Order No. 3 Date: 31-07-2015
Sri Debasis Bhattacharya
Today is fixed for passing order in respect of admissibility of this complaint case.
Ld. Advocate for the Complainant has submitted that it is operating current accounts with the OP Bank since the year 2004. On its prayer, the OP Bank accorded necessary financial assistance/accommodation to the Complainant. Such financial assistance was provided by the OPs to the Complainant against consideration. Extending overdraft facility to customers is an integral part of the banking service and therefore, it is covered under Sec. 2(1)(o) of the Consumer Protection Act, 1986. Any dispute related to arbitrary charging of interest is a valid consumer dispute. Moreover, the present case has been filed within the limitation period of two years from the date of cause of action and insofar as territorial and pecuniary jurisdiction of this Commission to adjudicate the instant dispute is concerned, there is no infirmity in this regard. From every aspect, therefore, it is a valid complaint and as such, the complaint case be admitted. In support of his contention, the Ld. Advocate has referred to two decisions of the Hon’ble Supreme Court, reported in AIR 2006 SC 2810 and AIR 2000 SC 2181.
The instant dispute revolves over alleged illegal calculation and imposition of higher interest by the OP banker in respect of the cash credit facility extended to the Complainant.
The moot point for our consideration is whether the instant complaint case is admissible in its present form and prayer, or not. To be more specific, whether a Partnership Firm construe as a bona fide “consumer”, within the meaning of Section 2(1)(d) of the Consumer Protection Act, 1986, or not.
Let us first see, what it means by “consumer” in terms of the Consumer Protection Act, 1986.
In terms of Sec. 2(1)(d), “consumer” means any person who –
- 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
- 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 purposes;
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.”
A glance through the above provision makes it abundantly clear that “commercial purpose”, by and large has been kept out of the purview of this Act. However, if one embarks on commercial activities for the purpose of earning livelihood by means of self-employment, only in such cases disputes related to commercial activities can be adjudicated by the Consumer Fora.
In the instant case, undisputedly, the Complainant is a Partnership Firm. It appears from the documents on record that the Complainant partnership firm is consisting of four partners, namely, Probodh Ch. Saha, Kamala Saha, Tintu Saha, and Deblina Saha. It further transpires from the Complainant’s letter dated 21-05-2010 to the OP No. 4 that the establishment started its business in the year 1985 and it executes government civil contracts for construction of roads, culverts and other infrastructure projects.
Such activities by the Complainant firm hardly leaves any pale of doubt in our mind that the Complainant is not engaged in commercial activities by means of self-employment for the purpose of earning livelihood, rather it is purely a commercial venture which has been set up to earn profit by engaging several people. Accordingly, the essence of “consumer”, as stipulated in the 1986 Act is palpably missing, for which the Complainant cannot be treated as a bona fide “consumer” under the Consumer Protection Act, 1986. Consequent thereof, the present complaint case cannot be admitted and hence, stands dismissed being non-maintainable.
