri S.R. Khanzode, Hon’ble Presiding Judicial Member This appeal takes an exception to an order dated 05/01/2011 dismissing a consumer complaint bearing No.178/2009, Vijay Narayan Bhambure & Anr. V/s. Branch Manager, ICICI Bank Ltd.; Loan Against Securities Department, Lower Parel (West), Mumbai, by District Forum, Central Mumbai. Feeling aggrieved by the dismissal, original complainant has preferred this appeal. 2. It is the case of complainants-Mr.Vijay Narayan Bhambure and Mrs.Sheela Vijay Bhambure that they had taken services of ICICI Bank Ltd. (hereinafter referred to as ‘Bank’) for taking loan against shares i.e. loan against securities by opening a current account. Shares accordingly were pledged with the Bank and as agreed between the parties, the complainants could avail the loan limit to the extent of 50% of the value of shares. It is not in dispute that if the limit exceeds, the complainants had to make good by pledging additional shares relevant to the market value of the shares pledged. In case the complainants failed to make up the deficit, the Bank had right to sell proportionate shares which were pledged with it to make the shortfall. 3. It is the contention of the complainants that on 03/07/2008 they had requested the Bank to liquidate their shares i.e. the pledged shares and adjust the proceeds against the due amount of the current account i.e. the account referred earlier. It is the grievance of the complainants that the Bank did not act promptly on their instructions but sold the shares on 28/11/2008 but by that time, the value of the shares had fallen and they had suffered a loss of `66,354/-. For not acting promptly on their letter dated 03/07/2008, supra, the deficiency in service on the part of the Bank is alleged. The complainants filed this consumer complaint asking the Bank to make the good by paying compensation of `13,05,000/- (`11,35,000/- as damages towards selling shares owned by the complainants + `1,65,000/- as damages towards mental stress and strain + `5,000/- towards processing the complaint). 4. The Bank while opposing the complaint has specifically denied that they had received any instructions per letter dated 03/07/2008. They also alleged that since complainants were defaulters and did not make good to the security pledged as agreed, they had to sell the pledged shares. There is no deficiency in service on their part. 5. It may be pointed out that the complainants’ claim that the amount raised as per current account facility with credit limit, supra, is used by them to acquire shares as an asset and not for resale. They are not dealing in share business and it is further submitted on their behalf that if the Commission held that activity of purchasing shares is for making profit then in that case, it is for the purpose of earning their livelihood. The Bank seriously disputed such contention and submitted that they are not consumers within meaning of Section 2(1)(d) of Consumer Protection Act, 1986 (‘the Act’ for brevity). 6. District Forum found that since services of the Bank were hired for commercial purpose, the complainants are not consumers and dismissed the consumer complaint. 7. Heard both the parties at length. 8. Coming to the contention as to whether complainants are consumers or not, we find that the statement of the complainants to the effect that they used the money raised by obtaining services of the Bank, opening current account with the facility i.e. pledging the shares, supra, for acquiring the shares from time to time as an asset and not for resale, does not inspire confidence. It is not that they only acquired shares and were not selling the shares and this fact is evident from the letters from time to time sent by Bank including one dated 29/08/2008. The letters of the Bank are not in dispute. These letters reflected that they were written when the Bank found the complainants borrowing loan exceeding the limit than what they could borrow referring to the value of shares pledged and asking the complainants to make good the deficit. This only indicates trading of shares carried out on and often by the complainants. Certainly such business is for profit and thus, it is a commercial activity. The complainants claimed that they did so for the purpose of earning their livelihood by means of self-employment. This statement is contradicted by their own declarations given while opening above referred credit account with the Bank. In answer to the information as to occupation in column (11) of those preliminary application forms, complainant No.1-Mr.Vijay Narayan Bhambure described himself as ‘retired’ and did not describe himself as self-employed. Similarly, his wife-complainant No.2-Mrs.Sheela Bhambure in answer to said information described herself as ‘housewife’ and did not described herself as self-employed. Had this business is carried out for the facilities obtained for the self-employment they would have tick mark ‘self-employed’ and mentioned it accordingly in the said information disclosed. Apart from that there is nothing on record placed by the complainants to establish that their trading in shares is carried out for their livelihood by way of self-employment. Thus, the complainants will not fall within explanation to Section 2(1)(d) of the Act and thus, they are not consumers and therefore, we endorse the finding of the District Forum on this issue. 9. Besides this, coming to the other aspect of the case, it could be seen that grievance of the complainants is that Bank did not act as per their instructions letter dated 03/07/2008 whereby the complainants claimed to have made request to the Bank to sell their pledged shares i.e. to liquidate security and adjust the proceeds against their outstanding in the current account. It is the case of complainants that the Bank acted after about four months and thus, complainants had suffered a loss due to fall of price of shares. Receipt of letter dated 03/07/2008 is specifically denied by the Bank. In those circumstances, it is for the complainants to establish that the Bank had received their instructions per letter dated 03/07/2008. Complainants submitted at the time of arguments that they had sent said letter by courier, but failed to establish the same. Complainants further failed to establish that the Bank had received instructions as per letter dated 03/07/2008. Had the Bank received such letter, the Bank would not have written letter dated 29/08/2008 to the complainant No.1-Mr.Vijay Bhambure asking him to make good the deficit since he exceeded the limit. Even after receipt of said letter, the complainants did not respond to the Bank saying that they already had instructed to liquidate their security. Therefore, story of the complainants in this respect cannot be believed. Once the complainants failed to establish this fact, their case for alleged deficiency in service on the part of the Bank for not acting as per those instructions goes away and thus, no deficiency in service on the Bank could be inferred. 10. Before parting with the judgement, we would like to comment on one of the submission made by the Bank to the effect that the consumer complaint was filed against the Manager who is its employee and not against the Bank. We find that before the District Forum as well as in the appeal, it is the Bank which put its appearance and contested the lis. Therefore, real contestant is Bank and thus, mis-description of the opponent/respondent is left with no significance. 11. For the reasons stated above, we do not find any reason to take a different view than what has been taken by the District Forum and therefore, finding the appeal devoid of any substance, we pass the following order :- -: ORDER :- 1. Appeal stands dismissed. 2. Appellants to bear their own costs and pay costs of `5,000/- to the respondent. 3. Copies of the order be furnished to the parties. Pronounced Dated 21st November 2012. | 
