JUSTICE J. M. MALIK, PRESIDING MEMBER

1.      The principal question which falls for consideration is, “whether the complainant is a consumer?” “Whether he has chosen the Consumer Commission to save the huge Court Fees in respect of approaching the Civil Court?”

2.      The present complaint has been filed by M/s Nidhi Knitwears (P) Ltd.  against the Bank of Maharashtra and its Manager.  Paras No. 1 & 2 of the complainant are reproduced here as under:-

“1.    That the complainant is an MSME Unit and registered under the Companies Act with the Registrar Companies, Punjab and is engaged in the manufacturing and exporting of hosiery goods and earning foreign currency and contributing to the growth of the nation in the form of taxes and generating employment for last about 15 years and exporting the goods to the foreign buyers in the international market and the present complaint is being presented through its Managing Director Mr. C.L. Pandit who has been…….”.

2.      That the Opposite Party no. 1 is the Manager of the Branch of the Respondent No. 1 Bank who is responsible for the day to day affairs of the Bank and liable for the total loss suffered by the complainant which occurred due the deficient services provided by the Bank causing the total loss to the tune of Rs. 45.24 Crores to the complainant as explained in the proceeding paragraphs.”

3.      The relevant averments mention the following facts. The complainant used to have loans from the Bank of Patiala for various facilities of Rs. 6.0 crores.  In January 2011, the opposite parties approached the complainant and gave assurance for the enhanced credit facility on lower rate of interest and quick service and proposed that Bank of Maharashtra would take over the existing facilities and provide the additional funds for future growth.  The opposite party Bank opened the current account of the complainant and started following up with them for take over facilities and consequently the complainant submitted the proposal for enhanced credit facility of 9.5 crores in April 2011.

4.      The Opposite Parties sanctioned the credit facility, fund based and non-fund based on Rs. 9.5 crores and on the basis enhanced credit facility assured by the Bank.  The complainant approached the foreign and domestic customers on 17.06.2011.  The OPs verbally assured the complainant that the balance amount would be sanctioned within a period of six months.  The disbursement of the loan was started by the OPs on 12.08.2011 and surprisingly the complaint was allowed to operate their account only for one day and thereafter, the operations were put  on hold by the Bank without any notice or reason till 23.08.2011 that resulted in heavy losses to the complainant as it was peak season for them and the losses were in the shape of failure of honouring the commitments to their buyers on time, resulting in cancellation of orders,  withholding of business to the tune of Rs. 45.24 crores during the period 13.08.2011 to 23.08.2011.  The business of the complainant was spoiled due to the fault of the opposite parties from August 2011 to April 2013. 

5.      The complainant requested the opposite party Bank to enhance the finance and on the advise of the opposite parties the complainant applied to the Bank for further 1.5 crores as was assured earlier on 25.12.2012.  On 09.01.2013, the Bank advised the complainant to apply for re-structuring and re-habilitation proposal and deposit Rs. 1.35 Crores.  The complainant deposited Rs. 1.35 crores  on 09.01.2013.  The proposal was submitted on 14.5.2013.  The proposal was declined on 14.06.2013. 

6.      This complaint was filed before this Commission on 13.05.2014 with the following prayers:-

a) pass an award in favour of the complainants and against the respondents directing them to pay a sum of Rs. 45.24 Crores towards damages caused to the complainant as per particulars of para 4 of the claim.

b) Grant interest @ 12% on the awarded amount w.e.f. Sept. 2011 till final realization of the money.

c) grant cost and expenses incurred in filing the present complaint.

     Pass any other or further order in favour of the Complainant and against the Opposite Parties in the facts and circumstances of the case to meet the ends of justice.”

7.      Learned counsel for the complainant vehemently argued that this Company has only two Directors and the same are huband and wife.  Our attention was also invited towards the averments made in the complaint where it is stated that this is a family business for their livelihood. Counsel for the complainant has also cited an order of this Commission in OP/51/1999, which was pronounced on 02.01.2013, titled as “M/s Packer Sea Food (Pvt) Limited versus The Tamilnadu Industrial Investment Corporation Ltd. & Anr.”

8.      All the arguments urged by the counsel for the complainant have left no impression upon us. It may be mentioned here that the above judgment has got no application to this case.  The subsequent amendment came into force w.e.f. 15.03.2003.  The law stood tremendously changed.  The crux of the matter is, when the cause  of action had arisen.  The law now as it stands, clearly goes to show that it does not include a person who avails of such service for any commercial purposes as well as the explanation which were introduced w.e.f. 15.03.2003.

9.      The  definition  of  “consumer” as it stood at the time of filing of this complaint, on 13.05.2014,  is as follows:-

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 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 purposes of this clause, “commercial purpose” does 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;]

10.    This Commission in Monstera Estate Pvt. Ltd. Vs. Ardee Infrastructure Pvt. Ltd. – IV (2010) CPJ 299 (NC) held:-

“Housing – Purchase of space for commercial purpose - There was delay in possession.  Complainant was a private limited company. Complainant was nominated for allotment of showroom. Possession not given.  Sale deed was not executed. Deficiency in service was alleged. It was held that even if private limited company was treated as ‘person’, purchase of space could not be for earning its livelihood. Purchase of ‘space’ was for commercial purpose”.

11.    This Commission vide its order passed in the case of M/s Purusharth Associates Pvt. Ltd. Vs. M/s Uppal Housing Ltd. Plaza & Anr. dated 05.07.2012 observed in para 11, which is reproduced as follows:-

“11.     Learned counsel for the complainant argued that these flats will be used for the officers of the Company.  Learned counsel for the complainant could not deny that those officers would transact the commercial activity.  A bare-look on this Resolution clearly goes to show that these flats would be meant for commercial purposes.”

12.    Aggrieved by that order the complainant approached the Apex Court. The Hon’ble Supreme Court in its order-dated 07.01.2013 dismissed the Civil Appeal Nos. 8990-91 of 2012. 

13.    In another case, Shika Birla Vs. DLF Retailers Developers Ltd., Consumer  Complaint No. 183 of 2012, decided by this Bench, on 01.02.2013,  found  that  Shikha  Birla was not a consumer.  An SLP was filed before the Hon’ble Apex Court.  The Hon’ble Apex Court in Civil Appeal No.5458 of 2013,  passed a detailed order, observing as under :-

“This appeal filed is directed against order dt.01.02.2013 of the National Consumer Disputes Redressal Commission (for short, the ‘National Commission’) whereby the complaint filed by the appellant under Section 21 of the Consumer Protection Act, 1986 (for short, ‘the Act’) was dismissed as not maintainable.

We have heard learned counsel for the appellant and carefully perused the record.  The averments contained in paragraphs 2 (A), 2(G), 2(N), 2(Q) of the complaint and paragraphs 3 to 5 of affidavit filed by her sometime in October, 2012 clearly show that the complainant had taken the disputed site from Mr. Ashwani Bahl who, in turn, had purchased the site for business purpose.  It was neither the pleaded case of the appellant nor any evidence was produced by her before the National Commission to show that she had taken the site for earning livelihood.  The National Commission took cognizance of all the facts and observed:

“6. It is thus clear that the complainant is purchasing the said plot for commercial purpose.  There is no pleading nor any evidence to show that the shop purchased by her is exclusively for the purpose of her livelihood, by means of self-employment.

7. It must be borne in mind that the complainant has already paid more than Rs.2.00 crores.  The total cost of the shop is of about Rs.3.00 crores.  The complainant is silent about her occupation.  In her affidavit, in para nos.3, 4, 5 & 6, for the first time, she mentions:

“3. That the complainant had purchased the said commercial area being provided respondent for her end use with a view to open a showroom for interior designing in the said area.

4. The complainant is working as an Interior Designer in the firm which is owned by her father in law i.e. Mr. Malik Chand Birla and her husband i.e. Mr. Anurag Birla under the name and style of “M/s. Origin Overseas (Queen 10 the Home Affairs)”.

5. That with the view to provide a permanent place for the said boutique when the same was shut down in Hauz Khas, the complainant was forced to move to Gurgaon temporarily in the Grand Mall, GS – 122, thereafter the complainant decided to purchase the instant area for her usage.

6. xxx”.

14.    In Kalpavruksha Charitable Trust Vs. Toshniwal Brothers (Bombay) Pvt. Ltd., AIR 1999 SC 3356,  while placing reliance on Laxmi Engginering Works Vs. P.S.G. Industrial Institute, (1995) 3 SCC 583,  the Hon’ble Apex Court was pleased to hold, as under :-

“6. It is, therefore, clear that in spite of the

commercial activity, whether  a person would fall within the definition of “consumer” or not would be a question of fact in every case.  The National Commission had already  held on the basis of the evidence on record that the appellant  was  not  a “consumer”  as the machinery was installed for “commercial purpose”. We have been again referred to various documents, including the “project document”, submitted by the appellant itself to the Bank for a loan to enable it to purchase the machinery in question, but we could not persuade ourselves to take a different view.

9.  In the instant case, what is to be considered is whether the appellant was a “consumer”,  within the meaning of the Consumer Protection Act, 1986, and  whether  the  goods  in question were obtained by him for  “resale” or  for any “commercial purpose”.  It is the case of the appellant  that  every  patient who is referred to the Diagnostic Centre of the appellant and who takes advantage of the CT Scan, etc., has to pay for it and the service rendered by the appellant is not free.  It is also the case of the appellant that only  ten percent of the patients are provided free service. That being so, the “goods” (“machinery”), which were obtained by the appellant, were being used for “commercial purpose”.

15.    This Commission made the following observation in the case of “Subhash Motilal Shah (HUF) & Ors. Versus Malegaon Merchants Co-Op. Bank Ltd.” in Revision Petition No. 2571 of 2012:- “admittedly, since Rainbow Corporation is a firm of Ajay Subhash Shah (HUF), i.e., jurisdic person, there arise no question of self-employment so as to cover the case under explanation to section 2(1)(d)(ii) of the Consumer Protection Act, 1986. It is a case relating to an action related with services given while operating the Current Account of Appellant Rainbow Corporation which was admittedly opened and used for business purpose, of the business of ommission agent and business sale. Therefore, since the account itself is connected and related to the business transactions and such banking activity is required for the functioning of a given business enterprise of the appellant/complainant, services hired for that purpose would fall within the category of hiring services for commercial purpose.  A useful reference can be made to free dictionary by FARLEX (on Internet) which defines the business Activity as the activity undertaken as a part of commercial enterprise. Further, reference can be made to an article available on the internet Website Wise Geek (copyright protected 2003-12 by Conjecture Corporation) and which is written by Alexis. W, edited by Heater Bailey. Under the circumstances, prima facie appellant/complainant Rainbow Corporation cannot be a consumer within the meaning of Section 2(1)(d)(ii) of the Act.”

16.    Aggrieved by this order, SLP was filed before the Apex Court.  The Apex Court in its order dated 13.01.2014 dismissed the same in leave to Appeal (Civil) No.(s) 39200/2013.

17. The case of the complainant lacks conviction.   The complainant is, therefore, dismissed.  No costs. However, liberty is given to the Complainant to approach the proper Forum/Civil Court for redressal of its grievances as per Law.