National Consumer Disputes Redressal
M/S. Sacheta Metals Limited vs Icici Bank Limited on 25 April, 2018
NATIONAL CONSUMER DISPUTES REDRESSAL COMMISSION NEW DELHI FIRST APPEAL NO. 773 OF 2016 (Against the Order dated 05/03/2015 in Complaint No. 15/2015 of the State Commission Gujarat) 1. M/S. SACHETA METALS LIMITED HAVING ITS REGISTERED OFFICE AT : SACHETA UDHYOG NAGAR, TALOD, DIST. SABARKANTHA, ...........Appellant(s) Versus 1. ICICI BANK LIMITED HAVING THEIR ADDRESS AT SADGURU CHS LTD., LIBERTY GARDEN, MALAD (WEST) MUMBAI- ...........Respondent(s)
BEFORE: HON'BLE MR. DR. B.C. GUPTA,PRESIDING MEMBER HON'BLE MR. DR. S.M. KANTIKAR,MEMBER
For the Appellant : For the Respondent :
Dated : 25 Apr 2018 ORDER
APPEARED AT THE TIME OF ARGUMENTS
For the Appellant
:
Mr. D. R. Patel, Advocate
For the Respondent
:
Mr. Mayank Pandey, Advocate
Mr. Rhythm Buaria, Advocate
PRONOUNCED ON: 25th April 2018
ORDER
PER DR. B.C. GUPTA, PRESIDING MEMBER This first appeal has been filed under section 19, read with section 21(a)(ii) of the Consumer Protection Act, 1986, against the impugned order dated 05.03.2015, passed by the Gujarat State Consumer Disputes Redressal Commission, Ahmedabad (hereinafter referred to as "the State Commission") in Consumer Complaint No. 15/2015, M/s. Sacheta Metals Ltd. vs. ICICI Bank Ltd., filed by the present appellant, vide which, the said complaint was ordered to be dismissed on the ground that the appellant/complainant is a manufacturing Company and carrying on commercial activities by manufacturing products for commercial purpose and hence, the consumer fora had no jurisdiction to entertain such complaints under the Consumer Protection Act, 1986.
2. Briefly stated, the facts of the case as stated in the consumer complaint itself are that the complainant/appellant is a Company registered under the Companies Act, 1956 and dealing in business of manufacturing and export of aluminium ingots, stainless steel sheets, circles, utensils, casting, non-stick items and other housewares items etc. The complainant placed an order for aluminium ingots from a Company called M/s. Huahai International Holding Ltd., China. For the purpose of the transaction, a Letter of Credit (LC) was opened by the complainant with the opposite party (OP) ICICI Bank Ltd. It is stated that when the goods sent by the Company from China arrived at ICD, Ahmedabad, the complainant made inspection of the said goods, but they found that the goods delivered by the said Company were cement sheets with iron rods and not aluminium ingots, against which the LC had been issued for US $41875. The complainant intimated to the OP Bank immediately to stop payment for the goods, or to delay the payment till the actual goods, as per the proforma invoice were received from the Chinese Company. However, the OP Bank refused to stop the said payment to the seller. The complainant filed the consumer complaint in question, alleging deficiency in service on the part of the ICICI Bank and sought directions against them to remit them a sum of Rs. 30 lakhs and Rs. 5 lakhs as compensation for deficiency in service, alongwith interest @ 18% per annum, in addition to Rs. 5 lakhs as compensation for mental agony etc. The State Commission, vide impugned order dated 05.03.2015, dismissed the said consumer complaint and held in their order as follows:-
"2. It is pertinent to note that the complainant is a manufacturing company and carrying on commercial activities, manufacturing products for commercial purpose. In our opinion, if any transaction takes place in reference to commercial activity, then this Commission would have no jurisdiction to entertain such complaint and remedy is available to the complainant before appropriate court. It has been submitted by the ld. Advocate for the complainant that the complaint is not with respect to any commercial transaction but with reference to deficiency in service displayed by the bank and therefore, this Commission has jurisdiction to entertain the complaint. We do not agree with the submission. In view of above, the complaint is summarily dismissed."
3. Being aggrieved against the said order of the State Commission, the complainant are before us by way of the present first appeal.
4. During arguments before us, the learned counsel for the appellant/complainant stated that since they had obtained the services of the OP Bank by opening a letter of credit with them, they do fall under the definition of 'consumer' vis-a-vis the OP Bank. The State Commission had, therefore, taken an erroneous view in holding that the complainants were not covered under the definition of consumer. In support of his arguments, the learned counsel has drawn attention to an order passed by Hon'ble Supreme Court in Vimal Chandra Grover vs. Bank of India, 2000 (0) GLHEL-SC 34245. It has been stated therein that the grant of overdraft facility by a Bank was a service within the meaning of section 2(1)(o) of the Act, as the Bank was charging interest on the amount of advance given to the party.
5. Per contra, the learned counsel for the respondent stated that the complainant do not fall within the definition of 'consumer', as per section 2(1)(d) of the Act or the 'explanation' contained in the said section. In support of his arguments, the learned counsel has drawn attention to the order passed by this Commission in M/s. Nalwa Steel and Power Ltd. vs. State Bank of India, 2015, SCC OnLine NCDRC 3150 and another order passed in Richi Rich Agro Foods Pvt. Ltd. vs. State Bank of India & Ors., 2015 SCC OnLine NCDRC 1802. It was held in both these cases that the complainants were not consumers within the meaning of Section 2(1)(d) of the Act. The learned counsel further stated that the complainant had first filed a case in the Civil Court at Bombay, but as per order passed on 08.02.2013 by Bombay City Civil Court, Dindoshi, Goregaon at Mumbai in S.C. Suit No. 430/2013, the Court refused to grant them interim relief. In view of the fact that they had already moved the Civil Court, the complainant had no legal right to file the consumer complaint in question before the consumer fora. The learned counsel has further drawn attention to copies of the documents concerning the LC placed on file, saying that the Bank was bound to reimburse the amount to the seller on receipt of the documents. There was no deficiency in service, therefore, on the part of the Bank.
6. We have examined the entire material on record and given a thoughtful consideration to the arguments advanced before us.
7. The main issue for consideration in the matter is whether the consumer complaint is maintainable before the consumer fora, and whether the complainant falls within the definition of 'consumer' as per section 2(1)(d) of the Act. As stated in the consumer complaint itself, the complainant is a Company registered under the Companies Act, 1956 and engaged in the business of manufacturing and export of various items. They had opened the letter of credit with the OP Bank in respect of a commercial transaction with a foreign Company. The complainants have not been able to explain anywhere, as to how they fall within the definition of 'consumer', as stated in Section 2(1)(d) of the Act. Since the transaction in question is a commercial one and no plea has been made that the complainant fall under the ambit of the 'explanation' to Section 2(1)(d) of the Act, the State Commission rightly concluded that the complainant did not fall under the definition of 'consumer'. The orders passed by this Commission, referred to by the respondent in M/s. Nalwa Steel and Power Ltd. vs. State Bank of India (supra) and in Richi Rich Agro Foods Pvt. Ltd. vs. State Bank of India & Ors. (supra), it is evident that having placed an order for the import of aluminium ingots from a foreign Company and opening LC for the purpose with the OP Bank, the complainant has indulged in commercial activity only. In so far as the citation provided by the appellant is concerned, the facts of the case make it clear that the overdraft limit had been sanctioned to the individual complainant against pledge of shares of various Companies. The facts of the said case are distinct from the facts of the instant case, because in this case, the complainant Company has indulged in commercial activity by ordering import of material from a foreign Company.
8. It has further been made clear by the respondent that the complainant Company has already moved a Civil Court at Mumbai, seeking relief against the OP Bank. It is evident, therefore, that the complainant should not have filed the present consumer complaint, because the Civil Suit filed by them is already pending.
9. Based on the discussion above, we hold that there is no merit in this appeal and the same is ordered to be dismissed and the order passed by the State Commission is upheld, being in accordance with law. There shall be no order as to costs.
...................... DR. B.C. GUPTA PRESIDING MEMBER ...................... DR. S.M. KANTIKAR MEMBER