State Consumer Disputes Redressal Commission
Smt.Renu Shukla vs Bank Of Baroda on 20 April, 2017
M. P. STATE CONSUMER DISPUTES REDRESSAL COMMISSION,
PLOT NO. 76, ARERA HILLS, BHOPAL (M.P.)
CC No. 32 / 2017.
FILED ON : 22.3.2017
DECIDED ON : 20.4.2017.
Smt. Renu Shukla
Sole Proprietoress
OM SAI Warehouse,
Village Bansa
PO Govindgarh, Tehsil Huzur,
District Rewa (M.P.).
.... Complainant.
Versus
Bank of Baroda,
(Through its Manager)
Kala Mandir,
Rewa (M.P.).
.... Opposite Party.
BEFORE:
HON'BLE SHRI JUSTICE RAKESH SAKSENA, PRESIDENT
HON'BLE SHRI SUBHASH JAIN, MEMBER
HON'BLE SHRI S. D. AGARWAL, MEMBER
COUNSEL APPEARING FOR THE PARTIES :
SHRI SANJEEV PANDIT, LEARNED COUNSEL FOR COMPLAINANT.
ORDER
The following order of the Commission was delivered by Rakesh Saksena, J. :
The complainant has filed this complaint under section 17 of the Consumer Protection Act, 1986.
2. Heard on admission.
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3. Briefly stated the facts of the case are that complainant is a sole proprietor of OM SAI Warehouse in District Rewa. She is engaged in agriculture / business activity in Village Bansa of District Rewa. In the year 2008, the Government of India promoted a reform linked investment scheme to encourage development of infrastructure projects in agriculture and allied sector by name Agriculture Marketing Infrastructure, Grading and Standardization Scheme. One of the items of the scheme happened to be the construction of Warehouses for storage of the agriculture produce. In this scheme Banks were authorized to offer assistance to entrepreneurs in the form of credit on easy loan terms repayable in 7 to 11 years. The Banks could finance the project cost upto 75% which included the subsidy amount. The subsidy of 25% of the capital cost of the project was to be given by Government through NABARD in instalments. The complainant applied for loan for Warehouse with the storage capacity of 3000 tonnes, through Bank of Baroda, Rewa Branch in September / October 2010. The project was cleared by the Bank at estimated cost of Rs.70 lacs out of which Rs.49 lacs was the loan component. During the construction of the above project the complainant applied for another unit Warehouse of 2000 tonnes storage capacity. Its project cost was Rs.35 lacs of which the Bank's loan amount was Rs.21 lacs.
4. It is alleged that the unit no.1 was ready in December 2011 and joint monitoring inspection was called, but it was not conducted by NABARD. Though some amount of subsidy was released, but due to delay in JMI the claim for final subsidy was refused by NABARD on the ground of running over of the time.
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5. The complainant pursued her remedy against NABARD before the High Court, Jabalpur by filing Writ Petition No.16946 of 2015. It has also been averred in the complaint that the opposite party / Bank in the year 2015 issued notice to complainant classifying her both the accounts as Non- performing assets with the liability of Rs.65.79 lacs + interest + other charges and took notional possession of the assets on 3.11.2015 by instituting proceedings under the Securitization and Reconstruction of Financial Assets and Enforcement of Security Interest Act (for short "SARFAESI Act"). Making several allegations against the Bank including the delay having been caused in conduct of JMI with the NABARD, the complainant has filed this complaint claiming damages of Rs. 1 crore.
6. Learned counsel for the complainant argued that the transaction between the complainant and the opposite party / Bank is not a commercial transaction and even if, it may be so, the complaint before the Commission was maintainable as the complainant had taken the loan to meet her livelihood by charging rent from persons using the Warehouse for storage of the farm produce and not for trading or other commercial purposes.
7. A bare perusal of the averments made in the complaint indicate that complainant had agriculture land and she was engaged in agriculture / business activity. She had borrowed the loan for construction of Warehouse. First she secured the loan for a Warehouse with the storage capacity of 3000 tonnes having estimated cost of Rs.70 lacs and thereafter she began the construction of another Warehouse unit of 2000 tonnes of storage capacity with project cost of Rs.35 lacs. This clearly indicates that the object of the complainant for construction of the Warehouses was plain and simple commercial, for gain and earning profits.
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8. It is also to be noted that for not granting subsidy the complainant approached to High Court by filing a Writ Petition and further that the opposite party / Bank initiated proceedings against the complainant under the SARFAESI Act by taking notional possession of the assets. It is true that complainant pleaded that she had taken loan to meet her livelihood, but from the facts and circumstances which are apparent from the record, it can be inferred that the purpose of the loan was simply commercial. The complainant, beside other reliefs sought compensation for loss of her business at the rate of 1.5 lac per month. This itself speaks volums. In Section 2 (1) (d) (ii) of the Consumer Protection Act, 1986 it has been laid down as follows :-
"(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 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."
Crux of the aforesaid provision is that commercial purpose shall not affect the case of complainant, if services availed by him are exclusively for the purpose of earning his livelihood by means of self-employment. It is beyond imagination that the complainant, who was involved in agriculture business would earn livelihood
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9. For the aforesaid reasons, we hold that the complainant hired the services of the opposite party / Bank for the commercial purpose and not merely for earning livelihood by means of self-employment. As such the complaint before this Commission is not maintainable. Apart from it, in view of the admission of the complainant that the Bank has initiated proceedings under the SARFAESI Act against her also, the complaint is not maintainable.
10. The complaint is accordingly dismissed at motion stage.
(Justice Rakesh Saksena) (Subhash Jain) (S. D. Agarwal)
PRESIDENT MEMBER MEMBER
Phadke